Greg Abbott, Attorney General of the State of Texas v. City of Dallas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00686-CV
Greg Abbott, Attorney General of the State of Texas, Appellant
v.
City of Dallas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
NO. D-1-GV-10-000836, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING
OPINION
Greg Abbott, Attorney General of the State of Texas, (the AG) appeals from the trial
court’s determination that documents the City of Dallas sought to withhold from public disclosure
under the Public Information Act (PIA or the Act) as confidential attorney-client communications
are excepted and may be withheld. For the reasons that follow we affirm the trial court’s decision.
FACTUAL AND PROCEDURAL BACKGROUND
On February 19, 2010, the City received a PIA request from Timothy S. Perkins for
information pertaining to the operation of a landfill owned and operated by the City. On
March 30, 2010, the City, seeking to exclude certain documents from the request, sought an opinion
from the AG’s office as to whether the specified documents were subject to public disclosure or
whether the City was correct in believing the documents were protected from disclosure as
attorney-client communications. See Tex. Gov’t Code §§ 552.021 (requiring disclosure of public
information), .301(a) (requiring recipient of request who believes exception applies to ask for
decision from attorney general determining whether agency is required to disclose the information).
The City sought to withhold the documents under sections 552.101 and 552.107(1) of the PIA. See
id. §§ 552.101 (exempting information deemed confidential by constitutional law, statutory law, or
judicial decision), .107(1) (permitting governmental bodies to assert attorney-client privilege found
in Rules of Evidence and Disciplinary Rules of Professional Conduct). The City contended that Rule
of Evidence 503 and Disciplinary Rule of Professional Conduct 1.05(b) brought the information
within the scope of sections 552.101 and 552.107(1). See Tex. R. Evid. 503; Tex. Disciplinary Rules
Prof’l Conduct R. 1.05(b), reprinted in Tex. Gov’t Code, tit. 2, subtit. G, app. A (Tex. State Bar R.
art. X, § 9).
In Letter Ruling OR2010-08285, the AG did not dispute that the information at issue
was protected by the attorney-client privilege but concluded that (1) the attorney-client privilege may
not be asserted under section 552.101 and (2) although the privilege may be asserted under section
552.107(1), that section is discretionary and may be waived unless the governmental body complies
with the procedural requirements of the PIA. The AG concluded that because the City had failed to
comply with the deadline under the Act for requesting an attorney general’s opinion within ten
business days of receiving the request, the City was required to demonstrate a compelling reason for
withholding the information independent of the privileged nature of the information. See id.
§§ 552.301(b) (requiring governmental body to seek attorney general’s opinion no later than 10th
business day after receiving written request), .302 (providing that when governmental body does not
request attorney general’s decision within statutory deadline, information is presumed public and
2
must be released unless there is “compelling reason” to withhold). The AG further concluded that
the City had failed to demonstrate a compelling reason to withhold the information and ordered the
City to release it.
The City disputed the letter ruling and filed suit against the AG, seeking a
determination that the information consists of privileged attorney-client communications and is not
subject to disclosure. See id. § 552.324 (governmental body may file suit against attorney general
in Travis County for declaratory relief seeking to withhold information). The City reasserted its
position that the information was exempt under sections 552.101 and 552.107(1) and argued that
confidentiality under the attorney-client privilege and the harm to the City’s bargaining position in
a multimillion-dollar long-term transaction are compelling reasons to withhold the information. The
parties filed cross-motions for summary judgment. The trial court denied the AG’s motion and
granted the City’s motion, ordering that the information was excepted from public disclosure and
awarding the City costs of litigation.1 See id. § 552.323(b) (providing court may award fees to party
that substantially prevails). In a letter issued simultaneously with its opinion, the trial court
explained its ruling and stated its conclusion that the attorney-client privilege is an inherently
compelling reason to withhold disclosure. This appeal followed.
1
Perkins, the requesting party, intervened but did not file a motion for summary judgment
or respond to the other parties’ motions. His claims were dismissed in the trial court’s final
judgment. He is not a party to this appeal.
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APPLICABLE LAW
The Public Information Act
In 1973, the Texas Legislature enacted what is now the PIA. See generally Act of
May 17, 1973, 63d Leg., R.S., ch. 424, §§ 1–16, 1973 Tex. Gen. Laws 1112, 1112–18; see also City
of Garland v. Dallas Morning News, 22 S.W.3d 351, 355 (Tex. 2000) (plurality op.). The Act’s
purpose is to provide public access “at all times to complete information about the affairs of
government and the official acts of public officials and employees.” Tex. Gov’t Code § 552.001.
“The Act mandates a liberal construction to implement this policy and one favoring a request for
information.” See City of Garland, 22 S.W.3d at 356. Upon receiving a 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). The PIA defines public information
as any information that is “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 or has a right of access to it.”
Id. § 552.002(a)(1), (2). Certain information is specifically excepted from required disclosure. Id.
§§ 552.101–.154 (Subchapter C).
If a governmental body believes that the requested information is excepted from
disclosure, and if there has been no previous determination on the subject, the Act requires the
governmental body to state the exceptions it believes apply and request an opinion from the attorney
general not later than the tenth day after receiving the request. Id. § 552.301(a), (b); City of Garland,
22 S.W.3d at 356. If the governmental body does not timely request an attorney general’s opinion,
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the information is presumed public and must be released unless there is a compelling reason to
withhold it. 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.
Tex. Gov’t Code §§ 552.302, .324; City of Garland, 22 S.W.3d at 356. In an action brought under
section 553.324 of the Act, the court may assess costs of litigation and reasonable attorney’s fees
incurred by a party who substantially prevails. Tex. Gov’t Code § 552.323(b).
Standard of Review
Because the parties do not dispute the relevant facts, this is a proper case for summary
judgment. See City of Garland, 22 S.W.3d at 356. We review a trial court’s summary judgment de
novo. Travelers Ins. Co. 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. Co. v. Knott, 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
issues 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
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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)).
The AG’s issues require us to construe the PIA. In general, matters of statutory
construction are questions of law that we review de novo. See Railroad Comm’n v. Texas Citizens
for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011). “Specifically, whether
information is subject to the Act and whether an exception to disclosure applies to the information
are questions of law.” City of Garland, 22 S.W.3d at 357. 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). “We generally avoid construing
individual provisions of a statute in isolation from the statute as a whole[,]” Texas Citizens,
336 S.W.3d at 628, we must consider a provision’s role in the broader statutory scheme, see 20801,
Inc. v. Parker, 249 S.W.3d 392, 396 (Tex. 2008), and we presume that “the entire statute is intended
to be effective[,]” Tex. Gov’t Code § 311.021(2).
DISCUSSION
In his first issue, the AG argues that the trial court erred in holding that the
information at issue is excepted from disclosure because the City did not timely request an attorney
general’s opinion and then failed to demonstrate a compelling reason for withholding the information
as required under the PIA when the deadline for requesting an opinion is missed. See Tex. Gov’t
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Code §§ 552.301(b), .302. The AG does not dispute that the information consists of
communications protected by the attorney-client privilege. Rather, at the core of the AG’s position
is the premise that the attorney-client privilege must be raised under section 552.107(1), which
permits governmental bodies to assert the attorney-client privilege found in the Rules of Evidence
and the Disciplinary Rules of Professional Conduct, and cannot be asserted under section 552.101,
which exempts information deemed confidential by constitutional law, statutory law, or judicial
decision. See id. §§ 552.101, .107(1). Citing only prior attorney general’s decisions, the AG
contends that statutory exceptions, such as that in section 552.107(1), cannot be raised through
section 552.101 and that discovery privileges, such as the attorney-client privilege, are not
“constitutional law, statutory law, or judicial decision” within the meaning of section 552.101.
The distinction the AG draws between exceptions raised under section 552.101 and
those raised under section 552.107(1) is founded on the AG’s division of exceptions into two
categories: (1) those that use the express terms “confidential” or “confidentiality,” including section
552.101 (the “confidentiality exceptions”), and (2) all others. According to the AG, the
“confidentiality exceptions” make information expressly confidential under law, are mandatory, and
cannot be waived. See, e.g., id. §§ 552.101, .109, .110, .1175, .1176, .119, .121; see also id.
§ 552.352(a) (making it criminal offense to distribute confidential information). Because
governmental bodies have no discretion to release information made confidential by law, the AG
contends, when a governmental body fails to comply with the deadline in section 552.301(b),
confidentiality exceptions may be compelling reasons to withhold information if the governmental
body shows that the information falls within the exception.
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On the other hand, the AG reasons, exceptions that do not use the terms confidential
or confidentiality, including section 552.107(1), are discretionary and can be waived by failure to
comply with the procedural requirements of the PIA. See, e.g., id. §§ 552.103, .104, .105, .106, .107;
see also id. § 552.007 (providing that PIA does not prohibit voluntary disclosure unless disclosure
is expressly prohibited by law or information is confidential under law). The AG concludes that
these exceptions in and of themselves, therefore, cannot constitute compelling reasons, and a
governmental body claiming exemption under one of these exceptions that misses the deadline under
section 552.301(b) must demonstrate an independent compelling reason to withhold the information.
Applying this distinction here, the AG argues as follows: Because a client may waive
the attorney-client privilege, it is discretionary, and because Rule of Evidence 503 and Disciplinary
Rule of Professional Conduct 1.05(b) do not make information confidential for purposes of section
552.101, the City may not assert the privilege under that exception. Instead, the City must assert it
under section 552.107(1). Because section 552.107(1) protects a governmental body’s interests, it
is discretionary and is waived by a governmental body’s failure to comply with the procedural
requirements of the PIA. When the City failed to meet the deadline under section 552.301(b), the
information was presumed public unless it could demonstrate a compelling reason to withhold the
information. See id. §§ 552.301(b), .302. Because section 552.107(1) cannot constitute a
compelling reason, the City cannot merely assert the attorney-client privilege but must demonstrate
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an independent compelling reason to withhold the information. Having failed to do so, the City has
waived the exception under section 552.107(1) and must disclose the information.2
In arguing that the attorney-client privilege may be asserted only under section
552.107(1), and not under section 552.101, the AG relies solely on prior attorney general’s opinions.
See, e.g., Tex. Atty. Gen. OR2002-676 (acknowledging that prior to 1990, AG’s office construed
predecessor to section 552.101 to incorporate attorney-client privilege); Tex. Atty. Gen.
OR1990-575. Although opinions of the attorney general may be persuasive, they are not binding on
courts of appeals. In re Smith, 333 S.W.3d 582, 588 (Tex. 2011). In its opinions, the AG has
consistently concluded that “information considered confidential by law, either constitutional,
statutory, or by judicial decision” under section 552.101 refers to law outside the PIA but does not
include information that falls within the attorney-client privilege. We do not find the attorney
general’s construction of section 552.101 persuasive. Although there is no case in which this issue
has been squarely presented, the supreme court in City of Garland considered whether the PIA’s
agency memorandum exception incorporates the deliberative process and exempted the
memorandum at issue. See 22 S.W.3d at 354, 259–60 (applying section 552.111 of the PIA). In an
explanatory footnote, the supreme court stated, “Section 552.101 of the Texas Public Information
Act exempts information considered confidential by law, including information falling under the
2
The AG has long taken the position that a compelling reason exists when the information
is made expressly confidential by law or when disclosure would implicate the interests of a third
party. See, e.g., Tex. Att’y Gen. OR2002-676; Tex. Att’y Gen. OR1994-630. On that basis, the AG
rejects the City’s argument that the policy supporting the attorney-client privilege is a compelling
reason or that, in the alternative, the avoidance of harm to the City’s bargaining position in a
multimillion-dollar long-term transaction is a compelling reason.
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attorney-client privilege.” Id. at 360 n.5 (emphasis added).3 At the time the supreme court made
this remark concerning the application of section 552.107 to attorney-client privilege information,
section 552.107(1) had been added to the PIA. See Act of Apr. 30, 1993, 73d Leg., R.S., ch. 268,
§ 1, sec. 552.107, 1993 Tex. Gen. Laws 583, 600, amended by Act of May 29, 1995,
74th Leg., R.S., ch. 1035, § 7, sec. 552.107, 1995 Tex. Gen. Laws 5127, 5131. Thus, the existence
of the exception for attorney-client information under section 552.107 did not preclude the supreme
court’s statement that the same information falls within section 552.101.
While this statement of the supreme court in City of Garland was not necessary to
the determination of the case, such dictum has precedential value when it is classified as judicial
dictum. See Tracker Marine, L.P. v. Ogle, No.14-00-00230-CV, 2000 Tex. App. LEXIS 7169, at
*14 (Tex. App.—Houston [14th Dist.] Oct. 26, 2000, no pet.) (mem. op., not designated for
publication). We find this straightforward statement of the supreme court’s reading of section
552.101 persuasive, and it therefore guides us to conclude that the attorney-client privilege may be
asserted under section 552.101. “As an intermediate appellate court, we are not free to mold Texas
law as we see fit . . . .” Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 565 (Tex.
App.—Austin 2004, no pet.). Judicial restraint compels us to leave it to the supreme court to reverse
or modify its prior statements and conclusions. Lubbock Cnty. v. Trammel’s Lubbock Bail Bonds,
80 S.W.3d 580, 585 (Tex. 2002) (only supreme court may reevaluate and modify prior decisions).
3
The Fort Worth Court of Appeals has reached the same conclusion. See Hart v. Gossum,
995 S.W.2d 958, 963 n.2 (Tex. App.—Fort Worth 1999, no pet.) (stating “the ‘information
considered to be confidential by law’ catch-all provision of section 552.101 certainly includes
information governed by the attorney-client privilege”).
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Further, in In re City of Georgetown, 53 S.W.3d 328 (Tex. 2001), the supreme court’s
discussion of what the terms “law” and “other law” encompass informs our decision. In that case,
the supreme court was called upon to construe section 552.022 of the PIA. Section 552.022 provides
that certain categories of public information are “not excepted from required disclosure unless made
confidential under this chapter or other law,” meaning law other than the PIA. See Tex. Gov’t Code
§ 552.022(a) (creating category of information commonly referred to as “core public” or
“superpublic” information); In re City of Georgetown, 53 S.W.3d at 331. The specific issue before
the court was whether the term “other law” includes the work product and consulting expert
privileges contained in the Rules of Civil Procedure. See id. In construing “other law,” the supreme
court also discussed the meaning of “law” and the rules of evidence and procedure:
The term “other law” is not limited to other statutes. The commonly understood
meaning of “law” includes judicial decisions and rules promulgated by the judiciary,
such as rules of procedure and evidence. Although we know of no case in which this
Court has had occasion to construe the term “other law” when used in a statute, we
have said that our rules of procedure “have the same force and effect as statutes.”
Indeed, before this Court adopted rules of civil procedure and evidence, much of the
law governing evidence and court procedures was contained in statutes. In 1939,
when the Legislature by statute “conferred upon and relinquished” to this Court full
rule-making power, it thereby acknowledged our authority to make the law governing
civil procedure and evidence. The law of civil procedure and evidence did not
become any less “law” simply because it moved from legislated statutes to judicially
promulgated rules.
Id. at 332 (citations and footnotes omitted). The supreme court went on to conclude that “[t]he
Texas Rules of Civil Procedure and the Texas Rules of Evidence are ‘other law’ within the meaning
of section 552.022” and that the expert’s report at issue was “‘expressly made confidential’ under
the rules of civil procedure.” Id. at 336. The supreme court’s analysis of the meaning of “law” in
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construing the term “other law” in In re City of Georgetown further supports the analogous
conclusion here that the Rules of Evidence and the Disciplinary Rules of Professional Conduct are
“law” outside the PIA within the meaning of section 552.101. To hold otherwise would seem to
make “regular” information, such as that protected by the attorney-client privilege, more accessible
than “superpublic” information under section 552.022. See Tex. Gov’t Code § 552.022.
We are aware that the AG distinguishes the attorney-client privilege on the basis that,
“[u]nlike most other situations where information is made confidential by some source of law
outside the [PIA], the attorney-client privilege, as incorporated into section 552.107(1)” can be
waived. See Tex. Atty. Gen. OR1994-630. In other words, the AG contends that because the
attorney-client privilege can be waived, it cannot fall under a mandatory exception. However, we
are not persuaded that the fact that the attorney-client privilege may be waived is determinative of
whether attorney-client information falls within the purview of section 552.101. As we have already
noted, the supreme court has concluded that “law” outside the PIA includes the Rules of Evidence
and the Rules of Civil Procedure and has expressly stated that the attorney-client privilege falls
within the purview of section 552.101—notwithstanding its waivable nature. See In re City of
Georgetown, 53 S.W.3d at 336; City of Garland, 22 S.W.3d at 360 n.5. It is also worth noting that
the AG’s argument would subject the attorney-client privilege to waiver under the PIA for failure
to file a request within ten days, whereas the Rules of Evidence and Civil Procedure have recognized
the importance of the attorney-client privilege by developing safeguards that allow for the cure of
inadvertent disclosure. See, e.g., Tex. R. Civ. P. 199.3(d) (permitting party to “clawback” or retrieve
materials inadvertently produced and maintain privilege); Tex. R. Evid. 512 (providing that privilege
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is not defeated by disclosure erroneously compelled or made without opportunity to claim privilege).
In light of the plain language of section 552.101 exempting information considered confidential
under constitutional or statutory law or judicial decision and the supreme court’s guidance on the
application of section 552.101, we conclude that section 552.101 exempts from disclosure
information that is protected by the attorney-client privilege. See Tex. Gov’t Code § 552.101; In re
City of Georgetown, 53 S.W.3d at 336; City of Garland, 22 S.W.3d at 360 n.5.
Compelling Reason
Once a governmental body fails to meet the deadline under section 552.301(b) for
requesting an attorney general’s opinion, the information is presumed public unless there is a
compelling reason to withhold it. See Tex. Gov’t Code § 552.302. The AG has concluded that
section 551.101 provides a compelling reason to overcome the presumption of openness following
a governmental body’s failure to meet the deadline in section 552.301(b) if the governmental
body establishes that the information falls within that exception. See, e.g., Tex. Att’y Gen.
OR2009-12873 (stating section 552.101 can provide compelling reason to withhold information,
considering district attorney’s arguments under section 552.101 even though he failed to comply
with section 552.301(b), but concluding information was not confidential on basis asserted under
section 552.101). We agree. See In re Smith, 333 S.W.3d at 588.
The AG does not dispute that the submitted information falls within the
attorney-client privilege and that the City has not otherwise waived the privilege under the Rules of
Evidence, the Rules of Civil Procedure, or the Disciplinary Rules of Professional Conduct. See Tex.
R. Evid. 503 (establishing attorney-client privilege), 511 (providing for waiver of privilege by
13
voluntary disclosure), 512 (providing that privilege is not defeated by disclosure erroneously
compelled or made without opportunity to claim privilege); Tex. R. Civ. P. 193.3(d) (permitting
party to “clawback” or retrieve materials inadvertently produced and maintain privilege); Tex.
Disciplinary Rules Prof’l Conduct R. 1.05(a) (defining “confidential information” to include
privileged information protected by Rule of Evidence 503), (b) (generally prohibiting attorney from
knowingly disclosing confidential client information). Because the City has shown, and the AG has
not contested, that the submitted information is subject to the attorney-client privilege, it therefore
falls within section 552.101, and is not subject to disclosure. See In re City of Georgetown,
53 S.W.3d at 336; City of Garland, 22 S.W.3d at 360 n.5; cf. Doe v. Tarrant Cnty. Dist. Attorney’s
Office, 269 S.W.3d 147, 155 (Tex. App.—Fort Worth 2008, no pet.) (proof that governmental body
is prohibited by statute from disclosing information and that information is therefore exempt under
section 552.101 is compelling reason).
This conclusion is consistent with the policies behind the attorney-client privilege and
the PIA. Notwithstanding the goal of the PIA of providing full access to governmental information,
see Tex. Gov’t Code § 552.001, the Act nonetheless excepts information covered by the
attorney-client privilege, the “oldest of privileges for confidential communications known to the
common law, ” see Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). And while the privilege
can be voluntarily waived, as the trial court observed, our jurisprudence has seen fit to develop
procedural safeguards against circumstances in which a party inadvertently waives the attorney-client
privilege simply by missing a deadline. See, e.g., 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.
14
proceeding) (per curiam) (under Rule 193.3(d), party who fails to diligently screen documents before
producing them does not waive claim of privilege and rule was intended to restrict waiver in variety
of situations that might arise from inadvertent disclosure of privileged documents) (citing comment
to Rule 193.3(d)); In re JDN Real Estate-McKinney L.P., 211 S.W.3d 907, 921 (Tex. App.—Dallas
2006, orig. proceeding) (evidence that party failed to diligently screen documents was not evidence
that it intended to waive attorney-client privilege or evidence of undue delay in asserting “clawback”
under Rule 193.3(d)); In re Hicks, 252 S.W.3d 790, 794–95 (Tex. App.—Houston [14th Dist.] 2008,
orig. proceeding) (assignment of rights and claims that did not expressly waive attorney-client
privilege did not act as waiver of privilege). Even the lower court in City of Dallas, on which the
AG heavy relies, expressly did not find that the city had waived the attorney-client privilege, only
that it had not shown a “compelling reason” to withhold the information.4 See City of Dallas
v. Abbott, 279 S.W.3d 806, 811–12 (Tex. App.—Amarillo 2007), rev’d on other grounds,
304 S.W.3d 380 (Tex. 2010).
Nor do we believe that including attorney-client information under section 552.101
eliminates the incentive for a governmental body to request an attorney general’s opinion. Reading
section 552.101 to include attorney-client information creates no more a disincentive to comply with
the PIA than already exists with regard to any other information excepted under section 552.101.
4
The AG relies on City of Dallas, in which the Amarillo Court of Appeals held that after
missing the section 552.301(b) deadline, the City was required to demonstrate a compelling reason
independent of the attorney-client privilege. See City of Dallas v. Abbott, 279 S.W.3d 806, 811 (Tex.
App.—Amarillo 2007), rev’d on other grounds, 304 S.W.3d 380 (Tex. 2010). However, in that case
there is no discussion of which section of the PIA formed the basis of the City’s claim of
attorney-client privilege, and the court did not address the application of section 552.101. We do
not find City of Dallas controlling.
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In all instances under section 552.101, a governmental body needs to establish that the information
at issue falls within the section, i.e., that the information is not subject to disclosure. It also needs
to seek rulings so that it can assert additional exceptions in the event the AG concludes section
552.101 does not apply and so that it can avoid the possibility of defending a mandamus action.
See Tex. Gov’t Code § 552.321 (providing that requestor or AG may seek mandamus to
compel disclosure).
Because we conclude that attorney-client information falls within the purview of
section 552.101 and that the City has demonstrated a compelling reason to withhold the information
by establishing that it is protected by the attorney-client privilege and is therefore excepted by section
552.101, we overrule the AG’s first issue. We therefore do not reach the AG’s second issue, in
which it seeks attorney’s fees as the substantially prevailing party in the event we reverse the
trial court.
CONCLUSION
Having overruled the AG’s first issue, we affirm the trial court’s judgment.
__________________________________________
Melissa Goodwin, Justice
Before Chief Justice Jones, Justices Rose and Goodwin
Dissenting Opinion by Chief Justice Jones
Affirmed
Filed: December 23, 2014
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