Abbott v. Dall. Area Rapid Transit

410 S.W.3d 876

Greg ABBOTT, in his Official Capacity as Attorney General of the State of Texas, Appellant

v.DALLAS AREA RAPID TRANSIT, Appellee.

No. 03–11–00630–CV.

Court of Appeals of Texas, Austin.

Aug. 30, 2013.

C. Robert Heath, Bradley B. Young, Bickerstaff, Heath, Delgado, Acosta, L.L.P., Austin, for Appellee.

Kimberly L. Fuchs, Chief, Open Records Litigation Administrative Law Division, Austin, for Appellant.

Before Chief Justice JONES, Justices PEMBERTON and ROSE.

OPINION

JEFF ROSE, Justice.

In this case, we must decide whether the Texas Public Information Act (PIA), Tex. Gov't Code §§ 552.001–.353, requires disclosure of the names, positions, and hire dates of the public employees whose interviews are summarized in a completed investigation report regarding a claim of racially discriminating hiring practices at appellee Dallas Area Rapid Transit (DART). DART, which objected to disclosing any portion of its investigation report, brought this suit in Travis County District Court to contest the Attorney General's letter decision determining that the PIA required DART to disclose the entire investigation report. On cross-motions for summary judgment, the district court ordered DART to disclose the report, but with the identities, positions, and hire dates of the interviewees redacted. The Attorney General appeals from this judgment, asserting that the redacted information must be disclosed to the public. We will affirm in part, and reverse and render in part.

Background

The underlying facts of this case are not in dispute, and the parties agree that this appeal presents questions of law. In August 2008, DART, which operates buses, light rail, commuter rail, and high-occupancy vehicle lanes in the Dallas metropolitan area,¹ received a public-information request from a Dallas television station for various documents and information relating to a racial-discrimination complaint made by one DART employee against two other DART employees. Among the information responsive to that request was a report documenting DART's internal investigation of the complaint. The director of DART's diversity and equal employment opportunity division conducted the investigation and drafted the report. In addition to other information relevant to the particular investigation, the report detailsthe statements of several DART employees, identified by name, position, and hire date, who were required to make a statement regarding the allegations.

After receiving the public-information request, DART sought a decision from the Attorney General that it could withhold the investigation report under various PIA exceptions to disclosure. SeeTex. Gov't Code § 552.301 (requiring governmental body that seeks to withhold information from public disclosure to request an Attorney General decision). The Attorney General issued a letter decision concluding that the PIA required that DART release the investigation report. SeeTex. Att'y Gen. OR2008–14652.

In response to the Attorney General's decision, DART filed the underlying suit, seeking a declaration that it was not required to disclose the investigation report. SeeTex. Gov't Code §§ 552.324–.325 (authorizing suit by governmental body seeking to withhold information and designating parties to such a suit). DART and the Attorney General proceeded to file cross-motions for summary judgment. DART's motion sought summary judgment declaring that it did not have to disclose the investigation report because the investigation report (1) is confidential under common-law privacy, federal and state anti-retaliation laws, and the “informer's privilege”; and (2) is excepted from disclosure under two PIA exemptions from disclosure, specifically sections 552.101 and 552.102. The Attorney General's motion sought the contrary declaration that DART must disclose the entire investigation report, arguing that, as PIA “core public information,” the report may only be withheld if the information in the report is expressly confidential under other law, which the Attorney General argued it was not. The district court rendered judgment granting both motions in part and denying them in part, ordering DART to disclose the investigation report, but requiring that the “identities, and job positions and hire dates of the interviewees [be] redacted” from the report. It is from this judgment that the Attorney General now appeals.

Analysis

The Attorney General challenges the district court's summary judgment in two issues, principally arguing that the entire investigation report, including the names, positions, and hire dates of the interviewees must be disclosed under the PIA because it is core public information that is not made confidential by other law.

Standard of review

Because the parties do not dispute the relevant facts, this is a proper case for summary judgment. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex.2000); seeTex.R. Civ. P. 166a (providing that summary judgment is appropriate “if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law”). On cross-motions for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law. See City of Garland, 22 S.W.3d at 356 (citing Guynes v. Galveston Cnty., 861 S.W.2d 861, 862 (Tex.1993)). When the trial court grants one motion and denies the other, we should determine all questions presented and render the judgment that the trial court should have rendered. See id. (citing Commissioners Court of Titus Cnty. v. Agan, 940 S.W.2d 77, 81 (Tex.1997)).

The Texas Public Information Act

The Texas Legislature enacted the PIA with the express purpose of providing the public “complete information about the affairs of government and the official acts of public officials and employees.” Tex. Gov't Code § 552.001(a); Jackson v. State Office of Admin. Hearings, 351 S.W.3d 290, 293 (Tex.2011). The PIA is aimed at preserving a fundamental tenet of representative democracy: “that the government is the servant and not the master of the people,” Tex. Gov't Code § 552.001(a); Jackson, 351 S.W.3d at 293, and reflects the public policy that the people of Texas “remain [ ] informed so that they may retain control over the instruments they have created,” Tex. Gov't Code § 552.001(a); see Jackson, 351 S.W.3d at 293. To advance these policy goals, the Legislature has directed that we liberally construe the PIA in favor of disclosure of requested information. SeeTex. Gov't Code § 552.001; Jackson, 351 S.W.3d at 293.

The PIA guarantees access to “public information,” subject to certain exceptions. See generallyTex. Gov't Code §§ 552.001–.153. “Those exceptions embrace the understanding that the public's right to know is tempered by the individual and other interests at stake in disclosing the information.” Texas Dep't of Pub. Safety v. Cox Tex. Newspapers, L.P., 343 S.W.3d 112, 114 (Tex.2011). However, the PIA also generally excludes from those exceptions—i.e., creates an exception to its disclosure exceptions—certain special categories of public information. See Act of May 25, 1999, 76th Leg., R.S., ch. 1319, § 5, 1999 Tex. Gen. Laws 4500, 4501–02 (current version at Tex. Gov't Code § 552.022) (hereinafter cited as “Former Tex. Gov't Code § 552.022”).² Former section 552.022's special categories of public information—often referred to as “core public information”—are protected from disclosure only if they are “expressly confidential under other law.” See Former Tex. Gov't Code § 552.022(a); Cox, 343 S.W.3d at 114 (describing categories as “core public information”). Stated another way, “[c]ompared to the dozens of exceptions for disclosure of ‘regular’ public information, there is only one exception to the PIA's mandated disclosure of core public information-if it is ‘expressly confidential under other law.’ ” Cox, 343 S.W.3d at 122 (Wainwright, J., concurring). “Other law,” as it is used in former PIA section 552.022, means law other than the PIA, which includes “other statutes, judicial decisions, and rules promulgated by the judiciary.” See id. at 113–15 (citing In re City of Georgetown, 53 S.W.3d 328, 332–33 (Tex.2001)).

It is undisputed that the investigation report at issue here is “core public information.” Specifically, it is a “completed report, audit, evaluation, or investigation made of, for, or by a governmental body.” See Former Tex. Gov't Code § 552.022(a)(1). As such, it can only be withheld from the public if it is “expressly confidential under other law.” See id.; Cox, 343 S.W.3d at 114. DART argues, both here and in its motion for summary judgment, that the investigation report is confidential under concepts of common-law privacy, federal and state anti-retaliation laws, and the “informer's privilege.” It also asserts that two PIA exceptions to disclosure allow it to withhold the investigation report.

Common-law privacy

We begin by addressing DART's contentions that the names, positions, and hire dates of the interviewees are confidential under concepts of common-law privacy. In Industrial Foundation of the South v. Texas Industrial Accident Board, the Texas Supreme Court held that concepts of common-law privacy law exempted documents from public disclosure under a former version of the PIA. See540 S.W.2d 668, 686 (Tex.1976). And more recently, the Texas Supreme Court explained that Industrial's common-law privacy protection for PIA disclosure extends to the core public information. See Cox, 343 S.W.3d at 116.

Under Industrial, information is protected from mandatory disclosure as information deemed confidential by law if—

(1) the information contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public.

See Industrial, 540 S.W.2d at 685. In exploring what types of information might be “highly intimate or...