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the City of Houston, Texas v. Ken Paxton, Attorney General of Texas
Citation: Not availableDocket: 03-15-00093-CV
Court: Court of Appeals of Texas; August 20, 2015; Texas; State Appellate Court
Original Court Document: View Document
The document is a legal brief from the Attorney General of Texas, Ken Paxton, responding to an appeal by the City of Houston in case number 03-15-00093-CV, filed in the Third Court of Appeals. The appeal originates from the 250th District Court of Travis County, presided over by Judge Stephen Yelenosky. Key points include: - The City of Houston is referred to as "the City," while Ken Paxton is referred to as "the Attorney General." - The brief outlines the structure of the document, including references to the parties and the record, a table of contents, and an index of authorities. - It states that oral argument was not requested and includes various sections such as the statement of facts, procedural history, summary of the argument, standard of review, and the main argument. - The Attorney General argues that the information in question is not exempt from disclosure under Texas Rule of Evidence 503, which concerns attorney-client privilege. Specific points made include: - The communications in the documents were not intended to be confidential. - The City has failed to meet the burden of demonstrating the applicability of the privilege. - The administrative statements requested by the City were not made in the course of employment for legal service purposes. - The brief distinguishes this case from precedents, particularly the Harlandale case, arguing that the requested statements were explicitly sought and not protected by privilege. - The Attorney General emphasizes that an expansive interpretation of the Harlandale ruling could undermine public access to information regarding public employees' official actions. The brief concludes with a prayer for relief, a certificate of compliance, and a certificate of service. The document lists legal cases, statutes, rules, and legislative history relevant to a legal matter involving the City of Houston and the Attorney General of Texas. Key cases referenced include Better Gov’t Bureau v. McGraw, Garrity v. State of N.J., and Upjohn Co. v. United States, among others, indicating significant precedents related to public information and attorney-client privilege. The Attorney General does not request oral argument but expresses willingness to present if deemed necessary by the Court. The issues presented for consideration include whether Texas Rule of Evidence 503 protects a city employee's sworn statement provided during a misconduct investigation as confidential and if a governmental body can withhold public documents simply because they were attached to an attorney-client privileged report. The introduction emphasizes that Texas courts interpret exceptions to the Public Information Act narrowly and that the attorney-client privilege is similarly limited to situations where confidentiality is intended. The City seeks a broader interpretation to cover statements made by employees under investigation, despite assurances that they could share those statements with their legal counsel. The City contends that certain non-privileged statements should be exempt from public disclosure because they were attached to a privileged Office of Inspector General (OIG) report. However, this argument requires a broad interpretation of attorney-client privilege that Texas law does not support. The City failed to prove that the requested administrative statements are protected under the attorney-client privilege, prompting the Attorney General to request the Court affirm the trial court's judgment. This case arises from an appeal related to a public information request concerning an OIG internal investigation, which includes written statements from involved parties. The requestor, an attorney representing one of the investigated City employees, sought access to these records. The City refused the request and sought a ruling from the Attorney General, claiming the information was privileged under Texas Rule of Evidence 503 and that it was also protected under the law enforcement exception (section 552.108 of the Government Code) on the basis that the OIG functions in a law enforcement capacity. The Attorney General issued Open Records Letter Ruling OR2014-02684, ruling that most requested information was exempt from disclosure under the attorney-client privilege, but identified portions as non-privileged communications. These non-privileged statements were deemed separate from the completed OIG report and thus not protected by the privilege. Additionally, the law enforcement exception was found inapplicable since the documents pertained to a purely administrative investigation without a demonstrated connection to any criminal investigation. Consequently, the Attorney General ordered the City to release the non-privileged communications. The City subsequently filed a lawsuit against the Attorney General challenging the ruling regarding the attorney-client privilege. The City did not contest the Attorney General's determination under section 552.108 of the Government Code and filed cross-motions for summary judgment. The City claimed that the contested information was protected by attorney-client privilege under Rule 503, while the Attorney General contended that the information was not privileged and should be disclosed as per the ruling. Following a hearing, the trial court ruled in favor of the Attorney General, declaring that the information was not privileged and ordered its disclosure. The City subsequently sought a new trial, which was denied, leading to a timely notice of appeal. The disputed information pertains to sworn administrative statements from two City employees investigated by the Office of Inspector General (OIG). The statements indicated that the employees were informed they could share their statements with their legal counsel, and one employee was told that providing a statement was not a condition of employment. Therefore, these statements were deemed not intended for confidentiality. The Attorney General noted that the City appears to have abandoned its challenge regarding a portion of the information, specifically certain pages, and assumed that the City had released the remaining information to the requestor. The Attorney General argued that the statements are not privileged under Texas Rule of Evidence 503 and that their attachment to a privileged OIG report does not exempt them from disclosure under the Public Information Act (PIA). The trial court's judgment is thus supported, as the statements are subject to public disclosure. In reviewing summary judgment motions from both parties, the court evaluates all evidence and decides the appropriate judgment. The determination of whether information is public and subject to disclosure under the PIA is a legal question evaluated de novo. The City contends that the statements are privileged communications, asserting that the employees were cooperating with the OIG investigation under City policy and that confidentiality was intended. Employees were not acting as "representatives of the client" under Texas Rule of Evidence 503, which governs attorney-client privilege, because they had the option to disclose statements to their legal counsel and were informed that providing such statements was not a condition of their employment. Thus, the City failed to establish that the information in question is protected by attorney-client privilege or exempt from public disclosure under the Public Information Act (PIA). The attorney-client privilege applies to communications intended to be confidential, made for the purpose of facilitating professional legal services, and is designed to promote unrestricted communication between attorney and client. For a communication to remain confidential, it must not be disclosed to third parties, except for those necessary to transmit the communication. An employee can act as a “representative of the client” if the communication is made within the scope of their employment. This privilege extends to those authorized to seek legal services on behalf of the client or those acting to effectuate legal representation. Texas courts have adopted a “subject matter test,” which broadens the privilege to include employees beyond just executives, provided the communication is made at the direction of a superior and relates to the employee’s duties. Communications made at management's direction or requiring employee cooperation in investigations may qualify as occurring within the scope of employment. However, in the case mentioned, the opposing party did not dispute that compliance with company policy was a condition of employment. The attorney-client privilege is narrowly construed, placing the burden on the proponent to demonstrate its applicability, while the party resisting discovery must prove any claimed privilege. The court emphasizes the necessity for full disclosure, leading to a strict interpretation of the privilege. Similarly, under the Public Information Act (PIA), a governmental body must establish that an exception to disclosure applies, with exceptions also being narrowly construed. In this case, the City has not shown that the information in question consists of confidential communications made by employees while acting in their employment scope for legal services. The records indicate that the administrative statements were not intended to be confidential, as evidenced by explicit admonishments within the documents allowing discussion with the affiant’s legal representative. This contradicts the City’s claim of confidentiality. Furthermore, the City has not demonstrated any applicable exceptions to the requirement of confidentiality, such as joint defense or mutual interest. The City’s acknowledgment of the admonishment fails to clarify how sharing the statements with the affiant’s attorney would preserve their purported confidentiality. The legal privilege cannot be applied selectively, as per Tex. Gov’t Code 552.007(b), which mandates that publicly available information must be accessible to anyone. Under Tex. R. Evid. 511(a)(1), consent to disclosure waives any privilege. The documents in question were not intended to remain confidential; the City required employees to agree to terms indicating that the communications could be shared with non-privileged parties. Consequently, no confidential relationship was established, and thus the privilege did not apply as indicated in Tex. R. Evid. 503(a)(5). Furthermore, one document explicitly states that a sworn administrative statement was not made within the affiant employee’s scope of employment. The City failed to demonstrate that the statements were confidential and, in at least one instance, did not establish that the statement was made during the employee's scope of employment, as per Tex. R. Evid. 503(a)(2). The sworn admonishment clarified that the employee was under no obligation to provide the statement, which was given voluntarily in the context of an OIG investigation. This differs from cases where employees were required to cooperate with investigations as a condition of their employment, like in In re USA Waste Mgmt. and Upjohn Co. v. United States. The City dismissed the admonishment as “boilerplate,” which does not assist in meeting its burden under the Rule, nor does it explain why the City required the employee's assent to it. For the attorney-client privilege to be upheld, both parties must be clear about whether a communication is protected. The record indicates that the sworn statements were neither intended to be confidential nor made by employees acting on behalf of the City. Additionally, there is no indication that these statements were given to facilitate legal services for the City as required by Tex. R. Evid. 503(a)(2). Instead, the situation resembles that of a suspect providing a voluntary statement to an investigator. The City regards the Office of Inspector General (OIG) as a law enforcement body with the authority to forward findings to the City police or the Harris County District Attorney, which could intimidate employees suspected of misconduct. Each employee is required to acknowledge that the OIG investigator is not acting as legal counsel for the City, undermining any expectation of confidentiality. Employees are warned against perjury rather than assured of confidentiality, indicating they do not believe their statements are privileged. The City has not proven that the statements made by employees during investigations are protected by attorney-client privilege, as the burden of proof lies with the party claiming the privilege. The Public Information Act (PIA) mandates narrow interpretations of disclosure exceptions, which the City has failed to meet. The City cannot withhold requested statements based on attorney-client privilege simply because they are attached to a privileged report. The OIG's discretion to share findings undermines the notion of it acting solely as legal counsel for the City. The court's ruling in Harlandale Independent School District v. Cornyn allows withholding of only legal advice within a report, not factual information compiled by an attorney acting as an investigator. Therefore, the City cannot claim privilege over the entire report when factual information is involved. A PIA request for a written report and its exhibits was submitted to a district, prompting a trial court ruling that only portions containing legal advice were exempt from public disclosure. The district appealed, asserting the entire report was privileged. The appellate court reversed, ruling that the attorney-client privilege covered the entire report since the attorney was retained for investigation and legal opinion. However, the current case differs from the Harlandale precedent because the requested administrative statements were specifically identified and not protected by privilege. The Attorney General stated these statements, gathered during the OIG investigation before the final report’s creation, must be disclosed as they are not excepted under the PIA. The City argued against a “piecemeal” approach but the request distinctly sought individual statements separate from the final report, contrasting with Harlandale's broader request. The confidentiality of government affairs cannot be determined by the timing of the request. The case also draws parallels with disclosures in a prosecutor’s litigation file, noting that while individual items may be disclosed, broad requests can reveal an attorney's thought processes. The communication gathering in this case is distinct from those in Harlandale and other cited cases, which involved privileged communications during internal investigations. The attorney-client privilege protects communications between Allen and the Attorney General's Office related to her investigation, as established in Upjohn, where communications were deemed privileged due to employees acting within their employment scope and confidentiality intentions. However, in the current case, the communications were not privileged because the questioned employees were informed they could disclose their statements to non-privileged parties, and they were not acting as representatives of the client in their employment. The Attorney General argues against the City's broad interpretation of Harlandale, asserting that it would undermine public access to information about government employee conduct. If the City were permitted to classify any government record as privileged simply by appending it to a legal investigation, it would create a significant loophole for obscuring factual information from the public. The PIA mandates narrow construction for disclosure exceptions, and the City must prove an exception applies to the requested information. Investigations into public officials are crucial for transparency, and all citizens should have access to details about government affairs. While Harlandale does not require the City to disclose purely factual portions of a report when the entire document is requested, it does not exempt individually requested factual items from disclosure simply because they were attached to a privileged report. The Attorney General requests the Court to reject the City's argument and uphold the trial court's judgment.