Texas Supreme Court ruling expands government exception for attorney-client privilege

By Chuck Lindell
Austin American Statesman
Originally published Feb. 3, 2017

In another decision that has alarmed open government advocates, the Texas Supreme Court on Friday carved out a special exception for public access to government information involving communication with lawyers.

The 7-2 ruling said protecting attorney-client privilege is too important to force governments to disclose such information, even if the Texas Public Information Act’s requirements aren’t followed.

Attorney-client privilege ensures the free flow of information and protects access to legal advice that is vital to better formulate government policy, said the opinion by Justice Eva Guzman.

“Full and frank legal discourse also protects the government’s interest in litigation, business transactions and other matters affecting the public,” Guzman wrote.

Writing in dissent, Justice Jeff Boyd said the ruling “obliterates” the only part of state law that requires governments to respond to requests for information involving attorneys.

“Nothing in the act supports the court’s decision to grant the privilege such special treatment. Nor do the court’s hyperbolic assertions that holding otherwise might cause the government to stop relying on legal advice,” Boyd said in an opinion joined by Justice Phil Johnson.

The case involved separate requests by The Dallas Morning News for information on deals involving a landfill and convention center hotel.

The city of Dallas, however, didn’t respond to the requests for 26 and 49 days, triggering separate lawsuits that were combined into one Supreme Court case.

To withhold most requested information, state law requires a government to seek approval from the attorney general’s office within 10 business days. If the government doesn’t respond in time, the Public Information Act requires the information to be disclosed unless a government can show a “compelling” reason to withhold.

The law, however, doesn’t define compelling.

In her analysis, Guzman said the benefits gained from protecting attorney-client communications provide compelling reasons to reject automatic disclosure as punishment for missing the 10-day deadline.

“When weighed against the need for expediency, the interests protected by the attorney-client privilege — and the irremediable consequences of disclosure — are demonstrably more compelling,” Guzman wrote.

Joe Larsen, a Houston lawyer and board member of the Freedom of Information Foundation of Texas, said the ruling invests attorney-client privilege “with far too much importance” while removing any incentive for governments to promptly respond to requests for such information.

“It is a perfect mechanism by which governments can withhold information from the public,” he said.

The ruling “unfortunately” follows previous Supreme Court opinions that allowed governments to withhold information on contracts with third parties and closed public access to information from many organizations that receive public money, Larsen said.

Bills filed in the current legislative session seek to reverse those rulings.