Dallas attorneys fight to keep records secret after missing deadlines

By Steve Thompson
The Dallas Morning News
Originally published April 22, 2014

Lawyers for the city of Dallas are taking on the Texas attorney general’s office in court, hoping to escape a penalty for missing deadlines triggered by public information requests.

The outcome will have “a sweeping impact” on state open records law, a brief by the attorney general says.

The city has a spotty record of handling public information requests on time. Attorney General Greg Abbott has called Dallas a “repeat offender” that “consistently ignores statutory deadlines.”

On Thursday during a hearing in Austin, Dallas will argue before the 13th Court of Appeals that if it misses a legal deadline, it should still get to withhold records from public inspection if they contain privileged attorney-client communications.

City lawyers are making the same argument in a separate case in the state’s 3rd Court of Appeals.

In one case, a lower court ruled against the city. In the other, the lower court ruled in the city’s favor. After the appeals courts rule, the issue may find its way to the Texas Supreme Court.

Under the Texas Public Information Act, a governmental body has 10 business days from receiving an open records request to either let the requester know when the records will be available or send a written request to the attorney general’s office for permission to withhold the records.

Government officials are allowed to withhold various types of information under Texas law, such as legal advice from their attorneys. But officials may lose that secrecy if they don’t request permission from the attorney general on time.

To keep information secret after missing a deadline, officials must demonstrate there is a “compelling” reason to withhold it. Compelling reasons are that the information is legally confidential or its release would affect someone other than the governmental body.

Dallas officials argue that if a record contains privileged attorney-client communications, that fact alone is compelling.

Attorney-client privilege, the city says in a brief, “is sufficiently vital that it trumps the presumption in favor of disclosure. … The lawyer-client privilege exists for very sound reasons. It is fundamentally necessary for our legal system to function effectively.”

The attorney general, on the other hand, argues that the threat of forfeiting secrecy is the only thing keeping the government from blowing deadlines with impunity.

“Without it, governmental bodies have no incentive to request decisions from the attorney general,” the attorney general’s office says in a brief.

Government officials are free to waive attorney-client privilege; no law prohibits them from releasing that information, the attorney general says. They do so only if they feel it’s in their best interest.

“If a court were to recognize general harm to the governmental body’s interest as a compelling reason to withhold the public information, the exception would swallow the rule mandating disclosure of public information,” the brief says. “A governmental body could refuse to request a ruling, knowing a mere assertion that release of the information would harm its interest would overcome the burden.”

The information to be at issue Thursday was requested by Sam Merten, who is now a spokesman for Dallas Mayor Mike Rawlings. He requested it in 2008 as a reporter for the Dallas Observer.