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Texas Department of Criminal Justice v. Levin

Supreme Court of Texas

April 12, 2019

Texas Department of Criminal Justice, Petitioner,
v.
Maurie Levin, Naomi Terr, and Hilary SheardRespondents

          Argued January 23, 2019

          On Petition for Review from the Court of Appeals for the Third District of Texas

          Justice Guzman and Justice Blacklock did not participate in the decision.

          OPINION

          PAUL W. GREEN JUSTICE

         In this case, we again consider whether the public's right to information under the Texas Public Information Act (PIA) is subject to reasonable limitations when its production may lead to physical harm. See Tex. Dep't of Pub. Safety v. Cox Tex. Newspapers, LP, 343 S.W.3d 112, 114-15, 118 (Tex. 2011) (recognizing a common law exception to mandatory public disclosure under the PIA when disclosing the information would create a substantial threat of physical harm). The information sought in this case is the source of drugs used in Texas executions by lethal injection. We conclude, based on the evidence in the record, that disclosing the source's identity would create a substantial threat of physical harm to the source's employees and others, and therefore need not be disclosed. Accordingly, we reverse the court of appeals' judgment and render judgment for the Texas Department of Criminal Justice (the Department), the entity withholding the information.

         I. Background

         Maurie Levin, Naomi Terr, and Hilary Sheard (collectively, Levin) represent capital defendants on death row. Concerned with the possibility of mismanaged executions by lethal injection, Levin made the following written requests to the Department under the PIA:

(1) the execution protocol by which [Texas] intend[s] to carry out . . . scheduled execution[s],
(2) the drug or drugs, including back-up, [Texas] intend[s] to use,
(3) the source of those drugs, . . .
(4) the date [the drugs were] ordered and received, and
(5) any testing conducted to ensure potency, purity, and integrity.

         The Department eventually released all information except the specific identity of the pharmacy or pharmacist that compounded the drugs-that is, the drugs' source. The Department would divulge only that the unnamed pharmacy is a licensed compounding pharmacy open to the public and located in an urban area of a Texas city.

         To support withholding the source's identity and in accordance with Texas Government Code section 552.301, the Department requested a ruling from the Attorney General that the source's identity could be withheld from public disclosure, relying in part on the common law PIA exception that reflects individuals' interest in being free from physical harm. See Tex. Gov't Code § 552.301 (requiring the government to seek an opinion ruling from the Attorney General if the governmental body believes the requested information is excepted from disclosure, and if there has been no previous determination on the subject); Cox, 343 S.W.3d at 114-15, 118 (explaining that information can be withheld if public disclosure "would subject the employee or officer to a substantial threat of physical harm" (citation omitted)). The Attorney General agreed and ruled that the physical-safety exception in Texas Department of Public Safety v. Cox Texas Newspapers, LP applied and protected the identifying information from disclosure. See Tex. Att'y Gen. OR2014-09184, at 2-3 (applying Cox, 343 S.W.3d at 118).

         Undeterred, Levin petitioned the trial court for relief. The parties presented the merits through competing summary judgment motions, and the Department offered three pieces of evidence, along with expert testimony and other supporting evidence, to demonstrate a substantial threat of physical harm if the source of the drugs were to be disclosed: (1) comments on the website of a previous supplier of lethal injection drugs-the Woodlands Pharmacy-and emails sent to the owner of that pharmacy; (2) a blogger's post about capital punishment related to the Woodlands Pharmacy; and (3) a professor's email to a pharmacy in Oklahoma regarding its sale of lethal injection drugs. The trial court found the Department's evidence lacking and agreed with Levin that there was no substantial threat of physical harm.

         The court of appeals affirmed the trial court's judgment, concluding that the Department's summary judgment evidence presented mere isolated threats that, without more, amounted to nothing but speculation that disclosure of the source's identity would necessarily give rise to a substantial-that is, more likely than not-threat of physical harm. 520 S.W.3d 225, 240 (Tex. App.-Austin 2017, pet. granted).

         While the case was pending before the court of appeals, the Legislature enacted an additional exception to the PIA that makes confidential the identity of any person or entity that provides drugs used for lethal injection to the State of Texas. See Act of May 19, 2015, 84th Leg., R.S., ch. 209, § 1, sec. 552.1081, 2015 Tex. Gen. Laws 1286, 1287 (codified at Tex. Gov't Code § 552.1081) (excluding from disclosure "any person or entity that manufactures, transports, tests, procures, compounds, prescribes, dispenses, or provides a substance or supplies used in an execution"). The amendment is prospective only and does not control the merits of this case. See Act of May 19, 2015, 84th Leg., R.S., ch. 209, § 3, 2015 Tex. Gen. Laws 1286, 1287.

         The Department petitioned this Court for review, and we granted the petition. 62 Tex. Sup. Ct. J. 74 (Oct. 19, 2018).

         II. Analysis

         A. The Public Information Act

         The PIA embodies a powerful policy 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." Tex. Gov't Code § 552.001(a). This doctrine is central to "the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people." Id. The Legislature reinforces this fundamental philosophy through a broad mandate that the PIA "shall be liberally construed in favor of granting a request for information." Id. § 552.001(b). This is because the 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. The people insist on remaining informed so that they may retain control over the instruments they have created." Id. § 552.001(a).

         Although we have recognized the PIA's broad and liberal applicability favoring disclosure, see generally Jackson v. State Office of Admin. Hearings, 351 S.W.3d 290, 292 (Tex. 2011), we have also held that "liberal construction" under the PIA "is not tantamount to boundless reach." Greater Hous. P'ship v. Paxton, 468 S.W.3d 51, 67 (Tex. 2015). Indeed, the Legislature has enacted more than fifty exceptions to the broad rule of disclosure. See generally Tex. Gov't Code §§ 552.101-.158. Among these exceptions is section 552.101, which excepts "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Id. § 552.101. "[I]nformation considered to be confidential . . . by judicial decision" has the effect of incorporating protections from the common law. See generally Indus. Found. of the S. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 681-83 (Tex. 1976) (holding that there is a common law right to privacy that protects against PIA disclosure in some circumstances). Relevant to our discussion here is the common law interest in freedom from physical harm, which extends to every person. See Cox, 343 S.W.3d at 115 ("Freedom from physical harm is . . . a hallmark of our common law."). This common law exception to the PIA's disclosure requirements as recognized in Cox makes information confidential when disclosure would create a substantial threat of physical harm. See id.

         In the case before us, the parties agree that the identity of the source that supplies drugs used in state executions by lethal injection is subject to PIA disclosure unless the Department, as the governmental body resisting disclosure, proves that the Cox physical-safety exception justifies non-disclosure. The parties argue no other statutory or common law exception to the PIA's mandatory disclosure requirements. Before considering the evidence, however, we review the Cox physical-safety exception and its applicability, as neither the parties nor the court of appeals agree on the correct interpretation of the exception.

         B. The Cox Physical-Safety Exception

         The procedural posture here matches that of Cox. Cox addressed a request from newspapers to the Texas Department of Public Safety (DPS) for the disclosure of travel expense vouchers relating to Governor Rick Perry's security detail. Id. at 113. DPS declined to produce the documents and sought a ruling from the Attorney General that the requested documents were excepted from disclosure. Id. In place of the requested documents, DPS offered to release aggregated expense information, arguing that release of the actual vouchers would reveal the number of officers traveling with the governor and would be valuable information for someone intending to cause harm to the governor. Id. The Attorney General agreed and determined that release of the information would place the governor in imminent threat of physical danger, concluding that the information was excepted from disclosure because of a "special circumstances" aspect of common law privacy. Id.

         The newspapers in Cox sued to compel disclosure. Id. The trial court agreed with the newspapers and ordered disclosure, finding that release of the information would not put any person in imminent threat of physical danger or create a substantial risk of serious bodily ...


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