Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:On May 16, 2002, the city of Dallas received a Public Information Act (PIA) request seeking information relating to the examination process for firemen and police officers. The letter requested any and all information pertaining to the city of Dallas “Assessment Center Process” for “uniform positions” in the Dallas Fire and Police Departments and all memos, directives, documents and communications of meetings of scheduled or unscheduled boards, councils, department heads of staff and city managers regarding the establishment of the assessment center process. The city responded on May 22, 2002, by seeking clarification of the requested items. In a letter, the city asked, “Are you seeking information regarding specific assessment centers and if so for what time period?” The requestor replied to the city’s request on May 28, 2002 by sending a second letter. In that letter, the requestor specified: “[t]he time frame and positions I am relating the request for are: the positions of Dallas Fire Rescue Fire Lieutenant and Captain for the year 2000. Additionally, [a]ny written documents on ‘how Assessment Process was to be administered’ for the above positions and time frame . . . [and] [a]n explanation on the ‘mirroring’ of percentages between Fire Prevention and Fire Operations testing for the same time period.” The city, seeking to exclude certain documents from the PIA request, sought an attorney general decision determining whether the specified documents were subject to public disclosure or whether the city was correct in believing that the documents were excludable from the PIA request. The city’s request for an attorney general decision was made on June 10, 2002. On Aug. 13, 2002, the Texas attorney general notified the city that it determined that the city failed to timely request a decision from the attorney general’s office, concluding that the city was required to request a decision 10 business days from the initial request of May 16, 2002. Moreover, the attorney general’s office determined that, without a compelling reason to withhold the information from disclosure, the Texas Government Code presumed that all of the requested information is public and subject to disclosure. The city filed a petition in district court seeking a writ of mandamus against the attorney general requesting the trial court to order the attorney general to declare the documents as excepted from public disclosure because of the documents’ status as attorney-client communication. The trial court concluded that the attorney general decision was correct in finding that the city had failed to timely request a decision and the documents were privileged but not exempt from public disclosure, because the city had failed to present a compelling reason for excepting the documents from public disclosure. Thus, the trial court denied all relief requested by the city and issued a take-nothing judgment. The city appealed the trial court’s judgment. HOLDING:Affirmed. The court concluded that the initial public information request was the operative request for the purposes of requesting an attorney general opinion, because the second letter merely focused the information requested to a specific year and specific positions within the fire department. Thus, the public information request on May 16, 2002, the court stated, began the time for requesting an attorney general decision for any information that the city believed was excepted from public disclosure. Since the deadline to request such a decision was June 5, 2002, the court found that the city’s June 10, 2002, request for an attorney general opinion was untimely. Next, the city contended that the status of the documents as attorney-client communication presented a compelling reason sufficient to support the withholding of the documents from public disclosure. Under Texas Government Code �552.302, the court stated that if a governmental body does not request an attorney general decision within 10 business days and provide the requestor with copies of correspondence with the attorney general’s office, the information requested in writing must be released unless there is a compelling reason to withhold the information. The attorney general’s office, the court stated, has stated its belief that a compelling reason sufficient to rebut the presumption of openness may include information that is deemed confidential by some source of law outside the PIA. A 1994 attorney general’s opinion, however, took the position that if a recipient of a public information request fails to timely request an attorney general decision seeking to except certain documents subject to the attorney-client privilege, then the recipient has waived its right to claim the privilege. The attorney general contended that the city waived the privilege in this case. The court stated that this was not the case; however, “the burden has shifted to the agency to demonstrate why the information should not be disclosed given that the information is presumed public.” The court summarized “that it is not enough to merely show that there is an exception to public disclosure; the governmental body . . . must further show how that exception creates a compelling reason to withhold the information.” Thus, the court found that the city failed to provide additional information demonstrating a compelling reason to except documents purporting to contain attorney-client communication. OPINION:Hancock, J.; Quinn, C.J., and Campbell and Hancock, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.