Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Paxton v. City of Dallas

Court of Appeals of Texas, Sixth District, Texarkana

May 15, 2019

KEN PAXTON, ATTORNEY GENERAL OF THE STATE OF TEXAS, Appellant
v.
CITY OF DALLAS, Appellee

          Date Submitted: April 10, 2019

          On Appeal from the 53rd District Court Travis County, Texas Trial Court No. D-1-GV-11-001419.

          Before Morriss, C.J., Burgess and Stevens, JJ.

          MEMORANDUM OPINION

          Ralph K. Burgess, Justice.

         This case presents the narrow issue of whether the privilege for noncore work product established in Rule 192.5 of the Texas Rules of Civil Procedure makes information confidential for purposes of Section 552.022 of the Texas Public Information Act (PIA). See Tex. R. Civ. P. 192.5; Tex. Gov't Code Ann. § 552.022 (West 2012). The trial court was presented with cross-motions for summary judgment on this purely legal issue.[1] It granted the City of Dallas' (the City's) motion for summary judgment, denied the Attorney General's cross-motion for summary judgment, and concluded that noncore attorney work product is confidential and not subject to public disclosure under the PIA. We affirm the judgment of the trial court.

         I. Factual and Procedural Background

         This case involves seven PIA requests that the City received from 2013 through 2017 for reports and other records relating to specified incident investigations, each conducted in response to a notice of claim for damages received by the City (Information at Issue). On receipt of each public-information request, the City sought a decision from the Attorney General authorizing it to withhold the Information at Issue under various PIA exceptions to disclosure and pursuant to the Texas Rules of Civil Procedure. In each case, the City submitted to the Attorney General's office a copy of the request, an explanation of why it believed certain exceptions applied, and representative samples of the information requested. See Tex. Gov't Code Ann. § 552.301(a) (West 2012) (requiring recipient of request that believes exception applies to ask for decision from attorney general). In each case, the Attorney General issued an Open Records Letter Ruling (ORL) concluding that the PIA required the City to release the Information at Issue. See Tex. Att'y Gen. OR2014-03670, OR2014-04006, OR2014-07349, OR2016-18343, OR2017-11720, OR2017-16545, OR2017-21550.

         In response to the Attorney General's ORLs, the City filed suit, seeking a declaration that it was not required to disclose the Information at Issue. See Tex. Gov't Code Ann. §§ 552.324- .325 (West 2012) (authorizing suit by governmental body seeking to withhold information). The City and the Attorney General filed cross-motions for summary judgment. The City's motion for summary judgment sought a declaration that it did not have to disclose the Information at Issue because the information was noncore or "other work product" under Rule 192.5 of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 192.5. The City claimed the information was excepted from disclosure by Section 552.111 of the Texas Government Code as "[a]n interagency or intraagency memorandum or letter that would not be available by law to a party in litigation with the agency" or under Section 552.022 as "information made confidential under . . . other law." See Tex. Gov't Code Ann. § 552.111 (West 2012), § 552.022.[2]

         The Attorney General's motion sought the contrary declaration that the City was required to disclose the Information at Issue because it is core public information under Section 552.022 of the Government Code and neither Rule 192.5(b)(2) of the Texas Rules of Civil Procedure nor Section 552.111 of the Government Code make core public information "confidential" under the PIA or other law. The trial court granted the City's motion for summary judgment, concluding, "[T]he information represented by Exhibit A is excepted from required disclosure under Texas Government Code chapter 552[, ] and . . . letter rulings numbers OR2014-03670, OR2014-04006, OR2014-07349, OR2016-18343, OR2017-11720, OR2017-16545, and OR2017-21550 are reversed insofar as they conclude otherwise." The Attorney General appeals.

         II. Applicable Law

         A. The Texas Public Information Act

         The expressed policy of the PIA is that the public have "complete information about the affairs of government and the official acts of public officials and employees," because "[t]he people insist on remaining informed so that they may retain control over the instruments they have created." Tex. Gov't Code Ann. § 552.001(a) (West 2012). The PIA provides for a liberal construction to effectuate this policy and a liberal construction in favor of granting a request for information. Tex. Gov't Code Ann. § 552.001(a), (b); see City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000).

         Public information is defined as any information which "is written, produced, collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business . . . by a governmental body . . . or [for] a governmental body and the governmental body . . . owns the information . . . [and] has a right of access to it. . . ." Tex. Gov't Code Ann. § 552.002(a)(1), (2)(A), (B) (West Supp. 2018).[3] "Core public information" is protected from disclosure only "if it is confidential under either the PIA or other law." Tex. Dep't of Public Safety v. Cox Tex. Newspapers, L.P., 343 S.W.3d 112, 114 n.4 (Tex. 2011); see Tex. Gov't Code Ann. § 552.022(a).[4]

         "The PIA guarantees access to public information, subject to certain exceptions," Cox Tex. Newspapers, L.P., 343 S.W.3d at 114, and presumes information is subject to disclosure unless an exception applies. Abbott v. Tex. Dep't of Mental Health & Mental Retardation, 212 S.W.3d 648, 663 (Tex. App.-Austin 2006, no pet.). A party seeking to withhold information under the PIA bears the burden of establishing the applicability of an exception from disclosure. Thomas v. Cornyn, 71 S.W.3d 473, 481 (Tex. App.-Austin 2002, no pet.).

         On appeal, "we generally give due consideration to Attorney General decisions, although they are not binding, because the Legislature has directed the Attorney General to determine whether records must be disclosed under the PIA." Austin Bulldog v. Leffingwell, 490 S.W.3d 240, 250 (Tex. App.-Austin 2016, no pet.). And, because the Legislature requires liberal construction of the PIA in favor of granting disclosure requests, "close judgment calls are to be resolved in favor of the stated purpose of the legislation." Leander Indep. Sch. Dist. v. Office of Attorney Gen., No. 03-18-00243-CV, 2018 WL 6581523, at *2 (Tex. App.-Austin Dec. 14, 2018, no pet.) (mem. op.) (quoting Hubert v. Harte-Hanks Tex. Newspapers, Inc., 652 S.W.2d 546, 552 (Tex. App.-Austin 1983, writ ref'd n.r.e.)).

         B. Standard of Review

         We apply a de novo standard of review to summary judgments. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). "On cross-motions for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law." City of Garland, 22 S.W.3d at 356. "When the trial court grants one motion and denies the other, we should determine all questions presented and render the judgment that the trial court should have rendered." Leffingwell, 490 S.W.3d at 243 n.9 (citing City of Garland, 22 S.W.3d at 356). "In general, matters of statutory construction are legal questions." City of Garland, 22 S.W.3d at 357 (citing Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex. 1989)). "Specifically, whether information is subject to the Act and whether an exception to disclosure applies to the information are questions of law." Id. (citing A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 674 (Tex. 1995)).

         III. Analysis

         A. The Information at Issue is Core Public Information under the PIA

         Section 552.002 of the PIA defines "public information." Section 552.022 of the PIA, however, sets out eighteen categories of information that have been classified as "super-public" or "core public" information. See Cox Tex. Newspapers, L.P., 343 S.W.3d at 114 n.4; City of Carrollton v. Paxton, 490 S.W.3d 187, 191 (Tex. App.-Austin 2016, pet. denied). Core public information includes "a completed report, audit, evaluation, or investigation made of, for, or by a governmental body." Tex. Gov't Code Ann. § 552.022(a)(1). Core public information is subject to disclosure unless it is "made confidential under this chapter or other law." Id.

         The Information at Issue consists of completed reports and investigations made for or by the City. As such, the information is "core public information," which is protected from disclosure only "if it is confidential under either the PIA or other law." See Tex. Gov't Code Ann. § 552.022. The parties do not dispute the characterization of the Information at Issue as "core public information." The City, however, argues that the information is noncore work product under Rule 192.5 of the Texas Rules of Civil Procedure and, therefore, is "confidential under . . . other law." Accordingly, the questions before us are (1) whether the Information at Issue is noncore work product and, if so, (2) whether such information "is confidential under . . . other law."

         B. The Information at Issue is Rule 192.5 Noncore Work Product

         The City sought to except the Information at Issue from disclosure in reliance on the work product privilege. In the context of civil litigation, a party claiming privilege must make a prima facie showing that the documents or information is privileged. See In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (orig. proceeding) (per curiam). A prima facie showing is the "minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true." Id. (quoting Tex. Tech Univ. Health Scis. Ctr. v. Apodaca, 876 S.W.2d 402, 407 (Tex. App.-El Paso 1994, writ denied)). To meet this burden, the City filed the Information at Issue under seal and submitted it to the trial court for in-camera inspection pursuant to Section 552.3221 of the Texas Government Code. See Tex. Gov't Code Ann. § 552.3221 (West Supp. 2018) (providing that, in suit filed under the PIA, information at issue may be filed with court for in-camera inspection as necessary for adjudication of case).[5] In concluding that the Information at Issue was excepted from disclosure under Texas "Government Code chapter 552," the trial court implicitly found that the Information at Issue was work product under Rule 192.5.

         Rule 192.5 of the Texas Rules of Civil Procedure defines work product as

(1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents; or
(2) a communication made in anticipation of litigation or for trial between a party and the party's representatives or among a party's representatives, including the party's attorneys, consultants, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.