Texas court mulls ‘magic words’ loophole for transparency law

By Jon Cassidy
Watchdog.org
Originally published Sept. 14, 2016

The Supreme Court of Texas heard arguments Wednesday on whether to write a loophole into state public records law that would allow government agencies to avoid public scrutiny and disregard basic public records procedures simply by invoking “magic words.”

The court could also decide to eliminate a previous loophole it created, but most of its public records decisions in recent years have favored government secrecy over the transparency that Texas law used to be known for.

If the court rules for Dallas in a lawsuit the city filed against state Attorney General Ken Paxton, government agencies in Texas will be granted a new trump card over the decisions of the Attorney General’s office that require them to disclose records.

At issue is the reach of the attorney-client privilege.

Dallas is arguing that it ought to be allowed to invoke that privilege after losing a public records fight regarding a lease to develop methane gas at a city landfill.

Many government agencies already routinely loop in attorneys on potentially controversial subjects in order to argue later that the materials should be protected under attorney-client privilege. They’re rarely forced to prove that the secret material actually involves legal services.

If the agency asserts that the record was “in furtherance” of legal services, the attorney general will let that suffice.

In this case, for example, even after six years of litigation, “(t)here is no reference in any of the briefs to the specific legal services that were purportedly being provided to the City,” attorney Joseph Larsen writes in a friend-of-the-court brief for the Freedom of Information Foundation of Texas.

In another recent example, the Houston Independent School District suspended and then dismissed an auditor who had reported potential high-level crimes. Before letting auditor Richard Patton go, the district had lawyers put together a quick report on some flimsy allegations against him to serve, apparently, as their legal cover for getting rid of him.

Houston ISD refused to make that report public, and the attorney general sided with the district, because it had invoked the magic words, “attorney-client privilege.”

No proof was required; Houston simply had to assert that the report was “in furtherance” of legal services.

Texas law as written considers completed reports to be “superpublic;” that is, they’re not supposed to be subject to all the usual piddling objections of confidentiality that governments make to keep the public in the dark.

The only exceptions are information that is “expressly confidential” and “confidential by law.” That meant that something that’s automatically confidential – medical records, say – would stay confidential, but the government wouldn’t be able to invoke its various optional secrecy privileges.

But in 2001, the state Supreme Court decided that the attorney-client privilege – a voluntary exception that can be waived like any other privilege – counted as creating something “confidential by law.”

The consequence has been a defeat of the Legislature’s intent to make government reports public, as every agency knows to have anything controversial drafted by lawyers.

Now, the city of Dallas is trying to get the Supreme Court to expand the reach of the attorney-client privilege even further, by allowing government agencies to invoke it even when they didn’t cite the privilege as an initial reason for secrecy.

If a government agency wants to withhold information from a public records requestor – and they usually do – state law gives it 10 days to request a decision from the attorney general, listing its legal reasons.

Dallas didn’t invoke attorney-client privilege in either of the two cases consolidated today before the Supreme Court within those 10 days. It didn’t have a good reason, either.

“We have no explanation here other than, ‘whoops, we missed our deadline,’” said Bill Davis, arguing the case for the Attorney General’s office. “Deadlines have consequences.”

Davis cited several procedural deadlines in appellate law that all have strict consequences.

The consequence of missing the 10-day deadline is that the information requested is supposed to be made public, unless (and if you’re noticing that this whole field is a bunch of endlessly overlapping “unlesses,” you’ve got the picture) the government can show a “compelling reason” for keeping it secret.

Until this case, that standard of “compelling reason” has always meant the disclosure of information that is prohibited under state law, such as the medical records mentioned above.

The trial and appeals courts sided with the city, agreeing in effect that it could trump a records decision it didn’t like simply by invoking the phrase “attorney-client privilege.”

As Larsen pointed out, this “is the functional equivalent of being able to make its own rule about what information is confidential,” as the attorney general doesn’t require proof that the privilege actually applies.

Justice Jeffrey Boyd seemed to realize the size of the loophole the court could be opening, asking what would prevent a city from deliberately ignoring public records law, refusing to request an opinion from the attorney general, and simply insisting that the records were covered by attorney-client privilege.

The question is whether enough of his colleagues on the court have much awareness of the damage they’ve already done in recent years creating hiding places where the Legislature meant for the sun to shine.