City of Georgetown, Texas Dale Ross, Mayor of the City of Georgetown And David Morgan, City Manager of the City of Georgetown v. Terrill W. Putnam

Opinion

ACCEPTED 08-20-00171-cv EIGHTH COURT OF APPEALS 08-20-00171-cv EL PASO, TEXAS 4/22/2021 2:59 PM ELIZABETH G. FLORES CLERK

FILED IN Mr. de la Fuente’s Direct Line: (512) 322-5849 8th COURT OF APPEALS Email: jdelafuente@lglawfirm.com EL PASO, TEXAS 4/22/2021 2:59:10 PM ELIZABETH G. FLORES April 22, 2021 Clerk

Via E-File

Ms. Elizabeth G. Flores Court of Appeals Eighth District of Texas 500 East San Antonio Avenue Suite 1203 El Paso, Texas 79901-2408

Re: Court of Appeals Number: 08-20-00171-CV Trial Court Case Number: 18-0998-C395

City of Georgetown, Texas; Dale Ross, Mayor of the City of Georgetown; and David Morgan, City Manager of the City of Georgetown v. Terrill W. Putnam

Dear Ms. Flores:

The above-referenced action was orally argued and submitted on April 22, 2021 to the Justices of this Court. Please circulate this correspondence to each of the Justices.

We are providing additional courtesy copies of recent post-briefing cases for the Court regarding the above-referenced matter, as referenced in oral argument:

Qatar Found. for Educ., Sci. & Cmty. Dev. v. Zachor Legal Inst., 03-20-00129- CV, 2021 WL 1418988 (Tex. App.—Austin Apr. 15, 2021, no pet. h.); Univ. of Tex. Rio Grande Valley v. Hernandez, 13-19-00180-CV, 2021 WL 375429 (Tex. App.—Corpus Christi Feb. 4, 2021, no pet. h.); City of Austin v. Doe, 03-20-00136-CV, 2020 WL 7703126 (Tex. App.—Austin Dec. 29, 2020, no pet.); and Franklin Ctr. for Gov't v. Univ. of Tex. Sys., 03-19-00362-CV, 2020 WL 7640146 (Tex. App.—Austin Dec. 22, 2020, no pet.)

April 22, 2021 Page 2

Copies of the cases are attached as Exhibits A – D with this correspondence for the convenience of the reviewing Justices.

Sincerely,

/s/ Jose E. de la Fuente Jose E. de la Fuente JEF/kwm Enclosure

C/M.

April 22, 2021 Page 3

CERTIFICATE OF SERVICE

I hereby certify that on this, the 22nd Day of April, 2021, a true and correct copy of the foregoing document has been served on the following counsel of record, in accordance with the Texas Rules of Appellate Procedure, via electronic transmission:

Robert Henneke rhenneke@texaspolicy.com Texas Public Policy Foundation

Michael E. Lovins Michael@LTLegalTeam.com Lovins Trosclair, PLLC

COUNSEL FOR APPELLEES

/s/ Jose E. de la Fuente JOSE E. de la FUENTE

C/M.

EXHIBIT A

Qatar Foundation for Education, Science and Community..., --- S.W.3d ---- (2021)

Darlene Byrne, Chief Justice 2021 WL 1418988 Only the Westlaw citation is currently available. *1 This is an appeal from the district court's order sustaining Zachor Legal Institute's plea to the NOTICE: THIS OPINION HAS NOT jurisdiction in Qatar Foundation's suit under the Texas BEEN RELEASED FOR PUBLICATION Public Information Act (TPIA). Qatar Foundation IN THE PERMANENT LAW REPORTS. filed suit against the Attorney General to prevent the UNTIL RELEASED, IT IS SUBJECT disclosure of information in response to a request TO REVISION OR WITHDRAWAL. for public information that Zachor Legal Institute had submitted to Texas A&M University. Based Court of Appeals of Texas, Austin.

on our conclusion that the TPIA waives sovereign immunity for Qatar Foundation's suit, we reverse the QATAR FOUNDATION FOR district court's order and remand the case for further EDUCATION, SCIENCE AND proceedings. COMMUNITY DEVELOPMENT and Ken Paxton, Texas Attorney General, Appellants BACKGROUND

v. Qatar Foundation is a private, non-profit organization ZACHOR LEGAL headquartered in Doha, Qatar. Its self-described mission is “to lead human, social, and economic INSTITUTE, Appellee development in Qatar through investment in education, science, and research.” As part of that mission, NO. 03-20-00129-CV Qatar Foundation partners with universities around the | world, including Texas A&M, to open and operate Filed: April 15, 2021 branch campuses at its “Education City” in Qatar.

FROM THE 200TH DISTRICT COURT OF TRAVIS COUNTY, NO. D-1-GN-18-006240, In May 2018, Zachor Legal Institute submitted a THE HONORABLE KARIN CRUMP, JUDGE request for public information to Texas A&M for a PRESIDING “summary of all amounts of funding or donations received by or on behalf of [Texas A&M] from the Attorneys and Law Firms government of Qatar and/or agencies or subdivision of the government of Qatar between January 1, Kimberly L. Fuchs, Jennifer S. Riggs, Austin, for Appellants Ken Paxton, Texas Attorney General. 2013 and May 22, 2018.”1 See Tex. Gov't Code § 552.021 (requiring that public information be made Anna M. Baker, Houston, David P. Long, Amanda available to public). Texas A&M, which did not Price, Houston, Wallace B. Jefferson, Austin, for notify Qatar Foundation about the request, asked the Appellants Qatar Foundation for Education, Science Attorney General for a decision about whether it and Community Development. had to release information that “identifies donors to the university.” See id. §§ 552.1235(a) (excepting Jennifer S. Riggs, Nicole Cordoba, Dale Wainwright, from disclosure information disclosing the identity of Austin, for Appellee. person, other than governmental body, making a gift, grant, or donation of money to institution of higher Before Chief Justice Byrne, Justices Baker and Smith learning), .301 (directing governmental body seeking to withhold information to request Attorney General opinion), .305(d) (directing governmental body to OPINION make good-faith effort to notify third party of request involving privacy or property interests). The Attorney

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General's subsequent letter ruling, issued in August and 552.1235. See id. §§ 552.104 (excepting from 2018, concluded that Texas A&M “must withhold disclosure information related to competition or the donors' identifying information” under section bidding), .110, .1235. Qatar Foundation sent the 552.1235 but directed it to “release the remaining Attorney General a detailed letter explaining why its information,” which included information related to negotiations and agreements with partner universities, contractual payments Qatar Foundation had made to including Texas A&M, and information regarding Texas A&M. See Tex. Att'y Gen. OR2018-20240. the amounts and types of funding are exempt from Texas A&M did not challenge the letter ruling. disclosure under sections 552.104, 552.110, and 552.1235. See id. § 552.305(b) (allowing person whose Qatar Foundation, which maintains that it was not privacy or property interests are involved in TPIA aware of Zachor Legal Institute's request until two request to submit to Attorney General reasons why the months after the Attorney General's letter ruling information should be withheld or released). issued, filed the underlying suit for declaratory judgment against the Attorney General in October In a second letter ruling, the Attorney General 2018. In its suit, Qatar Foundation asserted and concluded that Qatar Foundation had established that sought declarations that information responsive to the release of the requested information “would give request is protected from disclosure under the TPIA an advantage to a competitor or bidder,” see id. § because the information constitutes trade secrets and 552.104(a), and directed Texas A&M to withhold the confidential commercial or financial information and information. See Tex. Att'y Gen. OR2019-01288. The because it reveals the amount of the grant or donation Attorney General also noted that because some of and the identity of the donor. See id. §§ 552.110(a)– the information responsive to Zachor Legal Institute's (b) (excepting trade secrets and certain commercial request may be affected by his first letter ruling, and financial information from disclosure), .1235(a). he would defer to the trial court to make its own Qatar Foundation relied on section 552.325 as the independent determination regarding disclosure: “[The asserted basis for jurisdiction over its suit. See id. Attorney General] will allow the trial court to resolve § 552.325(a) (“A governmental body, officer for the issue of whether the information that is the subject public information, or other person or entity that of the pending litigation must be released to the files a suit seeking to withhold information from public.” Id. a requestor may not file suit against the person requesting the information.”); Boeing Co. v. Paxton, Zachor Legal Institute filed a plea to the jurisdiction in 466 S.W.3d 831, 833, 839 (Tex. 2015) (recognizing the underlying case, arguing that the district court lacks that section 552.325 provides judicial remedy to third jurisdiction over Qatar Foundation's suit because “[n]o party seeking to withhold requested information). provision of the TPIA authorizes a third party that Zachor Legal Institute intervened in the suit. See Tex. asserts privacy or property interests to file a lawsuit Gov't Code § 552.325(a). to challenge a decision of the Attorney General.”

Both Qatar Foundation and the Attorney General filed *2 Soon after Qatar Foundation filed its suit, briefs opposing Zachor Legal Institute's jurisdictional Zachor Legal Institute submitted a second TPIA argument, but the district court sustained Zachor Legal request, this time asking for “[a]ll correspondence Institute's plea to the jurisdiction and dismissed Qatar and communications between [Texas A&M] and third Foundation's case. Qatar Foundation appeals. parties relating to [the first request for information]” and “[a]ll communications relating to [Texas A&M] funding, programs and activities between [Texas ANALYSIS A&M] and the parties listed in [the first request for information] between 2013 and the current In a single issue, Qatar Foundation asserts, and the date.” Texas A&M notified Qatar Foundation and Attorney General agrees, that the district court erred asked the Attorney General for an opinion about in sustaining Zachor Legal Institute's plea to the whether the requested information is excepted from jurisdiction because the district court has jurisdiction disclosure under TPIA sections 552.104, 552.110, over an action brought against the Attorney General

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Qatar Foundation for Education, Science and Community..., --- S.W.3d ---- (2021)

by a third party who seeks to withhold protected Georgetown, 53 S.W.3d 328, 331 (Tex. 2001) (orig. information from disclosure under the TPIA. Zachor proceeding). Legal Institute contends that the district court did not err because the TPIA does not waive sovereign A request for public information typically involves immunity for Qatar Foundation's suit against the two parties, the governmental body holding the Attorney General. Based on the text of the TPIA and information and the person requesting it. The Texas Supreme Court precedent, we agree with Qatar governmental body must promptly ask the Attorney Foundation and the Attorney General that the district General for a ruling if it seeks to withhold the court has jurisdiction over Qatar Foundation's suit, and information. Boeing, 466 S.W.3d at 833 (citing Tex. thus erred in sustaining Zachor Legal Institute's plea to Gov't Code § 522.301). Because the government the jurisdiction. gathers information from people and companies doing business in Texas, some requests may also implicate Sovereign immunity protects the State of Texas and its privacy or property interests of third parties. Id. agencies from suit and liability. Texas Parks & Wildlife When a request involves this type of information, the Dep't v. Sawyer Tr., 354 S.W.3d 384, 388 (Tex. 2011). Texas Supreme Court has explained that the TPIA The Legislature may waive immunity by statute, but it “permits the third party to raise the issue and any must do so by clear and unambiguous language. Tex. applicable exception to the information's disclosure Gov't Code § 311.034; Hillman v. Nueces County, 579 with the Attorney General, or in district court, or S.W.3d 354, 360 (Tex. 2019) (“To waive governmental both.” Id. (emphasis added) (citing Tex. Gov't Code immunity, a statute must use ‘clear and unambiguous §§ 552.305(b), .325). Qatar Foundation, alleging that language’ expressing that intent.” (citing Tooke v. City the request at issue here involves information that of Mexia, 197 S.W.3d 325, 328–29 (Tex. 2006))). implicated its privacy and property interests, filed Whether the TPIA waives sovereign immunity is a this suit against the Attorney General under section matter of statutory construction, which is a question of 552.325. Zachor Legal Institute contends that the law that we review de novo. See Texas W. Oaks Hosp., TPIA does not clearly and unambiguously waive LP v. Williams, 371 S.W.3d 171, 177 (Tex. 2012). sovereign immunity for Qatar Foundation's suit, and Procedurally, the assertion of sovereign immunity thus the district court lacks jurisdiction. See Miranda, implicates the trial court's jurisdiction and is properly 133 S.W.3d at 224 (“In Texas, sovereign immunity asserted in a plea to the jurisdiction. Houston Belt & deprives a trial court of subject matter jurisdiction for Terminal Ry. v. City of Houston, 487 S.W.3d 154, 160 lawsuits in which the state or certain governmental (Tex. 2016); Rusk State Hosp. v. Black, 392 S.W.3d units have been sued unless the state consents to suit.”). 88, 91 (Tex. 2012). Where, as here, the material jurisdictional facts are undisputed and the analysis of When deciding whether a statute clearly and the jurisdictional plea turns on an issue of statutory unambiguously waives sovereign immunity, we: construction, the trial court rules on the plea to the jurisdiction as a matter of law. See Texas Dep't of Parks (1) consider “whether the statutory provisions, even & Wildlife v. Miranda, 133 S.W.3d 217, 227–28 (Tex. if not a model of clarity, waive immunity without 2004). We review a trial court's ruling on a plea to the doubt;” jurisdiction de novo. Id. at 228.

(2) resolve any “ambiguity as to waiver ... in favor of retaining immunity;”

*3 The TPIA “guarantees access to public information, subject to certain exceptions.” Texas (3) generally find waiver “if the Legislature requires Dep't of Pub. Safety v. Cox Tex. Newspapers, L.P., that the [governmental] entity be joined in a 343 S.W.3d 112, 114 (Tex. 2011). Public information lawsuit even though the entity would otherwise be includes information that is collected, assembled, or immune from suit;” maintained by or for a governmental body. Tex. Gov't Code § 552.002(a). Such information is available by (4) consider whether the legislature “provided an request unless an exception applies. In re City of objective limitation on the governmental entity's potential liability”; and

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Qatar Foundation for Education, Science and Community..., --- S.W.3d ---- (2021)

if the Legislature requires that governmental entity be (5) consider “whether the statutory provisions would joined in a lawsuit even though it would otherwise serve any purpose absent a waiver of immunity.” be immune); Wichita Falls State Hosp. v. Taylor, 106 Hillman, 579 S.W.3d at 360 (citing Harris Cnty. Hosp. S.W.3d 692, 697–698 (Tex. 2003) (“[I]f the Legislature Dist. v. Tomball Reg'l Hosp., 283 S.W.3d 838, 844 requires that the State be joined in a lawsuit for which (Tex. 2009)). Although section 552.325 is no model immunity would otherwise attach, the Legislature has of clarity, it waives immunity for Qatar Foundation's intentionally waived the State's sovereign immunity.”). suit by recognizing, as the supreme court explained Also, because the remedy for a suit under this provision in Boeing, that a party other than a governmental is a declaration that the requested information is not body may file a suit seeking to withhold information subject to disclosure and because the TPIA does not requested under the TPIA: authorize attorney fees for this type of suit, there is an objective limitation on the governmental entity's 552.325 Parties to Suit Seeking to Withhold potential liability. See Tex. Gov't Code § 552.323 Information (authorizing attorney fees for two types of suits under (a) A governmental body, officer for public the TPIA, but not for suit under section 552.325); information, or other person or entity that files a suit Hillman, 579 S.W.3d at 360 (in deciding whether seeking to withhold information from a requestor immunity has been waived, court must consider may not file suit against the person requesting the whether legislature “provided an objective limitation information. The requestor is entitled to intervene in on government's potential liability”). Finally, if section the suit. 552.325 does not waive immunity for third-party suits seeking to withhold information, the language *4 (b) The governmental body, officer for public referencing “other person or entity” filing a suit would information, or other person or entity that files serve no purpose. See Hillman, 579 S.W.3d at 360 (in the suit shall demonstrate to the court that the determining waiver, courts must “consider whether the governmental body, officer for public information, statutory provisions would serve any purpose absent a or other person or entity made a timely good faith waiver of immunity”); see also Creative Oil & Gas, effort to inform the requestor.... of: LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 134 (Tex. 2019) (“Every word in a statute is presumed to (1) the existence of the suit, including the subject have a purpose and should be given effect if reasonable matter and ...; and possible.”). (2) the requestor's right to intervene in the suit or Zachor Legal Institute concedes that section 552.325 to choose to not participate in the suit;

waives sovereign immunity but insists that it does so (3) the fact that the suit is against the attorney only for suits brought by a governmental body, not general in Travis County district court; and by a third party. In support of this argument, Zachor Legal Institute contends that section 552.325 merely (4) the address and phone number of the office of describes how the waiver of immunity in section the attorney general. 552.324 is to be exercised. Section 552.324, titled “Suit Tex. Gov't Code § 552.325 (emphases added); see also by Governmental Body,” specifies that a suit by a Boeing, 466 S.W.3d at 838 (concluding “Legislature governmental body seeking to withhold information intended private parties ... to have ... the right to may only seek declaratory relief from compliance with protect their interest in the information protected by an Attorney General opinion, that it must be filed section 552.104 through the judicial remedy provided against the Attorney General in Travis County district by section 552.325” (citations omitted)). Further, the court within thirty days of the Attorney General's fact that the provision requires that a suit seeking to decision, and that if the governmental body does not withhold information be filed against the Attorney file such a suit, it must comply with the Attorney General makes clear that the Legislature intended to General's decision. See Tex. Gov't Code § 552.324. waive immunity for such suits. See Hillman, 579 Section 552.325, on the other hand, recognizes that S.W.3d at 360 (noting that courts generally find waiver persons or entities other than a governmental body

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Qatar Foundation for Education, Science and Community..., --- S.W.3d ---- (2021)

may file a suit seeking to withhold information from because it addresses a “victim of a violation of [the a requestor, prohibits filing such a suit against a TPIA]” by a governmental body. See id. § 552.3215. requestor, directs that these suits be filed against A party seeking to withhold protected information the Attorney General, and describes how requestors is not yet, and may never be, a victim of a TPIA are to be notified and treated in these types of violation involving the release of that information. suits. See id. § 552.325. In sum, although the two Only when the governmental body improperly releases provisions might overlap, section 552.324 addresses the information would a party seeking to withhold only suits by governmental bodies seeking to withhold information potentially fall under section 552.3215, information, while section 552.325 addresses all suits but at that point the damage would have been done. seeking to withhold information from a requestor and, most important here, recognizes that parties other In conflict with its argument that the TPIA waives than a governmental body may file such suits. For sovereign immunity only for suits by a governmental that reason, we would impermissibly have to decide body, Zachor Legal Institute also suggests that Qatar that section 552.325's reference to “other person or Foundation could have overcome the sovereignentity ” has no purpose if we were to accept Zachor immunity barrier by including Texas A&M in its suit. Legal Institute's interpretation. See Creative Oil & But section 552.325's only party-specific requirements Gas, 591 S.W.3d at 134 (“Every word in a statute is are that the suit be brought against the Attorney presumed to have a purpose and should be given effect General and that the requestor may not be named if reasonable and possible.”). We would also have as a party. See Tex. Gov't Code § 552.325. Nor is to ignore the Texas Supreme Court's conclusion that there any requirement that the governmental body section 552.325 authorizes third-party suits seeking to be named party to the suit because the core issue withhold protected information. Boeing, 466 S.W.3d at in such a suit, and thus the subject of any resulting 833, 838.2 judgment, is whether the requested information can be withheld. See id.; see also id. §§ 552.104 (exempting *5 Zachor Legal Institute argues that the only from disclosure information that provides advantage to available relief for a third party seeking to withhold competitor or bidder), .110 (exempting from disclosure protected information from a requestor is to submit trade secrets and confidential or financial information). comments to the Attorney General in response to a “[W]hether information is subject to the [TPIA] and governmental body's request for an Attorney General whether an exception to disclosure applies to the opinion, see Tex. Gov't Code § 552.305(b) (allowing information are questions of law.” City of Garland person whose interests may be involved, to submit to v. Dallas Morning News, 22 S.W.3d 351, 357 (Tex. Attorney General “reasons why the information should 2000). be withheld or released”), or to file suit for declaratory or injunctive relief against the governmental body In a final argument, Zachor Legal Institute contends under section 552.3215, see id. § 552.3215 (allowing that the district court lacks subject-matter jurisdiction victim of TPIA violation to complain to appropriate over Qatar Foundation's suit because Texas A&M, district or county attorney or to Attorney General and as the governmental body holding the requested authorizing district or county attorney or Attorney information, is an indispensable party to the suit, and General to file suit against governmental body in as a result, the district court could not give adequate response to complaint). Nothing in the text of the relief without Texas A&M's joinder. See Tex. R. TPIA, however, suggests that these are the exclusive Civ. P. 39(a) (governing joinder of persons needed remedies for such parties and, as discussed above, the for just adjudication). The trial court cannot give Texas Supreme Court has explained to the contrary complete relief without Texas A&M as a party, Zachor that the TPIA allows third parties to raise privacy Legal Institute argues, because Texas A&M, not the and property issues “with the Attorney General, or in Attorney General, has the duty to produce public district court, or both.” Boeing, 466 S.W.3d at 833 information and because Texas A&M is now under a (citing Tex. Gov't Code §§ 552.305(b), .325). We also mandatory duty to disclose the requested information note that section 552.3215 does not offer a meaningful given that it did not file a lawsuit challenging the remedy to a party seeking to withhold information Attorney General's decision. See Tex. Gov't Code

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Qatar Foundation for Education, Science and Community..., --- S.W.3d ---- (2021)

civil procedure 39”). Here, because we are remanding, 552.324(b). However, even assuming Zachor Legal Zachor Legal Institute can raise the Rule 39 issue with Institute's assertions are correct, the Texas Supreme the trial court to allow it to determine whether it should Court has indicated that the failure to join a necessary refuse to enter a judgment or declaration in Texas party does not deprive the trial court of subject-matter jurisdiction; instead, it raises the prudential question A&M's absence. See Brooks, 141 S.W.3d at 163. of whether the trial court should have refused to *6 Based on the text of the TPIA and the supreme proceed in the necessary party's absence. See Brooks court's decision in Boeing, we hold that the TPIA v. Northglen Ass'n, 141 S.W.3d 158, 162–63 (Tex.

waives sovereign immunity for Qatar Foundation's suit 2004); see also id. at 163 (holding that party had against the Attorney General. Because immunity has waived Rule 39 issue by failing to raise it before been waived, the district court has jurisdiction over trial court); Texas Ass'n of Bus. v. Texas Air Control Qatar Foundation's suit and, thus, erred in dismissing Bd., 852 S.W.2d 440, 444 (Tex. 1993) (noting that Qatar Foundation's suit. Accordingly, we sustain Qatar subject-matter jurisdiction “is never presumed and Foundation's sole issue on appeal.

cannot be waived”); Barrera v. Chererco, LLC, No. 04-16-00235-CV, 2017 WL 943436, at *3 (Tex. App. —San Antonio Mar. 8, 2017, no pet.) (“The failure to join a person whose interests could be affected by the CONCLUSION trial court's judgment or declaration does not deprive a trial court of jurisdiction.”); Mining v. Hays Cnty. Bail Having sustained Qatar Foundation's issue, we reverse Bond Bd., No. 03-05-00448-CV, 2006 WL 952402, at the district court's judgment and remand the case to the *5 (Tex. App.—Austin Apr. 14, 2006, no pet.) (noting district court for further proceedings. that in Brooks “the supreme court has more recently held that subject matter jurisdiction is rarely implicated All Citations by the failure to join a party required under section 37.006(a) of the declaratory judgment act or rule of --- S.W.3d ----, 2021 WL 1418988

Footnotes 1 The request characterized Qatar Foundation as an agency or subdivision of the Qatari government. Qatar Foundation disputes this characterization.

2 Zachor Legal Institute maintains that the Texas Supreme Court's statements regarding section 552.325 and third-party rights in Boeing are dicta, and thus do not control our analysis here, because jurisdiction was not an issue in that case. We disagree that the statements are dicta. In holding that Boeing could invoke section 552.104's exception, the supreme court explicitly relied on Boeing's being able to protect its privacy and property interests through the “judicial remedy provided in section 552.325.” Boeing Co. v. Paxton, 466 S.W.3d 831, 839 (Tex. 2015). We cannot disregard as dicta the supreme court's discussion of an issue that supports its ultimate conclusion. See Texas Farm Bureau Mut. Ins. v. Sturrock, 146 S.W.3d 123, 127–28 (Tex. 2004) (holding that its discussion of an issue that supports ultimate conclusion is not dicta).

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Government Works.

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EXHIBIT B

University of Texas Rio Grande Valley v. Hernandez, Not Reported in S.W. Rptr. (2021) 2021 WL 375429

On December 13, 2016, Hernandez submitted a public information request (PIR) to UTRGV under the PIA 2021 WL 375429 requesting documents related to an investigation that Only the Westlaw citation is currently available.

UTRGV was conducting on her.1 UTRGV informed SEE TX R RAP RULE 47.2 FOR Hernandez in a letter dated January 5, 2017, that DESIGNATION AND SIGNING OF OPINIONS. “one or more exceptions to the disclosure under the [PIA] may apply to some in or all of the responsive Court of Appeals of Texas, information,” and that UTRGV forwarded the PIR to Corpus Christi-Edinburg.

the Attorney General's Office (AG) for a determination as to whether the information must be released. That The UNIVERSITY OF TEXAS RIO same day, UTRGV also wrote the AG asking whether GRANDE VALLEY, Appellant, certain records should be produced in response to v. Hernandez's request.

Leila HERNANDEZ and William Before the AG responded to UTRGV's letter, D. Mount Jr., Appellees. Hernandez filed a writ of mandamus in the trial court, alleging that UTRGV violated the PIA by failing to NUMBER 13-19-00180-CV timely respond to her request.2 See Tex. Gov't Code | Ann. § 552.301 (providing that within ten days of Delivered and filed February 4, 2021 receipt of a PIR, the governmental body must ask for On appeal from the 92nd District Court of Hidalgo a decision from the AG about whether the information County, Texas. may be withheld). She also requested attorney's fees stating she has “incurred substantial attorney's fees in Attorneys and Law Firms the prosecution of this action and [she] has a right to obtain those fees.”

William D. Mount Jr., Katie P. Klein, for Appellees.

On March 15, 2017, the AG ruled that some Jennifer S. Jackson, for Appellant.

information needed to be produced, some information Before Justices Benavides, Longoria, and Tijerina could be redacted, and some information should be withheld. UTRGV sent Hernandez the requested documents in accordance with the AG's ruling.3 MEMORANDUM OPINION Hernandez amended her petition and Mount, her attorney, joined as a party after UTRGV asserted Memorandum Opinion by Justice Tijerina that Hernandez did not qualify as a “requestor”

under the PIA. UTRGV subsequently filed a plea *1 In this interlocutory appeal, appellant the to the jurisdiction and a motion for partial summary University of Texas Rio Grande Valley (UTRGV), judgment. UTRGV and appellees filed competing challenges the trial court's denial of its supplemental motions for summary judgment, and UTRGV filed a plea the jurisdiction in a case brought by appellees second plea to the jurisdiction and a second motion Leila Hernandez and William D. Mount, Jr. under for summary judgment. The trial court did not rule on the Public Information Act (PIA). By two issues, these motions. UTRGV claims the trial court erred in dismissing its plea because (1) appellees' PIA claim is moot and (2) *2 On October 26, 2018, UTRGV produced more appellees are not entitled to attorney's fees under the information and filed a supplemental plea to the PIA. We reverse and render. jurisdiction, seeking to dismiss appellees' case and request for attorney's fees as moot because it had “produced the responsive documents earlier today,”

I. Background and therefore, “there is no live case or controversy before the court.” Appellees responded that UTRGV

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University of Texas Rio Grande Valley v. Hernandez, Not Reported in S.W. Rptr. (2021) 2021 WL 375429

had not produced all the information; namely, 399 (Tex. App.—Houston [1st Dist.] 2006, no pet.) UTRGV failed to produce a video recording and (quoting F.D.I.C. v. Nueces County, 886 S.W.2d pictures concerning Hernandez. UTRGV subsequently 766, 767 (Tex. 1994)). “To constitute a justiciable produced the requested video recording and pictures controversy, there must exist a real and substantial on January 17, 2019 and re-urged its motion stating controversy involving genuine conflict of tangible the production of information mooted appellees' claim interests and not merely a theoretical dispute.” Bonham and request for attorney's fees. The trial court held an State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. evidentiary hearing on UTRGV's supplemental plea to 1995); Kessling v. Friendswood Indep. School Dist., the jurisdiction and denied UTRGV's plea. UTRGV 302 S.W.3d 373, 380 (Tex. App.—Houston [14th filed this interlocutory appeal. Dist.] 2009, pet. denied). “If a controversy ceases to exist—‘the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome’—the case becomes moot.” Williams v. Lara, II. Public Information Act 52 S.W.3d 171, 184 (Tex. 2001). If a case becomes UTRGV contends that the trial court erred when it moot, the court loses jurisdiction over the claims. Id. denied its supplemental plea to the jurisdiction because appellees' PIA claim was rendered moot as a result of 2. Public Information Act UTRGV's production of the requested information.

Under the PIA, upon a request for public information, a governmental body must promptly produce public A. Standard of Review information for inspection, duplication, or both. Tex. A plea to the jurisdiction challenges the trial court's Gov't Code Ann. § 552.221. Public information is any subject matter jurisdiction to hear a case. Bland Indep. information which, under a law or ordinance or in Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The connection with the transaction of official business, existence of subject matter jurisdiction is a question of is collected, assembled or maintained by or for a law that we review de novo. State Dep't of Highways governmental body and the governmental body owns & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. the information or has a right of access to it. Id. § 2002). When a plea to the jurisdiction “ ‘challenges the 552.002; City of Garland v. Dall. Morning News, 22 existence of jurisdictional facts, we consider relevant S.W.3d 351, 356 (Tex. 2000). evidence submitted by the parties when necessary to resolve the jurisdictional issues raised,’ even where If a governmental body receives a PIR for information those facts may implicate the merits of the cause of that it wishes to withhold from public disclosure and action.” City of Waco v. Kirwan, 298 S.W.3d 618, 622 believes is excepted from disclosure under the PIA, (Tex. 2009) (quoting Tex. Dep't & Wildlife v. Miranda, within ten days of receipt of the written request, the 133 S.W.3d 217, 227 (Tex. 2004)). If the evidence governmental body must ask for a decision from the creates a fact question regarding jurisdiction, the trial AG about whether the information may be withheld. court cannot grant the plea to the jurisdiction, and the See Tex. Gov't Code Ann. § 552.301(a). “Unless fact issue will be resolved by the factfinder; however, the information requested is confidential by law, if the relevant evidence is undisputed or fails to raise a the governmental body may disclose the requested fact question on the jurisdictional issue, the trial court information to the public or to the requestor before rules on the plea as a matter of law. Miranda, 133 the attorney general makes a final determination that S.W.3d at 228. the requested information is public or, if suit is filed under this chapter, before a final determination that the requested information is public has been made by the B. Applicable Law court with jurisdiction over the suit.” Id. § 552.303(a).

1. Mootness *3 Section 552.321 of the PIA waives sovereign “The mootness doctrine limits courts to deciding immunity allowing a requestor to file suit for a writ cases in which an actual controversy exists.” Hous.

of mandamus compelling a governmental body to Chronicle Publ'g Co. v. Thomas, 196 S.W.3d 396, make information available for public inspection if the

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University of Texas Rio Grande Valley v. Hernandez, Not Reported in S.W. Rptr. (2021) 2021 WL 375429

governmental body refuses to request an AG decision delay in the release of information subject to disclosure or refuses to supply public information or information under the PIA). On this basis, we sustain UTRGV's that the AG has determined is not excepted from first issue and conclude UTRGV's production of disclosure. Id. § 552.321(a). However, “the legislature documents mooted appellees' PIA case.4 See Tex. has not addressed or provided a waiver of sovereign Gov't Code Ann. § 552.321(a); Nehls, 522 S.W.3d at immunity as to a claim that is based on a governmental 30 (holding that “appellants' release of information body's delay or its motives for delaying the release eliminated the justiciable controversy that formed of information that is subject to disclosure under the the basis of [plaintiffs'] claim”); Abbott, 444 S.W.3d PIA.” Nehls v. Hartman Newspapers, LP, 522 S.W.3d at 325–26 (reversing the trial court's denial of the 23, 29 (Tex. App.—Houston [1st Dist.] 2017, pet. city's plea to the jurisdiction because it lacked subject denied) (quoting Gates v. Tex. Dep't of Family and matter jurisdiction over the plaintiff's mandamus claim Protective Servs., No. 03-15-00631-CV, 2016 WL when the city proved it turned over the responsive 3521888, at *4 (Tex. App.—Austin June 23, 2016, pet. documents”); Tex. State Bd. of Veterinary Med. denied) (mem. op.)). Exam'rs v. Giggleman, 408 S.W.3d 696, 704–06 (Tex.

App.—Austin 2013, no pet.) (holding a plaintiff's PIA claim is mooted by the governmental entity's C. Analysis production of the requested information); Gates, 2016 Here, the uncontroverted evidence established that WL 3521888, at *5 (concluding that a PIA claim is UTRGV released the video recording and photographs moot by the government official's release of requested that Hernandez requested. After receiving the information); Dall. Morning News, Inc. v. City of information, appellees continued to allege the case Arlington, No. 03-10-00192-CV, 2011 WL 182886, at is not moot because “not all information has been *3–4 (Tex. App.—Austin Jan. 21, 2011, no pet.) (mem.

produced.” However, appellees did not specify what op.) (holding a PIA controversy moot where the city public information UTRGV is withholding that is voluntarily released the requested document).

responsive to Hernandez's request or provide evidence to support their claim that UTRGV is withholding information. See Ryland Group v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (“Conclusory affidavits are not III. Attorney's Fees enough to raise fact issues.”). Instead, appellees urge us to conclude that because UTRGV produced the *4 By its second issue, UTRGV claims that the video recording and photographs after it claimed there trial court erred in denying its plea to the jurisdiction were no more documents to produce, there must be because appellees' related claim for attorney's fees was more documents in UTRGV's possession relevant to also rendered moot. Hernandez's request. We decline to make such an inference. Stated another way, appellees did not raise In an action brought under the PIA, “the court shall a fact question on the issue of whether UTRGV was assess costs of litigation and reasonable attorney['s] refusing or unwilling to supply the public information. fees incurred by a plaintiff who substantially prevails.” See City of El Paso v. Abbott, 444 S.W.3d 315, 326 Tex. Gov't Code Ann. § 552.323(a). To qualify as a (Tex. App.—Austin 2014, pet denied) (holding that “prevailing party,” a plaintiff must obtain (1) judicially even assuming the city had not disclosed all responsive sanctioned relief on the merits of its claim that documents, the bottom line for purposes of appellate (2) materially alters the legal relationship between review of the city's plea to the jurisdiction is that the parties such as a damages award, injunctive or the plaintiff did not offer any evidence to controvert declaratory relief, or consent decree or settlement or question the city's conclusive evidence that it in the party's favor. Intercont'l Grp. P'ship v. KB searched extensively for the requested documents and Home Lone Star L.P., 295 S.W.3d 650, 653–55 turned over the same). Moreover, UTRGV's delay in (Tex. 2009). Several courts of appeals in Texas have producing information is not evidence that it has not held that a requestor whose PIA claim is rendered complied with the PIA. See Gates, 2016 WL 3521888, moot by the voluntary production of documents by a at *4 (providing that the legislature has not waived governmental body during the pendency of suits does sovereign immunity based on a governmental body's not “substantially prevail” under the PIA. See Nehls,

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University of Texas Rio Grande Valley v. Hernandez, Not Reported in S.W. Rptr. (2021) 2021 WL 375429

on the requirement that party “substantially prevail”).

522 S.W.3d at 32; Giggleman, 408 S.W.3d at 703–06;

Accordingly, there is no “live” issue regarding whether City of Dallas v. Dall. Morning News, L.P., 281 S.W.3d appellees are entitled to attorney's fees under the PIA.

708, 718 (Tex. App.—Dallas 2009, no pet.); see also See Nehls, 522 S.W.3d at 32. We sustain UTRGV's Gates, 2016 WL 3521888, at *7–8; Hudson v. Paxton, second issue.

No. 03-13-00368-CV, 2015 WL 739605, at *3–5 (Tex. App.—Austin Feb. 20, 2015, pet. denied) (mem. op.); Brazee v. City of Spur, No. 07-12-00405-CV, 2014 WL 2810339, at *3 (Tex. App.—Amarillo June 10, 2014, IV. Conclusion no pet.) (mem. op.); Arlington, 2011 WL 182886, at *3–4. Appellees' claims under the PIA are moot.

Accordingly, we reverse the trial court's judgment Because appellees' mandamus claim is moot as a and render judgment dismissing appellees' writ of matter of law, their accompanying claim for attorney's mandamus in the trial court. fees under § 552.323(a) is likewise rendered moot. See Giggleman, 408 S.W.3d at 706 (holding that the All Citations pending attorney's fees claims did not preserve live controversy because the failure to obtain affirmative Not Reported in S.W. Rptr., 2021 WL 375429 relief precluded an attorney's fees award predicated

Footnotes 1 Pursuant to the PIA, Hernandez requested the following information from January 1, 2011 to the present:

1. A copy of each and every offense or police report concerning Leila Hernandez; 2. A copy of each and every investigative file concerning Leila Hernandez; 3. A copy of each and every complaint or report made against Leila Hernandez; 4. A copy of each and every inventory or record of tangible property seized from Leila Hernandez; 5. A copy of each and every warrant issued concerning Leila Hernandez; 6. A copy of each and every lab report concerning Leila Hernandez; 7. A copy of each and every voice recording concerning Leila Hernandez; 8. A copy of each and every video recording concerning Leila Hernandez; 9. A copy of each and every witness statement concerning Leila Hernandez; and 10. A copy of each and every statement of Leila Hernandez.

2 UTRGV was closed for the holidays from Thursday, December 22, 2016 through Monday, January 2, 2017. 3 Appellees asserted the information UTRGV produced was incomplete because there were redactions to that information. However, information is excepted from disclosure “if it is information considered to be confidential by law, either constitutional, statutory, or by judicial decision.” Tex. Gov't Code Ann. § 552.101.

4 Appellees also assert that a trial is necessary to determine the truthfulness or falsity of UTRGV's statements and that due to UTRGV's “bad faith, failure to produce information, delays in producing information, and false statements,” Hernandez has incurred over $20,000 in attorney's fees. However, these claims are not cognizable under the PIA because the waiver of sovereign immunity is limited to mandamus relief for the disclosure of public information. See Tex. Gov't Code Ann. § 552.321 (allowing for suit for a writ a mandamus for the disclosure of public information), § 311.034 (“A statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.”).

End of Document © 2021 Thomson Reuters. No claim to original U.S.

Government Works.

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EXHIBIT C

City of Austin v. Doe, Not Reported in S.W. Rptr. (2020) 2020 WL 7703126

Doe's ultra vires claim but reverse the order as to her remaining claims and render judgment dismissing 2020 WL 7703126 those claims.

Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS. BACKGROUND Court of Appeals of Texas, Austin. In her live petition, Doe—a fifty-one-year-old “wife, mother, professional and private citizen [who] has The CITY OF AUSTIN, Chief never been convicted of a crime”—alleges that she Brian Manley, and the Austin was recently arrested in Austin and accused of driving Police Department, Appellants while intoxicated (DWI), a misdemeanor charge she denies. After Doe was transported to the Travis v. County Jail, a sheriff's deputy told her that a booking Jane DOE, Appellee photo would be taken, but she objected to being photographed “on the grounds that the booking photo NO. 03-20-00136-CV would likely be posted on the internet and introduced | into the public domain in violation of her right Filed: December 29, 2020 to privacy and right to due process.” The deputy explained that the photo was being taken “solely to FROM THE 419TH DISTRICT COURT OF confirm [her] identity for internal law enforcement TRAVIS COUNTY, NO. D-1-GN-19-007388, THE purposes and that if [she] did not submit [to having HONORABLE CATHERINE MAUZY, JUDGE her photo taken] she would be sent to a holding cell PRESIDING until she acquiesced.” After the photo was taken and upon Doe's release from jail, the deputy instructed her Attorneys and Law Firms to inform APD that she “did not consent to the public Ana Marie Jordan, Jordan Law Office, 5101 Lorraine release” of the booking photo. Drive, Frisco, TX 75034, for Appellee.

Doe alleges that the APD maintains a policy Hannah Vahl, City of Austin Law Department, P. O. —“authored, adopted, and enforced by” Chief Manley Box 1546, Austin, TX 78767-1546, Sara Schaefer, —declaring that “[m]ug shots of adult arrestees are City of Austin Law Department, 301 W. 2nd St., subject to public release unless the release would Austin, TX 78701-4652, for Appellants. interfere with law enforcement interests or hinder investigative efforts ... [and, the mug shots] are Before Chief Justice Rose, Justices Baker and Kelly publicly released automatically through the online APD Booking Photo Database Search 13 days after date of arrest.” The policy is identified as APD General MEMORANDUM OPINION Order 326.4 (GO 326.4), and Doe appended a copy of it to her petition. Doe alleges that the policy Thomas J. Baker, Justice “also excepts from disclosure information considered *1 The City of Austin, the Austin Police Department ‘restricted’ including ‘criminal history information’ (APD), and APD Chief Brian Manley (collectively, the and ‘any information that is otherwise privileged or City) appeal the trial court's order denying their plea restricted under state or federal law.’ ” to the jurisdiction. Appellee, Jane Doe, individually and on behalf of all others similarly situated, sued Doe complains that the APD posts photos on its appellants for declaratory and injunctive relief related mug-shot website continuously for thirteen days from to their publication of booking photos (a.k.a. “mug original release date “without regard to whether an shots”) on APD's website. For the following reasons, individual has received due process for the crime we will affirm in part the trial court's order as to of which the individual is accused or whether the

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City of Austin v. Doe, Not Reported in S.W. Rptr. (2020) 2020 WL 7703126

crime is a felony, misdemeanor, violent or non-violent offense, or whether the accused is a fugitive from DISCUSSION justice.” Further, she contends that the website's search function permits searches for booking photos based In its plea to the jurisdiction, the City contended that on name, booking number, booking date, and charges; (1) it enjoys governmental immunity from Doe's cause that photos can be “exported” without restriction, of action for common-law invasion of privacy, an including the ability to print and download them onto intentional tort, for which the Texas Tort Claims Act personal computers where they can be manipulated, (TTCA) does not waive immunity; (2) Doe's claims changed, and distributed; and that when the photo is under the UDJA seek merely an interpretation of the downloaded, it contains no date identifying when it PIA, a claim for which the UDJA does not waive was taken or for what type of offense or whether the immunity, and the PIA does not waive its immunity arrestee was charged or exonerated or whether the case under the facts alleged; and (3) Doe's ultra vires claim was dismissed. against Chief Manley is not viable because she is complaining solely about acts within the exercise of his *2 Following her release from jail and before the official discretion.1 We review the trial court's ruling mug shot was published on the APD website, Doe on the plea to the jurisdiction de novo. See Presidio provided the City with written notice that she did not Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 929 (Tex.

consent to the release or publication of her booking 2010); Texas Dep't of Parks & Wildlife v. Miranda, 133 photo, citing the common-law doctrine of privacy and S.W.3d 217, 225–26 (Tex. 2004).

confidentiality under the Texas Public Information Act (PIA). She also requested that the City obtain an opinion from the Texas Attorney General regarding Does the City enjoy governmental immunity from interpretation of the PIA's provisions concerning Doe's claims? APD's planned release of the photo. The City A city, as a political subdivision of the state, is immune responded that it would publish the photo on the from suit and liability unless the state consents. City of website despite Doe's objections. Watauga v. Gordon, 434 S.W.3d 586, 589 (Tex. 2014).

Governmental immunity defeats a court's jurisdiction.

Doe immediately filed an original petition and Dallas Area Rapid Transit v. Whitley, 104 S.W.3d motion for temporary restraining order and temporary 540, 542 (Tex. 2003). Where a government entity injunction (TI) seeking to prohibit the City from challenges jurisdiction on the basis of immunity, the releasing and publishing the photo. Shortly thereafter, plaintiff must affirmatively demonstrate the court's the City and Doe executed a Rule 11 agreement jurisdiction by alleging a valid waiver of immunity. prohibiting the release and publication of Doe's Ryder Integrated Logistics, Inc. v. Fayette County, booking photo on the APD mug-shot website until the 453 S.W.3d 922, 927 (Tex. 2015). To determine if the trial court heard and ruled on the motion for TI. In her plaintiff has met that burden, we consider the facts the live petition, Doe asserts causes of action for violation plaintiff has alleged and, to the extent it is relevant to of her common-law right to privacy and violation of the the jurisdictional issue, the evidence the parties have PIA; seeks declarations under the Uniform Declaratory submitted. Whitley, 104 S.W.3d at 542. Judgments Act (UDJA), including that GO 326.4 is invalid; and contends that Chief Manley's posting of However, as Doe argues in her brief, a city has no the photos on the APD website constitutes an ultra immunity of its own but is only afforded the state's vires act. The City filed a plea to the jurisdiction, which immunity when it is acting as the state's agent and the trial court heard contemporaneously with Doe's performing governmental functions for public benefit. motion for TI. The trial court granted the TI and denied Wasson Ints., Ltd. v. City of Jacksonville, 489 S.W.3d the plea to the jurisdiction. This appeal ensued. See 427, 433 (Tex. 2016) (“[A] city is not a freestanding Tex. Civ. Prac. & Rem. Code § 51.014. sovereign with its own inherent immunity.”); see also Rosenberg Dev. Corp. v. Imperial Performing Arts, Inc., 571 S.W.3d 738, 746 (Tex. 2019) (“Political subdivisions of the state—such as counties, cities,

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City of Austin v. Doe, Not Reported in S.W. Rptr. (2020) 2020 WL 7703126

and school districts—are not sovereign entities, but at 343–44 (holding that plaintiffs' contract with city to under the governmental-immunity doctrine, they share provide curbside leaf and brush collection within city the state's immunity when performing governmental was encompassed by TTCA's inclusion of “garbage functions as the state's agent.”). Political subdivisions and solid waste removal, collection, and disposal” on are immune from suit for acts performed as a branch list of municipalities' governmental functions). Thus, of the state but not for those acts performed in a as our sister court has determined, we “need not proprietary, non-governmental capacity. See Tooke v. consider classification of an activity under common City of Mexia, 197 S.W.3d 325, 343 (Tex. 2006). law if the activity is defined by statute.” Martinez v. While the “proprietary-governmental dichotomy” is City of San Antonio, 220 S.W.3d 10, 14 (Tex. App. not a “clear one,” “generally speaking, a municipality's —San Antonio 2006, no pet.). The TTCA expressly proprietary functions are those conducted ‘in its categorizes “police and fire protection and control” private capacity, for the benefit only of those within as a governmental function. Tex. Civ. Prac. & Rem. its corporate limits, and not as an arm of the Code § 101.0215(a)(1). Therefore, if the action that government,’ while its governmental functions are Doe challenges falls within the category of “police ‘in the performance of purely governmental matters protection and control,” then it is a governmental solely for the public benefit.’ ” Id. (quoting Dilley v. function for which the City enjoys governmental City of Houston, 222 S.W.2d 992, 993 (Tex. 1949)). immunity. See Martinez, 220 S.W.3d at 14. “Acts that are proprietary in nature, therefore, are not done as a branch of the state, but instead for ‘the Doe concedes that police protection and control private advantage and benefit of the locality and its generally—and even the release of “basic information inhabitants.’ ” Wasson, 489 S.W.3d at 433 (quoting related to herself or her arrest”—are “law enforcement City of Galveston v. Posnainsky, 62 Tex. 118, 127 actions authorized and mandated by state law” and (1884)). thus constitute governmental functions. However, she attempts to distinguish the City's posting of the *3 “Because governmental immunity extends ‘as booking photos on the APD website from general far as the state's [immunity] but no further,’ no police protection and control by framing the conduct immunity exists for acts performed in a proprietary, as being in violation of state law (i.e., of her commonnon -governmental capacity.” Rosenberg Dev., 571 law right to privacy and of the PIA). Her argument, S.W.3d at 746–47 (quoting Wasson, 489 S.W.3d at it appears, is that because the posting of booking 433–34). “Like ultra vires acts, acts performed as photos purportedly violates her right to privacy and part of a city's proprietary function do not implicate the PIA, it cannot, as a matter of law, constitute a the state's immunity for the simple reason that governmental function. However, she does not cite any they are not performed under the authority, or for authority to support this argument, and we conclude the benefit, of the sovereign.” Wasson, 489 S.W.3d that determination of this issue turns not on whether the at 434. As a common-law doctrine, the judiciary challenged activity violates law but rather on whether determines whether immunity exists “in the first the activity can reasonably be construed as police instance and delineates its boundaries.” Id. at 435. “If protection and control. immunity is applicable, then the judiciary defers to the legislature to waive such immunity.” Id. We thus Our sister court in Martinez determined that consider whether APD's posting of booking photos a comprehensive program implemented and on its mug-shot website constitutes a proprietary or administered by a city police department to prevent governmental function to determine whether the City and reduce crime constituted a governmental function enjoys governmental immunity in the first instance. even though, as the plaintiff contended, certain aspects of the program were proprietary in nature, such as The Texas Supreme Court has explained that when the providing counseling and job-training services to local legislature has statutorily defined a particular activity residents to prevent and suppress gang activity and as a governmental function in the TTCA, there is crime. See id. at 15–16. Citing to one of its prior “no reason to think that the classification would be opinions, the Martinez court held that a plaintiff different under the common law.” Tooke, 197 S.W.3d “may not split various aspects of a [municipality's]

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City of Austin v. Doe, Not Reported in S.W. Rptr. (2020) 2020 WL 7703126

operation into discrete functions and recharacterize or other person or entity that files the suit shall certain of those functions as proprietary.” Id. at 15 demonstrate to the court that the governmental body, (quoting City of San Antonio v. Butler, 131 S.W.3d officer for public information, or other person or 170, 178 (Tex. App.—San Antonio 2004, pet. denied) entity made a timely good faith effort to inform the (holding that city's contracting with vendor to sell requestor ... of ... the existence of the suit ..., the alcohol at Alamodome was “logically characterized requestor's right to intervene ..., [and] that the suit as part of the operation of the facility and must be is against the attorney general ...”), .324(a) (“The considered a government function” in light of TTCA's only suit a governmental body may file seeking to inclusion of “civic, convention centers, or coliseums” withhold information from a requestor is a suit that: in list of governmental functions)); see also Mitchell (1) is filed in a Travis County district court against the v. City of Dallas, 855 S.W.2d 741, 744 (Tex. App. attorney general in accordance with Section 552.325; —Dallas 1993), aff'd, 870 S.W.2d 21 (Tex. 1994) and (2) seeks declaratory relief from compliance (refusing to consider that some activities related to with a decision by the attorney general issued under operation of city park, such as design and construction Subchapter G.”). Other than section 552.325, Doe of erosion-control walls along creek with allegedly does not identify any other section of the PIA that dangerous drop-offs lacking adequate warnings or purportedly waives the City's immunity from suit, and barriers, might be proprietary where TTCA lists “parks we have found none. Accordingly, we conclude that and zoos” as governmental function). Similarly, we the trial court was without jurisdiction over Doe's PIA conclude that Doe may not characterize part of the claim. City's policy of releasing information to the public as a proprietary function—that pertaining to booking photos—and the rest of its policy—that pertaining Does the UDJA waive the City's immunity? to the release of “basic information” related to one's It is settled law that the UDJA does not grant a arrest—as a governmental function, regardless of its trial court subject-matter jurisdiction but is “merely a alleged illegality. We therefore hold that the City's procedural device for deciding cases already within posting of the booking photos on the APD website a court's jurisdiction.” Texas Ass'n of Bus. v. Texas constitutes a governmental function for which the City Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993); enjoys governmental immunity absent an applicable see McLane Co. v. Texas Alcoholic Beverage Comm'n, legislative waiver of immunity. See Tooke, 197 S.W.3d 514 S.W.3d 871, 875 (Tex. App.—Austin 2017, pet. at 343–44; Martinez, 220 S.W.3d at 15–16. Doe denied). The UDJA provides only a limited waiver of contends that the PIA and the UDJA waive the City's immunity when a plaintiff challenges the validity of a statute or ordinance. Texas Lottery Comm'n v. First immunity under the facts alleged.2 State Bank of DeQueen, 325 S.W.3d 628, 633–35 (Tex. 2010). It does not waive the state's or governmental Does the PIA waive the City's immunity? body's immunity when a plaintiff seeks a declaration *4 Doe contends that the PIA waives the City's of her rights under a statute or other law. Texas Dep't immunity because she is “seeking to withhold of Transp. v. Sefzik, 355 S.W.3d 618, 621 (Tex. 2011). information from a requestor.” See Tex. Gov't Code Because Doe is not challenging the validity of any § 552.325(a) (“A governmental body, officer for statute or ordinance, we conclude that the trial court public information, or other person or entity that did not have subject-matter jurisdiction over her UDJA files a suit seeking to withhold information from claim. See id.; City of Dallas v. Sabine River Auth., No. a requestor may not file suit against the person 03-15-00371-CV, 2017 WL 2536882, at *4 (Tex. App. requesting the information.”). Importantly, however, —Austin June 7, 2017, no pet.) (mem. op.). she does not identify any “requestor,” and the PIA section she cites clearly contemplates suits brought by Has Doe alleged a viable ultra vires claim against governmental bodies (or their agents) for their own Chief Manley?

efforts to withhold information from a specific request While governmental immunity generally bars suit for public information. See id. §§ 552.325(b) (“The against Chief Manley as an agent of the City, it governmental body, officer for public information, does not bar suit against him in his official capacity

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City of Austin v. Doe, Not Reported in S.W. Rptr. (2020) 2020 WL 7703126

for acting outside of his authority, that is, for ultra information. See id. § 552.007(a); Houston Belt & vires conduct. See Houston Belt & Terminal Ry. v. Terminal Ry., 487 S.W.3d at 163 (“when an officer City of Houston, 487 S.W.3d 154, 161 (Tex. 2016). acts beyond his granted discretion—in other words, However, if a plaintiff alleges only facts demonstrating when he acts without legal authority—his acts are acts within the officer's legal authority and discretion, not protected”). Only when a government officer has the claim seeks to control state action and is barred “absolute discretion”—that is, free decision-making by governmental immunity. Creedmoor-Maha Water power without any constraints—is an ultra vires suit Supply Corp. v. Texas Comm'n on Envtl. Quality, 307 barred. Houston Belt & Terminal Ry., 487 S.W.3d at S.W.3d 505, 516 (Tex. App.—Austin 2010, no pet.). 163. And, as a general rule, “a public officer has no To determine if a plaintiff has pleaded a viable ultra discretion or authority to misinterpret the law.” Id. vires action, the court must construe relevant statutory (quoting In re Smith, 333 S.W.3d 582, 585 (Tex. 2011) provisions that define the scope of the governmental (orig. proceeding)). body's legal authority, apply those statutes to the facts as pleaded by the plaintiff, and ascertain whether *5 The City contends, as outlined in its plea to those facts constitute acts beyond the agency's legal the jurisdiction, that Chief Manley has the discretion authority. City of New Braunfels v. Tovar, 463 S.W.3d to determine whether booking photos are public or 913, 919 (Tex. App.—Austin 2015, no pet.). When, confidential because he has the “authority to interpret” as here, the plea to the jurisdiction challenges the the PIA and that Doe is merely complaining that he sufficiency of the pleadings rather than the existence of “misinterpreted” the PIA, for which an ultra vires any of the jurisdictional facts alleged by the plaintiff, claim does not exist. See City of El Paso v. Heinrich, the court should make the jurisdictional determination 284 S.W.3d 366, 372 (Tex. 2009) (“To fall within as a matter of law based solely on the facts alleged this ultra vires exception, a suit must not complain by the plaintiff, which are taken as true and construed of a government officer's exercise of discretion, but liberally in favor of jurisdiction. Prewett v. Canyon rather must allege, and ultimately prove, that the Lake Island Prop. Owners Ass'n, No. 03-18-00665-CV, officer acted without legal authority or failed to 2019 WL 6974993, at *1 (Tex. App.—Austin Dec. 20, perform a purely ministerial act.”). However, the City 2019, no pet.) (mem. op.) (citing Miranda, 133 S.W.3d points to no statute providing Chief Manley any at 225, 227). discretion to determine what constitutes “confidential”

information under the PIA, nor have we have found Doe alleges that Chief Manley is acting ultra vires any, and the case law the City cites as support is by voluntarily making public the booking photos, distinguishable. Cf. Hall v. McRaven, 508 S.W.3d which she contends are confidential, in violation of 232, 234 (Tex. 2017) (holding that ultra vires claim the PIA. See Tex. Gov't Code §§ 552.007(a) (“This did not lie against university chancellor, to whom chapter does not prohibit a governmental body or express authority was given by applicable rules, its officer for public information from voluntarily promulgated pursuant to Education Code, to interpret making part or all of its information available to the whether federal privacy laws required redaction of public, unless the disclosure is expressly prohibited otherwise public information). Unlike in Hall, Chief by law or the information is confidential under Manley has not been expressly authorized by statute law.” (emphases added)), .101 (excepting from PIA's or rules promulgated thereunder to interpret whether disclosure requirements “information considered to be information is “confidential” under the PIA. Therefore, confidential by law, either constitutional, statutory, or if Chief Manley is posting booking photos on the APD by judicial decision”); see also id. § 552.002 (broadly website and threatening to post Doe's booking photos, defining “public information”). Based on the plain and if the photos are confidential under the PIA, his act language of section 552.007, if the booking photos are of posting them is ultra vires, and Doe has alleged a confidential, then Chief Manley's voluntary disclosure viable claim. of them by posting them on the website would constitute an ultra vires act because he has no authority In her petition, Doe alleges that under the PIA to disclose confidential information; the act expressly prohibits the release of confidential [t]he unrestricted access to plaintiff's booking photo would be highly objectionable to [p]laintiff, who is

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City of Austin v. Doe, Not Reported in S.W. Rptr. (2020) 2020 WL 7703126

a reasonable person, because it was taken without matters that would cause extreme embarrassment to her consent, and over her objection to its public injured claimant); see also Adkisson v. Paxton, 459 disclosure, and it contains a highly embarrassing S.W.3d 761, 778 (Tex. App.—Austin 2015, no pet.) depiction of her personal likeness, appearance, (“It was the Commissioner's burden to raise a fact facial expression, and her vulnerability while being issue precluding release of the [subject] documents. booked into jail after being accused of committing a Without any evidence to support the Commissioner's criminal act—of which she claims she is innocent— claim that the requested information is protected after she was taken into police custody and deprived by the common-law privacy doctrine, he has not of her liberties, and when released to the public carried his summary-judgment burden to show that intimates guilt. Plaintiff further asserts that the the information is excepted from disclosure under PIA public has no legitimate public interest in accessing Section 552.101.”); Austin Chron. Corp. v. City of her booking photo. She is not, for example, a Austin, No. 03-08-00596-CV, 2009 WL 483232, at *6– governmental official, habitual offender or fugitive 7 (Tex. App.—Austin Feb. 24, 2009, no pet.) (mem. from justice. Consequently, the unrestricted public op.) (holding that evidence was legally insufficient to access and/or publication on the internet of her support trial court's fact findings that police report was booking photo would be an unwarranted invasion of private and contained highly intimate or embarrassing her personal privacy. facts where evidence was undisputed that report had The PIA defines “confidential information” as already been made public). information “considered to be confidential by law, either constitutional, statutory, or by judicial decision.” *6 As already noted, the City did not challenge the Tex. Gov't Code § 552.101. While neither the existence of jurisdictional facts supporting Doe's ultra constitution nor any statute deems booking photos vires claim but merely argued that the facts alleged in confidential, the Texas Supreme Court has determined her petition and the applicable law demonstrate that that if release of information to the general public Chief Manley's publication of the booking photos on would invade a person's common-law right to privacy, the APD website is not ultra vires because he has then that information “should be deemed confidential the authority to determine whether booking photos by judicial decision” under the PIA. Industrial Found. are confidential under the PIA, which argument we of the S. v. Texas Indus. Accident Bd., 540 S.W.2d 668, have already rejected. Therefore, taking Doe's factual 683 (Tex. 1976). The court in Industrial Foundation allegations as true, as we must do, we conclude that outlined two requirements for whether particular she has alleged a viable ultra vires claim against information is “private” and thus confidential under the Chief Manley, see Miranda, 133 S.W.3d at 227, PIA: (1) it contains “highly intimate or embarrassing and whether the booking photos are confidential is facts about a person's private affairs, such that its a merits determination on which we defer to the publication would be highly objectionable to a person trial court to make in the first instance. We also of ordinary sensibilities,” and (2) it is not “of note that, while Doe presented some evidence to legitimate concern to the public.” Id. at 683–85. “If support her request for a TI,3 without a challenge the information meets the first test, it will be presumed by the City of the jurisdictional facts supporting that the information is not of legitimate public concern her claim, Doe neither had the opportunity to fully unless the requestor can show that, under the particular develop the record on the fact question of whether her circumstances of the case, the public has a legitimate booking photos are confidential under the Industrial interest in the information notwithstanding its private Foundation test, nor was she required to. See Miranda, nature.” Id. at 685. 133 S.W.3d at 227; cf. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (noting TI's purpose Whether information at issue meets the first test is to preserve status quo of litigation's subject matter is generally a fact issue to be determined by the pending trial on merits and that to obtain TI, applicant factfinder. See id. at 683, 685–86 (deciding that must plead and prove “(1) a cause of action against affidavit raised fact issue concerning privacy doctrine defendant; (2) a probable right to the relief sought; when it alleged that claims filed with industrial- and (3) a probable, imminent, and irreparable injury accident board contained information about private in the interim”). We conclude, therefore, that Doe

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City of Austin v. Doe, Not Reported in S.W. Rptr. (2020) 2020 WL 7703126

pleaded facts sufficient to affirmatively demonstrate on the issue. See No. 03-13-00838-CV, 2016 WL that the trial court has jurisdiction over her ultra vires 1566400, at *3 (Tex. App.—Austin Apr. 14, 2016, no claim alleging that Chief Manley acted without legal pet.) (mem. op.). In contrast, Doe cites several recent authority in voluntarily posting the booking photos at federal cases analyzing the issue and determining that issue on the APD website. arrestees generally have rights to privacy with respect to their booking photos. See, e.g., Detroit Free Press, Moreover, we note that—despite the City's contention Inc. v. United States Dep't of Just., 829 F.3d 478, that “booking photos have never been held by 482 (6th Cir. 2016), cert. denied, 137 S. Ct. 2158 the attorney general or a court in Texas to be (2017) (overruling its prior twenty-year-old precedent ‘confidential under law’ ”—the absence of a prior on- and upholding Department of Justice's Freedom of point judicial determination about the confidentiality Information Act policy categorizing booking photos of the booking photos at issue does not foreclose as confidential on basis that individuals have “a nonthe possibility of such a determination in this case. trivial privacy interest in booking photos” in part See Industrial Found., 540 S.W.2d at 683 (“[I]f because such photos “fit squarely within th[e] realm a governmental unit's action in making its records of embarrassing and humiliating information” and available to the general public would be an invasion “convey guilt to the viewer”); World Publ'g Co. v. of an individual's freedom from the publicizing of his United States Dep't of Just., 672 F.3d 825, 827– private affairs, then the information in those records 28 (10th Cir. 2012) (holding that detainees possess should be deemed confidential by judicial decision.”); privacy interest in booking photos in part because see also Tex. Gov't Code § 552.101 (information “mugshots in general are notorious for their visual is “confidential” if it has been so deemed by association of the person with criminal activity,” judicial decision). The City cites two attorney general “disclose unflattering facial expressions,” and carry opinions to support its argument. See Tex. Att'y Gen. with them “a stigmatizing effect [that] can last well OR2016-22153 (cursorily determining that particular beyond the actual criminal proceedings” (citations requested booking photos did not meet Industrial omitted)); Karantsalis v. United States Dep't of Foundation test for confidentiality); Tex. Att'y Gen. Just., 635 F.3d 497, 503 (11th Cir. 2011) (adopting ORD-616 (1993) (determining that mug shot “taken in district court's order holding that defendant has “a connection with an individual's arrest for an offense for continuing personal privacy interest in preventing which he was subsequently convicted and is currently public dissemination of his booking photographs” serving time” is not intimate or embarrassing). in part because “a booking photograph does more However, those opinions are not binding on this Court. than suggest guilt; it raises a unique privacy interest Austin Chron., 2009 WL 483232, at *6. Furthermore, because it captures an embarrassing moment that is not ORD-616 is distinguishable because the individual normally exposed to the public eye”). whose photo was at issue had already been convicted of the offense, and OR2016-22153 does not specify any *7 We conclude that Doe has alleged a viable ultra details about the particular mug shots at issue, offenses vires claim against Chief Manley and is entitled to a for which the individuals were arrested, or whether determination on the merits by the trial court in the they were convicted. first instance about whether the information at issue is “confidential.” Accordingly, we hold that the trial court We also conclude that the case from this Court properly denied the City's plea to the jurisdiction as to that the City cites, City of Carrollton v. Paxton, Doe's ultra vires claim. is distinguishable both because it turned primarily on the fact that the individual at issue had been convicted of the crimes whose allegations were the CONCLUSION basis for the arrest and because the party asserting that the mug shot at issue was confidential (there, the We affirm in part the trial court's order as to Doe's City of Carrollton) had merely asserted that a mug ultra vires claim against Chief Manley but reverse the shot “categorically satisfies the common-law privacy order as to Doe's remaining claims against the City standard” without, apparently, presenting any evidence of Austin and APD and render judgment dismissing

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City of Austin v. Doe, Not Reported in S.W. Rptr. (2020) 2020 WL 7703126

her claims against those parties because the trial court All Citations lacks jurisdiction over them.

Not Reported in S.W. Rptr., 2020 WL 7703126

Footnotes 1 In its plea, the City also challenged the constitutional claims that Doe made in her earlier petitions, but she removed those claims in her second amended (live) petition, so the City does not raise its issues as to those claims on appeal.

2 Doe does not contend that the TTCA waives the City's immunity, as it is settled law that the TTCA does not waive immunity for intentional torts, which the invasion of privacy is. See Tex. Civ. Prac. & Rem. Code § 101.057 (providing that TTCA's waiver of immunity does not apply to claim “arising out of assault, battery, false imprisonment, or any other intentional tort”); Billings v. Atkinson, 489 S.W.2d 858, 860–61 (Tex. 1973) (“[T]he invasion of privacy is a willful tort which constitutes a legal injury.”).

3 Besides her own testimony, Doe called as witnesses a local criminal lawyer and the APD records manager.

While the trial court admitted some exhibits, including booking photos of other individuals that APD had posted on its website, neither Doe nor the City sought to admit the booking photos of Doe herself.

End of Document © 2021 Thomson Reuters. No claim to original U.S.

Government Works.

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EXHIBIT D

Franklin Center for Government v. University of Texas System, Not Reported in S.W....

Franklin Center related to an independent investigation into the UT System's admissions policies was excepted 2020 WL 7640146 from disclosure under the Texas Public Information Only the Westlaw citation is currently available.

Act (TPIA). See Tex. Gov't Code §§ 552.001-.353.

SEE TX R RAP RULE 47.2 FOR We reverse the district court's summary judgment and DESIGNATION AND SIGNING OF OPINIONS. render judgment that some of the requested documents are not excepted from disclosure under the TPIA.

Court of Appeals of Texas, Austin.

The FRANKLIN CENTER FOR BACKGROUND GOVERNMENT and Public Integrity and Jon Cassidy, Appellants In August 2013, a member of the UT System Board of Regents and members of the media raised questions v. about the possible existence of undue influence in The UNIVERSITY OF the admissions process at The University of Texas at TEXAS SYSTEM, Appellee Austin (UT Austin). The UT System Chancellor and the Executive Vice Chancellor for Academic Affairs NO. 03-19-00362-CV tasked the Vice Chancellor and General Counsel, | Daniel Sharphorn, and the Associate Vice Chancellor Filed: December 22, 2020 for Student Affairs, Wanda Mercer, with investigating whether there did exist undue influence or outside FROM THE 53RD DISTRICT COURT OF pressure in the UT Austin admissions process. The TRAVIS COUNTY, NO. D-1-GN-15-003417, investigation initially focused on the University of THE HONORABLE TIM SULAK, JUDGE Texas School of Law (UT Law School), but later PRESIDING expanded to include undergraduate admissions.

Attorneys and Law Firms Sharphorn and Mercer interviewed the UT Austin President, his Chief of Staff, the current and former Jennifer S. Jackson, Assistant Attorney General, Deans of UT Law School, the Assistant Dean Financial Litigation, Tax, and Charitable Trusts for Admissions and Financial Aid of UT Law Division, P. O. Box 12548, Austin, TX 78711-2548, School, and other individuals affiliated with UT Matthew R. Entsminger, Open Records Litigation, Law School. They also reviewed undergraduate and Administrative Law Division, P. O. Box 12548, law school admissions data, seventy-seven letters Capitol Station, Austin, TX 78711, for Appellee.

of recommendation sent by members of the state Joseph R. Larsen, Gregor Wynne Arney, PLLC, legislature to then-President Bill Powers, and Powers's Bank of America Center, 700 Lousiana, Suite 3950, responses to those letters. In May 2014, at the Houston, TX 77002, for Appellants. conclusion of the investigation, Sharphorn and Mercer finalized the “University of Texas System—U.T.

Before Justices Goodwin, Kelly, and Smith Austin Admissions Inquiry Report” (the Inquiry Report). The Inquiry Report, which was released to the public, noted that the investigation focused on letters of MEMORANDUM OPINION recommendation “that are sent directly to the president or a dean and are outside the prescribed application and Chari L. Kelly, Justice recommendation process.” The investigation found no evidence of a “quid pro quo[,] an exchange *1 The Franklin Center for Government and Public of admissions decisions for favors”; no evidence Integrity and Jon Cassidy (collectively, the Franklin “of a systematic, structured, or centralized process Center) appeal the district court's summary judgment of reviewing and admitting applicants recommended in favor of The University of Texas System (the UT by influential individuals”; and no evidence of System) ordering that information requested by the

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Franklin Center for Government v. University of Texas System, Not Reported in S.W....

overt pressure on Admissions Office staff to admit In August 2014, the UT System and Kroll Associates, applicants based on the recommendations of persons of Inc. (Kroll) entered into an “Agreement Between influence. The Inquiry Report did, however, conclude University and Contractor” (the Agreement) whereby that admission decisions were likely impacted in some Kroll, identified in the Agreement as the “Contractor,” cases by the letters of recommendation and that the would act as the independent firm to review the admission rates for applicants to whom the letters admissions process. The Agreement defined the Scope applied were significantly higher than for the rest of of Work as follows: the applicant populations. The Inquiry Report further concluded that the disparities in admission rates could The focus will be on an evaluation of the conduct not reasonably be explained by factors of individual of U.T. Austin, U.T. System, and U.T. System merit, such as grades, test scores, or other holistic Board of Regents, (collectively “U.T.”) officials and considerations. The Inquiry Report determined that employees in performing admissions services, not further investigation was unwarranted because “little on any external recommenders. U.T.'s responsibility would be gained by refining the data and attempting to ensure integrity in the handling of admissions to identify explanatory variables that would produce a recommendations lies with the staff and officials more precise estimate of the impact of legislator letters within U.T., thus the charge is to determine if of recommendation.” Instead, the Inquiry Report the conduct of U.T. officials is beyond reproach. recommended that “the Chancellor and Executive Vice Specifically, the investigation should determine if Chancellor for Academic Affairs work with institution U.T. Austin's admissions decisions are made for any presidents to ensure that all U.T. System institutions reason other than an applicant's individual merit as have incorporated the best practices in admissions measured by academic achievement and officially processes that have been developed within the U.T. established personal holistic attributes, and if not, System and across the country.” The Inquiry Report why not. concluded that if the Board of Regents believed This charge is based on the premise that applicants that there were questions that should and could be should only be admitted to a public university based answered by a full investigation, then the Board of on their individual merit, i.e., academic achievement Regents should, after full and careful deliberation, and officially established personal holistic factors.

make the decision about whether to conduct such an They should not gain advantage only because they investigation.

are recommended outside the prescribed admissions process by an influential individual, whether that *2 In June 2014, after the Inquiry Report was individual is a regent, U.T. System or U.T. Austin issued, a former Admissions official reported to officer or staff member, member of the executive, the UT System Chancellor and its Vice Chancellor legislative or judicial branch, or major donor, who and General Counsel that the UT Austin Office of adds no new substantive information about the the President had at times exerted pressure on the applicant's personal merit. Any competing evidence UT Austin Office of Admissions to admit some or premise as to the basis for admissions should be applicants of lesser qualifications in response to identified so it can be openly debated.

external influences. That same month, the UT Austin The Agreement included a section defining the President informed the UT System Chancellor that he “Relationship of the Parties,” which provided:

had faced pressure over the admissions process from donors, alumni, and legislators and that, in certain For all purposes of this Agreement and cases, he had responded to that pressure by increasing notwithstanding any provision of this Agreement to the class size by the added number of people he chose the contrary, Contractor is an independent contractor to admit so that positions were not taken away from and is not a state employee, partner, joint venturer, applicants already admitted. This new information or agent of University. Contractor will not bind caused the Chancellor to believe that an independent or attempt to bind University to any agreement or firm should be retained to more thoroughly and contract. As an independent contractor, Contractor comprehensively review the admissions process. is solely responsible for all taxes, withholdings, and

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Franklin Center for Government v. University of Texas System, Not Reported in S.W....

other statutory or contractual obligations of any sort, made of, by, or for governmental body not excepted including workers' compensation insurance. from disclosure unless made confidential under other The Agreement also required Kroll to submit a final law). However, because the Texas Supreme Court report to the “U.T. Austin General Counsel” that has held that the Texas Rules of Evidence are “describes the investigation methods employed and “other law” for the purposes of section 552.022, reports the investigators' factual findings.” the Attorney General addressed the UT System's assertion that the documents sought were protected Kroll conducted its investigation, during the course by the attorney-client privilege under Texas Rule of of which it reviewed data and documents provided Evidence 503. See Tex. R. Evid. 503 (lawyer-client to it by the UT System and conducted interviews privilege); In re City of Georgetown, 53 S.W.3d 328, of various individuals involved in the admissions 336 (Tex. 2001) (orig. proceeding) (Texas Rules of process. The UT System explained in its brief that Evidence are “other law” within meaning of section Kroll was provided “approximately 626,000 pages” of 552.022). The Attorney General also considered the documents and that “the large volume was due to the UT System's claims that the information requested way some of the documents were stored.” Specifically, was protected by common law and constitutional the UT System stated that several university employees privacy, and other TPIA provisions. See Tex. Gov't and departments were on litigation hold status due Code §§ 552.101 (information considered to be to unrelated litigation and that the litigation hold confidential by law, either constitutional, statutory, or was implemented “in a way that made it difficult by judicial decision); .103 (litigation exception); .111 to extract the correspondence Kroll requested, so the (deliberative process privilege). The Attorney General entire litigation hold file was provided instead.” In concluded that, with certain exceptions, the documents its report, Kroll stated that it reviewed approximately were excepted from disclosure to the Franklin Center. 9,500 emails provided to it. After completing the investigation, Kroll submitted its Final Report in The UT System then sued the Attorney General in February 2015. The 101-page report detailed Kroll's Travis County district court challenging the portions findings, provided its recommendations, and suggested of the Attorney General's letter ruling that ordered best practices. Specifically, Kroll's report states that certain documents to be disclosed. See id. § 552.324 while it “has not attempted to second-guess the merits (governmental body may seek declaratory relief from of individual admissions decisions,” it “found a lack compliance with decision by attorney general). The of guidance for decision makers” and, in the report, Franklin Center intervened in the suit seeking a “attempt[ed] to offer some suggested guidelines for declaratory judgment that all the documents were future consideration and possible implementation.” public information not excepted from disclosure and a Kroll submitted its report to the UT System's General writ of mandamus to compel the UT System to release Counsel and the report was published on the UT the information. See id. §§ 552.321, .3215. While System's website. the litigation was pending, the UT System created a privilege log of documents that it had submitted *3 After Kroll's report was published, the Franklin to the Attorney General as a representative sample Center made a request under the TPIA for “all emails, of the documents subject to the Franklin Center's interview transcripts and other documents provided to TPIA request and asserted that all documents on the or obtained by Kroll investigators as part of their audit privilege log were protected by the attorney-client of admissions.” The UT System requested an opinion privilege.1 The Franklin Center then filed an amended from the Open Records Division of the Attorney petition that narrowed the scope of documents it General's office regarding whether the documents sought under the TPIA. Specifically, the Franklin sought were required to be disclosed to the Franklin Center's amended petition states that it “seeks only that Center. In an informal letter opinion designated information provided to the OAG as a representative OR2015-14088, the Attorney General ruled that the sample identified by UT in its privilege log.” Because information was part of a completed investigation the scope of the documents sought was thereby subject to TPIA section 552.022(a)(1). See Tex. narrowed, the majority of the documents containing Gov't Code § 552.022(a)(1) (completed investigation the exceptions for disclosure that were the subject of

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Franklin Center for Government v. University of Texas System, Not Reported in S.W....

the UT System's original petition against the Attorney record,” as term is defined by Family Educational General were no longer the subject of the Franklin Rights and Privacy Act of 1974, 20 U.S.C. § Center's TPIA request and, consequently, the UT 1232g(a)(4), at educational institution funded by state System's challenges to the Attorney General's ruling on revenue); .117 (information that relates to home that information were no longer at issue. address, home telephone number, emergency contact information, or social security number of current or The documents identified on the privilege log that former official of governmental body excepted from are the subject of this appeal were all either provided disclosure); .137 (e-mail address of member of public to Kroll by the UT System or created by Kroll in provided for purpose of communication electronically connection with its investigation.2 The UT System with governmental body is confidential and not subject groups the documents identified in the privilege to disclosure). Finally, the UT System argued that log in three categories. First, documents labeled one email described in the privilege log contained UTS-00001 through UTS-00146 consist of internal information that was confidential under Texas Health communications between UT System lawyers and and Safety Code section 81.046. See Tex. Health & UT System clients, UT Austin lawyers and UT Safety Code § 81.046 (information related to cases of Austin clients, and UT System and UT Austin disease or health conditions is not public information clients and lawyers regarding matters unrelated to under Government Code chapter 522). the Kroll investigation. Second, documents labeled UTS-00147 through UTS-00722 and UTS-00727 After a hearing, the trial court rendered judgment through UTS-00734 include interview questions and granting the UT System's motion for summary notes and summaries created by Kroll during Kroll's judgment and denying the Franklin Center's. The interviews of UT System and UT Austin employees Franklin Center perfected an appeal challenging that and officials. Third, documents labeled UTS-0723 judgment. through UTS-0726 include draft correspondence from UT System General Counsel Daniel Sharphorn to UT employees about Kroll's interviews and drafts DISCUSSION of other investigation-related documents as edited by Sharphorn. Attorney-Client Privilege Relevant to the circumstances here, the TPIA provides *4 The UT System and the Franklin Center that a completed investigation made by or for a filed cross-motions for summary judgment regarding governmental body is public information and not whether the information identified in the privilege excepted from disclosure unless it is expressly log was excepted from disclosure because it was, confidential under other law. Tex. Gov't Code § in its entirety, protected from disclosure by Texas 552.022. The Texas Rules of Evidence are “other law” Rule of Evidence 503 as “confidential communications for the purposes of TPIA section 552.022. See In re made for the purpose of facilitating the rendition of City of Georgetown, 53 S.W.3d at 329. Texas Rule of legal services to the client ... between the client or a Evidence 503(b)(1) protects: representative of the client and the client's lawyer or a representative of the lawyer” or “between the client's confidential communications made to facilitate lawyer and the lawyer's representative.” Tex. R. Evid. the rendition of professional legal services to 503(b)(1). The parties also joined issue on whether, the client: (A) between the client or the client's aside from the attorney-client privilege, certain of the representative and the client's lawyer or the lawyer's requested information constitutes confidential student representative; (B) between the client's lawyer and and applicant information excepted from disclosure the lawyer's representative; (C) by the client, the as well as personal contact information also excepted client's representative, the client's lawyer, or the from disclosure. See Tex. Gov't Code §§ 552.101 lawyer's representative to a lawyer representing (information considered to be confidential by law another party in a pending action or that lawyer's or judicial decision excepted from disclosure); .114 representative, if the communications concern a (excepting from disclosure information in “student matter of common interest in the pending action; (D)

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Franklin Center for Government v. University of Texas System, Not Reported in S.W....

between the client's representatives or between the its summary judgment motion, the UT System argued client and the client's representative; or (E) among that each document identified on the log constituted lawyers and their representatives representing the a “communication, created to facilitate the rendition same client. of professional legal services.” Documents labeled Tex. R. Evid. 503(b)(1). An attorney's investigation UTS-00001 through UTS-00146 are emails containing may constitute legal services such that it falls within internal communications between UT System lawyers the attorney-client privilege. See Harlandale Indep. and UT System clients, UT Austin lawyers and Sch. Dist. v. Cornyn, 25 S.W.3d 328, 334 (Tex. App. UT Austin clients, and between UT System and —Austin 2000 pet. denied). The relevant inquiry UT Austin clients and lawyers regarding matters is whether the attorney was retained to conduct an unrelated to the Kroll investigation. These internal investigation related to the rendition of legal services. communications, which the UT System maintains Id. Further, the attorney-client privilege protects not were privileged attorney-client communications, were only the communications between the lawyer and provided to Kroll by the UT System. The Franklin the client, but also communications between their Center argued that this voluntary disclosure of the representatives. Id.; In re XL Specialty Ins., 373 S.W.3d attorney-client communications to Kroll waived any 46, 49-50 (Tex. 2012) (orig. proceeding). A “lawyer's attorney-client privilege that would otherwise protect representative” is “one employed by the lawyer to those communications from disclosure. See Tex. R. assist in the rendition of professional legal services.” Evid. 511(a) (waiver by voluntary disclosure); Paxton Tex. R. Evid. 503(a)(4)(A); In re XL Specialty Ins., v. City of Dallas, 509 S.W.3d 247, 262-64 (Tex. 373 S.W.3d at 56 & n.17 (explaining that rule 503(a) 2017) (discussing waiver of attorney-client privilege (4) defines “lawyer's representative” as employee of in context of TPIA). “It is an exception to the general lawyer or accountant); IMC Fertilizer, Inc. v. O'Neill, rule that the [attorney-client] privilege is waived if 846 S.W.2d 590, 592 (Tex. App.—Houston [14th the lawyer or client voluntarily disclose privileged Dist.] 1993, no writ) (discussing rule 503(b) and communications to a third party.” XL Specialty Ins., concluding that investigator was representative of 373 S.W.3d at 50. The UT System countered that attorney covered by attorney-client privilege). its voluntary disclosure of the communications to Kroll did not waive the attorney-client privilege Whether information is subject to the TPIA and because Kroll was not a “third party” but a “lawyer's whether an exception to disclosure applies to the representative” within the meaning of Rule 503(a)(4). information at issue are questions of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 357 The UT System describes documents labeled (Tex. 2000); Arlington Indep. Sch. Dist. v. Texas Att'y UTS-00147 through UTS-00722 and UTS-00727 Gen., 37 S.W.3d 152, 163 (Tex. App.—Austin 2001, through UTS-00734 as interview questions and notes no pet.). It is the governmental body's burden to prove created by Kroll during Kroll's interviews of UT that an exception to public disclosure applies to the System and UT Austin employees and officials. information at issue, City of Fort Worth v. Cornyn, 86 The UT System argues that these documents are S.W.3d 320, 323 (Tex. App.—Austin 2002, no pet.), privileged attorney-client communications because and exceptions to disclosure are narrowly construed, they constitute communications made between the UT Texas State Board of Chiropractic Examiners v. Abbott, System's employees and officials and Kroll, acting 391 S.W.3d 343, 347 (Tex. App.—Austin 2013, no as a “lawyer's representative.” Similarly, the UT pet.). Thus, the UT System had the burden to establish System argues that documents labeled UTS-00723 that the documents at issue were privileged under Rule through UTS-00726, which it characterizes as 503. See Huie v. DeShazo, 922 S.W.2d 920, 926 (Tex. “draft communications from UT System General 1996). Counsel Dan Sharphorn to interviewees that show Mr. Sharphorn's redline edits,” are, despite having *5 The Franklin Center first argues that the UT been shared with Kroll, protected by the attorney- System failed to carry its burden of demonstrating that client privilege because that privilege covers “draft the documents listed on the privilege log are, in their documents and communications shared among persons entirety, protected by the attorney-client privilege.3 In

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within the privilege to facilitate the rendition of legal be subject to disciplinary action because Kroll reported services.” that there was no violation of law, rule, or policy, and I, therefore, determined that his conduct did not The linchpin of the UT System's claim of the attorney- rise to the level of willful misconduct or criminal client privilege with respect to each document listed activity.” The UT System also relies on the affidavit of on the privilege log is its assertion that Kroll acted Ana Vieira Ayala, the UT System's Assistant General as a “lawyer's representative”—i.e., one “employed by Counsel, Legal Expert, and Information Coordinator. the lawyer to assist in the rendition of professional Ayala averred that the documents the UT System legal services,” see Tex. R. Evid. 503(a)(4)(A)—in seeks to withhold all constitute “communications ... connection with its investigation of the admissions made for the purpose of facilitating the rendition of practices. In the trial court, the UT System relied legal services.”8 The UT System argues that, taken on the following facts to demonstrate that Kroll was together, this evidence demonstrates that its attorney, a “lawyer's representative.” First, the UT System Sharphorn, “hired Kroll to conduct an investigation to presented two affidavits of Daniel Sharphorn, Vice enable Sharphorn to better advise his clients” and that, Chancellor and General Counsel for the UT System. consequently, Kroll is a “lawyer's representative” as Sharphorn averred that in August 2014, while he was that term is defined in the Texas Rules of Evidence. the University's General Counsel and acting “under See Tex. R. Evid. 503(a)(4)(A) (defining “lawyer's the authority of and at the direction of” the UT representative” as “one employed by the lawyer to System's Chancellor, he hired Kroll4 to conduct an assist in the rendition of professional legal services”). “independent investigation” into concerns raised about the admissions practices at UT Austin. While the Kroll *6 The UT System did not present evidence sufficient investigation was focused on individuals internal to the to meet its burden to show that Kroll was employed UT System, Sharphorn instructed Kroll to notify him if by a lawyer, Sharphorn, to “assist in the rendition of “anything came to light that raised any serious concern, professional legal services” by that lawyer to his client, ‘such as evidence of a quid pro quo or a threat from a the UT System. See City of Fort Worth, 86 S.W.3d at recommender.’ ”5 Sharphorn reviewed “the documents 323 (explaining that it is governmental body's burden gathered by Kroll in relation to its investigation” to prove that exception to public disclosure applies to “evaluate the potential application of federal and to information at issue); City of Houston v. Paxton, No. 03-15-00093-CV; 2016 WL 767755, at *3 (Tex.

state privacy laws.”6 Although the UT System argues App.—Austin Feb. 23, 2016, no pet.) (mem. op.) (“To in its brief that Sharphorn “relied on the Kroll make a prima facie showing of the applicability of a investigation to determine whether anyone affiliated privilege, a party must produce evidence to support with UT System or UT Austin engaged in conduct it.”); see also Dallas Morning News, 22 S.W.3d at 357 that violated the law or required disciplinary action,”

(stating that whether exception to disclosure applies Sharphorn's affidavit contains no such statements.7 to information at issue is question of law). Thus, The UT System also relies on the following facts stated the UT System failed to produce evidence to support in the affidavit of Chancellor William H. McRaven. its contention that Kroll was acting as a “lawyer's McRaven acted as the chief executive officer of the UT representative” such that communications made to it System and was responsible for the operation of the UT and information shared with it are protected by Texas System and its member institutions. McRaven averred Rule of Evidence 503. that his predecessor, Francisco Cigarroa, authorized Sharphorn to hire Kroll to conduct an “independent The record does not support the UT System's investigation into admissions practices” at UT Austin. assertion that Kroll was hired to assist in the After receiving the Kroll report, McRaven “read [it] rendition of any legal services. Rather, undisputed several times” and spoke with Sharphorn, “from whom evidence demonstrates that Kroll was hired to [he] sought legal advice.” McRaven averred that: conduct an independent investigation and provide “After careful review and consideration [ ] I sent a recommendations for policy and procedural changes in letter to the Board of Regents rendering my decision the context of the UT System's self-imposed mission that then-UT Austin President Bill Powers would not of ensuring that the admissions process is administered

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with integrity and fairness. That this was the purpose functioning as attorney throughout employment). The of the Kroll investigation is reflected both in the Scope only legal advice that the record reflects was rendered of Work itself, which recites that “U.T.'s responsibility by Sharphorn to the UT System in connection with to ensure integrity in the handling of admissions the Kroll investigation was (1) whether information recommendations lies with the staff and officials provided to Kroll was protected by the Family within U.T., thus the charge is to determine if the Educational Rights and Privacy Act in the context of conduct of U.T. officials is beyond reproach,” as well Vice Chancellor Wallace Hall's request to review the as in the content of the Final Report, which includes documents provided by the UT System to Kroll, and recommendations and suggested best practices for (2) whether the conduct discovered by Kroll during the improving the UT System's admissions practices. The course of its investigation would serve as the basis for Final Report includes no legal advice, and the record disciplinary action against then-UT Austin President does not support the UT System's assertion that Bill Powers. Cf. In re Fairway Methanol LLC, 515 the investigation was conducted for the purpose of S.W.3d 480, 485-86 (Tex. App.—Houston [14th Dist.] rendering legal services to the UT System. Sharphorn 2017, orig. proceeding) (report of investigative team stated in his affidavit that “[b]ased on the results and charged with providing company with business and the recommendations of the admissions investigations legal advice with respect to potential termination of and reports, the UT System administration proposed employees was privileged because the investigation new admissions policy for the Academic Institutions of was also for purpose of assessing potential liability the University of Texas System.” It is undisputed that in litigation and defenses to anticipated regulatory the Kroll investigation was undertaken to determine proceedings). Because the UT System failed to provide facts, practices, and policies relating to admissions. proof that would support that Kroll was employed There was no evidence that the UT System was to assist a UT System attorney in the rendition of concerned about exposure to legal liability resulting legal services, we conclude that the communications from the admissions practices it retained Kroll to in question between Kroll and the UT System are investigate. The fact that Sharphorn or others within not protected by the attorney-client privilege. Tex. R. the UT System reviewed the Final Report to make Evid. 503(a)(4)(A), (b)(1); cf. In re Houseman, 66 separate decisions about whether to take disciplinary S.W.3d 368, 371 (Tex. App.—Beaumont 2001, orig. action against any officers or employees does not proceeding) (psychiatrist retained to assess person's convert Kroll's investigation into one done for the mental competency in guardianship proceeding was purpose of facilitating the rendition of legal services. employed to assist in rendition of professional legal services); Wright v. State, 374 S.W.3d 564, 579 The Kroll report was intended to be, and was, (Tex. App.—Houston [14th Dist.] 2012, pet ref'd) made public and there was no evidence presented (doctor retained by defendant's trial counsel to evaluate to support the notion that either the report or the defendant's mental state to assist in defense against investigation were done in the context of advising murder charge was “lawyer's representative”). the UT System whether any of the facts, practices, or procedures that were discovered would expose the *7 Because the UT System failed to present evidence UT System to potential legal liability. There is no that supported it's contention that Kroll acted as a evidence that any lawyer's expertise helped define “lawyer's representative,” the UT System waived any the scope of Kroll's inquiry or which avenues were attorney-client privilege as to the documents labeled appropriate to pursue. Instead, the Kroll report states UTS-00001 through UTS-00146 and UTS-00723 that “[a]though there was some pushback on the scope through UTS-00726 when it voluntarily disclosed and extent of requested documentation, all discussions those documents to Kroll. See Tex. R. Evid. 511(a); regarding the nature of our requests and documentation In re XL Specialty Ins., 373 S.W.3d at 50. For the were cordial and professional.” The investigation same reason, the attorney-client privilege does not was repeatedly referred to by the UT System as cover the interview questions and notes Kroll created an “independent” one. Cf. Harlandale Indep. Sch. when conducting its investigation. See City of Houston, Dist., 25 S.W.3d at 334 (excepting from disclosure 2016 WL 767755, at *1, 4 (holding that City did not independent investigation by attorney who was meet burden and that trial court did not err in granting

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summary judgment and ordering certain information court for in camera inspection were copies of the related to investigation was subject to disclosure under redacted documents that had been provided to the TPIA); cf. O'Neill, 846 S.W.2d at 592 (concluding that Attorney General. Thus, the trial court similarly could investigator was representative of attorney covered by not have reviewed the student-or applicant-related attorney-client privilege). information and, consequently, could not have made a determination about whether the redacted information constituted information covered by FERPA or other FERPA/Confidential Information privacy rights. It follows, therefore, that the trial The Franklin Center also argues that the trial court court's order that the UT System could withhold the erred if it relied on either FERPA or another documents described on the privilege log could not right to privacy to conclude that any information have been based on the nature or content of any of or documents described in the privilege log were the redacted material included therein. The trial court's excepted from disclosure. See Tex. Gov't Code §§ order cannot be interpreted as a determination one 552.101 (information is excepted from disclosure if way or another about whether any documents on the it is information considered to be confidential by privilege log could be withheld based on FERPA or law, either constitutional, statutory, or by judicial any constitutional or other right to privacy that may decision); .114 (confidentiality of student records). protect the redacted information. Because it is apparent When providing the Attorney General with the that the trial court did not base its ruling on the documents listed on the privilege log, the UT System, applicability of FERPA or any other privacy law, there relying on FERPA, redacted all information it asserted is no trial court ruling or decision on that issue for was related to or identified students or applicants. See this Court to review.10 Consequently, we do not reach 20 U.S.C. § 1232g.9 In the letter ruling, the Attorney the issue of whether the UT System must provide the General stated: Franklin Center with the information it has withheld

The United States Department of Education from disclosure under sections 552.101 or 552.114.11 Family Policy Compliance Office (the “DOE”) has informed this office FERPA does not permit state and local educational authorities to disclose to this CONCLUSION office, without parental or an adult student's consent, unredacted, personally identifiable information *8 Having determined that Kroll was not a “lawyer's contained in education records for the purpose representative” as that term is defined in Texas Rule of of our review in the open records ruling process Evidence 503, we conclude that none of the documents under the Act. The DOE has determined FERPA identified on the UT System's privilege log are covered determinations must be made by the educational by the attorney-client privilege set forth in rule 503. authority in possession of the educational records. See Tex. R. Evid. 503. Consequently, the documents This Court has previously held that because identified on the UT System's privilege log are not determinations about disclosure of FERPA-protected “made confidential” by “other law” within the meaning information must be made by the institution from of Texas Government Code section 552.022. See Tex. whom it is requested, “neither this Court, nor the trial Gov't Code § 552.022. We reverse the trial court's court, nor the Office of the Attorney General of Texas summary judgment in favor of the UT System that is the proper entity” to interpret FERPA's application the documents identified on the privilege log are to an educational institution's records. See B.W.B. v. protected by the attorney-client privilege and not Eanes Indep. Sch. Dist., No. 03-16-00710-CV, 2018 subject to disclosure under the PIA. We do not reach WL 454783, at *8 (Tex. App.—Austin Jan. 10, 2018, the issue of whether the information redacted from the no pet.) (mem. op.). Not having been provided the documents identified on the privilege log is excepted withheld student-or applicant-related information, the from disclosure under Texas Government Code section Attorney General did not review it and did not make 552.101 or 552.114. We render judgment that the any ruling or decision regarding whether it constituted documents identified on the UT System's privilege information covered by FERPA or by any other log, as redacted and exclusive of information withheld privacy rights. The documents presented to the trial pursuant to Texas Government Code sections 552.117

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and 552.137 and Texas Health and Safety Code section All Citations 81.046, are not excepted from disclosure under the PIA and must be disclosed as public information. Not Reported in S.W. Rptr., 2020 WL 7640146

Footnotes 1 Section 552.301(e)(1)(D) of the Texas Government Code permits a governmental body seeking an Attorney General decision about whether requested information is excepted from disclosure under the TPIA to submit representative samples of the information if a voluminous amount of information was requested. Tex. Gov't Code § 552.301(e)(1)(D). The UT System had submitted a representative sample to the Attorney General.

2 The documents identified in the privilege log were submitted to the trial court for in camera inspection.

See id. § 552.3221 (information at issue may be filed with court for in camera inspection, and on receipt of information court shall enter order that prevents release to or access by any person other than court, reviewing court of appeals, or parties permitted to inspect information pursuant to protective order).

3 The parties do not dispute the facts relevant to the determination of whether the information fell within the attorney client-privilege. See City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000) (“Because the parties do not dispute the relevant facts, this is a proper case for summary judgment”); A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 674 (Tex. 1995) (“A & T's request does not raise factual issues about the nature of the information sought.”); University of Tex. Sys. v. Paxton, No. 03-14-00801- CV, 2017 WL 1315374 (Tex. App.—Austin Apr. 7, 2017, no pet.) (mem. op.); City of Houston v. Paxton, No. 03-15-00093-CV, 2016 WL 767755, at *3 (Tex. App.—Austin Feb. 23, 2016, no pet.) (mem. op.).

4 In one of his two affidavits Sharphorn averred that he hired Kroll to conduct the independent investigation.

In the other affidavit, Sharphorn averred that UT System Chancellor Francisco Cigarroa hired Kroll. The Agreement was signed on the UT System's behalf by Scott C. Kelley, Executive Vice Chancellor for Business Affairs.

5 Sharphorn averred that Kroll did not report anything that raised “serious concern.” 6 Sharphorn averred that after conducting his review, he determined that those documents “contain certain personally identifiable student information that is protected from disclosure by the Family Educational Rights and Privacy Act (“FERPA”).”

7 The paragraph of Sharphorn's affidavit that the UT System cites to support this assertion states that:

William H. McRaven, who began his service as Chancellor of the UT System in January 2015 (“Chancellor McRaven”), received and reviewed the results of the Kroll Report. On February 9, 2015, Chancellor McRaven sent a letter to the UT System Board of Regents (the “Board”) rendering his decision that then- UT President Bill Powers would not be subject to disciplinary action because Kroll determined that his conduct did not rise to the level of willful misconduct or criminal activity.

8 Ayala does not elaborate on the nature of the legal services involved. Many of the documents the UT System seeks to withhold are communications between UT System lawyers and others about matters unrelated to the inquiry into admissions practices, including unrelated litigation. Thus, it is not clear whether the “legal services” referred to in Ayala's affidavit were rendered in connection with the admissions inquiry or with unrelated litigation.

9 Under FERPA, the term “education records” means records, files, documents, and other materials that contain information directly related to a student and are maintained by an educational agency or institution or by a person acting for such agency or institution. See 20 U.S.C. § 1232g(a)(4)(A).

10 FERPA creates no private right of action. See Gonzaga Univ. v. Doe, 536 U.S. 273, 390 (2002) (holding that “FERPA's nondisclosure provisions” do not create implied private right of action and do not create enforceable rights under section 1983); see also B.W.B. v. Eanes Indep. Sch. Dist., No. 03-16-00710- CV, 2018 WL 454783, at *8 (Tex. App.—Austin Jan. 10, 2018, no pet.) (mem. op). Accordingly, if the Franklin Center believes that the UT System has not properly complied with FERPA, it may file a complaint with the Department of Education. See 20 U.S.C. § 1232g(g) (“The Secretary [of the Department of Education] shall establish or designate an office and review board within the Department for the purpose of investigating, processing, reviewing, and adjudicating violations of this section and complaints which may be

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filed concerning alleged violations of this section.”). But, even if before it, neither this Court, nor the trial court, may be asked to “second-guess” the UT System's FERPA determinations. B.W.B., 2018 WL 454783, at *8.

11 The UT System also sought to withhold information contained in the documents identified on the privilege log based on its contention that the information was excepted from disclosure by Texas Government Code sections 552.117 and 552.137 and by Texas Health and Safety Code section 81.046. See Tex. Gov't Code § 552.117 (confidentiality of certain addresses, telephone numbers, social security numbers, and personal family information), .37 (confidentiality of certain email addresses); Tex. Health & Safety Code § 81.046 (confidentiality of reports, records, and information that relate to suspected cases of diseases or health conditions). The Franklin Center did not challenge the UT System's withholding of information it contends is exempted from disclosure under these statutes.

End of Document © 2021 Thomson Reuters. No claim to original U.S.

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