Wainwright Dissent in
City of Dallas v. Abbott, AG, No. 07-0931 (Tex. Feb. 19, 2010)(Majority opinion by O'Neill)
Public Information Act (PIA) confidentiality, exceptions from disclosure)
CITY OF DALLAS v. GREG ABBOTT, ATTORNEY GENERAL OF TEXAS; from Travis County;
7th district (07-06-00161-CV, 279 SW3d 806, 08-13-07)
The Court reverses the court of appeals' judgment and renders judgment.
Justice O'Neill delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
Medina, Justice Green, and Justice Guzman joined. [pdf]
Justice Wainwright delivered a dissenting opinion, in which Justice Johnson joined. [pdf]
(Justice Willett not sitting)
The Legislature requires disclosure of public information and prompt resolution of
exemptions from disclosure. Because the City failed to comply with the requirements to
withhold public information from disclosure, I respectfully dissent and would hold that
the PIA requires the City to disclose the public information.
View Electronic Briefs in 07-0931 CITY OF DALLAS v. GREG ABBOTT, ATTORNEY GENERAL OF TEXAS
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City of Dallas v. Abbott, AG (Tex. 2010)(Dissent by Wainwright)
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Argued October 15, 2008
Justice Wainwright, joined by Justice Johnson, dissenting.
The introductory section of the Public Information Act (PIA) announces the policy of the State of Texas on
the peoples’ right of access to public information.
Under the fundamental philosophy of the American constitutional form of representative government that
adheres to the principle that government is the servant and not the master of the people, it is the policy of this
state that each person is entitled, unless otherwise expressly provided by law, at all times to complete
information about the affairs of government and the official acts of public officials and employees.Tex. Gov’t
Code § 552.001.
This laudable objective of the PIA, to ensure transparency in public affairs, does not require that all public
information be routinely disclosed. Sensibly, some data defined as public information may be withheld under
the statute’s terms, but the PIA requires that exclusions from disclosure be timely raised with the Office of the
Attorney General. Id. §§ 552.101, .301. A public entity has ten business days to request the Attorney General’
s opinion if it desires to withhold public information. Id. § 552.301. If the governmental body fails to meet this
statutory deadline, the standard for withholding the public information from disclosure rises from merely
“confidential” to the governmental entity having to establish a “compelling reason” for nondisclosure. Id. §
552.302.
There is no dispute that the information at issue in this case is public information, and it may have been
excepted from disclosure. However, the City of Dallas did not request a written opinion from the Attorney
General on its desire to withhold the public information until seventeen business days after it received the
request for disclosure. The Court holds that eight of the days need not be counted because the clock does
not begin on the deadline to request an attorney general opinion until after the public’s request for
information is clarified, even though the PIA states that the ten-day period begins when the request is
“received.” The Court concludes that the City’s request to the Attorney General was timely and the City need
not turn over the public information requested because the lower standard for withholding the public
information was met. Because the Court’s approach hinders the Legislature’s goal of providing the people
with prompt access to public information, see id. § 552.221(a), and creates an easy manner to delay such
access, contrary to the PIA’s purpose and language, I respectfully dissent.
I. Background
On May 16, 2002, the City of Dallas received a request from James F. Hill, II for “[a]ny and all information
pertaining to the City of Dallas ‘Assessment Center Process’ for uniform positions of the Dallas Fire and
Police Departments.”1 On May 22, 2002, the City sent a letter to clarify the request, asking: “Are you seeking
information regarding specific assessment centers and if so for what period of time?”2 Hill responded on May
28, 2002, specifying that he requested information for the year 2000 for the positions of Dallas Fire Rescue
Fire Lieutenant and Captain. On June 10, 2002, the City requested from the Office of the Attorney General a
decision on whether some of the information sought, specifically a memorandum designated Exhibit F and two
memoranda designated Exhibit G, could be withheld under the privilege for attorney-client communications.
The Office of the Attorney General concluded that the City’s request was untimely and that the City had not
presented a compelling reason to withhold the information. Tex. Att’y Gen. LA-4450 (2002). The Attorney
General therefore directed the City to disclose the information. Claiming the information was protected from
disclosure by the attorney-client privilege, the City sought declaratory judgment in district court in Travis
County to withhold the documents from disclosure. The trial court issued findings of fact and conclusions of
law in its final judgment ordering disclosure. The court of appeals also concluded that the City’s request was
untimely, held that it had not established a compelling reason to withhold the information, and affirmed the
trial court’s order of disclosure. The Court’s opinion reaches the contrary result.
II. The Public Information Act Provides for Prompt Disclosure of Public Information.
The PIA codifies and strengthens the policy of the State of Texas that the people are entitled to “complete
information” about the affairs of government. Tex. Gov’t Code §§ 552.001, .021. From this initial premise, the
statute then allows selected exceptions to the right to complete information.
When a member of the public requests public information, the governmental entity “shall promptly produce
public information.” Id. § 552.221(a). “‘[P]romptly’ means as soon as possible under the circumstances, that
is, within a reasonable time, without delay.” Id. If the entity believes that any of the requested information is
protected from disclosure by the exceptions in Subchapter C of the PIA, it must request, within ten business
days, an opinion from the Attorney General on whether the information may indeed be withheld. Id. § 552.301
(a), (b). The provisions of Subchapter C set forth the exceptions from disclosure for public information. See
id. §§ 552.101–.151. These are the standards the Office of the Attorney General considers when it receives
compliant requests by governmental bodies to withhold public information under section 552.021.
When the governmental body fails to request an attorney general decision on withholding certain public
information within the PIA deadline, the statute establishes a presumption that the information must be
publicly disclosed. Id. § 552.302. The information then may only be withheld if the governmental body
establishes a “compelling reason” to do so. Id. The Attorney General opined that the City of Dallas did not
timely file its request for a decision on the asserted attorney-client privilege, an issue I now consider.
III. The City’s Request for a Decision from the Attorney General Was Untimely.
On May 16, 2002, Dallas received Hill’s request for all information pertaining to the City of Dallas
Assessment Center Process for uniform positions of the Dallas Fire and Police Departments. Four business
days later, the City requested from Hill a clarification of his broad request. The City received Hill’s clarification
four business days after its request. The City waited another nine business days thereafter, until June 10, to
request an attorney general opinion. Thus, the City did not request a decision from the Attorney General until
seventeen business days (twenty-five calendar days) after it received Hill’s original request. If the four
business-day period during which the City sought clarification is excluded, the City’s request to the Attorney
General was not sent until thirteen business days after receiving Hill’s original May 16 request.
Section 552.301(b) expressly starts the clock ticking for the ten business-day deadline on the date the City
“receives” the written request. Tex. Gov’t Code § 552.301(b). Section 552.222(b) allows a governmental body
to seek clarification upon receipt of an unclear or overbroad request for information, but it does not address
how a clarification affects the ten-day deadline. Id. § 552.222(b); see also Tex. Att’y Gen. ORD-663, 3 (1999)
(“[W]hile the PIA expressly permits a governmental body to seek clarification and narrowing of a request, it is
silent as to the effect of such inquiry on the PIA’s deadline for requesting a decision.”). The City claims its
request was timely because, upon receipt of Hill’s clarification, it was treated as a new request, and the ten-
day period reset. The Attorney General asserts, and the court of appeals reasoned, that the City’s request
was untimely because the time period was only tolled for the four business days between the City’s request
for Hill’s written clarification and its receipt of that clarification.
The custom and practice in the Office of the Attorney General over the years have provided a consistent
and rational manner for handling clarification requests. The Office of the Attorney General issues thousands
of PIA rulings per year. In 2007 alone it issued 17,000 rulings. Between 2001 and 2007, the Attorney General
issued approximately 4,515 rulings regarding claims of attorney-client privilege. Brief of Respondent-Attorney
General at 29, 31, City of Dallas v. Greg Abbott, Attorney General of Tex., No. 07-0931 (Tex. May 9, 2009).
Attorney general opinions, which this Court has recognized as persuasive, provide that a governmental entity’
s good faith attempt to clarify or narrow a request tolls the time period for the information requested;
conversely a request for new information that is included in a clarification starts the period anew only for that
new information. See Holmes v. Morales, 924 S.W.2d 920, 924 (Tex. 1996) (explaining that attorney general
opinions are “persuasive, but not controlling” authority); Doe v. Tarrant’ County Dist. Attorney’s Office, 269 S.
W.3d 147, 152 (Tex. App.—Fort Worth 2008, no pet.) (giving special “due consideration” to attorney general
decisions involving public information because the Legislature requires the Attorney General to issue written
opinions advising governmental entities); Tex. Att’y Gen. ORD-663; Tex. Att’y Gen. LA-12245 (2009) (finding
that a clarification was not a new request resetting the time period); Tex. Att’y Gen. LA-9346 (2007) (finding a
request untimely notwithstanding the agency’s request for clarification from the requestor); Tex. Att’y Gen. LA-
2258, 1-2 (2003) (finding that the tolling from clarification made request timely). If the request is simply too
broad and the governmental entity seeks to narrow it, the governmental body does not get a new ten-day
period for the information included in the original request. For that information, the clock is tolled the period
between the time the governmental body requests clarification and the time the governmental body receives
the clarification response. Id.
The Attorney General has recognized that governmental bodies that genuinely need clarification of a
request should not be threatened with loss of their statutory time to seek an attorney general opinion on an
exception from disclosure. Tex. Att’y Gen. ORD-663 at 5. It stands to reason that clarification and narrowing,
sought in good faith, should be encouraged. See id. For the last decade, the opportunity for reasonable
clarification has been incorporated in the Attorney General’s application of tolling principles to requests for
clarification by governmental entities. See id. The public entity thereby gains more time to gather the alleged
privileged information during the clarification period but must request the attorney general decision within ten
business days plus the period during which the clock is tolled for a good faith clarification request. See id.
Hill’s clarification limited the request to the year 2000 and to the positions of Dallas Fire Rescue Fire
Lieutenant and Captain. It also requests a list of information: “[a]ny written documents on ‘how Assessment
Process was to be administered’ for the above positions and time frame”; “[j]ob analysis[] for the positions of
Fire Lieutenant and Fire Captain and date of each analysis”; “[a]ny contract between Booth and the City of
Dallas/Civil Service to conduct the Assessment Center for the Dallas Fire department positions Fire
Lieutenant and Fire Captain”; and “[a]n explanation on the ‘mirroring’ of percentages between Fire Prevention
and Fire Operations testing for the same period.” This information would be subsumed by his original request
for information pertaining to the City of Dallas ‘Assessment Center Process’ for uniform positions of the Dallas
Fire and Police Departments. Indeed, the City does not contend that the three documents it seeks to withhold,
in Exhibits F and G, were not included in the original request from Hill.3 Accordingly, the ten business-day
period should be tolled for the intervening time between the government’s clarification request and Hill’s
response. Thus, excluding the four business days during which the time period was tolled, the City’s request
for a decision from the Office of the Attorney General was not sent until the thirteenth business day after Hill’s
May 16 request. The City’s request was not timely.
Asserted exceptions to disclosure of public information had been handled in this manner for years when the
City received Hill’s request. See Tex. Att’y Gen. ORD-663 (1999). The City was charged with knowledge of the
law yet failed to follow it. See Tex Gov’t Code § 552.012 (mandating training of public information officers);
Osterberg v. Peca, 12 S.W.3d 31, 38 (Tex. 2000) (holding that ignorance of the law is not an excuse for
violation of a statute).
Tolling the ten-day period during the clarification process for information in the original request furthers the
PIA’s objective of promptly providing, “without delay,” the public with information from its servants—
governmental entities. See Tex. Gov’t Code § 552.221(a). Resetting the time period in this circumstance
delays disclosure of public information. It imposes no additional incentive to timely produce information sought
within the original request that is also sought in the clarification. See Indus. Found. of the S. v. Tex. Indus.
Accident Bd., 540 S.W.2d 668, 687 (Tex. 1976) (holding that “the Act does not allow either the custodian of
records or a court to consider the cost or method of supplying requested information in determining whether
such information should be disclosed”). Moreover, tolling the time period for this information that was included
in the original request is the established method for handling clarifications under the PIA. See Tex. Att’y Gen.
ORD-663 at 1. The Court’s approach resets the clock for all information in the original request each time a
clarification is sought, and it is not justified where that clarification only narrows the scope of the original
request for the benefit of the governmental entity. See Tex. Att’y Gen. LA-12245 (discussing multiple
clarification requests). Surely, where new information is sought in a clarification, the entity should receive ten
business days to seek an attorney general opinion. But it is inconsistent with the language and purpose of the
PIA to extend the statutory deadline ten business days beyond the time already allotted for public information
requested initially. The Court’s holding ignores the date of receipt of the original request and, contrary to the
statutory mandate, inserts an unnecessary delay into the process. This allows both inadvertent delay of
disclosures about government affairs and easy manipulation of the deadline through clarification requests.
The Office of the Attorney General distinguishes between new requests framed as clarifications (for which a
new ten business-day period applies), clarifications of public information within the scope of initial requests
(for which tolling applies), and new information sought as part of legitimate clarifications of original information
requested (for which the ten business-day period resets for the new information and tolling applies to
information within the scope of the original request). See Tex. Att’y Gen. LA-4352, 1 (2005). The Court not
only reverses a decades-old policy of tolling for unclear requests but creates a new category of “vague or
overbroad” requests for public information. The Attorney General’s approaches addressed the various
circumstances while insisting on compliance with the Legislature’s mandate to address open records requests
“without delay.” The Court’s holding could insert delays and increase costs to all parties involved by shifting
the emphasis in PIA disclosure disputes from defining “compelling reason” for nondisclosure (in the case of
untimely requests) to squabbles over whether non-lawyer members of the public precisely worded their
requests to governmental entities for admittedly public information. It is problematic to insert into the
Legislature’s PIA scheme of disclosure a bane that exists in civil litigation: incessant disputes over the wording
of discovery requests.
IV. The Higher, Compelling Reason Standard Governs the City’s Untimely Request to Withhold
Public Information.
Because the City’s request for an attorney general opinion on withholding Exhibits F and G was untimely, I
address whether the asserted reason for disclosure satisfied the PIA’s elevated compelling reason standard.
The only exceptions to required disclosure of public information under Subchapter C that the City may raise
in this suit are exceptions it raised with the Attorney General in its request for decision contained in its letter of
June 10, 2002. See Tex Gov’t Code § 552.326. The only exception the City raised in the June 10 letter was
section 552.107(1) of Subchapter C concerning “information that . . . an attorney of a political subdivision is
prohibited from disclosing because of a duty to the client . . . .” Id. § 552.107(1). Whether Exhibits F and G
are subject to public disclosure depends on the interpretation of the exception for attorney-client privileged
information in Subchapter C of the PIA. See id. To simply assert the exception, however, the City must have
requested a decision from the Attorney General on the privilege within ten business days from the date of
receipt of the request. Id. § 552.301. If the City’s request was dilatory, Exhibits F and G would be presumed
subject to public disclosure and “must be released unless there is a compelling reason to withhold the
information.” Id. § 552.302.
The City argues that it satisfies the compelling reason standard by merely asserting the attorney-client
privilege as an exception to disclosure. If so, the City could except public information from disclosure merely
by asserting the same justification it was late in raising with the Office of the Attorney General. But such an
interpretation contradicts the express language of the statute and violates its purpose.
The very use of the word “compelling” in this context indicates the intent to impose a tougher standard for
violation of the deadline. Precepts of statutory construction dictate that because the Legislature did not define
the word “compelling” in the PIA, we interpret the word according to its plain and common meaning. See
McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). The common meaning of “compelling” is “demanding
attention” or “respect.” Compact Oxford English Dictionary 300 (2nd ed. 1991). To be compelling, a
justification must be more than simply legitimate or good, it should be persuasive to the point of demanding
respect or acquiescence.
The City argues that the attorney-client privilege is always a “compelling reason” to prevent disclosure
because it is the oldest of the privileges for confidential communications known to the common law and is vital
to encourage clients to confide in their attorneys. See Ford Motor Co. v. Leggat, 904 S.W.2d 643, 647 (Tex.
1995). The City’s interpretation of the section 552.301 compelling reason standard would require nothing
more to keep public information secret than a late assertion of a legitimate justification, notwithstanding the
statutory mandates. There are several other reasons this conclusion is incorrect.
A. The Legislature’s Adoption of the Compelling Reason Standard in the PIA Codified the Attorney
General’s Application of the Standard.
In considering the 1999 proposed amendment to the PIA that would include the compelling reason
standard, the Legislature was not acting in a vacuum. The Office of the Attorney General originated the
compelling reason standard long before the Legislature amended the statute to incorporate it.
Every Attorney General in the thirty-five years since the PIA was enacted has applied and enforced the
heightened compelling reason standard. See Tex. Att’y Gen. ORD-26 (1974) (Attorney General John Hill);
Tex. Att’y Gen. ORD-319 (1982) (Attorney General Mark White); Tex. Att’y Gen. ORD-552 (1990) (Attorney
General Jim Mattox); Tex. Att’y Gen. ORD-630 (1994) (Attorney General Dan Morales); Tex. Att’y Gen. LA-
3474 (2001) (Attorney General John Cornyn); Tex. Att’y Gen. LA-6858 (2002) (Attorney General Greg
Abbott). In 1974, the Attorney General reasoned that a late request for decision meant that the resulting
presumption that information must be disclosed could only be overcome by a “compelling demonstration that
the information requested should not be released to the public.” Tex. Att’y Gen. ORD-26; see also Tex. Att’y
Gen. ORD-552. That office affirmed the application of this standard in several instances. See Tex. Att’y Gen.
ORD-319; Tex. Att’y Gen. ORD-150 (1977); Tex. Att’y Gen. ORD-34 (1974). In 1994, an attorney general
opinion addressed the very issue before this Court. “The mere fact that the information is within the attorney-
client privilege and thus would be excepted from disclosure under section 552.107(a) of the Open Records
Act [now PIA] if the governmental body had made a timely request for an open records decision does not
alone constitute a compelling reason to withhold the information from public disclosure.” Tex. Att’y Gen. ORD-
630 at 7. The office confirmed that ruling in 2001. See Tex. Att’y Gen. LA-5561 (2001). In 1999, before the
PIA was amended that year, the Attorney General again explained that the compelling reason standard
applied to public information for which the request for decision was late. Tex. Att’y Gen. LA-725 (1999)
(Attorney General John Cornyn). And these attorney general opinions consistently apply a higher standard to
allow this type of exception to withholding information.
In addition, several courts of appeals have adopted the Attorney General’s standard for deciding PIA
disputes arising out of a late request for an attorney general opinion. Doe, 269 S.W.3d at 154 (stating that
“statutory and case law support the AG’s general rule” and adopting that standard); Jackson v. Tex. Dep’t of
Pub. Safety, 243 S.W.3d 754, 758 (Tex. App.—Corpus Christi 2007, pet. denied) (adopting the Attorney
General’s compelling reason standard); Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381 (Tex. App.—Austin
1990, no pet.) (citing attorney general opinions, recognizing the compelling reason standard, and holding that
the agency must do more than present a “mere showing of the applicability of one of the statutory exceptions”
to overcome the presumption of openness). But see City of Garland v. Dallas Morning News, 969 S.W.2d 548,
554–55 (Tex. App.—Dallas 1998) (refusing to adopt the “compelling demonstration test” because the court
did not find “Hancock and the attorney general opinions” adopting that test persuasive), aff’d on other
grounds, 22 S.W.3d 351, 364 (Tex. 2000) (plurality opinion) (declining to address the applicability of the
compelling reason standard because the information at issue was subject to disclosure regardless of that
analysis). As the Attorney General and these courts of appeals have consistently held, to uphold a late
request to except public information from disclosure based on the attorney-client privilege requires more than
reasserting the same privilege. See Tex. Att’y Gen. ORD-676 (2002); Tex. Att’y Gen. LA-5561; Tex. Att’y Gen.
ORD-630.
It is thus not surprising that the Legislature continued this established and predictable policy. At a Senate
hearing on amending the PIA in 1999 to explicitly incorporate the compelling reason standard, the author of
the bill, Senator Corona, explained that the amendment “will require the governmental body to forfeit any
discretionary exceptions and would require the release of the information,” consistent with the Attorney
General’s previous decisions. The author then introduced the chief of the open records division of the Office
of the Attorney General, who explained:
[T]he attorney general’s office has interpreted that this— and basically this codifies a long standing
interpretation of the attorney general’s office, that I think stretches all the way back from 1977 in Open
Records Decision 150—and the attorney general has determined that, uh, compelling reasons would be if if
[sic] the information were made confidential by another source of law outside the Open Records Act . . . as
well as if release of the information would adversely affect the privacy or property interest of third parties.4
Hearing on S.B. 277 Before the Senate Committee on State Affairs, 76th Leg., R.S. (Partial Transcript at 2,
March 11, 1999); Act of September 1, 1999, 76th Leg., R.S. ch. 1319, § 21, 1999 Tex. Gen. Laws 4509; see
also Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex. 1999) (stating that courts presume the Legislature acts
with knowledge of the accepted legal meanings of terms); McBride v. Clayton, 166 S.W.2d 125, 128 (Tex.
1942) (explaining that “statutes are presumed to be enacted by the legislature with full knowledge of the
existing condition of the law and with reference to it”).
Since the Legislature’s 1999 addition of the compelling reason standard to the PIA, the Attorney General
has affirmed its interpretation, and the Legislature has not responded negatively to it. Tex. Att’y Gen. ORD-
676. The Court has explained that it is persuasive that the Legislature had amended the PIA several times
without responding negatively to attorney general interpretations. City of Garland v. Dallas Morning News, 22
S.W.3d 351, 366 (Tex. 2000).
B. The Compelling Reason Standard Provides Incentives for Expeditious Action as Contemplated
by the PIA.
The overall scheme of the statute indicates the Legislature’s goal of preventing open government requests
from languishing in the bureaucratic process due to dilatory requests for decisions and slow responses. See,
e.g., § 552.301(b) (requiring governmental entities to request decisions on exceptions from disclosure of
public information within ten business days); §552.306 (requiring the Attorney General to render a decision
“not later than the 45th business day after the date the Attorney General received the request”).5 To
accomplish this goal of the PIA, a “compelling reason” must be a higher and more demanding standard to
create a persuasive incentive for governmental entities to comply with the PIA’s expeditious time frames. The
Court’s holding undercuts the incentive to be prompt by allowing an easy manner to delay the decision to
produce public information. Under the City’s position, a city that prioritizes open government and works
diligently to meet the deadline for a request for decision on an attorney-client privilege issue is treated no
differently than a city that is not diligent in attempting to respond to a PIA request and simply asks for a “good
faith” clarification of a word or phrase in a request.
To demonstrate a compelling reason to withhold information, the Attorney General’s longstanding
interpretations require that the governmental entity assert the attorney-client privilege along with another
special circumstance that increases the consequences of disclosure, such as that the interests of third parties
would be harmed or that the governmental entity is prohibited from disclosing the information by other law.6
See Tex. Att’y Gen. LA-5561; Tex. Att’y Gen. ORD-630; Tex. Att’y Gen. ORD-26. I agree that the two bases
for demonstrating compliance with the compelling reason standard are reasonable. However, application of
the standard should also consider circumstances in which the disclosure of such privileged information would
likely inflict substantial harm to the public or the entity. In this case, without more, the City’s privilege fails the
compelling reason standard. However, in other circumstances, disclosure of privileged attorney-client
communications could cause substantial harm to the public entity and add substantial cost or even harm the
public that the PIA seeks to keep informed.
C. The City’s Position Would Delete the “Compelling Reason” Standard
From the Statute in These Situations.
The City argues that attorney-client privilege is always a compelling reason to prevent disclosure. In re City
of Georgetown, 53 S.W.3d 328, 332–33 (Tex. 2001) (quoting Leggat, 904 S.W.2d at 647). That holding
essentially means that a governmental entity could either intentionally or unintentionally make a late request
to the Attorney General seeking an exception from disclosure and still not have any higher burden to except
information from disclosure. I disagree that the importance of the privilege means that a statute or rule cannot
provide for waiver of the privilege or elevate the standard to rely on it. See, e.g., Tex. R. Civ. P. 193.3(d)
(stating that a party who inadvertently discloses information waives the attorney-client privilege if it does not
assert the privilege within ten days of disclosure); Tex. R. App. P. 33.1(a); see also In re Christus Spohn
Hosp. Kleberg, 222 S.W.3d 434, 439–41 (Tex. 2007); In re Living Ctrs. of Tex., Inc., 175 S.W.3d 253, 259–60
(Tex. 2005). The City waived the straightforward application of the attorney-client privilege by not requesting
a decision within ten business days and should not be able to overcome that waiver by reasserting the same
privilege.7
It is important to remember that the City retains control over the nondisclosure of otherwise privileged
information if it simply abides by the PIA’s deadlines. This in no way diminishes the importance of the attorney-
client privilege; instead, I believe that the City must follow the procedures specifically mandated by the PIA in
order to assert it without having to establish a compelling reason. The procedure in section 552.301 is not a
trap for the unwary that could catch a conscientious governmental official off guard.8 An action as simple as
placing a letter to the Attorney General with a short request for a decision in the United States mail, first class,
within ten business days after receiving the public information request, satisfies the statute. See Tex. Govt.
Code § 552.308. The likely reason the entity would not comply with this requirement is simply because it does
not have a system in place to handle these requests quickly and efficiently, which is the harm the Legislature
attempted to remedy in the statute by training all public officials in the requirements of the PIA and explicitly
requiring prompt responses to the people for public information.
V. Conclusion
The Legislature requires disclosure of public information and prompt resolution of exemptions from
disclosure. Because the City failed to comply with the requirements to withhold public information from
disclosure, I respectfully dissent and would hold that the PIA requires the City to disclose the public
information.
___________________________________
Dale Wainwright
Justice
OPINION DELIVERED: February 19, 2010
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1 The PIA precludes the governmental entity from inquiring about the reason for the request, so the parties
do not provide the reason. See Tex Gov’t Code § 552.222.
2 Police and fire departments use assessment centers to evaluate potential candidates for promotion. See
Paul Lepore, Firefighter’s Five-Step Guide to a Promotion, Fire Link, http://www.firelink.
com/benefits/articles/1825--firefighters-five-step-guide-to-a-promotion (last visited Feb. 16, 2010). It typically
includes a tactical scenario and other exercises, an oral interview and presentation, and an employee
counseling session. Id.
3 In its brief on the merits, the City notes that the court of appeals framed this issue as “whether the
information [Exhibits F and G] sought to be excluded from public disclosure was included in the first request.”
The appellate court concluded that it was. The City contends that the court should have considered the
different question of what information Hill “really wanted” or “sought” because he “did not actually want all
information pertaining to the assessment center process.” The City argues that Hill’s initial request did not
specify that he wanted Exhibits F and G, but it does not deny that Exhibits F and G were included within the
scope of Hill’s first request. The Attorney General points out that Exhibits F and G must have been included in
Hill’s original request because the clarification narrowed the scope of documents sought.
4 Actually, the standard was created by the attorney general’s office in 1974 in Open Records Decision No.
26, which explained there must be a “compelling demonstration that the information requested should not be
released to the public,” decided by the Honorable John L. Hill.
5 In an amicus brief from Senator John Cornyn, former Texas Attorney General, supporting the current
Attorney General’s position, he explains that the Texas Public Information Act is widely regarded as the
strongest and most successful open government law in the country particularly because of its deadlines and
enforcement mechanisms and that the Federal Act is largely based on the Texas PIA, citing 151 Cong. Rec.
S1525-26 (Feb. 16, 2005).
6 The fact that the attorney-client privilege exists in other law does not mean that the City could not waive it.
See Tex. Att’y Gen. ORD-630. The attorney-client privilege benefits the City, as the client, and therefore can
be waived by the City. Id. However, if the City were claiming a non-discretionary exception, such that the City
were actually prohibited from disclosing it at the risk of penalty, that exception would be a compelling reason
and satisfy the statute.
7 The Attorney General has held in multiple decisions that a governmental entity waived privileges. See, e.g.,
Tex. Att’y Gen. ORD-663 (holding that a governmental body waived the attorney client privilege, the work
product privilege, and the litigation exception by missing the deadlines in 552.301); Tex. Att’y Gen. LA-5561
(same); Tex. Att’y Gen. ORD-400 (1983) (holding that a governmental body waived the work product privilege
by showing the information to the members of the public); Tex. Att’y Gen. ORD-325 (1982) (holding that a
governmental body waived exceptions to disclosure by not raising them).
8 In fact, all public officials have been required since 2006 to complete a training regarding the government’s
responsibilities under the PIA. See Tex. Govt. Code § 552.012.