the City of Houston, Texas v. Ken Paxton, Attorney General of Texas

ACCEPTED

03-15-00093-CV

6583005

THIRD COURT OF APPEALS

AUSTIN, TEXAS

8/20/2015 1:47:06 PM

JEFFREY D. KYLE

CLERK

CASE NO. 03-15-00093-CV

FILED IN

IN THE COURT OF APPEALS 3rd COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS AUSTIN, TEXAS

8/20/2015 1:47:06 PM

AUSTIN, TEXAS

JEFFREY D. KYLE

Clerk

THE CITY OF HOUSTON, TEXAS

Appellant,

v.

KEN PAXTON, ATTORNEY GENERAL OF TEXAS,

Appellee.

On Appeal from the 250th District Court of Travis County, Texas

The Honorable Stephen Yelenosky, Presiding

BRIEF OF APPELLEE KEN PAXTON,

ATTORNEY GENERAL OF TEXAS

KEN PAXTON MATTHEW R. ENTSMINGER

Attorney General of Texas State Bar No. 24059723

Assistant Attorney General

CHARLES E. ROY Open Records Litigation

First Assistant Attorney General Administrative Law Division

Office of the Attorney General of Texas

JAMES E. DAVIS P.O. Box 12548, Capitol Station

Deputy Attorney General for Civil Austin, Texas 78711-2548

Litigation Telephone: (512) 475-4151

Facsimile: (512) 320-0167

DAVID A. TALBOT, JR. matthew.entsminger@texasattorneygeneral.gov

Chief, Administrative Law Division

ATTORNEYS FOR APPELLEE KEN PAXTON,

KIMBERLY L. FUCHS ATTORNEY GENERAL OF TEXAS

Chief, Open Records Litigation

ORAL ARGUMENT NOT REQUESTED August 20, 2015

REFERENCE TO THE PARTIES

Appellant The City of Houston, Texas, will be referred to as “the City.”

Appellee, Ken Paxton, Attorney General of Texas, will be referred to as “the

Attorney General.”

REFERENCES TO THE RECORD

Clerk’s record will be referenced as: C.R. [Page]

Appendix will be referenced as: App. [Letter]

ii

TABLE OF CONTENTS

Reference to the Parties............................................................................................. ii

References to the Record .......................................................................................... ii

Table of Contents ..................................................................................................... iii

Index of Authorities ................................................................................................. iii

Statement Regarding Oral Argument ..................................................................... vii

Issues Presented ...................................................................................................... vii

Introduction ................................................................................................................1

Statement of Facts ......................................................................................................2

Procedural History .....................................................................................................5

Summary of the Argument.........................................................................................6

Standard of Review ....................................................................................................8

Argument....................................................................................................................8

I. The Information at Issue is not Excepted from Required Disclosure Under

Texas Rule of Evidence 503 because it does not Consist of Confidential

Attorney-Client Communications.................................................................... 8

A. Texas Rule of Evidence 503 enacts the attorney-client privilege ......... 8

1 The communication must have been intended to be—and must

remain—confidential ..................................................................9

2. An employee may act as a “representative of the client” for

purposes of Rule 503 when the confidential communication

occurs within the scope of his employment ..............................10

3. The privilege is construed narrowly and the burden of

demonstrating its applicability is carried by its proponent .......11

B. The City has neither met its burden under Rule 503 nor the PIA ....... 12

iii

1. The face of the documents demonstrates the administrative

statements were not intended to be kept confidential ...............12

2. The face of one document indicates the sworn administrative

statement was not offered within the affiant employee’s “course

of employment.”........................................................................14

3. Nothing in the record suggests the employees offered the sworn

statements for the purpose of facilitating the rendition of legal

services to the City ....................................................................16

II. The City may not Withhold the Requested Administrative Statements

Pursuant to the Attorney-Client Privilege and this Court’s Holding in

Harlandale Simply because the Statements were Attached to an Attorney-

Client Privileged Report ................................................................................ 18

A. The Court’s holding in Harlandale applies when an attorney-client

privileged report is requested in its entirety ........................................ 19

B. The instant case is distinguishable from Harlandale and other cases

cited by the City because the administrative statements at issue were

specifically requested and were never cloaked by privilege ............... 20

C. The expansive reading of Harlandale proposed by the City would

threaten public access to information about the official acts of public

employees ............................................................................................ 23

Conclusion and Prayer .............................................................................................24

Certificate of Compliance ........................................................................................26

Certificate of Service ...............................................................................................27

iv

INDEX OF AUTHORITIES

CASES

Better Gov’t Bureau v. McGraw (In re Allen),

106 F.3d 582 (4th Cir. W. Va. 1997) .......................................................................22

Garrity v. State of N.J.,

385 U.S. 493 (1967) .................................................................................................16

Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s London,

327 S.W.3d 118 (Tex. 2010) ......................................................................................7

Harlandale Independent School District v. Cornyn,

25 S.W.3d 328 (Tex. App.—Austin 2000, pet. denied) .................................... 18-20

Huie v. DeShazo,

922 S.W.2d 920 (Tex. 1996) ................................................................................9, 11

In re E.I. DuPont de Nemours & Co.,

136 S.W.3d 218 (Tex. 2004) ............................................................................. 10, 15

In re USA Waste Mgmt. Res., L.L.C.,

387 S.W.3d 92 (Tex. App.—Houston [14th Dist.] 2012, orig. proceeding) .... 10, 15

In re XL Specialty Ins. Co.,

373 S.W.3d 46 (Tex. 2012) ........................................................................... 9, 12, 13

Jordan v. Ct. of Appeals for the Fourth Supreme Judicial Dist.,

701 S.W.2d 644 (Tex. 1985) ....................................................................................18

State ex rel. Curry v. Walker,

873 S.W.2d 379 (Tex. 1994) ....................................................................................21

Tex. Dep’t of Mental Health & Mental Retardation v. Davis,

775 S.W.2d 467 (Tex. App.—Austin 1989, no writ) ..............................................11

Tex. Dep’t Pub. Safety v. Abbott,

310 S.W.3d 670 (Tex. App.—Austin 2010, no pet.) .................................................7

Tex. State Bd. of Chiropractic Exam’rs v. Abbott,

391 S.W.3d 343 (Tex. App.—Austin 2013, no pet.) .................................. 11, 18, 23

v

Thomas v. Cornyn,

71 S.W.3d 473 (Tex. App.—Austin 2002, no pet.) .......................................... 11, 24

Upjohn Co. v. United States,

449 U.S. 383 (1981) .................................................................................... 15, 16, 22

West v. Solito, 563 S.W.2d 240 (Tex. 1978) ........................................................9, 17

STATUTES

Tex. Gov't Code

Public Information Act

§ 552.001 ..................................................................................................................24

§ 552.001(a) .............................................................................................................21

§ 552.006 ..................................................................................................................24

§ 552.007(b) .............................................................................................................13

§ 552.301 ....................................................................................................................3

§ 552.324 ....................................................................................................................5

RULES

Tex. R. Evid.

503(a)(2)....................................................................................................... 11, 15-17

503(b) .........................................................................................................................9

511(a)(1)...................................................................................................................14

LEGISLATIVE HISTORY

Act of May 17, 2013, 83d Leg., R.S., ch. 461,

§ 1, 2013 Tex. Gen. Laws 1293 .................................................................................4

vi

STATEMENT REGARDING ORAL ARGUMENT

The Attorney General does not request oral argument. But the Attorney

General would like the opportunity to present oral argument if the Court grants

Appellant’s request for oral argument or otherwise determines that oral argument is

necessary to help clarify the issue before the Court.

ISSUES PRESENTED

1. Does Texas Rule of Evidence 503 make confidential as attorney-client

privileged the sworn administrative statement of a city employee that is

provided to a city investigator where the employee is the subject of the

misconduct investigation, is free to share the statement with his own

attorney, or is admonished that he is not required to make the statement as a

condition of his employment?

2. May a governmental body withhold a requested document consisting of

public information not otherwise excepted from required disclosure under

the Public Information Act simply because the non-privileged document was

later attached to an attorney-client privileged report?

vii

CASE NO. 03-15-00093-CV

IN THE COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS

AUSTIN, TEXAS

THE CITY OF HOUSTON, TEXAS,

Appellant,

v.

KEN PAXTON, ATTORNEY GENERAL OF TEXAS,

Appellee.

On Appeal from the 250th District Court of Travis County, Texas

The Honorable Stephen Yelenosky, Presiding

BRIEF OF APPELLEE KEN PAXTON,

ATTORNEY GENERAL OF TEXAS

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

INTRODUCTION

Texas courts have found that exceptions to mandatory disclosure under the

Texas Public Information Act (the PIA) are to be narrowly construed. Similarly,

Texas courts narrowly construe application of the attorney-client privilege to

include only those situations where a client seeks the rendition of legal services

from an attorney and circumstances indicate an intention that the communication

be made in confidence and remain confidential.

But here the City asks the Court to instead expansively construe the

attorney-client privilege to include sworn administrative statements provided to an

investigator from the City’s Office of the Inspector General (OIG) by City

employees being investigated for misconduct—despite the fact that the employees

were explicitly admonished they were free to discuss the communication and share

the sworn statement with their own legal counsel or were not required to provide

the statement as a condition of the employee’s employment. Barring such a

finding, the City alternatively argues these non-privileged statements are

nonetheless excepted from required public disclosure simply because the

statements were later attached to a privileged OIG report.

The City’s argument demands an expansive interpretation of the privilege

that is not supported by Texas law. Because the City has failed to demonstrate the

attorney-client privilege protects the requested administrative statements from

required public disclosure, the Attorney General asks the Court to affirm the

judgment of the trial court.

STATEMENT OF FACTS

This is an appeal from the final judgment in a lawsuit brought under the PIA,

as authorized by section 552.324 of the Government Code. The City received an

open records request for several categories of information relating to an OIG

internal investigation, including written statements made by “parties involved in

2

this matter.” C.R. 6–7. The requestor identified herself as legal counsel for one of

the City employees who were the subjects of the OIG investigation. Id. The City

declined to release the requested information and instead sought an open records

ruling from the Attorney General. C.R. 8–11; Tex. Gov’t Code § 552.301. In its

briefing, the City asserted the requested information pertained to a completed OIG

investigation and contained “communications to and from employees of the OIG in

their capacity as attorney representatives and various City employees in their

capacity as clients and client representatives.” C.R. 9. The City argued the

entirety of the requested records thus consisted of privileged attorney-client

communications protected under Texas Rule of Evidence 503. Id.

The City alternatively argued the requested information was excepted from

required disclosure pursuant to the law enforcement exception, section 552.108 of

the Government Code. C.R. 9–10. While acknowledging “Section 552.108, by its

terms, applies only to a law enforcement agency or a prosecutor[,]” the City argued

the information was nonetheless subject to the law enforcement exception because:

The OIG’s primary investigatory function extends into enforcement

by way of the provision of information related to potential violations

of local, state, or federal law to the municipal prosecutor, the Houston

Police Department, the Harris County District Attorney’s Office, or

other public law enforcement authorities as appropriate. As such, the

City believes that the OIG is a law enforcement agency and that its

records are subject to section 552.108.

3

C.R. 10 (emphasis added). The City concluded “OIG advises that the [requested

information] pertains to the investigation of a potential crime and that the release

of said information would interfere with the detection, investigation, or prosecution

of crime.” Id.

The Attorney General issued Open Records Letter Ruling OR2014-02684 in

response to the City’s request. C.R. 46–50. The Attorney General determined that

most of the requested information was excepted from disclosure pursuant to Texas

Rule of Evidence 503; however, the Attorney General identified portions of the

requested information as consisting of communications with non-privileged

parties. C.R. 48; see Def.’s Ex. C (information at issue).1 Because these non-

privileged statements were specifically requested and existed separate and apart

from the completed OIG report to which they were later attached, the Attorney

General determined they were not subject to the attorney-client privilege. Id.

Further, the Attorney General found the law enforcement exception did not apply

to this remaining information because the documents related only to a “completed

1

The portion of the requested information determined to be public information by the Attorney

General and identified by the City as being at issue in this lawsuit was labeled “Information at

Issue” and was presented to the trial court for in camera inspection as Defendant’s Exhibit C.

C.R. 55. This exhibit was preserved by the trial court clerk and was forwarded to the Court for

review in relation to this appeal but was not made part of the Clerk’s record, so as to avoid any

disclosure of the information that would moot the controversy. This practice of submitting

information at issue in a PIA lawsuit for review by the trial court and any reviewing courts of

appeal is codified at section 552.3221 of the Government Code. See Act of May 17, 2013, 83d

Leg., R.S., ch. 461, § 1, 2013 Tex. Gen. Laws 1293 (codified at Tex. Gov’t Code § 552.3221). In

this brief, the Attorney General will refer to the information at issue as “Def.’s Ex. C,” followed

by the relevant page number(s).

4

investigation that [was] purely administrative in nature” and the City “[did] not

provide any arguments explaining how the internal investigation resulted in a

criminal investigation or prosecution.” C.R. 49. Accordingly, the Attorney General

directed the City to release the non-privileged communications to the requestor.

Id.

Procedural History

The City filed timely suit against the Attorney General in Travis County

district court challenging letter ruling OR2014-02684, to the extent the ruling

found the requested information was not subject to Texas Rule of Evidence 503.

C.R. 3–5; Tex. Gov’t Code § 552.324. The City did not challenge the Attorney

General’s determination under section 552.108 of the Government Code. C.R. 5.

The parties filed cross-motions for summary judgment. The City argued the

information at issue consisted of attorney-client privileged information protected

under Rule 503. C.R. 56–79 (The City of Houston’s Cross-Motion for Summary

Judgment), 85–90 (The City of Houston’s Response to Defendant’s Cross-Motion

for Summary Judgment). The Attorney General argued the information at issue

was not privileged and should be released in accordance with the letter ruling.

C.R. 33–55 (Defendant’s Cross-Motion for Summary Judgment), 80–84

(Defendant’s Response to Plaintiff’s Cross-Motion for Summary Judgment).

5

After a hearing on the parties’ cross-motions, the trial court granted the

Attorney General’s motion and denied the City’s motion, ordering “the information

at issue is not privileged pursuant to Rule 503 of the Texas Rules of Evidence and

the City must disclose this information to the requestor.” C.R. 91–92. The City

then filed a motion for new trial. C.R. 93–98. The trial court denied the City’s

motion. C.R. 103–05. The City timely filed notice of appeal, and this proceeding

followed.2 C.R. 106–10.

SUMMARY OF THE ARGUMENT

The information at issue in this suit consists of the sworn administrative

statements of two City employees whose actions were under investigation by the

City’s Office of Inspector General. The face of the documents shows the

employees were admonished that they were free to disclose the administrative

statement to their own legal counsel. Additionally, one employee was admonished

that he was not required to make a statement as a condition of his employment with

the City. Thus, the statements were never intended to remain confidential and at

least in one instance the statement was not made as a condition of employment.

2

The Attorney General notes that it appears the City has dropped its challenge to a portion of

what was originally before the trial court as the “Information at Issue,” which the Attorney

General refers to in this brief as Def.’s Ex. C. That packet consists of twenty-eight pages, bates-

marked AG Jenkins(Brooks)00001–00028. According to the City’s brief, the City appeals the

trial court’s judgment only as to Jenkins(Brooks)00008–00014 and Jenkins(Brooks)00024–

00028. Appellant’s Br. at 4. The Attorney General assumes the City has released the remaining

information to the requestor.

6

Consequently, these statements are not privileged pursuant to Texas Rule of

Evidence 503. Moreover, these non-privileged statements, when individually

requested under the PIA, do not become privileged and excepted from required

disclosure simply by virtue of having been attached as exhibits to a privileged OIG

report. The requested administrative statements are subject to required public

disclosure and accordingly the judgment of the trial court should be affirmed.

STANDARD OF REVIEW

When both sides move for summary judgment, a reviewing court considers

both sides’ summary-judgment evidence, determines all questions presented, and

renders the judgment the trial court should have rendered. Gilbert Tex. Constr.,

L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118, 124 (Tex. 2010) (citing

Embrey v. Royal Ins. Co. of Am., 22 S.W.3d 414, 415–16 (Tex. 2000)). A trial

court’s determination regarding whether information is public and subject to

required disclosure under the PIA is a question of law that is reviewed de novo.

Tex. Dep’t Pub. Safety v. Abbott, 310 S.W.3d 670, 673 (Tex. App.—Austin 2010,

no pet.) (citing City of Garland v. Dallas Morning News, 22 S.W.3d 351, 357 (Tex.

2000)).

7

ARGUMENT

I. THE INFORMATION AT ISSUE IS NOT EXCEPTED FROM

REQUIRED DISCLOSURE UNDER TEXAS RULE OF EVIDENCE

503 BECAUSE IT DOES NOT CONSIST OF CONFIDENTIAL

ATTORNEY-CLIENT COMMUNICATIONS.

The City asserts the two sworn administrative statements at issue are

privileged attorney-client communications subject to Texas Rule of Evidence 503

because the employees who provided the statements were cooperating with the

OIG investigation pursuant to City policy and the communications were intended

to remain confidential. Appellant’s Br. at 18–21. But because the employees were

free to disclose the statement to their own legal counsel, because an employee was

admonished that the statement was not a requirement of his employment, and

because there is no evidence the employees believed they were helping to facilitate

the rendition of professional legal services to the City, neither employee was acting

as a “representative of the client” for purposes of Rule 503 and the City has failed

to meet its burden of demonstrating the information at issue is attorney-client

privileged or otherwise excepted from required public disclosure under the PIA.

The trial court’s ruling should be affirmed.

A. Texas Rule of Evidence 503 enacts the attorney-client privilege.

The attorney-client privilege excepts from disclosure certain

communications between client and attorney, when the communications are

intended to and remain confidential and are made for the purpose of facilitating the

8

rendition of professional legal services to the client. Tex. R. Evid. 503(b); see

Huie v. DeShazo, 922 S.W.2d 920, 922 (Tex. 1996). The intention of the privilege

is to allow “unrestrained communication and contact between an attorney and

client in all matters in which the attorney’s professional advice or services are

sought, without fear that these confidential communications will be disclosed by

the attorney, voluntarily or involuntarily, in any legal proceeding.” West v. Solito,

563 S.W.2d 240, 245 (Tex. 1978).

1. The communication must have been intended to be—and

must remain—confidential.

A communication is “confidential” for purposes of Rule 503 if it is not

intended to be disclosed to third persons other than those to whom disclosure is

made in furtherance of the rendition of professional legal services to the client or

those reasonably necessary for the transmission of the communication. Tex. R.

Evid. 503(a)(5). Generally speaking, communication with outside counsel or any

other third party will waive the privilege. See In re XL Specialty Ins. Co., 373

S.W.3d 46, 49–50 (Tex. 2012). The only exceptions for communication with

outside counsel exist where the proponent of the privilege can demonstrate the

separately-represented parties share either a joint defense in litigation or, outside of

litigation, otherwise share a “mutual” or “common interest” with nonlitigating

persons. Id.

9

2. An employee may act as a “representative of the client” for

purposes of Rule 503 when the confidential communication

occurs within the scope of his employment.

The attorney-client privilege extends to a “representative of the client” only

if the representative is “a person having authority to obtain professional legal

services, or to act on advice thereby rendered, on behalf of the client,” or is “any

other person who, for the purpose of effectuating legal representation for the client,

makes or receives a confidential communication while acting in the scope of

employment for the client.” Tex. R. Evid. 503(a)(2). Texas courts have

interpreted this rule as adopting the common-law “subject matter test.” In re E.I.

DuPont de Nemours & Co., 136 S.W.3d 218, 225 n.3 (Tex. 2004). The subject

matter test expands the reach of the privilege beyond executives or supervisors to

other employees in the corporation and is met where (1) the employee makes the

communication at the direction of his superior and (2) the subject matter upon

which the attorney’s advice is sought and dealt with in the communication is the

performance of the employee’s duties.” Id. (citing Nat’l Tank Co. v. Brotherton,

851 S.W.2d 193, 198 (Tex. 1993)). Courts have found a communication to be

made “while acting in the scope of employment” when it occurs at the direction of

management and where the employee was required to cooperate as a condition of

employment. Tex. R. Evid. 503(a)(2); see, e.g., In re USA Waste Mgmt. Res.,

L.L.C., 387 S.W.3d 92, 97 (Tex. App.—Houston [14th Dist.] 2012, orig.

10

proceeding) (“[Party seeking to defeat privilege] failed to dispute that Waste

Management requires all employees, as a condition of their employment, to fully

cooperate in any investigation of a violation of their anti-violence policy.”).

3. The privilege is construed narrowly and the burden of

demonstrating its applicability is carried by its proponent.

The party resisting discovery bears the burden of demonstrating the

applicability of any claimed privilege. Huie, 922 S.W.2d at 926 (citing State v.

Lowry, 802 S.W.2d 669, 671 (Tex. 1991)). Because it tends to prevent full

disclosure of the truth, this Court has narrowly construed application of the

attorney-client privilege. Tex. Dep’t of Mental Health & Mental Retardation v.

Davis, 775 S.W.2d 467, 473 (Tex. App.—Austin 1989, no writ).

Similarly, a governmental body seeking to withhold information under the

PIA bears the burden of establishing that an exception to public disclosure applies.

Thomas v. Cornyn, 71 S.W.3d 473, 480–81 (Tex. App.—Austin 2002, no pet.).

Moreover, exceptions to the disclosure requirement of the PIA are “narrowly

construed.” Tex. State Bd. of Chiropractic Exam’rs v. Abbott, 391 S.W.3d 343,

347 (Tex. App.—Austin 2013, no pet.) (citing Arlington Indep. Sch. Dist. v. Tex.

Attorney Gen., 37 S.W.3d 152, 157 (Tex. App.—Austin 2001, no pet.)). As

explained below, the City has failed to demonstrate the information at issue

consists of confidential communications, made while the employees were acting in

11

the scope of their employment and for the purpose of facilitating the rendition of

legal services to the City. Consequently, the City has failed to meet its burden

under Rule 503 and as required by the PIA.

B. The City has neither met its burden under Rule 503 nor the PIA.

The record before the Court demonstrates the administrative statements at

issue were never intended to be kept confidential, in at least one instance was not

made in the scope of the affiant’s employment with the City, and were not offered

for the purpose of facilitating the rendition of legal services to the City.

1. The face of the documents demonstrates the administrative

statements were not intended to be kept confidential.

As explained above, only confidential communications between attorney and

client are protected under the privilege. Tex. R. Evid. 503(a)(5); In re XL Specialty

Ins. Co., 373 S.W.3d at 49–50. The City claims it “took steps to ensure and

maintain the confidentiality of the communications.” Appellant’s Br. at 19. But

this assertion is contradicted by the face of the documents in question. Each

administrative statement contains a number of admonishments, each which the

affiant must individually assent to by placing his initials next to the statement in

question. Def.’s Ex. C at 8, 24. The fourth admonishment clearly states that the

affiant is free to discuss and share the written statement with his own legal

representative:

12

All parties are hereby notified that any dissemination, distribution,

copying, or use of or reliance upon the information contained in this

document by or to anyone other than the recipient and/or his/her

attorney in the above referenced OIG case is unauthorized and

strictly prohibited by law and city policy. You are hereby ordered by

the Inspector General, as authorized by Executive Order 1-39 Section

5.7, not to discuss the investigation with anyone except your legal

representative, and you are further ordered not to distribute, review

and/or share administrative statements with anyone other than your

attorney.

Id. (emphasis added).

Thus, at the time the statement is made the City clearly communicates to the

affiant that—while sharing with coworkers or others is unauthorized by City

policy—the affiant may discuss and distribute the sworn statement to his own

attorney, a non-privileged individual. Further, the City has failed to demonstrate or

even allege that any exception to the requirement of strict confidentiality under the

Rule is applicable here, such as a joint defense in litigation or a shared mutual

interest with the target individuals or their legal counsel. See In re XL Specialty

Ins. Co., 373 S.W.3d at 49–50. While the City acknowledges the text of the

admonishment, it makes no effort to explain how the sharing of the administrative

statement with the affiant’s own counsel would maintain the purportedly intended

confidentiality of the statement. Appellant’s Br. at 19.

The cloak of the privilege cannot be selectively applied. Tex. Gov’t Code

§ 552.007(b) (public information voluntarily made available must be made

13

available to any person); Tex. R. Evid. 511(a)(1) (consent to disclosure waives

privilege). These statements were never “intended” to be confidential. Quite the

opposite; the admonishments on the face of the documents, and to which the City

required the employees assent, demonstrate the City contemplated the

communication would be shared with non-privileged parties. Thus, no confidential

relationship was established and the privilege never attached. Tex. R. Evid.

503(a)(5). The City has failed to meet its burden on this point.

2. The face of one document indicates the sworn

administrative statement was not offered within the affiant

employee’s “course of employment.”

Not only has the City failed to demonstrate the statements were intended to

be kept confidential, in one case it has additionally failed to establish the statement

was made by the affiant employee “while acting in the scope of employment for”

the City. See Tex. R. Evid. 503(a)(2). Again, the City’s argument is contradicted

by the text of the sworn admonishment, which states the employee is under no

requirement of his employment to make the statement to the OIG investigator:

I, [Affiant], furnished the following statement free and voluntarily to

[Investigator] of the Office of Inspector General. No threats,

monetary benefits, or promises of any kind were used to induce this

statement. I understand that I was NOT required to furnish this

statement as a condition of my employment with the city of Houston.

Def.’s Ex. C at 8 (emphasis in original).

14

Consequently, in at least one instance the affiant employee was explicitly

not acting “in the scope of employment” for the City, as required by the Rule. See

Tex. Rule Evid. 503(a)(2). Rather, this employee was voluntarily offering a sworn

statement—in his position as a suspect of misconduct in an OIG investigation—to

an OIG investigator. Thus the situation in the instant case is distinguishable from

the cases cited by the City, where employees were instructed by management to

speak with counsel as a requirement of their employment. See In re USA Waste

Mgmt. Res., 387 S.W.3d at 97 (employees required to cooperate with investigation

as condition of employment); In re E.I. DuPont de Nemours & Co., 136 S.W.3d at

225 n.3 (statement must be directed by superior); Upjohn Co. v. United States, 449

U.S. 383, 394 (1981) (privileged statements made “at the direction of corporate

superiors”).

The City merely dismisses as “boilerplate” the admonishment that the

employee “was NOT required to furnish this statement as a condition of [his]

employment with the city of Houston.” Appellant’s Br. at 20. This explanation

neither aids the City in meeting its burden under the Rule, nor does it explain why

the City required the employee’s assent to this provision if the City did not believe

it to be accurate.3 If the purpose of the attorney-client privilege is to be served, the

3

The more likely reason these statements were not compelled in the course of employment is that

these employees were the subjects of the investigation and—as the City notes—it views the OIG

as a “law enforcement agency” with a duty to turn over evidence of illegal behavior to the

15

attorney and client must be certain whether a communication is protected.4 See

Upjohn, 449 U.S. at 393. Consequently, the record shows this statement was

neither intended to be kept confidential nor made by an employee acting as

representative for the City.5 The trial court’s ruling should be affirmed.

3. Nothing in the record suggests the employees offered the

sworn statements for the purpose of facilitating the

rendition of legal services to the City.

Finally, and in addition to its failure to demonstrate these administrative

statements were intended to be confidential, the City has not demonstrated the

statements were offered with an understanding they were being made for the

purpose of effectuating legal representation for the City. See Tex. R. Evid.

503(a)(2) (statement must be given “for the purposes of effectuating legal

representation for client”); see also Upjohn, 449 U.S. at 394 (“The

communications concerned matters within the scope of the employees’ corporate

duties, and the employees themselves were sufficiently aware that they were being

appropriate authorities. See C.R. 10, 15. Mandating potentially-incriminating statements be

offered without promise of immunity would likely run afoul of the Fourteenth Amendment to the

U.S. Constitution. See Garrity v. State of N.J., 385 U.S. 493, 500 (1967) (government employer

cannot threaten removal from employment for failure to offer incriminating statement).

4

The Attorney General has accepted the applicability of the admonishments on the face of the

document as uncontroverted. But if the City now asserts one of the admonishments to which it

required assent was superfluous boilerplate, it brings into question the effectiveness of the

remaining admonishments it wishes to use to support its arguments. See Appellant’s Br. at 19.

5

Although the second administrative statement at issue does not contain this part of the

admonishment, it nonetheless clearly states the employee is free to share the statement with his

own counsel. Def.’s Ex. C at 24.

16

questioned in order that the corporation could obtain legal advice.”). Here the

situation is far more analogous to a suspect offering a voluntary statement to an

investigator.

As noted above, the City views the OIG as a sort of “law enforcement”

entity. C.R. 10. The OIG has the discretion to turn over findings to the City police

department or the Harris County District Attorney—a fact surely not lost upon an

employee suspected of misconduct.6 See C.R. 15. The admonishment page each

employee affiant must sign identifies the attorney as an “OIG investigator,” not as

legal counsel for the City. Def.’s Ex. C at 8. And far from offering the employee a

feeling that a statement can be made “without fear” the communication will be

disclosed by the investigator “in any legal proceeding,”7 the employee is threatened

with criminal perjury for failing to testify truthfully. Id. In short, the record is

bereft of any proof that the employees whose actions were being investigated by

the OIG had any reason to believe they were offering—as a condition of

employment—a confidential, privileged statement to an attorney for the purposes

of effectuating legal representation for the City.8

6

Indeed, the threat of OIG investigators turning their findings over to City police department or

local district attorney makes this claim even more nonsensical. At that point the City would be

insisting it maintained statements privileged amongst both criminal investigators on one hand

and the criminal suspects’ attorneys on the other.

7

West v. Solito, 563 S.W.2d at 245.

8

Furthermore, the executive order establishing the OIG—as well as the City’s own description

of the OIG as a “law enforcement” entity—raises a question as to whether the OIG conducts

17

“The burden of proof to establish the existence of a privilege rests on the one

asserting it.” Jordan v. Ct. of Appeals for the Fourth Supreme Judicial Dist., 701

S.W.2d 644, 648–49 (Tex. 1985). Exceptions to the disclosure requirement of the

PIA are to be narrowly construed. Tex. State Bd. of Chiropractic Exam’rs, 391

S.W.3d at 347. The City has failed to demonstrate the sworn administrative

statements in question are protected by the attorney-client privilege. The Court

should reject the City’s arguments and affirm the judgment of the trial court.

II. THE CITY MAY NOT WITHHOLD THE REQUESTED

ADMINISTRATIVE STATEMENTS PURSUANT TO THE

ATTORNEY-CLIENT PRIVILEGE AND THIS COURT’S HOLDING

IN HARLANDALE SIMPLY BECAUSE THE STATEMENTS WERE

ATTACHED TO AN ATTORNEY-CLIENT PRIVILEGED REPORT.

Barring a finding by the Court that the administrative statements at issue are

independently protected under Rule 503, the City alternatively insists such

statements would nonetheless be protected pursuant to this Court’s decision in

Harlandale Independent School District v. Cornyn, 25 S.W.3d 328 (Tex. App.—

Austin 2000, pet. denied). Appellant’s Br. at 13–14. But the City’s reading of

Harlandale would allow for a governmental body to withhold nearly any record

investigations primarily for the purpose of rendering legal advice to the City versus simply acting

as an independent investigator that is not compelled to maintain privity with the City and in fact

is free to turn over its findings to outside entities such as the Harris County District Attorney, at

its own discretion. The executive order seems to indicate it is in fact the OIG that determines

what information may be divulged, and to whom, rather than the City as “client” making such

decisions. C.R. 14–18.

18

otherwise subject to required public disclosure under the PIA simply by attaching

the record to a privileged attorney report.

A. The Court’s holding in Harlandale applies when an attorney-

client privileged report is requested in its entirety.

Prior to Harlandale, the Attorney General found that factual information

compiled by an attorney acting as an investigator for a governmental body was not

protected as attorney-client privileged for purposes of the PIA. Harlandale, 25

S.W.3d at 330. Accordingly, when a governmental body received a request for a

final investigative report compiled by an attorney acting as investigator on behalf

of a governmental body, the Attorney General found the government may withhold

only those portions of the requested report consisting of legal advice or opinions.

Id. In Harlandale, the plaintiff school district hired an outside attorney to

investigate a grievance filed by an employee arising out of a sexual harassment

investigation. Id. at 329–30. In hiring the outside attorney, the district sought an

analysis of the “legal liabilities and consequences facing the School District and

the Board of Trustees.” Id. at 330. The district subsequently received a PIA

request for the “written report and the exhibits attached to the report.” Id. The

trial court agreed with the Attorney General that only those portions of the report

consisting of legal advice and opinion were excepted from required public

disclosure. Id. at 330–31. The district appealed from the Attorney General’s letter

19

ruling and the judgment of the trial court, arguing the entire report was protected

by privilege. Id. at 331.

This Court reversed the trial court’s judgment, concluding “Harlandale

proved as a matter of law that an exception to disclosure applies to [the attorney’s]

entire report.” Id. at 333. The Court reasoned that because the school district

retained counsel to “conduct an investigation in her capacity as an attorney” and

because she was hired to deliver a “legal opinion based upon an investigation of

relevant facts,” the attorney-client privilege excepted the entire report from

disclosure and “not just the portions designated as her legal analysis and

recommendations.” Id. at 333–34.

B. The instant case is distinguishable from Harlandale and other

cases cited by the City because the administrative statements at

issue were specifically requested and were never cloaked by

privilege.

The Attorney General agrees the entirety of the report would be excepted

from disclosure if requested under the PIA, in accordance with Harlandale. But

here, in addition to seeking the underlying investigative report, the requestor

specifically and individually requested the statements of the individuals who were

the subjects of the OIG’s investigation. C.R. 6. Because these statements were

gathered during the course of the OIG investigation prior to the creation of the OIG

final investigative report—and were specifically and individually requested—the

20

Attorney General asserts the City must release the administrative statements

because they are not independently excepted from required public disclosure under

the PIA.9

The City claims the Attorney General is attempting to utilize the

“piecemeal” approach rejected by Harlandale. Appellant’s Br. at 13–14. But the

instant case is distinguishable from the facts of Harlandale because here the

statements were specifically and individually requested, and the statements exist

separate and apart from the OIG’s final report to which they were later attached, as

opposed to Harlandale where only the report and unspecified exhibits were

requested. C.R. 6; 25 S.W.3d at 330. And as demonstrated above, these records

document non-privileged statements, not otherwise excepted from disclosure under

the PIA. The request happened to seek the statements after they were attached to

the report. The timing of a request cannot be determinative of the confidentiality

of information about the affairs of government. Tex. Gov’t Code § 552.001(a)

(declaring the policy of Texas that “each person is entitled, unless otherwise

expressly provided by law, at all times to complete information about the affairs of

government”).

9

This treatment is similar to how the Supreme Court has approached a request for a prosecutor’s

litigation file. While particular items contained within the file, such as a completed police report,

may be subject to required disclosure under the PIA when specifically requested, a request for

the entire litigation file will generally be viewed as “too broad” because disclosing the

organization of the entire file necessarily reveals the attorney’s thought processes. See State ex

rel. Curry v. Walker, 873 S.W.2d 379, 380 (Tex. 1994).

21

Moreover, the gathering of the communications at issue in the instant case is

distinguishable from the circumstances of the cases cited by the Court in

Harlandale. In re Allen concerned privileged communications and interviews

collected by an attorney-investigator during the course of an internal investigation.

Better Gov’t Bureau v. McGraw (In re Allen), 106 F.3d 582, 605 (4th Cir. W. Va.

1997) (“Therefore, the attorney-client privilege protects all communications

between Allen and the attorneys in the Attorney General’s Office that occurred in

connection with her investigation.”). Similarly, in Upjohn—the case upon which

the decision in In re Allen was based—the attorney-investigator’s communications

with company employees were found to be privileged because the employees were

acting in the scope of their employment, were aware they were aiding in the

rendition of legal services to their employer, and the company expressed an

intention for the communications to remain confidential. 449 U.S. at 394. But as

argued above, the communications at issue in this suit were never cloaked by

privilege because the suspect-employees being questioned were told they could

share the statements with non-privileged parties and because they were not acting

as a “representative of the client” or otherwise required to make the statement in

the course of employment with the City. The Attorney General urges the Court to

reject the City’s expansion of Harlandale.

22

C. The expansive reading of Harlandale proposed by the City would

threaten public access to information about the official acts of

public employees.

The perils of adopting the City’s expansive reading of the Court’s decision

are obvious. If Harlandale intended to protect as attorney-client privileged any

singular government record—specifically sought by a PIA requestor and not

independently subject to an explicit exception from disclosure—by virtue of the

fact that the record was appended as an attachment to a final investigation into

alleged government employee misconduct, then a massive loophole would exist by

which government could shut down public access to any factual information it so

desired simply by seeking legal advice from counsel and including such

information as an attachment to the attorney’s investigative report. The threat to

the public’s access to government information becomes even greater in situations

such as here, where one arm of the City is ostensibly providing “legal advice” to

another while also conducting an investigation into alleged government employee

malfeasance that may involve criminal violations of law.

As noted above, exceptions to the disclosure requirement of the PIA are to

be narrowly construed. Tex. State Bd. of Chiropractic Exam’rs v. Abbott, 391

S.W.3d at 347. And the City bears the burden of establishing an exception to

public disclosure applies to the requested information. See Thomas v. Cornyn, 71

S.W.3d at 480–81. Moreover, investigations into the acts of public officials go to

23

the primary purpose of liberal disclosure under the PIA. “[E]ach person is entitled

. . . to complete information about the affairs of government and the official acts of

public officials and employees . . . . The people insist on remaining informed so

that they may retain control over the instrument they have created.” Tex. Gov’t

Code § 552.001. While Harlandale does not require the City to identify for public

release those discrete portions of the final investigative report that are purely

factual in nature when the entire report is sought under the PIA, it does not follow

that any independently-requested item of factual and not otherwise privileged

information is excepted from required public disclosure simply because that item

was later appended to a privileged report.10 The Attorney General urges the Court

to reject the City’s argument and affirm the judgment of the trial court.

CONCLUSION AND PRAYER

The Attorney General respectfully asks the Court to affirm the judgment of

the trial court.

10

The City insists the administrative statements at issue should be protected by privilege because

the requestor can seek out the information from the affiants directly. This assurance is directly

contradicted by the City’s own summary judgment evidence below. C.R. 77 (City employee who

shares statement or discusses investigation commits misconduct). Moreover, the PIA does not

allow for the withholding of public records simply by virtue of the fact that the information

contained within such records might also be obtained through hiring legal counsel and procuring

a subpoena. Tex. Gov’t Code § 552.006 (PIA does not authorize withholding of public

information or limit availability of public information to public except as expressly provided).

24

Respectfully Submitted,

KEN PAXTON

Attorney General of Texas

CHARLES E. ROY

First Assistant Attorney General

JAMES E. DAVIS

Deputy Attorney General for Civil

Litigation

DAVID A. TALBOT, JR.

Chief, Administrative Law Division

KIMBERLY L. FUCHS

Chief, Open Records Litigation

/s/ Matthew R. Entsminger

MATTHEW R. ENTSMINGER

State Bar No. 24059723

Assistant Attorney General

Open Records Litigation

Administrative Law Division

Office of the Attorney General of Texas

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

Telephone: (512) 475-4151

Facsimile: (512) 320-0167

matthew.entsminger@texasattorneygeneral.gov

ATTORNEYS FOR APPELLEE KEN PAXTON,

ATTORNEY GENERAL OF TEXAS

25

CERTIFICATE OF COMPLIANCE

I certify that the Brief of Appellee Ken Paxton, Attorney General of Texas,

submitted complies with Rule 9 of the Texas Rules of Appellate Procedure and the

word count of this document is 5,048. The word processing software used to

prepare this filing and calculate the word count of the document is Microsoft Word

2013.

Date: August 20, 2015

/s/ Matthew R. Entsminger

MATTHEW R. ENTSMINGER

Attorney for Appellee

26

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Brief of

Appellee Ken Paxton, Attorney General of Texas, has been served on August 20,

2015, on the following counsel-of-record via e-service and e-mail:

Mary E. (“Mary Beth”) Stevenson

State Bar No. 24072366

Assistant City Attorney

City of Houston Legal Department

900 Bagby, 4th Floor

Houston, Texas 77002

Telephone: (832) 393-6491

Facsimile: (832) 393-6259

marybeth.stevenson@houstontx.gov

ATTORNEY FOR APPELLANT

/s/ Matthew R. Entsminger

MATTHEW R. ENTSMINGER

Attorney for Appellee

27