03-13-00686-CV - AG brief

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ACCEPTED 03-13-00686-CV 974715 THIRD COURT OF APPEALS AUSTIN, TEXAS 4/11/2014 3:14:23 PM JEFFREY D. KYLE CLERK

No. 03-13-00686-CV
3rd COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS FOR THE THIRD DISTRICT OF TEXAS 4/11/2014 3:14:23 PM AUSTIN, TEXAS JEFFREY D. KYLE Clerk FILED IN

GREG ABBOTT, ATTORNEY GENERAL OF TEXAS, Appellant, v. CITY OF DALLAS, Appellee.

On Appeal from the 419th District Court of Travis County, Texas BRIEF OF APPELLANT ATTORNEY GENERAL OF TEXAS GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General DAVID C. MATTAX Deputy Attorney General for Defense Litigation DAVID A. TALBOT, JR. Chief, Administrative Law Division KIMBERLY L. FUCHS Chief, Open Records Litigation ROSALIND L. HUNT State Bar No. 24067108 Assistant Attorney General Administrative Law Division Office of the Attorney General of Texas P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Telephone: (512) 475-4166 Facsimile: (512) 457-4677 [email protected] ATTORNEYS FOR APPELLANT ATTORNEY GENERAL OF TEXAS April 11, 2014

ORAL ARGUMENT REQUESTED

IDENTITY OF PARTIES AND COUNSEL Appellant & Defendant: Greg Abbott, Attorney General of Texas Counsel: Rosalind L. Hunt State Bar No. 24067108 Assistant Attorney General Administrative Law Division Office of the Attorney General of Texas P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Telephone: (512) 475-4166 Facsimile: (512) 457-4677 [email protected] Counsel: James B. Pinson State Bar No. 16017700 Assistant City Attorney Office of the City Attorney 1500 Marilla Street, Room 7BN Dallas, Texas 75201 Telephone: (214) 670-3519 Facsimile: (214) 670-0622 [email protected] Counsel: P. Theodore Stoinoff, II. State Bar No. 00788478 Underwood Perkins, P.C. Two Lincoln Center 5420 LBJ Freeway, Suite 1900 Dallas, Texas 75240 Telephone: (972) 661-5114 Facsimile: (972) 661-5691 [email protected]

Appellee & Plaintiff: City of Dallas

Trial Court Intervenor: Timothy S. Perkins

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REFERENCE TO THE PARTIES Appellant Greg Abbott, Attorney General of Texas, will be referred to as “Attorney General.” Appellee City of Dallas, will be referred to as “Dallas.” REFERENCES TO THE RECORD Clerk’s record will be referenced as: Appendix will be referenced as: C.R. [Page] App. [Letter]

Appendix items F and G are audio recordings of legislative hearings. The timestamp (mm:ss) indicates where the cited material begins in the recording. These appendix items will be referenced as “App.___, mm:ss.”

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TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL .............................................................. ii REFERENCE TO THE PARTIES .............................................................................. iii REFERENCES TO THE RECORD ............................................................................ iii TABLE OF CONTENTS ............................................................................................ iv INDEX OF AUTHORITIES ....................................................................................... vi STATEMENT OF THE CASE ................................................................................... xii STATEMENT REGARDING ORAL ARGUMENT ................................................. xiii ISSUES PRESENTED ................................................................................................ xiv 1. The trial court erred in granting Dallas’s motion for summary judgment after Dallas failed to meet its burden under PIA section 552.302 to demonstrate a compelling reason to withhold the requested information from public disclosure ....................................................................................... xiv The Attorney General is entitled to an award of attorney’s fees from Dallas. . xiv

2.

INTRODUCTION ....................................................................................................... 1 STATEMENT OF FACTS .......................................................................................... 2 PIA Request ....................................................................................................... 2 Attorney General issues a Letter Ruling ........................................................... 3 District Court reverses the Letter Ruling .......................................................... 4 STANDARD OF REVIEW ......................................................................................... 5 SUMMARY OF THE ARGUMENT .......................................................................... 6 iv

ARGUMENT ............................................................................................................... 7 I. The trial court’s judgment represents a significant reversal in how the Texas Legislature, the Appellate Courts, and the Attorney General apply PIA section 552.302. The trial court’s judgment should be corrected. .................... 7 A. B. The PIA mandates disclosure of all public information. ........................ 7 Dallas did not comply with PIA section 552.301 when it requested an Attorney General Letter Ruling. ............................................................. 10 The information is presumed open to the public. ................................... 11 Only a compelling reason can ocvercome the presumption of openness ................................................................................................. 13 1. The attorney-client privilege exception, in and of itself, is not a compelling reason to withhold the information............................ 17 The requested information is not confidential by law .................. 19 Harm to Dallas’s own interest is not a compelling reason to withhold the requested information from disclosure ................... 24

C. D.

2. 3.

II.

Should the Attorney General substantially prevail under PIA section 552.323(b), he requests an award of attorney’s fees ......................................... 27

CONCLUSION AND PRAYER ................................................................................. 28 CERTIFICATE OF COMPLIANCE........................................................................... 29 CERTIFICATE OF SERVICE .................................................................................... 30 APPENDICES ............................................................................................................. 31 INDEX OF APPENDICES ......................................................................................... 32

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INDEX OF AUTHORITIES CASES Abbott v. Tex. Dep’t of Mental Health & Mental Retardation, 212 S.W.3d 648 (Tex. App.—Austin 2006, no pet.) ................................................. 8 A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668 (Tex. 1995) ..................................................................................... 5 Arlington Indep. Sch. Dist. v. Tex. Att’y Gen., 37 S.W.3d 152 (Tex. App.—Austin 2001, no pet.) ................................................... 9 Boeing Co. v. Abbott, 412 S.W.3d 1 (Tex. App.—Austin 2012, pet. filed)................................................................. 21, 22 Brown v. Mesa Distributors, Inc., 414 S.W.3d 279 (Tex. App.—Houston [1st Dist.] 2013, no pet.) ..................... 26, 27 Carmona v. State, 947 S.W.2d 661 (Tex. App.—Austin 1997, no pet.) .......................................................................... 23 City of Dallas v. Abbott, 279 S.W.3d 806 (Tex. App.—Amarillo 2007) ................................................................................... 18 City of Dallas v. Abbott, 304 S.W.3d 380 (Tex. 2010) ..................................... 11, 18 City of Dallas v. Greg Abbott, Attorney General of Texas, No. D-1-GV-08-001508 (126th Dist. Ct., Travis County, Tex. May 13, 2013) .....xii City of Dallas v. Greg Abbott, Attorney General of Texas No. 13-13-00397-CV (Tex. App.—Corpus Christi June 12, 2013) ........................xii City of Garland v. Dallas Morning News, 969 S.W.2d 548 (Tex. App.—Dallas 1998) ...................................................... 14, 15 City of Garland v. Dallas Morning News, 22 S.W.3d 351 (Tex. 2000) ................................................................... 5, 8, 9, 14, 15 vi

Crain v. Davis, 417 S.W.2d 53 (Tex. 1967) ...................................................... 26, 27 Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469 (Tex. App.—Dallas 1999, no pet.) ..................................................... 1 Dallas Morning News, Inc. v. City of Arlington, No. 03-10-00192-CV, 2011 WL 182886, at *3 (Tex. App.—Austin Jan. 21, 2011, no pet.) ............................................................ 27 Doe v. Tarrant Cnty. Dist. Attorney’s Office, 269 S.W.3d 147 (Tex. App.—Fort Worth 2008, no pet.) ..................... 10, 13, 19, 24 Hancock v. State Bd. of Ins., 797 S.W.2d 379 (Tex. App.—Austin 1990, no writ) .................................. 11, 14, 17 Hart v. Gossum, 995 S.W.2d 958 (Tex. App.—Fort Worth 1999, no pet.)............................................................. 14, 15 Helena Chem. Co. v. Wilkins, 47 S.W.3d 486 (Tex. 2001) ..................................... 12 Hubert v. Harte-Hanks Tex. Newspapers, Inc., 652 S.W.2d 546 (Tex. App.—Austin 1983, writ ref’d n.r.e.) ................................... 9 In re Hicks, 252 S.W.3d 790 (Tex. App.—Houston [14th Dist.] 2008, no pet.) ................................................... 23 Jackson v. State Office of Admin. Hearings, 351 S.W.3d 290 (Tex. 2011) ............................................................................... 8, 21 Jackson v. Tex. Dep’t of Pub. Safety, 243 S.W.3d 754 (Tex. App.—Corpus Christi 2007, pet. denied) ........... 9, 10, 19, 24 Rizkallah v. Conner, 952 S.W.2d 580 (Tex. App.—Houston [1st Dist.] 1997, no writ.) .............................................. 26, 27 Simmons v. Kuzmich, 166 S.W.3d 342 (Tex. App.—Fort Worth 2005, no pet.)..................................................... 1, 9, 10, 18

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Tex. Dep’t Pub. Safety v. Abbott, 310 S.W.3d 670 (Tex. App.—Austin 2010, no pet.) ........................................................................ 5, 9 Tex. Mutual Ins. Co. v. Ruttiger, 381 S.W.3d 430 (Tex. 2012) ................................................................................... 17 Tex. State Bd. of Veterinary Med. Exam’rs v. Giggleman, 408 S.W.3d 696 (Tex. App.—Austin 2013, no pet.) ............................................... 28 Thomas v. Cornyn, 71 S.W.3d 473 (Tex. App.—Austin 2010, no pet.) ............................................................................ 8 TJFA, L.P. v. Tex. Comm’n Envtl. Quality, 368 S.W.3d 727 (Tex. App.—Austin 2012, pet. denied) ........................................ 12 STATUTES Tex. Gov't Code Ch. 552 (Public Information Act) Chapter 552 ...........................................................................................................xi, 6 552.001 .................................................................................................................... 25 552.001(a) .................................................................................................................. 1 552.001(b) .................................................................................................................. 9 552.002 ...................................................................................................................... 8 552.006 ................................................................................................................ 9, 21 552.007(a) .......................................................................................................... 22, 23 552.011 .............................................................................................................. 13, 25 552.021 ............................................................................................................ 1, 8, 25 552.101 ................................................................................................................ 4, 20 552.103-.108 ............................................................................................................ 22 552.107 .......................................................................................................... 4, 20-23

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552.107(1) .......................................................................................................... 20, 21 552.109 .................................................................................................................... 22 552.110 .................................................................................................................... 22 552.1175 .................................................................................................................. 22 552.1176 .................................................................................................................. 22 552.119 .................................................................................................................... 22 552.121 .................................................................................................................... 22 552.221 .................................................................................................................... 11 552.221(a) ........................................................................................................ 2, 8, 13 552.301 .............................................................. xii, xiii, 1,4, 6, 10-12, 14-16, 22, 25 552.301(a) ............................................................................................................ 3, 11 552.301(b) .......................................................................................................... 10, 11 552.301(d) ...................................................................................................... 3, 10-12 552.301(e) ...................................................................................................... 3, 10-12 552.301(e-1)................................................................................................... 3, 11, 12 552.301-.309 ............................................................................................................ 13 552.302 ............................................................................. xiii, xiv,1, 7, 10-15, 17, 25 552.305 .................................................................................................................... 19 552.308(a) ................................................................................................................ 11 552.321 .................................................................................................................... 13 552.3215 .................................................................................................................. 13 552.323(b) ................................................................................................................ 27 552.326 .................................................................................................................... 13

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552.326(b)(2) ........................................................................................................... 19 552.352 .............................................................................................................. 22, 23 RULES Tex. R. Civ. P. Rule 166a(f) ............................................................................................................. 26 Tex. R. Evid. Rule 503 ............................................................................................................. 20, 23 Rule 503(b)(1) ........................................................................................................... 4 Rule 511 ................................................................................................................... 23 Tex. Disciplinary Rules Prof’l Conduct Preamble ¶14 ........................................................................................................... 23 Rule 1.05 ........................................................................................................ 4, 20, 23 Rule 1.05(c)(4) ......................................................................................................... 23 LEGISLATIVE HISTORY Act of May 19, 1973, 63rd Leg., R.S., ch. 424, § 7(a), 1973 Tex. Gen. Laws 1112, 1116 ................................................................ 12 Act of May 25, 1999, 76th Leg., R.S., ch. 1319, § 21, sec. 552.302, 1999 Tex. Gen. Laws 4500, 4509 ...................................... 14, 15 Tex. S.B. 1851, 76th Leg., R.S. (1999) ................................................................... 16 Tex. S.B. 277, 76th Leg., R.S. (1999) ..................................................................... 16 Hearing on Tex. S.B. 277 Before the Senate Comm. on State Affairs, 76th Leg., R.S. (March 11, 1999) (statement of Senator John Carona) ................................... 16

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Hearing on Tex. S.B. 277 Before the Senate Comm. on State Affairs, 76th Leg., R.S. (March 11, 1999) (statement of Open Records Division Chief Rebecca Payne) ..................................................................................................................... 16 TEXAS ATTORNEY GENERAL LETTER RULING OR2010-08285 ....................................................................................................xii, 4 TEXAS ATTORNEY GENERAL DECISIONS ORD-26 (1974) ....................................................................................................... 14 ORD-150 (1977) ..................................................................................................... 14 ORD-319 (1982) ..................................................................................................... 14 ORD-552 (1990) ...................................................................................................... 14 ORD-630 (1994) .................................................................................... 14, 17, 19, 21 ORD-676 (2002) .......................................................................... 1, 14, 17, 19-21, 24 ORD-677 (2002) ............................................................................................ 1, 14, 21

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STATEMENT OF THE CASE Nature of the case: Dallas brought this lawsuit pursuant to the Public Information Act, Texas Government Code Chapter 552, against the Attorney General, challenging Open Records Letter Ruling OR2010-08285. C.R. 3-4. The ruling concluded Dallas did not comply with PIA section 552.301 and failed to overcome the presumption that the information is public by demonstrating a compelling reason to withhold the information. App. B, Tex. Att’y Gen. OR2010-08285; C.R. 56-60. Therefore, the ruling concluded the information must be released to the requestor. C.R. 59. The Honorable Judge Stephen Yelenosky, sitting in the 419th Judicial District Court of Travis County, Texas. After a hearing on cross-motions for summary judgment, the trial court granted Dallas’s motion for summary judgment and denied the Attorney General’s motion for summary judgment. C.R. 223-24. The court concluded 1 the requested information was excepted from public disclosure and was not subject to release to the requestor. C.R. 223. The Attorney General appealed the judgment of the trial court. C.R. 225-26.

Trial court:

Trial court disposition:

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A present, a case with the same parties and same claims is set for oral argument on April 24, 2014 before the Thirteenth Court of Appeals. See City of Dallas v. Greg Abbott, Attorney General of Texas, No. D-1-GV-08-001508 (126th Dist. Ct., Travis County, Tex. May 13, 2013), appeal docketed, No. 13-13-00397-CV (Tex. App.—Corpus Christi June 12, 2013). But in this City of Dallas lawsuit the Attorney General’s ground for relief was granted, and Dallas’s ground for relief was denied. The trial court concluded Dallas did not demonstrate a compelling reason to withhold the requested information and ordered release of the information to the requestor. Dallas appealed the trial court’s judgment and argued the attorney-client privilege is an intrinsically compelling reason to withhold the requested information.

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STATEMENT REGARDING ORAL ARGUMENT Oral argument is requested because this Court’s decision will have a sweeping impact on the state’s PIA jurisprudence. The trial court’s judgment represents a significant reversal in how PIA section 552.302 has been consistently interpreted since the PIA’s inception in 1973. The legislature, Texas courts of appeals, and the Attorney General have consistently required governmental bodies to demonstrate a compelling reason to withhold public information when they do not comply with the procedural deadlines in PIA section 552.301. However, the trial court’s judgment impermissibly allows Dallas to withhold public information from a member of the public, even though, as a matter of law, Dallas failed to demonstrate a compelling reason to withhold the requested information from disclosure. Therefore, the Attorney General respectfully requests an opportunity to present oral argument and help answer any questions that remain after the briefs are read.

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ISSUES PRESENTED 1. The trial court erred in granting Dallas’s motion for summary

judgment after Dallas failed to meet its burden under PIA section 552.302 to demonstrate a compelling reason to withhold the requested information from public disclosure. 2. Dallas. The Attorney General is entitled to an award of attorney’s fees from

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INTRODUCTION Members of the public have a fundamental interest in knowing about the affairs of government and the official acts of public officials and employees. See Tex. Gov’t Code § 552.001(a). To further that end, the PIA makes public information available to any member of the public. See Tex. Gov’t Code § 552.021. In order for a governmental body to withhold requested public information from disclosure, the PIA requires governmental bodies to timely request an attorney general letter ruling and to prove an exception applies. Tex. Gov’t Code § 552.301. Failure to timely request an attorney general letter ruling results in the presumption that the information is open to the public. Tex. Gov’t Code § 552.302. Only a compelling reason to withhold the information can overcome the presumption of openness. Id. The compelling reason burden in PIA section 552.302 is instrumental in holding governmental bodies accountable. When governmental bodies do not comply with PIA section 552.301, all discretionary exceptions are forfeited. See Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469, 475-76 (Tex. App.—Dallas 1999, no pet.); Simmons v. Kuzmich, 166 S.W.3d 342, 349-50 (Tex. App.—Fort Worth 2005, no pet.); App. F., 22:22; Tex. Att’y Gen. ORD-676 at 11-12 (2002); Tex. Att’y Gen. ORD-677 at 10-11 (2002). The trial court’s judgment, however, completely bypasses the compelling reason standard and permits governmental bodies to withhold public information

by merely showing a discretionary exception to disclosure applies to the information. C.R. 220-23. The trial court’s judgment needs correction because it weakens the PIA’s primary enforcement mechanism and allows governmental bodies to withhold public information without meeting the legislatively mandated burden. Therefore, this Court should reverse the trial court’s judgment and render judgment in favor of the Attorney General, requiring release of the information to the requestor. STATEMENT OF FACTS PIA Request This lawsuit arises from a request for public information sent to the City of Dallas. C.R. 25-26. Dallas is a governmental body under the PIA and has a duty to promptly produce public information upon request. Tex. Gov’t Code § 552.221(a). On February 19, 2010, Dallas received a request from Mr. Timothy S. Perkins for information pertaining to the operation of the McCommas Bluff Landfill, a landfill owned and controlled by Dallas. C.R. 25-26, 67. After receiving the request from Mr. Perkins, Dallas had two choices. Dallas could release the information to the requestor or seek a ruling from the Attorney General about whether any exceptions to disclosure protected the information from disclosure. C.R. 51 para. 2. By choosing the latter, Dallas was required to comply with all the procedural mandates in PIA section 552.301 when requesting a ruling from the Attorney General. Id. 2

Attorney General issues a Letter Ruling Dallas’s letter requesting an attorney general decision was due on March 5, 2010, but was not posted in the United States mail until March 30, 2010. C.R. 50. Dallas failed to request an attorney general decision within ten business days of receiving Mr. Perkins’s written request, as required by PIA section 552.301(a) and (d). C.R. 50, 61. Additionally, Dallas did not comply with the fifteen-day deadline in PIA section 552.301(e) or (e-1). C.R. 61. Within fifteen business days of receiving the written request, Dallas did not provide written comments to the Attorney General stating the reasons why the exceptions applied or provide a copy of the requested information to the Attorney General. C.R. 61. Within fifteen days of receiving the request, Dallas did not provide a copy of its comments to the requestor. Id. Ultimately, Dallas did not timely comply with any provisions in PIA section 552.301(a), (d), (e), or (e-1). Id. As a consequence of failing to comply with PIA section 552.301, Dallas was required to overcome a higher burden in order to withhold the requested public information. C.R. 51 para. 2. Dallas admitted it failed to comply with PIA section 552.301, and that such failure resulted in the presumption the requested information was open to the public. Id. Once the requested information is presumed open, Dallas must demonstrate a compelling reason to overcome the presumption of openness to withhold the information from the requestor. Id. 3

Accordingly, the Attorney General concluded in Letter Ruling OR201008285 that Dallas did not comply with the procedural requirements in PIA section 552.301 in requesting a ruling. C.R. 57. Dallas claimed the requested information was protected from disclosure by the attorney-client privilege under Texas Government Code sections 552.101 and 552.107, Texas Rule of Evidence 503(b)(1), and Texas Disciplinary Rule of Professional Conduct 1.05. C.R. 51-55. Dallas also claimed release of the information would harm Dallas’s interest in renegotiating a lease. C.R. 54. The Attorney General ruled the attorney-client privilege, in and of itself, was not a compelling reason to withhold the requested information because it is discretionary and can be waived by the governmental body. C.R. 57-58. Also, Dallas presented no evidence that release of the information would harm its interest; moreover, harm to the governmental body’s interest is not a compelling reason to withhold the information. C.R. 59. The Attorney General ordered Dallas to release all of the information to the requestor. Id. District Court reverses the Letter Ruling Dallas disputed Letter Ruling OR2010-08285 and filed suit against the Attorney General, contending the requested information consisted of privileged attorney-client communications. C.R. 3-5, 106-107. The requestor, Mr. Perkins,

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intervened in the lawsuit. C.R. 231. Mr. Perkins did not file a motion for summary judgment or respond to the motions filed by other parties. C.R. 231-33. On October 3, 2013, a hearing was held on the Attorney General’s and Dallas’s cross-motions for summary judgment. C.R. 223. The Attorney General objected to Dallas’s summary judgment evidence and the trial court overruled the objections. C.R.190-95, 220. Ultimately, the court entered a final judgment granting Dallas’s motion for summary judgment and concluded the requested information was excepted from required public disclosure under Texas Government Code chapter 552. C.R. 220. The court further awarded Dallas its court costs. C.R. 223. The Attorney General appealed the trial court’s judgment. C.R. 225-26. STANDARD OF REVIEW Matters of statutory construction are generally legal questions. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 357 (Tex. 2000). Whether information is subject to the PIA and whether an exception to disclosure applies to the information are questions of law reviewed de novo. Id.; accord A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 674 (Tex. 1995); Tex. Dep’t Pub. Safety v. Abbott, 310 S.W.3d 670, 673 (Tex. App.—Austin 2010, no pet.).

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SUMMARY OF THE ARGUMENT The trial court’s judgment requires reversal. As a matter of law, once a governmental body has failed to comply with PIA section 552.301, only a compelling reason to withhold the information can overcome the presumption of openness. A compelling reason exists when the information is made confidential by law—meaning a governmental body is compelled to withhold the information upon criminal penalty, or release of the information implicates the interest of a party other than the governmental body. Dallas has made no attempt to prove or establish release of the information would implicate another party’s interest, so the only basis for withholding the information would be the applicability of law that deems it confidential. Yet, Dallas has not shown the information is confidential by law. Even if the attorney-client privilege applies, merely showing the applicability of an exception is not in itself a compelling reason to withhold the requested information. The attorney-client privilege is not intrinsically compelling because Dallas, as the client, can waive the privilege without penalty. Because no law compels Dallas to withhold the communications, Dallas failed to demonstrate a compelling reason to withhold the information from the requestor. Therefore, the information must be released to the requestor. This Court should reverse and render judgment in favor of the Attorney General and award him reasonable attorney’s fees. 6

ARGUMENT I. THE TRIAL COURT’S JUDGMENT REPRESENTS A SIGNIFICANT REVERSAL IN HOW THE TEXAS LEGISLATURE, THE APPELLATE COURTS, AND THE ATTORNEY GENERAL APPLY PIA SECTION 552.302. THE TRIAL COURT’S JUDGMENT SHOULD BE CORRECTED. The trial court incorrectly permitted Dallas to withhold public information from the requestor when Dallas did not demonstrate a compelling reason to withhold the information from public disclosure as required by PIA section 552.302. See C.R. 223-24; Tex. Gov’t Code § 552.302. The practical effect of the trial court’s judgment is to simply strike the words “compelling reason” from section 552.302. See C.R. 223-24. Such a reading is contrary to the legislature’s intent in enacting PIA section 552.302, contrary to applicable appellate decisions, and contrary to decades of attorney general decisions. Eliminating the compelling reason burden in such a way undermines the PIA’s core provisions and would leave the availability of public information up to the whim of the governmental body. The PIA mandates full compliance. Failure to fully comply with the PIA’s deadlines results in the presumption that the information is open to the public unless there is a compelling reason to withhold the requested information from disclosure. A. The PIA mandates disclosure of all public information.

“The Texas Legislature promulgated the [PIA] with the express purpose of providing the public ‘complete information about the affairs of government and the 7

official acts of public officials and employees.’” Jackson v. State Office of Admin. Hearings, 351 S.W.3d 290, 293 (Tex. 2011) (quoting Tex. Gov’t Code § 552.001(a) and citing City of Garland v. Dallas Morning News, 22 S.W.3d 352, 355-56 (Tex. 2000)). “At its core, the [PIA] reflects the public policy that the people of Texas ‘insist on remaining informed so that they may retain control over the instruments they have created.’” Id. (quoting Tex. Gov’t Code § 552.001(a)). Accordingly, all information written, produced, collected, assembled, or maintained by a governmental body is public information. See Tex. Gov’t Code § 552.002. PIA section 552.021 establishes the public’s right to access public information upon request. See Tex. Gov’t Code § 552.021. Upon receipt of a written request, a governmental body shall promptly produce public information to the requestor. Tex. Gov’t Code § 552.221(a). Public information is “presumed to be subject to disclosure unless an exception applies.” Abbott v. Tex. Dep’t of Mental Health & Mental Retardation, 212 S.W.3d 648, 663 (Tex. App.—Austin 2006, no pet.). A governmental body seeking to prevent disclosure bears the burden of establishing that an exception to public disclosure applies to the requested information. See Tex. Dep’t Pub. Safety v. Abbott, 310 S.W.3d 670, 67374 (Tex. 1995); Thomas v. Cornyn, 71 S.W.3d 473, 480-81 (Tex. App.—Austin

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2010, no pet.) (citing Arlington Indep. Sch. Dist. v. Tex. Att’y Gen., 37 S.W.3d 152, 157 (Tex. App.—Austin 2001, no pet.). Moreover, exceptions to disclosure must be narrowly construed. Arlington Indep. Sch. Dist. v. Tex. Att’y Gen., 37 S.W.3d 152, 157 (Tex. App.—Austin 2001, no pet.). The PIA “does not authorize the withholding of public information or limit the availability of public information to the public, except as expressly provided.” Tex. Gov’t Code § 552.006. The PIA’s other provisions are “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.3d at 356; Arlington Indep. Sch. Dist. v. Attorney Gen., 37 S.W.3d at 157. “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.” Hubert v. Harte-Hanks Tex. Newspapers, Inc., 652 S.W.2d 546, 552 (Tex. App.— Austin 1983, writ ref’d n.r.e.). A governmental body that wishes to withhold public information and preserve exceptions to disclosure must request a decision from the Attorney General and must comply with the PIA’s procedural mandates. See Simmons v. Kuzmich, 166 S.W.3d 342, 348-49 (Tex. App.—Fort Worth 2005, no pet.); Jackson v. Tex. Dep’t of Pub. Safety, 243 S.W.3d 754, 757 (Tex. App.—Corpus Christi 2007, pet. denied). Failure to timely request an attorney general decision in 9

accordance with the PIA’s deadlines results in the presumption that the requested information is open to the public. Tex. Gov’t Code § 552.302; see Simmons v. Kuzmich, 166 S.W.3d at 348-49; Jackson v. Tex. Dep’t of Pub. Safety, 243 S.W.3d at 757; Doe v. Tarrant Cnty. Dist. Attorney’s Office, 269 S.W.3d 147, 154-55 (Tex. App.—Fort Worth 2008, no pet.). B. Dallas did not comply with PIA section 552.301 when it requested an Attorney General Letter Ruling.

The PIA requires governmental bodies seeking to withhold information from the public to request a ruling from the Attorney General and adhere to the procedures set forth in PIA section 552.301. Tex. Gov’t Code § 552.301; see Simmons v. Kuzmich, 166 S.W.3d at 348-49; Jackson v. Tex. Dep’t of Pub. Safety, 243 S.W.3d at 757. Section 552.301 sets out the requirements for governmental bodies to properly and timely raise exceptions to disclosure before the Attorney General. See Tex. Gov’t Code § 552.301. Among those requirements, a governmental body must ask for a decision from the Attorney General about whether the information is excepted from disclosure and provide a copy of the request for a decision to the requestor no later than ten business days after the date of receiving the written request. Tex. Gov’t Code § 552.301(b), (d). Then, a governmental body must submit a copy of the specific information requested or a representative sample of the information requested no later than fifteen business days after receiving the written request. Tex. Gov’t Code § 552.301(e). A request 10

for an attorney general decision is considered timely if the document bears the postmark date within the section 552.301 deadlines. Tex. Gov’t Code § 552.308(a). Compliance with the PIA’s procedures is within the governmental body’s control. See City of Dallas v. Abbott, 304 S.W.3d 380, 396 (Tex. 2010) (Wainwright, J., dissenting) (“It is important to remember that the City retains control over the nondisclosure of otherwise privileged information if it simply abides by the PIA’s deadlines.”). Dallas was responsible for preparing its response to Mr. Perkins’s request for information and for doing so in a timely manner. See Tex. Gov’t Code § 552.221. Dallas exceeded the deadline to request an attorney general decision by twenty-five days. C.R. 50, 61. The fact that Dallas did not comply with PIA subsections 552.301(a), (b), (d), (e), or (e-1) is admitted and undisputed. C.R. 51 para. 2, 61. As a consequence, an even higher burden must be met to withhold public information. See Tex. Gov’t Code § 552.302. C. The information is presumed open to the public.

When a governmental body does not comply with any aspect of section 552.301, it has an increased burden to show why the information should not be released. See Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381 (Tex. App.— Austin 1990, no writ) (“Should the agency fail to comply within the 10-day period, the presumption arises, increasing the agency’s burden to show why the information should not be released.”). The legislature explicitly mandated failure 11

to comply with section 552.301 results in a presumption the requested information is public and must be released unless the governmental body establishes a compelling reason to withhold the information: If a governmental body does not request an attorney general decision as provided by Section 552.301 and provide the requestor with the information required by Sections 552.301(d) and (e-1), the information requested in writing is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information. Tex. Gov’t Code § 552.302 (emphasis added). PIA section 552.301 is a mandatory provision, creating an explicit deadline, and PIA section 552.302 provides the penalty for noncompliance. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001) (“The word ‘must’ is given a mandatory meaning when followed by a noncompliance penalty.”); accord TJFA, L.P. v. Tex. Comm’n Envtl. Quality, 368 S.W.3d 727, 734-35 (Tex. App.—Austin 2012, pet. denied). The “presumption of openness” ensures governmental bodies properly and timely request an attorney general decision before they may withhold public information. This vital presumption has been part of the PIA since its inception. See Act of May 19, 1973, 63rd Leg., R.S., ch. 424, § 7(a), 1973 Tex. Gen. Laws 1112, 1116 (“If a decision is not so requested, the information shall be presumed to be public information.”). The presumption of openness was, and is, the mortar that holds the PIA together. Section 552.302 is the primary enforcement mechanism of the PIA’s procedural mandates. Without it, governmental bodies have no incentive 12

to request decisions from the Attorney General about whether requested public information can be withheld from the requestor. As a consequence, a governmental body could withhold public information indefinitely, which would diminish the governmental body’s statutory duty to promptly produce public information. See Tex. Gov’t Code § 552.221(a) (“An officer of public information of a governmental body shall promptly produce public information for

inspection . . . .”). D. Only a compelling reason can overcome the presumption of openness.

Dallas sought a remedy from the trial court that does not exist in the PIA or elsewhere. Essentially, Dallas asked the court to invent a super exception to disclosure by designating a statutory exception as intrinsically compelling. See C.R. 106-107. The attorney-client privilege, in and of itself, is not an intrinsically compelling reason to withhold requested information from public disclosure. A compelling reason is a term of art, prudently and consistently defined by the Attorney General pursuant to his duty to apply and enforce the PIA. See Tex. Gov’t Code §§ 552.011, .301-.309, .321, .3215, .326; Doe v. Tarrant Cnty. Dist. Attorney’s Office, 269 S.W.3d at 152 (“[T]he Legislature has imposed on the AG the duty to provide written opinions to government entities that seek to withhold information requested under the Act.”).

13

In 1974, the Attorney General determined in a formal Open Records Decision 2 “[the] presumption will not be overcome unless there is a compelling demonstration that the requested information should not be released to the public.” Tex. Att’y Gen. ORD-26 at 2 (1974); see Hancock v. State Bd. of Ins., 797 S.W.2d at 381. For the last thirty-two years, the Attorney General has consistently ruled a compelling reason existed when (1) confidentiality is mandated under law— meaning a governmental body is prohibited from releasing it under PIA section 552.352, or (2) disclosure implicates the interest of a party other than the governmental body. Tex. Att’y Gen. ORD-676 at 11 (2002); see Tex. Att’y Gen. ORD-26 at 6; Tex. Att’y Gen. ORD-150 at 2 (1977); Tex. Att’y Gen. ORD-319 at 2 (1982); Tex. Att’y Gen. ORD-552 at 1 (1990); Tex. Att’y Gen. ORD-630 at 3-7 (1994); Tex. Att’y Gen. ORD-677 at 10 (2002). In 1999, the 76th Legislature adopted the term “compelling reason” and incorporated it into PIA section 552.302. See Act of May 25, 1999, 76th Leg., R.S., ch. 1319, § 21, sec. 552.302, 1999 Tex. Gen. Laws 4500, 4509. The amendment followed two court of appeals decisions that rejected the Attorney General’s compelling reason standard. See City of Garland v. Dallas Morning News, 969 S.W.2d 548 (Tex. App.—Dallas 1998, aff’d on other grounds, 22 S.W.3d 351 (Tex. 2000); Hart v. Gossum, 995 S.W.2d 958 (Tex. App.—Fort Worth 1999, no
2

Open records decisions and letter rulings of the Attorney General are available on the internet at: https://www.oag.state.tx.us/open/ogindex.shtml and Westlaw©.

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pet.). In City of Garland v. Dallas Morning News, the Dallas court of appeals held “there is no compelling demonstration requirement under the Act.” City of Garland v. Dallas Morning News, 969 S.W.2d at 556. The court further concluded “[a] failure to request an attorney general’s opinion within ten days does not require the governmental entity to respond with a compelling demonstration; rather, it simply shifts the burden to the governmental entity to produce evidence supporting its claim that an exception applies.” Id. Similarly, in Hart v. Gossum, the Fort Worth court of appeals “agree[d] with the Dallas court and [held] that a public entity may rebut the presumption of openness with evidence that the withheld information is exempt from disclosure under the Act.” Hart v. Gossum, 995 S.W.2d at 962. The Fort Worth court concluded attorney-client privileged communications were excepted from disclosure even though the governmental body did not comply with PIA section 552.301. Id. at 963. The trial court’s judgment mirrors the Fort Worth and Dallas courts’ judgment by allowing Dallas to withhold public information merely by producing evidence that an exception applies. See C.R. 223-24. However, the trial court’s judgment is amiss because the Legislature responded to the City of Garland and Hart decisions by amending PIA section 552.302 to explicitly adopt the Attorney General’s compelling reason burden. Act of May 25, 1999, 76th Leg., R.S., ch. 1319, § 21, sec. 552.302, 1999 Tex. Gen. Laws 4500, 4509. Senator John Carona 15

first introduced the compelling reason language by filing Senate Bill 277, but it was ultimately enacted into law as an amendment to Senate Bill 1851. Compare Tex. S.B. 277, 76th Leg., R.S. (1999) with Tex. S.B. 1851, 76th Leg., R.S. (1999). During a Senate Committee on State Affairs hearing on S.B. 277, Senator Carona explained: The second changes in sections 2 and 3 require the governmental body to submit to the attorney general all necessary information within 15 business days of receiving the written request for information. It goes on to say failure to do so will require the governmental body to forfeit any discretionary exceptions and would require release of the information. App. F, 22:22, Hearing on Tex. S.B. 277 Before the Senate Comm. on State Affairs, 76th Leg., R.S. (March 11, 1999) (statement of Senator John Carona). As explained by Senator Carona, the definition of a “compelling reason” is narrow—a governmental body that does not comply with section 552.301 will forfeit any discretionary exceptions. Id. Moreover, at a Senate Committee on State Affairs hearing on Senate Bill 277, Ms. Rebecca Payne, Chief of the Open Records Division of the Office of the Attorney General, testified as a resource witness. App. F, Hearing on Tex. S.B. 277 Before the Senate Comm. on State Affairs, 76th Leg., R.S. (March 11, 1999) (statement of Open Records Division Chief Rebecca Payne). The Committee Chair asked Ms. Payne, “[c]an you explain what ‘compelling reason’ might mean?” App. F, 23:50. Ms. Payne answered, “Compelling reasons would be if [] the information 16

were made confidential by another source of law outside the Open Records Act . . . as well as if release of the information would adversely affect the privacy or property interest of third parties.” App. F, 24:10. The legislative history makes clear the addition of the term “compelling reason” to section 552.302 was deliberate and purposeful. See Tex. Mutual Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012). To demonstrate a compelling reason to withhold the requested information from public disclosure, it must either be information made expressly confidential by law or release of the information implicates the privacy or property interest of a third party. 1. The attorney-client privilege exception, in and of itself, is not a compelling reason to withhold the information.

A governmental body cannot overcome the presumption of openness by simply showing the requested information falls into a statutory exception to disclosure. See Tex. Att’y Gen. ORD-630 at 6-7; Tex. Att’y Gen. ORD-676 at 1112. The courts of appeals are in agreement that more is required to demonstrate a compelling reason than showing the applicability of an exception. In Hancock v. State Board of Insurance, the Board argued merely showing “the applicability of one of the statutory exceptions is sufficient to overcome the presumption.” Hancock v. State Bd. of Ins., 797 S.W.2d at 381. The court rejected the Board’s argument and concluded a governmental body could not overcome the presumption of openness absent a compelling demonstration. Id. Similarly, in 17

Simmons v. Kuzmich, the appellate court concluded “[i]t is not enough to merely show that there is an ongoing criminal investigation; the governmental body must also show that its claimed exception to disclosure falls within one of the statutory exceptions to disclosure and how that exception creates a compelling reason.” Simmons v. Kuzmich, 166 S.W.3d at 350. Further, Dallas has already had its day in court on this same issue. In 2007 before the Seventh Court of Appeals, Dallas made nearly identical arguments in City of Dallas v. Abbott, and the court rejected its argument then. City of Dallas v. Abbott, 279 S.W.3d 806, 810-811 (Tex. App.—Amarillo 2007), rev’d on other grounds, 304 S.W.3d 380 (Tex. 2010). Dallas argued “the status of the documents as attorney-client communications presented [a] compelling reason sufficient to support the withholding of the documents from disclosure.” City of Dallas v. Abbott, 279 S.W.3d at 810. Although this decision was reversed on other grounds and is purely persuasive authority, the appellate court concluded “it is not enough to merely show that there is an exception to public disclosure; the governmental body must show how that exception creates a compelling reason to withhold the information.” Id. at 811. Dallas did not meet its compelling reason burden then, and has not met its burden now. What’s more, all Dallas has done is show a discretionary exception to disclosure applies to the information. As a matter of law, more is required to overcome the presumption of openness. 18

2.

The requested information is not confidential by law.

A compelling reason exists when confidentiality is mandated under law, or disclosure of the information would implicate the interest of a party other than the governmental body. See Jackson v. Tex. Dep’t of Pub. Safety, 243 S.W.3d at 758 (compelling reason exists when third-party interest are at stake or when information is confidential by law); Doe v. Tarrant Cnty. Dist. Attorney’s Office, 269 S.W.3d at 154-55 (compelling reason to withhold the information exists when disclosure is prohibited by statute or third-party privacy interests are at stake); Tex. Att’y Gen. ORD-630 at 3; Tex. Att’y Gen. ORD-676 at 12. Dallas’s sole argument is that the requested information is subject to the attorney-client privilege. C.R. 106-107. Dallas has not asserted or demonstrated release of the information would implicate the privacy or property interest of a third party. 3 See C.R. 99-154. Therefore, the only issue before this Court is whether Dallas has established the information is confidential by law, so as to overcome the compelling reason standard. Dallas has attempted to raise the attorney-client privilege in many different ways. C.R. 106-107. However, the legislature created only one statutory exception
A separate basis for demonstrating a compelling reason to withhold privileged information from disclosure, not before the Court, is that release of the information could harm a party other than the governmental body. Tex. Att’y Gen. ORD-676 at 12; Jackson v. Tex. Dep’t of Pub. Safety, 243 S.W.3d at 758; Doe v. Tarrant Cnty. Dist. Attorney’s Office, 269 S.W.3d at 154-55. A third party interest generally refers to the privacy or property interest of a person. See, e.g., Tex. Gov’t Code §§ 552.305, .326(b)(2).
3

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in Subchapter C of the PIA for attorney-client privileged materials, and that is section 552.107(1). See App. C, Tex. Gov’t Code § 552.107(1). Section 552.107(1) permits governmental bodies to assert the attorney-client privilege found in the Texas Rules of Evidence and the Texas Disciplinary Rules of Professional Conduct. Id. However, the attorney-client privilege cannot be raised through section 552.101. PIA section 552.101 excepts from disclosure information deemed confidential by constitutional law, statutory law, or judicial decision, that is outside of the PIA. Tex. Gov’t Code § 552.101. A statutory exception to disclosure, such as section 552.107(1), which is part of the PIA, cannot be raised through section 552.101. Tex. Att’y Gen. ORD-676 at 1-2. Besides, Rule 503 of the Texas Rules of Evidence is a discovery privilege, distinguishable from constitutional law, statutory law, or a judicial decision. Id. at 2. Thus, PIA section 552.101 is not the appropriate vehicle to raise the attorney-client privilege. PIA section 552.107(1), which Dallas has raised, is the way the legislature intended for governmental bodies to assert the attorney-client privilege found in Rule 503 of the Texas Rules of Evidence and Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct. Although Dallas properly asserted PIA section 552.107, more is required to demonstrate the information is expressly confidential under law. In determining whether the requested information is confidential by law, and thus a compelling 20

reason exists to withhold the information, the courts must look to the plain language of the exception. The PIA “does not authorize the withholding of public information or limit the availability of public information to the public, except as expressly provided.” Tex. Gov’t Code § 552.006. “When the legislature has intended to make information confidential, it has done so in express terms.” Boeing Co. v. Abbott, 412 S.W.3d 1, 15 (Tex. App.—Austin 2012, pet. filed); see also Jackson v. State Office of Admin. Hearings, 351 S.W.3d at 295-96 (plain language of the exception must make information expressly confidential under law). PIA section 552.107(1) is not a confidentiality exception to disclosure, but rather a discretionary exception that Dallas can waive. Tex. Att’y Gen. ORD-630 at 6-7; Tex. Att’y Gen. ORD-676 at 11-12; Tex. Att’y Gen. ORD-677 at 10-11. The legislature, by the plain language of the exception, has not deemed the information expressly confidential. The plain language of section 552.107(1) includes the terms “Exception: Certain Legal Matters,” rather than, “Exception: Confidentiality” or “Confidentiality,” which is typically found in the title of other PIA confidentiality exceptions. See Tex. Gov’t Code § 552.107. Statuary confidentiality provisions make information confidential in express terms. See Boeing Co., 412 S.W.3d at 15; see, e.g., Tex. Gov’t Code §§ 552.109, .110, .1175, .1176, .119, and .121. The exception’s plain language is the first indicator that PIA section 552.107(1) is discretionary. 21

The distinction between discretionary exceptions to disclosure and confidentiality exceptions to disclosure is significant because confidentiality exceptions are mandatory and cannot be waived—meaning, a governmental body must withhold this information from disclosure or it will be subject to criminal penalties for releasing it under PIA section 552.352. Tex. Gov’t Code § 552.352; see Tex. Gov’t Code § 552.007(a). A governmental body is “compelled” to withhold information that is confidential by law, hence the term compelling reason. Because governmental bodies have no discretion to release information made confidential by law, only confidentiality exceptions can be raised after a governmental body fails to comply with PIA section 552.301. Discretionary exceptions, however, do not make information confidential by law, and a governmental body can release information subject to a discretionary exception without penalty under the PIA. Tex. Gov’t Code §§ 552.007, .352; see Boeing Co., 412 S.W.3d at 15 (“Absent a showing that disclosure of the [ ] information is specifically ‘prohibited by law’ or ‘confidential under law’ it is within the [governmental body’s] discretion to waive any claim to withholding.”); see, e.g., Tex. Gov’t Code §§ 552.103-.108 (discretionary exceptions). The attorney-client privilege is discretionary because nothing in PIA section 552.107, the Texas Rules of Evidence, or the Texas Disciplinary Rules of Professional Conduct prohibits Dallas from releasing this information. In the 22

absence of a law prohibiting Dallas from releasing its own attorney-client privilege communications, there is no compelling reason for Dallas to withhold the information. Dallas, as the “client,” is free to release information subject to the attorney-client privilege without criminal penalty. Tex. Gov’t Code §§ 552.352, .007(a). And under the Texas Rules of Evidence and Texas Disciplinary Rules of Professional Conduct, Dallas can always waive its attorney-client privilege communications without subjecting Dallas’s attorneys to disciplinary action. See Tex. R. Evid. 511 (discussing waiver of privilege by voluntary disclosure); see Carmona v. State, 947 S.W.2d 661, 663 (Tex. App.—Austin 1997, no pet.) (client can waive attorney-client privilege); In re Hicks, 252 S.W.3d 790, 794 (Tex. App.—Houston [14th Dist.] 2008, no pet.); Tex. Disciplinary Rules Prof’l Conduct preamble ¶14, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (West 2013 (Tex. State Bar R. art X, § 9) (“These rules make no attempt to prescribe either disciplinary procedures or penalties for foliation of a rule.”). Even if Dallas’s attorneys—and not Dallas—were to release the information, Rule 1.05 permits an attorney to release attorney-client communications in order to comply with other law. Tex. Disciplinary Rules Prof’l Conduct R. 1.05(c)(4) (“A lawyer may reveal confidential information: . . . [w]hen the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary

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Rules[sic] of Professional Conduct, or other law.”). Undoubtedly, “other law” includes compliance with the PIA. Because the attorney-client privilege itself does not compel Dallas to withhold the communications, asserting the attorney-client privilege without more, is not a compelling reason to withhold the requested information from public disclosure. Therefore, the trial court’s judgment that the information was excepted from disclosure was incorrect. As a matter of law, Dallas did not demonstrate a compelling reason to withhold the requested information from disclosure, and the information must be released to the requestor. 3. Harm to Dallas’s own interest is not a compelling reason to withhold the requested information from disclosure.

Contrary to decades of attorney general decisions and appellate decisions, Dallas has claimed harm to its own interest in renegotiating a lease is a compelling reason to withhold the requested information. C.R. 125-27. While a compelling reason may be demonstrated if a governmental body shows that release of the information would harm a third party, “[h]arm to the interest of the governmental body that received the request is not a compelling reason.” Tex. Att’y Gen. ORD676 at 12; see Jackson v. Tex. Dep’t of Pub. Safety, 243 S.W.3d at 758; Doe v. Tarrant Cnty. Dist. Attorney’s Office, 269 S.W.3d at 154-55. If a court were to recognize general harm to the governmental body’s interest as a compelling reason to withhold the public information, the exception would swallow the rule 24

mandating disclosure of public information. See Tex. Gov’t Code §§ 552.001, .021. A governmental body could refuse to request a ruling, knowing a mere assertion that release of the information would harm its interest would overcome the burden. Governmental bodies could effectively withhold public information, without demonstrating the narrower section 552.302 compelling reason burden. Such a scheme would authorize governmental bodies to escape all consequences of failing to comply with PIA section 552.301. Furthermore, recognizing harm to the governmental body’s interest as a compelling reason would create a standard that is difficult—and likely impossible—for the Attorney General to uniformly apply. PIA section 552.011 states “the attorney general shall maintain uniformity in the application, operation, and interpretation of [the PIA].” Tex. Gov’t Code § 552.011. Harm to the governmental body’s interest could come in all forms. Here, Dallas asserts it “will suffer substantial harm to its bargaining position on a multimillion-dollar longterm transaction.” C.R. 125. Another governmental body may assert billions of taxpayer dollars are at stake. Such a standard will oblige the Attorney General to make value judgments about which costs are compelling and which costs are not. Distinguishing between costs of millions versus billions of dollars will easily lend itself to inconsistent outcomes. The Attorney General will need to further distinguish financial costs from non-financial costs. A general harm to the 25

governmental body’s interest is not an acceptable replacement for the compelling reason standard and will only interject uncertainty and disjunction into the PIA. Even if harm to the governmental body’s interest was considered a compelling reason to withhold the requested information, ultimately, the evidence falls short of establishing Dallas would suffer harm to its bargaining interest if the information were released. Dallas’s motion for summary judgment relied on the defective affidavit of Barbara A. McAninch which does not contain facts that would be admissible in evidence. See C.R. 149-151; Tex. R. Civ. P. 166a(f); Crain v. Davis, 417 S.W.2d 53, 55. (Tex. 1967). Notably, Ms. McAninch claimed “[d]isclosure of the communications in Exhibit B would cause substantial harm to the City’s bargaining position on a multimillion-dollar long-term transaction.” C.R. 150 para. 2. However, the affiant provides no underlying facts or evidence to support this statement. See C.R. 149-151. “An affidavit that states only legal or factual conclusions without providing factual support is not proper summary judgment evidence because it is not credible or susceptible to being readily controverted.” Brown v. Mesa Distributors, Inc., 414 S.W.3d 279, 287 (Tex. App.—Houston [1st Dist.] 2013, no pet.); see Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.—Houston [1st Dist.] 1997, no writ.). There is no evidence in the record that shows releasing the information would harm Dallas’s interest. C.R. 149-151. There is no evidence the transaction is 26

valued at the multimillion dollar level or that Dallas stands to lose any money at all as a result of the release of the information. Id. The conclusory statements in Ms. McAninch’s affidavit are the sole proof Dallas offers in support of its second summary judgment ground that harm to its own interest is a compelling reason to withhold the requested information. Id.; C.R. 106-107. The affiant’s unsupported factual conclusions and speculative statements are not proper summary judgment proof because the affiant does not provide the underlying facts to support the conclusion. Crain v. Davis, 417 S.W.2d at 55; Brown v. Mesa Distributors, Inc., 414 S.W.3d at 287; Rizkallah v. Conner, 952 S.W.2d at 587. The Attorney General timely objected and secured a ruling on these objections. C.R. 190-95, 220. Because the affidavit contains facts that are not admissible into evidence, those facts are likewise inadmissible. Crain v. Davis, 417 S.W.2d at 55. The trial court should have sustained the Attorney General objections to Ms. McAninch’s affidavit, struck the offending statements, and denied Dallas’s motion for summary judgment. II. SHOULD ATTORNEY GENERAL SUBSTANTIALLY PREVAIL UNDER PIA SECTION 552.323(B), HE REQUESTS AN AWARD OF ATTORNEY’S FEES.
THE

The PIA authorizes attorney fees for a plaintiff or defendant that “substantially prevails.” Tex. Gov’t Code § 552.323(b). A party substantially prevails when there is “judicially sanctioned ‘relief on the merits’ that ‘materially alters the legal relationship between the parties.’” Dallas Morning News, Inc. v. 27

City of Arlington, No. 03-10-00192-CV, 2011 WL 182886, at *3 (Tex. App.— Austin Jan. 21, 2011, no pet.) (mem. op.); accord Tex. State Bd. of Veterinary Med. Exam’rs v. Giggleman, 408 S.W.3d 696, 703 (Tex. App.—Austin 2013, no pet.). Should the Attorney General prevail on appeal, he asks the Court to award reasonable attorney fees in the total amount of $14,400.00, based on the level of appeal and a rate of $180.00 per hour. See C.R. 93-97. Attorney fees are warranted in this case because Dallas has no reasonable basis in law to refuse access to the information at issue. Therefore, the Attorney General respectfully requests an award of reasonable attorney’s fees. CONCLUSION AND PRAYER For the foregoing reasons, Appellant Greg Abbott, Attorney General of Texas, respectfully asks the Court to reverse and render judgment in favor of the Attorney General, ordering release of the information at issue to the requestor, and if appropriate award the Attorney General reasonable attorney fees. Respectfully Submitted, GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General DAVID C. MATTAX Deputy Attorney General for Defense Litigation 28

DAVID A. TALBOT, JR. Chief, Administrative Law Division KIMBERLY L. FUCHS Chief, Open Records Litigation /s/ Rosalind L. Hunt ROSALIND L. HUNT State Bar No. 24067108 Assistant Attorney General Administrative Law Division Office of the Attorney General of Texas P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Telephone: (512) 475-4166 Facsimile: (512) 457-4677 [email protected] ATTORNEYS FOR APPELLANT ATTORNEY GENERAL OF TEXAS CERTIFICATE OF COMPLIANCE I certify that the Brief of Appellant Greg Abbott, Attorney General of Texas, complies with Rule 9 of the Texas Rules of Appellate Procedure and the word count of this document is 6,824. The word processing software used to prepare this filing and calculate the word count of the document is Microsoft Word 2010. Date: April 11, 2014 /s/ Rosalind L. Hunt Rosalind L. Hunt ATTORNEY FOR APPELLANT

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Brief of Appellant Greg Abbott, Attorney General of Texas, has been served on April 11, 2014, on the following parties via electronic transmission and e-mail: JAMES B. PINSON State Bar No. 16017700 Assistant City Attorney Office of the City Attorney 1500 Marilla Street, Room 7BN Dallas, Texas 75201 Telephone: (214) 670-3519 Facsimile: (214) 670-0622 [email protected] ATTORNEY FOR APPELLEE CITY OF DALLAS P. THEODORE STOINOFF, II State Bar No. 00788478 Underwood Perkins, P.C. Two Lincoln Center 5420 LBJ Freeway, Suite 1900 Dallas, Texas 75240 Telephone: (972) 661-5114 Facsimile: (972) 661-5691 [email protected] ATTORNEY FOR TIMOTHY S. PERKINS

/s/ Rosalind L. Hunt Rosalind L. Hunt ATTORNEY FOR APPELLANT

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APPENDICES

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INDEX OF APPENDICES Final Judgment ...........................................................................................................A Attorney General Letter Ruling OR2010-08285 ..................................................................................................B Relevant Statutes Tex. Gov’t Code § 552.107 ............................................................................... C Tex. Gov’t Code § 552.301 ............................................................................... D Tex. Gov’t Code § 552.302 ............................................................................... E Legislative History Hearing on Tex. S.B. 277 Before the Senate Comm. on State Affairs, 76th Leg., R.S. (March 4, 1999) (certified copy of audio recording from Texas State Library and Archives Commission) ......................................................... F Hearing on Tex. S.B. 277 Before the Senate Comm. on State Affairs, 76th Leg., R.S. (March 11, 1999) (certified copy of audio recording from Texas State Library and Archives Commission) ......................................................... G

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APPENDIX A
Final Judgment

223

224

APPENDIX B
Attorney General Letter Ruling OR2010-08285

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

June 7,2010

Mr. WarrenM. S. Ernst Chief of the General Counsel Division City of Dallas 1500 Marilla, Room 7DN Dallas, Texas 75201
OR2010-08285 DearM: You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was ' assigned ID# 381812. The City of Dallas (the "city") received a request for all information related to Cameo International, Inc.; Cameo Group and/or Cameo DCE, Inc.; Dallas Clean Energy, LLC and/or Clean Energy Fuels Corporation as it pertains to the purchase, operation, revenue, receipts, royalty payments or any other matter concerning the operation of the McCommas Landfill and the collection, treatment, and ultimate sale of methane gas or other constituents of the landfill gas from the McCommas Landfill from December 15, 2009 to the date of the request. The city states some of the requested information will be released. The city claims, however, the remaining information is excepted from disclosure under sections 552.101 and 552.107 of the Government Code. We have considered the claimed exceptions and reviewed the submitted representative sample of information. 1 Section 552.301 describes the procedural obligations placed on a governmental body that receives a written request for informati<)ll it wishes to withhold. Pursuant to

IWe assume the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and, therefore, does not authorize the withholding of, any other requested records to the extent those records contain substantially different types of information than that submitted to this office.

POST OFFICE Box 12548, AUSTIN, TEXAS 78711-2548 TEL:(512)463-2100 WWW.OAG.STATE.TX.US .
All Equal Employm"'t Opporttlllity Employer. hillted all Recycled Paper

Mr. Warren M. S. Ernst - Page 2

section 552.301(b) of the Government Code, the governmental body must request a ruling from this office and state the exceptions to disclosure that apply within ten business days after receiving the request. Gov't Code § 552.301 (b). Pursuant to section 552.301 (e) of the Government Code, the governmental body is required to submit to this office within fifteen business days of receiving the request (1) general written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld, (2) a copy of the written request for information, (3) a signed statement or sufficient evidence showing the date the governmental body received the written request, and (4) a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. Id. § 552.301(e). Although the city received the request for information on February 19, 2010, it did not request a ruling or comply with the requirements of section 552.301(e) until March 30,2010. Thus, we find the city failed to comply with the requirements of section 552.301. Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with section 552.301 results in the legal presumption the informati,;:m is public and must be released, unless a governmental body demonstrates a compelling reason to withhold the information to overcome this presumption. !d. § 552.302; see Jackson v. Tex. Dep 't of Pub. Safety, 243 S.W.3d 754 (Tex. App.-Corpus Christi 2007, pet. denied); Simmons v. Kuzmich, 166 S.W.3d342, 350 (Tex. App.-FortWorth2005, nopet.);Hancockv. State Bd. of Ins., 797 S.W.2d 379,381-82 (Tex. App.-Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to Gov't Code § 552.302); Open Records Decision Nos. 630 (1994), 319 (1982). Although the city acknowledges its procedural violations, it asserts the submitted documents are confidential under section 552.101 in conjunction with the attorney-client privilege found in rule 503 of the Texas Rules of Evidence. Section 552.101 ofthe Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. If information is confidential under section 552.101, a governmental body is prohibited from releasing the information; improper disclosure results in criminal penalties under the Act. See id. § 552.352 (providing criminal penalties fO,r misuse or distribution of confidential information). Because a client may waive the attorney-client privilege, it is discretionary and no criminal penalties attach if the client voluntarily releases the information. Accordingly, rule 503 does not make information confidential for purposes of section 552.101 and the privilege may not be asserted under that exception. See Open Records Decision No. 676 at 1-3 (2002) (discussing proper exception for attorney-client privilege). The city also asserts section 552.107(1) which protects information that comes within the attorney-client privilege. See Gov't Code § 552.107(1). Because section 552.107(1) only protects a governmental body's interests, it is discretionary and is waived by a governmental body's failure to comply with'the Act's procedural requirements. See Open Records Decision Nos. 676 at 10-11 (2002) (attorney-client privilege under section 552.107(1) may be waived), 665 at 2 n.5 (2000) (discretionary exceptions in general), 663 at 5 (1999) (waiver

Mr. Warren M. S. Ernst - Page 3

of discretionary exceptions)" Accordingly, the exception is not a compelling reason under section 552.302. ORD 676 at 11-12; City ofDallas v. Abbott, 279 S.W.3d 806,811 (Tex. App.-Amarillo 2007), rev'd on other grounds, 304 S.W.3d 380 (Tex. 2010). The city asserts its attorney-client privilege cannot be waived by the actions of its attorneys in failing to timely request a ruling, but only by its own actions as the client. This office does not dispute the privilege belongs to the city as the client. See TEX. R. EVID. 503; see also ORDNo. 676 at 2 (expressly stating privilege rests with client governmental body). However, the responsibility of complying with the Act as well as the consequences of failing to comply with the statute rest with the city. Gov't Code §§ 552.301, .302. The request for information was sent to the city, the client and the governmental body under.the Act. Although this office does not have the exact number of requests for rulings submitted by the city for our review since the Act's inception in 1973, it should be noted that since January 1, 2010, the city has requested nearly 500 rulings. The submitted records also indicate the city had recently responded to another request by this requestor for presumably similar records. Thus, it cannot be said the city was unaware of its obligations under the Act. Further, based on the thousands of rulings this office has issued to the city, it cannot be said the city is . unaware of this office's interpretations of the Act's provisions. In fact, between 1999 and 2008, this office issued 719 rulings to the city involving violations of section 552.301. And yet, when the city as the client entity received this open records request, it chose not to raise its claim under section 552.107(1) in a timely manner. In fact, the city is nearly a month late in submitting its request for a decision from this office. The city attributes its delinquency to the actions of some unidentified attorney. Even if the city's untimely request was caused by this unidentified attorney's negligence, the city fails to explain why it should not be held responsible for the actions of its employee. Governmental entities are responsible for the acts and 'omission of their employees if those employees are acting in the scope of their employment. See, e.g., Civ. Prac. & Rem. Code § 101.021. The attorney assigned to handle public information requests and any other employees responsible for responding were doing so on behalf of the city. See Nat'l Med. Enters., Inc. v. Godbey, 924 S.W.2d 123, 124 (Tex.1996) (holding corporation acts through its human agents). We cannot, as the city urges, read section 552.302 out of the Act. The privilege and the exception rest with the city and by failing to comply with the Act, the city waived its section 552.107 claim with respect to the submitted documents. Simmons, 166S.W.3dat350; Open Records Decision Nos. 676 (2002), 630 (1994).
,

The city argues, however, that neither the Act nor any other law stipulates that a governmental body waives its attorney-client privilege claim by failing to request a ruling in accordance with section 552.301. We disagree. Section 552.302 clearly states: If a governmental body does not request an attorney general decision as provided by Section 552.301 and provide the requestor with the information required by Sections 552.301(d) and (e-l), the information requested in

Mr. Warren M. S. Ernst - Page 4

writing is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information. Gov't Code § 552.302. Thus, pursuant to section 552.302, a governmental body's failure to comply with section 552.301, results in the waiver of its discretionary claims. This office's long standing interpretation of section 552.302 and its consequences have been repeatedly affirmed by the courts. See, e.g., Simmons, 166 S.W.3d at 350; Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469,475-76 (Tex. App.-Dallas 1999, no pet.) (stating governmental body may waive Gov't Code § 552.103); Hancock, 797 S.W.2d at 381-82. In advancing its argument that sections 552.301 and 552.302 do not express a clear legislative intent that procedural violations result in a waiyer of a governmental body's discretionary claims, the city fails to submit any arguments explaining what it believes the legislature's intentwas when it enacted those provisions. Accordingly, we find the city's violation of section 552.301 resulted in a waiver of its claim under section 552.107. Finally, the city asserts that in this instance, it has a compelling reason to withhold the submitted information that overcomes the presumption of openness. In several formal decisions, this office stated the presumption of openness can be overcome by a showing that the requested information is confidential by law or third party interests are implicated by the release. See, e.g., Open Records Decision Nos. 630 (1994), 552 (1990), 319 (1982), 77 (1975),26 (1974). The courts have acknowledged and applied our interpretation. Doe v. Tarrant County Dist. Attorney's Office, 269 S:W.3d 147, 154-55 (Tex. App.-Fort Worth 2008, no pet.) (holding statutory and case law support attorney general's general rule); Jackson, 234 S.W.3d at 758; City ofDallas, 279 S.W.3d at 810-11; Simmons, 166 S.W.3d at 350; Hancock, 797 S.W.2d at 381. The city, however, would have this office adopt a new compelling reason standard based on the substantial harm release of the requested information would cause the governmental body or public. Under the city's reasoning, if a governmental body could show this office the millions it would forfeit, the number of employees to be disciplined, or the number of reputations sullied by the release, this office would overlook the governmental body's procedural violations and allow the information to be withheld. The city fails to articulate when the "numbers" justify a compelling reason to withhold. In fact, the city offers no clear standard for this office to follow. In this instance, the city simply states release of the submitted information would prejudice its bargaining position in a multi-million dollar long term transaction. The city does not provide any evidence to support its claim. The open records process is not a court of law.. This office is statutorily bound to issue a decision within forty-five business days. Gov't Code § 552.306. We do not have the statutory authority or the resources to cross-examine witnesses or seek independent expert testimony. This office is mandated to liberally construe the Act's provision for the purpose ofpromoting the state's policy of open government. See generally id. § 552.001. Accordingly, we find the city failed to articulate a compelling reason that overcomes the presumption of openness, and the requested information must be released in its entirety..

Mr. Warren M. S. Ernst - Page 5

This letter ruling is limited to the particular information at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other information or any other circumstances. This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For more information concerning those rights and responsibilities, please visit our website at http://www.oag.state.tx.us/open/index orl.php, or call the Office of the Attorney General's Open Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for providing public information under the Act must be directed to the Cost Rules Administrator of the Office of the Attorney· General, toll free, at (888) 672-6787. Sincerely,

~~
JBH/sdk Ref: Ene. c: ID# 381812

Assistant Attorney General Open Records Division

Submitted documents Requestor (w/o enclosures)

APPENDIX C
Tex. Gov’t Code § 552.107

V.T.C.A., Government Code § 552.107

Page 1

Effective: September 1, 2005 Vernon's Texas Statutes and Codes Annotated Currentness Government Code (Refs & Annos) Title 5. Open Government; Ethics (Refs & Annos) Subtitle A. Open Government Chapter 552. Public Information (Refs & Annos) Subchapter C. Information Excepted from Required Disclosure § 552.107. Exception: Certain Legal Matters Information is excepted from the requirements of Section 552.021 if: (1) it is information that the attorney general or an attorney of a political subdivision is prohibited from disclosing because of a duty to the client under the Texas Rules of Evidence or the Texas Disciplinary Rules of Professional Conduct; or (2) a court by order has prohibited disclosure of the information. CREDIT(S) Added by Acts 1993, 73rd Leg., ch. 268, § 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 1035, § 7, eff. Sept. 1, 1995; Acts 2005, 79th Leg., ch. 728, § 8.014, eff. Sept. 1, 2005. END OF DOCUMENT

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APPENDIX D
Tex. Gov’t Code § 552.301

V.T.C.A., Government Code § 552.301

Page 1

Effective: September 1, 2011 Vernon's Texas Statutes and Codes Annotated Currentness Government Code (Refs & Annos) Title 5. Open Government; Ethics (Refs & Annos) Subtitle A. Open Government Chapter 552. Public Information (Refs & Annos) Subchapter G. Attorney General Decisions § 552.301. Request for Attorney General Decision (a) A governmental body that receives a written request for information that it wishes to withhold from public disclosure and that it considers to be within one of the exceptions under Subchapter C [FN1] must ask for a decision from the attorney general about whether the information is within that exception if there has not been a previous determination about whether the information falls within one of the exceptions. (a-1) For the purposes of this subchapter, if a governmental body receives a written request by United States mail and cannot adequately establish the actual date on which the governmental body received the request, the written request is considered to have been received by the governmental body on the third business day after the date of the postmark on a properly addressed request. (b) The governmental body must ask for the attorney general's decision and state the exceptions that apply within a reasonable time but not later than the 10th business day after the date of receiving the written request. (c) For purposes of this subchapter, a written request includes a request made in writing that is sent to the officer for public information, or the person designated by that officer, by electronic mail or facsimile transmission. (d) A governmental body that requests an attorney general decision under Subsection (a) must provide to the requestor within a reasonable time but not later than the 10th business day after the date of receiving the requestor's written request: (1) a written statement that the governmental body wishes to withhold the re© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.

V.T.C.A., Government Code § 552.301

Page 2

quested information and has asked for a decision from the attorney general about whether the information is within an exception to public disclosure; and (2) a copy of the governmental body's written communication to the attorney general asking for the decision or, if the governmental body's written communication to the attorney general discloses the requested information, a redacted copy of that written communication. (e) A governmental body that requests an attorney general decision under Subsection (a) must within a reasonable time but not later than the 15th business day after the date of receiving the written request: (1) submit to the attorney general: (A) written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld; (B) a copy of the written request for information; (C) a signed statement as to the date on which the written request for information was received by the governmental body or evidence sufficient to establish that date; and (D) a copy of the specific information requested, or submit representative samples of the information if a voluminous amount of information was requested; and (2) label that copy of the specific information, or of the representative samples, to indicate which exceptions apply to which parts of the copy. (e-1) A governmental body that submits written comments to the attorney general under Subsection (e)(1)(A) shall send a copy of those comments to the person who requested the information from the governmental body not later than the 15th business day after the date of receiving the written request. If the written comments disclose or contain the substance of the information requested, the copy of the comments provided to the person must be a redacted copy. (f) A governmental body must release the requested information and is prohibited from asking for a decision from the attorney general about whether information requested under this chapter is within an exception under Subchapter C [FN1] if:
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V.T.C.A., Government Code § 552.301

Page 3

(1) the governmental body has previously requested and received a determination from the attorney general concerning the precise information at issue in a pending request; and (2) the attorney general or a court determined that the information is public information under this chapter that is not excepted by Subchapter C. (g) A governmental body may ask for another decision from the attorney general concerning the precise information that was at issue in a prior decision made by the attorney general under this subchapter if: (1) a suit challenging the prior decision was timely filed against the attorney general in accordance with this chapter concerning the precise information at issue; (2) the attorney general determines that the requestor has voluntarily withdrawn the request for the information in writing or has abandoned the request; and (3) the parties agree to dismiss the lawsuit. CREDIT(S) Added by Acts 1993, 73rd Leg., ch. 268, § 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 1035, § 18, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1231, § 5, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1319, § 20, eff. Sept. 1, 1999; Acts 2005, 79th Leg., ch. 329, § 10, eff. Sept. 1, 2005; Acts 2007, 80th Leg., ch. 474, § 1, eff. Sept. 1, 2007; Acts 2009, 81st Leg., ch. 1377, § 8, eff. Sept. 1, 2009; Acts 2011, 82nd Leg., ch. 1229 (S.B. 602), § 39, eff. Sept. 1, 2011. [FN1] V.T.C.A., Government Code § 552.101 et seq. END OF DOCUMENT

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APPENDIX E
Tex. Gov’t Code § 552.302

V.T.C.A., Government Code § 552.302

Page 1

Effective: September 1, 2005 Vernon's Texas Statutes and Codes Annotated Currentness Government Code (Refs & Annos) Title 5. Open Government; Ethics (Refs & Annos) Subtitle A. Open Government Chapter 552. Public Information (Refs & Annos) Subchapter G. Attorney General Decisions § 552.302. Failure to Make Timely Request for Attorney General Decision; Presumption That Information Is Public If a governmental body does not request an attorney general decision as provided by Section 552.301 and provide the requestor with the information required by Sections 552.301(d) and (e-1), the information requested in writing is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information. CREDIT(S) Added by Acts 1993, 73rd Leg., ch. 268, § 1, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. 1319, § 21, eff. Sept. 1, 1999; Acts 2005, 79th Leg., ch. 329, § 11, eff. Sept. 1, 2005. END OF DOCUMENT

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APPENDIX F
Hearing on Tex. S.B. 277 Before the Senate Comm. on State Affairs, 76th Leg., R.S. (March 4, 1999) (certified copy of audio recording from Texas State Library and Archives Commission) A copy of Appendix F is being hand-delivered to the court concurrently with this E-Filing

APPENDIX G
Hearing on Tex. S.B. 277 Before the Senate Comm. on State Affairs, 76th Leg., R.S. (March 11, 1999) (certified copy of audio recording from Texas State Library and Archives Commission) A copy of Appendix G is being hand-delivered to the court concurrently with this E-Filing

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