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The Texas Supreme Court quizzed Attorney General John Cornyn on Jan. 3 about the implications for governmental bodies — including the Office of the Attorney General — if the court rules that confidential information prepared in anticipation of litigation must be disclosed because of changes in the state’s open records law. Cornyn, who served almost seven years as a justice on the court, told his former colleagues that the Legislature has decided such information must be made public. “This is a choice for the Legislature to make. The court merely has to interpret the statute,” Cornyn says in an interview following the arguments in In Re: The City of Georgetown, et al. But questions raised by the justices during the hearing indicate their concern about forcing governmental entities to release information that has been protected by attorney-client privilege. Justice Deborah Hankinson said the position taken by Cornyn would have consequences. Any completed report provided by an attorney to a governmental entity that is a client could be open to the public, she said. “That is the consequence of the statute that the Legislature passed,” Cornyn replied. The Georgetown case provides the court its first opportunity to interpret the 1999 changes that the Legislature made in the Texas Public Information Act. The new language says a completed report, audit, evaluation or investigation done for or by a governmental body cannot be withheld from the public unless the information it contains is “expressly confidential under other law.” Justice Greg Abbott questioned whether ruling in Cornyn’s favor would establish a precedent requiring the AG’s office in the future to disclose all completed reports and completed investigations unless they fall within the stated exceptions. “The answer to that is yes,” Cornyn said. The arguments marked the first time that Cornyn has appeared before the Texas Supreme Court since he become attorney general a year ago. The appeal to the court stems from a public information opinion that the OAG issued in March. In January 1999, the Williamson County Sun and the Austin American-Statesman requested copies of an engineering report that detailed alleged structural problems at the Georgetown, Texas, sewage treatment plant, which has been involved in two suits. The report was attached to a self-evaluation done by former City Manager Bob Hart, said Robert Heath, an Austin lawyer who represents Georgetown. The city of Georgetown declined to give the report to the newspapers and asked Cornyn for a legal opinion on whether disclosure was required. When Cornyn said the report had to be released under the 1999 amendments to the Texas Public Information Act, the city filed a suit challenging his opinion. Judge Suzanne Covington of the 201st District Court in Austin ruled in May that Georgetown city officials had violated the public information law by not releasing the report after Cornyn said it should be made public. The day after Covington ruled, the 3rd Court of Appeals denied Georgetown’s emergency petition to hear the case. BAD HAND? The case is being watched closely by cities around Texas, concerned that if Georgetown loses, local governments could be at a disadvantage in litigation. Heath, a partner in Austin’s Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, said governmental entities would have a hard time analyzing cases, seeking outside advice, and having a reasoned response to cases if all information is made available to the other side. “It’s like being in a poker game where your cards are face up and everybody else’s are held close to their chest. It’s sort of hard to bet or to play the game when they know what’s in your hand and you don’t know what’s in theirs,” Heath says in an interview. Heath argued that privileged attorney-client information is protected from disclosure by the rules of civil procedure and professional conduct, which he said meet the statute’s definition of “other law.” Provisions in the government code require attorneys to abide by the disciplinary rules or they could face losing their license, he said. But one member of the court questioned how Heath’s position would affect the Texas Legislature’s intent to make more information available to the public. If the court construes the rules to be “other law” to determine confidentiality, would that create such a wide area of protection that governmental entities could “cloak” many documents from disclosure forever? Abbott asked. Another member of the court said the argument in this case seems to be upside down. “It’s hard for me to conceive of a privileged document not being confidential, but it’s easy for me to perceive a confidential document not being privileged,” Justice Craig Enoch said. Enoch said courts deal all the time with “clearly confidential” documents that are put in the public domain because they lose their confidential status. That is different from privileged information that cannot be disclosed out of fairness, he said. Jennifer Riggs, who represents the American-Statesman, said the Texas Supreme Court, as one of its constitutional duties, governs when parties can obtain information from litigants. “It is for the Legislature to decide what information the public may obtain from government agencies and, in fact, to decide what will be available to the public. When you’re dealing with the attorney-client privilege in the context of government agencies, the public is part of the client — an issue that all government lawyers grapple with,” said Riggs, a partner in Hill, Gilstrap, Adams & Graham in Austin. If that’s the argument, Hankinson questioned whether any information a government lawyer shares with a governmental entity can be protected when put in writing. “Are you now asking lawyers who advise the government to never put anything in writing. Is that basically the position: As long as you keep talking about it and don’t put it in a letter to your client or in a report, it’s protected?” Hankinson said. “It is one way to avoid the problem,” Riggs said. The arguments were presented to eight justices. Al Gonzales resigned in December after President-elect George W. Bush named him White House counsel. Chief Justice Tom Phillips said that Gonzales’ replacement, who is yet to be named, could vote in this case and others if he or she listens to tapes of the arguments. The court gave no indication when it might rule.

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