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Texas Department of Criminal Justice v. Levin

Court of Appeals of Texas, Third District, Austin

May 25, 2017

Texas Department of Criminal Justice, Appellant
Maurie Levin, Naomi Terr, and Hilary Sheard, Appellees


          Before Chief Justice Rose, Justices Pemberton and Bourland


          Bob Pemberton, Justice.

         This appeal concerns whether the common-law right to withhold "public information" from disclosure under the Public Information Act (PIA) when disclosure "would create a substantial threat of physical harm, " first recognized by the Texas Supreme Court in its Cox Texas Newspapers decision, [1] shields the identity of a supplier of the lethal-injection drugs Texas uses in executions. At least on this record, we conclude it does not.


         In the course of their legal representation of Texas death-row inmates, and against the backdrop of legal and policy controversy regarding so-called "botched" executions by lethal injection in other states, appellees made written requests of the Texas Department of Criminal Justice under the PIA for the agency's "execution protocol, " the drugs it uses in lethal injections, any results of testing on such drugs, and the drugs' source. TDCJ would eventually produce all of the information appellees requested except with regard to the drugs' source; it divulged only that the source is a licensed compounding pharmacy that is open to the public and located in an urban area of some Texas city. TDCJ requested a ruling from the Attorney General that it could withhold the specific identity of that pharmacy or pharmacist, [2] relying (as relevant to this appeal) on the Cox common-law protection against disclosure that would threaten physical harm. The Attorney General ruled that the Cox protection applied and required TDCJ to withhold the identifying information.[3] Appellees then sought judicial relief that included a writ of mandamus to compel disclosure, [4] arguing that the Cox protection was inapplicable. The parties agreed to present the merits of that issue for resolution through competing summary-judgment motions. The district court granted appellees' motion while denying TDCJ's. Following an agreed severance to make the summary-judgment rulings final, [5]TDCJ perfected this appeal.


         In two issues on appeal, TDCJ urges that the district court erred in granting summary judgment for appellees and that the court should have instead granted TDCJ's motion or, alternatively, denied both motions.

         Statutory and procedural context

         Through the PIA, the Texas Legislature has prioritized a "policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees, " in the view that "government is the servant and not the master of the people" and that "[t]he people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know, " but "insist on remaining informed so that they may retain control over the instruments they have created."[6] To that end, the PIA generally mandates that "public information" (a broadly defined category of information created or maintained incident to governmental functions)[7] must be made available by a governmental body upon request, [8] and cannot be withheld "except as expressly provided by [the Act]."[9] The Legislature has further instructed that the PIA "shall be liberally construed in favor of granting a request for information."[10] Reflecting these policies, the governmental body has the burden of proving that information is not subject to disclosure under the Act.[11]

         But as the Texas Supreme Court has emphasized recently, "liberal construction" under the PIA "is not tantamount to boundless reach, "[12] and the Act's express limitations include exceptions to the PIA's duty of disclosure-now dozens, in fact-that "embrace the understanding that the public's right to know is tempered by the individual and other interests at stake in disclosing that information."[13] Among these exceptions is Section 552.101, which excepts "information considered to be confidential by law, either constitutional, statutory, or by judicial decision."[14] The Texas Supreme Court has recognized that "information considered to be confidential . . . by judicial decision" has the effect of incorporating protections from the common law. As early as the 1970s, the supreme court held in the Industrial Foundation case that the substantively identical predecessor to Section 552.101 excepted information whose disclosure would violate one's common-law right to "privacy" in the sense of being left alone and free of unwarranted publicity.[15] The information is so shielded, the high court held, 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."[16] More recently, in the Cox decision, the Texas Supreme Court recognized a similar protection against PIA disclosure that is deemed to infringe the long-recognized common-law right to be free of physical harm, the same interest underlying the cause of action for battery.[17]

         The Legislature has tipped the balance back toward disclosure somewhat by providing, in Section 552.022 of the PIA, that the Act's exceptions shield certain specified categories of "public information" (commonly termed "core" or "super public" public information)[18] only to the extent such information is also "made confidential under this chapter [the PIA] or other law."[19] "'Other law'" for these purposes "includes other statutes, judicial decisions, and rules promulgated by the judiciary, "[20] and "'do[] not have to use the word 'confidential' to . . . impose confidentiality.'"[21] The common-law protections recognized in Cox and Industrial Foundation are considered to impose "confidentiality" in this sense, [22] so their applicability effectively obviates Section 552.022's enhanced access to "core" public information.

         There is no dispute that the identifying information at issue in this appeal is "public information" potentially subject to PIA mandatory disclosure, and would include at least some "core" public information.[23] The parties also agree that TDCJ, as the party resisting disclosure, has the burden of proving that the information is not subject to disclosure under the PIA. Finally, the parties each acknowledge that TDCJ could meet its burden here solely by proving the information is shielded by the Cox protection.

         The parties agreed to submit that controlling issue on cross-motions for summary judgment, as previously noted, and both motions relied on the "traditional" standard as applied to a common universe of summary-judgment evidence. We review summary-judgment rulings de novo.[24] Summary judgment is proper when there are no disputed issues of material fact and the movant is entitled to judgment as a matter of law.[25] We take as true any evidence favorable to the non-movant and indulge every reasonable inference and resolve any doubts in the non-movant's favor.[26] Where, as here, both sides move for summary judgment on overlapping issues and the trial court grants one motion and denies the other, we review the summary-judgment evidence presented by both sides, determine all questions presented, and render the judgment that the trial court should have rendered.[27]

         In the posture of this appeal, our analysis distills initially to whether, on this summary-judgment record, viewed in the light favorable to TDCJ, the Cox protection does not apply to the identifying information as a matter of law (i.e., the summary-judgment evidence does not present any genuine issue of material fact as to whether the protection would shield the identifying information).[28] If the evidence does not present such a fact issue, we affirm; if it does, we must reverse and next consider whether, viewing the summary-judgment evidence in the light favorable to appellees, the Cox protection applies as a matter of law (i.e., the evidence does not present any genuine issue of material fact to the contrary). If such a fact issue is present, we remand; if none, we render summary judgment for TDCJ.

         The parties accordingly focus their appellate advocacy on the summary-judgment evidence and the significance they perceive various items to have under Cox. Their arguments reflect divergent understandings of the Cox protection and how it is satisfied. Any meaningful analysis of the summary-judgment evidence must begin with a clear understanding of that legal yardstick.[29]

         The Cox protection

         In addition to holding that the common-law right to be free of physical harm made information "confidential" as against the PIA, the Cox court prescribed "the appropriate standard for assessing whether disclosure would violate that interest."[30] For this standard, the court looked to the PIA itself, reasoning that "[w]hile we are not bound by the Legislature's policy decisions when we consider protections afforded by the common law, 'the boundaries the Legislature has drawn do inform our decision.'"[31] The court borrowed from the same PIA exception that the Legislature had enacted immediately following this Court's decision in Cox, in which we had held that the travel vouchers were subject to PIA disclosure in the absence of any contrary precedents from the Texas Supreme Court as of that time.[32] That exception, now codified in PIA Section 552.152, states:

Information in the custody of a governmental body that relates to an employee or officer of the governmental body is excepted from the requirements of Section 552.021 if, under the specific circumstances pertaining to the employee or officer, disclosure of the information would subject the employee or officer to a substantial threat of physical harm.[33]

         With reference to that provision, the Cox court "conclude[d] that the 'substantial threat of physical harm' standard enunciated by the Legislature appropriately describes the interest protected under the common law, and information may be withheld if disclosure would create a substantial threat of physical harm."[34]

         Because Texas law had never previously recognized this "common law physical safety exception to the PIA"[35] and the case had been tried under legal theories that the supreme court termed "close, but not identical, to the standard we announce today for the common law right of physical safety, "[36] the court remanded the case to the trial court in the interest of justice.[37] However, the supreme court gave direction regarding the proceedings on remand, and this and other aspects of its opinion further illuminate the parameters of its new standard, especially when viewed in the context of the evidence in the appellate record before it.

         In responding to arguments advanced by the concurrence, the Cox court made clear that the standard it announced-"information may be withheld if disclosure would create a substantial threat of physical harm"[38]-contemplated "disclosure" (which, under the PIA, is tantamount to public availability[39]) "creating" a threat of harm less in the sense of any inherent quality of the information at issue than one presented through the potential uses of the information by members of the public.[40] Such a threat is necessarily a function of: (1) the existence of an underlying threat that some person or persons will inflict physical harm upon another; and (2) the propensity for the particular information in question to be used, if made publicly available in the context of the underlying threat, to bring about that outcome. These relationships are stated more explicitly in the PIA exception from which the Cox court derived its standard, which refers to whether, "under the specific circumstances pertaining to the employee or officer, disclosure of the information would subject the employee or officer to a substantial threat of physical harm."[41]

         DPS had presented evidence of both components of a threat of physical harm "created" by PIA disclosure, albeit in an effort to invoke legal protections that differed somewhat from the one eventually announced by the supreme court. DPS had relied-and successfully, at least before the Attorney General-upon a "special circumstances" aspect of common-law privacy that the Attorney General had recognized in several decades' worth of open-records decisions and rulings.[42] Under this standard, information could be withheld "under [S]ection 552.101 in conjunction with common law privacy" where disclosure was determined to create "'an imminent threat of physical danger, '" as contrasted with "'a generalized and speculative fear of harassment or retribution.'"[43] Alternatively, DPS attempted to invoke a claimed constitutional privacy right, recognized in a Sixth Circuit decision, entitling government to withhold information where release "places an individual at substantial risk of serious bodily harm, possibly even death, from a perceived likely threat."[44] To support these asserted bases for withholding the vouchers after being challenged in court, DPS had presented live testimony from the supervisor of the Governor's protective detail, Lieutenant David Armistead.[45]

         Lt. Armistead attested to an underlying risk of physical harm faced by the Governor (then Honorable Rick Perry) and his family. Among other facts, Armistead explained that DPS had compiled "file cabinet after file cabinet after file cabinet of threats" made against Governor Perry or his family, including explicit death threats, to an extent that DPS had assigned an agent to work solely on investigating these threats. He added that Governor Perry had two "stalkers" as well. Armistead further indicated that the Governor regularly received threats in connection with his travels, observing in this regard that "our position on the death penalty" in particular tended to "garner a lot of attention, " especially when traveling internationally. Armistead also recounted an incident in which an individual had emailed an explicit death threat while the Governor was traveling in another state, and that subsequent investigation had determined that the sender had been a mere twenty miles from the Governor at the time.

         Armistead also gave testimony tending to establish that disclosing the vouchers' contents would, in the context of the underlying threat of physical harm, compromise the physical safety that the security detail provided the Governor and family. He explained that persons intending to "target" a public figure like the Governor would seek "information to their tactical advantage, " including "consistencies and patterns in movements and methods of movements, " "patterns with security officers[, ] . . . how many are placed[, ] . . . what positions they are[, ] and how far in advance they go to look at a site prior to the protected individual's arrival." Armistead maintained that this sort of information could be discerned from examining the vouchers, and the vouchers themselves were also before the trial court through in camera submission.

         In giving guidance for proceedings on remand, the Cox court did not question the evidence regarding the existence or extent of an underlying threat of physical harm faced by the Governor and his family.[46] Instead, its focus was entirely on the second variable, proof regarding the effects of disclosing the vouchers in the context of that underlying threat.[47] The Cox court observed that the vouchers "divulge the number of officers the DPS deemed necessary for the governor's security, the specific location (hotel and room number) where the officers resided when providing that security, and the identity of each officer the Department assigned to the governor's protection."[48] These contents, the court indicated, demonstrated that "DPS is likely correct in one sense: disclosure of some of the information in the vouchers may create a substantial threat of physical harm because it reveals specific details about the number of officers assigned to protect the governor, their general location in relation to him, and their dates of travel."[49] The supreme court rejected the notion that "information from prior trips could not be used to inflict future harm, " observing that "the past is prologue, at least when it reveals protocol DPS has implemented for ensuring the safety of government officials."[50]

         But these considerations, the Cox court continued, did not necessarily "justify withholding all but the ultimate dollar figure, " as DPS had proposed, acknowledging that the vouchers "provide[d] a more complete picture of how taxpayer money is spent than do the general categories and totals, " that "certain information" contained within them was "core public information, " and that "the public has a legitimate interest in how public money is spent on official state business."[51] "The dividing line between disclosure and restraint, " the court explained, "must be determined by proof, " elaborating:

To the extent DPS can show, with detailed evidence or expert testimony, that revelation substantially threatens harm . . . then the information at issue may be withheld. A certain amount of deference must be afforded DPS officers and other law enforcement experts about the probability of harm, although vague assertions of risk will not carry the day.[52]

         If this standard is met, the Cox court emphasized, "the public's right to 'complete information' [under the PIA] must yield."[53] The court further indicated that DPS's evidence had met this burden "with respect to the number of guards protecting the governor."[54]

          The Cox opinion itself remains virtually our only guidance as to the precise scope or meaning of the standard the Texas Supreme Court announced there-the high court has not had occasion since to address that standard, and only one opinion from an intermediate court of appeals has engaged in any substantive analysis of the protection.[55] That opinion came from this Court, in one of its cases arising from PIA requests made to the City of Carrollton.[56] In that case, an appeal from a final summary judgment compelling disclosure, the City attempted to resist disclosure of various law-enforcement-related documents that had been requested by an individual who had a historical propensity toward violent altercations with his neighbors.[57] Emphasizing that history, the City invoked the Cox protection alongside various other PIA exceptions, arguing essentially that the requestor would commit violence against any neighbors who were identified in responsive documents as having reported him to police or otherwise being involved in prior incidents with him.[58] Our analysis of other issues made it necessary for us to consider Cox's application only as to certain information pertaining to a police call that the requestor had initiated and an ensuing investigation in which he had been involved.[59] On that record, we held that-assuming without deciding that the City had raised a fact issue as to an underlying threat of physical harm presented by the requestor[60]-it had not done so with respect to disclosure of the particular information remaining at issue, as the information was already within the requestor's knowledge.[61] City of Carrollton thus represents a case where, in contrast to the situation in Cox, disclosure of the particular information in question would have no impact on the threat of physical harm faced by a person as compared to the preexisting threat that had existed even without disclosure.

         The present case differs from both Cox and City of Carrollton. At stake here is the bare public knowledge that a particular pharmacy or pharmacist supplied TDCJ with lethal-injection drugs, and it is urged that this revelation alone would create or subject the pharmacy or pharmacist to "a substantial threat of physical harm." As such, application of the Cox standard must focus not on the effects of disclosing particular information in the context of underlying threats of physical harm, as in Cox and City of Carrollton, but entirely upon whether an underlying "substantial threat of physical harm" exists in the first place. More specifically in the posture of this case, the issue is whether there exists an undifferentiated "substantial threat of physical harm" to any supplier of lethal-injection drugs, whomever they might be, such that mere revelation of the supplier's identity would bring that threat to bear upon any supplier whose identity is known publicly, with individual characteristics only secondarily relevant as they might bear upon the vulnerability or accessibility of a particular target. The key issue, in other words, distills to whether a person's manufacturing or supplying of lethal-injection drugs is the sort of activity that "would create a substantial threat, " within the contemplation of Cox, that others will attempt to physically injure or kill the person.

         Resolution of that question is aided by some parameters of the Cox standard that the Texas Supreme Court did not have occasion to emphasize in that case, nor this Court in City of Carrollton. First, it bears repeating here that the Cox standard is concerned with a "substantial threat of physical harm, " consistent with the long-established common-law right from which it derives, the same right to be safe and free of physical harm that underlies the battery cause of action.[62] The concern is not, for example, the common-law privacy interest in "be[ing] left alone" or avoiding "unwarranted publicity" that underlies Industrial Foundation, [63] nor any economic interest.[64] That limitation has important ramifications in this case.

          Not far beneath the surface of the parties' argument in this case is a much larger (and often vigorous, divisive, sensational, and volatile) legal and policy debate surrounding the enforcement and administration of the death penalty in Texas and other jurisdictions. There are myriad reasons why a private business or professional involved in the process would not want that fact known publicly-potential adverse marketplace effects, unwanted publicity, critical written or oral communications from members of the public, or protests, to name but a few of the unpleasantries that can accompany one's association with such a controversial public issue. Indeed, a prominent undercurrent of this case is that such considerations have spurred significant reductions in the numbers of willing suppliers of drugs used for lethal injections in recent years, to a point that state authorities like TDCJ are relegated (at least so long as they continue to rely on the lethal-injection method) to turn to a dwindling number of smaller suppliers. But while the Legislature can take account of such concerns and their broader ramifications for the death penalty's administration through statutory amendments (as it presumably did in later making the drug suppliers' identity confidential and excepted from PIA disclosure[65]), the sole permissible focus under the Cox standard is the threat of physical harm from disclosure of the pharmacy's or pharmacist's identity-not, in themselves, any threats of harm to privacy or economic interests, threats of media or political "firestorms, " or even threats of harm to property short of harm to persons. Nor is it our proper role under Cox to consider whether or how disclosure might impact the availability of this particular source of supply to TDCJ, or any others, in the future. But it is equally true that if TDCJ turns out to have demonstrated that disclosure would create the requisite "substantial threat of physical harm" as contemplated in Cox, we are bound to withhold the information at issue without regard to any ramifications for the larger debates being waged about capital punishment and the lethal-injection method. Cox squarely held that "the public's right to 'complete information' [under the PIA] must yield when disclosure of that information would substantially threaten physical harm."[66]

         Yet even while limited in its focus to threats of physical harm, the Cox standard is potentially susceptible to vastly expansive application in cases where, as here, the information at issue is solely a person's identity and the controlling variable becomes whether there exists an underlying "substantial threat of physical harm" to any person in a particular position or undertaking. Events seem to remind us periodically that virtually all who participate in our government and its functions face not only the potential comment and criticism that are fair game in our free society, but will at some point bear some degree of risk of reactions that extend to physical violence-whether fueled by the passions incident to the disputed and difficult issues with which a self-governing People must grapple; by base resentments of role, power, or status; or by whatever myriad other triggers might lie amid the twists and warps of individual human minds. Indeed, those like us who serve in the Judiciary are unfortunately not immune, as the recent high-profile assassination attempt of a local trial-level judge has pointedly illustrated.

         But the proposed remedies for such ongoing perils of judicial service have not included a return to the Star Chamber, and we conclude that the Cox standard, similarly, imposes a higher threshold before the public's right to "complete information" under the PIA must yield. The moderating variable, in our view, is the requirement that "disclosure would create a substantial threat of physical harm."[67] Cox did not elaborate as to precisely what was meant by a "substantial threat of physical harm" beyond indicating that DPS's proof had met that threshold with respect to both an underlying threat of physical harm to the Governor and the effect of disclosing "the number of guards protecting the governor" in the context of that threat.[68] We can obtain some additional guidance, however, from the standard's origins. Because the Cox court borrowed the standard from the PIA exception now codified at Section 552.152, it presumably intended to incorporate the meaning and scope that would be ascribed to that text under the familiar principles of statutory construction as they would operate in that context. The Texas Supreme Court has recently summarized these guiding principles as follows:

When interpreting a statute, our primary objective is to ascertain and give effect to the Legislature's intent without unduly restricting or expanding the Act's scope. We seek that intent first and foremost in the plain meaning of the text. Undefined terms in a statute are typically given their ordinary meaning, but if a different or more precise definition is apparent from the term's use in the context of the statute, we apply that meaning. However, we will not give an undefined term a meaning that is out of harmony or inconsistent with other terms in the statute. Therefore, even if an undefined term has multiple meanings, we recognize and apply only the meanings that are consistent with the statutory scheme as a whole. We only resort to rules of construction or extrinsic aids when a statute's words are ambiguous. Finally, in construing the TPIA, we are mindful of the legislative mandate that the TPIA be liberally construed in favor of granting a request for information.[69]

         Applying these principles here, the ordinary meaning of "substantial" includes two connotations that could potentially have application in the context of Section 552.152 and the Cox standard. The first is "substantial" in the sense of "true" or "real, " as opposed to imaginary or speculative.[70] "Truth" or "reality" in the context of our civil justice system is not absolute certainty, but is ordinarily a function of reasonable probability (i.e., it is more likely than not) that a fact exists or will occur.[71] Assuming this meaning of "substantial" along with the ordinary meaning of "threat" (which in this context would denote a person or thing likely to cause damage or danger[72]), disclosure that "would create" or subject a person to "a substantial threat of physical harm" would refer to a greater-than-not likelihood that physical harm would occur upon disclosure.

         The second potential meaning of "substantial" is a more qualitative or comparative sense of "[c]onsiderable in importance, value, degree, amount, or extent, "[73] or that which is deemed "material" to the inquiry.[74] Under this reading, disclosure that would create or subject a person to "a substantial threat of physical harm" would refer to that which does not necessarily rise to the level of probable harm, but is nonetheless of an amount or extent that is deemed by some measure to matter or merit consideration. An example in the context of threatened physical harm would be a threat that, while not rising to a probability of harm, is nevertheless of a nature or extent that would be deemed to warrant some sort of precautionary measures.

         A close reading of Cox persuades us that the Texas Supreme Court intended the former meaning-"substantial threat of physical harm" in the sense of a probability of harm. Most critically, the Cox standard is intended to describe and effectuate the historically recognized common-law right to be free of physical harm, the same right on which the battery tort is founded.[75]This right, importantly, is distinct from the right or interest, also long recognized in the common law, to be free of apprehension of physical harm-i.e., the interest underlying the tort of assault, as opposed to battery.[76] Construing "substantial threat of physical harm" to mean probable harm gives effect to this important distinction, and the distinction would be eroded by a "substantial threat of physical harm" that need only be considered sufficient to warrant precautionary measures or worry.

         Other features of Cox point to the same conclusion. In describing the nature of proof required under the standard, the Cox court indicates that the expert testimony of law-enforcement officials "about the probability of harm" may be relevant and worthy of deference, then distinguishes from this testimony "about the probability of harm" mere "vague assertions of risk."[77] Also telling, the supreme court terms its new standard "close, but not identical, " to two prior alternative standards that would each appear to require proof of a probability of harm-the Attorney General's "special circumstances" test (i.e., disclosure that would place a person in an "imminent threat of physical danger") and the Sixth Circuit standard ("a substantial risk of serious bodily harm from a reasonably perceived likely threat").[78] And the Cox court's treatment of the evidence before the trial court, previously summarized, is consistent with a probable-harm requirement-although the court indicated that "details about the number of officers assigned to protect the governor, their general location in relation to him, and their dates of travel" were potentially significant to the inquiry, it ultimately held that DPS had met its burden only "with respect to the number of guards protecting the governor."[79] We would also opt for this reading under the PIA's liberal-construction rule, assuming it applies, as it is the more favorable to disclosure as between the two alternatives.

         Cox similarly belies any notion that the standard might alternatively contemplate some sort of balancing analysis in which the relative threat of harm is weighed against perceived benefits of disclosure, as with certain other protections under the PIA.[80] The protection recognized in Cox is instead absolute. When disclosure infringes upon a person's physical safety, the supreme court explained, that interest "supersedes" the right to public information, [81] and the latter "must yield when disclosure of that information would substantially threaten physical harm."[82]

         In sum, the measure by which we ascertain the presence of any genuine issue of material fact in the summary-judgment evidence is whether disclosure of the identifying information at issue (i.e., making publicly available the identity of the pharmacy or pharmacist who supplied TDCJ with lethal-injection drugs) would make it probable (i.e., more likely than not) that the pharmacist, pharmacy employees, or others would be physically harmed. We turn to that evidence now.

         A ...

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