The Follow-up Letter I Received Today That Was Sent To Me On Behalf of the Travis County District Attorney's Office in Austin, Texas

----- Forwarded Message -----

From: "Ramiro Gonzalez" <Ramiro.Gonzalez@traviscountytx.gov>

To: "John McMillan" <mcmillanj@att.net>

Cc: "Susie Duttinger" <Susie.Duttinger@traviscountytx.gov>, "Matthew Entsminger" <Matthew.Entsminger@traviscountytx.gov>, "Reva Hall" <Reva.Hall2@traviscountytx.gov>

Sent: Wed, Nov 8, 2023 at 8:12 AM

Subject: Response to Request for Information and Withdrawal - McMillan, J. (TCDA) OR #23.0547

Dear Mr. McMillan,

 

Thank you for pointing out your comment below.  In light of that, the Travis County District Attorney’s Office does not have any responsive information regarding your request.  Please see the attached withdrawal letter regarding your request for public information.

 

Respectfully,

Ramiro “Ram” Gonzalez

Paralegal

Travis County Attorney’s Office

(512) 854-6470

 

From: John McMillan <mcmillanj@att.net>

Sent: Monday, November 6, 2023 7:32 PM

To: Matthew Entsminger <Matthew.Entsminger@traviscountytx.gov>; Ramiro Gonzalez <Ramiro.Gonzalez@traviscountytx.gov

Subject: [CAUTION EXTERNAL] Fw: Text of Travis County Government's Legal Request to TX OAG to withhold from me one or more docs about my being a 'crime suspect'

 

CAUTION: This email is from OUTSIDE Travis County. Links or attachments may be dangerous. Click the Phish Alert button above if you think this email is malicious.

 

From public-information requestor John Kevin McMillan, 535 South 200 East. Apt. 912, Ninth Floor, Salt Lake City, UT 84111. 

My cell phone number: (512) 993-7305. My home phone: (512) 801-355-0850.

 

November 6, 2023

A respectful FYI to each of you very influential government officials and law-enforcement officers on the following e-mail letter and attached officially signed legal correspondence I received this Monday, November 6, 2023, from Paralegal Ramiro "Ram" Gonzalez of the Travis County Attorney's Office in Austin, Texas, and from Travis County Assistant County Attorney Matthew R. Entsminger, respectively. Please note that I have bold-faced some of the text in order to call attention to it.

 

The e-mail letter and the attached legal letter seeking official permission from the Attorney General of Texas to withhold legal documents from me were in response to my October 23, 2023-received e-mail Open Records Request to the Travis County District Attorney's Office in which I sought a copy of any and all legal documents received or produced in their DA's Office in Austin during the period from 8 a.m. January 1, 2021, until 8 a.m. October 23, 2023, that specifically  referred to me as being a "crime suspect" or "expected future crime suspect".

 

----- Forwarded Message -----

From: Ramiro Gonzalez <ramiro.gonzalez@traviscountytx.gov>

To: John McMillan <mcmillanj@att.net>

Cc: Susie Duttinger <susie.duttinger@traviscountytx.gov>; Matthew Entsminger <matthew.entsminger@traviscountytx.gov>; Reva Hall <reva.hall2@traviscountytx.gov>

Sent: Monday, November 6, 2023 at 11:28:27 AM MST

Subject: RE: TCDA ORR #23.0547

Dear Mr. McMillan,

 

This email is on behalf of the Travis County District Attorney's Office ("TCDA") regarding your request below. Please see the attached response regarding your request for public information submitted to their office. The responsive information has been sent to the Office of the Attorney General (“AG”) for their review. They have up to 45 business days to issue a ruling. Business days do not include weekends or holidays. TCDA will release some responsive information on a disc via regular mail.

 

Respectfully,

Ramiro “Ram” Gonzalez

Paralegal

Travis County Attorney’s Office

(512) 854-6470

 

From: John McMillan <mcmillanj@att.net>

Sent: Sunday, October 22, 2023 1:27 AM

To: DAOpenRecordsRequests <DAOpenRecordsRequests@traviscountytx.gov>

Subject: [CAUTION EXTERNAL] 10-22-23 PIR: any TCDA docs re: me as 'crime suspect'

 

CAUTION: This email is from OUTSIDE Travis County. Links or attachments may be dangerous. Click the Phish Alert button above if you think this email is malicious.

________________________________

 

 

To: Open Records Division Coordinator,

 Travis County District Attorney's (TCDA) Office,

 Travis County Government,

 Ronald Earle Building,

 416 West 11th Street,

 Austin, Texas 78701.

 FAX number: 512-854-4206.

 Main phone number for your DA's Office: (512) 854-9400.

  

Sunday, October 22, 2023

 

Dear Travis County District Attorney's Office Open Records Coordinator,

 

This is a follow-up Open Records request in which I seek to obtain from you a copy of any and all

e-mails or letters or other legal documents, and a copy of any and all phone messages, that each directly refer to me as currently being or having previously been a current or former crime suspect; a person convicted of a crime; an expected future crime suspect; or an expected future crime perpetrator, and that were each generated, authored, received, sent, mailed, FAXed, or forwarded by a staff member or official of your Travis County District Attorney's Office during the time period from 8 a.m. January 1, 2021, through 8 a.m. Monday, October 23, 2023.

 

My full legal name is "John Kevin McMillan". My date of Birth is 4-27-1957, and my birthplace city is Lincoln, Nebraska.

 

This follow-up public information request was prompted by an October 12, 2023, e-mail reply letter (below) to me in which paralegal Ramiro Gonzalez (of the Travis County Attorney's Office)...informed me in writing that the Travis County District Attorney's Office in Austin is currently seeking official permission from the Attorney General of Texas to withhold from me numerous recent legal documents responsive to a public information request of mine that each directly refer to me by name.

 

 ---Forwarded Message -----

"Ramiro Gonzalez"

<Ramiro.Gonzalez@traviscountytx.gov>

To: "mcmillanj@att.net" <

@att.net>

Cc: "Susie Duttinger" <Susie.Duttinger@traviscountytx.gov>, "Matthew Entsminger" <Matthew.Entsminger@traviscountytx.gov>, "Reva Hall" <Reva.Hall2@traviscountytx.gov>

Sent: Thu, Oct 12, 2023 at 11:28 AM

Subject: Response to Request for Information - McMillan, J. (TCDA) #23.0505

 

Dear Mr. McMillan,

 

This email is on behalf of the Travis County District Attorney's Office ("TCDA"). Please see the attached response regarding your request for public information submitted to their office. The responsive information has been sent to the Office of the Attorney General (“AG”) for their review. They have up to 45 business days to issue a ruling. Business days do not include weekends or holidays. TCDA will release some responsive information via a separate email.

 Respectfully,

 Ramiro “Ram” Gonzalez

 Paralegal

 Travis County Attorney’s Office

 (512) 854-6470

 _______

 I myself officially became a permanent resident of the great state of Utah on January 1, 2023.

 During the entire time period ever since State Bar of Texas member attorney Jose Garza assumed elective office as Travis County DA on January 1, 2021, my only residential address in Travis County, Texas, was at the gated-community Pebble Creek Apartments complex in northeast Austin.

 My bolt-locked solo-occupancy rental apartment unit address at that complex was: 8805 North Plaza Drive, Apt. 2418, Building 17, Second Floor, Austin, Texas, 78753.

 The signed official lease agreement of mine for that solo-occupancy rental apartment unit was officially terminated by me with written consent from the polite management team for Pebble Creek Apartments effective on a cited day during the first week of January in 2022.

 My home phone number during the time period when I resided at Pebble Creek Apartments in Austin was (512) 342-2295.

 My cell phone number, after I purchased and obtained my first-ever cell phone in August 2019, was and continues to be: (512) 993-7305.

 My primary e-mail address has been the same throughout nearly all of this century so far: mcmillanj@att.net.

 My solo-occupancy rental-apartment-unit home address ever since June 1, 2022:

 535 South 200 East, Apt. 912, Ninth Floor, Salt Lake City, UT 84111.

 My cell phone: (512) 993-7305.

 My current home phone: (801) 355-0850.

 Thank you in advance for your prompt, very thorough, and authoritative reply letter to me in response to this follow-up Texas Open Records Request of mine to yourself.

 Sincerely and Best Wishes,

requestor John Kevin McMillan, 535 S. 200 E., Apt. 912, Ninth Floor, Salt Lake City, UT 84111.

 

________________________________

This electronic mail message, including any attachments, may be confidential or privileged under applicable law. This email is intended solely for the use of the individual or entity to which it is addressed. If you are not the intended recipient of this email, you are notified that any use, dissemination, distribution, copying, disclosure or any other action taken in relation to the content of this email including any attachments is strictly prohibited. If you have received this email in error, please notify the sender immediately and permanently delete the original and any copy of this email, including secure destruction of any printouts.

_________________________________

(Below is the exactly quoted transcript of the November 6, 2023-dated and signed legal letter from Travis County Assistant County Attorney Matthew R. Entsminger that he wrote and sent to Texas Attorney General's Office state agency Open Records Division Chief Justin Gordon in Austin:)

 

DELIA GARZA 

COUNTY ATTORNEY

LUCIO A. DEL TORO 

FIRST ASSISTANT

LESLIE DIPPEL

EXECUTIVE COUNTY ATTORNEY

314 W. 11TH STREET

GRANGER BLDG., 5TH FLOOR

AUSTIN, TEXAS 78701

P. O. BOX 1748

AUSTIN, TEXAS 78767

(512) 854-9513

FAX: (512) 854-4808

TRANSACTIONS AND LAND USE

DIVISION

ANN-MARIE SHEELY, DIRECTOR  

JAMES D. NICKELL, ASSISTANT DIRECTOR

BARBARA WILSON

MATTHEW R. ENTSMINGER

KATHERINE R. FITE

REBECCA M. COMBS

LINDA D. MARTINEZ

ANN CARDENAS

CHRISTOPHER GILMORE*†

JULIE JOE

JENNIFER L. HOPGOOD

UJAALA RASHID-FERRARO

JACQUELINE A. SÁNCHEZ

1166057-1     383    Page 1 of 3

November 6, 2023

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 October 23, 2023

(Footnote 1: The request was sent by email on Sunday, October 22, 2023, during a non-workday; accordingly, the request is

considered received the next business day.)

—Request for Ruling and

Supplemental Brief

Dear Mr. Gordon:

Pursuant to the Texas Public Information Act (“PIA”), the Travis County District Attorney’s

Office (“TCDA”) received a written request for “any and all emails or other documents” regarding a

named individual and listed date range. TCDA will release some emails. TCDA has determined the

remaining information is excepted from required disclosure by Government Code sections 552.107

and 552.111. Accordingly, we request an Attorney General decision on the matter as required by

section 552.301 of the Government Code. Our written comments stating the reason the raised

exceptions apply are set out below. A representative sample of the information at issue is enclosed.  

By copy of this letter we are informing the requestor that TCDA intends to withhold some of

the requested information and has asked for a decision from the Attorney General.

Some of the requested information contains privileged attorney-client

communications excepted from disclosure by Government Code section 552.107 and

Texas Rule of Evidence 503.

Government Code section 552.107(1) protects information covered by 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 to withhold the information

at issue. Open Records Decision No. 676 at 6-7 (2002). 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).

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 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).

 

Some of the requested information, as marked, consists of email communications between

and among officials and employees from TCDA  (footnote 2: Jackie Wood and Efrain De la Fuente, Assistant District Attorneys; Sara Guerra Winn and Susie Duttinger, paralegals; Ashley Zamarron, Isabella Salinas and Bridget Martinez, legal secretaries)

and attorneys with the Travis County Attorney’s Office (footnote 3: Assistant County Attorneys Matthew Entsminger and Michelle Case; Ramiro Gonzalez, paralegal).

 

These emails document communications made for the purpose of facilitating the rendition of

professional legal services to TCDA. These emails were made in confidence and confidentiality has

been maintained. Accordingly, TCDA intends to withhold these privileged communications pursuant

to Government Code section 552.107 and Texas Rule of Evidence 503.

The remaining information at issue may be withheld under Government Code

section 552.111 as attorney work product.

Section 552.111 of the Government Code excepts from disclosure “[a]n interagency or

intraagency memorandum or letter that would not be available by law to a party in litigation with the

agency[.]” Gov’t Code § 552.111. This section encompasses the attorney work product privilege

found in rule 192.5 of the Texas Rules of Civil Procedure. City of Garland v. Dallas Morning News,

22 S.W.3d 351, 360 (Tex. 2000); Open Records Decision No. 677 (2002). Rule 192.5 defines work

product as:  

(1) material prepared or mental impressions developed in anticipation of litigation or

for trial by or for a party or a party’s representatives, including the party’s attorneys,

consultants, sureties, indemnitors, insurers, employees, or agents; or  

(2) a communication made in anticipation of litigation or for trial between a party and

the party’s representatives or among a party's representatives, including a party’s

attorneys, consultants, sureties, indemnitors, insurers, employees, or agents.  

TEX. R.  CIV.  P. 192.5(a)(1)-(2). A governmental body seeking to withhold information under this

exception bears the burden of demonstrating the information was created or developed for trial or in

anticipation of litigation by or for a party or party’s representative. Id.; ORD 677 at 6-8.  

For your office to conclude that the information was made or developed in anticipation of

litigation, a governmental body must show that:

a)  a reasonable person would have concluded from the totality of the circumstances ...

that there was a substantial chance that litigation would ensue; and

b)  the party resisting discovery believed in good faith that there was a substantial

chance that litigation would ensue and [created or obtained the information] for the

purpose of preparing for such litigation.

Nat’t Tank Co. v. Brotherton, 851 S.W.2d 193, 207 (Tex. 1993). A “substantial chance” of litigation

does not mean a statistical probability, but rather “that litigation is more than merely an abstract

possibility or unwarranted fear.” Id. at 204; ORD 677 at 7.  

The information at issue relates to an Open Records Complaint against TCDA brought to the

Attorney General’s office, which is the appropriate authority for pursuing such complaints.

Accordingly, TCDA may withhold the remaining responsive information under the attorney work

product privilege of section 552.111 of the Government Code.

 

  In conclusion, we request your determination as to whether the information at issue may be

withheld from the requestor. If you have any questions, please contact me at (512) 854-9642, or by

e-mail at matthew.entsminger@traviscountytx.gov.

     Sincerely,

Matthew Entsminger      

Assistant County Attorney

Encl.  Request letter; representative sample of requested records

c:  Susie Duttinger, TCDA

(via email, without enclosures)

John McMillan

  535 South 200 East, Apt. 912, Ninth Floor

  Salt Lake City, UT  84111  

  (via email to: mcmillanj@att.net, without enclosures