Dallas Asks AG for Permission to Withhold Judge Candidate Questionnaires

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City of Dallas
September 5,2012 Steve Thompson The Dallas Morning News stevethompson @dallasnews.com Re: Request for an Open Records Decision Dear Mr. Thompson: This letter responds to your open records request received by the city of Dallas on August 20, 2012 to inspect "all questionnaires about court practices filled out by judge applicants this month." The requested documents have been sent to the Attorney General for an open records decision regarding their release. A copy of the letter to the Attorney General is enclosed for your information. If you have any questions regarding this matter please contact me or Assi stant City Attorney Heather Silver at 214-670-3519. Sincerely,

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WARREN M. S. ERNST Chief of the General Counsel Division Attachments

c:

Thomas P. Perkins, Jr., City Attorney Heather Silver, Assistant City Attorney Jeri Carter, Public Information Office

OFFICE OFTHE CITY ATTORNEY CITY HALL

DALLAS, TEXAS 75201

TELEPHONE 2141670-3519

FAX 2141670-0622

City of Dallas

September 5, 2012 Honorable Greg Abbott Attorney General of Texas 300 W. 15th Street Clements Building, 12th Floor P.O. Box 12548 Austin, Texas 78711 Re: Request for an Open Records Decision

Dear Attorney General Abbott: Bye-mail (Exhibit A) received by the city of Dallas ("city") on August 20, 2012, Steve Thompson requested to inspect "all questionnaires about court practices filled out by judge applicants this month." This office is responsible for representing the legal interests of the city. In our opinion, the requested information is excepted from required public disclosure under Sections 552.103 and 552.111 of the Public Information Act, Chapter 552, Texas Government Code (the "Act"). Under Section 552.301 of the Act, this office now seeks your determination about whether this information is exempt from disclosure. City offices were closed on AugustJ'l, 2012 for a Mandatory City Leave (furlough) day and on September 3, 2012 for Labor Day/Cesar E. Chavez Day. For more information about these city holidays, please see http://www.dallascityhall.com/pdf/piolLaborDayHoliday 2012.pdf. Mr. Thompson has requested questionnaires submitted by applicants for the position of municipal court judge for the city. On August 24, 2012, four applicants, who were former municipal judges, sued the Dallas Mayor and other members of the Dallas City Council in their official capacities stating that they should have been reappointed as municipal court judges. The lawsuit is styled and numbered Timoteo F. Gonzalez, et al. v. Mike Rawlings, Mayor, et al., No. DC-12-09605-J. (See Exhibit B). Exhibit C consists of a representative sample of the requested information. It is our opinion that the information in Exhibit C is exempt from disclosure under Section 552.103 of the Act which exempts from disclosure "information relating to litigation of a civil or criminal nature or settlement negotiations, to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or political subdivision, as a consequence of the person's office or employment, is or may be a party." To claim an exception under Section 552.103 of the Act, litigation must be pending or reasonably anticipated and the information

OFFICE OFTHE CITY ATTORNEY

CITY HALL

DALLAS. TEXAS 75201

TELEPHONE 2141670-3519

FAX 2141670-0622

September 5,2012 Honorable Greg Abbott Page 2 must relate to that litigation. Heard v. Houston Post Co., 684 S.W. 2d 210 (Tex. App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.). Litigation is currently pending in Timoteo F. Gonzalez, et al. v. Mike Rawlings, Mayor, et al. (See Exhibit B). Exhibit B relates to the pending litigation because it concerns the subject matter of the litigation, which is an attempt to nullify the ordinance appointing successor municipal judges. Section 552.103 of the Act enables governmental entities to protect their position in litigation by forcing parties seeking information to obtain it through discovery. Open Records Decision No. 551 (1990). This section of the Act was intended to prevent the use of the Open Records Act as a method to avoid discovery rules. Attorney General Opinion JM-1048 (1989). The city acknowledges that Mr. Thompson is not a party to the litigation. However, if the city provides the questionnaires to Mr. Thompson, the city would then be required to provide them to the plaintiffs if they submitted an open records request for the same information. It is our opinion that the information in Exhibit C is also exempt from disclosure under Section 552.111 of the Act which excepts from required disclosure "an interagency or intraagency memorandum or letter that would not be available by law to a party in litigation with the agency." Section 552.111 of the Act incorporates the deliberative process privilege, which protects from disclosure intra-agency and interagency communications consisting of advice, opinion, or recommendations on policymaking matters of a governmental body. The information in Exhibit C relates to general policy issues and reflects the policymaking process of the city. These documents contain opinions, advice, and recommendations concerning recommendations to improve the city's Municipal Court System. We believe that disclosing this information to the public would severely hamper the policymaking process. Governmental entities would be reluctant to engage in a thorough and frank discussion of alternatives if any initial observation or recommendation was immediately available to the public. If you have any questions regarding this request for an open records decision please contact me or Assistant City Attorney Heather Silver at 214-670-3519.

WARREN M. S. ERNST Chief of the General Counsel Division Attachments c: (with Exhibits A only) Thomas P. Perkins, Jr., City Attorney Heather Silver, Assistant City Attorney Jeri Carter, Public Information Office Steve Thompson [email protected]

"EXHIBIT A"

-----Original Message----From: Thompson, Steve [mailto:[email protected] Sent: Monday, August 20, 2012 2:28 PM To: OpenRecords Subject: judge questionnaires

I request to inspect all questionnaires about court practices filled out by judge applicants this month.
thanks,

Steve Thompson Staff Writer The Dallas Morning News cell: 214-766-8813

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