Opinion
NO. 03-15-00093-CV
02-23-2016
The City of Houston, Texas, Appellant v. Ken Paxton, Attorney General of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. D-1-GV-14-000227, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDINGMEMORANDUM OPINION
The City of Houston appeals the trial court's summary judgment in favor of the Attorney General, ordering that certain "information at issue" related to an investigation into allegations of employee misconduct conducted by the City's Office of the Inspector General (OIG) is not protected by the attorney-client privilege but is subject to disclosure under the Texas Public Information Act (TPIA). See Tex. Gov't Code §§ 552.001-.353. We will affirm the district court's summary judgment ordering that the "information at issue" is subject to disclosure.
BACKGROUND
Several years ago, the City's mayor approved Executive Order 1-39 Revised, which established the Office of Inspector General (OIG) as a division of the Office of the City Attorney. The executive order established the OIG as a "central, objective authority" with the following objective: "the timely investigation of allegations of employee misconduct." The executive order further provided that the OIG's responsibilities are to: (1) "review" all allegations of employee misconduct submitted to the OIG; (2) "investigate" all facts and circumstances that reasonably appear to constitute employee misconduct; (3) "supply information," which may be protected from public disclosure as provided by law, to the Houston Ethics Commission, the Office of the Mayor, the Civil Service Commission for Municipal Employees, Directors of City Departments, the Houston Police Department, and the Harris County District Attorney and other public law enforcement authorities to facilitate investigations of allegations of employee misconduct and any associated disciplinary actions or enforcement of civil or criminal laws; (4) "provide a reporting" of the number of cases submitted, investigated, and disposed on a quarterly basis; and (5) "serve as ombudsmen" for citizens with allegations of police misconduct and to assist such citizens with filing a complaint against police officers. Although the OIG is a division of the Office of the City Attorney, the executive order does not recite any OIG responsibilities ordinarily constituting the provision of legal services, for instance advising, counseling, or analyzing legal liability.
A couple of years after the OIG was established, an attorney from the division conducted an internal investigation into alleged wrongdoing by specific City employees. The investigation included the attorney's interviews with City employees accused of wrongdoing. The employees gave sworn statements to the OIG investigator. The "information at issue" in this appeal, which was submitted to this Court for in camera review, consists of sworn statements by two employees accused of wrongdoing. The attorney representing a third employee submitted a TPIA request to the City, seeking the two statements at issue as well as other information, some of which the City made available. The City withheld from disclosure the two employee statements and other information on the ground of the attorney-client privilege and timely requested an opinion from the Attorney General on the withheld information. See id. § 552.301. The Attorney General issued an opinion stating that most of the information the City sought to withhold was protected by the attorney-client privilege, citing Harlandale Independent School District v. Cornyn, 25 S.W.3d 328, 332 (Tex. App.—Austin 2000, pet. denied), but that the two employee statements were not privileged because they were not made by "privileged parties." The City sued the Attorney General, see Tex. Gov't Code § 552.324, in which suit the parties filed cross-motions for summary judgment. The City appeals the trial court's grant of the Attorney General's motion.
The City asserted another ground on which it was entitled to withhold the requested information, see Tex. Gov't Code § 552.108 (providing exception from disclosure for information held by law enforcement agency or prosecutor that deals with detection, investigation, or prosecution of crime), but that ground is not at issue in this appeal.
Each of the statements at issue includes a non-privileged "admonishment page." Some of the parties' dispute concerns the relevance and effect of certain specific statements contained within the admonishment page. However, we need not address this aspect of their dispute, as we agree with the Attorney General that the statements are not privileged because they were not made by the employees "for the purpose of effectuating legal representation" for the City, see Tex. R. Evid. 503(a)(2), and that the trial court did not err in granting the Attorney General's motion for summary judgment and denying the City's motion, see City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000) (when parties file cross-motions for summary judgment, we will determine all questions presented and render judgment trial court should have rendered).
For instance, the Attorney General contends that (1) an admonishment to the employees that they were not to share the statement with anyone except their own attorneys evidences that the communications were not intended to be confidential, see Tex. R. Evid. 503(a)(5), and (2) an admonishment on both statements that they were made freely and voluntarily and on one of the statements that it was not a condition of employment are evidence that the communications were not made "in the scope of employment," see id. R. 503(a)(2).
DISCUSSION
Relevant to the circumstances here, the TPIA provides that a completed investigation made by or for a governmental body is public information and not exempted from disclosure unless it is expressly confidential under other law. Tex. Gov't Code § 552.022. The Texas Rules of Evidence are "other law" for the purposes of section 552.022 of the TPIA. See In re City of Georgetown, 53 S.W.3d 328, 329 (Tex. 2001). Texas Rule of Evidence 503(b)(1) provides: "A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client . . . between the client or a representative of the client and the client's lawyer or a representative of the lawyer." Tex. R. Evid. 503(b)(1). A communication is "confidential" if it is not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication. Id. R. 503(a)(5). The privilege extends to a "representative of the client" only if the representative is "a person having authority to obtain professional legal services, or to act on advice thereby rendered, on behalf of the client," or is "any other person who, for the purpose of effectuating legal representation for the client, makes or receives a confidential communication while acting in the scope of employment for the client." Id. R. 503(a)(2) (emphasis added).
Whether information is subject to the TPIA and whether an exception to disclosure applies to the information at issue are questions of law. Dallas Morning News, 22 S.W.3d at 357; Arlington Indep. Sch. Dist. v. Texas Attorney Gen., 37 S.W.3d 152, 163 (Tex. App.—Austin 2001, no pet.). It is the governmental body's burden to prove that an exception to public disclosure applies to the information at issue, City of Fort Worth v. Cornyn, 86 S.W.3d 320, 323 (Tex. App.—Austin 2002, no pet.), and exceptions to disclosure are narrowly construed, Texas State Board of Chiropractic Examiners v. Abbott, 391 S.W.3d 343, 347 (Tex. App.—Austin 2013, no pet.). Thus, the City had the burden to prove that the sworn employee statements were privileged under Rule 503. See Huie v. DeShazo, 922 S.W.2d 920, 926 (Tex. 1996).
To make a prima facie showing of the applicability of a privilege, a party must produce evidence to support it. See Marathon Oil Co. v. Moye, 893 S.W.2d 585, 590-91 (Tex. App.—Dallas 1994, orig. proceeding). Our review of the record leads us to conclude that the City did not meet its burden to show that the statements at issue were made by the subject employees for the purpose of effectuating legal representation for the City. Rather than evidence supporting this requirement, we find evidence supporting the opposite in the form of the admonishment pages, which (1) did not refer to the OIG attorney as an "attorney" or "lawyer" but merely as being "of the Office of the Inspector General" and as the "OIG investigator," referring only to the "OIG investigation"; (2) referenced the executive order, in which the OIG is vested with the responsibility to investigate allegations of employee misconduct and supply information to law enforcement authorities (without mention of providing legal services or advice to the City) and in which the purpose of the OIG is identified merely as "the investigation of allegations of employee misconduct"; (3) informed the employees that they may be subject to the offense of perjury if their sworn statements contained falsehoods and that their duties to cooperate with the OIG investigation flowed from the executive order (rather than from their superiors); and (4) provided that the investigator "will have the sole responsibility for making a decision/determination on whether the information will have a bearing on the outcome of this investigation."
We note that this last admonishment makes it unlikely that the OIG was in fact acting as the legal representative of the City or that the subject employees were providing their statements for the purpose of the OIG rendering legal services to the City because, if the relationship were a true "attorney-client relationship," it is unlikely that the OIG would have had the sole responsibility to make decisions and determinations, apparently without any input by the City.
Besides the admonishment pages, there is no evidence in the record regarding what the subject employees were told, knew, or believed about the role or capacity in which the OIG attorney was functioning or the purpose of their statements. There is no evidence of a retention letter or other communication indicating the OIG's role or capacity as encompassing the rendering of legal advice. Rather, the only evidence in this record pertaining to the capacity in which the OIG operated supports that of "investigator" rather than "attorney" and—even assuming that the attorney capacity is a reasonable inference from the evidence in the record—there is no evidence that the employees at issue knew of this capacity or made their statements to the OIG investigator for the purpose of effectuating legal representation for the City.
We also note that embracing the City's position on this record does not entirely dovetail with the policy behind the attorney-client privilege: allowing "unrestrained communication and contact between an attorney and client in all matters in which the attorney's professional advice or services are sought, without fear that these confidential communications will be disclosed by the attorney, voluntarily or involuntarily, in any legal proceeding." Huie v. DeShazo, 922 S.W.2d 920, 922 (Tex. 1996). Because, by design, the OIG has the responsibility to "supply information" to other agencies and law enforcement authorities "to facilitate investigations" of employee misconduct—even if the information may be "protected from public disclosure as provided by other law"—it does not follow that the City may fully rest assured that the "confidential" communications of its representatives will not be disclosed in legal proceedings. Additionally, while the Attorney General urges that the information at issue is not privileged because the employees' legal interests were adverse to the City by virtue of their being targets of the allegations of wrongdoing, we do not find that fact dispositive. --------
Nonetheless, the City cites several cases in support of its privilege, arguing that the employees cooperated with the investigation because they were required to do so by City policy and that the City has maintained the confidentiality of the communications at issue. See Upjohn Co. v. United States, 449 U.S. 383, 391 (1981); USA Waste Mgmt. Res., L.L.C., 387 S.W.3d 92, 97-98 (Tex. App.—Houston [14th Dist.] 2012, orig. proceeding); Harlandale, 25 S.W.3d at 333. While these contentions are supported by the record and do find support in the cited cases, there are relevant differences between the facts in those cases and the facts in this record, to wit: (1) the employees in those cases knew they were speaking to an attorney representing their employer for the purpose of rendering legal advice to the employer, and (2) record evidence in those cases supported the finding that the attorneys were conducting their investigations primarily for the purpose of rendering legal services to their clients. The City has not referenced any evidence in the record supporting either of those circumstances here.
We hold that the City did not meet its summary-judgment burden, and the trial court did not err in granting the Attorney General's motion. Accordingly, we overrule the City's issue on appeal and affirm the judgment of the trial court.
CONCLUSION
For the foregoing reasons, we affirm the summary judgment of the district court.
/s/_________
David Puryear, Justice Before Justices Puryear, Goodwin, and Bourland Affirmed Filed: February 23, 2016