Court of Appeals of Texas, Sixth District, Texarkana
Submitted: April 10, 2019
Appeal from the 53rd District Court Travis County, Texas
Trial Court No. D-1-GV-11-001419.
Morriss, C.J., Burgess and Stevens, JJ.
K. Burgess, Justice.
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. 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.
Factual and Procedural Background
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.
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.
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.
The Texas Public Information Act
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
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). "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).
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.).
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
Standard of Review
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)).
The Information at Issue is Core Public Information under the
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.
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 . . .
The Information at Issue is Rule 192.5 Noncore Work
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). 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.
192.5 of the Texas Rules of Civil Procedure defines work
(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, ...