Ken Paxton, Attorney General of the State of Texas v. City of Dallas ( 2019 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-18-00095-CV
KEN PAXTON, ATTORNEY GENERAL OF THE STATE OF TEXAS, Appellant
V.
CITY OF DALLAS, Appellee
On Appeal from the 53rd District Court
Travis County, Texas
Trial Court No. D-1-GV-11-001419
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Justice Burgess
MEMORANDUM OPINION
This 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. 1 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.
I. Factual and Procedural Background
This 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)
1
Originally appealed to the Third Court of Appeals in Austin, this case was transferred to this Court by the Texas
Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We
apply the precedent of the Third Court of Appeals to the issues in this appeal. See TEX. R. APP. P. 41.3.
2
(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.
In 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. 2
The 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
2
On appeal, the Attorney General argues that the Information at Issue is subject to disclosure under Sections 552.111
and 552.022. See TEX. GOV’T CODE ANN. §§ 552.111, 552.022. The City, however, only contends that the
information is excepted from disclosure under Section 552.022 as “information made confidential under . . . other
law.” See TEX. GOV’T CODE ANN. § 552.022. Because we conclude that the Information at Issue is excepted from
disclosure under Section 552.022, we do not address whether the information was likewise excepted from disclosure
under Section 552.111. See Tex. GOV’T CODE ANN. § 552.111.
3
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.
II. Applicable Law
A. The Texas Public Information Act
The 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 (Tex. 2000).
Public 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.
4
§ 552.002(a)(1), (2)(A), (B) (West Supp. 2018). 3 “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). 4
“The 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
3
Public information also includes “information that is written, produced, collected, assembled, or maintained under a
law or ordinance or in connection with the transaction of official business . . . for a governmental body and the
governmental body. . . spends or contributes public money for the purpose of writing, producing, collecting,
assembling, or maintaining the information,” or information “that is written, produced, collected, assembled, or
maintained under a law or ordinance or in connection with the transaction of official business . . . by an individual
officer or employee of a governmental body in the officer’s or employee’s official capacity and the information
pertains to official business of the governmental body.” TEX. GOV’T CODE ANN. § 552.002(a)(2)(C), (a)(3) (West
Supp. 2018).
4
This section of the PIA provides, in pertinent part,
(a) Without limiting the amount or kind of information that is public information under this
chapter, the following categories of information are public information and not excepted from
required disclosure unless made confidential under this chapter or other law:
(1) a completed report, audit, evaluation, or investigation made of, for, or by a governmental
body, except as provided by Section 552.108;
. . . .
(b) A court in this state may not order a governmental body or an officer for public information
to withhold from public inspection any category of public information described by Subsection (a)
or to not produce the category of public information for inspection or duplication, unless the
category of information is confidential under this chapter or other law.
TEX. GOV’T CODE ANN. § 552.022 (a)(1), (b).
5
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.).
On 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 ref’d n.r.e.)).
B. Standard of Review
We 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
6
are questions of law.” Id. (citing A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 674 (Tex.
1995)).
III. Analysis
A. The Information at Issue is Core Public Information under the PIA
Section 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.
The 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 . . . other
law.”
7
B. The Information at Issue is Rule 192.5 Noncore Work Product
The 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). 5 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.
Rule 192.5 of the Texas Rules of Civil Procedure defines work product as
(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, sureties, indemnitors, insurers, employees, or
agents.
5
The Information at Issue was likewise filed under seal in this Court as Exhibit A.
8
TEX. R. CIV. P. 192.5(a)(1), (2).
The level of protection Rule 192.5 accords to work product depends on its classification as
“core work product” or “other work product,” sometimes referred to as noncore work product.
Rule 192.5(b)(1) protects core work product—defined as “the work product of an attorney or an
attorney’s representative that contains the attorney’s or the attorney’s representative’s mental
impressions, opinions, conclusions, or legal theories”—from discovery. TEX. R. CIV. P.
192.5(b)(1). The Texas Supreme Court has described the level of protection accorded to core work
product as, “inviolate,” “flatly not discoverable,” and “sacrosanct and its protection impermeable.”
In re Bexar Cty. Criminal Dist. Attorney’s Office, 224 S.W.3d 182, 187–88 (Tex. 2007) (orig.
proceeding). In contrast, noncore work product is “[a]ny other work product” that is not core work
product. TEX. R. CIV. P. 192.5(b)(2); see In re Nat’l Lloyds Ins. Co., 532 S.W.3d 794, 804 (Tex.
2017) (orig. proceeding). Noncore work product is privileged from discovery except “upon a
showing that the party seeking discovery has substantial need of the materials in the preparation
of the party’s case and that the party is unable without undue hardship to obtain the substantial
equivalent of the material by other means.” TEX. R. CIV. P. 192.5(b)(1), (2).
The City filed the affidavit of Brent C. Cox in support of its motion for summary judgment.
Cox testified that he is the custodian of records of the Risk Management Division of the City of
Dallas. In that capacity, Cox received a notice of claim in connection with each of the seven
incidents. Cox testified,
Exhibit A consists of a representative sample of claim files concerning the incidents
involved in the attached Exhibits 1 through 7. These files include the City’s
investigation and evaluation of claims filed against the City. The information in
Exhibit A relates to whether the City is liable for the claims for damages and was
9
prepared by the City’s employees and agents after the City received the notices of
claim in Exhibits 1 through 7.
Cox identified the City’s employees and agents who prepared the information in Exhibit A
and testified that he reviewed the information in Exhibit A—which includes the City’s
investigation and evaluation of the notices of claim—as well as the definition of work product in
Rule 192.5 of the Texas Rules of Civil Procedure. 6 Based on his review of that definition, and
6
Cox attached seven exhibits to his affidavit, consisting of the following notices of claim:
• Exhibit 1: Letter from attorney Victoria Neave on behalf of her client, Edgar Roel Espinoza. The
letter references “Edgar Roel Espinoza v. City of Dallas” and states that she has been retained to represent
Espinoza “with respect to significant damages he sustained as a result of the negligence of the City of Dallas
on or about June 18, 2013.”
• Exhibit 2: “Notice of Claim Against The City of Dallas” filed by Espinoza in connection with Exhibit
1. The notice of claim states that, “due to the City’s negligence, a water pipe which was owned, operated,
and/or under the control of the City broke releasing a large flood of waste water which inundated Mr.
Espinoza’s property causing hundreds of thousands of dollars in property damage and causing Mr. Espinoza
significant mental anguish.” Exhibit 2 also includes a “Notice of Claim Against The City of Dallas” by Nora
Maxwell Hubalh, which claimed that the City did not connect the sewer line from the home to the main sewer
line, causing a sewer back up in her new construction home. Hubalh provided an extensive, itemized
statement of cost to repair the damage in the amount of $165,316.12.
• Exhibit 3: Letter from attorney W. Coleman Sylvan to the City on behalf of Frances Loudine Wayne.
The letter advised the City that he had been retained to represent Wayne “in connection with her claims and
causes of action arising from an incident that occurred at Lee Park . . . on November 19, 2013.” The attorney
asks the City to contact him to discuss the claim. Exhibit 3 also includes a “Notice of Claim Against The
City of Dallas” on behalf of Wayne, stating the estimated amount of the claim was $200,000–$250,000. The
Notice stated that Wayne “is making a liability claim against the City of Dallas . . . due to a fall caused by
the protrusion of re-bar in the walkway just outside Arlington Hall at Lee Park . . .” The Notice further stated
that “this condition constituted an unreasonably dangerous condition and that the City of Dallas . . . knew or
should have known of this condition” and that, as a result, Wayne required surgery and was hospitalized four
days, for which she claimed recovery for medical expenses, loss of income, pain and suffering, and physical
impairment.
• Exhibit 4: “Notice of Claim Against the City of Dallas” by attorney Damon Mathias on behalf of
James Pierantozzi, as next friend of Paige Pierantozzi, a minor. The claim states that Paige slipped and fell
on a spilled drink and suffered serious injuries, for which she continued to undergo treatment. The letter
cautioned the City to preserve evidence relating to this incident.
• Exhibit 5: “Notice of Claim Against the City of Dallas” by Jay K. Kreps stating that street repairs by
the City resulted in a large split and level change in his concrete driveway. Kreps estimated that his claim
against the City was $2,300.00 to $2,800.00.
• Exhibit 6: “Notice of Claim Against the City of Dallas” by Steven Leslie Bayes stating that street
repairs by the City resulted in serious cracking of his driveway. Bayes estimated that his claim against the
City was $10,000.00.
10
information in Exhibit A, Cox testified that “all the information in Exhibit A constitutes material
prepared or mental impressions developed in anticipation of litigation or for trial by or for the City
or its representatives, or communications in anticipation of litigation or for trial between the City
and its representatives or among its representatives.”
(1) Anticipation of Litigation: Objective Prong
As noted, to qualify as work product, the Information at Issue must have been made or
prepared in anticipation of litigation. See TEX. R. CIV. P. 192.5(a)(1), (2). A document is prepared
in anticipation of litigation when it meets both the objective and subjective prongs of the following
two-part test established by the Texas Supreme Court:
a) a reasonable person would have concluded from the totality of the
circumstances surrounding the investigation that there was a substantial chance that
litigation would ensue; and b) the party resisting discovery believed in good faith
that there was a substantial chance that litigation would ensue and conducted the
investigation for the purpose of preparing for such litigation.
Nat’l Tank Co. v. Brotherton, 851 S.W.2d 193, 195 (Tex. 1993); see Leander, 2018 WL 6581523,
at *5. “Substantial chance of litigation” is not a “particular statistical probability that litigation
will occur; rather, it simply means that litigation is ‘more than merely an abstract possibility or
unwarranted fear.’” Nat’l Tank, 851 S.W.2d at 204 (majority opinion quoting Justice Hecht’s
dissent, 851 S.W.2d at 215). “If a reasonable person would conclude from the severity of the
accident and the other circumstances surrounding it that there was a substantial chance that
litigation would ensue, then the objective prong” is satisfied. Id.
• Exhibit 7: “Notice of Claim Against the City of Dallas” by Daniel Christopher Johnson stating that as his
car was parked at a curb, it was sideswiped by a city trash truck and that the driver rounded the corner and
drove away. Johnson stated that he needed to get a repair estimate from a body shop.
11
Each of the notices of claim in question constitute statutory notices required by the Texas
Tort Claims Act. 7 As such, they placed the City on notice of the respective claims against it.
Accordingly, the notices of claim against the City and attorney correspondence to the City,
together with Cox’s affidavit stating that “[t]he information in Exhibit A relates to whether the
City is liable for the claims for damages and was prepared by the City’s employees and agents
after the City received the notices of claim in Exhibits 1 through 7,” satisfy the objective prong of
National Tank. “It is not necessary that litigation be threatened or imminent, as long as the
prospect of litigation is identifiable because of claims that have already arisen.” Id. at 205.
(2) Anticipation of Litigation: Subjective Prong
“The subjective prong is properly satisfied if the party invoking the privilege believes in
good faith that there is a substantial chance that litigation will ensue.” Id. at 204. This requires
“that the investigation actually be conducted for the purpose of preparing for litigation.” Id. In
this regard, “the circumstances must indicate that the investigation was in fact conducted to prepare
for potential litigation.” Id. at 206.
We have conducted our own in-camera inspection of the sealed records contained in
Exhibit A. The sealed records include documents and communications by and between the City,
7
Section 101.101(a) of the Texas Civil Practice and Remedies Code provides, “A governmental unit is entitled to
receive notice of a claim against it under this chapter not later than six months after the day that the incident giving
rise to the claim occurred.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.101(a) (West 2019). The notice “must
reasonably describe” the “damage or injury claimed . . . the time and place of the incident . . . and the incident.” Id.
“The purpose of the notice requirement is to ensure prompt reporting of claims in order to enable governmental units
to gather information necessary to guard against unfounded claims, settle claims, and prepare for trial.” Cathey v.
Booth, 900 S.W.2d 339, 341 (Tex. 1995); see Tex. Dep’t of Criminal Justice v. Simmons, 140 S.W.3d 338, 347 (Tex.
2004).
12
its agents, adjusters, damage claims coordinators, office of risk management personnel, and City
program managers which reflect the City’s efforts to determine its liability for the respective
claims. The sealed records also include information regarding reserves set on various claims based
on the City’s investigation and damage assessments. The sealed records—taken together with
Cox’ affidavit—suggest that the City has shown that its investigations were conducted for the
purpose of preparing for potential litigation. Based on our review of the sealed records and the
summary judgment evidence, we conclude that the Information at Issue was made or prepared by
agents and employees of the City in anticipation of litigation against the City. It is, therefore,
properly classified as noncore work product. See TEX. R. CIV. P. 192.5(a)(2). 8
C. In re City of Georgetown Excepts the Information at Issue from PIA
Disclosure
We next turn to the issue at the heart of this case—whether noncore work product is
confidential for purposes of Section 552.022 of the PIA, thus excepting it from disclosure. Both
parties rely on the Texas Supreme Court’s opinion in In re City of Georgetown, 53 S.W.3d 328
(Tex. 2001) (orig. proceeding), in support of their respective positions.
In that case, the City of Georgetown retained an engineer as a consulting expert to prepare
a written assessment of certain parts of one of its wastewater treatment plants in connection with
pending litigation involving the plant. Id. at 329. During the pendency of the litigation, the Austin
American Statesman requested the release of evaluations of Georgetown’s city manager, Bob Hart.
Id. Hart, however, had attached the consulting expert’s report to a self-evaluation of his job
8
The Attorney General does not dispute that the Information at Issue is noncore work product.
13
performance. Id. Therefore, production of his evaluation necessarily required production of the
consulting expert’s report. The City believed the report was confidential and not subject to
disclosure and sought an Attorney General opinion stating that it was not required to produce the
report. Id. However, the Attorney General opined that the report was discoverable. Id. at 330.
Georgetown then filed suit against the Attorney General seeking a declaratory judgment
that it was not required to disclose the report. Id. The trial court agreed with the Attorney General
and ordered the City to produce the report. Id. The City petitioned the Austin Court of Appeals
for a writ of mandamus to prohibit the report’s production, but the court of appeals denied the
City’s petition for writ of mandamus. Id. The City then sought relief in the Texas Supreme Court.
In its petition before the Supreme Court, the City argued that the PIA did not mandate disclosure
of the report because Rules 192.3(e) and 192.5 of the Texas Rules of Civil Procedure 9 are “other
law” within the meaning of Section 552.022(a)(1) of the Texas Government Code that render the
report confidential. See TEX. GOV’T CODE ANN. § 552.022(a).
The Supreme Court recognized that the term “other law” as used in Section 552.022 is not
limited to statutes, but also includes “judicial decisions and rules promulgated by the judiciary,
such as rules of procedure and evidence.” City of Georgetown, 53 S.W.3d at 332. It further
recognized that “[t]he work-product and attorney-client privileges have been an integral part of
9
Rule 192.3(e) provides, in pertinent part, “The identity, mental impressions, and opinions of a consulting expert
whose mental impressions and opinions have not been reviewed by a testifying expert are not discoverable.” TEX. R.
CIV. P. 192.3(e).
14
our law” and concluded, “The Legislature was fully cognizant of this longstanding law and the
procedural and evidentiary rules embodying it when it used the broad term ‘other law.’” Id. at
332–33. Accordingly, the Supreme Court declined to construe the phrase “other law” narrowly to
exclude the rules of procedure and evidence. Rather, the Supreme Court stated that “[t]he ability
of governmental entities to pursue and defend claims would . . . be significantly impaired” because
work product and matters subject to the attorney-client privilege “would have to be disclosed by
governmental entities if that information is contained in ‘a completed report, . . . evaluation, or
investigation.” Id. at 333 (quoting TEX. GOV’T CODE ANN. § 552.022(a)). It also held that
disclosure of such information would result in a “severe disadvantage” to governmental bodies,
which would be required to disclose “written legal advice and strategy . . . to opposing parties upon
request.” Id.
The Supreme Court also held, “The rules of procedure make it abundantly clear that
information about consulting experts is confidential.” Id. at 334. Consequently, the Supreme
Court granted mandamus relief from requiring the City of Georgetown to produce the consulting
expert’s report. Id. at 336–37. While the Supreme Court based its ruling on the consulting-expert
privilege as expressed in Rule 192.3(e), it did not confine its ruling to that consulting-expert
privilege. Instead, the Court held that “if documents are privileged or confidential under the Texas
Rules of Civil Procedure or the Texas Rules of Evidence, they are within a ‘category of information
[that] is expressly made confidential under other law’ within the meaning of Section 552.022 of
the Public Information Act.” Id. at 337.
15
The Attorney General contends that City of Georgetown does not apply here because it
concerned a consulting expert’s report and did not contemplate noncore work product. The
Attorney General first notes that in City of Georgetown, the Supreme Court recognized the absolute
confidentiality of consulting expert reports. The Supreme Court stated,
The rules of civil procedure delineate a category for consulting experts whose
mental impressions and opinions have not been reviewed by a testifying expert.
TEX. R. CIV. P. 192.3(e). The rules expressly provide that a party is not required to
disclose the identity, mental impressions, and opinions of consulting experts. Id. A
law does not have to use the word “confidential” to expressly impose
confidentiality. The rules of procedure make it abundantly clear that information
about consulting experts is confidential. Id.
Id. at 334. The Attorney General then points to the Supreme Court’s holding: “The rules expressly
provide that certain types of work product do not have to be disclosed, which means they are
confidential.” Id. (emphasis added). Based on the italicized language in this quotation, the
Attorney General asserts that, by holding that certain types of work product do not have to be
disclosed, the Supreme Court implicitly held that other types must be disclosed. Those types of
work product which must be disclosed, according to the Attorney General, are items properly
classified as noncore work product—such as the Information at Issue.
The Attorney General also notes that noncore work product is, according to the Rule,
subject to disclosure “upon a showing that the party seeking discovery has substantial need of the
materials in the preparation of the party’s case and that the party is unable without undue hardship
to obtain the substantial equivalent of the material by other means.” TEX. R. CIV. P. 192.5(b)(2).
In contrast, “the work product of an attorney or an attorney’s representative that contains the
attorney’s or the attorney’s representative’s mental impressions, opinions, conclusions, or legal
16
theories . . . is not discoverable.” TEX. R. CIV. P. 192.5(b)(1). Thus, the Attorney General argues,
because the protection of core work product is absolute and the protection of noncore work product
is not absolute—but is, instead, qualified—this category of work product is subject to disclosure
under the PIA. The Attorney General maintains that “the very fact that the protection is not
‘impermeable’ should necessitate a contrary finding here, and that we should decline to extend
Georgetown to reach this information,” because “to find otherwise would disregard the Supreme
Court’s qualifying language that ‘only certain types of work product’ are confidential under rule
192.5.”
We disagree with this reasoning. We look to the language of City of Georgetown, which
is controlling on this issue. 10 The Supreme Court recognized that the Texas Rules of Civil
Procedure “have the same force and effect as statutes.” City of Georgetown, 53 S.W.3d at 332
(quoting Missouri Pac. R.R. v. Cross, 501 S.W.2d 868, 872 (Tex. 1973)). 11 It further noted that
the work-product privilege has been a longstanding and “integral part of our law” of which the
“Legislature was fully cognizant” when it “used the broad term ‘other law’” in Section 552.022 of
the PIA. Id. In fully embracing a broad reading of the term “other law,” the Supreme Court
recognized that, without the protections offered by the work-product and attorney-client privileges,
[t]he ability of governmental entities to pursue and defend claims would also be
significantly impaired. All governmental bodies would be required to conduct
10
The parties have not cited any cases which have addressed the precise issue of whether noncore work product is
protected from PIA disclosure under City of Georgetown, and we find none.
11
The Supreme Court noted that, before the court was granted rule-making power by the Legislature in 1939, the law
of civil procedure and evidence were contained in statutes. City of Georgetown, 53 S.W.3d at 332. “The law of civil
procedure . . . did not become any less ‘law’ simply because it moved from legislated statutes to judicially promulgated
rules.” Id.
17
litigation at a severe disadvantage since written legal advice and strategy would
have to be disclosed to opposing parties upon request. Governmental entities would
also be required to disclose to their opponents written evaluations of settlement
strategies, which would impair a governmental entity’s ability to negotiate the
lowest possible settlement. Taxpayers would bear the increased costs.
Id. at 333.
The Supreme Court also concluded that the Legislature did not intend “to effectuate such
a sweeping waiver of the work-product and attorney-client privileges” based on the words “unless
the category of information is expressly made confidential under other law.” Id. (quoting TEX.
GOV’T CODE ANN. § 552.022(b)). It further noted that “the rules do not have to use the word
‘confidential’ to make information confidential.” Id. at 334. And it held that, because the “rules
expressly provide that certain types of work product do not have to be disclosed[,] . . . they are
confidential.” Id. It concluded that, “if documents are privileged or confidential under the Texas
Rules of Civil Procedure or Texas Rules of Evidence, they are within a ‘category of information
[that] is expressly made confidential under other law’ within the meaning of Section 552.022 of
the Public Information Act.” Id. at 337.
It is true that the Supreme Court did not specifically identify what types of work product
must be disclosed when it recognized that “certain types of work product do not have to be
disclosed.” Id. at 334. However, given City of Georgetown’s broad reading of the phrase “other
law,” recognition of the work-product doctrine’s longstanding and integral place in our law, and
the policy implications which informed its decision, we cannot conclude that the Court intended
to carve out noncore work product from the ambit of its ruling. Indeed, noncore work product is
protected from disclosure, except in certain narrow circumstances which involve a showing of
18
undue hardship and substantial need—among other things—by a party in a civil lawsuit. See TEX.
R. CIV. P. 192.5(b)(2). The PIA makes no provision for the assertion of this narrow exception. 12
IV. Conclusion
The Information at Issue is noncore work product. As such, it is privileged under Rule
192.5(a)(2) of the Texas Rules of Civil Procedure. The Texas Rules of Civil Procedure are “other
law” as that term is used in Section 552.022 of the PIA. City of Georgetown mandates protection
of noncore work product under Section 552.022 of the PIA. See TEX. GOV’T CODE ANN.
§ 522.022. Consequently, the trial court correctly determined that the Information at Issue was
not subject to disclosure.
12
On the other hand, Rule 192.5(c) expressly provides that certain types of work product must be disclosed:
(c) Exceptions. Even if made or prepared in anticipation of litigation or for trial, the following is
not work product protected from discovery:
(1) information discoverable under Rule 192.3 concerning experts, trial witnesses,
witness statements, and contentions;
(2) trial exhibits ordered disclosed under Rule 166 or Rule 190.4;
(3) the name, address, and telephone number of any potential party or any person with
knowledge of relevant facts;
(4) any photograph or electronic image of underlying facts (e.g., a photograph of the
accident scene) or a photograph or electronic image of any sort that a party intends to offer
into evidence.
(5) any work product created under circumstances within an exception to the
attorney-client privilege in Rule 503(d) of the Rules of Evidence.
TEX. R. CIV. P. 192.5(c). Accordingly, to the extent the Supreme Court implied in City of Georgetown that certain
types of work product must be produced, it is more likely that the Supreme Court only meant that those categories of
information listed in Rule 195.2(c) must be produced. The Attorney General does not contend that the Information at
Issue falls within Rule 192.5(c)’s list of exceptions.
19
We affirm the trial court’s judgment.
Ralph K. Burgess
Justice
Date Submitted: April 10, 2019
Date Decided: May 15, 2019
20