Below are two November 6, 2023-dated legal letters that were each addressed to me or carbon-copied to me on behalf of the Travis County District Attorney's Office in Austin, Texas.
Those newly issued legal letters are in response to my October 23, 2023-received public information request to the Travis County (TX) District Attorney's Office in Austin in which I requested 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."
---- 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) 854-647
_____
(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 t 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 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 Aytorney 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
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