Greg Abbott, in His Official Capacity as Attorney General of the State of Texas v. Dallas Area Rapid Transit

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-11-00630-CV

Greg Abbott, in his Official Capacity as Attorney General of the State of Texas, Appellant

v.

Dallas Area Rapid Transit, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT

NO. D-1-GV-08-002588, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING

OPINION

In this case, we must decide whether the Texas Public Information Act (PIA),

Tex. Gov’t Code §§ 552.001–.353, requires disclosure of the names, positions, and hire dates of the

public employees whose interviews are summarized in a completed investigation report regarding

a claim of racially discriminating hiring practices at appellee Dallas Area Rapid Transit (DART).

DART, which objected to disclosing any portion of its investigation report, brought this suit in

Travis County District Court to contest the Attorney General’s letter decision determining that

the PIA required DART to disclose the entire investigation report. On cross-motions for summary

judgment, the district court ordered DART to disclose the report, but with the identities, positions,

and hire dates of the interviewees redacted. The Attorney General appeals from this judgment,

asserting that the redacted information must be disclosed to the public. We will affirm in part, and

reverse and render in part.

Background

The underlying facts of this case are not in dispute, and the parties agree that this

appeal presents questions of law. In August 2008, DART, which operates buses, light rail, commuter

rail, and high-occupancy vehicle lanes in the Dallas metropolitan area,1 received a public-information

request from a Dallas television station for various documents and information relating to a racial-

discrimination complaint made by one DART employee against two other DART employees.

Among the information responsive to that request was a report documenting DART’s internal

investigation of the complaint. The director of DART’s diversity and equal employment opportunity

division conducted the investigation and drafted the report. In addition to other information relevant

to the particular investigation, the report details the statements of several DART employees,

identified by name, position, and hire date, who were required to make a statement regarding

the allegations.

After receiving the public-information request, DART sought a decision from the

Attorney General that it could withhold the investigation report under various PIA exceptions

to disclosure. See Tex. Gov’t Code § 552.301 (requiring governmental body that seeks to withhold

information from public disclosure to request an Attorney General decision). The Attorney General

issued a letter decision concluding that the PIA required that DART release the investigation report.

See Tex. Att’y Gen. OR2008-14652.

In response to the Attorney General’s decision, DART filed the underlying suit,

seeking a declaration that it was not required to disclose the investigation report. See Tex. Gov’t

1

Specifically, DART is a Texas regional public transportation authority. See Tex. Transp.

Code §§ 452.001–.720.

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Code §§ 552.324–.325 (authorizing suit by governmental body seeking to withhold information and

designating parties to such a suit). DART and the Attorney General proceeded to file cross-motions

for summary judgment. DART’s motion sought summary judgment declaring that it did not have to

disclose the investigation report because the investigation report (1) is confidential under common-

law privacy, federal and state anti-retaliation laws, and the “informer’s privilege”; and (2) is

excepted from disclosure under two PIA exemptions from disclosure, specifically sections 552.101

and 552.102. The Attorney General’s motion sought the contrary declaration that DART must

disclose the entire investigation report, arguing that, as PIA “core public information,” the report

may only be withheld if the information in the report is expressly confidential under other law, which

the Attorney General argued it was not. The district court rendered judgment granting both motions

in part and denying them in part, ordering DART to disclose the investigation report, but requiring

that the “identities, and job positions and hire dates of the interviewees [be] redacted” from the

report. It is from this judgment that the Attorney General now appeals.

Analysis

The Attorney General challenges the district court’s summary judgment in two issues,

principally arguing that the entire investigation report, including the names, positions, and hire dates

of the interviewees must be disclosed under the PIA because it is core public information that is not

made confidential by other law.

Standard of review

Because the parties do not dispute the relevant facts, this is a proper case for summary

judgment. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000); see Tex. R.

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Civ. P. 166a (providing that summary judgment is appropriate “if there is no genuine issue as to any

material fact and the moving party is entitled to judgment as a matter of law”). On cross-motions

for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a

matter of law. See City of Garland, 22 S.W.3d at 356 (citing Guynes v. Galveston Cnty., 861 S.W.2d

861, 862 (Tex. 1993)). When the trial court grants one motion and denies the other, we should

determine all questions presented and render the judgment that the trial court should have rendered.

See id. (citing Commissioners Court of Titus Cnty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997)).

The Texas Public Information Act

The Texas Legislature enacted the PIA with the express purpose of providing

the public “complete information about the affairs of government and the official acts of

public officials and employees.” Tex. Gov’t Code § 552.001(a); Jackson v. State Office of Admin.

Hearings, 351 S.W.3d 290, 293 (Tex. 2011). The PIA is aimed at preserving a fundamental tenet

of representative democracy: “that the government is the servant and not the master of the people,”

Tex. Gov’t Code § 552.001(a); Jackson, 351 S.W.3d at 293, and reflects the public policy that the

people of Texas “remain[] informed so that they may retain control over the instruments they have

created,” Tex. Gov’t Code § 552.001(a); see Jackson, 351 S.W.3d at 293. To advance these policy

goals, the Legislature has directed that we liberally construe the PIA in favor of disclosure of

requested information. See Tex. Gov’t Code § 552.001; Jackson, 351 S.W.3d at 293.

The PIA guarantees access to “public information,” subject to certain exceptions. See

generally Tex. Gov’t Code §§ 552.001–.153. “Those exceptions embrace the understanding that the

public’s right to know is tempered by the individual and other interests at stake in disclosing

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the information.” Texas Dep’t of Pub. Safety v. Cox Tex. Newspapers, L.P., 343 S.W.3d 112, 114

(Tex. 2011). However, the PIA also generally excludes from those exceptions—i.e., creates an

exception to its disclosure exceptions—certain special categories of public information. See Act of

May 25, 1999, 76th Leg., R.S., ch. 1319, § 5, 1999 Tex. Gen. Laws 4500, 4501–02 (current version

at Tex. Gov’t Code § 552.022) (hereinafter cited as “Former Tex. Gov’t Code § 552.022”).2 Former

section 552.022’s special categories of public information—often referred to as “core public

information”—are protected from disclosure only if they are “expressly confidential under other

law.” See Former Tex. Gov’t Code § 552.022(a); Cox, 343 S.W.3d at 114 (describing categories

as “core public information”). Stated another way, “[c]ompared to the dozens of exceptions for

disclosure of ‘regular’ public information, there is only one exception to the PIA’s mandated

disclosure of core public information—if it is ‘expressly confidential under other law.’” Cox,

343 S.W.3d at 122 (Wainwright, J., concurring). “Other law,” as it is used in former PIA

section 552.022, means law other than the PIA, which includes “other statutes, judicial decisions,

and rules promulgated by the judiciary.” See id. at 113–15 (citing In re City of Georgetown,

53 S.W.3d 328, 332–33) (Tex. 2001).

It is undisputed that the investigation report at issue here is “core public information.”

Specifically, it is a “completed report, audit, evaluation, or investigation made of, for, or by

a governmental body.” See Former Tex. Gov’t Code § 552.022(a)(1). As such, it can only be

2

We cite to the 1999 version of PIA section 552.022 because that is the version that was

in effect when the PIA request was made in this case. See Act of May 28, 2011, 82d Leg.,

R.S., ch. 1229, § 2, 2011 Tex. Gen. Laws 3271 (making amendments applicable to requests for

information received on or after Sept. 1, 2011). The 2011 changes to subsection (a) provided that

core public information was not excepted from disclosure “unless made confidential under

this chapter or other law.” See id. We express no opinion regarding how the 2011 changes to

section 552.022 would affect our opinion here.

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withheld from the public if it is “expressly confidential under other law.” See id.; Cox, 343 S.W.3d

at 114. DART argues, both here and in its motion for summary judgment, that the investigation

report is confidential under concepts of common-law privacy, federal and state anti-retaliation laws,

and the “informer’s privilege.” It also asserts that two PIA exceptions to disclosure allow it to

withhold the investigation report.

Common-law privacy

We begin by addressing DART’s contentions that the names, positions, and

hire dates of the interviewees are confidential under concepts of common-law privacy. In Industrial

Foundation of the South v. Texas Industrial Accident Board, the Texas Supreme Court held that

concepts of common-law privacy law exempted documents from public disclosure under a former

version of the PIA. See 540 S.W.2d 668, 686 (Tex. 1976). And more recently, the Texas Supreme

Court explained that Industrial’s common-law privacy protection for PIA disclosure extends to the

core public information. See Cox, 343 S.W.3d at 116.

Under Industrial, information is protected from mandatory disclosure as information

deemed confidential by law if—

(1) the information contains highly intimate or embarrassing facts the publication of

which would be highly objectionable to a reasonable person, and (2) the information

is not of legitimate concern to the public.

See Industrial, 540 S.W.2d at 685. In exploring what types of information might be “highly intimate

or embarrassing,” the supreme court referenced information concerning sexual assault, pregnancy,

illegitimacy, mental or physical abuse, contraception, psychiatric treatment, injuries to genitalia,

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and attempted suicide. See id. at 683. And importantly, the court specified that the embarrassing

or intimate information must be information that is about the person potentially affected by

the information’s disclosure. See id. (discussing tort of invasion of privacy, from which it derived

exception, and noting that “an injured party, in order to recover for public disclosure of private facts

about himself, must show . . . that publicity was given to matters concerning his private life”

(emphases added)).

DART asserts that the information at issue here—i.e., the interviewees’ names,

positions, and hire dates in connection with an investigation report regarding racial-discrimination

claims—is intimate or highly embarrassing. We disagree. In contrast to the information found to

be confidential in Industrial, the DART information is in no way intimate or embarrassing. The

DART investigation report details the allegations of discrimination made by Rebecca Williams

against her supervisor Tina Franco and another DART employee, Luis Ramirez. Williams alleged

that Franco and Ramirez discriminated against her because of her race and color, created a hostile

work environment, and retaliated against her because she complained. The DART employees whose

information is at issue in this case were required to make statements during the investigation, but

they were not the subject of any complaints or the investigation, nor were they accused of having

made racial comments. Instead, they presumably were simply other DART employees who may

have been in a position to shed light on the allegations made by Williams or on the subjects of

the complaint. And based on the contents of the investigation report, it appears that the DART

investigator asked the interviewees about a particular work meeting and about other workplace

matters. Although some of the witnesses offered an opinion regarding the allegations or conditions

of the workplace, none of the interviewees’ statements contain any personal information about the

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interviewees themselves, other than what they personally had seen or not seen in the workplace

regarding the allegations in the complaint. In fact, the investigation report contains only information

regarding what public employees observed while at their public place of employment during work

hours. In other words, not only is the information not about the interviewees themselves, it is not

the type of information that is intimate or highly embarrassing. Accordingly, the information here

does not meet the first prong of the Industrial test and, as a result, is not confidential. See Industrial,

540 S.W.2d at 683.

DART argues that the El Paso Court of Appeal’s decision in Morales v. Ellen,

840 S.W.2d 519 (Tex. App.—El Paso 1992, writ denied), supports its position that the information

at issue here is intimate or highly embarrassing. We disagree. Although it similarly involved the

identity of witnesses to an internal investigation, Ellen was decided before the Legislature created

the categories of “core public information” that must be disclosed unless expressly made confidential

by other law. See Act of May 25, 1999, 76th Leg., R.S., ch. 1319, § 5, 1999 Tex. Gen. Laws 4500,

4501–02. To that extent, Ellen cannot inform our decision here. But even if we were to disregard

the state of the PIA at that time, Ellen does not preclude our determination here. The investigation

in Ellen involved allegations of sexual assault in the workplace and, according to the opinion,

the witnesses were required to give information about “their dating and sexual relationships, the

state of marriages and other highly personal material.” See Ellen, 840 S.W.2d at 524–25 (emphases

added); cf. Industrial, 540 S.W.2d at 679–80 (describing the information at issue as being about the

individuals seeking the privacy protection). In other words, the investigation report in Ellen, unlike

the report here, included information that was personal to the witnesses themselves. In fact, the

Ellen court noted that the witnesses in that case, had the information been disclosed by a private

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source, “would possess a cause of action for invasion of privacy.” See id. at 525. In contrast, the

statements of the interviewees in this case do not include any information that is personal to the

interviewees, only information about what they saw or heard, or did not see or hear, in the public

workplace during working hours.

In sum, the information in the DART investigation report is not intimate or highly

embarrassing, at least not in comparison to the information in Industrial and Ellen. Further, and

perhaps most important, it is not information that is personal to the DART interviewees themselves.

Accordingly, releasing the identification, position, and hire date of the interviewees would

not violate their common-law right to privacy as articulated by the supreme court in Industrial. See

Industrial, 540 S.W.2d at 682–85. Additionally, although we need not reach the issue having

determined that the information here does not meet the first prong of the Industrial test, we would

also note that the information at issue here may be of legitimate concern to the public. See id.

Anti-retaliation statutes

DART argues that federal and state anti-retaliation statutes make the information

at issue here confidential. We disagree. The federal and Texas anti-retaliation statutes on which

DART relies make it unlawful for an employer to discriminate against an employee who “testif[ies],

assist[s], or participate[s] in any manner in an investigation” regarding employment discrimination.

See 42 U.S.C. 2000e-3; Tex. Lab. Code § 21.055. Stated another way, these statutes make punishing

an employee for participating in an internal investigation an unlawful employment practice. See

42 U.S.C. 2000e-3; Tex. Lab. Code § 21.055. But these provisions do not expressly, or even

implicitly for that matter, make the information surrounding the investigation confidential. See

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42 U.S.C. 2000e-3; Tex. Lab. Code § 21.055. Moreover, the witnesses’ names at issue here are

already known to the employer. Accordingly, we hold that the anti-retaliation statutes relied on by

DART here are not “other law” that make the information confidential.

Informer’s privilege

DART argued in its summary judgment motion and in its brief here that the

“informer’s privilege” makes the information at issue here confidential. We disagree. The

“informer’s privilege” is “the Government’s privilege to withhold from disclosure the identity of

individuals who provide the government with information regarding violations of law to officers

charged with enforcement of that law.” See Rovario v. United States, 353 U.S. 53, 59–61 (1957).

The Attorney General considers this privilege to fall under PIA section 552.101, which excepts

from disclosure “information considered to be confidential by law, either constitutional, statutory,

or by judicial decision.” See, e.g., Tex. Att’y Gen. Op. OR2008-08778 (citing Tex. Gov’t Code

§ 552.102). And the Attorney General describes the privilege as protecting from disclosure “the

identities of persons who report activities over which the governmental body has criminal or quasi-

criminal law-enforcement authority.” See id. But assuming without deciding that the information

here involves the violation of a civil statute, there is no summary-judgment evidence that the

interviewees “reported violations” to an agency with criminal or quasi-criminal enforcement

authority. Instead, the summary-judgment evidence shows that the interviewees were required by

DART to make statements regarding the complaints to an internal DART employee. Further, that

DART employee was a member of DART’s diversity and EEO division, which oversees DART’s

internal “Equal Employment Opportunity Policy” and “provides an available outlet for employees

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to voice potential violations and/or file complaints regarding EEO policy.” But there is no summary-

judgment evidence showing whether the department, or DART, has any authority to enforce a

violation. In the absence of such evidence, DART has failed to prove as a matter of law that it would

be entitled to assert this privilege. Accordingly, we cannot uphold the district court’s summary

judgment on this ground.3

PIA exceptions to disclosure

DART argues that the investigation report can be withheld from disclosure under PIA

exceptions found in section 552.101, which excepts from disclosure information that is considered

to be confidential by law, see Tex. Gov’t Code § 552.101, and PIA section 552.102, which excepts

from disclosure “information in a personnel file, the disclosure of which would constitute a

clearly unwarranted invasion of personal privacy,” see id. § 552.102. We disagree. First, these

two exceptions are part of the “regular” PIA exceptions to disclosure found in subchapter C of the

PIA. See id.; Cox, 343 S.W.3d at 122. As such, they do not apply to—i.e., they cannot be used to

withhold—core public information like the investigation report. See Tex. Gov’t Code § 552.022;

Cox, 343 S.W.3d at 114. Further, to the extent that either of these sections might invoke common-

law privacy protections such that they could be said to confer confidentiality on the investigation

report, we have addressed that issue previously. For the same reasons, the Texas jurisprudence on

section 552.102 and the related federal jurisprudence regarding similar federal exceptions on which

3

The evidence in the record suggests that DART told the interviewees that their identities

in connection with their statements would not be disclosed. DART, however, cannot unilaterally

make public information confidential or, in fact, create an exception to its disclosure. See Industrial

Found. of the South v. Texas Indus. Accident Bd., 540 S.W.2d 668, 677 (noting that allowing an

agency to do so would “circumvent the very purpose of the Open Records Act”).

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DART relies in making this argument provide no support for the district court’s summary judgment

in this case. See Cappiabianca v. Commissioner, U.S. Customs Serv., 847 F. Supp. 1558 (M.D. Fla.

1994) (construing Freedom of Information Act section 552(b)(6), which is similar to PIA

section 552.102, to exempt from disclosure the identities of witnesses to various types of workplace

discrimination investigations); Texas Comptroller v. Attorney Gen., 354 S.W.3d 336 (Tex. 2010)

(holding that section 552.102 exempts public employee’s birth dates, which are not core public

information, from disclosure because disclosure results in an unwarranted invasion of personal

privacy). Finally, we would note that section 552.102 also does not apply to the information at issue

here because there is no evidence in the record before us that DART’s investigation report is in the

interviewees’ personnel files. And while the particular information at issue here—i.e., the names,

positions, and hire dates of the individual interviewees—is undoubtedly found in some form within

their personnel files, it is not in those files in the context of the investigation report at issue here.

Because the information at issue in this case—the investigation report, including the

names, positions, and hire dates of the interviewees—is core public information that is not expressly

made confidential by other law, the Attorney General, and not DART, was entitled to summary

judgment. Accordingly, we sustain the Attorney General’s issues on appeal.

Conclusion

Having sustained the Attorney General’s issues on appeal, we reverse the part of the

judgment requiring that the identities, job positions, and hire dates of the interviewees be redacted,

we render judgment that the investigation report be disclosed without redaction, and we affirm the

judgment in all other respects.

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__________________________________________

Jeff Rose, Justice

Before Chief Justice Jones, Justices Pemberton and Rose

Affirmed in part; Reversed and Rendered in part

Filed: August 30, 2013

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