AG: Full juvenile consultant contract can be withheld

By Jessica Priest
Victoria Advocate
Originally published Dec. 15, 2015

The Victoria Advocate will not receive a copy of District Attorney Stephen Tyler’s full contract with a consulting firm he hired to analyze the juvenile detention center.

The Texas Attorney General’s Office ruled Monday that the contract is excepted from disclosure.

The AG’s Office ruled that Tyler established the contract was privileged attorney-client communication under Texas Rule of Evidence 503 (b)(1).

That rule allows a client “to refuse to disclose or to prevent from disclosing confidential communications made to facilitate the rendition of professional legal services to the client.”

A communication is confidential if it is not intended to be disclosed to a third party.

But Tyler’s brief to the AG’s Office did not specify whether he was the client or the county commissioners. Specifically, Tyler wrote that the third phase of the study would address potential liability issues and would ask the consultants to provide legal advice.

Joe Larsen, a Houston attorney who serves on the Freedom of Information Foundation of Texas’ board of directors, said Tyler must assert who the client is in order to claim the contract is privileged attorney-client communication.

Further, “the privilege actually belongs to the client, not to the attorney. So, if the client is the commissioners court, they would have to be the ones to assert it, not the DA,” Larsen said.

County Judge Ben Zeller said in a previous interview that he did not ask Tyler to withhold the contract and actually did not know it was being withheld until a reporter contacted him for comment.

Also, the consulting firm – Griffith, Moseley, Johnson & Associates – presented to the commissioner’s court a 25-page report of its findings about the juvenile detention center so far during a public meeting Monday.

They structured the report in such a way that it showed what questions they were hired to ask in the first phase of the study, which is why the newspaper was seeking the contract, Victoria Advocate Editor Chris Cobler said.

“The public deserves to be involved in the decision-making process up-front, not after the fact,” said Cobler, who also serves on the board of the Freedom of Information Foundation of Texas.

In making its ruling, the AG’s Office cited a 2001 Texas Supreme Court case involving the city of Georgetown.

In that case, the court ruled the Austin American-Statesman could not obtain a copy of a consulting engineer’s report about Georgetown’s water treatment plants.

The city manager attached that report to a self-evaluation of his job performance that he prepared for the city council. The Statesman requested via the Texas Public Information Act his self-evaluation.

The court found that the report wasn’t releasable because it was created for the purposes of litigation and therefore privileged attorney-client communication.

Larsen said Tuesday that the 2001 court ruling was flawed and has allowed more governmental agencies to claim attorney-client privilege when facing a Texas Public Information Act request they do not want to comply with.

He added that attorney-client privileged communications must also be more than a factual recitation of whatever structural problems are found at the juvenile detention center and involve actual legal analysis.

The first phase of the study the consultants delivered to commissioners Monday, for example, dealt only with the cost effectiveness of the juvenile detention center, which Larsen said is “basically something a facility manager can tell you, not a lawyer.”

“So the fact that a lawyer is involved doesn’t make it attorney-client privilege,” Larsen said.

If the newspaper does not agree with the AG’s ruling, it can file within 30 days a lawsuit in Travis County.

Cobler indicated the newspaper does not have immediate plans to do so “because a lawsuit is a costly and slow process.”

“We anticipate we will get a copy of the contract by the time the lawsuit is settled,” Cobler said.

Tyler hired the consultants Sept. 22 and released part of the contract to the newspaper when it filed its Texas Public Information Act request. That part of the contract showed the consultants were to be paid $135,000 for a 120-day study of the juvenile detention center.

Tyler is paying for the study with forfeiture funds, or money his office obtained in court from people suspected, but sometimes not convicted of a crime.

Tyler could not be reached for comment Tuesday.

Cobler, meanwhile, maintains, “This is a case of public funds being used to pay for a study of a public entity on behalf of public officials. We think this clearly is public business that should be done in public view.”