DA sues Texas to fight release of controversial contract

By Tony Plohetski
Austin American-Statesman
and
Jay Root
The Texas Tribune
Originally published Oct. 13, 2015

Travis County District Attorney Rosemary Lehmberg is suing to block the release of records about a controversial agreement that allows a giant insurance company to pay her office more than $400,000 a year to investigate the insurer’s fraud cases.

The American-Statesman and the Texas Tribune requested the records under the Texas Public Information Act as part of a months-long investigation of the government prosecutors’ unusual and chummy relationship with Texas Mutual Insurance Co.

Texas Attorney General Ken Paxton said last month that Travis County must turn over the records, and now Lehmberg has filed a lawsuit in an attempt to reverse his decision. In the petition, Lehmberg argues in part that her office and Texas Mutual share a “privity of interest” in the prosecution of the company’s fraud cases.

Citing exceptions to transparency laws that shield certain records of third parties or private companies working with the government, Lehmberg claims that even records of negotiations over the public contract with the insurer must remain secret.

Texas Mutual and the Travis County district attorney’s office are referred to as TMI and TCDAO in the lawsuit, filed last week and provided Tuesday to the Statesman and the Tribune.

“Since TMI refers cases to TCDAO to prosecute, both are acting in a privity of interest in representing the State in the prosecution of these cases,” Lehmberg argues in the lawsuit. “Hence, TMI and the TCDAO must share advice, opinion, and recommendations regarding the subject matter of their contract.”

Lehmberg also cites transparency exemptions allowing government prosecutors to withhold documents reflecting the “legal reasoning” of state attorneys.

The attorney general’s office ruled that those two provisions allowing the government to shield public records are discretionary and no longer apply because the district attorney’s office waited too long to fight the request from the Statesman and Tribune. The two sides disagree about the amount of time Lehmberg had to oppose release of the documents.

Paxton’s office said a government entity’s failure to comply with procedural requirements “results in the legal presumption that the information is public and must be released, unless a government body demonstrates a compelling reason to withhold the information to overcome this presumption.”

Lehmberg argues that her office didn’t blow the deadlines, and she is asking the court to order the records be withheld.

In its request for records, first made in June, the Statesman and the Tribune asked for current and past contracts between Texas Mutual and the district attorney’s office, emails relating to the negotiations of the contracts and any email discussions of decisions to not prosecute cases.

Lehmberg’s office eventually provided copies of the contracts going back to 2000 but withheld the other records, including any emails discussing or negotiating the contracts.

Late last month, in the wake of criticism about the public-private partnership, Lehmberg announced that she would wait to enter into a new contract, set to renew automatically on Oct. 1, until she and the company could study the matter further.

Texas Mutual, by far the largest provider of workers’ compensation insurance in Texas, has contracted with the Travis County district attorney’s office since at least 2000. In fiscal 2014, the company authorized payments of $430,000 to the district attorney’s office to prosecute alleged “crimes committed against the company.”

As part of the arrangement, a team of 21 investigators employed by Texas Mutual — not sworn peace officers — conducts the investigations and gathers the information for direct referral to the Travis County DA’s office.