Ken Paxton, Attorney General of Texas v. City of Dallas

Opinion

IN THE SUPREME COURT OF TEXAS

444444444444 NO . 15-0073 444444444444

KEN PAXTON, ATTORNEY GENERAL OF TEXAS, PETITIONER,

v.

CITY OF DALLAS, RESPONDENT

4444444444444444444444444444444444444444444444444444 ON PETITION FOR REVIEW FROM THE COURTS OF APPEALS FOR THE THIRD AND THIRTEENTH DISTRICTS OF TEXAS 4444444444444444444444444444444444444444444444444444

Argued September 14, 2016

JUSTICE GUZMAN delivered the opinion of the Court, in which CHIEF JUSTICE HECHT , JUSTICE GREEN , JUSTICE WILLETT , JUSTICE LEHRMANN , JUSTICE DEVINE , and JUSTICE BROWN joined.

JUSTICE BOYD filed a dissenting opinion, in which JUSTICE JOHNSON joined.

Recognizing that government is founded on the authority of the people and “instituted for

their benefit,”1 the Texas Public Information Act (PIA) favors an open and transparent government

to ensure the people “retain control over the instruments they have created.”2 But the PIA

simultaneously recognizes that public interests are best advanced by shielding some information

1 T EX . C ON ST . art. I, § 2.

2 T EX . G O V ’T C O DE § 552.001(a). from public disclosure.3 The Legislature, in its considered judgment, has excepted from disclosure

more than sixty categories of information, including information protected by the attorney-client

privilege.4 The issue in this case is whether the governmental body must disclose its attorney-client-

privileged communications even though the parties agree the information is categorically excepted

from public disclosure under the Act. The controversy exists because (1) the governmental body

missed a ten-business-day statutory deadline to request a Texas Attorney General decision affirming

a categorical exception to disclosure applies,5 and (2) an untimely request for an attorney general

decision gives rise to a presumption that the information must be disclosed absent a “compelling

reason to withhold the information.”6 The crux of our inquiry concerns the meaning of “compelling

reason.”

The PIA does not define, delineate, or restrict the reasons that may be “compelling” enough

to withhold requested information following an untimely request for a decision. As a

statutory-construction issue of first impression, we must therefore determine whether the interests

protected and advanced by the attorney-client privilege are imperative enough to overcome the

public’s interest in having governmental bodies promptly request a determination from the attorney

general’s office when they seek to protect confidential information from public-information requests.

In other words, we must ascertain whether the PIA mandates public dissemination of otherwise

3 See id. §§ 552.101-.156.

4 Id.

5 See id. § 552.301.

6 See id. § 552.302.

2 confidential attorney-client communications solely because a governmental body missed a statutory

deadline.

We hold that, absent waiver, the interests protected by the attorney-client privilege are

sufficiently compelling to rebut the public-disclosure presumption that arises on expiration of the

PIA’s ten-day deadline. The attorney-client privilege reflects a foundational tenet in the law:

ensuring the free flow of information between attorney and client ultimately serves the broader

societal interest of effective administration of justice.7 The Legislature’s choice to exempt

information protected by the attorney-client privilege embodies the fundamental understanding that,

in the public sector, maintaining candid attorney-client communication directly and significantly

serves the public interest by facilitating access to legal advice vital to formulation and

implementation of governmental policy. Full and frank legal discourse also protects the

government’s interest in litigation, business transactions, and other matters affecting the public.8

Depriving the privilege of its force thus compromises the public’s interest at both discrete and

systemic levels.9

Because failing to meet the PIA’s deadline to assert a statutory exception to disclosure does

not, in and of itself, constitute waiver of the attorney-client privilege, requested information does not

automatically lose its confidential status and is not subject to compelled disclosure under the PIA

7 See Ford Motor Co. v. Leggat, 904 S.W .2d 643, 647 (Tex. 1995).

8 See In re Cty. of Erie, 473 F.3d 413, 418-19 (2d Cir. 2007).

9 See, e.g., In re Grand Jury Investigation, 399 F.3d 527, 534 (2d Cir. 2005).

3 solely on that basis. We therefore affirm the lower-court judgments holding the attorney-client

confidences at issue need not be disclosed to the public-information requestors.

I. The Texas Public Information Act’s Requirements

The PIA embodies the State’s policy that “each person is entitled, unless otherwise expressly

provided by law, at all times to complete information about the affairs of government and the official

acts of public officials and employees.”10

Under the PIA, the public has a right of access to “public information,”11 a broadly defined

term.12 A governmental body must “promptly” produce public information after receiving a request

for disclosure, meaning “as soon as possible under the circumstances, that is, within a reasonable

time, without delay.”13 The prompt production of public information furthers the “fundamental

philosophy” that “government is the servant and not the master of the people.”14

The right to access is not absolute, however; the Legislature incorporated into the PIA more

than sixty exceptions to the public-disclosure requirement.15 Statutory exceptions range from very

broad to more specific categories of information, including “information considered to be

10 T EX . G OV ’T C O D E § 552.001(a).

11 Id. § 552.021.

12 Id. § 552.002(a) (“Public information” means “information that is written, produced, collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business” by a governmental body, by its employees or officers in their official capacity if the information pertains to official business of the governmental body, or “for a governmental body” if it owns, has a right of access to, or spends or contributes public money for the purpose of writing, producing, collecting, assembling, or maintaining the information).

13 Id. § 552.221(a).

14 Id. § 552.001(a).

15 Id. §§ 552.101-.156.

4 confidential by law, either constitutional, statutory, or by judicial decision,”16 attorney-client

information,17 certain rare books and original manuscripts,18 various categories of records containing

personal information of public employees or private citizens,19 and sensitive crime-scene images.20

“[The PIA’s] exceptions embrace the understanding that the public’s right to know is tempered by

the individual and other interests at stake in disclosing that information.”21

Consistent with the PIA’s fundamental precept that “[t]he people, in delegating authority, do

not give their public servants the right to decide what is good for the people to know and what is not

good for them to know,”22 a governmental body cannot unilaterally determine that requested

information is exempt from disclosure. Rather, a governmental body must request a decision from

the Texas Attorney General confirming the claimed exception applies to the requested information,

unless the Attorney General has previously made a determination that the information falls within

a claimed exception.23

In harmony with the policy underlying the PIA’s prompt-production requirement, the

governmental body asserting an exception to disclosure must request an attorney general decision

16 Id. § 552.101.

17 Id. § 552.107.

18 Id. § 552.120.

19 E.g., id. §§ 552.102, .114, .115, .117, .1176, .1235, .124.

20 Id. § 552.1085.

21 Tex. Dep’t of Pub. Safety v. Cox Tex. Newspapers, L.P., 343 S.W .3d 112, 114 (Tex. 2011).

22 T EX . G OV ’T C O D E § 552.001(a).

23 Id. § 552.301(a).

5 “within a reasonable time but not later than the 10th business day after the date of receiving the

written request.”24 If a request for decision is untimely, “the information requested in writing is

presumed to be subject to required public disclosure and must be released unless there is a

compelling reason to withhold the information.”25

To secure compliance with the statute, the PIA provides civil-enforcement mechanisms when

a governmental body “refuses to request an attorney general’s decision” or “refuses to supply public

information or information that the attorney general has determined is public information that is not

excepted from disclosure.”26 In such cases, either the requestor or the Attorney General can institute

mandamus proceedings to compel access to the information.27 The PIA further authorizes certain

local or state officials to seek declaratory or injunctive relief based on a complaint by “a person who

claims to be the victim of a [PIA] violation,” but only after the governmental body is afforded notice

and fails to timely cure the alleged violation.28 Subject to limited exceptions, the trial court shall

award costs of litigation and reasonable attorney fees to a plaintiff who substantially prevails in a

civil-enforcement suit against the governmental body.29

24 Id. § 552.301(b).

25 Id. § 552.302 (emphasis added).

26 Id. § 552.321(a).

27 Id.

28 Id. § 552.3215.

29 Id. § 552.323(a).

6 The PIA also provides criminal penalties for (1) destruction, removal, or alteration of public

information, (2) distribution or misuse of “information considered confidential under the [PIA’s]

terms,” and (3) criminally negligent failure to provide access to or copies of public information.30

In comparison, “[t]he only suit a governmental body may file seeking to withhold information

from a requestor is a suit . . . seek[ing] declaratory relief from compliance with [an attorney general]

decision.”31 Attorney fees and costs may be awarded to a party who substantially prevails in a suit

instituted by a governmental body.32

II. The Dispute

In this consolidated appeal, the City of Dallas seeks relief from two attorney general

decisions concluding the City must disclose confidential attorney-client communications pursuant

to public-information requests the City received regarding the McCommas Bluff Landfill (the

Landfill case) and a convention-center hotel (the Hotel case). The parties agree the requested

information constitutes “public information” under the PIA, but because the information is

undisputedly subject to the attorney-client privilege, the City contends the information is excepted

from disclosure under PIA sections 552.101 (the confidential-by-law exception) and 552.107 (the

attorney-client exception).

Section 552.107 applies to “information that the attorney general or an attorney of a political

subdivision is prohibited from disclosing because of a duty to the client under the Texas Rules of

30 Id. §§ 552.351-.353.

31 Id. § 552.324(a).

32 Id. § 552.323(b).

7 Evidence or the Texas Disciplinary Rules of Professional Conduct.”33 Section 552.101 applies to

“information considered to be confidential by law, either constitutional, statutory, or by judicial

decision.”34 According to the City, section 552.101 encompasses the attorney-client privilege

because the privilege derives from the common law and is also memorialized in judicially

promulgated rules.

The parties agree the PIA excepts attorney-client communications from public disclosure,

although they disagree about whether protection is afforded under the confidential-by-law exception

or the attorney-client exception. The dispute is not about whether the PIA excepts the requested

information from public disclosure—the parties agree it does. Nor does the City contend that it may

unilaterally make that determination. Rather, the dispute arises because the City failed to timely

request an attorney general decision affirming that the information falls within one of the asserted

exceptions, as required by section 552.301 of the PIA.

33 Id. § 552.107. The evidence and professional-conduct rules “expressly deem certain attorney-client communications to be ‘confidential.’” In re City of Georgetown, 53 S.W .3d 328, 333 (Tex. 2001) (orig. proceeding). Texas Rule of Evidence 503(a)(5) defines a communication as “confidential” if it is “not intended to be disclosed to third persons other than those to whom disclosure is made to further the rendition of professional legal services to the client; or reasonably necessary to transmit the communication.” Under Rule 503(b), a client “has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made to facilitate the rendition of professional legal services to the client,” subject to limited exceptions. Texas Disciplinary Rule of Professional Conduct 1.05(b) imposes a duty of confidentiality and prohibits a lawyer from knowingly revealing confidential information. Rule 1.05(a) defines “[c]onfidential information” to include “privileged information” that is protected by Texas Rule of Evidence 503 and “unprivileged client information.” The Attorney General has ruled that information considered confidential solely under Rule 1.05— including “unprivileged client information”— is not considered confidential under the PIA because Rule 1.05 “permit[s] disclosure of client information ‘[w]hen the lawyer has reason to believe it is necessary to do so in order to comply with . . . other law.’” Tex. Att’y Gen. Op. ORD-676 at 2 (2002) (quoting T EX . D ISCIPLIN ARY R. P RO F ’L C O N D U CT 1.05(c)(4)). The Attorney General has thus concluded that “a governmental body’s information that is otherwise made confidential solely under rule 1.05 is subject to the rule’s ‘other law’ exception to confidentiality when it is requested under the [PIA].” Id. This case does not involve unprivileged information protected from disclosure under Rule 1.05.

34 T EX . G OV ’T C O D E § 552.101.

8 The City requested an attorney general decision twenty-six business days after receiving the

written request in the Landfill case and forty-nine business days after receiving the request in the

Hotel case. The City’s proffered reason for the delay was inadvertence.35 Because the requests for

an open-records ruling were untimely, the City concedes the requested information is presumed to

be subject to disclosure unless “a compelling reason to withhold the information” exists.36 Thus, the

determinative issue is whether the City met its burden to rebut the public-disclosure presumption in

section 552.302 that was triggered when the City failed to timely seek an attorney general decision.

The City asserts a number of statutory exceptions to disclosure and adamantly argues that

important policies underlying the attorney-client privilege present a compelling reason to withhold

disclosure of confidential attorney-client communications. The City also claims a compelling reason

to withhold the requested landfill information because disclosure would prejudice its bargaining

position in a long-term transaction with millions of dollars at stake.

Though attorney-client communications are not intended to be freely accessible to the public

under the PIA or available to third parties in proceedings outside the PIA, the Attorney General

determined the City must release the requested information.37 The Attorney General’s letter rulings

were based on agency precedent limiting the “compelling reason” standard to (1) information falling

under an exception the Attorney General considers to impose “mandatory” confidentiality, meaning

35 The City did not assert a reason for the untimeliness in proceedings below, but at oral argument before this Court, the City’s attorney said “we missed the deadlines in both of these instances. It was inadvertence I believe. There’s . . . nothing in the record to indicate anything else.” Oral Arg. No. 15-0073, 2016 W L 4992647, at *6 (Tex. Sept. 14, 2016).

36 See T EX . G O V ’T C O DE § 552.302.

37 See Tex. Att’y Gen. OR2008-08859 (Hotel case); Tex. Att’y Gen. OR2010-08285 (Landfill case).

9 the governmental body is prohibited by law from disclosing the information and could not

voluntarily disclose the information without being criminally sanctioned under the PIA,38 and

(2) information that could jeopardize third parties if disclosed.39 The latter circumstance is not

implicated by the public-information requests at issue, and the Attorney General asserts the former

does not apply because the attorney-client privilege can be waived voluntarily, making

confidentiality “discretionary,” not “mandatory.” Taking a constrained view of the statutory

language, the Attorney General has determined that the mere ability to waive the attorney-client

privilege automatically and categorically precludes the privilege from constituting a compelling

reason to withhold confidential attorney-client communications, even if the privilege has not actually

been waived. Accordingly, the Attorney General ruled that neither the confidential nature of

38 According to the Office of the Attorney General, mandatory exceptions include the confidential-by-law exception and those covering information made confidential under the PIA, including sections 552.102 (“Confidentiality of Certain Personnel Information”), .109 (“Confidentiality of Certain Private Communications of an Elected Office Holder”), .110 (“Confidentiality of Trade Secrets; Confidentiality of Certain Commercial or Financial Information”), .113 (“Confidentiality of Geological or Geophysical Information”), .114 (“Confidentiality of Student Records”), .115 (“Confidentiality of Birth and Death Records”), .117 (“Confidentiality of Certain Addresses . . . and Personal Family Information”), .118 (“Confidentiality of Official Prescription Program Information”), .119 (“Confidentiality of Certain Photographs of Peace Officers”), .120 (“Confidentiality of Certain Rare Books and Original Manuscripts”), .121 (“Confidentiality of Certain Documents Held for Historical Research”), .123 (“Confidentiality of Name of Applicant for [CEO] of Institution of Higher Education”), .124 (“Confidentiality of Records of Library or Library System”), .126 (“Confidentiality of Name of Applicant for Superintendent of Public School District”), .131 (“Confidentiality of Certain Economic Development Information”), .133 (“Confidentiality of Public Power Utility Competitive Matters”), .134 (“Confidentiality of Certain Information Relating to Inmate of Department of Criminal Justice”), .135 (“Confidentiality of Certain Information Held by School District”), .136 (“Confidentiality of Credit Card . . . Numbers”), .138 (“Confidentiality of Family Violence Shelter Center . . . Information”), .139 (“Confidentiality of Government Information Related to Security or Infrastructure Issues for Computers”), .140 (“Confidentiality of Military Discharge Records”), .142 (“Confidentiality of Records Subject to Order of Nondisclosure”), .145 (“Confidentiality of Texas No-Call List”), .148 (“Confidentiality of Certain Personal Information Maintained by Municipality Pertaining to a M inor”), .151 (“Confidentiality of Information Concerning Information Regarding Select Agents”). See O FFIC E O F TH E A TTO RN EY G EN ERAL , P U BLIC I N FO RM ATIO N H AN DBO O K 42-43 & n.158 (2016) (citing Act of May 30, 2011, 82d Leg., R.S., ch. 1229, §§ 3-21, 23-26, 28-37).

39 E.g., Tex. Att’y Gen. ORD-677 at 10 (2002).

10 attorney-client communications nor the City’s particularized allegation of prejudice to its business

interests constitutes a compelling reason to withhold the requested information.

The City challenged the letter rulings in separate trial-court proceedings and achieved

conflicting results. In the Hotel case, the trial court held the City did not have a compelling reason

to withhold the requested information. But in the Landfill case, the trial court found the information

is excepted from required public disclosure, explaining the attorney-client privilege is an inherently

“compelling reason to withhold information” because it is vital to our adversarial system of justice

and no authority supports compelling disclosure of information protected by the attorney-client

privilege based solely on a missed deadline.40 The City and the Attorney General appealed the

respective adverse rulings.

In the Landfill case, a divided Third Court of Appeals affirmed the trial court’s judgment in

the City’s favor, holding attorney-client communications are excepted from disclosure under the

confidential-by-law exception and, considering the privilege’s purposes and the protections afforded

under the law, a compelling reason to withhold the information necessarily exists and rebuts the

public-disclosure presumption in section 552.302.41

The Hotel case was transferred to the Thirteenth Court of Appeals pursuant to a docket-

equalization order. Applying the appellate decision in the Landfill case as precedent,42 the court

40 Cf. T EX . R. C IV . P. 193.3(d) (actual disclosure of privileged information or materials does not waive the privilege absent disclosure with intent to waive the privilege or failure to claim the privilege within ten days after the party actually discovers the disclosure occurred).

41 453 S.W .3d 580, 587-88 (Tex. App.—Austin 2015).

42 See T EX . R. A PP . P. 41.3 (“[T]he court of appeals to which the case is transferred must decide the case in accordance with the precedent of the transferor court under principles of stare decisis . . . .”).

11 reached the same conclusion, reversing the trial court’s judgment and rendering judgment for the

City.43

On appeal to this Court, we consolidated the Attorney General’s appeals for argument and

disposition.44

III. Discussion

The parties agree that, had the City timely requested an attorney general decision, the PIA

does not require public disclosure of attorney-client confidences in either the Landfill or the Hotel

case. Nor is there any dispute that the City’s untimely requests activated a presumption that the

requested information must be disclosed absent a “compelling reason to withhold the information.”

Thus, the dispositive issue is whether a “compelling reason” exists to rebut the public-disclosure

presumption.

The resolution of that issue does not turn on whether the attorney-client privilege falls within

one statutory exception or another, or whether confidentiality is at the governmental body’s

discretion rather than compulsory, as asserted by the Attorney General. Such extra-textual

distinctions are not decisive because the statute prescribes “a compelling reason to withhold the

information” as the determinative and only standard.45

43 2015 W L 601974, at *5, __ S.W .3d __ (Tex. App.—Corpus Christi 2015).

44 In this appeal, we have received amicus curiae briefs from the Freedom of Information Foundation of Texas, which supports the Attorney General’s position; and the Texas Municipal League, Texas City Attorneys Association, and Texas Association of Counties, which are aligned with the City of Dallas.

45 See T EX . G O V ’T C O DE § 552.302.

12 In resolving the dispute at hand, we affirm that even under the compelling-reason standard,

information cannot be withheld unless a statutory exception applies, because public information

remains public unless it is expressly excepted from disclosure.46 But merely establishing an

exception cannot always be sufficient to rebut the public-disclosure presumption, because if the

statute were so construed, the compelling-reason requirement would be rendered a nullity.

We reject, however, the notion that statutory exceptions are categorically distinct from

compelling reasons and that something more is always required to rebut the presumption that arises

from a governmental body’s failure to timely request an attorney general decision. In some

instances, important policies and interests that animate a statutory exception are compelling in their

own right. We hold the attorney-client privilege, which is protected by one or more statutory

exceptions to public disclosure,47 protects and advances interests that provide independently

compelling reasons to withhold privileged information unless confidentiality has been waived.

A. “Compelling Reason”

The controlling issue in this case involves the proper construction and application of the

“compelling reason” standard in section 552.302 of the PIA, which is implicated when a

governmental body seeks to withhold information from public disclosure but fails to make a timely

46 See id. § 552.001(a) (under the PIA, “each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees” (emphasis added)); see also Doe v. Tarrant Cty. Dist. Attorney’s Office, 269 S.W .3d 147, 153-54 (Tex. App.— Fort W orth 2008, no pet.); Simmons v. Kuzmich, 166 S.W .3d 342, 350 (Tex. App.— Fort W orth 2005, no pet.).

47 Because the parties agree the attorney-client exception applies to the requested information, we need not consider whether privileged and confidential attorney-client information is also protected by the confidential-by-law exception. See T EX . G O V ’T C O D E §§ 552.101, .107.

13 request for an attorney general decision.48 Statutory construction presents a question of law that we

determine de novo under well-established principles.49

As always, our mandate is to ascertain and give effect to the Legislature’s intent as expressed

in the statutory language.50 Further, by statutory directive, we must liberally construe the PIA to

promote the policy of open government.51

The PIA does not define the phrase “compelling reason” or its constituent terms; accordingly,

those words bear their common, ordinary meaning unless a different or more precise definition is

apparent from the statutory context or the plain meaning yields an absurd result.52 Though neither

of those qualifying exceptions applies, the Attorney General relies on agency-deference and

legislative-ratification doctrines to support a restrictive construction of the compelling-reason

standard.

Long before the “compelling reason” safeguard was added to section 552.302, the Attorney

General authorized governmental bodies to withhold information from public disclosure despite an

untimely request for an open-records decision, if a “compelling reason” or a “compelling

48 See id. §§ 552.301-.302.

49 TIC Energy & Chem., Inc. v. Martin, 498 S.W .3d 68, 74 (Tex. 2016).

50 Id.

51 T EX . G O V ’T C O D E § 552.001 (demanding liberal construction to implement the state’s policy of open government and to favor disclosing information about governmental affairs).

52 Greene v. Farmers Ins. Exch., 446 S.W .3d 761, 765 (Tex. 2014).

14 demonstration” rebutted the statutory presumption of openness.53 But the Attorney General

recognized only two circumstances that could satisfy that standard: “[1] the asserted exception is

‘mandatory,’ i.e., the information is confidential by law and the governmental body therefore is

prohibited from releasing it, or [2] if the release of the information implicates third party interests.”54

Citing legislative history and relying on agency precedent, the Attorney General asserts the

Legislature intended a similarly constrained construction of section 552.302’s compelling-reason

standard.55 As so construed, the Attorney General contends the City cannot rebut the public-

disclosure presumption because neither condition exists.

We decline the Attorney General’s invitation to import restrictions that alter the plain

language of the statute at issue here. We have long held a statute’s unambiguous language controls

the outcome. When a statute is clear and unambiguous, like section 552.302, we do not resort to

extrinsic interpretive aids, such as legislative history, “because the statute’s plain language ‘is the

surest guide to the Legislature’s intent.’”56 Moreover, although we may consider an agency’s

construction of a statute, “deferring to an agency’s construction is appropriate only when the

53 See, e.g., Tex. Att’y Gen. ORD-630 at 3 (1994); Tex. Att’y Gen. ORD-552 at 1 (1990); Tex. Att’y Gen. ORD-319 at 1-2 (1982); Tex. Att’y Gen. ORD-150 at 2 (1977); Tex. Att’y Gen. ORD-34 at 2 (1974).

54 Tex. Att’y Gen. ORD-677 at 10 (2002). The PIA expressly prohibits a governmental body from releasing information that is “confidential under law” and imposes criminal liability when a person distributes information that is considered confidential under the PIA. See Tex. Att’y Gen. ORD-676 at 2 (2002) (citing T EX . G O V ’T C O D E §§ 552.007, .352).

55 See Act of May 25, 1999, 76th Leg., ch. 1319, § 21, sec. 552.302, 1999 Tex. Gen. Laws 4500, 4509; see also Tex. Att’y Gen. ORD-630 at 3 (1994); Tex. Att’y Gen. ORD-552 at 1 (1990); Tex. Att’y Gen. ORD-319 at 1-2 (1982); Tex. Att’y Gen. ORD-150 at 2 (1977); Tex. Att’y Gen. ORD-34 at 2 (1974).

56 Sullivan v. Abraham, 488 S.W .3d 294, 299 (Tex. 2016) (quoting Prairie View A&M Univ. v. Chatha, 381 S.W .3d 500, 507 (Tex. 2012)).

15 statutory language is ambiguous.”57 In like manner, legislative ratification applies only to ambiguous

statutes.58 We reject the limitations the Attorney General champions because they are not textually

supportable. Instead, we must apply the plain meaning of the phrase “compelling reason to withhold

the information,” which is not as circumscribed as the Attorney General advocates.

The meaning of the term “compelling” is of vital importance to our analysis because it

represents a qualitative limitation on the justifications that permit withholding information from

public disclosure. Neither a reason nor even a good reason would be sufficient to rebut the public-

disclosure presumption. The reason must be “compelling.”

Our examination of dictionaries, treatises, and judicial constructions of similar language59

reveals the term “compelling” connotes urgency, forcefulness, and significantly demanding concerns.

“Compelling” means “[u]rgently requiring attention” and “[d]rivingly forceful”;60 “not able to be

resisted; overwhelming” and “not able to be refuted; inspiring conviction”;61 and “calling for

57 Sw. Royalties, Inc. v. Hegar, 500 S.W .3d 400, 404 (Tex. 2016); see also Boeing Co. v. Paxton, 466 S.W .3d 831, 838 (Tex. 2015) (“W hile the Attorney General’s interpretation of the [PIA] is entitled to due consideration, as with other administrative statutory constructions, such deference must yield to unambiguous statutory language.”).

58 Tex. Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W .3d 170, 176 (Tex. 2004) (“If an ambiguous statute that has been interpreted by a court of last resort or given a longstanding construction by a proper administrative officer is re-enacted without substantial change, the Legislature is presumed to have been familiar with that interpretation and to have adopted it.”); see also Pretzer v. Motor Vehicle Bd., 138 S.W .3d 908, 915 (Tex. 2004) (“[N]either legislative ratification nor judicial deference to an administrative interpretation can work a contradiction of plain statutory language.”).

59 See, e.g., Greene v. Farmers Ins. Exch., 446 S.W .3d 761, 765 (Tex. 2014) (looking to dictionaries, treatises, and state- and federal-court constructions in similar contexts).

60 T H E A M ERIC AN H ERITAGE D IC TIO N ARY (5th ed. 2016).

61 N EW O XFO RD A M ERIC AN D IC TIO N ARY (3d ed. 2010).

16 examination, scrutiny, consideration, or thought.”62 A need is “compelling” if it is “so great that

irreparable harm or injustice would result if it is not met”;63 a reason may be “compelling” if time

is of the essence;64 a governmental interest “is compelling when the balance weighs in its favor”;65

and the public interest in maintaining confidentiality of information may be “compelling” if the

interest advanced by the promise of confidentiality would be “eviscerated” by compelled

disclosure.66

Though not authoritative, we may, as this Court has often done, look to federal cases for

guidance on the meaning of terms not otherwise defined.67 Federal courts have employed a

“compelling reason” standard to determine whether information should be withheld from the public

in an analogous context involving sealing judicial records.68 Much like the policies underlying the

62 W EBSTER ’S T HIR D N EW I N T ’L D IC TIO N ARY (2002).

63 B LACK ’S L AW D IC TIO N ARY (10th ed. 2014) (defining “compelling need”).

64 State ex rel. Angelini v. Hardberger, 932 S.W .2d 489, 490 (Tex. 1996) (holding exigent circumstances present a compelling reason for this Court to exercise discretion to decide a quo warranto without prior presentment to the district court).

65 Barr v. City of Sinton, 295 S.W .3d 287, 306 (Tex. 2009); see also Gonzales v. O Centro Beneficente Uniao do Vegetal, 546 U.S. 418, 431-32 (2006); B LACK ’S L AW D IC TIO N ARY (10th ed. 2014) (defining “compelling-state- interest test” as a method “whereby the government’s interest in the law and its purpose are balanced against an individual’s constitutional right that is affected by the law”).

66 Eli Lilly & Co. v. Marshall, 850 S.W .2d 155, 160 (Tex. 1993).

67 See, e.g., Greene v. Farmers Ins. Exch., 446 S.W .3d 761, 765 (Tex. 2014).

68 Rudd Equip. Co. v. John Deere Constr. & Forestry Co., 834 F.3d 589, 593 (6th Cir. 2016) (“‘[O]nly the most compelling reasons can justify non-disclosure of judicial records.’” (quoting In re Knoxville News-Sentinel Co., 723 F.2d 470, 476 (6th Cir. 1983))); U.S. v. Kravetz, 706 F.3d 47, 59 (1st Cir. 2013) (“‘Only the most compelling reasons can justify non-disclosure of judicial records that come within the scope of the common-law right of access.’” (quoting In re Providence Journal Co., Inc., 293 F.3d 1, 10 (1st Cir. 2002))); Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 123 (2d Cir. 2006) (“‘[D]ocuments used by parties moving for, or opposing, summary judgment should not remain under seal absent the most compelling reasons.’” (quoting Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982))); Kamakana v. City

17 PIA, a court’s discretion to seal records is “bounded by a ‘long-established legal tradition’ of the

‘presumptive right of the public to inspect and copy judicial documents and files.’”69 To determine

whether “compelling reasons” exist to shield information in court records from public exposure,

federal courts employ a balancing test, weighing the interest the public has in access to judicial

records against the interest of a party seeking to make judicial records confidential.70

We similarly conclude that section 552.302’s compelling-reason standard requires an

assessment of the relative importance of a reason for withholding information in relation to the

presumption of openness.71 In that regard, a reason to withhold information will be “compelling”

only when it is of such a pressing nature (e.g., urgent, forceful, or demanding) that it outweighs the

interests favoring public access to the information and overcomes section 552.302’s presumption

that disclosure is required.72

& Cty. of Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006) (a party seeking to seal “documents attached to a dispositive motion must meet the high threshold of showing that ‘compelling reasons’ support secrecy” (citing Foltz v. State Farm Mut. Ins. Co., 331 F.3d 1122, 1136 (9th Cir. 2003))).

69 Rudd Equip., 834 F.3d at 593 (quoting Knoxville, 723 F.2d at 474).

70 See id. at 594 (“[I]n making this determination, a court must balance the litigants’ privacy interests against the public’s right of access, recognizing our judicial system’s strong presumption in favor of openness.”); Kravetz, 706 F.3d at 59 (“[A] court must carefully balance the presumptive public right of access against the competing interests that are at stake in a particular case.”); Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 70 (1st Cir. 2011) (“Decisions on the sealing of judicial documents require a balancing of interests, although the scales tilt decidedly toward transparency.”); Lugosch, 435 F.3d at 120 (“[A]fter determining the weight of the presumption of access, the court must ‘balance competing considerations against it.’” (quoting U.S. v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995))); Kamakana, 447 F.3d at 1179 (“[T]he court must ‘conscientiously balance[] the competing interests’ of the public and the party who seeks to keep certain judicial records secret.” (quoting Foltz, 331 F.3d at 1135)).

71 Cf. Gonzales v. O Centro Beneficente Uniao do Vegetal, 546 U.S. 418, 431-32 (2006) (recognizing that in applying the compelling-interest test “context matters” and “relevant differences” should be taken into account (quoting Grutter v. Bollinger, 539 U.S. 306, 327 (2003), and Adarand Constructor, Inc. v. Peña, 515 U.S. 200, 228 (1995))).

72 See T EX . G O V ’T C O DE § 552.302.

18 B. The Attorney-Client Privilege Protects Significant Interests

Privileges “represent society’s desire to protect certain relationships.”73 The attorney-client

privilege holds a special place among privileges: it is “the oldest and most venerated of the common

law privileges of confidential communications.”74 As “the most sacred of all legally recognized

privileges,” “its preservation is essential to the just and orderly operation of our legal system.”75

The privilege rests on “the need for the advocate and counselor to know all that relates to the

client’s reasons for seeking representation if the professional mission is to be carried out.”76 “[T]he

privilege exists to protect not only the giving of professional advice to those who can act on it but

also the giving of information to the lawyer to enable him to give sound and informed advice.”77 The

privilege’s purpose could not be more evident: “to encourage clients to make full disclosure to their

attorneys”78 and, in return, to allow clients to obtain full, fair, and candid counsel.79 By promoting

“full and frank communications between attorneys and their clients,” the privilege “promote[s]

broader public interests in the observance of law and administration of justice.”80

73 Republic Ins. Co. v. Davis, 856 S.W .2d 158, 163 (Tex. 1993).

74 U.S. v. Edwards, 303 F.3d 606, 618 (5th Cir. 2002).

75 U.S. v. Bauer, 132 F.3d 504, 510 (9th Cir. 1997).

76 Trammel v. U.S., 445 U.S. 40, 51 (1980).

77 Upjohn Co. v. U.S., 449 U.S. 383, 390 (1981).

78 Fisher v. U.S., 425 U.S. 391, 403 (1976).

79 See, e.g., Upjohn Co., 449 U.S. at 390.

80 Id. at 389.

19 In the governmental context, the attorney-client privilege applies with “special force.”81

“[P]ublic officials are duty-bound to understand and respect constitutional, judicial and statutory

limitations on their authority; thus, their access to candid legal advice directly and significantly

serves the public interest.”82

The notion that “sound legal advice or advocacy serves public ends” is not rationally

debatable.83 After all, the government conducts its business on behalf of the public (residents, voters,

taxpayers, and ratepayers),84 and a fully informed servant is a more capable servant. The

attorney-client privilege “encourag[es] government officials formulating policies in the public’s

interest to consult with counsel in conducting that public business.”85 The privilege also protects the

public fisc when the government is participating in litigation, negotiating billion-dollar contracts,

and performing regulatory acts under complex regulatory schemes.

Fundamentally, the promise of confidentiality fosters “a culture in which consultation with

government lawyers is accepted as a normal, desirable, and even indispensable part of conducting

81 In re Cty. of Erie, 473 F.3d 413, 419 (2d Cir. 2007) (quoting In re Grand Jury Investigation, 399 F.3d 527, 534 (2d Cir. 2005)).

82 Id. at 418-19.

83 Upjohn Co., 449 U.S. at 389.

84 See In re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032, 1036-37 (2d Cir. 1984) (“[T]he availability of sound legal advice inures to the benefit not only of the client . . . but also of the public which is entitled to compliance with the ever growing and increasingly complex body of public law.”).

85 Guidiville Rancheria of Cal. v. U.S., No. 12-cv-1326 YGR, 2013 W L 6571945, at *2 (N.D. Cal. Dec. 13, 2013).

20 public business.”86 And though the dissent dismisses the importance of the privilege in the

governmental context as mere hyperbole,87 affording weight to the policies and interests that drive

the privilege’s application cannot be disregarded so handily. At a bare minimum, sound judgment

tells us that the people are best served when government officials, “who are expected to uphold and

execute the law and who may face criminal prosecution for failing to do so,” operate in an

atmosphere that encourages them “to seek out and receive fully informed legal advice.”88

The attorney-client privilege exists—and has been a cornerstone of our legal system for

nearly 500 years89 —because the interests protected and secured by the promise of confidentiality are

not merely significant; they are quintessentially imperative. Safeguarding the privilege is

important—indeed, compelling—because the consequences of disclosure are far from

inconsequential. Once information has been disclosed, loss of confidentiality is irreversible.90 The

bell cannot be unrung, and neither dissemination nor use can be effectively restrained.91

Unsurprisingly, the ramifications are not limited to particularized matters, but are also wrought on

86 Grand Jury Investigation, 399 F.3d at 534; see also U.S. v. Jicarilla Apache Nation, 564 U.S. 162, 169-70 (2011) (“‘The privilege aids government entities and employees in obtaining legal advice founded on a complete and accurate factual picture.’” (quoting R ESTATEM EN T (T H IR D ) O F TH E L AW G OVERN IN G L AW Y ERS § 74 cmt. b (2000))).

87 Post at 3 (B O Y D , J., dissenting).

88 Grand Jury Investigation, 399 F.3d at 534.

89 8 J O H N H. W IG M O RE , E VID EN CE § 2290 (McNaughton rev. 1961) (“The history of [the attorney-client] privilege goes back to the reign of Elizabeth I, where the privilege already appears as unquestioned.” (citing Berd v. Lovelace, Cary 88, 21 Eng. Rep. 33 (Ch. 1577))).

90 See Pearson v. Miller, 211 F.3d 57, 64 (3d Cir. 2000).

91 See Compelling Need, B LACK ’S L AW D IC TIO N ARY (10th ed. 2014) (a need is “compelling” if it is “so great that irreparable harm . . . would result if it is not met”).

21 a systemic level.92 The PIA recognizes this by categorically excepting privileged information from

the public-access requirement. More to the point, however, significant interests independent of the

PIA’s exceptions favor withholding confidential and privileged attorney-client communications from

compelled disclosure.

Though the precise issue presented in this case is one of first impression under the PIA,

analogous authority from this Court confirms that the attorney-client privilege is inherently

compelling. For example, in In re George, we examined the attorney-client privilege in a dispute

involving the client’s access to attorney work product.93 After the client’s attorneys had been

disqualified from representing her based on their prior representation of an opposing party, the client

sought possession and control of the attorneys’ work product. We held that maintaining

confidentiality of the opponent’s attorney-client communications—which had been the basis for the

disqualification order—provided a “compelling reason” to deprive the client of her significant

property right to the work product generated by her former counsel.94

In Ford Motor Co. v. Leggat, we considered whether to apply Michigan’s more expansive

protections of the attorney-client privilege in lieu of Texas’s narrower attorney-client privilege in a

conflict-of-laws analysis.95 We held that “[t]he purpose of the attorney-client privilege and the

92 See supra n.89.

93 28 S.W .3d 511, 512-13 (Tex. 2000) (orig. proceeding).

94 Id. at 516-20; see also id. at 525 (B RISTER , J., dissenting) (“I agree with the Court that Ms. Anderson should not be deprived of her property without a compelling reason, but attorney-client confidentiality is a compelling reason.”).

95 904 S.W .2d 643, 646-47 (Tex. 1995).

22 reliance placed by the client on the confidential nature of the communications create[d] special

reasons” to apply the broader attorney-client privilege.96

In a different context involving similar tensions between public access and the need for

confidentiality, federal courts have affirmed that the need to preserve the attorney-client privilege

is compelling. Applying a compelling-reason standard to determine whether to seal judicial records,

federal courts generally accept the attorney-client privilege as a “compelling reason” justifying a

motion to seal97 even when balanced against the public’s substantial right to access the information:

“When privileged materials must be filed in a case, and the privilege has not been waived, courts

generally find compelling reasons to overcome the strong presumption in favor of public access exist

sufficient to warrant sealing those materials.”98

96 Id. at 647 (emphasis added).

97 See Hanson v. Wells Fargo Home Mortg., Inc., No. C13-0939JLR, 2013 W L 5674997, at *3 (W .D. W ash. Oct. 17, 2013) (“Courts generally accept attorney-client privilege and the work-product doctrine as a ‘compelling reason’ justifying a motion to seal.” (citing Lugosch, 435 F.3d at 125)); Travelers Indem. Co. v. Excalibur Reinsurance Corp., No. 11-CV-1209 (CSH), 2013 W L 4012772, at *5 (D. Conn. Aug. 5, 2013) (“[I]t is well-settled within the Second Circuit that the attorney-client privilege may be a sufficiently compelling reason to defeat the public’s right of access to judicial documents.”); Travelers Prop. Cas. Co. of Am. v. Centex Homes, No. 11-3638-SC, 2013 W L 707918, at *2 (N.D. Cal. Feb. 26, 2013) (accepting attorney-client privilege as a compelling reason to allow a party to refile redacted version of document attached to summary-judgment motion); TriQuint Semiconductor, Inc. v. Avago Techs. Ltd., No. CV 09-1531-PHX-JAT, 2011 W L 6182346, at *5 (D. Ariz. Dec. 13, 2011) (accepting attorney-client privilege as a compelling reason justifying sealing court records); Asdale v. Int’l Game Tech., No. 3:04-CV-703-RAM, 2010 W L 2161930, at *5 (D. Nev. May 28, 2010) (accepting attorney-client privilege and the work-product doctrine as providing both good cause and a compelling reason to seal nondispositive and dispositive motions, respectively).

98 Wilcox v. Bibin, 2:15-CV-00261-EJL-REB, 2016 W L 740396, at *3 (D. Idaho Feb. 24, 2016); see also Rudd Equip. Co. v. John Deere Constr. & Forestry Co., 834 F.3d 589, 594-95 (6th Cir. 2016) (“[O]nly trade secrets, information covered by a recognized privilege (such as the attorney-client privilege), and information required by statute to be maintained in confidence (such as the name of a minor victim of a sexual assault), is typically enough to overcome the presumption of access.” (quoting Baxter Int’l, Inc. v. Abbott Labs, 297 F.3d 544, 546 (7th Cir. 2002))); Ancier v. Egan, CV No. 14-00294 JMS-RLP, 2015 W L 6757528, at *2 (D. Haw. Nov. 4, 2015) (“Generally, compelling reasons that are sufficient to overcome this strong presumption exist when court filings contain attorney-client communications.” (citing Creative Tent Int’l Inc. v. Kramer, No. CV-15-8005-PCT-SMM, 2015 W L 4638320, at *3 (D. Ariz. Aug. 4, 2015))); Guidiville Rancheria of Cal. v. U.S., No. 12-cv-1326 YGR, 2013 W L 6571945, at *9 (N.D. Cal. Dec. 13, 2013)

23 As the PIA and the common law both bear witness, the attorney-client privilege protects a

relationship that is integral to the administration of justice as well as a government that functions for

the benefit of the people.

C. Waiver

Despite advancing and protecting important interests, the attorney-client privilege could not

be a “compelling reason to withhold the [requested] information” if confidentiality has been waived.

Thus, before balancing the interests protected by the privilege against those served by the PIA, we

must consider whether noncompliance with section 552.301’s ten-day deadline waives the

attorney-client privilege. We hold that a governmental body does not forfeit the attorney-client

privilege by failing to timely request an attorney general decision under section 552.301.

“Generally, ‘waiver’ consists of the intentional relinquishment of a known right or intentional

conduct inconsistent with claiming that right.”99 Merely missing a statutory deadline does not mirror

any of the conduct our rules and case law recognize as waiving a privilege. Nor does the PIA’s

language support the conclusion that the privilege may be waived by inaction or delay. We elaborate

on both points as follows.

Rule 511 of the Texas Rules of Evidence governs waiver of evidentiary privileges by

voluntary disclosure. Subsection (a) of Rule 511 sets forth the general rule that evidentiary

privileges are waived if the privilege holder voluntarily discloses the privileged matter, consents to

(“[T]he attorney-client privilege . . . establishes compelling reasons for sealing.”).

99 In re Nationwide Ins. Co., 494 S.W .3d 708, 712 (Tex. 2016) (orig. proceeding).

24 disclosure, or places the matter at issue.100 The circumstances Rule 511(a) recognizes as waiving a

privilege are materially dissimilar to those presented in this case. Subsection (b) of the rule applies

only to the attorney-client privilege and imposes limitations on the general waiver rule to preserve

the privilege despite actual disclosure.101 Under subsection (b), the attorney-client privilege is

afforded additional protection against waiver.

The attorney-client privilege may also be waived by inadvertent disclosure during litigation,

if the disclosure is accompanied by conduct inconsistent with claiming the privilege of

confidentiality. “[T]he essential function of the privilege is to protect a confidence that, once

revealed by any means, leaves the privilege with no legitimate function to perform.”102

Notwithstanding actual disclosure, however, Texas Rule of Civil Procedure 193.3(d) preserves a

claim of privilege if the privilege holder (1) did not intend to waive the privilege and (2) takes

prompt action to claim the privilege after “actually discover[ing]” the disclosure was made.103 Rule

193.3(d) “was designed to ensure that important privileges are not waived by mere inadvertence or

mistake.”104 But when inadvertence is coupled with failure to take prompt remedial action after

100 See T EX . R. E VID . 511(a).

101 Id. 511(b).

102 1 M C C O RM IC K O N E VID EN CE § 93 (7th ed. 2013) (emphasis added).

103 T EX . R. C IV . P. 193.3(d); see also T EX . R. E VID . 511(b)(2) (“W hen made in a Texas state proceeding, an inadvertent disclosure does not operate as a waiver if the holder followed the procedures of Rule of Civil Procedure 193.3(d).”).

104 In re Christus Spohn Hosp. Kleberg, 222 S.W .3d 434, 439 (Tex. 2007) (orig. proceeding); see also T EX . R. C IV . P. 193.4 cmt. 4 (“The focus is on the intent to waive the privilege, not the intent to produce the material or information. A party who fails to diligently screen documents before producing them does not waive a claim of privilege.”).

25 discovering actual disclosure of privileged information, the privilege is waived because inaction

under such circumstances is inconsistent with claiming the privilege.

Citing Rule 193.3(d) by analogy, the Attorney General suggests sections 552.301 and

552.302 should be construed as effecting a waiver by inaction or omission. But the scenario

described in Rule 193.3(d)—actual disclosure followed by delayed action results in waiver—is the

converse of the question presented here: does delay waive the privilege and compel disclosure?

Rule 193.3(d) contemplates waiver of confidentiality in the context of an inadvertent, but

actual, disclosure.105 In this case, there has been no disclosure, and the issue is whether the PIA

compels disclosure despite the absence of actual disclosure and without regard to the City’s efforts

to maintain confidentiality under section 552.302. Rule 193.3(d) is substantively inapposite.

In addition to actual disclosure, the attorney-client privilege may be waived by “offensive

use” of the privilege. Offensive use occurs when a party seeking affirmative relief “attempts to

protect outcome-determinative information from any discovery.”106 Though we have recognized the

vitality of the offensive-use doctrine, we have explained that “an offensive use waiver of a privilege

should not lightly be found” because privileges “represent society’s desire to protect certain

105 See T EX . R. C IV . P. 193.3(d) (“A party who produces material or information without intending to waive a claim of privilege does not waive that claim under these rules or the Rules of Evidence.”); T EX . R. E VID . 511(b) (“Notwithstanding paragraph (a), the following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the lawyer-client privilege or work-product protection.”).

106 In re M-I L.L.C., 2016 W L 2981342, at *7, __ S.W .3d __ (Tex. 2016); see Republic Ins. Co. v. Davis, 856 S.W .2d 158, 163 (Tex. 1993) (“In an instance in which the [attorney-client] privilege is being used as a sword rather than a shield, the privilege may be waived.”).

26 relationships.”107 An untimely request for an attorney general decision under section 552.301 does

not implicate concerns equivalent to those undergirding the offensive-use doctrine.

Finally, and most decisively, section 552.302’s language cannot reasonably be construed as

effecting a waiver of confidentiality. Some PIA sections explicitly refer to waiver,108 but section

552.302 does not. Rather than waiving interests that are protected by a statutory exception to

disclosure, section 552.302’s express language creates a presumption that disclosure is required.109

Because the presumption is rebuttable, we conclude that missing the statutory deadline in section

552.301 does not waive the attorney-client privilege.

D. Balancing Competing Interests

Our inquiry does not end with establishing that the interests secured by the attorney-client

privilege are inherently compelling and that mere delay in seeking an attorney general decision does

not waive the privilege. Those determinations impact only one side of the balancing equation. We

must also consider whether the significant interests the attorney-client privilege advances outweigh

competing interests favoring disclosure and the statutory presumption that disclosure is required.

We begin our analysis by observing that, under the PIA, (1) the public is not entitled to

information the Legislature has chosen to except from required public disclosure,110 and (2) section

552.302’s “compelling reason” safeguard applies only to information the PIA already excepts from

107 Republic Ins. Co., 856 S.W .2d at 163.

108 See T EX . G O V ’T C O D E §§ 552.0038(f), .008(b), .134(d), .156(d).

109 Id. § 552.302.

110 Id. §§ 552.001, .101-.156.

27 disclosure.111 Accordingly, a requestor’s general right of access to public information is not a

competing interest to be weighed under the compelling-reason balancing test.112

Instead, the failure to timely request an attorney general decision under section 552.301 of

the PIA implicates the public’s interest in the “prompt” production of public information.113 The

PIA’s deadlines help ensure governmental bodies do not impede the public’s access to public

information. Compliance with statutory deadlines furthers important interests in avoiding delay and

preventing gamesmanship and obstructionism.

These interests are undoubtedly significant, but the PIA expressly contemplates they may be

overcome by countervailing interests of utmost importance.114 We conclude the interests protected

by the attorney-client privilege surpass that high threshold. When weighed against the need for

expediency, the interests protected by the attorney-client privilege—and the irremediable

consequences of disclosure—are demonstrably more compelling.

Under the PIA, the public has no right of access to privileged information in the first instance

and only a rebuttable presumption of access in the second.115 We must also consider that the

111 See id. §§ 552.001(a), .021, .301-.302.

112 See Tex. Dep’t of Pub. Safety v. Cox Tex. Newspapers, L.P., 343 S.W .3d 112, 114 (Tex. 2011); cf. U.S. v. Kravetz, 706 F.3d 47, 59 (1st Cir. 2013) (“‘Though the public’s right of access is vibrant, it is not unfettered. Important countervailing interests can, in given instances, overwhelm the usual presumption and defeat access.’” (quoting Siedle v. Putnam Invs., Inc., 147 F.3d 7, 10 (1st Cir. 1998))).

113 T EX . G O V ’T C O DE § 552.221(a).

114 See id. § 552.302.

115 See, e.g., id. §§ 552.107 (categorically excepting attorney-client privileged information from the statute’s public-disclosure requirement), .302 (rebuttably presuming otherwise exempt information is open to the public); cf. In re Lindsey, 158 F.3d 1263, 1269 (D.C. Cir. 1988) (recognizing that, although the federal Freedom of Information Act (FOIA) “[did] not itself create a government attorney-client privilege[,] ‘Congress intended that agencies should not lose

28 attorney-client privilege is afforded to the government for the public’s benefit; accordingly, the

public’s interest is not one-sided in this context. Because the privilege benefits both the

governmental body and the people it represents, the public’s interest in maintaining confidentiality

must be factored into the analysis. Among other shared benefits, the privilege shields confidential

information from third parties whose litigation or business interests are adverse to the public’s

interest, promotes a culture that incentivizes governmental bodies to seek legal advice, and allows

the free flow of information between attorney and client without fear of compelled public

disclosure.116

Protecting privileged attorney-client communications is also more urgent than promptness

because the PIA provides disincentives to gamesmanship that might otherwise reward dilatory

conduct, intentional or otherwise. Under the PIA, there is no benefit to bypassing the Attorney

General altogether, and delay bears its own consequences.

the protection traditionally afforded through the evidentiary privileges simply because of the passage of FOIA’” (quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980))); R ESTATEM EN T (T H IR D ) O F TH E L AW G O VERN IN G L AW Y ERS § 74 (2000) (“Unless applicable law otherwise provides, the attorney-client privilege extends to a communication of a governmental organization . . . and of an individual employee or other agent of a governmental organization as a client with respect to his or her personal interest . . . .”).

116 See In re Grand Jury Investigation, 399 F.3d 527, 534 (2d Cir. 2005) (“Abrogating the privilege undermines that culture and thereby impairs the public interest.”); cf. U.S. v. Jicarilla Apache Nation, 564 U.S. 162, 169 (2011) (“[T]he objectives of the attorney-client privilege apply to governmental clients.”); Grand Jury Investigation, 399 F.3d at 533 (“There is, then, substantial authority for the view that the rationale supporting the attorney-client privilege applicable to private entities has general relevance to governmental entities as well.”); Ross v. City of Memphis, 423 F.3d 596, 602 (6th Cir. 2005) (“W e see no reason that [the] function [of promoting full and frank communications and encouraging observance of law] is no longer served simply because the corporation is a municipality or, more broadly, that the organization or agency is a government entity. Governments must not only follow the laws, but are under additional constitutional and ethical obligations to their citizens. The privilege helps insure that conversations between municipal officials and attorneys will be honest and complete. In so doing, it encourages and facilitates the fulfillment of those obligations.”); 8 J O H N H. W IGM ORE , E VID EN CE § 2291 (McNaughton rev. 1961) (“The policy of the privilege has been plainly grounded since the latter part of the 1700s . . . . In order to promote freedom of consultation of legal advisers by clients, the apprehension of compelled disclosure by the legal advisers must be removed; hence the law must prohibit such disclosure except on the client’s consent.”).

29 For one thing, the interests protected by some statutory exceptions will not independently

satisfy the compelling-reason standard; thus, failing to timely assert an applicable exception could

result in mandatory disclosure that might otherwise have been avoided. Because section 552.302

provides only a limited safeguard, missing the deadline in section 552.301 is a risky endeavor.

Refusing to request or comply with an attorney general decision carries the additional risk

of a civil-enforcement action that—win or lose—would surely be costly. But if lost, obtaining and

relying on an attorney general decision under section 552.301 precludes an award of attorney fees

and litigation costs to the prevailing plaintiff. The PIA’s fee-shifting provisions thus provide both

a carrot and a stick.

Finally, a governmental body’s only way to avoid disclosing public information to a requestor

is a suit that “seeks declaratory relief from compliance with [an attorney general] decision issued

under Subchapter G [sections 552.301 to 552.309].”117 This provision also helps secure the Attorney

General’s oversight as contemplated by the Legislature.

To require public disclosure of confidential attorney-client communications as an

automatic—and irremediable—sanction for missing a statutory deadline is not necessary to achieve

the PIA’s objective of an open government and would be a jurisprudential course fraught with peril.

Compelled forfeiture of the privilege under such circumstances necessarily undermines its

underpinnings and threatens the foundation of a justice system that thrives on full and candid legal

117 T EX . G O V ’T C O DE § 552.324(a)(2).

30 representation. Most importantly, however, such an outcome is not supported by a plain reading of

the statutory text.

The PIA’s exception for attorney-client communications affirms the importance of honest

and candid conversations between governmental bodies and their legal counsel. Eviscerating the

privilege by compelling disclosure in pursuit of “promptness” may have a wide-reaching and chilling

effect on communications between governmental bodies and their counsel.118 When a privilege as

sacrosanct as the attorney-client privilege is irretrievably lost under the unexceptional facts presented

here, “governmental entities might well choose to forego fruitful self-analysis and decide not to seek

needed legal advice.”119

Robotic perfection by a governmental body’s public information officer is a statutory ideal,

not an absolute requirement. To err is human, but to conduct a City’s legal affairs without the

occasional error would require divinity. The safeguard the Legislature enacted in section 552.302

exists to prevent such a scenario.

E. Section 552.302 Does Not Require Disclosure

When balanced against the PIA’s promptness requirements, the interests safeguarded by the

attorney-client privilege present compelling reasons to withhold information protected by the

privilege. The harm from compelled dissemination of confidential attorney-client communications

is irremediable, and the consequences are visited on both the governmental body and the taxpayers

118 In re Lindsey, 148 F.3d 1100, 1112 (D.C. Cir. 1998) (“W e may assume that if the government attorney-client privilege does not apply in certain contexts this may chill some communications between government officials and government lawyers.”).

119 In re City of Georgetown, 53 S.W .3d 328, 333 (Tex. 2001) (orig. proceeding).

31 it represents. Mandating disclosure would further undermine the attorney-client privilege’s

fundamental purpose by impairing frank discourse between a governmental body and its counsel.120

In contrast, allowing a governmental body to withhold attorney-client communications after

an untimely request for an attorney general decision bears less onerous consequences that may be

ameliorated by several statutory incentives and disincentives.121 Stated summarily, even when a

compelling reason exists to withhold disclosure, the PIA incentivizes governmental bodies to request

an attorney general decision (1) to ensure the attorney-client privilege covers all the information the

governmental body desires to withhold, (2) to assert additional exceptions for withholding

information for which no “compelling reason to withhold information” exists, (3) to avoid a costly

120 See Upjohn Co. v. U.S., 449 U.S. 383, 389 (1981) (“[The attorney-client] privilege ‘is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure.’” (quoting Hunt v. Blackburn, 128 U.S. 464, 470 (1888))); In re Lindsey, 158 F.3d 1263, 1276 (D.C. Cir. 1998) (“W e may assume that if the government attorney-client privilege does not apply in certain contexts this may chill some communications between government officials and government lawyers.”); Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 863 (D.C. Cir. 1980) (when “the Government is dealing with its attorneys as would any private party seeking advice to protect personal interests,” it “needs the same assurance of confidentiality so it will not be deterred from full and frank communications with its counselors”); Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977) (“The policy objective of [the attorney-client] privilege is certainly consistent with the policy objective of [an exemption] intended to protect the quality of agency decision-making by preventing the disclosure requirement of the [Freedom of Information Act] from cutting off the flow of information to agency decision-makers. Certainly this covers professional advice on legal questions which bears on those decisions. The opinion of even the finest attorney, however, is no better than the information which his client provides. In order to ensure that a client receives the best possible legal advice, based on a full and frank discussion with his attorney, the attorney-client privilege assures him that confidential communications to his attorney will not be disclosed without his consent.”).

121 E.g., T EX . G O V ’T C O D E §§ 552.321 (requestor or attorney general suit for writ of mandamus), .3215 (action for declaratory or injunctive relief against a governmental body for violating the PIA), .323 (fee-shifting provisions favoring substantially prevailing plaintiffs).

32 civil-enforcement action, and (4) to avoid assessment of litigation costs and reasonable attorney fees

if the plaintiff substantially prevails in such an action.122

Although we must construe the PIA liberally in favor of granting requests for information,123

we hold that the significant interests supporting withholding confidential and privileged

attorney-client communications outweigh the competing interests supporting disclosure. We

therefore conclude a “compelling reason” to withhold confidential attorney-client communications

exists and, absent waiver, rebuts the presumption that the information protected by the privilege is

“subject to required public disclosure.”124

F. Response to the Dissent

Though quibbling here and there about the actual importance of the attorney-client privilege

in the public sector, the dissent’s analysis fundamentally depends on the fiat that exceptions and

compelling reasons are mutually exclusive under the statute.125 But no authority—statutory or

otherwise—supports the conclusion that compelling interests motivating a statutory exception are

categorically disqualified from constituting a “compelling reason” to withhold information from

122 See id. §§ 552.321, .3215, .323.

123 Id. § 552.001 (demanding liberal construction to implement the state’s policy of open government and to favor disclosing information about governmental affairs).

124 See id. § 552.302. In light of this holding, we need not address the City’s alternative argument that “substantial harm” to its bargaining position constitutes a “compelling reason” for withholding the requested information.

125 Post at 36-37 (B O Y D , J., dissenting) (“Because the Act requires both that an exception apply and that a compelling reason exist, neither the Act’s exceptions nor the privileges and confidentiality that trigger an exception are sufficient alone to establish a compelling reason.”); id. at 30 (“[N]either an exception nor the interests it supports can independently qualify as a compelling reason that outweighs the public’s interest in prompt access to public information under the Act.”). But see id. at 33 n.20 (agreeing the Court could consider the “‘policy of preventing bioterrorism’” that underlies section 552.152’s exception from public disclosure “when deciding whether a compelling reason exists”).

33 public disclosure. The dissent’s proclamation pays lip service to our fundamental obligation to

construe statutes as written, but is textually unsupportable and, frankly, preposterous.

First, the Legislature has placed no restrictions on the compelling-reason standard. Indeed,

as the dissent readily acknowledges, the “actual language” in section 552.302 applies to “any

‘compelling reason.’”126 Second, the statute betrays no Legislative intent to ignore policies embodied

in and interests protected by statutory exceptions in determining whether a “compelling reason to

withhold the information” exists. Not a single word in the PIA supports a construction of section

552.302 as rendering irrelevant, for example, the policy of preventing bioterrorism that underlies

section 552.151 or the interest in avoiding a “substantial threat of physical harm” to an employee or

officer as advanced by section 552.152.127 In this case, our responsibility to determine whether a

compelling reason exists requires that we consider the interests protected by the attorney-client

privilege—interests the dissent ignores entirely—and not disregard them out of hand merely because

they were important enough for the Legislature to protect in the first instance.128

This is not, as the dissent says, “a distinction without a difference”129 because not all of the

policies and interests animating a statutory exception will necessarily be compelling in their own

126 Id. at 33-34.

127 See T EX . G O V ’T C O D E §§ 552.151, .152.

128 The dissent’s claim to “acknowledge the privilege’s importance” falls flat because the analysis does not recognize or evaluate the interests underlying the privilege in declaring those interests are necessarily overcome by delay and necessarily overpowered by the public’s interest in promptness. Post at 3 n.1, 30 (B O Y D , J., dissenting). The dissent, instead, relies on the circular argument that the Legislature excepted privileged information from disclosure to protect important interests, but those interests cannot be “compelling reason[s] to withhold information from disclosure” because the Legislature excepted privileged information from disclosure to the public. See id. at 16-17.

129 Id. at 16.

34 right—in whole or part.130 We cannot, however, ignore those that are. The statutory support for this

construction of the statute is, quite simply, the compelling-reason standard articulated in section

552.302.131

The dissent’s theory to the contrary turns on an interpretation of section 552.302 that requires

privilege plus other compelling circumstances. Aside from engrafting restrictions that do not exist

in the statutory language, the dissent offers few parameters as to what would qualify. We are left

only with the dissent’s view that a compelling reason (1) will usually address the governmental

body’s “reasons for its failure to timely and properly assert the privilege,”132 and (2) “might exist if

the governmental body establishes that substantial harm would result if the information is

released.”133

In summarily concluding that the interests protected by the attorney-client privilege are not

significant enough to rebut the public-disclosure presumption, the dissent gives short shrift to the

compelling interests underlying the attorney-client privilege, cites no authority supporting compelled

disclosure of attorney-client privileged information due to tardiness or inaction, and overlooks the

130 See, e.g., T EX . G O V ’T C O D E §§ 552.106(a) (excepting from mandatory disclosure “a draft or working paper involved in the preparation of proposed legislation”), .122 (excepting from mandatory disclosure a test item developed by an educational agency funded by state revenue, a licensing agency, or a governmental body).

131 Post at 13 (complaining that “the Court can provide no statutory basis for deciding when the interests that an exception protects are categorically compelling and when they are not”).

132 Id. at 30. The dissent intimates that an untimely request for an attorney general decision equates to “failure to timely and properly assert the [attorney-client] privilege.” Id. W hile it is true that, in this case, the City did not timely and properly assert a statutory exception to disclosure, the City has jealously guarded its attorney-client privilege, asserting it as a “compelling reason to withhold the information” from disclosure. There is no statutory deadline for asserting the attorney-client privilege or for claiming a “compelling reason to withhold the information.”

133 Id. at 31.

35 public interest in maintaining confidentiality of attorney-client communications. As a substitute for

these inquiries, the dissent’s analysis elevates promptness to near conclusive importance. The PIA

does not, however, require a compelling reason for “untimeliness” or “lack of diligence”; it requires

a “compelling reason to withhold the information” from public disclosure. The significant interests

advanced and protected by the attorney-client privilege meet that standard.

The dissent’s analytical gaps are not overcome by the host of boilerplate open-records

decisions the dissent offers to “prove[]” that routinely depriving the attorney-client privilege of force

over the last twenty-two years has not prevented governmental bodies from seeking legal advice or

chilled full and frank legal communications.134 No matter how many open-records decisions have

applied the Attorney General’s unduly restrictive interpretation of section 552.302—the underlying

rationale of which the dissent correctly repudiates135—proof that a rule has been applied is no proof

of the rule’s impact. The reality is we do not know how twenty-two years of routinely adverse legal

rulings have shaped internal discourse; whether ethical and legal violations have occurred that may

have been prevented under a proper construction of the PIA; or how the public fisc has been affected.

We do know, however, that the attorney-client privilege exists because the systemic harm from

denying it is real even if it is not quantifiable.136 We also know that the privilege’s purpose is well

134 Id. at 3, 26-29.

135 Id. at 14 & n.11.

136 See supra, nn.88-92.

36 established and enduring, and that it applies with “special force” to the government because it

advances the public’s best interests.137

Ipse dixit, however, is not proof of anything—one way or the other—and is no substitute for

500 years of precedent.138 If it were, the same open-records decisions the dissent relies on would

“prove[]” and debunk the dissent’s own “parade of horribles” by demonstrating that even under the

Attorney General’s restrictive construction of the statutory standard, governmental bodies continued

to engage the PIA’s oversight process after missing the statutory deadline.139

As a final rejoinder, we address the dissent’s refrain that we are substituting our judgment,

our preferences, and our rules for the Legislature’s. When we endeavor to ascertain the meaning of

an undefined statutory term that is integral to a statutory inquiry, we are not overstepping the bounds

of our authority merely because our colleagues disagree with our analysis or conclusions. “[T]o

admit that disagreements do and will always exist over hard and fine questions of law doesn’t mean

those disagreements are the products of personal will or politics rather than the products of diligent

and honest efforts by all involved to make sense of the legal materials at hand.”140 But if that

criticism were fairly lodged in any direction, it would be toward those who, in the guise of

137 See supra, nn.81-88, 116.

138 8 J O H N H. W IG M O RE , E VID EN CE § 2290 (McNaughton rev. 1961) (“The history of [the attorney-client] privilege goes back to the reign of Elizabeth I, where the privilege already appears as unquestioned.” (citing Berd v. Lovelace, Cary 88, 21 Eng. Rep. 33 (Ch. 1577))).

139 See, e.g., post at 2-3 (B O Y D , J., dissenting) (“Under the Court’s holding, establishing the exception will always constitute a compelling reason . . . . obliterat[ing] the sole method by which the Act compels the government to timely and properly assert the attorney-client privilege.”).

140 Hon. Neil M. Gorsuch, Law’s Irony, 37 H ARV . J. L. & P U B . P O L ’Y 743, 752-53 (2014).

37 interpreting a statute, invent a standard that imposes limitations that are more restrictive than the

plain language allows while simultaneously denouncing a party’s construction of the statute on the

very same basis.141 By substituting inflammatory rhetoric for analysis, the dissent confirms the adage

that, when neither the law nor the facts are in your favor, pound the table.

IV. Conclusion

The PIA promotes and advances the public’s interest in governmental transparency and

openness, but not at the expense of the public’s equally significant interest in ensuring public

officials pursue and obtain legal advice and representation in affairs of governance. The significance

of the interests protected by the attorney-client privilege and the need to protect attorney-client

confidences from compelled public disclosure were not lost on the Legislature in enacting the PIA.

The PIA addresses the competing values of transparency and the need for confidentiality by

excepting confidential attorney-client communications from mandatory public disclosure. In doing

so, the PIA recognizes the importance of the attorney-client privilege and affirms that the public

interest is best served when those sworn to protect it are guided by fully informed legal advice in

conducting public affairs.

Though the PIA must be construed liberally in favor of granting a request for public

information, the “compelling reason” inquiry requires us to weigh the public’s interest in expeditious

assertion of a statutory exception against the invaluable right to have attorney-client communications

protected from compelled public disclosure. Meeting statutory deadlines is certainly important, but

141 Post at 1-3, 6-8.

38 as the PIA plainly articulates, is not determinative. Weighing against the need for prompt action is

the irremediable consequence of compelling disclosure; once privileged information is disclosed,

confidentiality is lost for all times and all purposes. When the interests are balanced, the compelling

nature of the attorney-client privilege is manifest. Because there is a compelling reason to withhold

information covered by the attorney-client privilege, we affirm the lower-court judgments holding

the City of Dallas need not disclose that information to the requestors.

___________________________ Eva M. Guzman Justice

OPINION DELIVERED: February 3, 2017