COM'N ON ENVIRONMENTAL QUALITY v. Abbott

• Decision Date: 17 May 2010
• Docket Number: No. 03-09-00250-CV.,03-09-00250-CV.
• Citation: 311 S.W.3d 663
• Parties: TEXAS COMMISSION ON ENVIRONMENTAL QUALITY, Appellant, v. The Honorable Greg ABBOTT, Attorney General of Texas; and the Honorable Eliot Shapleigh, Texas Senator, Appellees.
• Court: Texas Court of Appeals

311 S.W.3d 663

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY, Appellant, v. The Honorable Greg ABBOTT, Attorney General of Texas; and the Honorable Eliot Shapleigh, Texas Senator, Appellees.

No. 03-09-00250-CV.

Court of Appeals of Texas, Austin.

April 13, 2010.

Rehearing Overruled May 17, 2010.

COPYRIGHT MATERIAL OMITTED

Brian E. Berwick, Cynthia Woelk, Assistant Attorneys General, Austin, TX, for Appellant.

Brenda Loudermilk, Chief, Open Records Litigation, Austin, TX, for Appellees.

Doug W. Ray, Ray, Wood & Bonilla, Austin, TX, for Intervenor.

Before Justices PATTERSON, PURYEAR and HENSON.

OPINION

JAN P. PATTERSON, Justice.

In this appeal, the Texas Commission on Environmental Quality seeks reversal of the district court's judgment requiring the Commission to disclose certain confidential and privileged documents to Texas Senator Eliot Shapleigh. The issue presented is whether separation of powers limits the legislature's authority to obtain confidential and privileged communications between a state agency and its lawyers pursuant to section 552.008 of the Texas Public Information Act. See Tex. Gov't Code Ann. § 552.008 (West 2004). Because we conclude that section 552.008 requires disclosure of the documents at issue to Senator Shapleigh, we affirm the judgment.

BACKGROUND

The facts of this cause are largely undisputed. In 2008, Senator Eliot Shapleigh intervened in an administrative proceeding before the Commission involving a request by Asarco, Inc., to renew its air quality permit in order to reopen its copper smelting plant in El Paso, Texas. Shortly after the Commission issued a final order granting the permit application, Senator Shapleigh made two separate requests¹ for documents from the Commission under the Texas Public Information Act.² See Tex. Gov't Code Ann. §§ 552.001-.353 (West 2004 & Supp.2009). In both requests, Senator Shapleigh requested documents pursuant to "the legislative purpose special right of access in Section 552.008...."

At the time of Senator Shapleigh's requests, section 552.008 provided:

(a) This chapter does not grant authority to withhold information from individual members, agencies, or committees of the legislature to use for legislative purposes.

(b) A governmental body on request by an individual member, agency, or committee of the legislature shall provide public information, including confidential information, to the requesting member, agency, or committee for inspection or duplication in accordance with this chapter if the requesting member, agency, or committee states that the public information is requested under this chapter for legislative purposes. A governmental body, by providing public information under this section that is confidential or otherwise excepted from required disclosure under law, does not waive or affect the confidentiality of the information for purposes of state or federal law or waive the right to assert exceptions to required disclosure of the information in the future. The governmental body may require the requesting individual member of the legislature, the requesting legislative agency or committee, or the members or employees of the requesting entity who will view or handle information that is received under this section and that is confidential under law to sign a confidentiality agreement that covers the information and requires that:

(1) the information not be disclosed outside the requesting entity, or within the requesting entity for purposes other than the purpose for which it was received;

(2) the information be labeled as confidential;

(3) the information be kept securely; or

(4) the number of copies made of the information or the notes taken from the information that implicate the confidential nature of the information be controlled, with all copies or notes that are not destroyed or returned to the governmental body remaining confidential and subject to the confidentiality agreement.

(c) This section does not affect:

(1) the right of an individual member, agency, or committee of the legislature to obtain information from a governmental body under other law, including under the rules of either house of the legislature;

(2) the procedures under which the information is obtained under other law; or

(3) the use that may be made of the information obtained under other law.³

The Commission made several documents available to Senator Shapleigh but declined to disclose certain documents that it deemed privileged attorney-client communications and attorney work product. Id. § 552.305 (West 2004). Included among the documents withheld by the Commission were documents prepared by the Commission's Office of General Counsel to advise the Commissioners regarding the Asarco application. Also included were documents prepared by lawyers in the Environmental Law Division who advise the executive director of the Commission.

The Commission forwarded all of these documents to the Open Records Division of the Office of the Attorney General and requested a ruling under section 552.301 of the public information act.⁴See id. § 552.301 (West 2004). The Commission asserted that its documents were excepted from disclosure under sections 552.101 (confidential under other law), 552.103 (information related to litigation), 552.107 (attorney-client privilege), and 552.111 (agency memoranda and deliberative process privilege) of the act. See Tex. Gov't Code Ann. §§ 552.101, .103, .107, .111 (West 2004). In conjunction with its claim under section 552.101, the Commission also asserted that its documents were excepted from disclosure under Texas Rule of Evidence 503 and Texas Rule of Civil Procedure 192.5. See id. § 552.101; Tex.R. Evid. 503; Tex.R. Civ. P. 192.5. The Commission further claimed that disclosure of its documents to Senator Shapleigh would "disturb the effective separation of powers under article II, section 1, of the Texas Constitution because the legislative function would be in the position to interfere with the judicial and executive functions." See Tex. Const. art. II, § 1.

The attorney general issued an informal letter ruling, OR2008-06742, which interpreted the public information act to require disclosure of all documents held by the Commission's general counsel and Environmental Law Division to Senator Shapleigh. See Tex. Att'y Gen. OR2008-06742 (May 16, 2008). The attorney general declined to address the Commission's assertions that its documents were confidential under Texas Rule of Evidence 503 or Texas Rule of Civil Procedure 192.5 in conjunction with section 552.101 of the act because the attorney general had previously "concluded that section 552.101 does not encompass discovery privileges." See OR2008-06742 at 1 n. 1 (citing Tex. Att'y Gen. ORD Nos. 676 at 1-2 (2002), 575 at 2 (1990)). Finding that the Commission "failed to sufficiently demonstrate that such interference was present in the instant case," the attorney general rejected the Commission's claim that release of the subject documents would raise separation of powers concerns. Id. at 3. The attorney general concluded that the Commission's documents were subject to disclosure under section 552.008 of the public information act and, therefore, declined to address the Commission's remaining arguments. Id.

The Commission sued the attorney general in district court, and Senator Shapleigh intervened. See Tex. Gov't Code Ann. §§ 552.324(a), .325 (West 2004). Senator Shapleigh filed a motion for summary judgment. See Tex.R. Civ. P. 166a(c). The Commission also sought summary judgment, but the attorney general did not. The district court granted the senator's motion and denied the motion of the Commission. This appeal followed.

ANALYSIS

The Commission contends that the district court erred in concluding that section 552.008 of the public information act requires the Commission to disclose the documents at issue to Senator Shapleigh because the statute and Senator Shapleigh's requests violate the separation of powers doctrine embodied in article II, section 1, of the Texas Constitution. Senator Shapleigh and the attorney general respond that there was no error in the district court's judgment because the Commission cannot show that the statute or Senator Shapleigh's requests amounted to undue interference with a core function constitutionally committed to the Commission.

Standard of Review

We review the district court's grant of summary judgment de novo.⁵ Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). To prevail on a summary judgment motion, the movant must show that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c).

Determining whether an exception applies under the public information act to support withholding of public information is a question of law, which we review de novo. See City of Garland v. Dallas Morning News, 22 S.W.3d 351, 357 (Tex. 2000); City of Fort Worth v. Cornyn, 86 S.W.3d 320, 323 (Tex.App.-Austin 2002, no pet.). We construe the act liberally in favor of granting requests for information, while narrowly construing exceptions to disclosure. See Tex. Gov't Code Ann. § 552.001(b) (West 2004); City of Garland, 22 S.W.3d at 365.

We consider questions of statutory construction de novo as well. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003). When construing a statute, our primary goal is to determine and give effect to the legislature's intent. Id. To determine legislative intent, we look to the statute as a whole, as opposed to isolated provisions. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002). We begin with the plain language of the statute at issue and apply its common meaning. City of San Antonio, 111 S.W.3d at 25. Where the statutory text is unambiguous, we adopt a construction supported by the statute's plain language unless that construction would lead to an absurd result. Fleming Foods of Tex., Inc. v. Rylander, 6...