the University of Texas System and the University of Texas at Dallas v. Ken Paxton, Attorney General of Texas And Marilyn Cameron ( 2015 )

ACCEPTED
03-14-00801-CV
5933172
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/6/2015 12:00:00 AM
JEFFREY D. KYLE
CLERK
NO. 03-14-00801-CV
IN THE THIRD COURT OF APPEALS FILED IN
Austin, Texas 3rd COURT OF APPEALS
AUSTIN, TEXAS
________________________________________________________________
7/7/2015 4:06:14 PM
JEFFREY D. KYLE
THE UNIVERSITY OF TEXAS SYSTEM AND THE UNIVERSITYClerk
OF TEXAS
AT DALLAS
Appellants,
v.
KEN PAXTON, ATTORNEY GENERAL OF THE STATE OF TEXAS
Appellee,
v.
MARILYN CAMERON,
Intervenor.
_______________________________________________________________
On Appeal from the 261st Judicial District Court of Travis County, Texas
Trial Court Cause No. D-1-GV-11-001923
The Honorable Stephen Yelenosky, Judge Presiding
________________________________________________________________
INTERVENOR’S BRIEF
__________________________________________________________________
MARILYN CAMERON
18222 Outback Lakes
Humble, Texas 77346
Tel: (713) 320-4092
mizcameron@yahoo.com
Intervenor/Appellee
REFERENCE TO THE PARTIES
Appellants are The University of Texas System and the University of
Texas at Dallas, both will be referred to as “the University” here. Appellee is Ken
Paxton, Attorney General of Texas, and will be referred to as “the Attorney
General” here, and Intervenor is Marilyn Cameron and will be referred to
as “the Intervenor or Intervenor” in the brief.
REFERENCES TO CLERK’S RECORD
Any reference to clerk’s record will be notated as C.R. [Page #].1
ii
1
For clarity, there is duplication in the record on file and copy given to Intervenor. The
Attorney General’s letter ruling, OR2011-17401 (November 28, 2011) is copied into the record
three times. The document appears at C.R. 7-9, C.R. 40-42, and C.R. 68-70. The document
appears in the Appellants Br. at 6 as C.R. 69. To simplify, Intervenor will refer to document at
its first appearance – C.R. 7-9.
TABLE OF CONTENTS
Reference to the Parties…………………………………………………………….ii
References to Clerk’s Record………………………………………………………ii
Table of Contents………………………………………………………………….iii
Index of Authorities………………………………………………………………..iv
Statement on Oral Argument……………………………………………………....vi
Issue Presented…………………………………………………………………….vi
Introduction………………………………………………………………………...1
Statement of Facts………………………………………………………………….2
Standard of Review………………………………………………………………...5
Summary of the Argument…………………………………………………………6
Argument…………………………………………………………………………...7
I. For the issue and evidence presented, the trial court did not err when
granting final judgment in favor of the motion for summary judgment
requested by the Attorney General………………………………………...7
A. The University presented a case for refusal based upon exceptions to the
Public Information Act, common-law privacy issues, and constitutional
privacy concerns…………………………………………………………...7
B. Information on human subject participants is necessary for transparency,
accountability, and protection……………………………………………..9
C. Based upon arguments and evidence, the decision to grant judgment in
favor of the Attorney General was reasonable and fair…………………..15
Prayer……………………………………………………………………………...16
Certificate of Compliance…………………………………………………………17
Certificate of Service……………………………………………………………...17
iii
INDEX OF AUTHORITIES
CASES
A & T Consultants, Inc., v. Sharp,
904 S.W.2d. 668, 674 (Tex. 1995)……………………………………………...5-6
Bivens v. Six Unknown Fed. Narcotics Agents,
403 U.S. 388 (1971)……………………………………………………………..15
City of Garland v. Dallas Morning News,
22 S.W.3d 351, 356 (Texas 2000)………………………………………………...5
Feres v. United States,
340 U.S. 135 (1950)……………………………………………………………..15
Industrial Foundation of the South v. Texas Indus. Accident Bd.,
540 S.W.2d 668 (Tex. 1976)…………………………………………………...6, 8
United States v. Stanley,
483 U.S. 669 (1987)………………………………………………………….14-15
STATUTES
45 CFR Part 46……………………………………………………………………13
45 CFR Part 690………………………………..…………………………………13
45 CFR 690.102 …………………………………………………………………..13
45 CFR 690.116(a)(5)…………………………………………………………13-14
45 CFR 690.122…………………………………………………………………...13
Texas Education Code § 61.003 (rev. 2013)………….………………………........6
Texas Government Code § 402.041………………………………………………..7
Texas Government Code § 402.042………………………………………………..7
5 U.S.C. 552 et. seq………………………………………………………………...2
iv
Public Information Act (Texas)
552.021……………………………………………………………………………..2
552.101……………………..…………………………………………………4, 6, 8
552.222(b)………….……………………………………………………………….6
552.324……………………………………………………………………………..5
v
STATEMENT ON ORAL ARGUMENT
Intervenor believes that an oral argument will prohibit her total participation
in the lawsuit and is not necessary for review. Should the Court grant oral
argument, Intervenor requests accommodations that will permit participation in
accordance with statutes, rules, and state laws.
ISSUE PRESENTED
Was the trial court correct in granting final judgment to Attorney General on
his motion for summary judgment?2
vi
2
Final court order is C.R. 84-85.
NO. 03-14-00801-CV
IN THE THIRD COURT OF APPEALS
Austin, Texas
________________________________________________________________
THE UNIVERSITY OF TEXAS SYSTEM AND THE UNIVERSITY OF TEXAS
AT DALLAS
Appellants,
v.
KEN PAXTON, ATTORNEY GENERAL OF THE STATE OF TEXAS
Appellee,
v.
MARILYN CAMERON,
Intervenor.
_______________________________________________________________
On Appeal from the 261st Judicial District Court of Travis County, Texas
Trial Court Cause No. D-1-GV-11-001923
The Honorable Stephen Yelenosky, Judge Presiding
________________________________________________________________
INTERVENOR’S BRIEF
__________________________________________________________________
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
In 1973, the Texas Public Information Act (the “Act”) was written in
response to a stock fraud scandal that rocked the state’s capitol and prompted the
63rd legislative session to take action. The Act was rewritten in 1993 and
subsequently became the Public Information Act under Texas Government Code
552. With noble intent, the Act placed a spotlight on quiet dealings of
governmental bodies and placed those actions within the view and analysis of the
public. The touchstone of the Act is section 552.021: “Public information is
available to the public at a minimum during the normal business hours of the
governmental body.”3 Indeed, governmental practices without public transparency
and accountability is a mirror with no reflection.
The University seeks to withhold public information, as determined by the
Attorney General (C.R. 9) and the District court (C.R. 84), that is relevant to the
public and is not excepted from disclosure. In addition, the University requests a
remand for a full hearing in order to change the legal standards for granting public
information requests in the state.
STATEMENT OF FACTS
A research or investigation starts with a question: What is this about?
Initially, the National Science Foundation (NSF) was contacted on July 17, 2011,
under the Freedom of Information Act (FOIA) 4 with the criteria that such projects
would involve human subjects, perhaps a large research budget, and tested in the
state. On July 23, 2011, the search was refined to specific names of state
universities that met the criteria along with a series of NSF project numbers – the
University was one of several. On August 29, 2011, the NSF responded with
2
3
Office of the Attorney General, 2014 Public Information Handbook, p. 1. Available at
http://www.texasattorneygeneral.gov (last visited 6/2015).
4
5 U.S.C. 552 et. seq.
responsive records and information on institutional review boards (IRB).
The University had three projects that were: in-state, involved human
subjects, utilized labs, and utilized various technology. In September, 2011,
Intervenor submitted email requests, to the University of Texas at Dallas, seeking
documents related to three approved NSF projects: MR 09-50 “Collaborative
Research: Behavioral Insights into National Security Issues” (NSF #0905060),
MR 10-056 “Collaborative Research: Caring for Others…It’s Not
(Just) About the Money” (NSF #1062055), and NSF 10-098 “An Artefactual Field
Experiment on Information from the Social Network: Implications for
Immigration (NSF #1025048). C.R. 14; 43. On September 21, 2011, the
University responded with a request, for an official decision, to the Attorney
General stating: “We anticipate that the balance of responsive documents have
applicable exceptions to disclosure. Accordingly, we reserve all the listed
exceptions in the Public Information Act and those captured by “other law” in
Section 552.101 Texas Government Code.” C.R. 46.5 On September 22nd,
Intervenor sent a response to the Attorney General detailing why the information is
public and should be released. C.R. 20-21. On September 28th, the
University sent a follow-up addendum, to the September 21, 2011 letter, and listed
3
5
Re: Open Record Request #1 from Marilyn Cameron to the University of Texas at Dallas
OGC# 139654.
seven types of information requested which included, but were not limited to:
location of each experimental behavioral lab, copies of continuing reviews,
reports on adverse events, copies of informed consent forms (blank),
names of human subjects, information collected from various community agents
and businesses, and any information related to military (or military-related)
involvement.6 C.R. 49. The University maintained that it (at the time) did not
possess documents responsive to most of the request and asserted that the “names”
were excepted from disclosure under §552.101 of the Texas Government Code
with applicable common law and constitutional privacy rights. C.R. 48-51.
§552.101 excepts from disclosure “information considered to be confidential by
law, either constitutional, statutory, or by judicial decision.” 7 On October, 2011,
Intervenor wrote to the Attorney General regarding the University’s addendum.
The letter addressed some “omissions in research protocol” that would impact the
guidelines for the use of human subjects in research. C.R. 22-25.8 On November
28, 2011, the Attorney General issued letter ruling OR2011-17401, finding that the
University “[had] not demonstrated the submitted information is highly intimate or
embarrassing and not a matter of legitimate public interest.” C.R. 9.
4
6
Re: Addendum Open Record Request #1 from Marilyn Cameron to The University of Texas at
Dallas – AG ID 437160 (OGC#139654).
7
Texas Government Code §552.101.
8
Response to Addendum to Open Record Request (AG ID #437160).
The University filed a lawsuit with the District court on December 9, 2011
(D-1-GV-11-001923) C.R. 3-6; Intervenor filed into the lawsuit on January 18,
2012. C.R. 13-19. Appellee, Attorney General, made an appearance on December
28, 2011. C.R. 10-11.9
On October 22, 2014, Appellants filed a motion for final summary judgment
(C.R. 30-38)10 and Appellee, Attorney General, filed a cross-motion for summary
judgment on October 23, 2014. C.R. 57-66.11 Final judgment, 261st Judicial
District, was granted in favor of Appellee, Attorney General, on November 24,
2014. C.R. 84-85.
STANDARD OF REVIEW
A lawsuit filed under Texas Government Code § 552.324, the Public
Information Act (PIA), which resulted in a summary judgment at the trial court
level requires de novo review. “When both parties have filed motions for summary
judgment, “‘each party bears the burden of establishing that it is entitled to
judgment as a matter of law.’” C.R. 58-59 (citing City of Garland v. Dallas
Morning News, 22 S.W.3d 351, 356 (Tex. 2000).12 Questions regarding whether
information is public under the Public Information Act or whether that information
5
9
See Defendant’s Original Answer.
10
See Plaintiff’s Motion for Final Summary Judgment.
11
See Defendant Attorney General’s Cross-Motion for Summary Judgment and Notice of
Hearing.
12
Id. at 58-59.
is confidential are legal questions. See A & T Consultants, Inc. v. Sharp, 904
S.W.2d 668, 674 (Texas 1995). 13
SUMMARY OF THE ARGUMENT
In this matter, the disputed information is a list of names of research
participants in a national security scenario as part of a federally funded
experimental project conducted by investigators from the University of Texas at
Dallas. In this matter, the University wishes the Court to review the summary
judgment in view of a “more robust” legal standard outside of Texas Government
Code § 552.101 and expand upon the statutory opinion in Industrial Foundation.14
The final summary judgment was correct based upon the evidence presented,
the disputed public information, and the legal framework provided in the Attorney
General Letter Ruling OR2011-1740l. An exception to disclosure, under
common-law, burdens the University with a two-part test. The test was not met. A
list of names, in and of itself, is not embarrassing or intimate, even when attached
to an investigative study conducted by an educational institution. 15 §552.222(b)
directs that requestor need not give reasons for seeking information. Even though
a list of names is public information in regards to the Public Information Act,
6
13
Id. at 59.
14
See Appellants Br. at 9.
15
See Texas Education Code § 61.003 .
the Court is asked to consider how such a request will add a layer of protection for
human research subjects and how the release of additional information on this
collaborative research project are in the interest of the public. The release of the
disputed information will do no harm to the subjects; in fact, the result will be
quite the opposite.
ARGUMENT
I. For the issue and evidence presented, the trial court did not err when
granting final judgment in favor of the motion for summary
judgment requested by the Attorney General.
A. The University presented a case for refusal based upon
exceptions to the Public Information Act, common-law privacy
issues, and constitutional privacy concerns.
The Attorney General is authorized by statute to render opinions, in the
public interest, based upon “legal reasons and principles” for such a decision. 16
Pursuant to Texas Government Code § 402.042, the Attorney General shall, upon
written request, issue a written opinion “on a question affecting the public interest
or concerning the official duties of the requesting person.”
In 2011, the Attorney General, upon request from the University, issued
Letter Ruling OR2011-17401. Concisely written, the letter covers all areas to
justify release of disputed information. Based upon representation by appellants
7
16
Texas Government Code § 402.041.
that it did not possess most documents responsive to Intervenor’s request, the
letter ruling accepted that a good-faith effort was made related to the request and
that the only information at issue was a list of names. C.R. 8. Citing Industrial
Foundation, the University could not withhold information just because there was
an expectation that the information would remain confidential. The submitted
information had to come with an explicit exception to disclosure.
Next, statutory provisions related to common-law privacy rights, Section
552.101, must passed the two-part test as provided by Industrial Foundation.
In order to prove an exception, the information must be (1) of a highly intimate and
embarrassing nature that would be “objectionable to a reasonable person” if
published, and (2) The information must not be of a “legitimate concern to the
public.” C.R. 8. This test was not met.
Next, the letter addressed constitutional privacy as related to the disputed
information, a list of names. Here, the opinion shifts to “zones of privacy”. These
zones relate to intimate personal matters that are, but not limited to, “marriage,
procreation, contraception, family relationships, and child rearing and education”
as recognized by the U.S. Supreme Court. Constitutional privacy is protected
under Section 552.101 for only highly intimate aspects of human life. This
includes protection from having intimate personal matters publicized. C.R. 8.
8
In addition, the Attorney General, through the letter ruling, opinioned that
appellants had not proven that the submitted information was excepted,
under state statute, common-law, or constitutional privacy interests, from
disclosure. C.R.9. With this matter, the same arguments have been raised
throughout the course of litigation; the outcome has sided with the opinion voiced
in the letter ruling. The opinion was based upon sound and ethical legal principles
in matters of privacy and public interests.
Finally, the University raises the issue as to a lack of evidence to support the
summary judgment decision for the Attorney General below. Pursuant to
Texas Rules of Appellate Procedure 38.2(b)(1)(A), evidentiary support, for
judgment in favor of release of disputed information, was provided by Attorney
General Letter Ruling OR2011-17401 C.R. 7-9, Intervenor’s email to support
release of information (September, 2011) C.R. 20-21, and Intervenor’s email to
address omissions and questions regarding grant proposals (October, 2011)
C.R. 22-25.
B. Information on human subject participants is necessary for
transparency, accountability, and protection.
What is in a name that would cause it to be confidential? Is a name the same
as a personal identity? Merriam-Webster’s dictionary defines “name” as a
9
“word or phrase that constitutes the distinctive designation of a person.” 17 Identity
is defined as “the distinguishing character or personality of an individual.” 18 Even
though the dictionary defines a “name” as a “distinctive designation”, it is partly
accurate within a certain context. Take the name “Mary”; within the context of
family and friends, it may well be distinctive. However, what if someone went to
her place of work, a middle to large company, and asked to talk to her. Someone
might ask which one. That person would need to be given additional information
to identify the correct “Mary”. As we know, “Mary” is a very common name and
a very large number of people use that word as a first name. If a common last
name was added to “Mary” and the inquiring person went back to the place of
employment seeking her, the employer might still ask which one. From a
sociolinguistic point of view, most common names are not distinctive enough to
denote singularity, which is about the identification and characteristics of a single
individual. How does today’s society make “Mary” singular? Now, we get into
capturing her identity. Governmental agencies and businesses need to identify,
with precision, a singular individual for various reasons with respect to commerce,
taxes, education, law enforcement, and national security. In order to accomplish
this, these entities, typically, use a stream of singular numerical strings attached
10
17
Merriam-Webster’s Collegiate Dictionary, 11th ed., Merriam-Webster, Inc. (2003), p. 823.
18
Id. at p. 616.
to an individual person’s name which gives that person a singular identity. A name
alone is not enough to identify or distinguish one person from another; something
else is needed. Today, identity is hardly a combination of name, social security
number, date of birth, address, telephone number, financial information, passport
number, driver’s license number, and various other bits of informational available.
One might say that this is yesterday’s information; with technological advances,
facial recognition identifiers, biometric samples, and predictive psychological
subcodes will be added (to existing numerical strings) for cutting-edge, personal
identification profiles in the future. Is a name different from an identity? Yes.
The focus of this lawsuit is a list of names, not personal identities.
Informing the public about the actions of governmental bodies is a hallmark
of the Act and various other initiatives by federal and state government. If a
government-sponsored initiative is cloaked in mystery, can the public feel
comfortable that all is well? Research is a precursor to innovation; however, most
information about experimental research is done hidden from public view. Such
research is published in peer-review journals using the technical language of the
academic discipline and typically there is a fee to access scholarly articles. Project
investigators and others, immediately involved with the research, share results at
conferences far away from the general public, where attendees have an economic,
11
professional, or personal interest in the results. Along with the Freedom of
Information Act and the Texas Public Information Act, other initiatives have given
the public more legal access to information about government-sponsored
innovations and projects. For example, Executive Order 13563 was signed by the
President as a means to increase transparency, accountability, and public
awareness of governmental affairs. Section 4 states:
“[E]ach agency shall identify and consider regulatory
approaches that reduce burdens and maintain flexibility
and freedom of choice for the public. These approaches
include warnings, appropriate default rules, and disclosure
requirements as well as provision of information to the
public in a form that is clear and intelligible.” 19
At the heart of this lawsuit is a list of names. The requestor has followed the
lead of the University; the institution mentioned that it did not, at the time, have
information responsive to most of the items on the public information request. C.R.
45-47 and C.R. 48-51. The requestor accepted that what was claimed was true.
However, there is still a barrier to disclosure for a small part of the initial request.
The University has cited that releasing the requested information violates its
First Amendment right to academic freedom. Appellants Br. at 9. This concern
was not presented before the trial court. The University has successfully received
12
19
U.S. President. Executive Order 13563. “Improving Regulation and Regulatory Review.”
Federal Register 76, no. 14. January 21, 2011, 3821-3823.
government-sponsored funding for research in the past, is conducting such
sponsored research today, and may continue to do so in the future. State
and federal regulations are designed to protect the public’s interests and are not
contradictory to academic freedom.
History teaches us that innovative research and practices can have
significant benefit for many members of society; however, behaviors performed,
outside of public view, in the name of research can cause serious harm to human
subjects. 45 CFR Part 690.102 defines “human subject” as a “living individual
about whom an investigator…obtains data through intervention or interaction with
the individual….” Research is defined as a “systematic investigation, including
research development, testing and evaluation, designed to develop or contribute to
generalizable knowledge.”20 Pursuant to 45 CFR § 690.122, grants funded by a
federal agency cannot be expended unless all policies related to human subjects
have been met. Rules regarding informed consent and oversight by an institutional
review board (IRB) are well-defined “common rule” policies. Section
690.116(a)(5) recognizes that confidentiality may be limited by state policies; it
13
20
Source for definitions are 45 CFR 690.102. 45 CFR 690: Federal Policy for the Protection of
Human Subjects is also called “The Common Rule for the Protection of Human Subjects”.
These rules are in place for all projects funded by the National Science Foundation. Same as 45
CFR Part 46, which relate to U.S. Department of Health and Human Services.
states that informed consent shall include “[a] statement describing the extent, if
any, to which confidentiality of records identifying the subject will be
maintained.”21 The National Science Foundation policies recognize that the public
may need to know information about a research project and its human subjects.
Ethical guidelines and public awareness encourage openness, accountability,
and transparency for research conducted with human subjects. Many people have
heard of well-publicized incidents such as the Tuskegee study and biomedical
experiments on human subjects during the Second World War. During the
Tuskegee study, men were told that they were being treated for a communicable
disease; when in fact, they were participants in a longitudinal study on the
progression of the disease. They were denied care, long after proper treatment had
been discovered. Some incidents are not as well known. In United States v.
Stanley, 483 U.S. 669 (1987), a military sergeant, in 1958, volunteered to
participate in a study on protective clothing and equipment as protection against
harmful chemicals used during warfare. Instead, he and thousands of others, were
given a hallucinogenic drug, commonly known as LSD. He suffered life-altering
side effects. In 1975, he was informed of the use of the drug. He filed a lawsuit
under the Federal Tort Claims Act (FTCA) for civil remedy; however, it was
14
21
45 CFR 690.116(a)(5). 45 CFR 690 can be retrieved through hyperlinks at
http://www.hhs.gov/ohrp/humansubjects/commonrule.
decided that he was injured as an “‘incident to service’” (Stanley citing Feres v.
United States (1950)).22 Under the Feres doctrine, military personnel cannot sue
the Government for injuries sustained while on duty. Stanley was allowed to
amend his claim and file using a Biven’s claim based upon Bivens v. Six Unknown
Fed. Narcotics Agents.23 A claimant can seek civil remedy for constitutional
violations against federal officers (not a government agency). The Court ruled that
there were “special factors” that prevented remedy under a Biven’s claim; service
people are under the military justice system and Stanley’s injuries were judged as
service connected.
With the release of public information, enforceable regulatory safeguards,
and greater public awareness, research can be conducted under appropriate
guidelines and human subjects may be safely and appropriately incorporated into
beneficial research, with legal protection against adverse events.
C. Based upon arguments and evidence, the decision to grant
judgment in favor of the Attorney General was reasonable and
fair.
In this matter, the summary judgment was granted based upon evidence
presented through the Attorney General Letter Ruling, evidence presented by
Intervenor, and documents submitted by the University. The trial court rightfully
15
22
Feres v. United States, 340 U.S. 135 (1950). [Case involving negligence.]
23
403 U.S. 388 (1971).
ruled that the disputed information should be disclosed.
PRAYER
Here now and always, the Intervenor faithfully asks this Court to affirm the
trial court’s decision to grant summary judgment to the Attorney General, and to
release public information.
Respectfully submitted,
/s/ Marilyn Cameron
Marilyn Cameron
18222 Outback Lakes Trail
Humble, TX 77346
Telephone: (713) 320-4092
mizcameron@yahoo.com
Intervenor/Appellee
16
CERTIFICATE OF COMPLIANCE
In compliance with Texas Rules of Appellate Procedure 9.4(i)(2), this brief
contains 2,512 words, excluding parts of the brief exempted by 9.4(i)(1). The
word count is based upon a computer program that was used to type this brief.
Date: July 6, 2015
/s/ Marilyn Cameron
Marilyn Cameron
17
CERTIFICATE OF SERVICE
I hereby certify that on July 6, 2015, a true and correct copy of the
Intervenor’s Brief was served via e-service and/or e-mail, to the following:
H. Melissa Mather
State Bar No. 24010216
Assistant Attorney General
Financial and Tax Litigation Division
P.O. Box 12548
Austin, Texas 78711-2548
Telephone: (512) 475-2540
Fax: (512) 477-2348
melissa.mather@texasattorneygeneral.gov
Attorney for Appellants
Kimberly Fuchs
State Bar No. 24044140
Chief, Open Records Litigation
Administrative law Division
P.O. Box 12548
Austin, Texas 78711-2548
Telephone: (512) 475-4195
Fax: (512) 320-0167
kimberly.fuchs@texasattorneygeneral.gov
Attorney for Appellee
/s/ Marilyn Cameron
Marilyn Cameron
18