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In a 5-3 decision on Feb. 15, the Texas Supreme Court handed Attorney General John Cornyn a major defeat on an open-records case. Cornyn, a former member of the Supreme Court, has contended that an engineering report prepared at the request of the Georgetown city attorney is public information because of changes the Texas Legislature made in the state’s open-records law. A section that lawmakers added to the Texas Public Information Act in 1999 requires that a governmental body make available to the public completed reports, audits, evaluations and investigations “unless the category of information is expressly made confidential under other law.” In a March 2000 legal opinion, Cornyn said that the Georgetown report was public information and had to be released. But the Supreme Court majority disagreed, holding that if documents are privileged or confidential under the Texas Rules of Civil Procedure or Texas Rules of Evidence, they meet the test for being kept confidential under the “other law” provision and don’t have to be released. “The Supreme Court was not convinced that the Legislature intended for this information to be public,” says Cornyn, who argued the case before the court in January. “The Legislature can clarify its intent if it disagrees with the court’s decision.” The case, In Re: The City of Georgetown, provided the Supreme Court its first opportunity to interpret the 1999 changes in the public information law. Cities and other governmental entities around the state have been waiting to see how the court would rule. “It was a case of statewide importance,” Georgetown city attorney Marianne Banks says, adding that governmental entities could have been at a disadvantage if the court had agreed with Cornyn. “I certainly don’t think the Legislature ever intended to open those [records],” says Robert Heath, who argued on the city’s behalf before the Supreme Court. Heath, a partner in Austin’s Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, had argued that the report was protected by attorney-client and consulting-expert privileges. The ruling affords a governmental body the same protection as the private parties it may face in litigation, says Heath. “If they [governmental entities] have to put all their cards on the table, it’s going to cost taxpayers money because they’re not going to be able to pursue the same litigation strategy,” he says. Ironically, Heath once handled open-records disputes as chairman of the opinions committee at the Office of the Attorney General in the late 1970s. “I was there for all early development of the open-records law,” he says. Jennifer Riggs, who represents the Austin American-Statesman in the case, says the cities have overstated what she believes the provision in the public information law requires. “Not every document falls within �552.022,” says Riggs, a partner in Hill, Gilstrap, Riggs, Adams & Graham in Austin. “Not everything is a completed report, audit, investigation or evaluation.” Riggs says the document in question was a feasibility study that evaluated different ways to fix a leaking tank at Georgetown’s Dove Springs Wastewater Treatment Plant and provided cost estimates. It is important for taxpayers to have that information, she says. The wastewater treatment facility had been targeted by two suits filed by property owners downstream from the plant. At issue in both cases was the alleged use of the creek bed for the wastewater released by the plant, Banks says. “OTHER LAW” When the Statesman and the Williamson County Sun requested copies of the report, Georgetown officials refused to release it and asked Cornyn for a legal opinion on whether disclosure was required. The treatment facility was the target of two pending suits when the report was written. After Cornyn ruled that the report had to be released, the city filed a suit challenging his opinion. Judge Suzanne Covington of the 201st District Court in Austin ruled two months later that city officials had violated the public information law by refusing to disclose the report and ordered that the document be released. Austin’s 3rd Court of Appeals denied the city’s emergency petition to hear the case, and Georgetown officials turned to the Supreme Court. Justice Priscilla Owen, author of the majority’s opinion, wrote that interpreting the public information law as the Statesman had advocated would have a “profound impact” on governmental bodies, which would have to disclose all written legal advice and strategy to those with whom they are negotiating contracts or other agreements. “Legislative intent to effectuate such a sweeping waiver of the work-product and attorney-client privileges cannot be gleaned from the words �unless the category of information is expressly made confidential under other law,’ ” Owen said in the opinion. Justices Nathan Hecht, Craig Enoch, Deborah Hankinson and Harriet O’Neill joined Owen in the opinion, which also directed Covington to vacate her order. In a dissenting opinion, Justice Greg Abbott said there is no indication that the Legislature considered the court’s rules to be “other law.” Even if the court’s rules can be considered “other law,” he wrote, they don’t expressly make confidential documents protected by the work-product and consulting-expert privileges. “While the court’s interpretation may have common sense behind it, a strict construction of the statute does not support it,” Abbott wrote in the opinion in which he was joined by Chief Justice Tom Phillips and Justice James Baker. Riggs says, “We agree heartily with the dissent, and we are considering whether to seek a rehearing.” Paul Watler, a past president of the Texas Freedom of Information Foundation and a shareholder in Jenkens & Gilchrist in Dallas, says the report involved in this case was of public interest because it detailed remedial measures for the sewage treatment plant. He says the problems at the plant were a concern because of how they might affect health and welfare, and the plant also had become an issue in municipal elections. Notes Watler, “It’s always unfortunate when city officials are allowed to withhold information that may have a critical impact on voters in the community.”

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