Texas Department of Criminal Justice v. Maurie Levin, Naomi Terr, and Hilary Sheard

Opinion

ACCEPTED

03-15-00044-CV

5603446

THIRD COURT OF APPEALS

AUSTIN, TEXAS

6/9/2015 2:15:01 PM

JEFFREY D. KYLE

CLERK

No. 03-15-00044-CV

FILED IN

In the Court of Appeals 3rd COURT OF APPEALS AUSTIN, TEXAS

for the Third Judicial District 6/10/2015 11:09:01 AM

JEFFREY D. KYLE

Austin, Texas Clerk

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellant,

v.

MAURIE LEVIN, NAOMI TERR, AND HILARY SHEARD, Appellees.

On Appeal from the

201st Judicial District Court of Travis County, Texas

APPELLANT’S BRIEF

KEN PAXTON Scott A. Keller Attorney General of Texas Solicitor General

CHARLES E. ROY RICHARD B. FARRER First Assistant Attorney Assistant Solicitor General General State Bar No. 24055470

OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1823 Fax: (512) 474-2697 richard.farrer@texasattorneygeneral.gov COUNSEL FOR APPELLANT

ORAL ARGUMENT REQUESTED

IDENTITY OF PARTIES AND COUNSEL

Appellant: The Texas Department of Criminal Justice

Lead Appellate Counsel Richard B. Farrer Assistant Solicitor General State Bar No. 24055470 OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1823 Fax: (512) 474-2697 richard.farrer@texasattorneygeneral.gov

Additional Appellate and Trial Counsel Adam W. Aston Joseph D. Hughes Nichole Bunker-Henderson David Alan Harris OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548

Appellees: Maurie Levin, Naomi Terr, and Hilary Sheard

Counsel for Appellees Philip Durst State Bar No. 06287850 pdurst@ddollaw .com Manuel Quinto-Pozos State Bar No. 24070459 mqp@ddollaw.com DEATS, DURST, OWEN & LEVY P.L.L.C. 1204 San Antonio, Suite 203 Austin, Texas 78701 Telephone: (512) 474-6200

i

Facsimile: (512) 474-7896

Maurie Levin State Bar No. 00789452 MAURIE LEVIN, ATTORNEY AT LAW 211 South Street, #346 Philadelphia, PA 19147 (512) 294-1540 (215) 733-9225 (fax) maurielevin@gmail.com

ii

TABLE OF CONTENTS

Identity Of Parties And Counsel................................................................ i

Index Of Authorities................................................................................ vii

Statement Of The Case ............................................................................. x

Statement Regarding Oral Argument ..................................................... xi

Issues Presented...................................................................................... xii

Introduction ............................................................................................... 1

Statement Of Facts ................................................................................... 3

A. Disclosure Of The Woodlands Compounding Pharmacy’s Identity In 2013 Creates A Firestorm .................................... 3

B. A Pharmacy In Tulsa Receives A Disturbing Email From An Individual Named Nick Humez............................... 5

C. TDCJ Requests A DPS Threat Assessment ........................... 7

D. Plaintiffs Submit A PIA Request And Later Challenge An OAG Letter Ruling Finding The Identity Of The Pharmacy Supplying Texas’s Pentobarbital Should Not Be Disclosed. ......................................................................... 12

E. Plaintiffs Sue To Compel Disclosure And Obtain A TRO, Which The Texas Supreme Court Stays. .............................. 14

F. TDCJ Obtains A Further Expert Opinion And Plaintiffs Obtain An Expert Opinion Of Their Own. ........................... 15

G. The Legislature Removes Any Doubt That The Identity Of Texas’s Supplier Of Execution Drugs Is Not An Appropriate Subject For PIA Requests. ............................... 18

Summary Of Argument ........................................................................... 18

iii

Standard Of Review ................................................................................ 21

Argument ................................................................................................. 23

I. Texas Department Of Public Safety v. Cox Defines The Contours Of The Physical-Safety Exception To Mandatory Disclosure Under the PIA. ............................................................. 23

A. Cox Provides That The Physical-Safety Exception Can Be Established Through Detailed Evidence Or Expert Testimony. ............................................................................. 24

B. Threat Assessments From Law-Enforcement Agencies Receive Deference. ................................................................ 25

C. Cox Shows How The Physical-Safety Exception Ought To Apply. ............................................................................... 27

1. Cox Shows Courts Should Ordinarily Not Second-

Guess Law-Enforcement Threat Assessments. ........... 28

2. Cox Shows Information Should Be Withheld If It Is Connected To The Threated Harm. ......................... 29

3. Cox Also Shows The Limits Of The Exception. ........... 30

II. The Court Should Reverse And Render Judgment Because The Physical-Safety Exception Is Satisfied As A Matter Of Law. ................................................................................................ 31

A. The Requested Disclosure Would Substantially Threaten Physical Harm. ...................................................... 31

1. The Humez Email Is Detailed Evidence Of A Substantial Threat Of Harm That Is Connected To The Requested Information. ........................................ 32

2. The “Firestorm” Surrounding The Woodlands Pharmacy Is Detailed Evidence Of A Substantial

iv

Threat Of Harm That Is Connected To The Requested Information. ............................................... 34

3. The Exploding-Head Blog Posting Is Detailed Evidence Of A Substantial Threat Of Harm That Is Connected To The Requested Information. ............. 35

4. Law Enforcement’s Reaction To The Woodlands Pharmacy “Firestorm” Is Detailed Evidence Of A Substantial Threat Of Harm That Is Connected To The Requested Information. ........................................ 35

5. Brad Livingston’s Testimony Is Detailed Evidence Of A Substantial Threat Of Harm That Is Connected To The Requested Information. ................. 36

6. McCraw’s Threat Assessment Is Detailed Evidence Of A Substantial Threat Of Harm That Is Connected To The Requested Information And Is Entitled To Deference. ............................................. 38

B. The Assessments Provided By TDCJ’s Experts Independently Establish The Exception As A Matter Of Law. ....................................................................................... 42

1. McCraw’s Opinion Demonstrates A Substantial Threat Of Physical Harm............................................. 43

2. Cunningham’s Opinion Demonstrates A Substantial Threat Of Physical Harm......................... 44

C. Plaintiffs’ Arguments Below Misunderstood The Governing Standards. ........................................................... 47

1. Plaintiffs’ Arguments Below Assumed An Incorrect Legal Standard. ............................................ 48

2. Plaintiffs’ Efforts To Create A Battle Of Experts On An Issue With Immediate Public-Safety Implications Is Misguided............................................ 50

v

D. Plaintiffs’ Expert’s Testimony Should Not Have Been Considered And, In Any Event, Could Not Undermine TDCJ’s Experts’ Testimony. ................................................. 51

1. Parker Is Not Qualified................................................ 52

2. Parker’s Opinion Does Not Have A Sufficient Basis And Is Unreliable. ........................................................ 53

III. In The Alternative And At The Very Least, The Court Should Remand Because Plaintiffs Cannot Show Entitlement To Judgment As A Matter Of Law. ..................................................... 57

Prayer ...................................................................................................... 58

Certificate of Service ............................................................................... 60

Certificate of Compliance ........................................................................ 61

vi

INDEX OF AUTHORITIES

Cases

Al’s Formal Wear of Houston, Inc. v. Sun, 869 S.W.2d 442 (Tex. App.—Houston [1st Dist.] 1993, writ denied)...................................................................... 22-23

Anderson v. Snider, 808 S.W.2d 54 (Tex. 1991) (per curiam) .................................. 17, 44

Broders v. Heise, 924 S.W.2d 148 (Tex. 1996)............................................................ 52

Calhoun v. Killian, 888 S.W.2d 51 (Tex. App.—Tyler 1994, writ denied) .................... 22

City of Fort Worth v. Cornyn, 86 S.W.3d 320 (Tex. App.—Austin 2002, no pet.) ................... 22, 31

City of Garland v. Dallas Morning News, 22 S.W.3d 351 (Tex. 2000)........................................................ 22, 31

E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995)...................................................... 52, 54

Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997)............................................................ 53

Office of Pub. Util. Counsel v. Texas-New Mexico Power Co., 344 S.W.3d 446 (Tex. App.—Austin 2011, pet. denied)................. 26

Sells v. Livingston, 561 F. App’x 342 (5th Cir. 2014) (per curiam) ........................... 2, 15

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

Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184 (Tex. 2007)...................................................... 21, 22

vii

Thomas v. Cornyn, 71 S.W.3d 473 (Tex. App.—Austin 2002, no pet.) ......................... 22

Transcon. Ins. Co. v. Crump, 330 S.W.3d 211 (Tex. 2010)............................................................ 52

Whirlpool Corp. v. Camacho, 298 S.W.3d 631 (Tex. 2009)............................................................ 54

Statutes

TEX. GOV’T CODE §552.021....................................................................... 23

TEX. GOV’T CODE §552.022............................................................ xi, 23, 24

TEX. GOV’T CODE §552.101.................................................................. xi, 23

TEX. GOV’T CODE §552.152....................................................................... 23

TEX. GOV’T CODE §552.301....................................................................... 13

TEX. GOV’T CODE §552.301(b) .................................................................. 25

TEX. GOV’T CODE §552.301(e) .................................................................. 26

TEX. GOV’T CODE §552.1081..................................................................... 18

Rules

Tex. R. Civ. P. 166a(c) ................................................................. 17, 44, 57

Tex. R. Evid. 401-03 ................................................................................ 51

Tex. R. Evid. 702 ......................................................................... 51, 52, 53

Tex. R. Evid. 703 ..................................................................................... 53

Other Authorities

7 WILLIAM DORSANEO III, TEXAS LITIGATION GUIDE §101.07[3][a] (2014) ........................................................................ 57

viii

Act of May 20, 2015, 84th Leg., R.S., S.B. 1697 ..................................... 18

ALEX WILSON ALBRIGHT, TEXAS COURTS A SURVEY 461 (Imprimatur Press) (2010-2011) .................................................... 57

Crime in the United States 2012, at http://www.fbi.gov/about-us/cjis/ucr/crime-in-theu .s/2012/crime-in-the-u.s.-2012/violent-crime/ violent- crime (last visited June 4, 2015) .................................................... 45

Tex. Att’y Gen. OR2014-09184 (2014) ................................................ x, 13

ix

STATEMENT OF THE CASE

Nature of the Case: This is an appeal from a final order on cross-motions for summary judgment involving a challenge, under the Texas Public Information Act (PIA), to a Texas Attorney General Open Records ruling. See Tex. Att’y Gen. OR2014-09184 (2014). Plaintiffs seek disclosure of information pertaining to the identity of the pharmacy that supplied compounded pentobarbital for use in Texas’s execution protocol. See CR.5-68, 388-447, 730. In response to the information request, the Texas Department of Criminal Justice (TDCJ) invoked the physical-safety exception to disclosure. See Tex. Dep’t of Pub. Safety v. Cox Tex. Newspapers L.P., 343 S.W.3d 112 (Tex. 2011).

Course of Proceedings: The parties filed cross-motions for summary judgment. See CR.520-729 (TDCJ); CR.730-1907 (Plaintiffs).

Trial Court: The Honorable Darlene Byrne, 201st District Court, Travis County, Texas.

Trial Court Disposition: The court granted Plaintiffs’ motion and denied TDCJ’s motion. CR.2297. It severed the remaining issues on attorney’s fees and costs, thereby making its merits determination final and appealable. CR.2305-06.

x

STATEMENT REGARDING ORAL ARGUMENT

The State requests oral argument. This appeal appears to present

the first opportunity for a Texas appellate court to substantively address

the physical-safety exception to mandatory disclosure of public

information since the Texas Supreme Court first recognized the exception

in Texas Department of Public Safety v. Cox, 343 S.W.3d 112 (Tex. 2011).

The exception embodies the balance between the right to physical safety

and the public’s interest in accessing public information, and the Court’s

decision will likely impact potentially dangerous and sensitive situations

beyond the current dispute about access to information on the

compounding pharmacy supplying Texas’s execution drugs.

The district court’s ruling implicitly credits Plaintiffs’ arguments

that misunderstand Cox and incorrectly frame the legal standard

governing the physical-safety exception. Those arguments dilute the

exception, unacceptably raise the evidentiary bar for satisfying it, and, if

given credence by this Court, threaten an unacceptable risk of physical

harm to the public resulting from the disclosure of sensitive information,

in both this case and future cases.

xi

ISSUES PRESENTED

1. Whether the district court erred in denying TDCJ’s motion for summary judgment and granting Plaintiffs’ cross-motion for summary judgment because TDCJ demonstrated that the requested information is subject to the physical-safety exception to public disclosure as a matter of law.

2. Whether, in the alternative, Plaintiffs at most raised a genuine issue of material fact with respect to the physical- safety exception such that a trial on the merits is required.

xii

INTRODUCTION

This appeal involves the physical-safety exception to the PIA’s

general requirement that public information be disclosed to requestors.

No appellate court has yet substantively reviewed a district court ruling

applying or rejecting the exception since the Supreme Court announced

it in Cox. This Court’s decision, therefore, will set the stage for the

exception’s application across a wide range of potential scenarios

involving public-safety concerns.

There is, however, a danger that this appeal could become

sidetracked due to the initial basis for Plaintiffs’ request for disclosure.

Plaintiffs initially invoked prohibitions on cruel and unusual punishment

when they requested disclosure of a wide range of information on Texas

executions, including Texas’s execution protocol, test results on the drug

used, and information identifying Texas’s provider of the drug. Texas

has disclosed all the requested information except the identity of the drug

provider. In related federal litigation, the Fifth Circuit found that the

federal constitutional right to be free from cruel and unusual punishment

is not implicated by a request for information identifying a State’s

2

provider of execution drugs in situations like the one presented here. See

Sells v. Livingston, 561 F. App’x 342 (5th Cir. 2014) (per curiam).

Nonetheless, the narrow issue in dispute—the applicability of the

physical-safety exception to a request for disclosure of public

information—remains an important one. The exception balances the

public’s important statutory right of access to public information with

extremely serious public-safety concerns. The balance is a delicate one,

and in announcing the exception Cox wisely placed a thumb on the public-

safety side of the scale. Accordingly, Cox requires deference to law-

enforcement assessments of the “probability of harm.” The touchstone of

the analysis under the exception, Cox advised, is a connection between

the threatened harm and the specific information requested.

The circumstances of this case satisfy all that Cox requires to

enforce the exception, and much more. Here, there is specific evidence of

a highly charged, potentially dangerous atmosphere surrounding the

requested information. TDCJ offered two expert assessments of an

unacceptably high “probability of harm,” as Cox describes it, should the

identity of the execution-drug supplier be disclosed. One of those

assessments comes from the Director of the Texas Department of Public

3

Safety, the other from a law-enforcement expert. And there is ample

evidence connecting the disclosure of the identity of the execution-drug

supplier with the threatened harm. Plaintiffs, for their part, offered an

expert opinion that challenges only the severity of the “probability of

harm,” and declines to address the connection between the requested

information and the potential harm identified by TDCJ’s experts. In

these circumstances, the district court should have deferred to TDCJ’s

experts’ assessments of an unacceptably high probability of harm, noted

the conclusive evidence of a direct connection between the threatened

harm and the information requested, and held that the physical-safety

exception is satisfied as a matter of law.

The Court should reverse the district court and clarify the

standards for the physical-safety exception as well as their application.

STATEMENT OF FACTS

A. Disclosure Of The Woodlands Compounding Pharmacy’s Identity In 2013 Creates A Firestorm.

In the fall of 2013, the public learned that the Woodlands

Compounding Pharmacy was supplying Texas with pentobarbital for use

in executions. In the immediate wake of that public disclosure, the

pharmacy and its pharmacist received a significant amount of hate mail.

4

E.g., CR.581-88 (examples of emails); CR.558 (Affidavit of Brad

Livingston noting, “TDCJ and selling pharmacies have long been

concerned about the safety of the pharmacists providing the drugs used

in executions, based on hate mail and threats to the pharmacists”);

CR.778 (news article quoting a letter from the pharmacist referencing

“hate mail and messages” received following the disclosure of the

pharmacy’s identity). The pharmacist characterized the situation

resulting from the disclosure as a “firestorm.” CR.1859 (“Now that the

information has been made public, I find myself in the middle of a

firestorm.”).

An October 6, 2013 blog posting contributed to the “firestorm.”

CR.578-79. It includes a depiction of a man with an exploding head, over

which a heading reads, “The Pharmacist who approves the business of

killing, but only under the veil of secrecy.” CR.578. “Meet the

pharmacist,” the posting continues, “who sold the medical ethics [sic] and

shamed his profession for $2,800, Mr. Jasper Lovoi, RPh.” Id.

(emphasis in original).

The “firestorm” surrounding the release of the identity of the

Woodlands Compounding Pharmacy was a significant event for both law

5

enforcement and the pharmacy itself. The TDCJ Office of the Inspector

General and the Montgomery County Sheriff’s Office sent officers to

observe and provide security at an October 9, 2013 protest of the

pharmacy. CR.564; CR.729. And the pharmacy sent a letter to the TDCJ

“demand[ing] that TDCJ immediately return the vials of compounded

pentobarbital” already provided by the pharmacy. CR.1858-59.

B. A Pharmacy In Tulsa Receives A Disturbing Email From An Individual Named Nick Humez.

Shortly thereafter, the environment surrounding compounding

pharmacies supplying execution drugs took a further turn for the worse.

On January 29, 2014, an individual named Nick Humez sent an email to

the Apothecary Shop in Tulsa, Oklahoma, upon learning that the

pharmacy was a possible supplier of Missouri’s execution drugs. CR.590.

The email queries whether providing execution drugs is “prudent” and

recommends “were I you [the pharmacy] I’d at least want to beef up my

security now that you’ve been put in the spotlight.” Id. “As the folks at

the [Murrah] federal building can tell you,” the email explains, “it only

takes one fanatic with a truckload of fertilizer to make a real dent in

business as usual.” Id. “In your place,” the email continues, “I’d either

swear to the nation that my company didn’t make execution drugs of ANY

6

sort, and then make dang sure that’s true, or else openly accept the

burden of putting my employees and myself at unacceptable (and possibly

uninsurable) risk.” Id.

Needless to say, the email got the authorities’ attention. Federal

agents questioned Humez about it and his underlying intentions in

connection to the Apothecary Shop. See CR.593-95.

Humez later discussed the reasoning motivating his email. He

explained—to Plaintiff Levin, no less—that in drafting and sending the

email he was attempting to impress upon the Apothecary Shop what he

considered a very obvious danger of physical harm that the pharmacy

employees, and others, face after the pharmacy was identified as a

possible supplier of execution drugs:

I wanted to make clear that now that it was generally known that the Apothecary Shoppe [sic] was in fact supplying such toxins, even if they did not see it as simply wrong, they needed to be aware that many others did, and that some of them might be dangerous to them, their employees, and the surrounding bystanders if even one fanatic . . . with a rudimentary knowledge of improvised explosives chose to go on the attack. I felt, and thought I had made it clear, that they would be reckless not to consider this possibility and to take appropriate action at the very least to protect against it, as I would surely do were I in their place.

7

CR.593 (emphases added). Humez further clarified to Plaintiff Levin

that his “intention . . . [was] to warn some apparently ignorant people of

the heightened risk they were taking on now that the nature of their

activities was known nationwide.” CR.593-94 (emphasis added). Finally,

and in case there was any doubt regarding his views, Humez also noted:

I do know that there are extremists in the right-to-life movement who would regard destroying a death drug factory as equally justified with blowing up an abortion clinic or . . . bombing the tracks that led to Auschwitz.

CR.595 (emphasis added).

C. TDCJ Requests A DPS Threat Assessment.

TDCJ learned about Humez’s email to the Apothecary Shop in

February 2014. See CR.699-700, 704. At the time, TDCJ was in the

process of finding a new provider for pentobarbital to use in Texas

executions. See CR.699-700, 704. Given the “firestorm” surrounding the

release of the Woodlands Compounding Pharmacy’s identity, and given

Humez’s recent email to the pharmacy in Oklahoma, TDCJ’s Executive

Director, Brad Livingston, grew concerned about public safety in

connection with the possible future disclosure of the identity of the

eventual new supplier of Texas’s execution drugs. See CR.639-40;

CR.701-06.

8

Livingston’s concerns were further heightened by the fact that the

director of Colorado’s Department of Corrections had been assassinated

the previous March, and that Livingston had personally received a

number of death threats both prior to and after that horrific event.

CR.704-05. In sum, Livingston felt that “the world I live in” and the

“security risks that are inherent in . . . the criminal justice world [ ] had

escalated in general and specifically over the last number of months.”

CR.704.

Anticipating the inevitable PIA requests for information about

Texas’s eventual new execution-drug provider, and consistent with his

appraisal that the criminal-justice environment contained “security

risks . . . that had escalated in” recent times, id., Livingston requested a

threat assessment from the Director of the Texas Department of Public

Safety (DPS), Col. Steven McCraw. See CR.639-40; CR.701-06.

Livingston knew that an assessment would be needed quickly, given that

PIA requests would likely be submitted as soon as TDCJ obtained the

pentobarbital. CR.639-40; CR.701-06.

McCraw provided the requested threat assessment on March 7,

2014. His assessment concluded, in no uncertain terms, that revealing

9

the identity of the compounding pharmacy posed a substantial risk of

physical harm:

Pharmacies by design are easily accessible to the public and present a soft target [for] violent attacks. It is our assessment that publicly linking a pharmacy or other drug supplier to the production of controlled substances to be used in executions presents a substantial threat of physical harm to the pharmacy, other drug supplier and its personnel and should be avoided to the greatest extent possible.

CR.556.

McCraw has a wealth of expertise and experience in providing

threat assessments. He began his law-enforcement career in 1977 and

served for 21 years in the Federal Bureau of Investigation. CR.630. To

this day, McCraw has retained a high level security clearance issued by

the federal government, and he routinely receives classified and

unclassified material and briefings on current and future criminal and

terrorism threats. CR.631. Further, McCraw serves as a member of the

International Association of Chiefs of Police Committee on Terrorism and

the Department of Justice Bureau of Justice Assistance Law

Enforcement Forecasting Group, and he benefits from access to threat

information and national experts who serve on those committees. Id.

10

DPS, where McCraw serves as Director, routinely conducts threat

assessments on people and places, and it produces state-wide public

safety and homeland-security threat assessments in several areas. Id.

DPS threat assessments cover a variety of public-safety issues, including

terrorism, security, and other types of threats. CR.634.

Immediately prior to joining DPS, McCraw served as Director of

Homeland Security in Texas, where he established a state-wide,

multidisciplinary process to assess homeland-security and public-safety

threats and vulnerabilities on terrorism, crime, pandemic, disease,

natural disasters and industrial accidents. CR.631.

McCraw had high-level experience with law enforcement and

threat assessments while serving with the FBI, in addition to his relevant

experience while with Homeland Security in Texas and DPS. For

example, at the time he retired from the FBI, McCraw was the Assistant

Director of the Inspection Division within the FBI and reported directly

to the FBI Director. Id. Earlier in his FBI career, McCraw established

an organizational threat process and oversaw threat assessments of

major drug-trafficking organizations. CR.632.

11

McCraw’s FBI career also included a stint as the first Unit Chief of

the Latin America and Caribbean Organized Crime/Drug Unit, where he

oversaw a combined DEA and FBI Threat Assessment Team. Id. He also

served in Arizona as the FBI’s first Assistant Special Agent in Charge of

the Tucson Resident Agency in the Phoenix Field Office, where his

responsibilities included overseeing developing a comprehensive threat

assessment for Southern Arizona. CR.633. In addition, he spent time as

Deputy Assistant Director in the Investigative Support Division, a

position in which he conducted threat assessments on the new FBI

Director and the new Attorney General. Id.

Following the September 11 terrorist attacks, McCraw was selected

by the President to serve as the Director of the Foreign Terrorism

Tracking Task Force where he reported directly to Deputy Attorney

General Larry Thompson at the Department of Justice and oversaw two

threat assessments requested by the U.S. Attorney General. Id.

Following another promotion within the FBI, McCraw served as

Assistant Director, a position in which he oversaw several threat

assessments across the full spectrum of FBI responsibilities. CR.634.

12

D. Plaintiffs Submit A PIA Request And Later Challenge An OAG Letter Ruling Finding The Identity Of The Pharmacy Supplying Texas’s Pentobarbital Should Not Be Disclosed.

Plaintiffs Maurie Levin, Hilary Sheard, and Naomi Terr serve as

counsel for capital defendants. On March 18, 2014, citing the need to

safeguard prisoners’ rights under the Eighth Amendment, Article I §13

of the Texas Constitution, and Article 43.24 of the Texas Code of Criminal

Procedure, Plaintiffs requested under the PIA the following information

relating to executions performed in Texas:

• “the execution protocol by which [Texas] intend[s] to carry out . . . scheduled execution[s],”

• “the drug or drugs, including back-up, [Texas] intend[s] to use,”

• “the source of those drugs,”

• “the date [the drugs were] ordered and received, and”

• “any testing conducted to ensure potency, purity, and integrity.”

CR.20-21; see CR.22.

Although TDCJ released some of the requested information, it

claimed that some of it may be withheld from disclosure under the PIA’s

provisions. On March 25, 2014, TDCJ requested an open records decision

from the Office of the Texas Attorney General on whether the requested

13

information may be withheld from disclosure under the physical-safety

and other disclosure exceptions. See TEX. GOV’T CODE §552.301. In

support of its request to withhold the information, TDCJ provided the

McCraw threat assessment and supporting documentation (including

emails to the Woodlands Compounding Pharmacy, the “exploding head”

blog posting, and the Humez email).

On May 29, 2014, the Office of the Attorney General issued a letter

ruling finding that information identifying the pharmacy (and

pharmacist) is subject to the physical-safety exception and, therefore,

should not be disclosed. See CR.550-54; Tex. Att’y Gen. OR2014-09184

(2014).

Ultimately, TDCJ released to the requestors all the requested

information, including test results, see, e.g., CR.408, except information

identifying the pharmacist and licensed compounding pharmacy that

most recently supplied pentobarbital to Texas for use in executions. See

CR.524. TDCJ also divulged that the unnamed pharmacy is a licensed

compounding pharmacy open to the public and located in an urban area

of a Texas city. CR.561.

14

E. Plaintiffs Sue To Compel Disclosure And Obtain A TRO, Which The Texas Supreme Court Stays.

Meanwhile, on March 26, 2014—the day after TDCJ requested an

open-records ruling—Plaintiffs filed suit in Travis County District Court

seeking, among other things, a TRO directing TDCJ to immediately

produce to Plaintiffs the information identifying the pharmacy. CR.5-68.

Plaintiffs also sought a temporary injunction and writ of mandamus

under TEX. GOV’T CODE §552.321 to compel disclosure of the information.

On March 27, 2014, the district court found that “if the disclosure

of this information is not ordered immediately, [Plaintiffs’ clients on

death row] will suffer irreparable injury because [their] constitutional

right to be free from cruel and unusual punishment cannot be protected

in the absence of the requested information.” CR.266. Accordingly, the

court granted a TRO requiring disclosure to Plaintiffs and their counsel,

and it ordered a hearing on the requested temporary injunction for April

10, 2014. CR.266-68.

TDCJ promptly filed a petition for writ of mandamus and a stay

motion in the Texas Supreme Court. The Court stayed the district court’s

TRO later that same day. CR.270. The Court ultimately denied TDCJ’s

mandamus petition as moot because the TRO expired while the stay was

15

in effect, and the temporary-injunction hearing was likewise cancelled by

the stay order. CR.305.

On April 2, two inmates represented by Plaintiffs sought and

obtained a preliminary injunction in federal district court, which stayed

the inmates’ executions and ordered discovery (under a protective order)

that would reveal the identity of the compounding pharmacy. The Fifth

Circuit promptly vacated the stays and disclosure orders for both

inmates, and in doing so rejected arguments that the right to be free from

cruel and unusual punishment requires disclosure of the identity of the

pharmacy providing the pentobarbital. See Sells, 561 F. App’x at 344-45.

F. TDCJ Obtains A Further Expert Opinion And Plaintiffs Obtain An Expert Opinion Of Their Own.

In connection with the underlying state court mandamus litigation

brought under TEX. GOV’T CODE §552.321, TDCJ retained the services of

a second law-enforcement expert, J. Lawrence Cunningham, to conduct

a comprehensive threat assessment. Like DPS Director McCraw,

Cunningham concluded that the disclosure of the pharmacy’s identity

would substantially threaten physical harm:

Based on the totality of my diverse threat assessment training and experience in the public and private sectors, my review of the documents listed above, and open source publications, I

16

conclude that there is a significant and substantial threat of physical harm to the pharmacy/compounding pharmacy and pharmacist, and others in the vicinity of the pharmacy/compounding pharmacy if the identity of the pharmacy/compounding pharmacy or pharmacist is publicly disclosed.

CR.625, 562-76.

As with Col. McCraw, Cunningham’s qualifications to serve as an

expert are extensive. See CR.605-28; see also CR.597-603 (Cunningham

curriculum vitae). Cunningham had a 20-year career as a secret service

agent, during which he supervised a major field office, conducted lead

security advances, and performed risk assessments for world leaders

attending major events. CR.600. More recently as a consultant, he has

evaluated, developed, and implemented integrated response plans,

security training programs, and security policies. Id.

Cunningham currently works as a consultant conducting risk

assessments and security training for clients including the Department

of Homeland Security, the Defense Threat Reduction Agency, a number

of foreign and domestic corporations, and even foreign governments. Id.

He also currently holds several Department of Homeland Security

teaching certifications and serves as an adjunct faculty member of the

National Domestic Preparedness Consortium, where he develops and

17

evaluates courses and seminars on preventing and countering terrorism

and other threats of violence. CR.600-01.

Prior to his current position, Cunningham served as an

International Security Expert for the U.S. State Department and as a

Security Supervisor in charge of dignitary security for the Stanford

University World Cup Soccer venue. CR.601.

Cunningham’s 20-year career in the Secret Service is striking. He

served in the Presidential Protective Division at the White House and

taught courses and revised curricula dealing with training all levels of

Secret Service personnel. CR.601-02. He earned seven Performance

Awards and the Albert Gallatin Award for 20 years of meritorious

government service. CR.602.

TDCJ also provided the opinion of Brad Livingston, which they

offered as the opinion of an interested expert under Texas Rule of Civil

Procedure 166a(c) and cases like Anderson v. Snider, 808 S.W.2d 54, 55

(Tex. 1991) (per curiam).

Plaintiffs submitted an expert opinion of their own, from Thomas

Parker. Parker did not offer his own threat assessment but instead only

discussed the opinions of TDCJ’s experts, ultimately concluding that no

18

threat assessment could be made under the circumstances. See CR.804-

05. Plaintiffs also submitted affidavits from Plaintiff Levin and Manuel

Quinto-Pozos, an attorney representing Plaintiffs in this matter.

The parties filed cross-motions for summary judgment. The district

court granted Plaintiffs’ motion and denied TDCJ’s motion. CR.2297.

G. The Legislature Removes Any Doubt That The Identity Of Texas’s Supplier Of Execution Drugs Is Not An Appropriate Subject For PIA Requests.

On May 28, 2015, Governor Abbott signed into law SB 1697, which

goes into effect September 1, 2015, and applies prospectively to PIA

requests made after that date (and so does not control this case). It

provides, in pertinent part, that “[i]nformation is excepted from the

requirements of Section 552.021” of the PIA “if it contains identifying

information . . . , including” information that identifies:

any person or entity that manufactures, transports, tests, procures, compounds, prescribes, dispenses, or provides a substance or supplies used in an execution.

Act of May 20, 2015, 84th Leg., R.S., S.B. 1697, §552.1081 (to be codified

at TEX. GOV’T CODE §552.1081).

SUMMARY OF ARGUMENT

Cox defines the contours of the physical-safety exception and points

the way to the correct disposition of this appeal. Cox provides that the

19

physical-safety exception can be established through detailed evidence or

expert testimony. Cox further provides that an assessment from DPS or

other law-enforcement agencies or experts on the probability of harm is

entitled to deference from the courts. The key to withholding information

under the exception is a connection between the requested information

and the harm about which law enforcement has expressed concern.

Where evidence or expert testimony shows such a connection, the

information should qualify for the exception. It is only where a

connection is lacking that a more robust evidentiary showing is required

to justify withholding the information.

Here, TDCJ demonstrated its entitlement to judgment, through

detailed evidence and expert testimony establishing the exception as a

matter of law. The detailed evidence that shows a substantial threat of

harm that is connected to the release of the requested information

includes: (1) the email from Nick Humez referencing the bombing of the

Murrah federal building in Oklahoma and noting the existence of

extremists willing to commit violent acts in connection with their

opposition to the death penalty; (2) the “firestorm” of hate mail and vitriol

surrounding the disclosure of the Woodlands Pharmacy as a supplier of

20

execution drugs; (3) the exploding-head blog identifying the Woodlands

Compounding Pharmacy’s pharmacist as a supplier of execution drugs

and superimposing that information with a depiction of a man’s head

exploding; (4) the reasonable decision by law enforcement to monitor and

police a protest at the Woodlands Pharmacy; (5) Brad Livingston’s

testimony regarding his public-safety concerns in connection with the

possible disclosure of the identity of the Texas’s supplier of execution

drugs; and (6) DPS Director McCraw’s assessment that there is a

substantial likelihood of physical harm should the identity of the supplier

be disclosed.

The detailed evidence is independently confirmed by the expert

opinions of both McCraw and Cunningham, which are entitled to

receive—and should receive—deference.

Plaintiffs’ arguments below challenging McCraw and Cunningham

miss the mark. To start, Plaintiffs continually presented the district

court with improper formulations of the governing standard. Further,

Plaintiffs’ efforts to turn application of the exception into a “battle of the

experts” are misguided. Cox contemplates deference to DPS and other

law-enforcement agency threat assessments, not a war of experts in every

21

case, with the public’s safety hanging in the balance. Plaintiffs’ expert

Parker’s testimony, in any event, does nothing to undermine the detailed

evidence demonstrating TDCJ’s establishment of the exception as a

matter of law, or to undermine TDCJ’s expert’s opinions. Parker is not

qualified, and his opinions lack a sufficient basis and are unreliable.

The foregoing establishes TDCJ’s entitlement to judgment as a

matter of law, and the Court should reverse the district court and render

judgment for TDJC.

Finally, because Plaintiffs at most could only raise a genuine issue

of material fact regarding the physical-safety exception, the case (at

worst) should be remanded for trial on the merits.

STANDARD OF REVIEW

Although the denial of a summary judgment motion typically is not

reviewable, review is appropriate here because the district court ruled on

cross-motions for summary judgment, and because it severed its

summary-judgment order. Tex. Mun. Power Agency v. Pub. Util. Comm’n

of Tex., 253 S.W.3d 184, 192 (Tex. 2007). Because TDCJ raised an

exception to mandatory disclosure under the PIA as the basis for its

summary judgment request, TDCJ bore the burden in the district court

22

of demonstrating that the exception is satisfied. See, e.g., Thomas v.

Cornyn, 71 S.W.3d 473, 488 (Tex. App.—Austin 2002, no pet.) (“[W]e hold

that a governing body should bear the burden of proving in a judicial

proceeding that an exception to disclosure applies.”). Likewise, Plaintiffs

bore the burden to show their entitlement to judgment; cross-motions for

summary judgment require that “each party bears the burden of

establishing that it is entitled to judgment as a matter of law.” City of

Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000); City of

Fort Worth v. Cornyn, 86 S.W.3d 320, 322 (Tex. App.—Austin 2002, no

pet.).

This Court reviews the district court’s ruling on summary judgment

cross-motions de novo by examining the evidence, determining all issues

presented, and rendering the judgment the district court should have

rendered. Tex. Mun. Power Agency, 253 S.W.3d at 192. If neither party

has satisfied its burden to show it is entitled to judgment as a matter of

law, and disputed issues of fact therefore remain, a reviewing court

should remand the case for trial on the merits. E.g., Calhoun v. Killian,

888 S.W.2d 51, 54 (Tex. App.—Tyler 1994, writ denied); Al’s Formal Wear

23

of Houston, Inc. v. Sun, 869 S.W.2d 442, 444 (Tex. App.—Houston [1st

Dist.] 1993, writ denied).

ARGUMENT

I. TEXAS DEPARTMENT OF PUBLIC SAFETY V. COX DEFINES THE CONTOURS OF THE PHYSICAL-SAFETY EXCEPTION TO MANDATORY DISCLOSURE UNDER THE PIA.

Under the PIA, “public information is available to the public” upon

request, TEX. GOV’T CODE §552.021, “subject to certain exceptions.” Cox,

343 S.W.3d at 114. Some exceptions are specified in the PIA’s text;1

others arise from the common law or other law and are incorporated into

the PIA’s scheme by other PIA provisions. See, e.g., TEX. GOV’T CODE

§§552.101 & 552.022. “Th[e] 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.”2 Cox, 343 S.W.3d at

1 There is a statutory public-safety exception—not at issue here—that involves information “that relates to an employee or officer of [a] governmental body.” TEX. GOV’T CODE §552.152. 2 The PIA also involves another issue that features in, and often complicates, the PIA case law but that is not particularly relevant for present purposes. In 1999, amendments to the PIA excluded “certain categories of public information from the [PIA’s] exceptions” to disclosure. Id. Those categories of information—often referred to as core-public or super-public information—are listed in §552.022. Under the 1999 amendments, information falling into a §552.022 category was protected from disclosure only if it was “expressly confidential under other law.” Id. (internal quotation marks omitted). “‘Other law,’” for the 1999 amendment’s purposes,

24

114. One such exception is the physical-safety exception, which derives

from the common law, was announced in Cox, and is at issue here.

A. Cox Provides That The Physical-Safety Exception Can Be Established Through Detailed Evidence Or Expert Testimony.

Cox announced as a matter of first impression that information

requested for disclosure under the PIA may be withheld, under a

common-law physical-safety exception, if disclosure “would substantially

threaten physical harm.” 343 S.W.3d at 119.

Cox explains that the exception requires courts to “closely examine

each of the disputed documents” subject to a disclosure request; the

“dividing line between disclosure and restraint” as to each document is

“determined by proof.” Id. at 118-19. The requisite proof that disclosure

“include[d] other statutes [apart from the PIA], judicial decisions, and rules promulgated by the judiciary.” Id.

The core-public designation is tangential to the issues presented here because under Cox, §552.022’s “other law” includes the common law right to be free from physical harm. Id. at 118. Cox’s physical-safety exception to mandatory disclosure, in other words, applies to core-public information.

The Legislature later amended §552.022 for disclosure requests coming after September 1, 2011, to provide that information falling into a §552.022 category may be protected from disclosure if it is confidential “under this chapter or other law.” TEX. GOV’T CODE §552.022.

25

would substantially threaten physical harm may come through either

“detailed evidence or expert testimony.” Id. at 119 (emphasis added).

B. Threat Assessments From Law-Enforcement Agencies Receive Deference.

Cox recognizes the utility of a law-enforcement expert’s assessment

“about the probability of harm” surrounding a proposed release of

information. Id. If the assessment comes from “DPS officers” or “other

law enforcement experts,” “a certain amount of deference must be

afforded” to it. Id. (emphasis added). In Cox, for example, the Court

required deference to an assessment of risk from DPS even though DPS

was a party to the litigation. Id.

The PIA’s statutory scheme provides governmental bodies, like the

TDCJ in this case, only a short amount of time to determine whether the

requested information qualifies for an exception to disclosure. This

means that a law-enforcement assessment “about the probability of

harm” may in some cases be somewhat abbreviated. Indeed, a

governmental body subject to a PIA request by statute has only 10 days

either to produce requested information or seek a ruling from the Open

Records Division of the Office of the Attorney General on whether the

information may be withheld. See TEX. GOV’T CODE §552.301(b). If a

26

ruling is sought, the governmental body has only 15 days from the initial

information request to submit written comments to the Office of the

Attorney General stating why the information qualifies for exception

from disclosure. Id. §552.301(e).

This accelerated timeline and Cox’s required deference to a DPS or

law-enforcement-expert assessment means that assessments of public-

safety risk must be taken seriously and ordinarily should receive

deference from the courts, even when they are provided in relatively

short order. After all, law enforcement officials are the experts on public

safety issues, including ones that come to light quickly. It makes sense

that their assessments of public-safety threats should be respected,

absent a significant showing to the contrary. Cf. Office of Pub. Util.

Counsel v. Texas-New Mexico Power Co., 344 S.W.3d 446, 450 (Tex.

App.—Austin 2011, pet. denied) (agency determination in an area of

agency expertise is reviewed for substantial evidence, which requires

presumption that it is supported by substantial evidence and requires

complaining party to overcome that presumption).

Recognizing that deference is owed to law-enforcement

assessments “about the probability of harm” is not tantamount to

27

providing governmental bodies carte blanche to withhold every shred of

information possibly connected to a public-safety situation. Cox explains

that “vague assertions of risk” alone “will not carry the day” under the

exception. 343 S.W.3d at 119. Again, the touchstone is proof, which is to

say proof connecting specific requested information to the threatened

harm. See id.

C. Cox Shows How The Physical-Safety Exception Ought To Apply.

Cox demonstrates how the principles governing the physical-safety

exception ought to apply. Cox involved requests for disclosure from

newspapers seeking information in travel vouchers from the governor’s

security detail. Id. The DPS, which is responsible for the governor’s

protective detail, offered to release only aggregate expense information

derived from the vouchers but warned that releasing the vouchers

themselves would “necessarily reveal the number of officers who traveled

with the governor and his family, data that would be valuable

information for someone who intended to cause the governor harm.” Id.

(internal quotation marks and brackets omitted).

Although the Court remanded the case for application of the newly

announced standard governing the exception, it nonetheless instructed

28

that information revealing the number, “specific location,” and “identity”

of the guards protecting the governor should satisfy the exception. Id. at

118-19. This was so, the Court explained, because the information could

give a potential and as-yet unidentified person who might be “intent on

harming” the governor “the means to accomplish that goal.” Id. at 118-

19. Indeed, with respect to the “number of guards protecting the

governor,” the Court indicated that the exception in fact was already

satisfied. Id. at 119 (“To the extent DPS can show . . . that revelation

substantially threatens harm—as it has with respect to the number of

guards protecting the governor—then the information at issue may be

withheld.” (emphasis added)).

Three aspects of the Cox decision bear emphasis.

1. Cox Shows Courts Should Ordinarily Not Second-

Guess Law-Enforcement Threat Assessments.

Cox demonstrates the deference owed to a law-enforcement

assessment of the probability of harm. Although DPS was a party in that

case, the Court nonetheless deferred to DPS’s threat assessment. In

doing so, the Court: (1) did not demand a full-blown expert opinion from

DPS; (2) did not contemplate a “battle of experts” in every case to resolve

whether there was a substantial probability that releasing the

29

information might lead to physical harm; (3) did not require evidence of

an actual specific, identifiable violent “threat”; (4) did not require

evidence that such a threat was likely or that violence was likely, or

instruct the district court on remand to demand any such evidence; and

(5) did not require evidence of a past incident of violence by a particular

person or group. See id.

In short, Cox teaches that when DPS or other law-enforcement

agencies or officials conclude that there is a substantial probability of

physical harm associated with releasing requested information, courts

should defer to that overall assessment.

2. Cox Shows Information Should Be Withheld If It Is Connected To The Threated Harm.

Cox teaches that the focus should be on the connection between

requested information and the threatened harm. Thus, where the record

connected requested information to the DPS’s legitimate concern about

the governor’s safety, the Court did not hesitate to signal that the

information should qualify under the exception. For example,

information revealing “specific details about the number of officers

assigned to protect the governor,” “their general location in relation to

him,” “their dates of travel,” “the number of officers . . . necessary for the

30

governor’s security,” “the specific location . . . where the officers resided,”

“and the identity of each officer” “may be withheld” because that

information could assist a person intent on harming the governor or his

family. Id. at 118-19.

3. Cox Also Shows The Limits Of The Exception.

Cox also indicates that an assessment of the “probability of harm”

does not automatically shield all requested information from disclosure.

Rather, each piece of information needs evidence connecting the

information to the threatened harm. As the Court explained,

the dividing line between disclosure and restraint must be determined by proof. To the extent DPS can show, with detailed evidence or expert testimony, that revelation substantially threatens harm—as it has with respect to the number of guards protecting the governor—then the information at issue may be withheld.

Id. at 119. Under this reasoning, efforts to withhold “all but the ultimate

dollar figure for [the governor’s] trips abroad” required more evidentiary

support connecting the specific information to the governor’s safety. Id.

Thus, for all information about trips abroad to qualify for the exception,

the record would need to explain how disclosing each item of information

could contribute to the probability of harm to the governor. See id.

31

II. THE COURT SHOULD REVERSE AND RENDER JUDGMENT BECAUSE THE PHYSICAL-SAFETY EXCEPTION IS SATISFIED AS A MATTER OF LAW.

Under the teachings of Cox, the record conclusively establishes that

the identity of the compounding pharmacy and its pharmacist qualify for

the physical-safety exception as a matter of law. See City of Garland, 22

S.W.3d at 356-57; City of Fort Worth, 86 S.W.3d at 322. Through both

detailed evidence and expert testimony—although either alone would

suffice—TDCJ conclusively satisfied the physical-safety exception as a

matter of law. The Court should reverse and render judgement for TDCJ.

A. The Requested Disclosure Would Substantially Threaten Physical Harm.

TDCJ satisfied the physical-safety exception, as a matter of law,

with respect to the identity of the compounding pharmacy. It is

important to keep in mind that, unlike the situation in Cox, TDCJ does

not claim that all the requested information is subject to the physical-

safety exception. Rather, TDCJ has released all of the requested

information with only one exception—information that would identify the

compounding pharmacy and its pharmacist. With regard to that specific

information, detailed evidence, including a DPS threat assessment

entitled to deference, reveals that disclosure would substantially

32

threaten physical harm. Moreover, both the detailed evidence and expert

testimony illustrate a clear connection between the requested

information and the threatened harm.

1. The Humez Email Is Detailed Evidence Of A Substantial Threat Of Harm That Is Connected To The Requested Information.

In the weeks prior to the PIA request in this case, the disclosure of

the identity of a provider of execution drugs led to troubling and

threatening developments in Oklahoma. This undisputed evidence alone

conclusively establishes a substantial threat of physical harm and readily

connects the specific information requested for disclosure to the

threatened harm. See Cox, 343 S.W.3d at 119.

The undisputed content of Humez’s email, and the extent to which

federal and state law enforcement took the email seriously, exceeds what

is required to demonstrate a substantial threat of physical harm, as a

matter of law. In the email, Humez questioned the “pruden[ce]” of

providing the drugs and recommended “beef[ing] up” security “now that

you’ve been put in the spotlight.” CR.590. “[I]t only takes one fanatic

with a truckload of fertilizer,” warned Humez. Id. Even an individual

like Humez recognized that providing execution drugs publicly carries a

33

“burden of putting [one’s] employees and [oneself] at unacceptable (and

possibly uninsurable) risk.” Id.; see also CR.595 (likening bombing a

provider of execution drugs to “blowing up an abortion clinic” or “bombing

the tracks that led to Auschwitz.”). This risk, Humez noted, is “reckless,”

given the fervor surrounding executions. CR.593. Even the FBI

questioned Humez about his email, see CR.593-94, and TDCJ Executive

Director Livingston considered the email an actual threat, setting aside

its propensity to outline and describe an unacceptably threatening

environment. See CR.558. As Cox teaches, an actual explicit threat of

violence is not required to find a substantial threat of physical harm. 343

S.W.3d at 119.

The direct connection between the request for information

concerning the identity of the pharmacy and the threatened harm is

readily established by Humez’s email. It was virtually on the heels of the

disclosure of the Apothecary Shop’s identity that Humez sent his missive.

Humez himself confirmed the obvious nexus between the identity of the

pharmacy and a threat of physical harm when he recognized that “now

that it [is] generally known that the Apothecary Shoppe was in fact

supplying” the drugs, some people might object and “some of them [the

34

objectors] might be dangerous to them [the pharmacy], their employees,

and the surrounding bystanders.” CR.593 (emphasis added).

2. The “Firestorm” Surrounding The Woodlands Pharmacy Is Detailed Evidence Of A Substantial Threat Of Harm That Is Connected To The Requested Information.

Additionally, the “firestorm” of hate mail and threats surrounding

the disclosure of the identity of the Woodlands Compounding Pharmacy

constitutes detailed evidence demonstrating a substantial threat of

physical harm that is directly connected to the identity of the pharmacy

providing execution drugs. See CR.1859 (“Now that the information has

been made public, I find myself in the middle of a firestorm.”); see also

CR.581-88; CR.778.

Again, as with the Humez email, whether these emails themselves

each constitute actual explicit threats of violence is not the only

consideration. The emails’ existence and vitriolic character are on-point

evidence of a dangerous environment directly connected to the requested

information.

35

3. The Exploding-Head Blog Posting Is Detailed Evidence Of A Substantial Threat Of Harm That Is Connected To The Requested Information.

The October 6, 2013 blog posting further proves a substantial threat

of physical harm connected to the identity of the pharmacy. CR.578-79.

Almost immediately after the identity of the Woodlands Pharmacy was

revealed, the posting appeared, including its picture of the pharmacist’s

head exploding and caption entitled, “Meet the pharmacist who sold the

medical ethics [sic] and shamed his profession for $2,800, Mr. Jasper

Lovoi, RPh.” CR.578 (emphasis in original). Again, as with the emails,

whether the blog posting itself is an actual explicit threat of violence is

not the only, or even the controlling, consideration.

4. Law Enforcement’s Reaction To The Woodlands Pharmacy “Firestorm” Is Detailed Evidence Of A Substantial Threat Of Harm That Is Connected To The Requested Information.

Next comes law enforcement’s reaction to the Woodlands Pharmacy

situation, and it too is detailed evidence of a substantial threat of physical

harm connected to the pharmacy’s identity. The “firestorm” surrounding

the disclosure of the Woodlands Pharmacy’s identity posed a sufficiently

serious threat of harm to prompt the TDCJ Office of the Inspector

General and the Montgomery County Sheriff’s office to dispatch officers

36

to observe and provide security at a protest of the pharmacy. See CR.564;

CR.729. The connection between the identity of the pharmacy and a

potential security risk warranting a law-enforcement presence is again

obvious: the protest was held at the pharmacy because its identity was

disclosed to the public.

5. Brad Livingston’s Testimony Is Detailed Evidence Of A Substantial Threat Of Harm That Is Connected To The Requested Information.

The determination of TDCJ Executive Director Brad Livingston—

before any PIA request for disclosure was ever submitted—that he

needed to take the necessary steps to ensure the identity of the pharmacy

remained confidential is further proof of a substantial threat of harm.

Livingston based his determination on “threats of harm” that have

“certainly escalated in degree and type” in recent times, not vague

assertions of risk. CR.559. Specifically, he cited the “graphic example on

the Internet, dated October 6, 2013, [which] shows a graphic of the

screaming and violently exploding head of the [Woodland compounding

Pharmacy] pharmacists who [previously] supplied TDCJ with lethal

injection chemicals.” Id. He also referenced the Humez email, which he

described as “a very recent threat to a pharmacist and their pharmacy

37

wherein it was threatened to place a truck filled with fertilizer in front of

the pharmacy and blow it up.” CR.558.

Livingston summed up his assessment of the threat environment

and its immediate connection to the identity of the compounding

pharmacy when he explained why he sought a threat assessment from

McCraw. To begin, he recognized, based on his own expertise, that the

threat environment was “serious.” CR. 1343. He also noted a clear nexus

between the disclosure of the identity of a pharmacy supplying execution

drugs and threats to the pharmacy:

[T]here is an immediate, in my view, nexus between when a compounding pharmacy is made public and the immediacy or nearly immediacy of the harassing E-mails and threats – it happened both in this case and in January of 2014 with respect to The Apothecary Shop in Oklahoma. The day after it was reported that they were the likely supplier of compounded drugs to the Department of Corrections in Missouri, a very significant and real threat -- threatening E- mail was sent.

CR.1343-44. In addition to concerns specific to execution drugs and the

identity of the supplying pharmacy, Livingston further noted the nature

of the larger criminal-justice environment within which he, and any

supplier of execution drugs, must operate:

[T]hat spring of 2014 was a very unsettled and dangerous world. The context included security risks that are inherent

38

in -- in the criminal justice world that had escalated in general and specifically over the last number of months . . . . [W]e’re just roughly a year removed from the director of the Colorado Department of Corrections being assassinated on March the 19th . . . . At that same time there were specific death threats to me, both just prior to the Executive Director in Colorado’s assassination and just shortly after it.

CR.1344-45.

6. McCraw’s Threat Assessment Is Detailed Evidence Of A Substantial Threat Of Harm That Is Connected To The Requested Information And Is Entitled To Deference.

In response to Livingston’s concerns, TDCJ obtained and provided

the OAG and the district court with a threat assessment from Director of

DPS McCraw. Under Cox, McCraw’s assessment of the “probability of

harm” is entitled to deference, so long as it is not a “vague assertion[] of

risk.” Cox, 343 S.W.3d at 119.

McCraw’s assessment is anything but a vague assertion. McCraw

conducted the assessment based on the documents and evidence just

described, as well as open source information and his own expertise,

training, and skill in law enforcement. See CR.634 (noting that his

assessment was based on his “training and experience received

throughout my law enforcement career, including my training and

experience of conducting threat assessments for the Attorney General of

39

the United States and the director of the FBI.”); CR.635-36. Although

McCraw is not a party to this litigation and has no interest in its outcome,

he was nonetheless generally familiar with the issues at the time

Livingston requested a threat assessment from him. CR.634.

McCraw connected the specific evidence he considered with his

ultimate conclusion about the threat environment. He also connected his

threat assessment to the identity of the compounding pharmacy

currently at issue. He explained that he reviewed and based his

assessment on, “among other things,” “an email threat to the apothecary

shop in Oklahoma when it was revealed as a supplier of execution drugs”

as well as email and blog posts setting out “excoriating criticisms of the

Woodlands Pharmacy and Mr. Lovoi after TDCJ revealed the identity of

the supplier of execution drug in 2013.” CR.635; CR.686-87. McCraw’s

methodology “consider[ed] the product of vulnerability, probability, and

consequences to determine the severity of a threat.” Id.

McCraw specifically explained how his assessment was informed by

the underlying evidence of threatened violence surrounding prior

disclosures of the identity of execution-drug suppliers. Regarding the

Humez email, McCraw explained:

40

I considered the email from Professor Humez to the Oklahoma pharmacy . . . to constitute a serious threat. The email is indicative of the fervor surrounding the death penalty issue that, in my opinion, may likely lead to violence against the compounding pharmacy if the identity is released.

CR.635. Similarly, “the other emails” in the record that he considered,

although they “did not contain direct threats” of violence in and of

themselves nonetheless “demonstrate the tension and attention

surrounding the provision of execution drugs to TDCJ, which is likely to

lead to violence against the compounding pharmacy if the identity is

disclosed.” CR.636. Given all this detailed evidence, McCraw’s

assessment of a threat based on it is anything but a “vague assertion[]”

Cox, 343 S.W.3d at 119.

McCraw’s assessment of the pharmacy’s high vulnerability is

similarly supported by specific details, and it also is no vague assertion.

He based the assessment on the fact that “the current compounding

pharmacy is open to the public and located in an urban area of a Texas

city.” CR.635. He noted that when researching the Woodlands

Pharmacy, he was able to “locate the pharmacy’s website and then from

open source information I could easily identify and locate the pharmacy’s

employees and their family members.” Id. Moreover, public

41

“[p]harmacies are by design easily accessible to the public.” Id. Thus,

“[a]ny pharmacy that is located in a city and open to the public is easily

accessible and presents a ‘soft-target,’ meaning it is an easy target for

violence, and generally unprotected by significant security measures.”

Id. “The threat extends beyond those inside the pharmacy itself, because

violence that occurs near the pharmacy can injure bystanders as well.”

Id.

Before reaching his conclusion, McCraw also considered “other acts

of violence” as well as the conduct of “radical fanatics, such as opponents

to abortion and animal testing.” CR.636. Ultimately, McCraw

concluded:

If the supplier is identified, there is a substantial (or significant) threat of physical harm to the pharmacist, employees, customers, or bystanders. Issues of passion, including the death penalty, inherently pose a significant risk of escalation to violence. Moreover, not all acts of violence are preceded by threats. For example, the murder of the district attorney in Kaufman County was not preceded by a known threat. It will be difficult, if not impossible, to stop violence against a supplier if the person seeking to cause harm does not put the supplier on notice prior to an attack.

***

It is my opinion, based on my law enforcement training and experience, as well as the documents, materials, and conversations in this case, that there is absolutely a

42

substantial threat of physical harm that would result from the release of the name of the supplier of the execution drug.

Id.

In sum, detailed evidence conclusively establishes as a matter of

law that there is a substantial threat of physical harm in connection with

the possible release of information identifying the pharmacy and

pharmacist providing execution drugs to Texas.

B. The Assessments Provided By TDCJ’s Experts Independently Establish The Exception As A Matter Of Law.

Although TDCJ was not required to provide a law-enforcement-

expert opinion, it nonetheless provided two such opinions. See Cox, 343

S.W.3d at 119 (exception may be established by “detailed evidence or

expert testimony”). TDCJ offered the deposition and affidavit testimony

of a retained expert, Cunningham, as well as the already discussed

deposition and affidavit testimony of an unretained nonparty expert,

McCraw. Both opinions are entitled to deference with regard to their

assessment of the probability of harm, and they independently (and in

combination) confirm that the requested information should not be

disclosed because the physical-safety exception is satisfied as a matter of

law.

43

It is difficult to imagine expert witnesses more qualified to testify

on threat assessments than Cunningham and McCraw. Cunningham

has spent the vast majority of his 40-year professional career performing

threat assessments and teaching others how to perform them. See pp.

15-18 supra. McCraw, likewise, has extensive relevant experience,

including (among other things) 21 years in the FBI as well as service as

Director of Homeland Security in Texas and as Director of the Foreign

Terrorism Tracking Task Force, where he reported directly to Deputy

Attorney General Larry Thompson at the Department of Justice and

oversaw two threat assessments requested by the U.S. Attorney General.

CR.633; see pp. 8-11 supra.

1. McCraw’s Opinion Demonstrates A Substantial Threat Of Physical Harm.

TDCJ offered an expert threat assessment from DPS’s Director,

Col. McCraw. As discussed above, McCraw’s assessment of the

probability of harm is entitled to deference under Cox. See Part II.A.6

supra. Moreover, as also discussed at length above, the probability of

harm identified by McCraw (and Livingston and, later, Cunningham) is

connected by detailed, specific evidence to the information that has been

requested here, namely the identity of the compounding pharmacy. See

44

Part II.A.1-6. McCraw’s opinion is “clear, positive, and direct,” is

“credible and free from contradictions and inconsistencies,” and therefore

constitutes valid summary-judgment evidence that conclusively

establishes TDCJ’s entitlement to judgment as a matter of law. See TEX.

R. CIV. P. 166a(c); see Anderson, 808 S.W.2d at 55.

2. Cunningham’s Opinion Demonstrates A Substantial Threat Of Physical Harm.

Cunningham, a qualified expert on threat assessments with

extensive current assessment training and experience, conducted an

extensive threat assessment and concluded that there is a substantial

threat of physical harm. Cunningham based his opinion on (1) the

documents provided to McCraw, (2) his own substantial experience and

background as a law-enforcement expert, and (3) his own independent

research. CR.567-74.

Cunningham examined a number of factors in developing his

opinion. CR.625-26. First, he referred to an increase in violent crime in

the U.S. between 2011 and 2012, including shootings and bombings, and

an increase in the number of terror cells in the U.S.. See CR.668-69, 625.

This information, he explained, was derived from the FBI’s database,

accessible via its website, which reflects a “.7 percent increase [in] violent

45

crime in the United States from 2011 to 2012.” CR.669; see Crime in the

United States 2012, at http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-

u.s/2012/crime-in-the-u.s.-2012/violent-crime/ violent-crime (last visited

June 4, 2015). Cunningham also referred to the “Alcohol Tobacco and

Firearms . . . database,” which “shows that there were 5900 bombing

incidents domestically this past year, 2013, up 300, approximately, from

2012.” CR.669. He also relied on his own “research in developing two

courses which I teach for Homeland Security, NCBRT, prevention and

deterrence of terrorism,” in which “we talk about trends of terrorism and

violent acts domestically and internationally.” Id. He further relied on

his “work as a primary author on [a] campus emergencies course . . .

where we talk about tracking violence on [college] campuses.” Id.

Cunningham also referred to the sociopolitical climate surrounding

certain policy issues that invoke great passion, like abortion, and he

addressed the amount of violence related to and directed at abortion

clinics, abortion doctors, and businesses and universities involved in

animal research. CR.660, 673-77, 681. Cunningham provided statistics

documenting violence against abortion clinics during the past 38 years:

I will tell you that in -- from ‘77 to 2013, there were eight murders, 17 attempted murders national -- nationwide, 181

46

arsons, 42 bombings, 1,495 vandalisms, 2482 trespassing, a hundred acid attacks, 428 death threats, 15,934 hate mails or harassing calls, 170,710 picketing, 616 -- 61 [sic] bomb threats, and clinic blockades. Now, of that, 33,839 arrests were made.

CR.676. And he explained that pro-life and animal-rights groups are the

best available comparator group for violence that would be targeted

against death-penalty participants. See id.

Next, Cunningham referred to the volatility and overall risk of

(outside-prison) violence surrounding prison issues generally and the

death penalty specifically. See CR.683. He also referred to something

called “the contagion effect,” which results from Internet communications

causing dramatically increased interest in a topic, as with the increased

interest in the execution process after problematic executions in Arizona

and Oklahoma. See CR.656-57, 659-60, 662, 674-75, 682. The contagion

effect is also consistent with the Internet providing greater access to

methods and materials by which people can carry out violence, as well as

a means to recruit members to radical groups. CR.675.

Cunningham explained that there is a dearth of data regarding

violence against compounding pharmacies typically stop producing

execution drugs after being publicly identified as a supplier. He also

47

noted, however, that such withdrawal from the market could actually

result in an increased risk to the remaining targets. CR.676-77.

He also discussed the difficulty associated with predicting who will

perpetrate violence in these types of situations because those who

perpetrate such violence often give no prior warning and make no prior

threats. CR.655-56, 659; see also CR.567, 626. Lastly, Cunningham

noted the difficulties in preventing violence against a highly accessible

target like a compounding pharmacy or its pharmacist, employees, or

bystanders. See CR.626.

Based on these factors, and others, Cunningham concluded:

I conclude that there is a significant and substantial threat of physical harm to the pharmacy/compounding pharmacy and pharmacist, and others in the vicinity of the pharmacy/compounding pharmacy if the identity of the pharmacy/compounding pharmacy or pharmacist is publicly disclosed.

CR.625.

C. Plaintiffs’ Arguments Below Misunderstood The Governing Standards.

Plaintiffs challenged the testimony of McCraw and Cunningham

with their own expert, Parker, who essentially opined that McCraw and

Cunningham offered only “basic and unsupported fear-mongering

48

without any basis” and, ultimately, resorted to nothing more than

“buzzwords” reflecting “inchoate, pie-in-the-sky concerns.” CR.732; see

id. (“All of TDCJ’s arguments are basic and unsupported fear-mongering

without any basis to establish a substantial threat of physical harm.”);

CR.1918.

1. Plaintiffs’ Arguments Below Assumed An Incorrect Legal Standard.

To start, Plaintiffs arguments below were largely founded on

incorrect formulations of the Cox standard that improperly heightened

TDCJ’s burden. Small distinctions in framing the legal standard are

“very important,” as Plaintiffs themselves have argued, CR.731.

Plaintiffs’ improper presentation of the Cox standard to the district court

undermines the court’s ruling.

For example, Plaintiffs erroneously argued below that TDCJ was

required to show a “high degree of certainty . . . that a substantial threat

of physical harm will occur if the information is disclosed.” CR.732. Cox

reflects no such high-degree-of-certainty requirement. Indeed, Cox

declined to adopt a standard requiring “a reasonably perceived likely

threat.” Cox, 343 S.W.3d at 118 (noting that the standard adopted was

“close, but not identical,” to the rejected standard). Likewise, Plaintiffs

49

improperly argued that a Livingston’s testimony should not be credited

because it supposedly “did not suggest that violence was likely.” CR.743

(emphasis added).

Even more off the mark were Plaintiffs’ prominent—and legally

erroneous—arguments framing the relevant legal standard in terms of a

failure to point to a specific past instance of “violence against a Lethal

Injection Drug provider,” CR.731 (emphasis in original). See id. (arguing

that “there has never been any actual violence (or threat of violence)

against any Lethal Injection drug provider” “[w]hen TDCJ

previously . . . let it be known who supplied them with lethal injection

drugs”). As discussed above, see Part I.C.1 supra, Cox and the PIA do not

require specific past incidents of violence to justify withholding

information that substantially threatens physical harm, and it would be

dangerous to impose such a per se requirement.

Perhaps most egregious were Plaintiffs arguments that a specific,

concrete threat of violence is needed to establish that disclosure would

substantially threaten physical harm. See CR.731 (arguing that TDCJ

did not identify “any direct and actual threat of violence (even though

not carried out) to any provider of Lethal Injection Drugs in Texas”)

50

(emphasis in original). Cox refutes this view of the physical-safety

exception as well. See Cox, 343 S.W.3d at 119.

2. Plaintiffs’ Efforts To Create A Battle Of Experts On An Issue With Immediate Public-Safety Implications Is Misguided.

Plaintiffs’ attempts to set their expert Parker against Director of

TDCJ McCraw and Cunningham for purposes of determining the

“probability of harm” reflect a similar misunderstanding of the governing

legal standards and, therefore, should be rejected. Cox, 343 S.W.3d at

119. Cox anticipates deference to a law-enforcement assessment of the

“probability of harm”; it does not countenance “a battle of experts” where

the legal standards governing expert opinions are the lynchpin for

determining whether and to what extent there is a substantial public-

safety threat. Id.

This case is the first opportunity for a court of appeals to apply the

standards announced in Cox. At stake are issues that extend far beyond

death-penalty litigation or the identity of Texas’s provider of execution

drugs. The physical-safety exception will be invoked in future cases in

which it is believed that disclosure of requested information from a

governmental body will result in a substantial threat of physical harm.

51

As Cox makes clear, a DPS or other law-enforcement expert’s assessment

that there is an unacceptably high “probability of harm” should receive

deference; it should not be the target of arguments traditionally reserved

for situations in which no special solicitude is afforded an expert’s

opinion.

Further, even assuming McCraw’s and Cunningham’s opinions are

properly subjected to a full-blown expert analysis or are properly part of

a “battle of the experts,” the opinions readily survive any such attacks,

for all the reasons discussed above and immediately below.

D. Plaintiffs’ Expert’s Testimony Should Not Have Been Considered And, In Any Event, Could Not Undermine TDCJ’s Experts’ Testimony.

Plaintiffs’ expert Parker’s testimony should not have been

considered by the district court and, in any event, could not undermine

the testimony of TDCJ’s experts. “An expert witness may testify

regarding matters of scientific, technical, or other specialized matters

only if (1) the expert is qualified, (2) the probative value of the testimony

is not outweighed by the prejudice, and (3) the expert’s opinion is relevant

and based on a reliable foundation.” See TEX. R. EVID. 401-03, 702;

52

Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 215 (Tex. 2010); see E.I. du

Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995).

1. Parker Is Not Qualified.

An expert witness must be qualified to give an opinion by

knowledge, skill, experience, training, or education. See TEX. R. EVID.

702; Broders v. Heise, 924 S.W.2d 148, 153-54 (Tex. 1996). Parker is not

qualified to give an expert opinion on the probability of harm in this case

because he has no recent law-enforcement training.

Parker has been retired from the FBI since 1994 and has no other

relevant, recent law-enforcement or threat-assessment experience.

Parker agreed that the world has changed dramatically since 1994.

CR.963, 2231. This case involves current threats and relates to an

environment that developed within the last one to two years. See CR.704-

05 (describing relevant recent developments in the threat environment).

Parker’s most recent training was six or seven years ago. CR.2220-21.

He no longer holds any security clearance or police license, other than a

private-investigator license. CR.2250. His last certification as a

California police officer was 40 years ago. CR.2188. His current business

53

is exclusively serving as a hired expert witness to opine on “police

practices.” CR.2191-92.

Despite his lack of any recent training or experience, Parker did not

crack a book when formulating his opinion about whether a threat could

be determined based on the documents with which he was provided.

CR.2193. He did not conduct any outside research, CR.2185, and only

reviewed protocols or threat assessment “a couple of years ago” in a

source that he does not remember. CR.2217-19.

In sum, Parker (1) has had no apparent law enforcement training

in over 20 years, (2) did not conduct a threat assessment in connection

with this case, (3) did not look at any books or consult other experts, and

(4) has not taught any courses on threat assessment. Accordingly, he is

not qualified to serve as an expert witness on threat assessment in this

case.

2. Parker’s Opinion Does Not Have A Sufficient Basis And Is Unreliable.

Expert testimony must be based on sufficient underlying facts or

data, as required by Texas Rules of Evidence 702 and 703. See Merrell

Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997). The

54

testimony must also be reliable. Whirlpool Corp. v. Camacho, 298 S.W.3d

631, 637 (Tex. 2009); Robinson, 923 S.W.2d at 557.

Parker’s opinion lacks sufficient basis and is unreliable because he

considered only whether there had been relevant past violent acts

against a pharmacy or prison. He thus refused to consider other, relevant

past violent acts, including the recent assassination of the Director of the

Colorado prison system, death threats against the Director of the Texas

prisons, violent acts carried out against abortion clinics and their

physicians, and violent acts against universities, businesses, and

personnel involved in animal research. See CR.2245-49, 2258. At the

same time, however, Parker conceded that the absence of a violent act

does not mean that one will not or cannot occur, CR.2258-59, and that

there are many people opposed to the death penalty, CR.2253.

Parker’s opinions are also unreliable because he was not engaged

in the appropriate inquiry and is biased. Assuming Parker is qualified

as a law-enforcement expert, the appropriate inquiry for such an expert

in these circumstances is to opine on the probability of harm. See Cox,

343 S.W.3d at 119. Parker’s treatment of the Humez email provides an

example of his misguided inquiry. Parker concluded that the email was

55

not itself a threat and that Humez was merely “expressing his concerns

and, as a concerned citizen, cautioning them [the pharmacy in Oklahoma]

to be aware that there are ‘fanatic’ individuals around who are capable of

duplicating the Oklahoma City Federal building bombing.” CR.793-94.

But whether the email is a threat in and of itself does not answer the

question at hand, which is not whether there is or was an existing threat

but whether the probability of harm is unacceptably high. Cox, 343

S.W.3d at 119. Parker obstinately refused to consider whether the email

reflects an unacceptable level of possible danger, whether or not the

email itself is actually a threat to blow up a pharmacy with a fertilizer

bomb.

Moreover, Parker justified his conclusions on factors that cannot

supply a reliable answer to the question of the probability of harm. For

example, Parker based his conclusions on the following:

• no “direct threats against any pharmacies or individuals connected to them,” CR.790,

• no “readily identifiable targeted threats,” id.,

• “communications . . . expressing opinions” that “do not appear to contain any specific threat of violence,” CR.792,

• the exploding-head blog has no “wording which could even be loosely interpreted as threatening,” CR.792 (emphasis added),

56

• that it was “unlikely that [Humez] intended to commit any violence himself,” CR.793 (emphasis added),

• that according to the author of the exploding-head blog, “there was nothing violent about this at all,” CR.794, and

• “all TDCJ has presented are [ ] vague assertions of risk, especially since there have been no documented cases of violence involving such pharmacies,” CR.805.

Cox instructs that specific, identifiable threats are not necessary to

determine that there is an unacceptably high probability of harm. 343

S.W.3d at 119.

Finally, Parker is biased. He sits on the Board of Directors of Death

Penalty Focus, and organization whose goal is to abolish the death

penalty. CR.2252. But Plaintiffs’ September 5, 2014, witness disclosure

provides that Parker is not biased for purposes of serving as an expert in

this case. CR.2289. Moreover, Parker’s CV does not disclose his

membership in Death Penalty Focus, and he only disclosed it near the

end of his six-hour deposition after repeatedly dodging questions about

his membership in organizations. See CR.2162-63. Parker eventually

conceded, “I am biased against the death penalty.” CR.2252. Parker’s

admitted bias against the death penalty renders his opinions unworthy

of any credence.

57

III. IN THE ALTERNATIVE AND AT THE VERY LEAST, THE COURT SHOULD REMAND BECAUSE PLAINTIFFS CANNOT SHOW ENTITLEMENT TO JUDGMENT AS A MATTER OF LAW.

Even if the Court were to determine that TDCJ is not entitled to

summary judgment, the grant of summary judgment for Plaintiffs must

nonetheless be reversed and the case remanded for trial on the merits.

Barring a grant of judgment for TDCJ, there would remain (at the very

least) a genuine issue of material fact regarding Plaintiffs’ entitlement to

summary judgement.

A district court, for example, should not resolve at the summary

judgment stage issues of witness creditability or the weight to afford

testimony; those issues are reserved for a trial on the merits, whether the

factfinder at trial is a judge or a jury. See 7 WILLIAM DORSANEO III, TEXAS

LITIGATION GUIDE §101.07[3][a] (2014) (noting that expert testimony that

falls short of qualifying under TEX. R. CIV. P. 166a(c) “does no more than

raise an issue of fact”); see also ALEX WILSON ALBRIGHT, TEXAS COURTS A

SURVEY 461 (Imprimatur Press) (2010-2011).

To the extent there is a fact question concerning whether there is a

substantial risk that releasing the requested information would lead to

violence, a trial on the merits is needed. Because Plaintiffs, at most,

58

could only raise a genuine issue of disputed fact regarding the

applicability of the physical-safety exception (assuming arguendo they

have refuted TDCJ’s entitlement to judgment as a matter of law), the

portion of the order granting Plaintiffs’ summary-judgment motion must

be reversed and the case remanded for trial.

PRAYER

For these reasons, the Court should reverse the district court and

render judgment for TDCJ or, in the alternative, remand the case for trial

on the merits.

59

Respectfully submitted.

Dated: June 8, 2015

KEN PAXTON Attorney General of Texas

CHARLES E. ROY First Assistant Attorney General

SCOTT KELLER

/s/ Richard B. Farrer RICHARD B. FARRER Assistant Solicitor General State Bar No. 24069702

OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-2923 Fax: (512) 474-2697 richard.farrer@texasattorneygeneral.gov

COUNSEL FOR APPELLANT

60

CERTIFICATE OF SERVICE

I hereby certify that on this the 8th day of June, 2015, a true and

correct copy of the foregoing document was served via File & ServeXpress

to all counsel of record.

Philip Durst Manuel Quinto-Pozos DEATS, DURST, OWEN & LEVY, P.L.L.C. 1204 San Antonio, Ste. 203 Austin, TX 78701 Telephone: (512) 4 7 4-6200 Facsimile: (512) 474-7896 pdurst@ddollaw.com mqp@ddollaw.com

Maurie Amanda Levin ATTORNEY AT LAW 211 South St., #346 Philadelphia, PA 19147 Telephone: (512) 294-1540 Facsimile: (215) 733-9225 maurielevin@gmail.com

/s/ Richard B. Farrer Assistant Solicitor General

61

CERTIFICATE OF COMPLIANCE

In compliance with Texas Rule of Appellate Procedure 9.4(i)(2), this

brief contains 11,158 words, excluding the portions of the brief exempted

by Rule 9.4(i)(1).

/s/ Richard B. Farrer Assistant Solicitor General

APPENDIX

APPENDIX TABLE OF CONTENTS

Order on Plaintiffs’ Motion for Summary Judgment and Defendants’ Motion for Summary Judgment ....................................................... A

Texas Dep’t of Public Safety v. Cox Texas Newspapers, L.P., and Hearst Newspapers, L.L.C., 343 S.W.3D 112, 39 MEDIA L. REP. 2267, 54 TEX. SUP. CT. J. 1428 ......................... B

A

2312

CAVSE NO. 0-1

MAVRIE N. NAOMI TERR, and, s N THE D!STRICT RTOf HIL\RY SHEA.RO. § Jlfaintiffs § §

vs. § § TRAVIS COlJNTY. TEXAS TEXAS DEPARTl\'1ENT Of' § CJUl\IINAL .JOSTICE, § Defcmhmt §

ORDER ON PLAJNTIFFS' MOTION FOR SU:\·1MARY ,JVDGMENT and DEfENDANrS MOTION FOR SU:'Vll\,1ARY JVOGM£NT

Came on for consideration at a heari on 3, 20!:+. Plaintiffs' tvlotion !(H· Partial Summary Judgrnent and Ddcndanf s Iv·lotion l'or Surmnnry Judgrn..:nt Plaintiff~ and Dclcndant appeared at the hearing through their respective counseL Afh;r consideTing the <lrgumcnts made a! the hearing on l)ecernbcr 20 l the relevant pleadings on l!!e. the surnmary judgment evidence tendered !o 1hc Court at the time of tb~.: hearing, and the C s separate on Plainti and Dt.~l'endant's Objections to and l\'hnions 10 Strike Summary Judgment and Delendant" s Motion to Strike Plaintit1s' Ex Thomas Parker, !10\V finds that Plaintiffs' Mntion f(lr

Partial Summary Judgment should gramed and Dcl\.~ndan( s Motion Summary Judgm.;nt should rw denied.

IS THEREFOR!: ORDER ADJUDGED D DECR that the Plaintiffs' fV!ution for Partial Summary Judgment is !T lS ORDERED. ADJ!JD(]ED ANI)

ErvmER. 201

BYRNE

JUDC3E PRESiDING

B

Page 1

343 S.W.3d 112, 39 Media L. Rep. 2267, 54 Tex. Sup. Ct. J. 1428 (Cite as: 343 S.W.3d 112)

326II Public Access

326II(A) In General

326k31 k. Regulations limiting access; of-

Supreme Court of Texas.

fenses. Most Cited Cases

TEXAS DEPARTMENT OF PUBLIC SAFETY, Petitioner,

v. A law does not have to use the word “confiden-

COX TEXAS NEWSPAPERS, L.P., and Hearst tial” to expressly impose confidentiality.

Newspapers, L.L.C., Respondents.

[2] Constitutional Law 92 2471 No. 09–0530.

Argued Sept. 15, 2010. 92 Constitutional Law Decided July 1, 2011. 92XX Separation of Powers 92XX(C) Judicial Powers and Functions Background: Newspapers brought action under 92XX(C)2 Encroachment on Legislature Texas Public Information Act (PIA) against Depart- 92k2471 k. Modification of common ment of Public Safety (DPS), seeking writ of man- law. Most Cited Cases damus to compel the disclosure of expense vouchers relating to Governor's travel. After a bench trial, the While the Supreme Court is not bound by the 261st Judicial District Court, Travis County, Scott H. Legislature's policy decisions when it considers pro- Jenkins, J., granted the writ. Department appealed, and tections afforded by the common law, the boundaries the Court of Appeals, 287 S.W.3d 390, affirmed. The the Legislature has drawn do inform its decision. DPS petitioned for review.

[3] Records 326 63

Holding: Upon granting review, the Supreme Court, Jefferson, C.J., held that remand was necessary to 326 Records determine if revelation of requested documents sub- 326II Public Access stantially threatened physical harm. 326II(B) General Statutory Disclosure Requirements

Reversed and remanded. 326k61 Proceedings for Disclosure 326k63 k. Judicial enforcement in gen-

Wainwright, J., filed opinion concurring in the eral. Most Cited Cases judgment joined by Johnson, J.

Remand was necessary in action by newspapers West Headnotes seeking disclosure of expense vouchers relating to Governor's travel under the Texas Public Information Act (PIA) to determine if revelation of requested [1] Records 326 31 documents substantially threatened physical harm; PIA protected from disclosure information that sub-

326 Records stantially threatened physical harm. V.T.C.A., Gov-

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 2

343 S.W.3d 112, 39 Media L. Rep. 2267, 54 Tex. Sup. Ct. J. 1428 (Cite as: 343 S.W.3d 112)

ernment Code § 552.101. MANN.

Our common law protects from public disclosure [4] Records 326 54 highly intimate or embarrassing facts. We must decide whether it also protects information that substantially threatens physical harm. We conclude that it does.

326 Records Both sides raise important questions, not just about 326II Public Access safety but also about the public's right to know how 326II(B) General Statutory Disclosure Rethe government spends taxpayer money. Those issues quirements could not have been fully litigated under the standard 326k53 Matters Subject to Disclosure;

that prevailed before today's decision. Accordingly, Exemptions we reverse the court of appeals' judgment and remand 326k54 k. In general. Most Cited Cases the case to the trial court for further proceedings.

Common law protects individuals from physical I. Background

harm, and, consistent with the Texas Public Infor-

In separate requests, two reporters representing mation Act (PIA), that protection extends to the disthree newspapers asked the Department of Public closure of information that substantially threatens Safety for travel vouchers from Governor Rick Perry's such harm. V.T.C.A., Government Code § 552.101.

security detail. One request was limited to the Governor 's out-of-state trips in 2001 and 2007; the other *112 Michael P. Murphy, Asst. Solicitor General, was not confined to a specific period of travel. Be- James C. Ho, Gibson Dunn & Crutcher LLP, Dallas, lieving all of the documents to be excepted from dis- David S. Morales, Office of the Attorney General of closure under the Public Information Act (specifically Texas, Deputy First Assistant Attorney General, At- Government Code section 552.101), DPS sought a torney General Greg W. Abbott, Attorney General of ruling from the Attorney General's office. Texas, Peter Carl Hansen, Office of the Attorney General, Bill Davis, Office of the Attorney General of DPS noted that it is responsible for staffing the Texas, Office of Solicitor General, Barbara Bryant governor's protective detail and that it does not pub-

Deane, Assistant Attorney General, Brenda licly discuss security practices or the identity or Loudermilk, Office of the Attorney General of Texas, numbers of officers so assigned. DPS offered to re-

Matthew T. Bohuslav, Office of the Attorney General, lease aggregated expense information, warning that for Texas Department of Public Safety.

releasing the vouchers themselves would “necessarily reveal the number of officers who traveled with the William Gerow Christian, Graves Dougherty Hearon governor and his family,” data that “would be valuable & Moody, PC, Austin, for Cox Texas Newspapers, information for someone who intended to cause [the L.P. governor] harm.”

Joseph R. Larsen, Sedgwick, Detert, Moran & Arnold, Based solely on DPS's letter and inspection of a LLP, Houston, for Amicus Curiae Freedom of Infor- subset of the responsive documents, the Attorney mation Foundation of Texas. General determined that release of the information would place the governor in imminent threat of *113 Chief Justice JEFFERSON delivered the opinion physical danger. Accordingly, the Attorney General of the Court, joined by Justice HECHT, Justice concluded that the information fell within a “special GREEN, Justice GUZMAN, and Justice LEHR- circumstances” aspect of common law privacy that

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 3

343 S.W.3d 112, 39 Media L. Rep. 2267, 54 Tex. Sup. Ct. J. 1428 (Cite as: 343 S.W.3d 112)

required DPS to withhold the submitted information in highly intimate or embarrassing facts) had not been its entirety under Government Code section 552.101. satisfied, the court held that the vouchers could not be FN1 Cox and Hearst, publishers of the newspapers in withheld based on the common law right of privacy.

question, sued DPS, seeking a writ of mandamus to Id. at 395. The court also rejected DPS's claim that the compel complete disclosure. See TEX. GOV'T CODE Fourteenth Amendment to the United States Consti- § 552.321(a). After a bench trial, the trial court found tution barred disclosure of information that would that public disclosure of the information in the create a substantial risk of serious bodily harm from a vouchers would not put any person in imminent threat perceived likely threat. Id. at 398. The court observed of physical danger or create a substantial risk of se- that “[w]hether the privacy interests at issue here rious bodily harm from a reasonably perceived likely should merit protection under the PIA is a question for threat. The trial court ordered the clerk to issue a writ the legislature.” Id. of mandamus compelling DPS to produce the vouchers in their entirety. We granted the petition for review to examine whether the public's right to information is subject to FN1. Twice before, the Attorney General reasonable limitations when its production may lead to ruled that similar vouchers had to be dis- physical harm.FN2 53 Tex. Sup.Ct. J. 1023 (Aug. 20, closed. See Tex. Att'y Gen. OR2004–4723; 2010). DPS asserts that the vouchers are confidential Tex. Att'y Gen. OR2002–0605. In those in- under the common law and under Government Code stances, however, the only exception DPS section 418.176(a)(2).FN3 We address each argument urged was Government Code section in turn. 552.108, which protects certain law enforcement information. See TEX. GOV'T FN2. The Freedom of Information Founda- CODE § 552.108. Because he believed that tion of Texas submitted an amicus curiae exception to be discretionary, however, the brief in support of Cox and Hearst. Attorney General ruled that it could not be considered in conjunction with section FN3. DPS no longer makes an argument 552.022. See id. § 552.022 (making certain based on a constitutional right of privacy.

information in vouchers public unless expressly confidential under “other law”). DPS II. Does “other law” include a common law right to did not appeal either of those rulings.

be free from physical harm?

[1] The PIA guarantees access to public infor-

The court of appeals affirmed. 287 S.W.3d 390, mation, subject to certain exceptions. See generally 398. It held that the Attorney General's “special cir-

TEX. GOV'T CODE ch. 552. Those exceptions emcumstances ” exception conflicted with Industrial brace the understanding that the public's right to know Foundation of the South v. Texas Industrial Accident is tempered by the individual and other interests at Board, 540 S.W.2d 668, 685 (Tex.1976). *114 Id. at stake in disclosing that information. See generally 394. According to the court of appeals, Industrial TEX. GOV'T CODE ch. 552, subch. C. In 1999, the Foundation “declared its two-part test to be the ‘sole Legislature excluded certain categories of public incriteria ’ for the disclosure of information to be deemed formation from the exceptions. See id. § 552.022. This a wrongful publication of private information under core public information is currently FN4 protected from common law.” Id. (quoting Industrial Foundation, disclosure only if it is “ ‘expressly confidential under 540 S.W.2d at 686). Because DPS conceded that the other law,’ meaning law other than Chapter 552 of the first prong of that test (that the information contains

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 4

343 S.W.3d 112, 39 Media L. Rep. 2267, 54 Tex. Sup. Ct. J. 1428 (Cite as: 343 S.W.3d 112)

Government Code, which is the Public Information amendment making vouchers confidential, Act.” In re City of Georgetown, 53 S.W.3d 328, 331 but that amendment would not apply to the (Tex.2001) (quoting TEX. GOV'T CODE § vouchers at issue in this case. Act introduced 552.022(a)). “Other law” includes other statutes, ju- May 31, 2011, 82nd Leg., 1st C. S., S.B. 1, dicial decisions, and rules promulgated by the judici- art. 79A (to be codified at TEX. GOV'T ary. Id. at 332. “A law does not have to use the word CODE ch. 660). ‘confidential’ to expressly impose confidentiality.” Id. at 334. We turn, then, to DPS's argument that “other law”

includes a common law right to be free from physical FN4. The Legislature has since amended harm. DPS urges an exception for cases in which there section 552.022(a). Effective September 1, is an imminent threat of physical danger. DPS asserts 2011, core public information may be with- that if the common law protects personal privacy, it held if it is confidential under either the PIA must logically protect physical safety as well. Ensuror other law. See Act of May 30, 2011, 82nd ing the physical safety of its citizens, says DPS, is the Leg., R.S., S.B. 602, § 2 (to be codified at “primary concern of every government,” FN7 and TEX. GOV'T CODE § 552.022(a)). preventing disclosure that would threaten physical safety is deeply rooted in the common law. See, e.g., The parties agree that the vouchers contain core Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d public information.FN5 See TEX. GOV'T CODE § 627, 629 (Tex.1967) (observing that “ ‘[t]he interest in 552.022(a)(3) (including “information in an account, freedom from intentional and unpermitted contacts voucher, or contract relating to the receipt or ex- with the plaintiff's person is protected by an action for penditure of public or other funds by a governmental the tort commonly called battery’ ” (quoting WILbody ”). For this reason, that information is presently LIAM L. PROSSER, LAW OF TORTS 32 (3d unaffected by the Legislature's passage, five days after ed.1964))). the court of appeals' decision, of an amendment excepting public information from disclosure “if, under FN7. United States v. Salerno, 481 U.S. 739, the specific circumstances pertaining to the [govern- 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). ment] employee or officer, disclosure of the information would subject the employee or officer to a Freedom from physical harm is indeed a hallmark substantial*115 threat of physical harm.” Act of June of our common law. One of our earliest reported cases 3, 2009, 81st Leg., R.S., ch. 283, § 4, 2009 Tex. Gen. involving battery was decided by the Supreme Court Laws 742 (codified at TEX. GOV'T CODE § of the Republic of Texas. Eli Williams sued Jesse 552.151). Because this exception is in the PIA, it does Benton for assault and battery. Benton v. Williams, not currently apply to core public information.FN6 Dallam 496, 496 (Tex.1843). Benton filed a plea as- TEX. GOV'T CODE § 552.022(a). serting that he should not have to answer the complaint because “Williams [was] of African descent, FN5. The parties do not address, and we do and not entitled by law to maintain his action.” Id. at not decide, what voucher information is 496–97. The Court rejected that contention, even “core” and what is not. though the constitution at that time provided that the descendants of Africans were not entitled to the rights FN6. The Legislature recently passed (alt- of citizens and “shall not be permitted to remain hough the Governor has not yet acted on) an permanently in the republic without the consent of congress.” Id. at 497. The Court held that insulating

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 5

343 S.W.3d 112, 39 Media L. Rep. 2267, 54 Tex. Sup. Ct. J. 1428 (Cite as: 343 S.W.3d 112)

Benton from Williams's battery claim would be Posey 275, 276–77 (Tex. Comm'n App. “against law, contrary to the spirit of our institutions, 1883) (not precedential) (noting that the and in violation of the dictates of common humanity.” common law recognized actions for injuries “ Id. The Court affirmed the trial court's judgment ‘to the absolute rights of persons, as for asagainst Benton. Id. saults, batteries, wounding, injuries to the health, liberty and reputation’ ” (quoting 1 Our courts have, since then, consistently pro- CHITTY ON PLEADINGS 60)(emphasis tected individuals' right to be free from physical added)). harm.FN8 Blackstone described three “absolute rights,” one of which was “[t]he right of personal security,” FN9. W. PAGE KEETON, ET AL., THE consisting of “a person's legal and uninterrupted en- LAW OF TORTS 41 (5th ed.1984). joyment of his life, his limbs, his body, his health, and his reputation.” 1 WILLIAM BLACKSTONE, FN10. See Billings v. Atkinson, 489 S.W.2d COMMENTARIES *125 (1769). The common law's 858, 860 (Tex.1973) (holding, for the first recognition of an action for battery emerged as a time, that “an unwarranted invasion of the means of “keep[ing] the peace by affording a substi- right of privacy constitutes a legal injury for tute*116 for private retribution,” FN9 and we have which a remedy will be granted”); Milner v. recognized common law battery claims for more than Red River Valley Pub. Co., 249 S.W.2d 227, a century. See, e.g., Sargent v. Carnes, 84 Tex. 156, 19 229 (Tex.Civ.App.-Dallas 1952, no writ) S.W. 378, 378 (1892) (affirming judgment on plain- (refusing to allow recovery for violation of tiff's assault and battery claim). Protection from right of privacy, because it was “not ... recphysical harm is thus more firmly entrenched in our ognized under the common law, as it existed common law than the right of privacy, a relative when we adopted it,” but noting that other newcomer. W. PAGE KEETON, ET AL., THE LAW actions (such as penalties for libel and OF TORTS 849 (5th ed.1984)(noting that “[p]rior to eavesdropping) provided some protection). the year 1890, no English or American court ever had granted relief expressly based upon the invasion [of Nonetheless, thirty-five years ago, we held that the right of privacy]”). Indeed, we did not formally the common law privacy protection exempted docurecognize the privacy tort until 1973, although our ments from disclosure under the PIA. Indus. Found., courts of civil appeals had hinted at it previously.FN10 540 S.W.2d at 686. We have never addressed whether the common law right to be free from physical harm FN8. See, e.g., Operation Rescue–Nat'l v. applies as well. We conclude that it does. Planned Parenthood of Houston & Se. Tex., Inc., 975 S.W.2d 546, 564 (Tex.1998)

The Legislature has recognized the importance of (holding that “protecting the health and protecting physical safety, notwithstanding the mansafety of clinic patients is a compelling state date that courts construe the PIA in favor of disclointerest justifying restrictions on the demonsure . See TEX. GOV'T CODE § 552.001(b). Several strations”); see also RESTATEMENT PIA exceptions are grounded in a concern for physical (THIRD) OF TORTS: LIABILITY FOR safety, and the Legislature's swift passage of an ex-

PHYSICAL & EMOTIONAL HARM § 5 ception for information that would pose a “substantial (stating that “[a]n actor who intentionally threat of physical harm” confirms the primacy of this causes physical harm is subject to liability for interest.FN11

that harm”); cf. G., C. & S.F. R'y v. Styron, 2

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 6

343 S.W.3d 112, 39 Media L. Rep. 2267, 54 Tex. Sup. Ct. J. 1428 (Cite as: 343 S.W.3d 112)

fear of harassment or retribution.” Id.

FN11. See, e.g., TEX. GOV'T CODE §§ 552.108 (exempting information held by a FN12. See, e.g., Tex. Att'y Gen. law enforcement agency or prosecutor if it OR2008–03289 (holding that home address, involves a threat against a peace officer), telephone number, and other identifying in- 552.1176 (making home address, phone formation relating to a Dallas Area Rapid number, and social security number of Texas Transit employee fell within the special cirlawyers and judges confidential), 552.119 cumstances exception, as information was (making photographs of peace officers con- requested by a former employee who had fidential), 552.127 (excepting identifying threatened that individual); Tex. Att'y Gen. information from participants in neighbor- OR2008–01570 (determining that special hood crime watch organizations), 552.151 circumstances justified withholding infor- (excepting certain information from disclo- mation, as city showed that former employee sure if it would pose a “substantial threat of had made threatening statements to city physical harm”); see also House Comm. on staff); Tex. Att'y Gen. OR2004–10845 State Affairs, Bill Analysis, Tex. H.B. 1237, (holding that special circumstances justified 80th Leg., R.S. (2007) (noting that release of withholding identity of alleged crime victim attorney personal information may “subject due to potential threat to victim's safety); attorneys including current and former state Tex. Att'y Gen. ORD1977–0169 (holding and federal judges and prosecutors and their that employees' addresses could be withheld family members to harm relating to their because employees showed that their lives personal safety or possible identity theft”); would be endangered if the information was House Comm. on State Affairs, Bill Analy- disclosed). sis, Tex. H.B. 273, 75th Leg., R.S. (1997) (commenting on “threats and acts of retalia- FN13. Tex. Att'y Gen. OR2004–10845, at 2. tion against the members of [neighborhood crime watch organizations]”); House Comm.

The court of appeals held that the Attorney Genfor Public Safety, Bill Analysis, Tex. H.B.

eral's “special circumstances” exception conflicted 474, 70th Leg., R.S. (1987) (noting that rouwith Industrial Foundation, in which we said that the tine release of peace-officer photographs “sole criteria” for determining whether information endangers officers' lives).

was exempt from disclosure as “confidential by judicial decision” was whether the information was of Additionally, since the 1970s, the attorney gen- legitimate public concern and whether its publication eral has applied a “special circumstances” exception would be highly objectionable to a reasonable person. to disclosure in over 230 cases. Often, these special 287 S.W.3d at 394 (citing Industrial Foundation, 540 circumstances included situations in which disclosure S.W.2d at 686). That is an accurate statement for would place individuals in danger of physical assessing matters involving that branch of the invaharm .FN12 The Attorney General *117 has described sion-of-privacy tort (the only exception at issue in the exception as covering a “very narrow set of situa- Industrial Foundation ), but not for other matters that tions in which release of the information” FN13 would are confidential under judicial decision. See, e.g., Ctr. cause someone to face “an imminent threat of physical for Econ. Justice v. Am. Ins. Ass'n, 39 S.W.3d 337, danger.” Tex. Att'y Gen. ORD1977–0169, at 6. It must 348 (Tex.App.-Austin 2001, no pet.) (determining that be “more than a desire for privacy or a generalized because the “[c]ommon law protects information that

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 7

343 S.W.3d 112, 39 Media L. Rep. 2267, 54 Tex. Sup. Ct. J. 1428 (Cite as: 343 S.W.3d 112)

meets the traditional six-factor test for trade-secret plaintiff's interest in the integrity of his perprotection ,” information was excepted from disclosure son”) (quoting PROSSER, LAW OF TORTS under the PIA). The court of appeals' holding is un- 32 (3d ed.1964)). derstandable, given that the Attorney General has characterized the “special circumstances” exception [2] Both the legislative and executive branches as falling under the common law privacy umbrella. have recognized that, as valuable *118 as the right to See, e.g., Tex. Att'y Gen. OR2005–07052, at 6 (noting public information is, a person's physical safety suthat “information also may be withheld under section persedes it. Those branches are not alone. Our com- 552.101 in conjunction with common law privacy mon law protects—and has always protected—that upon a showing of certain ‘special circumstances' ”). interest, making such information confidential. We But freedom from physical harm is an independent must decide, then, the appropriate standard for asinterest protected under law, untethered to the right of sessing whether disclosure would violate that interest. privacy. While we are not bound by the Legislature's policy decisions when we consider protections afforded by The privacy interest protects against four distinct the common law, “the boundaries the Legislature has kinds of invasions (intrusion upon seclusion, public drawn do inform our decision.” Ford Motor Co. v. disclosure of private facts, false light publicity, and Miles, 967 S.W.2d 377, 383 (Tex.1998); see also appropriation); physical harm is not among them.FN14 Austin v. HealthTrust, Inc., 967 S.W.2d 400, 403 KEETON, THE LAW OF TORTS 40, 851 (noting (Tex.1998). We conclude that the “substantial threat that privacy is “not one tort, but a complex of four”). of physical harm” standard enunciated by the Legis- We have characterized privacy as “the right of an lature appropriately describes the interest protected individual to be left alone, to live a life of seclusion, to under the common law, and information may be be free from unwarranted publicity.” Billings v. At- withheld if disclosure would create a substantial threat kinson, 489 S.W.2d 858, 859 (Tex.1973) (citing 77 of physical harm. See TEX. GOV'T CODE § 552.151. C.J.S. Right of Privacy § 1). By contrast, the common We next examine that standard in light of the record law right to be free from physical harm is an interest in produced at trial. personal integrity, distinct from that covered by the privacy interest. KEETON, THE LAW OF TORTS [3] The trial court heard testimony from witnesses 40.FN15 It is integral to a civil society. Although mis- and reviewed the relevant documents and other excharacterized as a privacy related exception, the hibits. Although DPS proferred categories of lump “special circumstances” doctrine protects the right we sum expenses, showing amounts spent on airfare, have long recognized at common law. lodging, meals, car rental, and related matters, it argued that disclosing the vouchers themselves would FN14. As we noted in Industrial Foundation, give those intent on harming the governor the means the United States Supreme Court has also to accomplish that goal. DPS contended that the inrecognized a constitutional right of personal formation revealed travel patterns, the number and privacy in certain situations. Indus. Found. of placement of DPS officers on the detail, and how far in the South v. Tex. Indus. Accident Bd., 540 advance officers visit a location prior to the governor's S.W.2d 668, 679 (Tex.1976). arrival. The publishers presented evidence that the itemized vouchers and related documents disclose FN15. See also Fisher v. Carrousel Motor more information (and are more valuable to taxpayers, Hotel, Inc., 424 S.W.2d 627, 629 (Tex.1967) who fund the travel) than do line items with lump sum (describing battery as protecting “[t]he totals. The trial court concluded, categorically, that

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 8

343 S.W.3d 112, 39 Media L. Rep. 2267, 54 Tex. Sup. Ct. J. 1428 (Cite as: 343 S.W.3d 112)

“public disclosure of the information in the vouchers providing that security, and the identity of each officer requested by Cox and Hearst would not put any person the Department assigned to the governor's protection. in an imminent threat of physical danger or create a Because the past is prologue, at least when it reveals substantial risk of serious bodily harm from a rea- protocol DPS has implemented for ensuring the safety sonably perceived likely threat”—the standard for the of government officials, we cannot agree that infor- Attorney General's “special circumstances” test and mation from prior trips could not be used to inflict the constitutional exception urged by DPS, respec- future harm. tively. This determination is close, but not identical, to the standard we announce today for the common law But this may not justify withholding all but the right of physical safety. ultimate dollar figure for trips abroad, as DPS proposes . In this respect, the publishers' request has merit:

We have remanded a case to the trial court when the documents themselves provide a more complete we have changed our precedent or when the applicable picture of how taxpayer money is spent than do the law has otherwise evolved between the time of trial general categories and totals produced by DPS. This and the disposition of the appeal. See, e.g., Twyman v. fact was not lost on the Legislature, which categorized Twyman, 855 S.W.2d 619, 626 (Tex.1993) (remand in certain information in vouchers as core public inforinterest of justice because case was tried on legal mation. See TEX. GOV'T CODE § 552.022(a). And theory overruled by Court); Caller–Times Publ'g Co., we agree with the trial court that the public has a le- Inc. v. Triad Commc'ns, Inc., 826 S.W.2d 576, 588 gitimate interest in how public money is spent on (Tex.1992) (remand in interest of justice because official state business. The dividing line between Court announced new liability standard). We have disclosure and restraint must be determined by proof. also remanded for a trial court to determine “in light of To the extent DPS can show, with detailed evidence or [our] opinion, whether any of the information should expert testimony, that revelation substantially threatbe withheld from disclosure because confidential.” ens harm—as it has with respect to the number of Indus. Found., 540 S.W.2d at 686. Here, our decision guards protecting the governor—then the information recognizes, for the first time, a common law physical at issue may be withheld. A certain amount of defersafety exception to the PIA. And even though the ence must be afforded DPS officers and other law interest protected under that exception is enforcement experts about the probability of harm, well-established in our law, we have never before although vague assertions of risk will not carry the addressed whether or how it applies to the PIA. We day. But the public's right to “complete information”

FN16

conclude that a remand is appropriate. must yield when disclosure of that information would substantially threaten physical harm. On re-

On remand, the trial court must closely examine mand, the trial court must ascertain, under this standeach of the disputed documents. DPS is likely correct ard, what information may be confidential and what in one sense: disclosure of some of the information in must be disclosed. Accordingly, we remand the case the vouchers may create a substantial threat of phys- for a new trial. ical harm because it reveals specific details about the number of officers assigned to protect the governor, FN16. TEX. GOV'T CODE § 552.001(a). their general*119 location in relation to him, and their dates of travel. Indeed, the vouchers divulge the A brief word in response to the concurrence. The number of officers the DPS deemed necessary for the concurrence says our holding would “establish governor's security, the specific location (hotel and judge-made exceptions to the PIA's required discloroom number) where the officers resided when sure of information to the public, contradicting the

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 9

343 S.W.3d 112, 39 Media L. Rep. 2267, 54 Tex. Sup. Ct. J. 1428 (Cite as: 343 S.W.3d 112)

unanimous determination in our precedent, Industrial taliatory action that would occur if information was Foundation of the South v. Texas Industrial Accident disclosed).FN17 Our common law protects individuals Board.” 343 S.W.3d at 121. But Industrial Founda- from physical harm, and, consistent with the PIA, FN18 tion recognized that the PIA is subject to the common that protection extends to the disclosure of inforlaw and itself adopted a “judge-made” exception to mation that substantially threatens such harm. disclosure: the right of privacy. Indus. Found., 540 S.W.2d at 683 (holding that right of privacy FN17. See also Michael Hoefges et al., Priacknowledged in Billings v. Atkinson was “the type of vacy Rights Versus FOIA Disclosure Policy: information which the Legislature intended to exempt The “Uses and Effects” Double Standard in from mandatory disclosure” under the PIA provision Access to Personally–Identifiable Inforexcepting matters confidential by judicial decision). mation in Government Records, 12 WM. & We squarely held in In re Georgetown (a case in- MARY BILL RTS. J. 1, 7 (2003) (noting that volving core public information) that “other law” “the [Supreme] Court considers derivative included not just statutes and rules, but “judicial de- uses and secondary effects of disclosure on cisions.” Georgetown, 53 S.W.3d at 332. To reach that the privacy side as a matter of course”). holding, we relied on a United States Supreme Court decision that concluded the phrase “all other law,” by FN18. TEX. GOV'T CODE § 552.022(a).

itself, “indicates no limitation” and did not allow any distinction “between positive enactments and com-

III. Are the vouchers confidential under Governmon -law rules of liability.” Norfolk & W. Ry. Co. v.

ment Code section 418.176?

Am. Train Dispatchers Ass'n, 499 U.S. 117, 128–29, Finally, DPS contends the documents are exempt 111 S.Ct. 1156, 113 L.Ed.2d 95 (1991), quoted in from disclosure under Government Code section Georgetown, 53 S.W.3d at 333. The concurrence's 418.176. That statute, passed in 2003,FN19 makes cerposition is not unlike the Georgetown dissent's, a tain information relating to emergency response proposition we rejected then. We reject it again today.

viders confidential. The law provides, in pertinent Compare 343 S.W.3d at 124 (suggesting that “ ‘other part:

law’ must mean other statutory law where *120 the Legislature has declared certain information confidential ”), with Georgetown, 53 S.W.3d at 339 (Ab- FN19. See Act of June 2, 2003, 78th Leg., bott, J., dissenting) (suggesting that only the Legisla- R.S., ch. 1312, § 3, 2003 Tex. Gen. Laws ture could promulgate laws, so that rules of procedure 4809, 4813. could not be “other law”).

Information is confidential if the information is [4] The concurrence argues that because the in- collected, assembled, or maintained by or for a formation itself may not implicate privacy concerns, it governmental entity for the purpose of preventing, cannot be protected from disclosure as “expressly detecting, responding to, or investigating an act of confidential under other law.” TEX. GOV'T CODE § terrorism or related criminal activity and: 552.022. But information does not exist in a vacuum. When disclosure carries with it a serious risk of bodily (1) relates to the staffing requirements of an harm, we cannot ignore those consequences when emergency response provider, including a law deciding whether common law protections apply. Cf. enforcement agency, a fire-fighting agency, or an U.S. Dep't of State v. Ray, 502 U.S. 164, 177, 112 emergency services agency; S.Ct. 541, 116 L.Ed.2d 526 (1991) (considering re-

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 10

343 S.W.3d 112, 39 Media L. Rep. 2267, 54 Tex. Sup. Ct. J. 1428 (Cite as: 343 S.W.3d 112)

(2) relates to a tactical plan of the provider; or formation, with a greater emphasis on disclosure than other public information. See TEX. GOV'T CODE § (3) consists of a list or compilation of pager or 552.022(a). The Texas Department of Public Safety telephone numbers, including mobile and cellular argues that the information should not be disclosed, telephone numbers, of the provider. even though it is core public information, because of the risk to the safety of elected officials. There is no express exception to disclosure for this core public TEX. GOV'T CODE § 418.176(a).

information. This tension resulted in this Court concluding that it may establish judge-made exceptions to DPS contends that section 418.176 is “other law”

the PIA's required disclosure of information to the making the vouchers confidential. See id. 552.101.

public, contradicting the unanimous determination in Cox and Hearst argue that the vouchers do not meet our precedent Industrial Foundation of the South v.

section 418.176's requirements and, moreover, that Texas Industrial Accident Board. See 540 S.W.2d 668, DPS waived the issue by failing to raise it in the trial 682 (Tex.1976) (plurality op.) (“We decline to adopt court and the court of appeals. Because we are rean interpretation which would allow the court in its manding for a new trial, DPS may pursue this argudiscretion to deny disclosure even though there is no ment in the trial court in the first instance. Cf. Kallam specific exception provided....”); Id. at 692 (Reavley, v. Boyd, 232 S.W.3d 774, 776 (Tex.2007) (deferring J., dissenting) (“It was not the intention of the Legisdecision on issue until it had been fully litigated below lature to turn over the administration of the Open “ ‘so that we will have the benefit of developed ar-

Records Act to the judiciary.”). The Court concludes guments on both sides and lower court opinions that it is “not bound by the Legislature's policy decisquarely addressing the question’ ” (quoting *121Yee sions” in deciding common law exceptions to the v. City of Escondido, 503 U.S. 519, 538, 112 S.Ct.

statute, leaving no apparent boundaries on new 1522, 118 L.Ed.2d 153 (1992))).

common law exceptions to the legislated disclosure requirements in the PIA that courts may now create.

IV. Conclusion 343 S.W.3d 112.

We reverse the court of appeals' judgment and remand the case to the trial court for further proceed-

Further complicating the case, the trial court ings consistent with this opinion. TEX.R.APP. P.

made an express finding that “[p]ublic disclosure of 60.2(d).

the information in the vouchers requested by [the media representatives] would not put any person in an Justice WAINWRIGHT delivered a concurring imminent threat of physical danger or create a subopinion , joined by Justice JOHNSON. stantial risk of serious bodily harm from a reasonably Justice MEDINA and Justice WILLETT did not par- perceived likely threat.” The Court acknowledges a ticipate in the decision. lack of expertise in such matters and credits the law Justice WAINWRIGHT, joined by Justice JOHN- enforcement testimony that disclosure of the vouchers SON, concurring in the judgment. would create a threat of injury. While I agree with the The media requested vouchers that detail ex- Court's strong desire to keep public officials safe, once penditure of public funds for the governor's security the Legislature weighed in, the question of keeping detail when he travels. Because it concerns how the public information from the people is not one for the government spends taxpayer monies, the information courts. The Court should not judicially create an exin vouchers is not just “public information” under the ception to disclosure that contradicts the Legislature's Public Information Act (PIA), it is “core” public in- expressed intent in the PIA. I cannot join the Court's

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 11

343 S.W.3d 112, 39 Media L. Rep. 2267, 54 Tex. Sup. Ct. J. 1428 (Cite as: 343 S.W.3d 112)

opinion, but because I believe that DPS argued, and 552.022(a). This rule was important enough that the the trial court accepted, an exception not allowed by Legislature specifically commanded courts to comply law, I would remand in the interests of justice for the with it. Section 552.022(b) mandates that “[a] court in trial court to consider other exceptions grounded in this state may not order a governmental body or an “other law.” officer for public information to withhold from public inspection any category of public information de-

I. Background scribed by Subsection (a) or to not produce the cate-

The Public Information Act contains a compre- gory of public information for inspection or duplicahensive scheme arming the public with statutory tion, unless the category of information is expressly mandates for the government to disclose information made confidential under other law.” Id. § 552.022(b). “collected, assembled,*122 or maintained under a law or ordinance” or in connection with business by or for Reporters representing the Austin Ameria governmental body, and it is to be liberally con- can–Statesman, San Antonio Express–News, and the strued to grant requests for information. TEX. GOV'T Houston Chronicle sent requests to DPS officials. One CODE §§ 552.001(b), .002(a). All such information is reporter requested “travel vouchers for Gov. Rick subject to disclosure unless it is either later excepted Perry's security detail for all trips out of state during from the definition of “public information” or it falls two time periods. The first time period is January under an exception to disclosure. See id. §§ through December 2001. The second time period is 552.101–.151; cf., e.g., TEX. ELEC.CODE § January through June 2007.” Another requested “ac- 13.004(c) (defining certain voter registration infor- cess to or copies of travel vouchers for Gov. Rick mation as confidential and not “constitut[ing] public Perry's security detail.” The parties acknowledge that information” for purposes of the PIA). “Public in- these requests include “information in an account, formation” may be excepted from disclosure under voucher, or contract relating to the receipt or ex- Subchapter C, or may be prohibited from disclosure if penditure of public or other funds by a governmental the information is deemed “confidential.” TEX. body.” See id. § 552.022(a)(3). As such, the infor- GOV'T CODE §§ 552.007, .101, .352. mation requested is core public information. Id. § 552.022.

There is, however, another level of “public information .” Members of this Court and the Attorney II. Disclosure of Core Public Information as “Ex- General's Office have, in the past, called it “super pressly Confidential Under Other Law” public” information; today the Court calls it “core Compared to the dozens of exceptions for dispublic information.” See 343 S.W.3d 112; In re City of closure of “regular” public information, there is only Georgetown, 53 S.W.3d 328, 341 (Tex.2001) (Abbott, one exception to the PIA's mandated disclosure of J., dissenting); Tex. Att'y Gen. OR2004–7388. This is core public information—if it is “expressly confidenthe type of public information at the core of govern- tial under other law.” Id. The text of section 552.022's ment functions, generally relating to laws actually narrow exclusion contains three facial requirements: enacted, decisions of the judiciary, votes of the Leg- the information must be “confidential,” such designaislature , and how the government spends the people's tion that the information is confidential must be “exmoney . See TEX. GOV'T CODE §§ 552.022, .0221, press,” and the source of the confidential designation .0225. As such, core public information is not subject must be “other law.” This requirement was put in to the routine exclusions in Subchapter C, but may be place by a 1999 amendment. See Act of May 25, 1999, withheld from the public only if the information is 76th Leg., R.S., ch. 1319, § 5, 1999 Tex. Gen. Laws “expressly confidential under other law.” Id. § 4501. Prior to the amendment, *123 section 552.022

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 12

343 S.W.3d 112, 39 Media L. Rep. 2267, 54 Tex. Sup. Ct. J. 1428 (Cite as: 343 S.W.3d 112)

of the Government Code merely recognized the types formation Act. City of Georgetown, 53 S.W.3d at of information enumerated in section 552.022 were 332–33. I disagree with the Court's assertion that “public information.” It recognized that vouchers “other law” exceptions to disclosure of core public were public information “if the information is not information can mean “judicial decisions.” 343 otherwise made confidential by law.” Id. But the S.W.3d 112. The Court cites as authority for its amendment added language to the introductory clause, holding the case of In re City of Georgetown, a case in requiring that all types of core public information which the Court examined whether rules in the Texas enumerated in section 552.022 are public information Rules of Civil Procedure regarding attorney-client “and not excepted from required disclosure under this privilege constituted “other law” under section chapter unless they are expressly confidential under 552.022. Id. (citing City of Georgetown, 53 S.W.3d at other law.” Id.FN1 This 1999 amendment was heralded 332). In City of Georgetown, the Court held that beas a “true success” in providing a “citizen ... full and cause our enacted rules of court “have the same force complete information regarding official acts of those and effect as statutes,” and the rules were derived from who represent them and the affairs of government.” previously enacted statutes, such rules constitute Rick L. Duncan, No More Secrets: How Recent Leg- “other law” under section 552.022. 53 S.W.3d at 332 islative Changes Will Allow the Public Greater Access (quotation omitted). The Court today misreads City of to Information, 1 TEX. TECH. J. TEX. ADMIN. L. Georgetown, asserting that it serves as the basis for 115, 133 (2000). We should give effect to all the creating common law exceptions to the PIA. The words in a statute, and to changes in the words of Court cites no other Texas authority for this holding. legislative acts. See Indep. Life Ins. Co. of Am. v. Work, 124 Tex. 281, 77 S.W.2d 1036, 1039 (1934). As Other provisions in the PIA also indicate that judiscussed below, the Court's opinion does not, as it dicial decisions should not be “other law” for the ignores the “express,” “confidential,” and “other law” purpose of the section. See Molinet v. Kimbrell, ––– requirements of the statute. S.W.3d ––––, 2011 WL 182230 (Tex.2011) (noting that we examine the “entire act” to glean the meaning FN1. Recently, the Texas Legislature of a statute's text (citations and quotations omitted)). amended section 552.022's “expressly con- In section 552.101 of the PIA, the Legislature exfidential under other law” provision, and also cepted from disclosure information that is “considered added specific exceptions in the PIA for to be confidential by law, either constitutional, statucertain confidential information. See gener- tory, or by judicial decision.” TEX. GOV'T CODE § ally Act of May 20, 2011, 82nd Leg., R.S. (to 552.101. This provision applies to “public inforbe codified at TEX. GOV'T CODE chs. 51, mation” defined and disclosable pursuant to section 552). After the effective date, core public 552.021, and not to the core public information deinformation may be withheld from disclosure lineated in section 552.022. If we were to interpret if it is “made confidential under this chapter “other law” in section 552.022 to include law made or other law.” Id. § 2 (to be codified at TEX. pursuant to a judicial decision, we would effectively GOV'T CODE § 552.022). This amendment apply section 552.101's “judicial decision” exception does not apply to the case at bar, because the to disclosure to core public information. This *124 is statute's effective date is September 1, 2011. contrary to the Legislature's explicit statement that Id. § 41. core public information is “not excepted from required disclosure under this chapter,” including section A. Other Law 552.101. Id. § 552.022 (emphasis added). The most “Other law” means law other than the Public In- logical reading, then, is that “other law” must mean

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 13

343 S.W.3d 112, 39 Media L. Rep. 2267, 54 Tex. Sup. Ct. J. 1428 (Cite as: 343 S.W.3d 112)

other statutory law where the Legislature has declared is not an interpretation of “other law” under section certain information confidential,FN2 or rules of court 552.022, and, as discussed above, the two provisions drafted by this Court that are commensurate with are not coterminous. statutes. See City of Georgetown, 53 S.W.3d at 333.

In Industrial Foundation, all members of the FN2. This is essentially the limited exception Court agreed that the scope of the “judicial decision” under the federal Freedom of Information exception did not give the Court a blank check to Act. See 5 U.S.C. § 552(b)(3) (excluding create common law exceptions to the PIA. Id. at from FOIA's reach “matters that are specifi- 681–82 (plurality op.). “It was not the intention of the cally exempted from disclosure by statute ... Legislature to turn over the administration of the Open if that statute ... (i) requires that the matters Records Act to the judiciary.” Id. at 692 (Reavley, J., be withheld from the public in such a manner dissenting, joined by Steakley, Pope, and Denton, JJ.); as to leave no discretion on the issue; or (ii) see also Tex. Comptroller of Pub. Accounts v. Att'y establishes particular criteria for withholding Gen. of Tex., ––– S.W.3d ––––, 2010 WL 4910163 or refers to particular types of matters to be (Tex.2010) (Wainwright, J., dissenting) (“[C]ourts do withheld; and specifically references § not have the discretion to classify information as 552(b), if passed after 2009”). confidential on an ad hoc basis; confidentiality of public information is to be determined by the terms of The Court argues that the “other law” in this case the Act.”). As I discussed in Texas Comptroller, the is the “individual['s] right to be free from physical Legislature limited our ability to create judicial exharm ,” as manifested in the tort of battery. 343 S.W.3d ceptions to the PIA. Id. at ––––. Thus, the Legislature's 112. The Court posits that because physical safety is definition of the “judicial exception” includes only the “the primary concern of every government,” and the privacy torts recognized at the time of Industrial PIA protects private information, then it must surely Foundation. See 540 S.W.2d at 678–81. There was protect physical safety as well. Id. at 115 (quoting one such tort at that time-public disclosure of private United States v. Salerno, 481 U.S. 739, 755, 107 S.Ct. facts. I would thus limit the scope of the “judicial 2095, 95 L.Ed.2d 697 (1987)). The reasoning is a decision” exception to that tort. My fundamental sound policy argument in drafting legislation. Elected concern is the Court's willingness to create common officials should not be subjected to harm by dangerous law exceptions to the comprehensive disclosure persons whose task may be made easier through public scheme of the PIA, weakening the PIA in three coninformation requests. But the policy decision of how secutive opinions interpreting the Act— *125City of to satisfy that objective is not ours. The Legislature Dallas v. Abbott, 304 S.W.3d 380, 387 (Tex.2010) has made nondisclosure of the core public information (extending response periods by governmental entities at issue dependent on it being specifically designated to requests for public information when the request confidential by rules or statutes outside of the PIA. was unclear), Texas Comptroller, ––– S.W.3d at –––– (holding dates of birth “confidential” under “judicial decision” and excepting them from disclosure under Further, this Court has never held that other torts the PIA), and this case, DPS v. Cox.

would protect the disclosure of core public information under section 552.022. In Industrial Foundation of the South v. Texas Industrial Accident Board, Immediately after the dispute over the disclosure we decided the scope of information protected by of travel vouchers arose, the Legislature considered “judicial decision” under the predecessor to Govern- making such voucher information confidential. FN3 ment Code section 552.101. 540 S.W.2d at 683. This But it did not declare vouchers from security details

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 14

343 S.W.3d 112, 39 Media L. Rep. 2267, 54 Tex. Sup. Ct. J. 1428 (Cite as: 343 S.W.3d 112)

“confidential,” nor did it except these vouchers from created on or after September 1, 2011. Id.; the definition of “public information” under see also id. § 80. The Governor has not yet 552.022(a). Instead, the Legislature passed what is taken action on the bill. currently codified as section 552.151 of the Government Code.FN4 That section provides: Because the vouchers at issue in this case are not covered by the new section, its in-

FN3. Parallel bills in the Texas House and terpretation is not before this Court. Senate during the current legislative session attempted to specifically make “a voucher FN4. The original enacting legislation added submitted or to be submitted under [Chapter the exception as section 552.151. See Act of 660 of the Government Code] confidential May 31, 2009, 81st Leg., R.S., ch. 283, § 4, and may not be disclosed under the PIA” if 2009 Tex. Gen. Laws 742, 743 (codified at the voucher was for expenses incurred in TEX. GOV'T CODE § 552.151). This sesprotecting an elected official or the official's sion, the Legislature redesignated the section family. H.B. 3131, 82nd Leg. R.S., § 1 (in- as section 552.152, effective September 1, troduced March 10, 2011); S.B.1923, 82nd 2011. See Act of May 5, 2011, 82nd Leg., Leg., R.S., § 1 (introduced April 29, 2011). R.S., S.B. 1303, § 27.001(20). For the sake of Neither bill came to a vote before each bill's clarity, this opinion will refer to the provision respective chamber during the regular ses- as presently in force, section 552.151. sion. During the special session in June 2011, Senate Bill 1 was amended to make vouchers Information in the custody of a governmental body or other reimbursement forms confidential that relates to an employee or officer of the govfor a period of eighteen months following the ernmental body is excepted from the requirements date of travel “if the reimbursement or travel of Section 552.021 if, under the specific circumexpense incurred by a peace officer while stances pertaining to the employee or officer, disassigned to provide protection for an elected closure of the information would subject the emofficial of this state or a member of the ployee or officer to a substantial threat of physical elected official's family.” S.B. 1, 82nd Leg., harm.

1st C.S., § 79A.01 (introduced May 31, TEX. GOV'T CODE § 552.151 (to be recodified at 2011). Following the eighteen-month period, TEX. GOV'T CODE § 552.152). The amendment the vouchers “become subject to disclosure applies only to information to be disclosed pursuant under Chapter 552 and are not excepted from to section 552.021, i.e., regular “public inforpublic disclosure or confidential under that mation.” It is an exception in Subchapter C, which chapter or other law,” with seven exceptions, specifically does not apply to core public inforincluding the personal safety exception. Id.

mation, like information in the vouchers at issue in During the eighteen-month period, agencies this case. The Court argues that the Legislature's are required to submit expense summaries “swift passage” of section 552.151 of the Governproviding specified, detailed information. Id.

ment Code “confirms the primacy” of the govern-

The Legislature has provided that this Court ment's interest in protection against physical harm.

will have “original and exclusive mandamus 343 S.W.3d 112. But the Legislature's intent is best jurisdiction” over the construction, applicamanifested in what actually becomes law. Molinet, bility, or constitutionality of the amendment, ––– S.W.3d at –––– (“The plain meaning of the text and the amendment applies only to vouchers is the best expression of legislative intent unless a

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 15

343 S.W.3d 112, 39 Media L. Rep. 2267, 54 Tex. Sup. Ct. J. 1428 (Cite as: 343 S.W.3d 112)

*126 different meaning is apparent....”). The gag orders during trial. See In re Bass, 113 promulgation of section 552.151 demonstrates the S.W.3d 735, 739 (Tex.2003) (defining trade opposite. Section 552.151 is not an exception to the secrets); RESTATEMENT (THIRD) OF mandated disclosure of core public information. UNFAIR COMPETITION §§ 39, 40, 41 The Court's opinion grafts the Legislature's test (similarly defining trade secrets and remedies found in section 552.151 onto situations in which available for protection of trade secrets); the Legislature unambiguously did not intend. The TEX.R. CIV. P. 193.3 (setting standards for Court would rewrite section 552.151 to hold that asserting privileges in discovery); In re E.I. such information is “excepted from the require- DuPont de Nemours & Co., 136 S.W.3d 218, ments of sections 552.021 or 552.022 ” and moves 222–23 (Tex.2004) (per curiam) (providing the section out of the PIA such that it can be con- for mandamus relief for erroneous rulings on sidered “other law.” 343 S.W.3d 112 (emphasis privileged documents); Indus. Found. of the added). The Court should not by common law S. v. Tex. Ind. Accident Bd., 540 S.W.2d 668, override a specific statutory mandate. 682–83 (Tex.1976) (plurality op.) (discussing the tort of public disclosure of private B. Confidential facts); Davenport v. Garcia, 834 S.W.2d 4, Even if “other law” may include judicial deci- 10 (Tex.1992) (discussing a court's authority sions and the common law, section 552.022 requires to issue gag orders). that the “other law” declare the information “confidential .” “Confidential” may have a fluid meaning, Once again, the Court creates a judicial exception such as “protected,” “secured,” or “safeguarded.” Cf. to disclosure of information in the PIA based on a City of Georgetown, 53 S.W.3d at 334 (“A law does possible use of the information rather than the nature not have to use the word ‘confidential’ to expressly of the information itself. In Texas Comptroller, the impose confidentiality.”). The Legislature has enacted Court, for the first time, considered derivative harm a plethora of laws that deem certain information arising from the release of information—whether “confidential” for myriad purposes. See Tex. Comp- disclosure of birth dates of public employees, along troller, ––– S.W.3d –––– (Wainwright, J., dissenting) with other information, could be used for identity (noting that “no fewer than 100 Texas statutes classify theft. The Court held that such potential tortious use of information as confidential for purposes of the PIA”); the public information constituted grounds to withhold City of Georgetown, 53 S.W.3d at 339–40 (Abbott, J., the information because it would constitute a “clearly dissenting) (providing four examples of information unwarranted invasion of personal privacy.” Tex. “expressly made confidential” in the Transportation Comptroller, ––– S.W.3d at ––––. But the courts are Code, Education Code, and Family Code). Likewise, not “free to balance the public's interest in disclosure there are a number of tort actions, both statutory and against the harm resulting to an individual by reason common law, that recognize that certain types of in- of such disclosure.” Indus. Found., 540 S.W.2d at formation are private or confidential. FN5 But in every 681–82 (plurality op.). “This policy determination was instance, the information itself is the issue, and the made by the Legislature when it enacted the statute.” statute, decision, rule, or crime exists to protect the Id. at 682. The Legislature granted the people's right to information itself or a person who will be directly the information after considering*127 its potential harmed by the information's release. uses and harms. The Court, apparently believing the Legislature did not sufficiently execute its task, finds a FN5. Examples include trade secrets, privi- new common law exception to disclosure based on its lege, public disclosure of private facts, and own views of harm in the potential use of, on this

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 16

343 S.W.3d 112, 39 Media L. Rep. 2267, 54 Tex. Sup. Ct. J. 1428 (Cite as: 343 S.W.3d 112)

occasion, core public information. tort of battery is when a person “(a) ... acts intending to cause a harmful or offensive contact with the person of In Texas Comptroller, as here, the Court did not the other or a third person, or an imminent apprehenrestrict itself to considering whether the actual release sion of such a contact, and (b) a harmful contact with of the information (state employees' birth dates) was the person of the other directly or indirectly results.” harmful, but rather whether, in the wrong hands and in RESTATEMENT (SECOND) OF TORTS § 13 combination with other information, such as Social (1965); see also Bailey v. C.S., 12 S.W.3d 159, 162 Security numbers, state employees might be at higher (Tex.App.-Dallas 2000, no pet.) (“A person commits a risk for identity theft. Tex. Comptroller, –––S.W.3d battery if he intentionally or knowingly causes phys- ––––. The harm was derivative, and the analysis al- ical contact with another when he knows or should lowed for post-hoc, judicially created exceptions to reasonably believe the other person will regard the disclosure. For the same reasons as in Texas Comp- contact as offensive or provocative.”). Nowhere in the troller, I believe the Court's analysis and application tort's elements, or in any of our cases, is it “directly, of derivative harm to create an exception to disclosure firmly, and explicitly stated” that battery protects is inappropriate, particularly so because of the core information from disclosure. The tort concerns public nature of the information at issue, and because harmful or offensive intentional contact. The Court the Court's rule could permit unfettered judicial dis- ignores this critical requirement of the statute limiting cretion in declaring any information not subject to a court's ability to protect information from disclosure. disclosure. Its discovery of this common law right may even inadvertently have the effect of creating Simply put, common law battery is not “other some common law cause of action for “wrongful law” under which the information at issue here is disclosure of information,” and may have the potential “expressly confidential.” The Court oversteps legisto randomly and unnecessarily subject various gov- lated limits recognized in Industrial Foundation to ernment agencies and officers to criminal liability for interpret exceptions to disclosure under the PIA. For simply disclosing what the Legislature determined, this reason, I do not join in the Court's opinion. and the Court admits, is core public information. See TEX. GOV'T CODE § 552.352 (defining the misde- *128 III. Remand Is Appropriate meanor crime of distribution of information “consid- Although I cannot join the Court's opinion, I join ered confidential under the terms of this chapter”). its judgment that remand is appropriate. I believe DPS's and the trial court's improper reliance on the C. Expressly “special circumstances” exception, and the possibility Even if our common law torts are “other law,” of harm to public officials, warrants a remand in the and even if, somehow, the threat of the tort of battery interests of justice. I also believe that DPS should have declares some unknown information “confidential,” the opportunity to argue that a specific exception to the final requirement of section 552.022 is that the disclosure made by the Homeland Security Act should “other law” must “expressly” make the information apply. “confidential.” The Court does not address how it believes that the information at issue here is “ex- The Court relies on and builds upon the Attorney pressly” confidential. Merriam–Webster's dictionary General's “special circumstances” test, which the defines “express” as “directly, firmly, and explicitly Attorney General has applied numerous times in varstated .” MERRIAM–WEBSTER DICTIONARY, ious letter rulings, in support of its holding today. available at http:// www. merriam- webster. com/ However, this test, and its rulings, do not apply to the dictionary/ express (last visited June 21, 2011). The information at issue here nor to the legal theory upon

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 17

343 S.W.3d 112, 39 Media L. Rep. 2267, 54 Tex. Sup. Ct. J. 1428 (Cite as: 343 S.W.3d 112)

which the Court relies in withholding the information. facts (discussed in Industrial Foundation and analyzed under the employment file exception, prede-

The genesis of the test is a one-page letter ruling cessor to section 552.102) as another “judicial decifrom 1974, that was later expanded in 1977. It was not sion” excluding information pursuant to section a freestanding test to withhold information, but rather 552.101. was used in determining whether information could be withheld as a “clearly unwarranted invasion of per- It also appears that the Attorney General has desonal privacy,” a separate, statutory exception to dis- termined that section 5 52. 101 is “other law” for the closure of non-core public information in the Act. Tex. purpose of deciding whether core public information Att'y Gen. ORD–54 (1974); Tex. Att'y Gen. can be withheld. I agree that the tort of public dis- ORD–169 (1977); see also TEX. GOV'T CODE § closure of private facts may be a “judicial decision,” 552.102 (providing an exception for regular “public” as it was extant at the time the PIA was promulgated, information for information in a personnel file, “the that could be the basis of an exclusion from disclosure disclosure of which would constitute a clearly un- under section 552.101 and may also be “other law” by warranted invasion of personal privacy”). In other which core public information is “expressly confiwords , the attorney general examined “special cir- dential” under section 552.022. However, section cumstances,” such as an employee's specific history of 552.101, in and of itself, cannot be “other law” to being threatened, harassed, or stalked, to see if in- withhold core public information. To enact such a rule formation in a state employee's personnel file should would thwart the Legislature's*129 expressed intent not be disclosed under what is now section 552.102 of that core public information is not subject to the the PIA. Rather than protecting more information Subchapter C exceptions, including section 552.101. from disclosure, the “special circumstances” test, as This is further evidenced by the fact that the Legislainitially articulated by the attorney general, actually ture's new “special circumstances” exception, which required more information to be disclosed, because appears to be similar to the Attorney General's only if the “special circumstances” existed could an so-called common law privacy “special circumstancemployee 's personnel information (including his or es” exception, is in Subchapter C, thus currently apher home address, phone number, and other personal plying to “public information” but not core public information) be withheld. Tex. Att'y Gen. ORD–54 information that must be disclosed pursuant to section (1974); Tex. Att'y Gen. ORD–169 (1977). 552.022. Therefore, the Attorney General's “special circumstances” exception should not apply to the In later attorney general opinions, though, the information here.

“special circumstances” test was not discussed in conjunction with section 552.102's “clearly unwar- The Attorney General's “special circumstances” ranted invasion of personal privacy” in employees' test cannot apply in this situation. However, because personnel files, but rather as a privacy exception or the use of the test as an independent basis for with- “other judicial decision” under section 552.101. See, holding information was reasonably well established e.g., Tex. Att'y Gen. OR2004–10845. No party ex- in a number of attorney general letter rulings for a tensively discussed the evolution of this test in the number of years, because DPS and the trial court attorney general's office from 1977 until today. erroneously relied upon the test, and because of the However, it appears that the attorney general's basis serious personal safety concerns at issue in this case, I for applying the “special circumstances” test to in- would remand in the interest of justice to allow DPS to formation not subject to disclosure was based on the argue any and all exceptions that are based on “other application of the tort of public disclosure of private law,” such as one based on Government Code section

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 18

343 S.W.3d 112, 39 Media L. Rep. 2267, 54 Tex. Sup. Ct. J. 1428 (Cite as: 343 S.W.3d 112)

418.176, the exception from the Homeland Security in the nation,FN6 I respectfully cannot join the Court's Act. See TEX.R.APP. P. 60.3; Low v. Henry, 221 opinion. But because I believe remand in the interest S.W.3d 609, 621 (Tex.2007) (remanding “to allow the of justice is appropriate, I join the Court's judgment. parties to present evidence responsive to [the Court's] new guidelines”). FN6. See City of Dallas, 304 S.W.3d at 395 n. 5 (Wainwright, J., dissenting) (citing 151 On remand, the trial court should consider Cong. Rec. S1525–26 (Feb. 16, 2005)

whether specific information in the vouchers raises (statement of Senator John Cornyn)). serious security concerns and should be redacted. For example, in the sample submitted in camera to the Tex.,2011. Court, one cannot only identify at which specific Texas Dept. of Public Safety v. Cox Texas Newspahotels the Governor's security detail stayed and, in- pers, L.P. ferentially, whether they stayed in the same hotel as 343 S.W.3d 112, 39 Media L. Rep. 2267, 54 Tex. Sup. the Governor, but also when the members of the detail Ct. J. 1428 arrived and departed from the foreign country. Other information in the vouchers, such as total amounts END OF DOCUMENT

spent for lodging or costs of meals, may not present the same security concerns. The trial court should carefully consider the varying levels of concern for the different types of information in the vouchers.

IV. Conclusion

There is legitimate concern about fashioning a rule that could allow those who want to do harm to government officials to gain information to help them do so through the government's own records. The rule the Court announces today—that it can fashion common law exceptions to disclosure of core public information—is based on a genuine concern to protect our public officials from physical harm and acts of terrorism, but it thwarts the Legislature's clear statement that it, not the courts, grants exceptions to the public's access to public information. There are many statutes and rules that make information “expressly confidential,” but the judge-made tort of battery is not one, and we should guard against any court creating reasons to keep government information from its citizens. That policy-laden task, as emphasized in Industrial Foundation, belongs to the Legislature. Because the Court's rule opens the door to new judicially created exceptions to disclosure of core public information and weakens what was one of the strongest, most robust freedom of information statutes

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.