administrative and litigation records jennifer luttrall cindy nettles assistant attorneys general...

Administrative and

Litigation Records

Jennifer LuttrallCindy Nettles

Assistant Attorneys GeneralOpen Records Division

Views expressed are those of the presenter, do not constitute legal advice and are not official opinions of the Office of the Texas Attorney General

What does section 552.103 protect?

• Information related to civil or criminal litigation involving a governmental body, or its employees in their employment capacity, that was pending or reasonably anticipated on the date the governmental body received the request for information.

INTRODUCTION (Slide 1 of 3)Section 552.103: The Litigation Exception

What does the attorney-client privilege protect?

• Communications

Between and among lawyers, lawyers’ representatives, clients, and clients’ representatives

That were made for the purpose of providing legal services and

That were intended to be confidential and have remained confidential.

INTRODUCTION (Slide 2 of 3)Section 552.107(1) and Rule 503

What does section 552.111 protect?

• An interagency or intra-agency memorandum or letter that would not be available by law to a party in litigation with the agency.

• Section 552.111 incorporates two distinct types of privileges:

The deliberative process privilege and

The attorney work product privilege.

INTRODUCTION (Slide 3 of 3)Section 552.111: Agency Memoranda

Section 552.103: The Litigation

Exception

Section 552.103: The Litigation Exception (Slide 1 of 2)

What must you demonstrate?

• The governmental body is a party to litigation that is pending or reasonably anticipated

• On the date the governmental body received the request for information, and

• How the information at issue is related to the pending or reasonably anticipated litigation

Section 552.103: The Litigation Exception (Slide 2 of 2)

Fred Colon has worked as a foot patrol officer for the City Watch Department in his hometown, the City of Ankh-Morpork, for ten years. Fred applied for a promotion to Sergeant. Unfortunately, Fred did not get the promotion. His pride wounded, Fred files a disability discrimination complaint against the city with the Equal Employment Opportunity Commission (the “EEOC”).

A few weeks later, Fred hires an attorney, Mr. Honeyplace, of the law firm Slant & Honeyplace, to help him pursue his EEOC complaint. Mr. Honeyplace makes a written request to the city seeking all documents related to the denial of Fred’s promotion, including Fred’s annual evaluations and any communications regarding the city’s consideration of Fred for the promotion.

Section 552.103: Hypothetical #1 (Slide 1 of 6)

The responsive information includes ten years of annual evaluations. The information also contains e-mails between Fred’s supervisor and another City Watch Department supervisor discussing Fred’s frequent pattern of calling in sick the day after a local football game.

The city timely requests an OAG ruling and claims section 552.103 for the information.


In its 15-day brief, the city argues it anticipates Fred will file a lawsuit against the city because, before the city received the request, Fred hired the attorney who made the request for information, and also because Fred filed a complaint with the EEOC. The city explains the requested information relates to the anticipated litigation.

The city also sends Mr. Honeyplace copies of its 10- and 15-day briefs.


Will the city be able to withhold any of the requested information under section 552.103?

No, in part:

• Fred’s annual evaluations are completed evaluations that are subject to section 552.022(a)(1), and must be released unless they are subject to section 552.108 or are confidential under the Act or other law. Section 552.103 does not make information confidential for purposes of section 552.022.


Will the city be able to withhold any of the requested information under section 552.103?

Yes, in part:

• The city complied with section 552.301. • The city demonstrated it reasonably anticipated litigation

by explaining Fred has filed a complaint with the EEOC.• The city explained the EEOC complaint was filed before

the city received the request for information.• The city explained the requested information is related

to the anticipated litigation.


Therefore, the city must release the completed evaluations pursuant to section 552.022, but may withhold the rest of the requested information under section 552.103.


Mr. Honeyplace also represents Nobby Nobbs, who used to hold the Sergeant position that Fred wanted to be promoted to. Mr. Honeyplace makes the following written request for information from the City Watch Department:

My client, Nobby Nobbs, was wrongfully terminated from his position as Sergeant because of his health issues. Because of his termination, Mr. Nobbs has suffered severe emotional distress and economic damages. We have filed suit asserting our claim in a case styled Nobby Nobbs v. the City of Ankh-Morpork. I officially request all documents relating to my client’s termination.


The responsive information includes a letter from Captain Carrot of the City Watch Department to Nobby Nobbs. The letter was sent after Mr. Nobbs was fired. The letter informs Mr. Nobbs that the City Watch Department has cleaned out his locker, and states Nobby’s belongings will be mailed to him by certified mail.

The city requests an OAG ruling and argues this letter should be withheld under section 552.103.

May the city withhold the letter under section 552.103?


No.

• Nobby Nobbs is the opposing party to the litigation against the city, and the city sent the letter to Mr. Nobbs after the parties had assumed a litigation posture.

• The city may not withhold this message, as it has been seen by all parties to the pending litigation after the litigation’s commencement.


The City of Ankh-Morpork receives a written request seeking “all e-mails between city employees pertaining to the lawsuit the city filed against Unseen University.” The city relates this request to a lawsuit it had filed the previous year, styled The City of Ankh-Morpork v. Unseen University.

Within the ten-business-day deadline, the city requests a ruling from the OAG and claims section 552.103 applies to the requested information. The city also sends the OAG a copy of the original petition, which was filed in court a year ago, as proof litigation is pending.


The city finds it has thousands of potentially responsive e-mails, and it takes the city attorney a long time to review them all. On the sixteenth business day after the city received the request, the city attorney submits a supplemental brief to the OAG.

In its brief, the city explains to the OAG it is a party to pending litigation, states the lawsuit was filed before the city received the request for the information, and explains the requested information pertains to the pending litigation.


Because the responsive information is voluminous, the city attorney submits a representative sample of the requested e-mails.

May the city withhold the requested e-mails under section 552.103?


No.

• Section 552.301(e) requires the city to send the OAG a copy of the requested information (or a representative sample, if the information is voluminous) within fifteen business days after receiving the request. Section 552.103 is not a compelling reason to withhold requested information for purposes of section 552.302. Because the city did not send the required information until after the deadline, the city waived its claim under section 552.103. Therefore, the city may not withhold the information on this basis.


On September 24, 2015, Mr. Slant of Slant & Honeyplace sends the following correspondence to the city:

My client, Dr. Cruces, was involved in an accident on September 21, 2015. This accident was caused by a city employee driving an Animal Services truck while responding to a call about a possibly rabid skunk. As a result of this accident, my client has suffered physical injuries. My client has also suffered severe emotional distress from being exposed to the skunk. Please see the attached letter from my client’s psychologist establishing my client’s skunk phobia. Be advised this letter serves to put the city on notice of Dr. Cruces’s claims under the city’s Tort Claims Act. I also request all documents relating to the accident at issue.


The responsive information includes e-mails between the city attorney and the city secretary, Rufus Drumknott, discussing the accident.

The city meets all its obligations under section 552.301. The city raises section 552.103 and asserts the letter from Slant complies with its Tort Claims Act (the “CTCA”). The CTCA is the municipal ordinance governing tort claims in the city. The city also states the e-mails at issue are related to the anticipated litigation.

May the city withhold the e-mails under section 552.103?


Yes.

• A notice of claims letter sent in compliance with the Texas Tort Claims Act or an applicable municipal ordinance is sufficient to demonstrate litigation was reasonably anticipated.

• Because the notice of claim was sent simultaneously with the request for information, the city reasonably anticipated litigation on the date the request was received.

• The city has established the submitted information is related to the claim.


What if the notice of claims letter is not in compliance with the Texas Tort Claims Act or an applicable municipal ordinance? What if the city fails to explain how the notice of claim complies?

• In either of those scenarios, the city has failed to establish section 552.103 applies and the city may not withhold the information at issue on that basis.

Section 552.103: Hypothetical #4A (Slide 1 of 1)

Mr. Honeyplace of Slant & Honeyplace writes to the city saying, “I request all documents relating to the termination of Sergeant Rust.”

The responsive information includes a transcript of a conversation between the city manager and Commander Sam Vines of the City Watch Department, discussing the reasons for Sergeant Rust’s termination.


The city attorney requests an OAG ruling and argues the communications should be withheld under section 552.103. The city attorney states, “Sergeant Rust’s termination was a highly publicized and very controversial event. Mr. Honeyplace is a lawyer. We do not know whether Mr. Honeyplace represents Sergeant Rust, but because of the public nature of the termination and Mr. Honeyplace’s ambulance-chasing nature, we believe Mr. Honeyplace will be filing suit over Sergeant Rust’s termination very soon.”

May the city withhold the communications under section 552.103?


No.

• The city does not explain whether any party had taken any concrete steps toward filing any litigation before the date the city received Mr. Honeyplace’s request for information.

• Thus, the city has not established litigation was reasonably anticipated when it received the request.


What does constitute “concrete steps toward filing litigation?

• Receipt of a letter containing a specific threat to sue your agency from an attorney representing a potential opposing party;

• A potential opposing party filing a complaint with the EEOC;

• A potential opposing party threatening suit on several occasions and hiring an attorney;

Section 552.103: (Slide 1 of 2)

• Receipt of a notice of claim letter from a potential opposing party that is in compliance with the notice requirements of the Texas Tort Claims Act or an applicable municipal ordinance;

• A potential opposing party hiring an attorney who makes a demand for disputed payments and threatens to sue if payments are not made promptly; or

• Providing evidence that reflects anticipated litigation of a specific matter is “realistically contemplated” when a governmental body is a prospective plaintiff.

Section 552.103: (Slide 2 of 2)

Sacharissa Cripslock, a private citizen, requests “all communications between the city manager and City Secretary Rufus Drumknott from September 1st and 2nd, 2015.”

The responsive information consists of an e-mail from the city manager to the city secretary asking when the city attorney will be ready to file a lawsuit against Unseen University.


The city raises section 552.103 for this e-mail, saying the city is in the process of filing a lawsuit against Unseen University for illegally dumping toxic materials on city land.

In support of its argument, the city submits an affidavit from the city attorney stating the city attorney’s office has been preparing to file the lawsuit since July 24, 2015, and is only waiting for approval from the city council. The city also states the e-mail is related to the anticipated litigation.

Assuming the city complies with section 552.301, may the city withhold the e-mail under section 552.103?


Yes.

• When the city is the prospective plaintiff in litigation it anticipates filing, the city must provide concrete evidence that it realistically contemplates filing the litigation.

• Here, the city provides concrete evidence in the form of an affidavit stating the city attorney will file the lawsuit when she receives approval from the city council.

• The city has also established it reasonably anticipated filing this litigation before the request for information was received and has demonstrated the information at issue relates to the litigation.


On September 10, 2015, Ms. Cripslock sends the city a second request for information, seeking “all communications between the head of Animal Services and the city secretary, Rufus Drumknott, from September 4 through September 9, 2015.”

The city states it released some of the responsive information, but requests an OAG ruling for a long string of e-mails between the head of Animal Services and the city secretary. The e-mails discuss an accidental injury in which a city worker, Derek Proust, broke his arm by falling into a hole he had been digging in the middle of the road.


The city argues section 552.103 protects some of the information responsive to Ms. Cripslock’s second request.

In support of this argument, the city states a civil suit, styled Derek Proust v. The City of Ankh-Morpork, was filed on September 16, 2015, just four business days after the city received Ms. Cripslock’s second request, but before the city was required to request its ruling. The city submits Mr. Proust’s original petition from this case, proving the date it was filed.

May the city withhold the long string of e-mails under section 552.103?


No.

• Mr. Proust’s lawsuit had not yet been filed, and thus was not pending, on the date the city received the request. Therefore, the city did not demonstrate litigation was pending on that date.

• Further, the city did not try to demonstrate it reasonably anticipated litigation on the date it received the request.


Section 552.107(1) and Texas Rule of Evidence

503: The Attorney-Client

Privilege

Section 552.107(1) and Rule 503: The Attorney-Client Privilege (Slide 1 of 1)


• The information constitutes or documents a communication Notes, research, and reports are generally not

communications. Explain how such information was communicated.

• The communication was made for the purpose of facilitating the rendition of professional legal services to the client governmental body. In what capacity is the lawyer communicating?

Section 552.107(1) and Rule 503:Attorney-Client Privilege (Slide 1 of 3)

• The communication is between the client, the lawyer, or their representatives.• Identify all parties to the communication and explain

their relationship to the governmental body.• Don’t forget to identify any third-party consultants

who have a common interest with the governmental body.

• The communication was intended to be and has remained confidential. Parties making and receiving the communication

intended for the communication to be confidential. The communication has not been shared with any

non-privileged party since it was made.

Section 552.107(1) and Rule 503:Attorney-Client Privilege (Slide 2 of 3)

The City of Ankh-Morpork receives a request for all communications to or from any employee of the city pertaining to the toxic waste dumped on city land by Unseen University, and any efforts to clean up the waste.

The city releases much of the responsive information and timely requests a ruling from the OAG for the remaining information. The information the city seeks to withhold consists of a number of e-mails involving various city employees and officials.

Section 552.107(1) and Rule 503: Hypothetical #1A (Slide 1 of 5)

In its brief to the OAG, the city argues the e-mails are subject to section 552.107(1).

In support of its argument, the city informs the OAG that the e-mails are privileged attorney-client communications between city employees and the city attorney, that were made for the rendition of legal services to the city, and that were intended to be, and have remained, confidential.


From: [email protected] To: [email protected] cc: [email protected];

[email protected]

Re: River clean up

I’ve been in contact with TCEQ about our plans to clean up the river. So far, TCEQ is on board, but we’ll have to jump through all the regulatory hoops before we can begin the clean-up. There isn’t a way to expedite the usual process.

Section 552.107(1) and Rule 503: Hypothetical #1 (Slide 3 of 5)

May the city withhold this e-mail under section 552.107(1)?

No.

• The city failed to explain Sybil Ramkin of Ramkin Consulting is a privileged party.


The city identifies Sybil Ramkin as a specialist in water pollution clean up techniques. Now may the city withhold the e-mail under section 552.107(1)?

No.

• The city must not only identify who the person is, but must also explain the person’s relationship to the city. If the city explains Sybil Ramkin hired by the city to advise them on the implementation of the city’s river clean up plan, and she is therefore a client representative, then the city may withhold the e-mail under section 552.107(1).


The city received a request for all communications to or from any employee of the city pertaining to the toxic waste dumped on city land, and any efforts to clean up the waste.

Some of the responsive information consists of an e-mail

string containing several e-mails.

Section 552.107(1) and Rule 503: Hypothetical #1B (Slide 1 of 8)

The city identifies the parties to the e-mails as follows:

• Havelock Vetinari – Mayor of the City of Ankh-Morpork• Rufus Drumknott – Ankh-Morpork City Secretary• William Slant, of Slant and Honeyplace – outside

counsel for the city who is assisting the city with its litigation against Unseen University

• Sam Vines – Commander, City Watch Department


From: [email protected] To: [email protected] Subject: Unseen University is dumping toxic waste!!

Dear Commander Vines, Unseen University is dumping toxic waste to the east of the University. I have seen the university grad students doing the dumping. This area is only 100 feet away from the river. Can you investigate this? Surely this is against the law! Thank you for any help.

-Howler


From: [email protected] To: [email protected] Subject: University toxic waste

Hey Drumknott,

I received the attached e-mail from Stanley Howler about a week ago. He’s just one more citizen complaining about the University dumping dangerous waste. I’ll add this allegation to the ongoing criminal investigation. - Sam


From: [email protected] To: [email protected];

[email protected] Subject: Fwd: University toxic waste

Dear Mr. Slant, Commander Vines received a complaint about the University’s dumping activities over there by the river. He is currently investigating the criminal aspects of the issue. I’d like you to look into whether we can sue the University under civil law. I’m particularly interested in forcing the University to pay for clean up. I also want to know who we need to report the river pollution to.


May the city withhold the above e-mail string under the attorney-client privilege of section 552.107(1)?

Yes, generally.

• The attorney-client privilege protects the entire communication. Here, the entire string was sent to the city attorney for his assistance in rendering legal services to the city. Thus, the city has demonstrated the e-mail string is generally subject to section 552.107(1).


What might the city not withhold under section 552.107(1)?

The e-mail from Stanley Howler is separately responsive to the request because it is an e-mail sent to an employee of the city. However, Howler is “just another citizen,” and is not a privileged party.

If the city has another copy of Mr. Howler’s e-mail that is kept separately from the otherwise privileged e-mail string – for example, in Mr. Vines’s e-mail inbox – then that e-mail is not a privileged communication, and it may not be withheld under section 552.107(1).


If, instead, the request seeks “any e-mails sent between city employees,” may the city withhold the entire e-mail string?

In this case, the e-mail from Howler is not separately responsive to the request because it was not sent from one employee to another. This e-mail is only responsive to the request because it is a part of the responsive e-mail string.

If Mr. Howler’s e-mail is not separately responsive to the

request, then the city does not need to release it, even if the city has a copy of the email that is kept separately from the privileged e-mail string.


The city received a request for “any and all attorney fee bills related to the lawsuit styled City of Ankh-Morpork v. Unseen University.”

How should the city assert the attorney-client communication privilege for the following fee bill?


Slant & Honeyplace, LLP

Client: City of Ankh-MorporkRE: City of Ankh-Morpork v. Unseen University


Date Atty Description of Services Time Rate

9/7/15 WS Conference with Mayor Vetinari. 1.0 300.00

9/7/15 WS Call to Commander Vines. 0.5 300.00

9/7/15 WS Call to Jones re: discovery. 0.75 300.00

9/7/15 WS Draft memo to Mayor Vetinari; in-house conference re: hiring expert witness; call to Mayor Vetinari re: same.

1.75 300.00

9/8/15 WS Conference with Honeyplace re: expert witness; draft and sent memo to mayor.

1.5 300.00

Attorney fee bills are subject to section 552.022(a)(16), and thus may not be withheld under section 552.107(1), which does not make information confidential under the Act.

The city should raise the attorney-client privilege of rule 503 of the Texas Rules of Evidence.

Each of the elements of the attorney-client privilege under rule 503 must be demonstrated for each separate entry. The city must establish each entry reveals (1) a communication (2) made for the rendition of legal services to the client (3) between privileged parties (4) that was intended to be, and has remained, confidential.

The city should identify each person in the fee bill and explain the person’s relationship to Ankh-Morpork.


The city explains the Mayor, Commander Vines, and Honeyplace are all privileged parties with respect to the communications in the fee bill.

The city explains Jones is also an attorney, and states Jones represents Unseen University.

The city claims each of the communications in the fee bill is protected by the attorney-client privilege.

• What information may the city protect?


The city may protect the following information:



9/7/15 WS Conference with [Mayor Vetinari]. 1.0 300.00

9/7/15 WS Call to [Commander Vines]. 0.5 300.00

9/7/15 WS Call to Jones re: discovery. 0.75 300.00

9/7/15 WS Draft memo to Mayor Vetinari; [in-house] conference [re: hiring expert witness]; call to [Mayor Vetinari re: same].

1.75 300.00

9/8/15 WS Conference with [Honeyplace re: expert witness]; [draft and sent memo to mayor].

1.5 300.00

Ms. Cripslock requests “all communications between Mr. Slant and Mayor Vetinari.”

The city submits an e-mail from Slant to Vetinari that says “I think we need to settle the Nobbs case, immediately.” The message reflects it was also cc’ed to “John Dearheart” and “Esme Weatherwax.”

The city raises section 552.107(1) for this e-mail and argues it consists of a privileged communication between an attorney, Slant, and his client, Mayor Vetinari.

May the city withhold the e-mail?


No.

• The e-mail reveals Slant sent the message to two other individuals, and the city has not identified the individuals or explained whether these individuals are privileged parties.


The city receives a request for all communications related to the city’s river clean up plan.

The city releases some of the requested records, but seeks to withhold certain communications under the attorney-client privilege. The city timely requests a ruling from the OAG and asserts section 552.107(1).


Communication #1 is a completed report from city attorney William Slant to the mayor outlining the city’s options in establishing ordinances to prevent further pollution of the river. The communication is stamped “confidential attorney-client communication” and has remained confidential.

Will the city be able to withhold the completed report under section 552.107(1)?


No.

• The completed report is subject to section 552.022(a)(1). Accordingly, the city should raise rule 503, not section 552.107(1). Because the city has demonstrated the report was communicated between privileged parties for the purpose of facilitating the rendition of professional legal advice and the report was intended to be and has remained confidential, the city may withhold the completed report under rule 503.


Communication #2 is a letter from Mayor Vetinari to city attorney Slant requesting information about other municipalities that use local ordinances for the same purpose.

The city informs the OAG the letter was written to seek legal advice from the city’s attorney, and states the letter has not been shared with anyone outside the mayor’s office.

Will the city be able to withhold Mayor Vetinari’s letter under section 552.107(1)?


Yes.

• The city has demonstrated the communication was made for the purpose of facilitating the rendition of professional legal services.

• Further, the city has demonstrated the communication was intended to be, and has remained, confidential.


Communication #3 is a letter to Mayor Vetinari from an attorney for a local business, threatening to sue the city if the city moves forward with its river clean-up plan, including implementing anti-pollution ordinances.

The letter is stamped “privileged and confidential attorney-client communication” at the bottom.

Will the city be able to withhold the letter from the attorney under the attorney-client privilege of section 552.107(1)?

Section 552.107(1) and Rule 503: Hypothetical #4C (Slide 1 of 2)

No.

• The attorney representing the local business does not represent the city, and in fact is threatening to sue the city.

• Thus, the attorney representing the local business is not a privileged party for purposes of the attorney-client privilege, and communications with him may not be withheld under section 552.107(1).

Section 552.107(1) and Rule 503: Hypothetical #4C (Slide 2 of 2)

The remaining responsive information consists of assorted letters and e-mails between the city attorney and various unidentified parties regarding local anti-pollution ordinances.

In its brief to the OAG, the city argues, “The remaining communications were sent to the city’s attorney and are, therefore, privileged.”

Will the city be able to withhold the remaining communications under section 552.107(1)?

Section 552.107(1) and Rule 503: Hypothetical #4D (Slide 1 of 2)

No.

• The city has not identified the parties to the communications, nor has the city explained the parties are privileged.

• Furthermore, the city has not demonstrated the communications were made for the purpose of facilitating the rendition of professional legal services.

• Finally, the city has not demonstrated the communications were intended to be confidential.

Section 552.107(1) and Rule 503: Hypothetical #4D (Slide 2 of 2)

The city receives a request for “All fee bills for services performed by city attorney William Slant during September 2015.”

The city timely seeks an OAG ruling and argues portions of the fee bill are excepted from disclosure under the attorney-client privilege of rule 503.


A portion of the responsive fee bill reads, “Drafted message to Mayor Vetinari regarding lawsuit against Unseen University.”

May the city withhold any portion of this entry under the attorney-client privilege of rule 503?


No.

• The fee bill indicates the message was drafted, but the city does not explain to the OAG that the message was ever actually sent to a client. Therefore, the city has failed to demonstrate the entry reveals a privileged communication. Thus, the city may not withhold this entry under the attorney-client privilege of rule 503.

• Practice tip: Be sure to tell the OAG if the communication was “sent” – not just “drafted”.


Another portion of the responsive fee bill reads, “Spoke to LRB regarding the Unseen University suit.”

The city argues this entry is excepted from disclosure under rule 503. The city does not inform the OAG who “LRB” is, and the fee bill does not reveal the identity of “LRB.”

May the city withhold any portion of this entry under the attorney-client privilege of rule 503?


No.

• The city has failed to identify “LRB” as a privileged party. Thus, the city has not demonstrated the communication at issue took place with a privileged party. Therefore, the city may not withhold this entry under rule 503.


Section 552.111: Agency Memoranda

Section 552.111

What does the deliberative process privilege protect?

It protects two types of communications:

• INTRA-agency communications AND

• INTER-agency communications.

Section 552.111: The Deliberative Process Privilege (Slide 1 of 7)

Intra-agency communications include:

• Internal communications relating to your policymaking processes, and

• Communications with an outside consultant or contractor who is acting on your behalf.

Thus, the deliberative process privilege can protect information generated by staff members, outside consultants, and contractors acting on behalf of your governmental body.


Interagency communications include:

• communications with other governmental entities with which you share a privity of interest or common deliberative process.

Thus, the deliberative process privilege can protect information generated by personnel employed by other governmental bodies acting in concert with you.


What does the deliberative process privilege protect?

It protects communications consisting of:

• Advice, opinions, or recommendations pertaining to the

policymaking matters of the governmental body.


The deliberative process privilege can also protect…

• Draft documents that have been released, or are intended to be released, to the public in their final form;

• Administrative and personnel matters of broad scope that affect the governmental body’s policy mission; or,

• Portions of the draft consisting of advice, opinions, or recommendations, if a policymaking draft will not be released in its final form.

Section 552.111: The Deliberative Process Privilege(Slide 5 of 7)

The deliberative process privilege does not protect…

• Purely factual information that is severable from advice, opinions, and recommendations;

• Information subject to section 552.022;

• Routine internal administrative or personnel matters;

• Draft documents that are not intended to be released to the public in their final form; and

• Communications with a third party before a contract is executed.


Furthermore,

• The deliberative process privilege of section 552.111 does NOT provide a compelling reason under section 552.302 to overcome a violation of section 552.301.


So you want to claim the deliberative process privilege of section 552.111…

Claiming the Deliberative Process Privilege of section 552.111 (Slide 1 of 3)


• How the information relates to your policy mission

If the information pertains to administrative or personnel matters, explain how they are of a broad scope so as to affect your governmental body’s policy mission.

• The identities of the parties. If the communications are between officials or employees of your governmental body, explain who they are and why they are qualified to comment on policy.



• The identities of any outside consultants, the nature of their relationship with your governmental body, and the tasks they are performing for your governmental body.

• If another governmental entity is involved, why your governmental body has a privity of interest or shares a common deliberative process with the other entity.

• If the information is a draft document, whether the draft has been, or is intended to be, released to the public in its final form, and how it is a policymaking document.


The City of Fishpond is having serious economic woes. The drought dried up the pond and the annual fishing tournament had to be cancelled two years in a row. Local farmers and ranchers are having trouble paying their property taxes. Several businesses on Main Street have closed. When the state built the interstate and by-passed Fishpond, the city’s last reliable source of income (the speed trap on the highway) dried up just like the pond.

The mayor and city council are trying to think outside the box to come up with a way to pay the bills and balance the budget. Their best idea, so far, is to build a water park, because it is Texas, and it is HOT.


Bill and Mary Archer own a small ranch just outside the city limits. Unlike their neighbors, who depend on wells for water, the Archers have a spring on their ranch that is still flowing despite the drought. Mary heard a rumor on social media that the city plans to build a water park to draw tourists to the area. Concerned the city will want to use water from their spring, Mary makes an open records request to the city seeking “any and all documents pertaining to the development of a water park in Fishpond.”


The city attorney timely requests an OAG ruling and raises the deliberative process aspect of section 552.111 for several responsive documents.

In her brief, the city attorney explains the city is considering building a water park. The city attorney explains the water park could provide revenue to the city, and argues raising revenue is an element of the city’s policymaking mission.

The city attorney explains the city hired an engineering firm called Fast-N-Loose to analyze potential locations and sources of water for the water park.


In her brief, the city attorney also explains the city is in negotiations with WaterParksRUs to build the water park. The city attorney states a contract has not yet been signed with WaterParksRUs, which specializes in building tube slides, because the city is also in negotiations with another company that specializes in building standing wave pools.


Document #1 is an e-mail from the city manager to a representative of Fast-N-Loose. The message reads, “It didn’t rain again last month. I think you should expand the area covered by your analysis. Plus, I think your vice president needs to go back to high school.”

Will the city be able to withhold Document #1 under section 552.111?


The city was timely in its request for a ruling and in providing the information required by section 552.301.

The city identified the outside consultant and explained the task it is performing for the city, thereby demonstrating they share a privity of interest or common deliberative process.

The city explained that the information pertains to the city’s policy-making functions.



Yes, in part:

The city may withhold the information consisting of advice, opinion, or recommendation: “I think you should expand the area covered by your analysis.”



No, in part:

The city may not withhold purely factual information: “It didn’t rain again last month.”

The city may not withhold advice or opinion that does not pertain to policymaking: “Plus, I think your vice president needs to go back to high school.”


Document #2 consists of a draft report created for the city by a representative of Fast-N-Loose. The report analyzes how a water park will provide an increased benefit to the city if it is located near a water source that is not affected by drought. The draft margins contain hand-written comments by the mayor, the city manager, and representatives of Fast-N-Loose.

In her briefing, the city attorney explains the report is still in draft form, but states the report will be released to the public in its final form.

Will the city be able to withhold the draft report under section 552.111?

Section 552.111: Hypothetical # 1B (Slide 1 of 3)

Will the city be able to withhold the draft report under section 552.111?

Yes, because the city attorney explained

the report will be released to the public in its final form;

the city shares a privity of interest with Fast-N-Loose; AND

the draft report pertains to policymaking.

Section 552.111: Hypothetical #1B (Slide 2 of 3)

Would the city be able to withhold the FINAL report under section 552.111?

No. The final report is a completed report that is subject to

section 552.022(a)(1), and may be withheld only if it is excepted under section 552.108 or is confidential under the Act or other law. Section 552.111 does not make information confidential for purposes of section 552.022.

Section 552.111:Hypothetical #1B (Slide 3 of 3)

Document #3 is an e-mail string between the mayor of the city and a representative of WaterParksRUs. Document #3 discusses the benefits of having a tube slide in the water park, relative to other types of water features, such as a standing wave pool. Document #3 includes an assertion from WaterParksRUs that “a water park with a tube slide is way much more better than a standing wave pool, and will have a way more positive impact on the city’s economy, because it is just way more cooler. And Texas is HOT.”


Section 552.111: Hypothetical #1C (Slide 1 of 2)


No. The e-mails with WaterParksRUs may contain advice, opinions, and recommendations. However, the city explained that it is in negotiations with WaterParksRUs, but informed the OAG that the parties have not entered a contract. Thus, the parties’ interests are adverse, and the city failed to demonstrate it has a privity of interest or common deliberative process with WaterParksRUs.

Section 552.111: Hypothetical #1C (Slide 2 of 2)

The mayor sent the members of the town council a draft of a proposed ordinance establishing policies for the city’s operation of a water park.

Twenty business days after receiving a request for this information, the town requests a ruling from the OAG seeking to withhold the draft ordinance under section 552.111.

How will the OAG rule?


The city did not comply with section 552.301 in seeking a ruling from the OAG. Section 552.111 does not provide a compelling reason to withhold information under section 552.302.

Therefore, the city waived its claim under section 552.111 and will not be permitted to withhold the information on that basis.


Because of a series of critical articles in the local newspaper questioning the city’s wisdom in building a water park during a drought, the mayor fired the city manager, Leroy Brown.

The city receives a request for information from an attorney representing Leroy Brown. The request seeks information related to Leroy Brown’s employment and termination, including his salary and contract and all communications.

The city releases some of the responsive information, but requests an OAG ruling seeking to withhold some of the requested information under section 552.111.


From: [email protected] To: [email protected] Subject: RE: now what? You’re right - that was a policy violation. I’ll get with HR in

the morning.

From: [email protected] To: [email protected] Subject: now what? Have you seen Leroy’s interview in the newspaper? What

was he thinking? Wasn’t that a violation of our media policy? You should fire him, and fast!


Will the city be able to withhold these communications between the mayor and a city council member under the deliberative process privilege of section 552.111?


No.

• The e-mail may not be withheld under section 552.111. The firing of an employee who has violated city policy is a routine personnel matter. It does not involve policy-making.


Suppose the city decides to strengthen its media policy. Would the city be permitted to withhold discussions among the city council members regarding the changes in its media policy under section 552.111?

Yes.

• The creation of personnel policies is a policy-making matter.


Will the city be permitted to withhold Leroy’s contract and salary information under section 552.111?

No.

• The contract is subject to section 552.022(a)(1), and his salary is subject to section 552.022(a)(2). Section 552.111 is a discretionary exception and does not make this information confidential under the Act.


Reminder - the deliberative process privilege does not

• Encompass purely factual information that is severable from opinion

• Encompass routine internal administrative or personnel matters

• Make information subject to section 552.022 confidential

• Provide a compelling reason to overcome section 552.301 violation


Section 552.111 also encompasses the attorney work product privilege.

Section 552.111:The Attorney Work Product Privilege (Slide 1 of 6)

What does the attorney work product privilege protect?

• Material prepared for and mental impressions developed, as well as communications made, in anticipation of litigation or for trial, by or for a party or its representatives



• The information at issue consists of material or mental impressions developed by or for your governmental body in anticipation of litigation or for trial

OR

• The information at issue is a communication made between your governmental body and its representatives in anticipation of litigation or for trial

Section 552.111: The Attorney Work Product Privilege (Slide 3 of 6)

What is “Anticipation of litigation”?

• A reasonable person would have concluded from the totality of the circumstances that there was a substantial chance that litigation would ensue

AND

• The party resisting disclosure believed in good faith there was a substantial chance litigation would ensue and conducted the investigation for the purpose of preparing for such litigation


Anticipation of litigation

• A substantial chance of litigation does not mean a statistical probability, but rather “that litigation is more than merely an abstract possibility or unwarranted fear.”

• The applicability of the work product privilege depends on the facts and circumstances that existed when the information was created.



• Identify the parties or potential parties to litigation,

• Identify the person or entity that prepared the information, and

• Identify any individual with whom the information was shared.


The waterpark is not the only controversy in Fishpond. Resident Dusty Rhodes read an article reporting that ecotourism is becoming the largest industry in Texas. He decided to get into the agritourism business.

Tourists from the city have been staying on Dusty’s farm, milking cows, feeding chickens, and experiencing country life. Dusty’s neighbors, the Archers, are unhappy with the tourists, who drive too fast on the country lanes, set fires with their cigarette butts, and trespass on the Archers’s land to swim in the spring. The Archers filed a complaint with the city, claiming Dusty is violating city zoning laws.


As far as the Archers can tell, the city does nothing in response to the complaint. Unhappy with the city’s failure to enforce the law, the Archers hire an attorney who makes a request for all information related to their complaint and any other similar complaints filed within the past year.

The request includes the statement, “If we are unable to reach an agreement in this matter, I will be forced to take legal action on behalf of my clients.” The attorney has recently represented several residents in unrelated lawsuits against the city, and her letterhead reveals she is board certified in civil litigation.

Section 552.111:Hypothetical #1 (Slide 2 of 3)

The city has several responsive documents it wants to withhold. The city timely seeks an OAG ruling and raises the attorney work product privilege of section 552.111 for the information at issue.

Section 552.111:Hypothetical #1 (Slide 3 of 3)

The city submits a memo prepared by the city attorney for the mayor outlining the city’s potential defenses against possible claims resulting from the complaint filed by the Archers. The city argues the memo is excepted from disclosure under the attorney work product privilege encompassed by section 552.111, as it was written in anticipation of ligation.

May the city withhold the memo on that basis?

Section 552.111:Hypothetical #1A (Slide 1 of 4)

Yes

• The city may withhold the memo under section 552.111 because the city has shown the memo was prepared by an attorney for the city in anticipation of litigation to which the city will be a party and the memo is related to that litigation.


Same memo, same arguments, but this time the city is not timely in its request for a ruling.

May the city still withhold the memo under section 552.111 as attorney work product?


No.

• Remember, section 552.111 does not provide a compelling reason to overcome a violation of section 552.301 for purposes of section 552.302.


The city also seeks to withhold a memo prepared by the city attorney discussing the city’s potential defenses against various tort claims Dusty Rhodes could bring against the city at some future date on an unrelated matter.

May the city withhold this memo under the attorney work product privilege of section 552.111?


No.

• The city may not withhold this memo under the work product privilege of section 552.111 because the city did not demonstrate the memo was prepared in anticipation of litigation.


The Texas Rules of Civil Procedure are “other law” for purposes of section 552.022. Therefore, information subject to section 552.022 may be withheld under the attorney work product privilege of Texas Rule of Civil Procedure 192.5.

Information is privileged under rule 192.5 only to the extent the information implicates the core work product aspect of the attorney work product privilege.

Note: The privilege under rule 192.5 is narrower than under section 552.111.

Texas Rule of Civil Procedure 192.5: (Slide 1 of 2)

In claiming the core attorney work product privilege of rule 192.5, a governmental body must demonstrate the information was

• (1) created for trial or in anticipation of litigation

and

• (2) consists of the mental impressions, opinions, conclusions, or legal theories of an attorney or an attorney’s representative.

Texas Rule of Civil Procedure 192.5:(Slide 2 of 2)

The city receives a second request from the attorney for the Archers seeking all billing statements submitted by the city’s outside litigation attorney related to his clients’ complaint.

The city submits a representative sample of the information it seeks to withhold under section 552.111 as attorney work product.

The information that the city seeks to withhold consists of the following attorney fee bill.

Section 552.111 and Rule 192.5:Hypothetical #2 (Slide 1 of 6)

The Law Offices of Sam Shark, LLC

Client: City of FishpondRE: Archer Complaint



8/27/15 SS telephone conference with atty for Archers re: discovery schedule; drafted e-mail to mayor re: discovery; research re: filing motions in federal court; research re: applicability of zoning laws to farms, ecotourism, or agritourism, and impact of commerce clause on zoning litigation in cities with populations less than 20,000

6.5 225.00

Will the city be able to withhold any of this information under the attorney work product privilege of section 552.111?


No.

• Section 552.111 does not make information confidential under the Act for purposes of section 552.022.

• However, the Texas Rules of Civil Procedure are “other law” for purposes of section 552.022. Therefore, the city may claim the core attorney work product privilege under rule 192.5 for this information.


What portion(s) of the fee bill may the city withhold under rule 192.5?

• Answer: only the specific details of the attorney’s research related to the litigation, consisting of the attorney’s mental impressions, opinions, conclusions, or legal theories, are privileged core attorney work product that may be withheld under rule 192.5.


The Law Offices of Sam Shark, LLC

Client: City of FishpondRE: Archer Complaint



8/27/15 SS telephone conference with atty for Archers re: discovery schedule; drafted e-mail to mayor re: discovery; research re: filing motions in federal court; research re: [applicability of zoning laws to farms, ecotourism, or agritourism, and impact of commerce clause on zoning litigation in cities with populations less than 20,000]

6.5 225.00

The best ways to lose your argument under the deliberative process privilege of section 552.111

Failure to identify the parties in the information at issue;

Failure to explain how outside parties share a privity of interest or common deliberative process with your governmental body regarding the information at issue;

Failure to explain how the information at issue relates to your governmental body’s policymaking functions;

Common Mistakes in Claiming the Privileges of section 552.111 (Slide 1 of 4)

Failure to explain why the information consists of advice, opinion, and recommendation relating to policymaking, rather than factual and administrative information that does not relate to policymaking;

Failure to state whether draft documents have been, or are intended to be, released to the public in their final form; OR

Failure to comply with the procedural requirements of section 552.301.


The best ways to lose your argument under the attorney work product privilege of section 552.111

Failure to identify the parties in the information at issue;

Failure to explain that the information consists of material or mental impressions developed by or for, or communications between representatives of, your governmental body;

Failure to explain that the information was made or developed in anticipation of litigation or for trial;


Failure to identify the person or entity that prepared the information;

Failure to identify the parties or potential parties to litigation; OR

Failure to comply with the procedural requirements of section 552.301.


OAG Open Government Hotline(877) OPEN-TEX

OAG Websitehttps://www.texasattorneygeneral.gov/open/index.shtml

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