Paxton v. City of Dall.

Decision Date03 February 2017
Docket NumberNo. 15–0073,15–0073
Parties Ken PAXTON, Attorney General of Texas, Petitioner, v. CITY OF DALLAS, Respondent
CourtTexas Supreme Court

509 S.W.3d 247

Ken PAXTON, Attorney General of Texas, Petitioner,
CITY OF DALLAS, Respondent

No. 15–0073

Supreme Court of Texas.

Argued September 14, 2016
OPINION DELIVERED: February 3, 2017

Bill Davis, Charles Roy, David A. Talbot Jr., James Edward Davis, Kimberly L. Fuchs, Rosalind L. Hunt, W. Kenneth Paxton Jr., for Ken Paxton.

Barbara E. Rosenberg, Christopher J. Caso, James B. Pinson, Warren M. Ernst, for City of Dallas.

Justice Guzman delivered the opinion of the Court, in which Chief Justice Hecht, Justice Green, Justice Willett, Justice Lehrmann, Justice Devine, and Justice Brown joined.

Recognizing that government is founded on the authority of the people and "instituted for their benefit,"1 the Texas Public Information Act (PIA) favors an open and transparent government to ensure the people "retain control over the instruments they have created."2 But the PIA simultaneously recognizes that public interests are best advanced by shielding some information

509 S.W.3d 250

from public disclosure.3 The Legislature, in its considered judgment, has excepted from disclosure more than sixty categories of information, including information protected by the attorney-client privilege.4 The issue in this case is whether the governmental body must disclose its attorney-client-privileged communications even though the parties agree the information is categorically excepted from public disclosure under the Act. The controversy exists because (1) the governmental body missed a ten-business-day statutory deadline to request a Texas Attorney General decision affirming a categorical exception to disclosure applies,5 and (2) an untimely request for an attorney general decision gives rise to a presumption that the information must be disclosed absent a "compelling reason to withhold the information."6 The crux of our inquiry concerns the meaning of "compelling reason."

The PIA does not define, delineate, or restrict the reasons that may be "compelling" enough to withhold requested information following an untimely request for a decision. As a statutory-construction issue of first impression, we must therefore determine whether the interests protected and advanced by the attorney-client privilege are imperative enough to overcome the public's interest in having governmental bodies promptly request a determination from the attorney general's office when they seek to protect confidential information from public-information requests. In other words, we must ascertain whether the PIA mandates public dissemination of otherwise confidential attorney-client communications solely because a governmental body missed a statutory deadline.

We hold that, absent waiver, the interests protected by the attorney-client privilege are sufficiently compelling to rebut the public-disclosure presumption that arises on expiration of the PIA's ten-day deadline. The attorney-client privilege reflects a foundational tenet in the law: ensuring the free flow of information between attorney and client ultimately serves the broader societal interest of effective administration of justice.7 The Legislature's choice to exempt information protected by the attorney-client privilege embodies the fundamental understanding that, in the public sector, maintaining candid attorney-client communication directly and significantly serves the public interest by facilitating access to legal advice vital to formulation and implementation of governmental policy. Full and frank legal discourse also protects the government's interest in litigation, business transactions, and other matters affecting the public.8 Depriving the privilege of its force thus compromises the public's interest at both discrete and systemic levels.9

Because failing to meet the PIA's deadline to assert a statutory exception to disclosure does not, in and of itself, constitute waiver of the attorney-client privilege, requested information does not automatically lose its confidential status and is not subject to compelled disclosure under the PIA solely on that basis. We therefore affirm the lower-court judgments holding the

509 S.W.3d 251

attorney-client confidences at issue need not be disclosed to the public-information requestors.

I. The Texas Public Information Act's Requirements

The PIA embodies the State's policy that "each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees."10

Under the PIA, the public has a right of access to "public information,"11 a broadly defined term.12 A governmental body must "promptly" produce public information after receiving a request for disclosure, meaning "as soon as possible under the circumstances, that is, within a reasonable time, without delay."13 The prompt production of public information furthers the "fundamental philosophy" that "government is the servant and not the master of the people."14

The right to access is not absolute, however; the Legislature incorporated into the PIA more than sixty exceptions to the public-disclosure requirement.15 Statutory exceptions range from very broad to more specific categories of information, including "information considered to be confidential by law, either constitutional, statutory, or by judicial decision,"16 attorney-client information,17 certain rare books and original manuscripts,18 various categories of records containing personal information of public employees or private citizens,19 and sensitive crime-scene images.20 "[The PIA's] exceptions embrace the understanding that the public's right to know is tempered by the individual and other interests at stake in disclosing that information."21

Consistent with the PIA's fundamental precept that "[t]he people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know,"22 a governmental body cannot unilaterally determine that requested information is exempt from disclosure. Rather, a governmental body must request a decision from the Texas Attorney General confirming the claimed exception applies to the requested information, unless the Attorney General has previously made a determination that the information falls within a claimed exception.23

509 S.W.3d 252

In harmony with the policy underlying the PIA's prompt-production requirement, the governmental body asserting an exception to disclosure must request an attorney general decision "within a reasonable time but not later than the 10th business day after the date of receiving the written request."24 If a request for decision is untimely, "the information requested in writing is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information. "25

To secure compliance with the statute, the PIA provides civil-enforcement mechanisms when a governmental body "refuses to request an attorney general's decision" or "refuses to supply public information or information that the attorney general has determined is public information that is not excepted from disclosure."26 In such cases, either the requestor or the Attorney General can institute mandamus proceedings to compel access to the information.27 The PIA further authorizes certain local or state officials to seek declaratory or injunctive relief based on a complaint by "a person who claims to be the victim of a [PIA] violation," but only after the governmental body is afforded notice and fails to timely cure the alleged violation.28 Subject to limited exceptions, the trial court shall award costs of litigation and reasonable attorney fees to a plaintiff who substantially prevails in a civil-enforcement suit against the governmental body.29

The PIA also provides criminal penalties for (1) destruction, removal, or alteration of public information, (2) distribution or misuse of "information considered confidential under the [PIA's] terms," and (3) criminally negligent failure to provide access to or copies of public information.30

In comparison, "[t]he only suit a governmental body may file seeking to withhold information from a requestor is a suit ... seek[ing] declaratory relief from compliance with [an attorney general] decision."31 Attorney fees and costs may be awarded to a party who substantially prevails in a suit instituted by a governmental body.32

II. The Dispute

In this consolidated appeal, the City of Dallas seeks relief from two attorney general decisions concluding the City must disclose confidential attorney-client communications pursuant to public-information requests the City received regarding the McCommas Bluff Landfill (the Landfill case) and a convention-center hotel (the Hotel case). The parties agree the requested information constitutes "public information" under the PIA, but because the information is undisputedly subject to the attorney-client privilege, the City contends the information is excepted from disclosure under PIA sections 552.101 (the confidential-by-law exception) and 552.107 (the attorney-client exception).

Section 552.107 applies to "information that the attorney general or...

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