Texas Commission on Environmental Quality v. Sierra Club and Ken Paxton, Attorney General of Texas ( 2022 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00256-CV
Texas Commission on Environmental Quality, Appellant
v.
Sierra Club and Ken Paxton, Attorney General of Texas, Appellees
FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-19-006941, THE HONORABLE JAN SOIFER, JUDGE PRESIDING
MEMORANDUM OPINION
The Texas Commission on Environmental Quality (the Commission) sued Ken
Paxton, Attorney General of the State of Texas, seeking declaratory relief from compliance with
an attorney general decision ordering the Commission to disclose certain information requested
by the Sierra Club. See Tex. Gov’t Code § 552.324 (authorizing suit against attorney general by
governmental body that seeks to withhold information attorney general has ordered disclosed
pursuant to Public Information Act). The Sierra Club intervened, seeking a writ of mandamus
to compel the disclosure of the responsive documents. See id. § 552.321 (waiving sovereign
immunity for requestor seeking mandamus to compel disclosure). The Sierra Club and the
Commission filed competing motions for summary judgment. The district court denied the
Commission’s motion, granted the Sierra Club’s, and ordered the Commission to produce the
requested documents to the Sierra Club. The Commission then perfected this appeal. We will
affirm the district court’s summary judgment.
BACKGROUND
On July 1, 2019, the Commission received a request pursuant to the Public
Information Act (PIA) for documents and records relating to the Commission’s proposed or
final Development Support Document entitled “Ethylene Oxide Carcinogenic Dose-Response
Assessment” and documents and records relating to the Commission’s action to create a unit risk
factor, unit risk estimate, or cancer-risk value or metric for ethylene oxide. The Commission
released some information, asserted that some of the information was not subject to the PIA, and
withheld some information on the ground that it was excepted from disclosure under PIA section
552.111, which provides that “[a]n interagency or intraagency memorandum or letter that would
not be available to a party in litigation with the agency is excepted from the requirements of
Section 552.021 [that public information must be made available to the public].” Id. § 552.111.
The Commission asserted that it withheld information it maintained was protected by the
deliberative process privilege. See City of Garland v. Dallas Morning News, 22 S.W.3d 351,
360 (Tex. 2000) (recognizing that “Texas courts and the Attorney General have consistently
recognized that [the exception from disclosure provided by section 552.111] encompasses the
common law deliberative process privilege, which protects certain agency communications from
discovery” and that the privilege protects predecisional and deliberative communications related
to agency’s policymaking).
In conjunction with its decision to withhold certain records, the Commission
sought a decision from the Attorney General’s Open Records Division (ORD) that the records it
withheld fell within the agency memorandum exception in Government Code section 552.111
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because they were protected by the deliberative process privilege.1 See Tex. Gov’t Code
§ 552.301(a) (governmental body that receives written request for information it wishes to
withhold under section 552.111 must ask for decision from attorney general about whether
information is within that exception), (b) (governmental body must ask for attorney general’s
decision and state exceptions that apply not later than 10th business day after date of receiving
the request). The Commission placed its letter requesting the Attorney General’s decision into
the Commission’s interagency outgoing mailbox on July 17, 2019. The ORD’s letter decision
determined that the Commission’s username and password for a website were not information
made public under the PIA and that it was not required to release it. With regard to the
Commission’s request for a decision on whether it could withhold information based on section
552.111, the ORD stated that because the Commission did not timely request an attorney general
decision “the requested information is public and must be released unless there is a compelling
reason to withhold the information from disclosure.” See id. § 552.302 (if governmental body
does not request attorney general decision within ten business days of receiving written request
for information, requested information is presumed to be subject to required public disclosure
and must be released unless there is compelling reason to withhold it); Paxton v. City of Dallas,
509 S.W.3d 247, 252 (Tex. 2017) (“In harmony with the policy underlying the PIA’s prompt-
production requirement, the governmental body asserting an exception 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.’ If a request for decision is untimely, ‘the information requested
1
The Commission also asserted that it could withhold an email communication
containing the Commission’s username and password for the American Conference of
Governmental Industrial Hygienists on the ground that it is not public information subject to the
PIA. The ORD determined that this communication could be withheld and it is not at issue in
this appeal.
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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.’”) (citations omitted). The ORD
further determined that the Commission failed to establish a compelling reason to withhold the
information and, consequently, the Commission could not withhold the requested information
pursuant to Government Code section 552.111. See Tex. Att’y Gen. OR2019-26474.
The Commission then filed suit against the Attorney General seeking to withhold
the records from the Sierra Club. See Tex. Gov’t Code § 552.324 (governmental body may file
suit against attorney general seeking declaratory relief from attorney general opinion issued
under section 552.301). The Attorney General answered and requested that the district court
render judgment declaring that the information must be disclosed to the requestor. The Sierra
Club intervened and sought a writ of mandamus to compel the Commission to disclose the
requested information. See id. § 552.321 (requestor may file suit for writ of mandamus
compelling governmental body to make information available for public inspection if
governmental body refuses to supply information that attorney general has determined is not
excepted from disclosure). The Commission and the Sierra Club each filed motions for
summary judgment. The district court granted the Sierra Club’s motion and denied the
Commission’s. The Commission perfected this appeal.
APPLICABLE LAW
The Public Information Act
The purpose of the PIA is to provide public access “at all times to complete
information about the affairs of the government and the official acts of public officials and
employees.” Id. § 552.001. “The Act mandates a liberal construction to implement this policy
and one favoring a request for information.” City of Garland, 22 S.W.3d at 356. On receiving a
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request for information, a governmental body’s public information officer must promptly
produce public information for inspection, duplication, or both. Tex. Gov’t Code § 552.221(a).
Certain information is specifically excepted from required disclosure. Id. §§ 552.101-.154.
If a governmental body believes the requested information is excepted from
disclosure, and if there has been no previous determination on the subject, the PIA requires
the governmental body to state the exceptions it believes apply and request an opinion from
the attorney general not later than the tenth business day after receiving the request. See id.
§ 552.301; City of Garland, 22 S.W.3d at 356. If the governmental body does not timely request
an attorney general’s opinion, the information is presumed public and must be released unless
there is a compelling reason to withhold it. See Tex. Gov’t Code § 552.302; City of Dallas v.
Abbott, 304 S.W.3d 380, 381 (Tex. 2010). If the attorney general rules that the PIA does
not exempt the information from disclosure or that a governmental body that has failed to
timely request an opinion has not demonstrated a compelling reason to withhold the information,
the public information officer must make it available to the requesting party or seek a
judicial determination that the information does not have to be disclosed. See Tex. Gov’t Code
§§ 552.302, .324; City of Garland, 22 S.W.3d at 356. The governmental body has the burden of
proving in a judicial proceeding that an exception to disclosure applies. City of San Antonio v.
Abbott, 432 S.W.3d 429, 431 (Tex. App.—Austin 2014, pet. denied).
Standard of Review
We review a trial court’s summary judgment de novo. Travelers Ins. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). When the trial court does not specify the grounds for granting
the motion, we must uphold the judgment if any of the grounds asserted in the motion
and preserved for appellate review are meritorious. Provident Life & Accident Ins. v. Knott,
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128 S.W.3d 211, 216 (Tex. 2003). When both parties move 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; Abbott v. Dallas Area Rapid Transit, 410 S.W.3d 876, 879 (Tex.
App.—Austin 2013, no pet.). When both parties move for summary judgment on the same issue
and the trial court grants one motion and denies the other, we consider the summary judgment
evidence presented by both sides, determine all questions presented and, if we determine that the
trial court erred, render the judgment the trial court should have rendered. Valence Operating
Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) (citing FM Props. Operating Co. v. City of
Austin, 22 S.W.3d 868, 872 (Tex. 2000)).
This appeal requires that we construe the PIA. In general, matters of statutory
construction are questions of law that we review de novo. See Railroad Comm’n of Tex. v. Texas
Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011). Our primary
concern is the express statutory language. See Galbraith Eng’g Consultants, Inc. v. Pochucha,
290 S.W.3d 863, 867 (Tex. 2009). We apply the plain meaning of the text unless a different
meaning is supplied by legislative definition or is apparent from the context or the plain meaning
leads to absurd results. Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 663 (Tex. 2010).
“Construction of a statute must be consistent with its underlying purpose.” Northwestern Nat’l
Cnty. Mut. Ins. v. Rodriguez, 18 S.W.3d 718, 721 (Tex. App.—San Antonio 2000, pet. denied).
DISCUSSION
Was the Commission’s Request for an Attorney General Decision Timely?
In its first issue, the Commission asserts that its request for an attorney general
decision was timely—i.e., that the request was made within ten business days of the
Commission’s receipt of the Sierra Club’s request. See Tex. Gov’t Code § 552.301(b). The
6
Commission received the Sierra Club’s request on Monday July 1, 2019. It placed its request for
an attorney general decision in interagency mail on Wednesday July 17, 2019. The parties agree
that Thursday, July 4; Saturday, July 6; Sunday, July 7; Saturday, July 13; and Sunday, July 14
are not counted for purposes of determining what date constitutes the tenth business day from
July 1. The Sierra Club argues that the tenth business day after Monday, July 1, 2019, was
Tuesday, July 16, 2019, and that the Commission’s July 17 request was therefore untimely. The
Commission counters that, in addition to the weekend dates and the July 4 holiday, Friday, July 5
should not be counted because the Commission “was closed” on that day “in observance of
the Independence Day holiday,” and therefore July 5 was not a “business day” for purposes
of calculating the deadline for requesting an attorney general opinion. As evidence that it was
“closed” on July 5, 2019, the Commission submitted the affidavit of one of its legal assistants
in which she attested that “the agency was closed July 4-5, 2019, in observance of the
Independence Day holiday.” Thus, according to the Commission, the tenth business day after
July 1, 2019, was July 17, 2019, the day it placed its request in interagency mail. See id.
§ 552.308(b) (request to attorney general is timely if agency provides evidence sufficient to
establish that request was deposited in interagency mail within specified time period). To
resolve this dispute, we must determine the meaning of the term “business day” in the PIA—
specifically whether it includes dates that an agency has unilaterally declared itself to be
“closed.”
Throughout the PIA, the statute mandates that virtually all deadlines are
calculated using “business days.” See, e.g., id. §§ 552.221(d) (directing agency that cannot
produce public information for inspection within ten business days after date information is
requested to certify fact in writing and set date information will be available), .225(a) (providing
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that requestor must complete examination of information not later than tenth business day after
date information is made available), .2615(b) (providing that requestor must respond to itemized
cost of copying requested public information within ten business days after date statement sent to
requestor), .301(b) (request for attorney general opinion must be made within ten business days
of receiving request for public information). The term “business day” is not defined in the
statute. “When a statute uses a word that it does not define, our task is to determine and apply
the word’s common, ordinary meaning.” Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 563
(Tex. 2014). In determining the common, ordinary meaning of a term, we may look to a “wide
variety of sources, including dictionary definitions, treatises and commentaries, our own prior
constructions of the word in other contexts, the use and definition of the word in other statutes
and ordinances, and the use of the words in our rules of evidence and procedure.” Id. The
common meaning of “business day” is “a day that most institutions are open for business.”
Black’s Law Dictionary 454 (9th ed. 2009). The term “business day” is defined in the Texas
Government Code, and in other statutes, as a day other than a Saturday, Sunday, or legal holiday.
See Tex. Gov’t Code § 2116.001 (“‘Business day’ means day other than a Saturday, Sunday, or
banking holiday for bank chartered under the laws of this state.”); Tex. Est. Code § 452.004
(defining “business day” as “a day other than a Saturday, Sunday, or holiday recognized by this
state”); Tex. Fam. Code § 86.0011 (defining “business day” as “a day other than a Saturday,
Sunday, or state or national holiday”); Tex. Health & Safety Code § 775.0221 (defining
“business day” as “a day other than a Saturday, Sunday, or state or national holiday”); Tex. Ins.
Code § 542.051 (defining “business day” as “a day other than a Saturday, Sunday, or holiday
recognized by this state”); Tex. Loc. Gov’t Code § 143.034 (when computing five-business-day
period for seeking review of fire or police department promotional exam results “a Saturday,
8
Sunday, or legal holiday is not considered a business day”); Tex. Prop. Code § 62.026 (defining
“business day” as “a day other than a Saturday, Sunday, or holiday recognized by this state”).
Similarly, for purposes of computing time periods, the Texas Rules of Civil Procedure exclude
Saturdays, Sundays, and legal holidays when the last day of the time period falls on one of
those days and also excludes Saturdays, Sundays, and legal holidays from computation of any
time period of five days or less. See Tex. R. Civ. P. 4. And for the purpose of computing time
periods, the Texas Rules of Appellate Procedure also exclude Saturdays, Sundays, and legal
holidays when the last day of the time period falls on one of those days. See Tex. R. App. P. 4.1.
None of these statutes or rules contemplates that a time period may be extended by not counting
a day on which the person or entity required to meet the deadline has decided that it will
be “closed.”
The Legislature has defined both the national holidays and state holidays that the
state recognizes. See Tex. Gov’t Code § 662.003. The national holidays are: (1) the first day of
January, “New Year’s Day”; (2) the third Monday in January, “Martin Luther King, Jr. Day”;
(3) the third Monday in February, “Presidents’ Day”; (4) the last Monday in May, “Memorial
Day”; (5) the fourth day of July, “Independence Day”; (6) the first Monday in September,
“Labor Day”; (7) the 11th day of November, “Veterans Day”; (8) the fourth Thursday in
November, “Thanksgiving Day”; and (9) the 25th day of December, “Christmas Day.” Id.
§ 662.003(a). The state holidays are (1) the 19th day of January, “Confederate Heroes Day”;
(2) the second day of March, “Texas Independence Day”; (3) the 21st day of April, “San Jacinto
Day”; (4) the 19th day of June, “Emancipation Day in Texas”; (5) the 27th day of August,
“Lyndon Baines Johnson Day”; (6) the Friday after Thanksgiving Day; (7) the 24th day of
December; and (8) the 26th day of December. Id. § 662.003(b). The Legislature has also
9
designated the days on which Rosh Hashanah, Yom Kippur, or Good Friday fall as “optional
holidays.” Id. § 662.003(c). July 5th, the day after Independence Day, is not included in the list
of holidays or optional holidays recognized by the State. Moreover, the Government Code
provides that a state agency “shall have enough employees on duty during a state holiday to
conduct the public business of the agency or institution.” See id. § 662.004. Thus, even when a
state agency observes a state holiday, it must be staffed sufficiently to conduct its public
business. It must also be the case, then, that when an agency such as the Commission chooses to
“close” its office on a day that is neither a national nor state holiday, such as July 5th, it must still
have enough employees on duty to conduct its public business, which includes complying with
the deadlines set forth in the PIA for handling requests for public information. See Paxton,
509 S.W.3d at 251 (“The prompt production of public information furthers the ‘fundamental
philosophy’ that ‘government is the servant and not the master of the people.’”); see also Tex.
Gov’t Code § 552.221 (governmental body must “promptly” produce public information after
receiving request for disclosure, meaning “as soon as possible under the circumstances, that is,
within a reasonable time, without delay”). We see no support in the common meaning of the
term “business day,” in the manner in which it has been defined in various statutes and court
rules, or in the policy of the PIA, for concluding that the term “business day” excludes not only
Saturdays, Sundays, and legal holidays, but also days that a state agency decides to “close” its
office in extended observance of a national holiday. Therefore, July 5, 2019, constitutes a
“business day” for purposes of computing the deadline for the Commission to have requested an
attorney general decision about whether the information the Sierra Club requested was within the
asserted exception to disclosure under the PIA.
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The Commission also asserts that the ten-business-day period should commence
on July 2, rather than July 1, because it maintains that it asked the Sierra Club to clarify its
request pursuant to Government Code section 552.222(b). See Tex. Gov’t Code § 552.222(b).
That provision of the PIA provides, “If what information is requested is unclear to the
governmental body, the governmental body may ask the requestor to clarify the request.” When
a governmental body acting in good faith requests clarification, the ten-day period to request an
attorney general’s opinion is measured from the date the request is clarified. See City of Dallas,
304 S.W.3d at 381, 384. The Commission argues that the following July 2, 2019 email from the
Commission to a Sierra Club representative constitutes a request for clarification under section
552.222(b):
We are in receipt of your public information request to the Texas Commission on
Environmental Quality, PIR No. 48291 for information related to the TCEQ,
proposed Development Support Document, Ethylene Oxide Carcinogenic Dose-
Response Assessment (June 28, 2019).
Please clarify whether your request is seeking confidential information. If you
request confidential information, we will need to seek an Attorney General
opinion for the requested confidential material or information. It may take up to
60 days for the Attorney General to reach a determination on our request.
Please let me know how you would like to proceed.
On the same day, the Sierra Club representative responded: “Yes, we would like to receive
all responsive information that TCEQ may believe is confidential, but that must be released
under the TX Public Information Act.” The issue, then, is whether the Commission’s email
constitutes a section 552.222(b) good faith request to clarify “what information” the Sierra Club
was requesting because it was unclear to the Commission “what information” was included in
the request.
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For two reasons, we conclude that this email does not constitute a section
552.222(b) request for clarification. First, the email does not ask the Sierra Club to clarify the
subject matter of the information it has requested but, rather, asks the Sierra Club if it is
requesting information related to the subject matter of the request that the Commission considers
to be confidential. The email begins by stating that the Commission has received the Sierra
Club’s request for “information related to the TCEQ proposed Development Support Document,
Ethylene Oxide Carcinogenic Dose-Response Assessment (June 28, 2019).” This indicates that
it was clear to the Commission what information the Sierra Club was requesting but simply
wanted to determine whether the Sierra Club sought to obtain both confidential and non-
confidential categories of responsive documents. Second, the email does not include the
statutorily mandated statement regarding the consequences of failing to timely respond to a
written request for clarification. See Tex. Gov’t Code §§ 552.222(e) (“A written request for
clarification or discussion under Subsection (b) [] must include a statement as to the
consequences of the failure by the requestor to timely respond to the request for clarification,
discussion, or additional information.” (emphasis added)); .222(d) (“If by the 61st day after
the date a governmental body sends a written request for clarification or discussion under
Subsection (b) [] the governmental body, officer for public information, or agent, as applicable,
does not receive a written response from the requestor, the underlying request for public
information is considered to have been withdrawn by the requestor.”). The failure of the
Commission to include the statutorily mandated warning confirms that the Commission’s email
was not intended to be a section 552.222(b) request for clarification that would have any effect
on the computation of the ten-business day deadline for requesting an attorney general decision.
We overrule the Commission’s first issue.
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Did the Commission Establish a Compelling Reason to Withhold Information?
In its second issue, the Commission argues that, even if we conclude that its
request for an attorney general decision was untimely, the information that it contends is covered
by the deliberative process privilege may still be withheld because that privilege establishes a
compelling reason for withholding the information under section 552.302. See id. § 552.302
(untimely request for attorney general decision gives rise to presumption that information must
be disclosed absent a “compelling reason to withhold the information”). The issue before us,
then, is whether the interests protected by the deliberative process privilege are sufficiently
compelling to rebut the public-disclosure presumption that arises on expiration of the PIA’s ten-
business day deadline. See Paxton, 509 S.W.3d at 256 (“In some instances, important policies
and interests that animate a statutory exception are compelling in their own right.”).
The PIA does not define the reasons that may be “compelling” enough to
withhold requested information following an untimely request for an attorney general decision.
The Texas Supreme Court, however, has provided extensive guidance on the issue in its opinion
in Paxton v. City of Dallas. See id. at 256-60 (analyzing whether attorney-client privilege is
compelling reason to withhold requested information). The court explained:
The meaning of the term “compelling” is of vital importance to our analysis
because it represents a qualitative limitation on the justifications that permit
withholding information from public disclosure. Neither a reason nor even a
good reason would be sufficient to rebut the public-disclosure presumption. The
reason must be “compelling.”
Our examination of dictionaries, treatises, and judicial constructions of similar
language reveals the term “compelling” connotes urgency, forcefulness, and
significantly demanding concerns. “Compelling” means “[u]rgently requiring
attention” and “[d]rivingly forceful”’ “not able to be resisted; overwhelming” and
“not able to be refuted; inspiring conviction”; and “calling for examination,
scrutiny, consideration, or thought.”
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Id. at 258. The court then analyzed whether the interests protected by the attorney-client
privilege are sufficiently compelling to rebut the public-disclosure presumption and concluded
that they are. The court explained that the “attorney-client privilege holds a special place among
privileges” and is the “oldest and most venerated” and “the most sacred of all recognized
privileges.” Id. at 259. The court reasoned that the attorney-client privilege was a compelling
reason to withhold documents presumed to be public because the privilege is “essential to the
just and orderly operation of our legal system” and “has been a cornerstone of our legal system
for nearly 500 years.” Id. at 261.
Informed by the Texas Supreme Court’s analysis in Paxton, we consider whether
the deliberative process privilege also protects an interest sufficiently compelling to rebut the
public-disclosure presumption. Section 552.111 exempts from disclosure “[a]n interagency or
intraagency memorandum or letter that would not be available by law to a party in litigation
with the agency.” Tex. Gov’t Code § 552.111. “Texas courts and the Attorney General have
consistently recognized that this exception encompasses the common law deliberative process
privilege, which protects certain agency communications from discovery.” City of Garland,
22 S.W.3d at 361 (citations omitted). In contrast to the attorney-client privilege, the deliberative
process privilege was not recognized in Texas until the year 2000. See id. at 360 (“Whether the
deliberative process privilege exists in Texas and, if it does, the privilege’s scope, are issues of
first impression for this Court.”). In recognizing the privilege, the court cautioned that its scope
must be limited to resist the “‘inevitable temptation’ on the part of governmental litigants to
interpret the exception as expansively as necessary to apply it to the particular records it seeks to
withhold,” which would result in allowing “the exception to swallow the [PIA]” and undermine
the “strong statement of public policy favoring public access to governmental information and
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[the] statutory mandate to construe the [PIA] to implement that policy and to construe it in favor
of granting a request for information.” Id. at 362-64.
The deliberative process privilege exemption in the PIA is modeled after an
exemption in the Freedom of Information Act that protects “inter-agency or intra-agency
memorandums or letters that would not be available by law to a party other than an agency in
litigation with the agency.” 5 U.S.C. § 552(b)(5). “The purpose of the privilege is to protect the
agency decision-making process from the inhibiting effect that disclosure of predecisional
advisory opinions and recommendations might have on the ‘frank discussion of legal or policy
matters’ in writing.” Skelton v. United States Postal Serv., 678 F.2d 35, 38 (5th Cir. 1982)
(discussing statutorily created deliberative process privilege in Freedom of Information Act).
The privilege, however, is qualified; it is not absolute. Federal Trade Comm’n v. Warner
Commc’ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). “The deliberative process privilege is
qualified and can be overcome ‘by a sufficient showing of need.’” Harding v. City of Dallas,
No. 3:15-CV-0131-D, 2016 WL 7426127, at *12 (N.D. Tex. Dec. 23, 2016). Courts consider
multiple factors when determining whether the deliberative process privilege is overcome,
including the relevance of the evidence, the availability of other evidence, the extent to which
disclosure would hinder frank and independent discussion regarding contemplated policies and
decisions, the interest of the party seeking the information in accurate judicial fact finding, and
the presence of issues concerning alleged governmental misconduct. See Doe v. City of San
Antonio, No. SA-14-CV-102-XR, 2014 WL 6390890, at *2 (W.D. Tex. 2014) (citing Smartwood
v. County of San Diego, No. 12CV1665-W BGS, 2013 WL 6670545 (S.D. Cal. Dec. 18, 2013)
(holding privilege did not protect child welfare service agency’s internal investigation from
discovery in a section 1983 lawsuit after balancing relevant factors)). The deliberative process
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privilege exception to disclosure is “‘not an absolute shield’ and is to be construed in the light
of the act’s mandate that information regarding the affairs of government and the official
acts of those who serve the public be freely available to all.” Lett v. Klein Indep. Sch. Dist.,
917 S.W.2d 455, 457 (Tex. App.—Houston [14th Dist.] 1996, writ denied) (citing Texas
Dep’t of Pub. Safety v. Gilbreath, 842 S.W.2d 408, 412 (Tex. App.—Austin 1992, no writ)).
Significantly, unlike the attorney-client privilege, our jurisprudence has not developed
procedural safeguards against circumstances in which a party inadvertently waives the privilege
by missing a deadline. Cf. Tex. R. Civ. P. 193.3(d); In re Certain Underwriters at Lloyd’s
London, 294 S.W.3d 891, 904 (Tex. App.—Beaumont 2009, orig. proceeding) (per curiam)
(under Rule 193.3(d), party who fails to diligently screen documents before producing them does
not waive claim of attorney-client privilege and rule was intended to restrict waiver in variety of
situations that might arise from inadvertent disclosure of privileged documents).
For these reasons, we decline to hold that the deliberative process privilege is on
equal footing with the attorney-client privilege such that its application constitutes a compelling
reason to withhold information. Unlike the attorney-client privilege, the deliberative process
privilege does not “reflect a foundational tenet in law,” is not an “old and venerated” privilege,
and is not unqualified. We conclude that the deliberative process privilege does not meet the
Legislature’s requirement that a justification for withholding information presumed public be
“compelling.” See Paxton, 509 S.W.3d at 258 (“The meaning of the term ‘compelling’ is of
vital importance to our analysis because it represents a qualitative limitation on the justifications
that permit withholding information from public disclosure.”). We overrule the Commission’s
second issue.
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May the Commission Withhold Documents It Claims Are Not Responsive to the PIA Request?
In its third issue, the Commission asserts that the trial court erred by rejecting the
Commission’s argument, raised for the first time in its third amended motion for summary
judgment, that certain documents it seeks to withhold are not responsive to the Sierra Club’s PIA
request. In its summary-judgment motion, the Commission identified six documents that it
claimed were not responsive to the PIA request. The Commission stated that it had produced
these documents “in an abundance of caution, as there was not adequate time to review all 6,414
pages of potentially responsive information provided by various TCEQ staff before the request
for a ruling to the Attorney General was submitted.” Thus, the Commission sought a ruling
from the district court that “certain portions of the information at issue are not responsive to the
Sierra Club’s [PIA] request, and therefore, should not be released.” We conclude that the district
court did not err in denying the Commission’s summary-judgment motion seeking to withhold
documents on the ground that they are nonresponsive to a PIA request. The PIA provides that
“the only suit a governmental body may file seeking to withhold information from a requestor is
a suit that . . . seeks declaratory relief from compliance with a decision by the attorney general
issued under Subchapter G.” Tex. Gov’t Code § 552.324 (emphasis added).2 Section 522.301
states that a governmental body may ask the attorney general for a decision about whether the
information is within one of the exceptions under Subchapter C. Id. § 522.301. Subchapter C
lists the various exceptions to the general rule that information collected, assembled, or
maintained by or for a governmental body is public information and is available by request. Id.
§ 552.002(a); see Boeing Co. v. Paxton, 466 S.W.3d 831, 832 (Tex. 2015). Thus, a
governmental agency may not seek declaratory relief in district court unless the relief it seeks is
2
The statute notes that “Subchapter G” refers to Texas Government Code sections
522.301-.309.
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from an attorney general decision regarding application of one of the Subchapter C exceptions.
There is no exception under Subchapter C for information that is claimed to be nonresponsive to
a PIA request; therefore, the Commission could not assert nonresponsiveness of information as a
basis for withholding it in the underlying suit. See Thomas v. Cornyn, 71 S.W.3d 473, 480-81
(Tex. App.—Austin 2002, no pet.).3 The district court properly denied the Commission’s request
to withhold information on that basis. We overrule the Commission’s third appellate issue.4
CONCLUSION
Having overruled the Commission’s three issues on appeal, we affirm the trial
court’s order denying the Commission’s motion for summary judgment. We also affirm the trial
court’s order granting the Sierra Club’s motion for summary judgment, ordering the Commission
to produce to the Sierra Club the documents submitted in camera and marked with Bates
Numbers 0001 through 6414, and awarding the Sierra Club attorneys’ fees and costs.
3
Consistent with the suit’s being limited to review of the attorney general’s decision
regarding the application of a Subchapter C exception is Texas Government Code section
552.326, which provides that “the only exceptions to required disclosure within Subchapter C
that a governmental body may raise in a suit filed under this chapter are exceptions that the
governmental body properly raised before the attorney general in connection with its request for
a decision regarding the matter under Subchapter G.” See Tex. Gov’t Code § 552.326.
4
On appeal the Commission asserts that because the Sierra Club should not have
prevailed on its motion for summary judgment, the district court’s award of attorneys’ fees and
costs should be reversed. Because we conclude that the district court did not err in granting
the Sierra Club’s motion for summary judgment, we also affirm the award of attorneys’ fees
and costs.
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__________________________________________
Chari L. Kelly, Justice
Before Chief Justice Byrne, Justices Kelly and Smith
Affirmed
Filed: November 22, 2022
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