DAVID A. ESCAMILLA
C O U N T Y A T T OR N E Y
D A N H A M R E
F I R S T AS S I S T A N T
S H E R I N E E. T H O M A S
E X E C U T I V E C O U N T Y ATTORN E Y
3 1 4 W . 1 1 T H S T R E E T
G R A N G E R B L D G . ,
5 T H F L O O R
A U S T I N , T E X AS 7 8 7 0 1
P . O . B O X 1 7 4 8
A U S T I N , T E X AS 7 8 7 6 7
( 5 1 2 ) 8 5 4 - 9513
F A X : ( 5 1 2 ) 8 5 4 - 4808
TRANSACTIONS DIVISION
J O H N C . H I L L E , J R . , D I R E C T O R
B A R B A R A J . W I L S O N
E X E C U T I V E C O U N T Y ATTORN E Y
3 1 4 W . 1 1 T H S T R E E T
G R A N G E R B L D G . ,
5 T H F L O O R
A U S T I N , T E X AS 7 8 7 0 1
P . O . B O X 1 7 4 8
A U S T I N , T E X AS 7 8 7 6 7
( 5 1 2 ) 8 5 4 - 9513
F A X : ( 5 1 2 ) 8 5 4 - 4808
TRANSACTIONS DIVISION
J O H N C . H I L L E , J R . , D I R E C T O R
B A R B A R A J . W I L S O N
J E N N I F E R K R A B E R
ANN-M A R I E S H E E L Y
C . J . B R A N D T , J R .
M e m b e r o f t h e C o l l e g e o f t h e S t a t e B a r o f T e x a s
September 14, 2018
Hand Delivered
Mr. Justin Gordon,
Division Chief Office of the Attorney General of Texas—Open Records Division
P.O. Box 12548
Austin, Texas 78711-2548
Re: Request from John McMillan received on August 30, 2018—Request for Ruling and Supplemental Brief
Dear Mr. Gordon:
On behalf of Travis County Commissioner Gerald Daugherty, and under Government Code section 552.301, we request a ruling for this open records request. Commissioner Daugherty received the request on August 30, 2018.
Requestor (John Kevin McMillan, a resident of Travis County Precinct 3 and Austin City Council District 10, the latter of which is the intra-city district that Austin City Council Member Dr. Alison Alter, a resident of that latter district, primarily represents and serves on the Austin City Council governing body for the City of Austin, with City Council Member Alter ever since March 9, 2017, reportedly having prohibited the cited John Kevin McMillan--an Anglo single adult male gainfully employed taxpayer who himself does not have any criminal-conviction record----from ever again directly contacting either Council Member Alter or any of the City of Austin staff members she supervises, or her
University of Texas at Austin LBJ School of Public Affairs and UT-Austin History Department Professor husband, Dr. Jeremi Suri) seeks any written communication, including emails, since April 17, 2011 that were generated, sent, received, emailed or faxed by Commissioner Daugherty or any of his staff that referred to John (Kevin) McMillan.
Requestor also specifies that excluded from his request is any communication exclusively or solely written by him.
Below is our supplemental brief setting forth the exceptions to the disclosure of the responsive information.
By copy of this letter, we are informing the requestor that we wish to withhold the responsive information, and that we are asking for a decision from your office. We have included representative samples of the information for your review.
The responsive information may be withheld under Government Code section 552.107.
The only responsive information for this request involves information protected under the Attorney-Client Privilege.
Government Code section 552.107(1) protects information coming from within the attorney-client privilege. Section 552.107(1) is used when the requested information claimed to fall under the attorney-client privilege does not fall under the scope of Section 552.022 of the Government Code. The test for determining whether the specific information is protected under the attorney-client privilege of 552.107(1) is the same as the test used under Texas Rule of Evidence 503.
When asserting attorney-client privilege, a governmental body has the burden of providing the necessary facts to demonstrate the elements of the privilege to withhold the information at issue. Open Records Decision No. 676 at 6–7 (2002).
(Please note that the initial request was sent on August 29, 2018 after normal business hours of Commissioner Daugherty’s Office, and therefore, it is considered received the next business day- August 30, 2018. Further, Commissioner Daugherty’s Office was closed for business on September 3, 2018 in observation of the Labor Day holiday. For clarification, Commissioner Daugherty was not in office for a portion of the time frame specified by requestor (April 17, 2011 to December 31, 2012). Commissioner Daugherty took office as County Commissioner, Pct. 3 on January 1, 2013. Additionally, most of the communications from Commissioner Daugherty’s Office were emails written by requestor, and therefore not responsive to the request we are informing.)
First, a governmental body must demonstrate that the information constitutes or documents a communication. Id. at 7.
Second, the communication must have been made “for the purpose of facilitating the rendition of professional legal services” to the client governmental body. Tex. R. Evid. 503(b)(1). The privilege does not apply when an attorney or representative is involved in some capacity other than that of providing or facilitating professional legal services to the client governmental body. In re Texas Farmers Ins. Exch., 990 S.W.2d 337, 340 (Tex. App.–Texarkana 1999, orig. proceeding) (attorney-client privilege does not apply if attorney acting in a capacity other than that of attorney). Governmental attorneys often act in capacities other than that of professional legal counsel, such as administrators, investigators, or managers. The mere fact that a communication involves an attorney for the government does not demonstrate this element.
Third, the privilege applies only to communications between or among clients, client representatives, lawyers, and lawyer representatives. Tex. R. Evid. 503(b)(1)(A), (B), (C), (D),
(E).
Thus, a governmental body must inform your office of the identities and capacities of the individuals to whom each communication at issue has been made. Lastly, the attorney-client privilege applies only to a confidential communication, id. 503(b)(1), meaning it was “not intended to be disclosed to third parties other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.” Id. 503(a)(5).
Whether a communication meets this definition depends on the intent of the parties involved at the time the information was communicated. Osborne v. Johnson, 954 S.W.2d 180, 184 (Tex. App.—Waco 1997, no writ). Moreover, because the client may elect to waive the privilege at any time, a governmental body must explain that the confidentiality of a communication has been maintained. Section 552.107(1) generally excepts an entire communication that is demonstrated to be protected by the attorney-client privilege unless otherwise waived by the governmental body. See Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996) (privilege extends to entire communication, including facts contained therein).
Here, the responsive information meets all five elements of the attorney-client privilege pursuant to Texas Rule of Evidence 503:
(1) It constitutes “communications,” which is defined as the exchange of thoughts, message, or information;
(2) It was made “for the purpose of facilitating the rendition of professional legal
service” between the Travis County Attorney’s Office (“TCAO”) and Commissioner Daugherty’s Office, in the capacity of client;
(3) It contains communications between legal counsel of the TCAO and staff members of Commissioner Daugherty’s Office, and the information reveals client confidences, request for legal assistance and the attorneys’ legal advice;
(4) The communications were made between Commissioner Daugherty’s Office and legal counsel of the Travis County Attorney’s Office, and were not intended to be disclosed to third persons other than those to whom disclosure was made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communications; and
(5) The communications at issue have remained confidential and have been shared by TCAO and Commissioner Daugherty’s Office only with those persons to whom disclosure was made in furtherance of the rendition of professional legal services to the client and those reasonably necessary for the transmission of the communications. For reference, the responsive communications constitute emails between or among lawyers and staff of the Travis County Attorney’s Office and its client---Commissioner Daugherty’s Office, made for the purpose of facilitating the rendition of professional legal services and were intended to be confidential.
Accordingly, we assert that the information we have marked “107” should be withheld as an attorney-client communication.
In conclusion, we ask that you rule on whether the enclosed information must be released to the requestor.
If you have any questions, please contact me at (512) 854-9176, or by e-mail at ann-marie.sheely@traviscountytx.gov.
Sincerely, Ann-Marie Sheely
Assistant County Attorney
c: Sarah Leon
Commissioner Daugherty’s Office (via email, without enclosures)
ANN-M A R I E S H E E L Y
C . J . B R A N D T , J R .
M e m b e r o f t h e C o l l e g e o f t h e S t a t e B a r o f T e x a s
September 14, 2018
Hand Delivered
Mr. Justin Gordon,
Division Chief Office of the Attorney General of Texas—Open Records Division
P.O. Box 12548
Austin, Texas 78711-2548
Re: Request from John McMillan received on August 30, 2018—Request for Ruling and Supplemental Brief
Dear Mr. Gordon:
On behalf of Travis County Commissioner Gerald Daugherty, and under Government Code section 552.301, we request a ruling for this open records request. Commissioner Daugherty received the request on August 30, 2018.
Requestor (John Kevin McMillan, a resident of Travis County Precinct 3 and Austin City Council District 10, the latter of which is the intra-city district that Austin City Council Member Dr. Alison Alter, a resident of that latter district, primarily represents and serves on the Austin City Council governing body for the City of Austin, with City Council Member Alter ever since March 9, 2017, reportedly having prohibited the cited John Kevin McMillan--an Anglo single adult male gainfully employed taxpayer who himself does not have any criminal-conviction record----from ever again directly contacting either Council Member Alter or any of the City of Austin staff members she supervises, or her
University of Texas at Austin LBJ School of Public Affairs and UT-Austin History Department Professor husband, Dr. Jeremi Suri) seeks any written communication, including emails, since April 17, 2011 that were generated, sent, received, emailed or faxed by Commissioner Daugherty or any of his staff that referred to John (Kevin) McMillan.
Requestor also specifies that excluded from his request is any communication exclusively or solely written by him.
Below is our supplemental brief setting forth the exceptions to the disclosure of the responsive information.
By copy of this letter, we are informing the requestor that we wish to withhold the responsive information, and that we are asking for a decision from your office. We have included representative samples of the information for your review.
The responsive information may be withheld under Government Code section 552.107.
The only responsive information for this request involves information protected under the Attorney-Client Privilege.
Government Code section 552.107(1) protects information coming from within the attorney-client privilege. Section 552.107(1) is used when the requested information claimed to fall under the attorney-client privilege does not fall under the scope of Section 552.022 of the Government Code. The test for determining whether the specific information is protected under the attorney-client privilege of 552.107(1) is the same as the test used under Texas Rule of Evidence 503.
When asserting attorney-client privilege, a governmental body has the burden of providing the necessary facts to demonstrate the elements of the privilege to withhold the information at issue. Open Records Decision No. 676 at 6–7 (2002).
(Please note that the initial request was sent on August 29, 2018 after normal business hours of Commissioner Daugherty’s Office, and therefore, it is considered received the next business day- August 30, 2018. Further, Commissioner Daugherty’s Office was closed for business on September 3, 2018 in observation of the Labor Day holiday. For clarification, Commissioner Daugherty was not in office for a portion of the time frame specified by requestor (April 17, 2011 to December 31, 2012). Commissioner Daugherty took office as County Commissioner, Pct. 3 on January 1, 2013. Additionally, most of the communications from Commissioner Daugherty’s Office were emails written by requestor, and therefore not responsive to the request we are informing.)
First, a governmental body must demonstrate that the information constitutes or documents a communication. Id. at 7.
Second, the communication must have been made “for the purpose of facilitating the rendition of professional legal services” to the client governmental body. Tex. R. Evid. 503(b)(1). The privilege does not apply when an attorney or representative is involved in some capacity other than that of providing or facilitating professional legal services to the client governmental body. In re Texas Farmers Ins. Exch., 990 S.W.2d 337, 340 (Tex. App.–Texarkana 1999, orig. proceeding) (attorney-client privilege does not apply if attorney acting in a capacity other than that of attorney). Governmental attorneys often act in capacities other than that of professional legal counsel, such as administrators, investigators, or managers. The mere fact that a communication involves an attorney for the government does not demonstrate this element.
Third, the privilege applies only to communications between or among clients, client representatives, lawyers, and lawyer representatives. Tex. R. Evid. 503(b)(1)(A), (B), (C), (D),
(E).
Thus, a governmental body must inform your office of the identities and capacities of the individuals to whom each communication at issue has been made. Lastly, the attorney-client privilege applies only to a confidential communication, id. 503(b)(1), meaning it was “not intended to be disclosed to third parties other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.” Id. 503(a)(5).
Whether a communication meets this definition depends on the intent of the parties involved at the time the information was communicated. Osborne v. Johnson, 954 S.W.2d 180, 184 (Tex. App.—Waco 1997, no writ). Moreover, because the client may elect to waive the privilege at any time, a governmental body must explain that the confidentiality of a communication has been maintained. Section 552.107(1) generally excepts an entire communication that is demonstrated to be protected by the attorney-client privilege unless otherwise waived by the governmental body. See Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996) (privilege extends to entire communication, including facts contained therein).
Here, the responsive information meets all five elements of the attorney-client privilege pursuant to Texas Rule of Evidence 503:
(1) It constitutes “communications,” which is defined as the exchange of thoughts, message, or information;
(2) It was made “for the purpose of facilitating the rendition of professional legal
service” between the Travis County Attorney’s Office (“TCAO”) and Commissioner Daugherty’s Office, in the capacity of client;
(3) It contains communications between legal counsel of the TCAO and staff members of Commissioner Daugherty’s Office, and the information reveals client confidences, request for legal assistance and the attorneys’ legal advice;
(4) The communications were made between Commissioner Daugherty’s Office and legal counsel of the Travis County Attorney’s Office, and were not intended to be disclosed to third persons other than those to whom disclosure was made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communications; and
(5) The communications at issue have remained confidential and have been shared by TCAO and Commissioner Daugherty’s Office only with those persons to whom disclosure was made in furtherance of the rendition of professional legal services to the client and those reasonably necessary for the transmission of the communications. For reference, the responsive communications constitute emails between or among lawyers and staff of the Travis County Attorney’s Office and its client---Commissioner Daugherty’s Office, made for the purpose of facilitating the rendition of professional legal services and were intended to be confidential.
Accordingly, we assert that the information we have marked “107” should be withheld as an attorney-client communication.
In conclusion, we ask that you rule on whether the enclosed information must be released to the requestor.
If you have any questions, please contact me at (512) 854-9176, or by e-mail at ann-marie.sheely@traviscountytx.gov.
Sincerely, Ann-Marie Sheely
Assistant County Attorney
c: Sarah Leon
Commissioner Daugherty’s Office (via email, without enclosures)
John McMillan
Village Oaks Apartments
10926 Jollyville Rd.,
Apt. 1609
Austin, TX 78759 (via email to mcmillanj@att.net, without enclosures)
Posts
No comments:
Post a Comment
Please Leave Your Comments Here.