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Fallon v. MD Anderson Physicians Network

Court of Appeals of Texas, First District

August 27, 2019

MICHAEL FALLON, M.D., Appellant
v.
MD ANDERSON PHYSICIANS NETWORK AND MICHAEL W. BROWN, AS PRESIDENT AND CHIEF EXECUTIVE OFFICER OF MD ANDERSON PHYSICIANS NETWORK, Appellees

          On Appeal from the 151st District Court Harris County, Texas Trial Court Case No. 2017-36113

          Panel consists of Justices Lloyd, Landau, and Countiss.

          MEMORANDUM OPINION

          Julie Countiss Justice

         Appellant, Michael Fallon, M.D., challenges the trial court's sealing orders in Fallon's suit against appellees, MD Anderson Physicians Network and Michael W. Brown, as President and Chief Executive Officer of MD Anderson Physicians Network (collectively, the "Physicians Network"), for a writ of mandamus and a declaratory judgment.[1] In five issues, Fallon contends that the trial court erred in ordering that certain summary-judgment exhibits be filed "in camera [and] under seal" and be "permanently sealed" and in denying him access to such exhibits. (Internal quotations omitted.)

         We affirm.

         Background

         In his first amended petition, Fallon alleges that he is an individual residing in New York and the Physicians Network is a "governmental body" of the State of Texas. Fallon also alleges that the Physicians Network is a subsidiary of The University of Texas MD Anderson Cancer Center (the "Cancer Center") and the Physicians Network maintains communications with the Cancer Center.

         Previously, Fallon, pursuant to the Texas Public Information Act ("PIA"), [2]served the Cancer Center with a public information request, seeking nine categories of information, including certain "electronic communications." It is undisputed that the Cancer Center is a "governmental body" under the PIA.[3] Although the Cancer Center produced some information responsive to Fallon's request, it also informed him that "certain electronic communications from September 2013 to [the] present . . . were maintained by a . . . non-governmental body," i.e., the Physicians Network.

         On July 11, 2016, Fallon, pursuant to the PIA, served the Physicians Network with a public information request, seeking eleven categories of information. After Fallon clarified his public information request, the Physicians Network sought an opinion from the Attorney General as to whether it constituted a "governmental body" under the PIA, whether it was subject to the PIA's disclosure requirements, and whether certain exceptions to disclosure applied.[4] The Attorney General issued an open records letter ruling, concluding that the Physicians Network is not a "governmental body" and not subject to the PIA or its disclosure requirements.[5](Internal quotations omitted.)

         However, because Fallon believes that the Physicians Network is a "governmental body" that is subject to the PIA and that the information that he seeks in response to his public information request constitutes "public information," Fallon seeks a writ of mandamus to compel the Physicians Network to produce the information responsive to his request.[6] Fallon also seeks certain declarations.[7]

         The Physicians Network answered, generally denying Fallon's allegations and asserting certain affirmative defenses.

         Fallon then filed a combined no-evidence and matter-of-law summary-judgment motion, arguing, inter alia, that the Physicians Network is a "governmental body" under the PIA that is subject to the PIA's disclosure requirements. Fallon attached exhibits to his motion.

         The Physicians Network filed a response and a cross-motion for a matter-of-law summary judgment, asserting, inter alia, that it did not constitute a "governmental body" under the PIA as a matter of law. The Physicians Network attached exhibits to its response and cross-motion.

         In connection with its response and cross-motion for summary judgment, the Physicians Network filed a Motion to File Summary Judgment Exhibits In Camera, pursuant to the PIA, asserting that four of its summary-judgment exhibits contained confidential and proprietary information that belongs to the Physicians Network and requesting that it be permitted to file its exhibits in camera with the trial court.[8] The four exhibits that the Physicians Network sought to have reviewed in camera by the trial court in connection with the parties' summary-judgment proceedings are: (1) an unredacted copy of the Physicians Network's Attorney General request, (2) an unredacted copy of the Physicians Network's reply brief submitted to the Attorney General, (3) the bylaws of the Physicians Network's Quality Management Committee and Credentialing Committee, and (4) the affidavit of Kimberly Bergen, the Physicians Network's Vice President and Chief Financial Officer.

         In response to the Physicians Network's motion to file its four summary-judgment exhibits in camera, Fallon argued that in camera review of the exhibits was not warranted because the exhibits did not meet the requirements for information to be filed in such a manner under the PIA.[9]

         In its reply, the Physicians Network asserted that the trial court had not yet made the determination of whether the Physicians Network constituted a "governmental body," the Physicians Network was permitted to protect their confidential and proprietary information in accordance with the PIA, and the four summary-judgment exhibits were previously submitted to the Attorney General, in accordance with Texas Government Code section 552.301, and thus, were entitled to protection from disclosure.

         On October 10, 2017, the trial court granted the Physicians Network's motion to file the four summary-judgment exhibits in camera pursuant to the PIA.[10] On October 31, 2017, the trial court then granted the Physicians Network's cross-motion for summary judgment and denied Fallon's summary-judgment motion, ruling that the Physicians Network is not a "governmental body" under the PIA.

         In an earlier filed, but related, appeal to this Court ("Fallon's summary-judgment appeal"), Fallon challenged the trial court's rendition of summary judgment in favor of the Physicians Network and the denial of his summary-judgment motion. See Fallon v. MD Anderson Physicians Network, No. 01-17-00882-CV, slip. op. at 1-2, 10 (Tex. App.-Houston [1st Dist.] Aug. 27, 2019, no pet. h.). In connection with Fallon's summary-judgment appeal, the Physicians Network filed a motion with this Court, which Fallon opposed, for leave to file its four summary-judgments exhibits that it had previously filed with the trial court in camera because the exhibits had not been included by the Harris County district clerk as part of clerk's record on appeal.[11] The Physicians Network attached to its motion the four summary-judgment exhibits that it wished to have filed in camera with this Court so that we would have a complete appellate record in Fallon's summary-judgment appeal. We, however, denied the Physicians Network's motion for leave, explaining that "hand-delivering to the appellate court a copy of the purported in-camera [exhibits] is not a viable way to add them to the [appellate] record." We further clarified that "[i]f a relevant [exhibit was] omitted from the clerk's record [then] . . . any party may . . . direct the trial court clerk to prepare, certify, and file in the appellate court a supplement containing the omitted [exhibit]," and "if a[n] [exhibit] that [was] designated for inclusion in the clerk's record [was] lost or destroyed . . . the trial court [must] . . . determin[e] what constitutes an accurate copy of the missing [exhibit] and order it to be included in the clerk's record or a supplement."[12] (Fourth alternation in original) (Internal quotations omitted.)

         After we denied the Physicians Network's motion for leave, the Physicians Network filed, in the trial court, a Motion to Determine that Copies of Lost or Destroyed In Camera Exhibits are Accurate, requesting that the trial court, pursuant to Texas Rule of Appellate Procedure 34.5(e), find that the four summary-judgment exhibits submitted to the trial court in camera were accurate copies of the four summary-judgment exhibits that were previously submitted in camera and considered by the trial court in connection with the parties' summary-judgment proceedings.[13] Further, the Physicians Network filed a Motion to Permanently Seal In Camera Summary Judgment Exhibits to ensure that the four summary-judgment exhibits submitted to the trial court in camera were sealed so that they could be forwarded to this Court for consideration in connection with Fallon's summary-judgment appeal. The Physicians Network noted that its request was in accordance with the trial court's October 10, 2017 order, which had granted the Physicians Network's motion to file its four summary-judgment exhibits in camera pursuant to the PIA.[14] Fallon opposed both of the Physicians Network's motions.

         On August 21, 2018, the trial court granted the Physicians Network's Motion to Determine that Copies of Lost or Destroyed In Camera Exhibits are Accurate, finding that the four summary-judgment exhibits submitted by the Physicians Network along with its motion constituted accurate copies of the four summary-judgment exhibits that had been previously filed in camera in connection with the parties' summary-judgment proceedings.[15] That same day, the trial court also granted the Physicians Network's Motion to Permanently Seal In Camera Summary Judgment Exhibits, ordering that the four summary-judgment exhibits be filed "in camera and under seal" and that the exhibits be "permanently sealed." On November 19, 2018, the trial court ordered the Harris County district clerk to send the four summary-judgment exhibits to our ...


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