ACCEPTED
03-14-00801-CV
5596437
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/9/2015 10:18:31 AM
JEFFREY D. KYLE
CLERK
CASE NO. 03-14-00801-CV
FILED IN
IN THE THIRD COURT OF APPEALS 3rd COURT OF APPEALS
AUSTIN, TEXAS AUSTIN, TEXAS
6/9/2015 10:18:31 AM
JEFFREY D. KYLE
THE UNIVERSITY OF TEXAS SYSTEM AND THE UNIVERSITY OF TEXAS AT DALLAS
Clerk
Appellants,
v.
KEN PAXTON, ATTORNEY GENERAL OF TEXAS,
Appellee,
v.
MARILYN CAMERON,
Intervenor/Appellee.
On Appeal from the 261st District Court of Travis County, Texas
The Honorable Stephen Yelenosky, Presiding
BRIEF OF APPELLEE KEN PAXTON1,
ATTORNEY GENERAL OF TEXAS
KEN PAXTON KIMBERLY L. FUCHS
Attorney General of Texas State Bar No. 24044140
Chief, Open Records Litigation
CHARLES E. ROY Administrative Law Division
First Assistant Attorney General Office of the Attorney General of Texas
P.O. Box 12548, Capitol Station
BRANTLEY STARR Austin, Texas 78711-2548
Deputy Attorney General for Legal Telephone: (512) 475-4195
Counsel Facsimile: (512) 320-0167
kimberly.fuchs@texasattorneygeneral.gov
DAVID A. TALBOT, JR.
Chief, Administrative Law Division ATTORNEYS FOR APPELLEE KEN PAXTON,
ATTORNEY GENERAL OF TEXAS
June 9, 2015
1
Pursuant to Texas Rule of Appellate Procedure 7.2, the Attorney General substitutes Attorney
General Ken Paxton for former Attorney General Greg Abbott.
REFERENCE TO THE PARTIES
Appellants The University of Texas System and The University of Texas at
Dallas, will be referred to, collectively, as “the University.” Appellee, Ken Paxton,
Attorney General of Texas, will be referred to as “the Attorney General,” and
Appellee Marilyn Cameron will be referred to as “Ms. Cameron.”
REFERENCES TO THE RECORD
Clerk’s record will be referenced as: C.R. [Page]
ii
TABLE OF CONTENTS
Reference to the Parties............................................................................................. ii
References to the Record .......................................................................................... ii
Table of Contents ..................................................................................................... iii
Index of Authorities ...................................................................................................v
Statement Regarding Oral Argument ..................................................................... vii
Issues Presented ...................................................................................................... vii
1. Did the trial court correctly grant the Attorney General’s Motion for
Summary Judgment? .................................................................................... vii
Introduction ................................................................................................................1
Statement of Facts ......................................................................................................2
Standard of Review ....................................................................................................3
Summary of the Argument.........................................................................................3
Argument....................................................................................................................4
I. The trial court correctly granted the attorney general’s motion for
summary judgment .....................................................................................4
A. Common-law privacy does not make the information at issue
confidential .........................................................................................4
B. The University failed to meet its burden to create a fact issue
capable of defeating summary judgment ............................................8
C. The trial court correctly considered the parties’ cross motions for
summary judgment ...........................................................................11
Conclusion and Prayer .............................................................................................12
iii
Certificate of Compliance ........................................................................................14
Certificate of Service ...............................................................................................15
iv
INDEX OF AUTHORITIES
CASES
A & T Consultants, Inc. v. Sharp,
904 S.W.2d 668 (Tex. 1995) ............................................................................. 3, 8, 9
Abbott v. Tex. Dep’t of Mental Health & Mental Retardation,
212 S.W.3d 648 (Tex. App.—Austin 2006, no pet.) .................................................9
Adkisson v. Paxton,
No. 03-12-00535-CV, 2015 WL 1030295, at *10
(Tex. App.—Austin, March 6, 2015, no pet.) ..........................................................10
Arlington Indep. Sch. Dist. v. Tex. Attorney Gen.,
37 S.W.3d 152 (Tex. App.—Austin 2001, no pet.) ...............................................7, 9
Centeq Realty, Inc. v. Siegler,
899 S.W.2d 195 (Tex. 1995) ......................................................................................8
City of Fort Worth v. Cornyn,
86 S.W.3d 320 (Tex. App.—Austin 2002, no pet.) ...................................................9
City of Garland v. Dallas Morning News,
22 S.W.3d 351 (Tex. 2000) ......................................................................... 3, 7, 8, 12
Hubert v. Harte-Hanks Tex. Newspapers, Inc.,
652 S.W.2d 546 (Tex. App.—Austin 1983, writ ref’d n.r.e.)................................5, 7
Indus. Found. v. Tex. Indus. Accident Bd.,
540 S.W.2d 668 (Tex. 1976) ............................................................................ 4-6, 11
Johnson v. Sawyer,
47 F.3d 716 (5th Cir. 1995) .......................................................................................6
Morales v. Ellen,
840 S.W.2d 519 (Tex. App.—El Paso 1992, writ denied) ........................................6
Star-Telegram, Inc. v. Doe,
915 S.W.2d 471 (Tex. 1995) ......................................................................................5
v
Thomas v. Cornyn,
71 S.W.3d 473 (Tex. App.—Austin 2002, no pet.) ...................................................9
Totman v. Control Data Corp.,
707 S.W.2d 739 (Tex. App.—Fort Worth 1986, no writ) .........................................8
STATUTES
Tex. Gov't Code
Public Information Act ch. 502
552.001(a) ..............................................................................................................2, 7
552.001(b) ..................................................................................................................7
552.006 .......................................................................................................................8
552.021 .....................................................................................................................10
552.204 .......................................................................................................................6
552.222(b) ..................................................................................................................6
vi
STATEMENT REGARDING ORAL ARGUMENT
The Attorney General takes the position that oral argument is not necessary in this
case, but requests the right to make an argument should oral argument be granted.
ISSUES PRESENTED
1. Did the trial court correctly grant the Attorney General’s Motion for Summary
Judgment?
vii
CASE NO. 03-14-00801-CV
IN THE THIRD COURT OF APPEALS
AUSTIN, TEXAS
THE UNIVERSITY OF TEXAS SYSTEM AND THE UNIVERSITY OF TEXAS AT DALLAS
Appellants,
v.
KEN PAXTON, ATTORNEY GENERAL OF TEXAS,
Appellee,
v.
MARILYN CAMERON,
Intervenor/Appellee.
On Appeal from the 261st District Court of Travis County, Texas
The Honorable Stephen Yelenosky, Presiding
BRIEF OF APPELLEE KEN PAXTON,
ATTORNEY GENERAL OF TEXAS
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
INTRODUCTION
The Public Information Act (PIA) places the public’s interest in obtaining
public information above the interest of a governmental body in denying access to
the information.
Under the fundamental philosophy of the American constitutional form
of representative government that adheres to the principle that
government is the servant and not the master of the people, it is the
policy of this state that each person is entitled, unless otherwise
expressly provided by law, at all times to complete information about
the affairs of government and the official acts of public officials and
employees.
Tex. Gov’t Code § 552.001(a).
In this PIA case, the University claims a list containing the names of
participants in a research study is excepted from disclosure under the PIA. Because
the University has not shown any exceptions apply to the particular information, this
Court should require that it be released to the requestor.
STATEMENT OF FACTS
In 2011, Ms. Cameron requested information on specific categories of
information relating to studies for which the University had received grants from the
National Science Foundation. C.R. at 43. The University responded that it did not
have documents responsive to some categories of information (C.R. at 49), released
some information (C.R. at 4; 49), but requested a letter ruling from the Attorney
General on other information, specifically a list of names of people who participated
in a research study (C.R. at 45-51; 5). The University argued the list of names was
excepted from disclosure by Texas Government Code section 552.101 in
conjunction with common-law and constitutional privacy. C.R. at 49-51.
The Attorney General issued Letter Ruling OR2011-17401, which concluded
that neither privacy standard applied to the list of names. C.R. at 40-42.
The University filed suit, and Ms. Cameron intervened. C.R. at 3; 13. The
Attorney General and the University then filed cross motions for summary judgment.
2
Following a hearing, the Attorney General’s motion was granted and the
University’s motion was denied. C.R. at 84-85.
STANDARD OF REVIEW
A trial court’s determination of whether information requested under the PIA
must be released is a question of law requiring de novo review. See A & T
Consultants, Inc. v. Sharp, 904 S.W.2d 668, 674 (Tex. 1995); see also City of
Garland v. Dallas Morning News, 22 S.W.3d 351, 357 (Tex. 2000); Arlington Indep.
Sch. Dist. v. Tex. Attorney Gen., 37 S.W.3d 152, 163 (Tex. App.—Austin 2001, no
pet.).
SUMMARY OF THE ARGUMENT
Because information held by the University is presumed to be public
information, the University has the burden to prove an exception to disclosure
applies to the information in order to withhold it. The University raised Texas
Government Code section 552.101 in conjunction with common-law privacy in its
motion for summary judgment.2 However, common-law privacy does not apply to
the information at issue, which is simply a list of names of participants in a research
study at the University. The trial court granted the Attorney General’s motion for
summary judgment on this point and denied the University’s. The trial court
2
At the trial court level, the University argued that the information is made confidential under
the doctrine of constitutional privacy. That issue is not raised here.
3
appropriately considered the evidence presented and correctly applied the law. The
trial court’s judgment should be affirmed.
ARGUMENT
I. THE TRIAL COURT CORRECTLY GRANTED THE ATTORNEY
GENERAL’S MOTION FOR SUMMARY JUDGMENT.
A. Common-law privacy does not make the information at issue
confidential.
The University claims the information at issue should be withheld pursuant to
Texas Government Code section 552.101 in conjunction with common-law privacy.
Common-law privacy protects only highly intimate or embarrassing information
about one’s personal life, the disclosure of which would be highly objectionable to
a reasonable person. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668,
685 (Tex. 1976). The University did not meet this threshold test.
Over thirty years ago, the Texas Supreme Court set out the test for a claim of
common-law privacy in the context of a request for information under the PIA. See
id. The Court set out four circumstances in which common-law privacy interests are
protected. Disclosure of embarrassing private facts under the PIA concerns the
second type of interest protected under common-law privacy. It is the test for
disclosure of embarrassing private facts that is applied in PIA cases. Id. at 682-83.
The question here is whether, under the “judicial decision” provision of section
552.101 of the PIA, the common-law right of privacy prohibits the disclosure of the
4
information at issue, the names of participants in a research study. The Texas
Supreme Court has determined that this section of the PIA prevents the government
from disclosing information if the disclosure would give rise to a tort action for the
“invasion of an individual’s freedom from the publicizing of his private affairs.” Id.
at 683. The elements of a tort action for disclosure of private facts are: “(1) publicity
was given to matters concerning one’s personal life, (2) publication would be highly
offensive to a reasonable person of ordinary sensibilities, and (3) the matter
publicized is not of legitimate public concern.” Star-Telegram, Inc. v. Doe, 915
S.W.2d 471, 474 (Tex. 1995) (citing Indus. Found., 540 S.W.2d at 682).
A list of names of participants in a research project does not meet the test for
information protected under common-law privacy. See Indus. Found., 540 S.W.2d
at 683. Comparing the information protected in Industrial Foundation to this list of
names results in only one conclusion: the names of participants are not highly
intimate or embarrassing private information under the common-law privacy test.
Id. (compare to claims of injuries from sexual assault, a claim on behalf of
illegitimate children, claim for expenses of pregnancy due to failure of contraceptive
device, claims for psychiatric treatment, claims for injuries stemming from
attempted suicide); see also Hubert v. Harte-Hanks Tex. Newspapers, Inc., 652
S.W.2d 546, 551 (Tex. App.—Austin 1983, writ ref’d n.r.e.)(distinguishing the
“intimate or embarrassing information” in Industrial Foundation from the material
5
sought in Hubert (names of candidates for Texas A&M University president)). The
Fifth Circuit Court of Appeals has also held that personal information such as age,
job title, and street address is not “highly intimate” information under Texas
common-law privacy. Johnson v. Sawyer, 47 F.3d 716, 732-33 (5th Cir. 1995).
A court must first determine if the University met its burden to establish that
the information is highly intimate and embarrassing, as required under Industrial
Foundation, before the obligation to show a legitimate public concern comes into
play.3 See Indus. Found., 540 S.W.2d at 683; accord Morales v. Ellen, 840 S.W.2d
519, 524-25 (Tex. App.—El Paso 1992, writ denied). As discussed above, the
University failed to show the list of names is highly intimate or embarrassing.
Therefore, because the first prong of the Industrial Foundation test was not met,
whether the information is of legitimate public concern need not be considered.4
3
The requestor’s particular interest or purpose is not to be considered. Rather, it is the
interest of the public at large that is considered under the second prong of the common-law privacy
test. See Indus. Found., 540 S.W.2d at 683. Furthermore, UTD’s discussion of the requestor’s
purpose in seeking the information is inappropriate as section 552.222(b) of the PIA prohibits
consideration of the requestor’s purpose and under section 552.204, the public information officer
is not responsible for the requestor’s use of the information. See Appellant Br. at 6-7; Tex. Gov’t
Code §§ 552.204, .222(b).
4
In fact, the University does not really argue that it has met the standard for the first prong
of the Industrial Foundation test, but rather that the test itself needs to be expanded. Appellant
Br. at 13 (“The development of privacy law in the state of Texas did not end in 1976 with the
publication of the Texas Supreme Court’s plurality opinion in Industrial Foundation. The
University urges this Court to remand this case with instructions for the trial court to apply a
modern and robust privacy analysis, taking into account all the recent pronouncements from the
Texas Supreme Court that bear on this issue.”). The University also argues that the case should
be remanded for factual development on whether the information is intimate or embarrassing. Id.
at 11.
6
Much of the University’s argument involves the University’s right to
academic freedom under the First Amendment. Appellant Br. at 14-17. However,
this argument was not made below, and is being raised for the first time on appeal.
Therefore, it is improper.
Furthermore, the University urges this Court to consider academic freedom
and the potential effect on research outside of the context of Industrial Foundation.
Appellant Br. at 13-14. None of the cases cited by the University for this proposition
are Texas cases, and several address academic freedom in the context of free speech
under the First Amendment, which is not before this Court. The University has not
pointed to any Supreme Court cases suggesting that Industrial Foundation is no
longer the proper test for the common-law privacy exception.
The PIA is to be “liberally construed in favor of granting a request for
information.” Tex. Gov’t Code § 552.001(b); see City of Garland v. Dallas Morning
News, 22 S.W.2d 351, 356 (Tex. 2000); Arlington Indep. Sch. Dist. v. Tex. Attorney
Gen., 37 S.W.3d 152, 157 (Tex. App.—Austin 2001, no pet.). “The practical effect
of a statutory directive for liberal construction of an act is that close judgment calls
are to be resolved in favor of the stated purpose of the legislation.” Harte-Hanks
Tex. Newspapers, 652 S.W.2d at 552.
Expanding the common-law privacy test is not consistent with the stated
purpose of the PIA. See Tex. Gov’t Code § 552.001(a). The PIA does not authorize
7
withholding or limiting the availability of public information except as expressly
provided. Tex. Gov’t Code § 552.006.
Although the University asserted Texas Government Code section 552.101 in
conjunction with common-law privacy as an exception to disclosure, it failed to meet
its burden to show that the common-law privacy doctrine applies to the information
at issue. The trial court correctly granted the Attorney General’s summary judgment
motion and properly denied the University’s.
B. The University failed to meet its burden to create a fact issue capable
of defeating summary judgment.
The purpose of rule 166a is to provide a procedure for disposing of a case
when no genuine issues of fact exist, and only questions of law are involved. Totman
v. Control Data Corp., 707 S.W.2d 739, 742 (Tex. App.—Fort Worth 1986, no writ).
A defendant seeking summary judgment must negate as a matter of law at least one
element of each of the plaintiff’s theories of recovery, or plead and prove as a matter
of law each element of an affirmative defense. Centeq Realty, Inc. v. Siegler, 899
S.W.2d 195, 197 (Tex. 1995).
Matters of statutory construction are generally legal issues. City of Garland,
22 S.W.3d at 357. In a PIA case, “[t]he questions for each category of
information. . . are: Is the information public under [the PIA]? If so, has the
constitution, a statute, or a judicial decision expressly declared it confidential?
These are questions of law.” A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 674
8
(Tex. 1995). The PIA’s overall purpose supports the conclusion that information is
presumed to be subject to disclosure unless an exception to disclosure applies.
Abbott v. Tex. Dep’t of Mental Health & Mental Retardation, 212 S.W.3d 648, 663
(Tex. App.—Austin 2006, no pet.).
Under the PIA, it is the burden of the governmental body to prove that an
exception to public disclosure applies to the information at issue. City of Fort Worth
v. Cornyn, 86 S.W.3d 320, 323 (Tex. App.—Austin 2002, no pet.); Arlington Indep.
Sch. Dist., 37 S.W.3d at 157. The party seeking to withhold information has the
burden to prove that an exception to public disclosure applies. Thomas v. Cornyn,
71 S.W.3d 473, 480-81 (Tex. App.—Austin 2002, no pet.); Arlington Indep. Sch.
Dist., 37 S.W.3d at 157.
The University complains that the Attorney General “attached no evidence
relating to the terrorism/national security study at issue, and did not delve into the
particulars of the study or any evidence regarding what reasonable people might
think about being publically identified as being participants in the study. Without
engaging with these facts, the motion cannot negate, as a matter of law, the
application of confidentiality exception codified in § 552.101.” Appellant Br. at 12
(citation omitted). However, this analysis ignores the unique framework of a PIA
case.
9
The information is held by the University and is presumed public. It was the
University’s responsibility, not the Attorney General’s, to raise common-law
privacy and provide evidence to support its contention. Adkisson v. Paxton, No. 03-
12-00535-CV, 2015 WL 1030295, at *10 (Tex. App.—Austin, March 6, 2015, no
pet.).
The documents produced at the letter ruling phase and the University’s
proposal to the National Science Foundation are all part of the record considered by
the trial court. C.R. at 43-56;31;58. The information at issue was presented to the
trial court for review as well. Although the University suggests the Attorney General
needed to produce information about the study and the effects on the participants,
this cannot be the case. The Attorney General cannot be required to produce
evidence to show information is not excepted from disclosure by common-law
privacy. The foundation of PIA law is the presumption that government information
is public. Tex. Gov’t Code § 552.021. If a governmental body wishes to withhold
information, the burden remains with the governmental body to prove that an
exception applies.
The information at issue in this case is simply a list containing names of
people who participated in a research study. C.R. 31; 58. As argued in the Attorney
General’s Motion for Summary Judgment, this type of information is not the type of
information made confidential by common-law privacy under the standard set forth
10
in Industrial Foundation. See Indus. Found., 540 S.W.2d at 683. As discussed
above, the Attorney General has met his burden in showing the type of information
at issue in this case is not the type of information made confidential by the Industrial
Foundation common-law privacy test. The Attorney General met his burden as
movant by showing that the University has failed to prove an element of its claim.
Once the Attorney General demonstrated the list of names was not confidential under
Industrial Foundation, the burden shifted back to the University if it wanted to
attempt to show the particulars about this study may invoke privacy protections even
if, as a general rule, a list of people participating in a research study would not. The
University attached information about the study and argued its particular subject
matter made it unique, but it could not successfully show the information met the
requirements of the Industrial Foundation common-law privacy test. The
University’s request for a remand is essentially a request for a second bite at the
apple. This Court should not grant the University a second chance to meet its burden,
and the trial court’s judgment should be affirmed.
C. The trial court correctly considered the parties’ cross motions for
summary judgment.
The trial court properly considered both parties’ motions and correctly granted
the Attorney General’s motion for summary judgment and denied the University’s
motion for summary judgment.
11
When parties file cross-motions for summary judgments and the trial court
grants one side’s motion and denies the other, as was the case here, this Court should
review all evidence provided by both parties, determine all questions presented, and
determine whether the court erred. City of Garland, 22 S.W.2d at 356-57. In
addition to Letter Ruling OR2011-17401, the University attached the letter from the
requestor (C.R. at 43-44), the University’s letter briefs to the Attorney General (C.R.
at 45-51), the University’s proposal to the National Science Foundation (C.R. at 52-
56), including the informed consent form (C.R. at 55-56), and the information at
issue, which consists only of lists of names of participants in the research projects
(C.R. at 31;58). In addition to the parties’ legal arguments, the court is charged with
considering all evidence presented.
After evaluating the arguments of the parties and the evidence presented, the
trial court determined that Texas Government Code section 552.101 in conjunction
with common-law privacy does not make the information at issue confidential. C.R.
at 84. The Attorney General’s motion for summary judgment was correctly and
appropriately granted. Therefore, this court should find the information must be
released to the requestor.
CONCLUSION AND PRAYER
The Attorney General prays that this Court affirm the judgment of the trial
court in all respects.
12
Respectfully Submitted,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
BRANTLY STARR
Deputy Attorney General for Legal Counsel
DAVID A. TALBOT, JR.
Chief, Administrative Law Division
/s/ Kimberly Fuchs
KIMBERLY FUCHS
State Bar No. 24044140
Chief, Open Records Litigation
Administrative Law Division
Office of the Attorney General of Texas
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 475-4195
Facsimile: (512) 320-0167
kimberly.fuchs@texasattorneygeneral.gov
Attorneys for Appellee Ken Paxton,
Attorney General of Texas
13
CERTIFICATE OF COMPLIANCE
I certify that the Brief of Appellee Ken Paxton, Attorney General of Texas,
submitted complies with Rule 9 of the Texas Rules of Appellate Procedure and the
word count of this document is 2,846. The word processing software used to prepare
this filing and calculate the word count of the document is Microsoft Word 2013.
Date: June 9, 2015
/s/ Kimberly Fuchs
KIMBERLY FUCHS
Attorneys for Appellee Ken Paxton,
Attorney General of Texas
14
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Brief of Appellee
Ken Paxton, Attorney General of Texas, has been served on June 9, 2015, on the
following parties and/or counsel-of-record via e-serve and/or email:
H. Melissa Mather Marilyn Cameron
State Bar No. 240102216 18222 Outback Lakes Trail
Assistant Attorney General Humble, Texas 77346
Financial and Tax Litigation Division mizcameron@yahoo.com
P.O. Box 12548
Austin, Texas 78711-2548 INTERVENOR, PRO SE
Telephone: (512) 475-4540
Facsimile: (512) 477-2348
Melissa.mather@texasattorneygeneral.gov
ATTORNEY FOR APPELLANTS
/s/ Kimberly Fuchs
KIMBERLY FUCHS
15