From: John McMillan
To: District 4 ; Travis County Commissioner Jeff Travillion (2017) ; Travis County Judge Sarah Eckhardt ; Travis County Commissioner Brigid Shea ; Margaret Moore ; Hernandez Sally [TCSO] ; Darla Dixon ; U.S. Rep. Lloyd Doggett (2015) ; Kirk Watson ; Rep. Sheryl Cole (2019 CentralTX) ; Office for Victims of Crime (U.S. DOJ) ; ACLU ; CountyAttorneyDavidEscamilla ; Texas Legal ; Fbinaa Info ; Texas DPS Office of General Counsel ; U.S. Department of Homeland Security ; Governor's Office of Texas Open Records Administrator ; central_texas@cruz.senate.gov ; Austin Mayor Steve Adler ; Rey Arellano ; Texas Association Against Sexual Assault Atty Kaiser 2016 ; U.S. Dept. of Housing and Urban Devlpt (TX regional office) ; patsy.spaw@senate.texas.gov ; marcos.johnson@austintexas.gov ; Jackson Anna ; APD Interim Police Chief Brian Manley ; Texasadvocacyproject Info ; State Comptroller Criminal Investigations Division Chief Martin Cano ; Justin Holland ; David Maxwell ; Gerald Daugherty ; Joyfulheartfoundation Info ; Austin Board of Realtors-Govt. Relations ; Gina Hinojosa ; Piper Stege Nelson ; sarah@nshhcoalition.org ; Jeff Pender ; Patrick B. Howard ; Christian Hawley ; John Hitzelberg ; Williamson County (TX) Attorney (2016) ; Bnaibrith Info ; Rainn Info ; National Crime Victim Law Institute (Lewis & Clark Law School Portland Oregon) ; Attorney Cousin Jack Dane ; TRA General Counsel Kenneth Besserman ; AARP ; Cedar Park (TX) Police (2016) ; Dwayne Bohac ; StateRep.DonnaHoward ; Ghbc Info ; Javier Cansino ; Sunset Valley Police Dept. Lt. Richard Andreucci ; Austin American-Statesman Managing Editor John Bridges ; Rabbinic Call for Human Rights (NYC) ; National Center On Elder Abuse ; Don Zimmerman District 6 Northwest Austin ; Leticia Solis ; Federal Law Enf. Officers Assn ; Outback Asst Mgr Nick Burton ; Austin Chronicle Editors ; news@cbsaustin.com ; Austin City Council Member Ann Kitchen (2016) ; Rep. Erin Zwiener 2019CentralTX ; Rep. James Talarico 2019 Central TX ; Rep. Vikki Goodwin 2019CentralTX ; Rep. John Bucy 2019CentralTX ; State Rep. Eddie Rodriguez (Austin area) ; Garnet F. Coleman ; Kyle Biedermann ; jon.rosenthal@house.texas.gov ; Jonathan Stickland ; State Senator Joan Huffman ; Senator John Whitmire ; Amie Ely ; news@texasmonthly.com ; Texas Tribune Editor In Chief Evan Smith ; Editor 2016 Hill Country News ; DMN Austin Bureau Reporter Robert Garrett ; Letters To the Editor ; Houston Chronicle Letters To the Editor ; Houston Police Dept 2015 ; district9@austintexas.gov ; District 1 ; Trevor Glynn ; Todd Hunter ; carol.alvarado@senate.texas.gov ; Drew Springer ; CNN.Viewer.Communications.Management ; Human Rights Law Society (U of Chicago) ; Unknown National ; Common Cause ; news@dailytexanonline.com ; KXAN TV News Investigations ; District 8 ; takebackhope@tlsc.org ; CNN Television News Editors ; Texas Observer Editors ; Harvard Kennedy School Carr Center for Human Rights Policy
Sent: Friday, December 6, 2019, 12:16:25 AM CST
Subject: text of City's letter to OAG on my 11-13-19 PIR re: me and my OPO complaint vs APD Sgt.
(Please also note: the full exact text of my own November 13, 2019, email public-information request to the City of Austin is provided, final item below. The first paragraph (also provided in final item, below) of that PIR from myself: "This is a Texas Open Records request in which I seek to obtain from you a copy of any and all e-mail communications or any other written communications that at any time in calendar year 2019 were authored or generated or received or sent or mailed or forwarded or FAXed by any staff member or official of the Office of Police Oversight (OPO) of the City of Austin, and that, in each such case, specifically referred in any manner either to myself, John Kevin McMillan of Austin, or to OPO Complaint Number 2019-1056." ---John Kevin McMillan, public-information requestor, 8805 North Plaza Drive, Apt. 2418, Austin, TX 78753. My home phone: (512) 342-2295.)
______
City of Austin
Law Department
City Hall, 301 West 2nd Street, P.O. Box 1088
Austin, Texas 78767-8828
(512) 974-2268
Writer’s Direct Line
(512) 974-2154
Writer’s Fax Line
(512) 974-2894
December 5, 2019
VIA FIRST CLASS MAIL
Honorable Ken Paxton
Attorney General
Open Records Division
P.O. Box 12548
Austin, Texas 78711-2548
Re: Public Information Request received November 13, 2019, from John Kevin McMillan (PIR# X004530)
Dear Attorney General Paxton,
The City of Austin (the “City”) received the above-referenced public information request. The City was closed on November 28 and 29, 2019. The City has made a good-faith effort to relate the request to information in its custody.
The City believes the information at issue is excepted from required public disclosure under section 552.107 of the Government Code. This letter is a request for a determination under section 552.301 of the Government Code that the information at issue is so excepted. A copy of the request and a representative sample of the information are enclosed.
By copy of this letter the City is notifying the requestor that it has asked for a decision from the Office of the Attorney General.
Section 552.107(1) of the Government Code protects information within the attorney-client privilege. When asserting the attorney-client privilege, a governmental body has the burden of providing the necessary facts to demonstrate the elements of the privilege in order to withhold the information at issue. Open Records Decision No. 676 at 6-7 (2002).
First, a governmental body must demonstrate the information constitutes or documents a communication. Id. at 7.
Second, the communication must have been made “to facilitate 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 providing or facilitating professional legal services to the client governmental body. In re Tex. 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 professional legal counsel, such as administrators, investigators, or managers. Thus, the mere fact 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)(l). 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 persons other than those: (A) to whom disclosure is made to further the rendition of professional legal services to the client; or (B) reasonably necessary to transmit 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, orig. proceeding).
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).
The information at issue consists of e-mail communications between attorneys in the City’s Law Department and City employees in their capacity as client representatives. These communications were made in order to facilitate the rendition of legal services to the City. These communications were intended to be confidential and have remained confidential. Accordingly, the City may withhold the information under section 552.107(1) of the Government Code.
If you have any questions concerning this matter, you may contact me at (512) 974-2154.
Sincerely,
Neal Falgoust
Assistant City Attorney
Enclosure
cc: (without enclosures)
John Kevin McMillan
8805 North Plaza Drive
Apt. 2418
Austin, Texas 78753
________
----- Forwarded Message -----
From: John McMillan
To: City of Austin Open Records Coordinator ; District 4 ; Texas Rangers Division of DPS ; Texas Legal ; ACLU ; Office for Victims of Crime (U.S. DOJ) ; Travis County Judge Sarah Eckhardt ; Patrick B. Howard ; Fbinaa Info ; Travis County Commissioner Jeff Travillion (2017) ; U.S. Department of Homeland Security ; Texas DPS Office of General Counsel ; Kirk Watson ; Rep. Sheryl Cole (2019 CentralTX) ; U.S. Rep. Lloyd Doggett (2015) ; central_texas@cruz.senate.gov ; CountyAttorneyDavidEscamilla ; Governor's Office of Texas Open Records Administrator ; Hernandez Sally [TCSO] ; Margaret Moore ; dave.mahoney@traviscountytx.gov ; DFPS Office Of Consumer Relations ; Texas Association Against Sexual Assault Atty Kaiser 2016 ; U.S. Dept. of Housing and Urban Devlpt (TX regional office) ; David Maxwell ; Travis County Commissioner Brigid Shea ; Joyfulheartfoundation Info ; CBS News Story Ideas Editors ; Amy Lee ; Ariella Hannon ; Don Zimmerman District 6 Northwest Austin ; Austin City Council Member Ann Kitchen (2016) ; district9@austintexas.gov ; Rabbinic Call for Human Rights (NYC) ; State Comptroller Criminal Investigations Division Chief Martin Cano ; Travis County Criminal Justice/Public Safety Director ; National Crime Victim Law Institute (Lewis & Clark Law School Portland Oregon) ; Florida Sexual Crimes Investigators Assn. Exec Dir Moore 2016 ; Rainn Info ; Justin Holland ; Dwayne Bohac ; Garnet F. Coleman ; Senator John Whitmire ; Rep. John Bucy 2019CentralTX ; Rep. Erin Zwiener 2019CentralTX ; Rep. Vikki Goodwin 2019CentralTX ; State Rep. Eddie Rodriguez (Austin area) ; StateRep.DonnaHoward ; Todd Hunter ; Attorney Cousin Jack Dane ; California Sexual Assault Investigators Assn Pres. 2016 ; Gerald Daugherty ; Gina Hinojosa ; Wind River Crossing GM Ann Coker ; TRA General Counsel Kenneth Besserman ; Bnaibrith Info ; Public Information ; Saintalbert Info ; Trevor Glynn ; Ghbc Info ; Criminal Justice Journalists Brd Wenger 2016 ; Criminal Justice Journalists Board Member Rashbaum ; Crime Report Ed. Stephen Handelman (2016) ; Minnesota Sex Crimes Investigators Assn. Brd Member Dunphy (2016) ; AARP ; Minnesota Center Against Sexual Assault Violence and Abuse ; rosie.truelove@austintexas.gov ; TX National Center On Domestic and Sexual Violence Dir. Debbie Tucker Austin ; cji@uh.edu ; Jacqueline L. Angel ; executivedirector@nebraskacoalition.org ; margaret.gomez@traviscountytx.gov ; Houston Police Dept 2015 ; Federal Law Enf. Officers Assn ; Outback Asst Mgr Nick Burton ; brooke.grona-robb@dallascounty.org ; Austin Board of Realtors-Govt. Relations ; Attorney General of Massachusetts ; Mncasa Info ; Cedar Park (TX) Police (2016) ; shawn.dick@wilco.org ; Kyle Biedermann ; jon.rosenthal@house.texas.gov ; Jonathan Stickland ; patsy.spaw@senate.texas.gov ; info@nacole.org ; National Coalition Against Domestic Violence Denver 2017 ; Austin American-Statesman Managing Editor John Bridges ; Austin Tenants' Council 2017 ; Austin Chronicle Editors ; Editor 2016 Hill Country News ; Piper Stege Nelson ; Williamson County (TX) Attorney (2016) ; Williamson County Sheriff Chody 2018 ; news@cbsaustin.com ; nbunn@ndaajustice.org ; Andrew-Rich@iowa-city.org ; Louisiana Foundation Against Sexual Assault ; takebackhope@tlsc.org
Sent: Wednesday, November 13, 2019, 02:27:41 AM CST
Subject: 11-13-19 PIR re: OPO Complaint 2019-1056
To: Open Records Coordinator,
City Government of Austin,City of Austin Public Information Office,
301 West 2nd Street,
Austin, TX 78701
Office phone: (512) 974-2220
FAX: 512-974-2405
November 13, 2019
This is a Texas Open Records request in which I seek to obtain from you a copy of any and all e-mail communications or any other written communications that at any time in calendar year 2019 were authored or generated or received or sent or mailed or forwarded or FAXed by any staff member or official of the Office of Police Oversight (OPO) of the City of Austin, and that, in each such case, specifically referred in any manner either to myself, John Kevin McMillan of Austin, or to OPO Complaint Number 2019-1056.
I myself wrote and submitted the above-cited OPO complaint on September 25, 2019, at the official OPO website.
This public-information request was prompted in part in part by the factual information that no OPO staff member employed as a "Complaint Specialist" has ever actually interviewed me or spoken with me on the telephone at any time. I have called the Office of Police Oversight on several occasions in recent weeks, and I have been repeatedly informed on the phone that either a complaint specialist or a cited supervisory staff member in that office will call me back and speak with me. However, I have not yet received any such reply phone call or reply phone message from an actual complaint specialist or an actual supervisor for the OPO. So far, I have not been granted any phone conversation or in-person meeting with any supervisor or any complaint specialist in that new government office for the City Government of Austin. I did leave one voice mail message at 2:36 p.m. November 5, 2019, for Ms. Mia Demers, a cited female work supervisor for OPO, upon referral at that time from a female program specialist who had herself politely answered the telephone for OPO at 2:25 p.m. November 5. That female program specialist stated to me that her own first name is "Mallory", but that she was not willing to state her own last name, Mallory said.
The most recent written reply I have received so far from the Office of Police Monitor was the following e-mail to me:
"To:John McMillan
"Hello,
"Your complaint # is 2019-1056.
"Our office has no legal authority.
"Regards,
"Office of Police Oversight"
_______
The civilly-worded legal complaint to OPO from myself that I submitted online on September 25, 2019, was focused on Sergeant Sandra Benningfield of the Austin Police Department Sex Crimes Unit. Sergeant Benningfield is the reported chief administrator of the APD Sex Crimes Unit, and is reportedly one of three total sergeants currently employed in that APD unit in Austin, Texas. The other two sergeants in that APD Unit are reportedly Sergeant Richard Jennings and Sergeant Jason Laduque.
The Office of Police Oversight reports directly to the Austin City Manager, according to what I was told this week by a very helpful 311 telephone reference service staff member for the City of Austin.
Two of the primary phone numbers for the City of Austin Office of Police Oversight are: (512) 974-9090 and (512) 972-2676. The OPO FAX number is 512-974-6306. The street address for the OPO is: 1520 Rutherford Lane, Austin, TX 78754.
Sincerely and Best Wishes,
from former Texas Department of Public Safety state agency full-time employee and former Texas Board of Pardons and Paroles state agency full-time employee John Kevin McMillan.
I myself am a certified direct descendant of the Rev. William Brewster, who served as head chaplain on the Mayflower and was a leading religious adviser to British Plymouth Colony Governor William Bradford. That territory is currently situated in the U.S. state or Commonwealth of Massachusetts.
My current home address ever since June 21, 2019:Pebble Creek Apartments, 8805 North Plaza Drive, Apt. 2418 (a second-floor, eastward-facing unit in Building 17, which is itself situated near the northeastern corner of this complex), Austin, TX 78753.
Home phone: (512) 342-2295.
Cell phone: (512) 993-7305.
E-mail: mcmillanj@att.net
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