----- Forwarded Message -----
From: John McMillan <mcmillanj@att.net>
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Sent: Tuesday, October 20, 2020, 03:39:56 PM CDT
Subject: 10-20-20: UT System seeks permission from OAG to withhold peace-officer docs re: me
From: public-information requestor John Kevin McMillan. My solo-occupancy efficiency-apartment-unit rental-home address ever since June 21, 2019: Pebble Creek Apartments, 8805 North Plaza Drive,
Bldg. 17, Apt. 2418, Austin, TX 78753.
Bldg. 17, Apt. 2418, Austin, TX 78753.
A respectful FYI to each of you on the following.
Below, please find the exact text of the signed October 20, 2020-dated legal letter to the Attorney General of Texas that University of Texas System Assistant General Counsel Cynthia Tynan wrote and signed today. A copy of that letter was provided to me today by the UT System in e-mail attachment form.
The clarified first paragraph of a recent public-information request of mine that prompted Ms. Tynan to request permission from the State to withhold from me legal documents about me that are on file with UT System in Austin:
"I am seeking a copy of any and all written communications, including any and all e-mail communications and reports and directives, referring at least once in any manner to myself, John Kevin McMillan of Austin, that at any time from 12:01 a.m. April 28, 2011, to the present, were written, generated, sent, e-mailed, forwarded, mailed, FAXed, or received by a state-certified supervisory peace officer or any other state-certified peace officer employed inside the UT System Office of the Director of Police in downtown Austin. Excluded from the scope of this request are any and all documents that I myself exclusively wrote.”
_____________
The University of Texas System.
Fourteen Institutions. Unlimited Possibilities.
Office of General Counsel
210 West 7th Street
Austin, TX 78701-2903
512-499-4462
Cynthia Tynan
Assistant General Counsel & Public Information Coordinator
October 20, 2020
Justin Gordon
Division Chief
Open Records Division
Price Daniel Building
209 W. 14th Street,
6th Floor
Austin, Texas 78701
Re: Public Information Request #9 from John McMillan to The University of Texas System -- OGC# 198802
Dear Mr. Gordon:
On September 21, 2020, The University of Texas System (“UT System”) received a request for information from John McMillan (“Requestor”) (TAB 2). On October 5, 2020, the UT System sought, in good faith, clarification of the request. See Tex. Gov’t Code § 552.222(b) (governmental body may communicate with requestor to clarify or narrow request) (TAB 2). The UT System received the Requestor’s written response on October 6, 2019 ((footnote) 1) (TAB 2). (Footnote) 1: The requestor’s clarification was sent outside regular business hours on October 5, 2020. Thus, it is considered received the following business day.
In accordance with section 552.301 of the Texas Government Code, we now send this request for decision within ten business days from the date the clarified request was received. See City of Dallas v. Abbott, 304 S.W. 3d. 380, 384 (Tex. 2010) (holding that when a governmental entity requests a clarification or narrowing of a request for public information in good faith, the ten-day period to request an attorney general opinion as to an exception to disclosure is measured from the date the request is clarified). UT System has copied the Requestor on this letter brief in accordance with section 552.301(d).
The Requestor seeks access to the following information:
ORIGINAL REQUEST
Any and all written communications, including any and all e-mail communications and reports, referring at least once in any manner to myself, John Kevin McMillan of Austin, that at any time from 12:01 a.m. April 28, 2011, to the present, were written, produced, sent, e-mailed, forwarded, mailed, or received by a certified peace officer, regardless of his or her rank or title or administrative position, who either was at that time or currently is pursuing job duties in Travis County, Texas, for the UT System Police Department.
CLARIFIED REQUEST
I would like to substitute the following paragraph, immediately below, for the first paragraph of my September 21, 2020, public-information request (final item, below) to your UT System General Counsel and Vice Chancellor Daniel Sharphorn. “I am seeking a copy of any and all written communications, including any and all e-mail communications and reports and directives, referring at least once in any manner to myself, John Kevin McMillan of Austin, that at any time from 12:01 a.m. April 28, 2011, to the present, were written, generated, sent, e-mailed, forwarded, mailed, FAXed, or received by a state-certified supervisory peace officer or any other state-certified peace officer employed inside the UT System Office of the Director of Police in downtown Austin. Excluded from the scope of this request are any and all documents that I myself exclusively wrote.”
Initially, we note some of the responsive information at issue in the instant request is identical to the information previously ruled upon by your office in OR2016-27756 and OR2015-12465. As this information has been previously ruled upon and there have been no changes in the law, facts or circumstances, UT System will continue to rely on OR2016-27756 and OR2015-12465 for the identical information and withhold that information in accordance with these prior rulings.
UT System asserts the remaining responsive information, a representative sample of which is submitted within TAB 3, is protected from disclosure under section 552.107 of the Texas Public Information Act (“Act”).
Section 552.107 of the Texas Government Code
UT System asserts the remaining responsive information is protected under section 552.107 of the Act. Section 552.107(1) of the Texas Government Code protects information from public disclosure if it is prohibited from disclosure by “a duty to the client under the Texas Rules of Evidence or the Texas Disciplinary Rules of Professional Conduct.” TEX. GOV’T CODE § 552.107(1). As discussed below, Attorney General open records decisions have specifically cited Rule 503 of the Texas Rules of Evidence (“Rule 503”) in regards to attorney-client privilege or Rule 192.5 of the Texas Rules of Civil Procedure when considering core work product. See also, TEX. DISCIPLINARY R. OF PROF’L. CONDUCT § 1.05. These rules also extend to the exception to disclosure under § 552.107 of the Texas Government Code.
Under Rule 503, the privilege extends to a “client” or any “representative of a client.” TEX. R. EVID. § 503(b). A representative of a client is a “person having authority to obtain professional 3 legal services, or to act on advice thereby rendered, on behalf of the client, or any other person who, for the purpose of effectuating legal representation for the client, makes or receives a confidential communication while acting in the scope of employment for the client.” Id. § 503(a)(2). Open Records Decision No. 676 examines the scope of § 552.107(1) and holds, “information that is protected under Texas Rule of Evidence 503 is excepted from disclosure under Section 552.107(1).” Open Record Decision No. 676 (2002).
Open Records Decision No. 676 also states that “[a]n attorney for a governmental body has an independent duty of confidentiality for information subject to the attorney-client privilege as defined in Texas Rule of Evidence 503.” Id. Continuing, the decision states, “[a] governmental body has as much right as a private individual to consult with its attorney without risking the disclosure of communications protected by the attorney-client privilege.” Id. Further, section 552.107(1) protects the contents of the entire document containing privileged communications and not just portions designated as legal analysis or recommendations. Harlandale ISD v. Cornyn, 25 S.W.3d 328 (Tex. App. – Austin 2000, pet. denied).
In the responsive documents, attorneys for UT System are providing legal counsel, are gathering information in order to provide legal counsel, or their clients are seeking legal advice from them and include the necessary background information so that counsel will be able to render an opinion on a given situation. From the text of the communications, it is evident that the UT System attorneys were involved in providing legal counsel to employees of UT System. Within TAB 3, we have identified the parties and explained their roles within the attorney-client privilege; all are personnel of UT System, and/or are their representatives, and the issues of concern raised in these documents are within the course and scope of their employment and/or service to UT System. Thus, these individuals are clients with the authority to obtain legal advice and act on such advice as provided by the attorneys in their capacity as legal counsel. In addition, the privilege extends to the representatives of the attorneys and clients. Finally, the information at issue has been kept confidential and these documents were maintained only by and between the persons identified and protected by the privilege.
They were not intended to be, and have not been, disclosed to parties other than those encompassed by the protection of the attorney-client privilege.
UT System has the burden of demonstrating how and why responsive information is excepted under the attorney-client privilege and must show that the responsive documents at issue include confidential communications “to, from, or between representatives of the client governmental body, made for the purpose of effectuating legal representation for it, and the subject matter must pertain to the performance by each client representative of the duties of his or her employment.” See Open Records Decision No. 676 (2002). We believe we have provided your office with evidence sufficient to meet this burden.
The responsive information relates to documents created and communicated by UT System attorneys to provide legal advice or by a client seeking legal advice within the course and scope of the party’s employment or official capacity. Thus, it is our position that the marked responsive 4 information is confidential and privileged from disclosure and discovery under § 552.107 of the Texas Government Code.
Conclusion
UT System will continue to rely on OR2016-27756 and OR2015-12465 and withhold the identical information in accordance with those rulings. UT System respectfully requests that the Attorney General review the arguments presented in this brief and issue a ruling that the remaining responsive information is protected from disclosure as described herein.
All interested parties are listed below. If you need additional information, please do not hesitate to contact me at 512-499-4505.
Sincerely,
Cynthia Tynan
cc: Requestor:
(w/o Enclosures)
John McMillan
8805 North Plaza Drive
Austin, TX 78753
mcmillanj@att.net
John Kevin McMillan
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