Office of the Governor

ID: SPIR-2016-TX-0018

Public Information Request

General Counsel Division
P.O. Box 12428
Austin, TX 78711
publicrecords@gov.texas.gov
Sent via: Electronic mail
May 24th, 2016
Re: Open Records Request
Office of the Texas Governor,
Under the Texas Public Information Act, 6252-17a et seq., I am requesting an opportunity to obtain
copies of public records that the Office of the Texas Governor has in their possession. I am hereby
requesting a copy of the following records:
1. The names as to all of the information that the Texas Governors Office and individuals
employed with the Texas Governors Office have received from all state governmental bodies
and from the federal government of the United States of America that is in regards to,
pertaining to and about the federal governments Dear Colleague Letter on Transgender
Students.
2. Information that the Texas Governors office and individuals employed with the Texas
Governors Office have collected and maintained that is regarding transgender
("transgendered") and transsexual individuals using the restroom that aligns with their lived
"gender identity."
3. A copy of all written communication that the Office of the Texas Governor and individuals
employed with the Texas Governors Office have maintained, sent and has received that is in
regards to the federal governments Dear Colleague Letter on Transgender Students and on
the issues of transgender (transgendered) and transsexual individuals using a facility that
aligns with their lived gender identity.
4. A copy of all personal emails and text messages that members of the Office of the Texas
Governor used in their official capacity, in which they have sent and received, that is in regards
to the issue of the federal governments Dear Colleague Letter on Transgender Students and
on the issues of transsexual, and transgender (transgendered) individuals using a restroom and
a locker-room that best fits their lived gender identity. This request is including but is not limited
to the terms and communication that involves men using women restrooms and women using
men restrooms.
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5. A copy of all letters, emails, written statements, data and all other written information that the
Office of the Texas Governor has taken, maintained and collected that is in regards to the
federal governments Dear Colleague Letter on Transgender Students.
6. A copy of all written directives, letters, emails and all other written communication that the
Texas Governors Office has sent to state governmental bodies regarding the federal
governments Dear Colleague Letter on Transgender Students.
7. A copy of all letters, emails, and all other written communication that Texas Governors Office
has received from public educational institutions and private educational institution in the State
of Texas that is in regards to and pertaining to the federal governments Dear Colleague Letter
on Transgender Students.
8. A copy of all written communication between the Texas Office of the Governor and the federal
government that is in regards to and pertaining to the federal governments Dear Colleague
Letter on Transgender Students.
Please note that virtually all of the information that is in a governmental body's physical possession
constitutes public information that is subject to the Act. Id. 552.022(a)(1); see also Open Records
Decision Nos. 549 at 4 (1990), 514 at 1-2 (1988). The Act also is applicable to information that a
governmental body does not physically possess, if the information is collected, assembled, or Page 2 of 3
maintained for the governmental body, and the governmental body owns the information or has a right
of access to it. Gov't Code 552.002(a)(2); see also Open Records Decision No. 462 at 4 (1987).
I would like to request a waiver of all fees in that the disclosure of the requested information is in the
public interest and will contribute significantly to the publics understanding of the way in which the
government operates, communication that was sent and received from the Office of the Texas
Governor, equal access for individuals who are transsexual and transgendered, the State of Texas
compliance with federal law, the federal government, sex discrimination and et cetera. Please also note
that I strongly believe that it is vitally important for citizens to monitor the actions and the behavior of
the government for the purpose as to ensuring accountability.
The Texas Public Information Act requires that you "promptly produce" the requested records unless,
within 10 days, you have sought an Attorney General's Opinion. As provided by the Texas Public
Information Act, I will expect your response within ten (10) business days. Twenty (20) days if my
request requires substantial programming or manipulation of data. See Tex. Govt Code Ann. Secs.
552.221(d) and 231(c). If you expect a significant delay in responding to this request, please contact me
with information about when I might expect copies or the ability to inspect the requested records. You
can reach me via email at: iscampaign@usa.com.
If you deny any or all of this request, please provide a written explanation for the denial and cite each
specific statutory exemption(s) you feel justifies the refusal to release the information and notify me of
the appeal procedures available to me under the law. If your "governmental body" wants to seek the
Attorney General's Opinion regarding any of our request, I ask that you immediately notify me and then
seek a formal decision from the Texas Attorney General not later than ten (10) calendar days from your
receipt of this request, as required by the Texas Public Information Act. See Sec. 552.301. I would then
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ask your governmental body to release to me all of the items in which you have not sought the Attorney
General's Opinion on. See Sec. 552.301, 302; see also Open Records Decision No. 664 (2000)(if a
governmental body concludes that no exceptions apply to the requested information, it must release
the information as soon as possible).
As you may already know that violation of the open records law can result in a fine of up to $1,000,
imprisonment of up to six months, or both. See Tex. Govt Code Ann. Sec. 552.353(e). Litigation costs
and reasonable attorney fees may also be assessed against you. See Sec. 552.323.
I would prefer to receive all of the requested information to me by email. My email address is at:
iscampaign@usa.com. You can also send me correspondence by mail at the following mailing address:
Isaiah X. Smith
Isaiah Smith Campaign
P.O Box 163411
Fort Worth, Texas, 76161
Respectfully,
Isaiah X. Smith

Isaiah Smith Campaign

P.O Box 163411
Fort Worth, Texas, 76161
www.isaiahxsmith.com

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BRIEF FROM THE

OFFICE OF THE TEXAS
GOVERNOR
REGARDING MY OPEN
RECORDS REQUEST

GOVERNOR

GREG

ABBOTT

June 16, 2016

Justin Gordon
Office of the Attorney General
Open Records Division
P.O. Box 12548
Austin, Texas 78711-2548

Re:

Open Records Letter Ruling Request

OOGID#: 16-149
OAG ID#: 622513

Dear Mr. Gordon:

On May 25, 2016, the Office of the Governor (the OOG) received a request under the Public
Information Act (the PIA) from Mr. Smith. A copy of the request is attached as Exhibit A.
The OOG is releasing some responsive documents to the requestor.2 The OOG asserts portions
of the remaining responsive information are excepted from required public disclosure under the
PIA. Pursuant to section 552.30 1(a) of the Government Code, this brief is submitted to seek a
decision as to whether sections 552.101, 552.103, 552.107, and 552.111 of the Government Code

apply to the information at issue. Representative samples of this information are attached as
Exhibit B. The OOG has notified the Office of the Attorney General (OAG) of the request
pursuant to sections 552.304 and 552.305 of the Government Code, to allow them an opportunity
to submit arguments against release of the information at issue, which is included in Exhibit B.
The 000 has also notified the Office of the Lieutenant Governor, the Texas Education Agency,
and the Texas Juvenile Justice Department (TJJD) of the request pursuant to section 552.305
of the Government Code, to allow them an opportunity to submit their arguments against release
of the information at issue, which is attached in full as Exhibit C. The 000 has provided the
requestor a copy of this brief pursuant to sections 552.301(d) and 552.301(e-1) of the
Government Code.

for purposes of calculating deadlines, please note the OOG was closed in observance of Memorial Day on May 30,
2016.
2
The OOG has redacted private email addresses pursuant to section 552.137 of the Government Code and the
previous determination issued by the Open Records Division of the OAG in Open Records Decision No. 684 (2009).

I.

Information Excepted From Required Public Disclosure Under Section 552.101:

Common-Law Privacy

Section 552.101 of the Government Code excepts from required public disclosure information
considered to be confidential by law, either constitutional, statutory, or by judicial decision.
Govt Code 552.101. Section 552.101 encompasses the doctrine of common-law privacy,
which protects information that is (1) highly intimate or embarrassing, the publication of which
would be highly objectionable to a reasonable person and (2) not of legitimate concern to the
public. Indus. found. v. Tex. Indus. Accident 3d., 540 S.W.2d 668, 685 (Tex. 1976). The OOG
asserts the information marked within Exhibit B consists of information that is confidential under
common-law privacy, such as specific references to an individuals medical history or an
experience that allows a person to be identified as a survivor of abuse. Therefore, this
information must be withheld under section 552.101 of the Government Code.
II.

Information Excepted From Required Public Disclosure Under Section 552.103:

Pending or Reasonably Anticipated Litigation

Information related to pending or reasonably anticipated litigation involving a governmental

body is excepted from required public disclosure. Section 552.103 of the Government Code
provides, in part:
(a) Information is excepted from [required public disclosureJ if it is information
relating to litigation of a civil or criminal nature to which the state or a political
subdivision is or may be a party or to which an officer or employee of the state or
a political subdivision, as a consequence of the persons office or employment, is
or may be a party.

(c) Information relating to litigation involving a governmental body or an officer

or employee of a governmental body is excepted from disclosure under
Subsection (a) only if the litigation is pending or reasonably anticipated on the
date that the requestor applies to the officer for public information for access to or
duplication of the information.
Id. 552.103(a), (c). A governmental body that claims an exception to disclosure under section
552.103 has the burden of providing relevant facts and documentation sufficient to establish the
applicability of this exception to the information that it seeks to withhold. To meet this burden,
the governmental body must demonstrate that (1) litigation was pending or reasonably
anticipated on the date the governmental body received the request for information, and (2) the
information at issue is related to the pending or anticipated litigation. See Univ. of Tex. Law Sch.
v. Tex. Legal found., 95$ S.W.2d 479, 481 (Tex. App.Austin 1997, no pet.); Heard v.
Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.Houston [1st Dist.J 1984, writ refd n.r.e.).
The governmental body must meet both prongs of this test for information to be excepted from
disclosure under section 552.103(a). See Tex. Atty Gen. ORD-551 at 4 (1990). However, once
information has been obtained by all parties to the litigation through discovery or otherwise, no
section 552.103(a) interest exists with respect to that information. Tex. Atty Gen. ORD-349
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(1982), Tex. Atty Gen. ORD-320 (1982). Further, the applicability of section 552.103(a) ends
once the litigation has concluded. Tex. Atty Gen. Op. MW-575 (1922); Tex. Atty Gen. ORD
350 (1922).
The requested information relates to a pending case. Included as part of Exhibit D is
documentation showing that a lawsuit styled State of Texas, et al., v. United States ofAmerica, et
al., Cause No. 7:16-cv-00054-O, was filed in the United States District Court for the Northern
District of Texas, Wichita Falls Division, on May 25, 2016, the same date the OOG received the
public information request. The 000 attorneys serve as legal counsel to the Governor with
regard to cases involving federal funding to state agencies. Thus, the OOG shares a common
litigation interest with the OAG and affected state agencies. However, the 000 is not a party to
this litigation. See Govt Code 552.103(a); Tex. Atty Gen. ORD-575 at 2 (1990) (stating that
predecessor to section 552.103 only applies when governmental body is party to litigation). In
such a situation, the OOG has notified the OAG, to give the OAG an opportunity to state that it
seeks to withhold the information from disclosure under section 552.103 and to demonstrate how
that exception applies to the requested information. The OOG asserts the litigation was pending
on the date the 000 received the public information request and the information at issue relates
to the pending litigation in which the State of Texas is a party. The information marked has not
been obtained by all parties to the litigation through discovery or other means. To date, the
litigation is still pending and is not at or near conclusion. Accordingly, the information marked in
Exhibit B may be withheld in its entirety under section 552.103 of the Government Code.
III.

Information Excepted From Required Public Disclosure Under Section 552.107:

Privileged Attorney-Client Communications

The OOG asserts the information marked within Exhibit B consists of privileged attorney-client
communications. Section 552.107(1) of the Government Code excepts from required public
disclosure information that the attorney general
is prohibited from disclosing because of a
duty to the client under the Texas Rules of Evidence or the Texas Disciplinary Rules of
Professional Conduct. Govt Code 552.107. Section 552.107 protects information that falls
within the attorney-client privilege. When asserting the attorney-client privilege, a governmental
body has the burden of providing the necessary facts to demonstrate the elements of the privilege
in order to withhold the information at issue. Tex. Atty Gen. ORD-676 at 6-7 (2002). First, a
governmental body must demonstrate that the information constitutes or documents a
communication. Id. at 7. Second, the communication must have been made for the purpose of
facilitating the rendition of professional legal services to the client governmental body. Tex. R.
Evid. 503(b)(1). Third, the privilege applies only to communications between or among clients,
client representatives, lawyers, and lawyer representatives. Id. 503(b)(1)(A), (B), (C), (D), (E).
Lastly, the attorney-client privilege applies only to a confidential communication, Id. 503(b)(l),
meaning it was not intended to be disclosed to third persons other than those to whom
disclosure is made in furtherance of the rendition of professional legal services to the client or
those reasonably necessary for the transmission of the communication. Id. 503(a)(5).
.

Section 552.107(1) applies to communications between a governmental body and its attorney
made in confidence to further the attorneys rendering of professional legal services to the
governmental body. Attorney General opinions applying section 5 52.107(1) have permitted

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governmental bodies to withhold information their attorneys have received or generated in the
capacity of a legal advisor. See Tex. Atty Gen. ORD-462 at 10-11 (1987) (applying section
3(a)(7), predecessor to Section 552.107(1)). Section 552.107(1) generally excepts an entire
communication that is demonstrated to be protected by the attorney-client privilege unless
otherwise waived by the governmental body. See Hide v. DeShazo, 922 S.W.2d 920, 923 (Tex.
1996) (privilege extends to entire communication, including facts contained therein). Further,
communications with a governmental body and third parties with whom the governmental body
shares a privity of interested are protected under attorney-client privilege. See Tex. Atty Gen.
ORD-464 and 429.
The information marked within Exhibit B consists of such privileged communications. First, the
information includes communications between and among OOG attorneys and QOG employees
on various legal matters. Some of these include communications involving coordination of legal
services to the Governor and officials from other states in multi-state legal projects. Second,
other communications are between OOG attorneys and 0AG attorneys representing the State of
Texas on the coordination of legal services to the Governor. Third, additional communications
are between 00G attorneys and TJJD attorneys and employees concerning the State of Texas
and the coordination of legal services to the Governor. These communications also reflect
coordination with the OAG. The OOG, as chief executive of the State of Texas, coordinates
with Texas state agencies on public education, including public education provided in juvenile
facilities. Accordingly, the 00G and TJJD share a common interest with respect to the
communications. All of this information constitutes or reveals communications between
privileged parties that were made for the purpose of providing professional legal services to the
Governor and the 00G. Further, these communications were not intended to be disclosed and
have not been disclosed to non-privileged parties. See Tex. R. Evid. 503(a)(5). Therefore, the
OOG contends the information marked within Exhibit B may be withheld in its entirety under
section 552.107(1) of the Government Code.
IV.

Information Excepted From Required Public Disclosure Under Section 552.111:

Deliberative Process Privilege

Section 552.111 of the Government Code excepts from required public disclosure [ajn
interagency or intraagency memorandum or letter that would not be available by law to a party in
litigation with the agency. Govt Code 552.111. Your office has construed section 552.111
to encompass the deliberative process privilege by excepting from disclosure internal
communications consisting of advice, recommendations, or opinions reflecting the policy
making processes of a governmental body. Tex. Atty Gen. ORD-615 at 5 (1993); accord City
of Garland v. Dallas Morning News, 969 S.W.2d 548, 556 (Tex. App.Dallas 1998) (Section
552.111
excepts only those internal communications consisting of advice, recommendations,
and opinions reflecting the policy-making processes of the governmental body at issue.),
affirmed, 22 S.W.3d 351 (Tex. 2000). But, if factual information is so inextricably intertwined
with material involving advice, opinion, or recommendation as to make severance of the factual
data impractical, the factual information also may be withheld under section 552.111. See Tex.
Atty Gen. ORD-313 at 3 (1982). The purpose of section 552.111 is to protect advice and
opinions on policy matters and to encourage frank and open discussion within an agency in
connection with its decision-making processes. Dallas Morning News, 969 S.W.2d at 556.
.

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Section 552.111 can also encompass communications between a governmental body and a third
party, including a consultant or other party with a privity of interest. See Tex. Atty Gen. ORD
561 at 9 (1990) (section 552.111 encompasses communications with party with which
governmental body has privity of interest or common deliberative process).
Your office has also concluded that a preliminary draft of a document that is intended for public
release in its final form necessarily represents the drafters advice, opinion, and recommendation
with regard to the form and content of the final document, so as to be excepted from disclosure
under section 552.111. See Tex. Atty Gen. ORD-559 at 2 (1990) (applying statutory
predecessor). Section 552.111 protects factual information in the draft that also will be included
in the final version of the document. See id. at 2-3. Thus, section 552.111 encompasses the entire
contents, including comments, underlining, deletions, and proofreading marks, of a preliminary
draft of a policy-making document that will be released to the public in its final form. See id. at
2.
The information marked within Exhibit B consists of such privileged communications. First, the
information includes communications between OOG policy directors, analysts, and employees,
communicating in their official policy-making capacities. Second, the information marked
includes a draft document of a press statement intended for public release in its final form,
reflecting communications between OOG employees, also communicating in their official
policy-making capacities. Finally, the information marked includes a draft document intended
for release in its final form that reflects communications between the OOG and officials from
other states. The QOG, in representing the interests of the State of Texas within multi-state
projects, also shares a privity of interest with other states with regard to specific policy-making
matters. Therefore, the communications marked within Exhibit B consist of advice,
recommendations, and opinions regarding these policy-making matters. The OOG asserts the
information marked is excepted from disclosure under section 552.111 of the Government Code
and the deliberative process privilege.
V.

Information Excepted From Required Public Disclosure Under Section 552.111:

Attorney Work Product

The OOG also asserts portions of Exhibit B are excepted from disclosure pursuant to section
552.111 of the Government Code, which excepts from required public disclosure an interagency
or intraagency memorandum or letter that would not be available by law to a party in litigation
with the agency. Govt Code 552.111. Section 552.111 encompasses the attorney work
product privilege found at Rule 192.5 of the Texas Rules of Civil Procedure. See Tex. R. Civ. P.
192.5; City of Garland v. Dallas Morning News, 22 S.W.3d 351, 360 (Tex. 2000); Tex. Atty
Gen. ORD-677 at 4-8 (2002). Rule 192.5 defines attorney work product as consisting of:
(1) material prepared or mental impressions developed in anticipation of litigation
or for trial by or for a party or a partys representatives, including the partys
attorneys, consultants, sureties, indemnitors, insurers, employees, or agents; or
(2) a communication made in anticipation of litigation or for trial between a party
and the partys representatives or among a partys representatives, including the
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partys attorneys, consultants, sureties, indemnitors, insurers, employees, or

agents.
Tex. R. Civ. P. 192.5. A governmental body that seeks to withhold information on the basis of
the attorney work product privilege under section 552.111 bears the burden of demonstrating that
the information was created or developed for trial or in anticipation of litigation by or for a party
or a partys representative. See Id.; Tex. Atty Gen. ORD-677 at 6-8. In order to meet our
burden of proving it anticipated litigation, the OOG must establish that:
(a) a reasonable person would have concluded from the totality of the
circumstances surrounding the investigation that there was a substantial chance
that litigation would ensue; and
(b) the party resisting discovery believed in good faith that there was a substantial
chance that litigation would ensue and [created or obtained the information] for
the purpose of preparing for such litigation.
See Natt Tank V. Brotherton, 851 S.W.2d 193, 207 (Tex. 1993). A substantial chance of
litigation does not mean a statistical probability, but rather that litigation is more than merely an
abstract possibility or unwarranted fear. Id. at 204; Tex. Atty Gen. ORD-677 at 7.
Exhibit B consists of communications between the OOG and the OAG. These communications
were created by OAG and 000 attorneys in response to the pending case. This information
contains mental impressions, opinions, conclusions, and legal theories of the attorneys.
Therefore, the 000 asserts the information is excepted from disclosure under section 552.111 of
the Government Code.

VI.

Conclusion

On behalf of the OOG and pursuant to section 552.301 of the Government Code, I respectfully
request an open records letter ruling as to the applicability of the above raised exceptions.
If you have any questions or need additional information, please contact me at (512) 463-8470.
Sincerely,

Assistant General Counsel

Office of the Governor
cc:

Isaiah Smith
Isaiah Smith Campaign
P.O. Box 163411
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Fort Worth, Texas 76161

iscarnpaign@usa.com
(without Exhibits)
Lauren Downey
Public Information Coordinator
Office of the Attorney General
P.O. Box 1254$
Austin 7$71 1-254$
lauren. downeytexasattorneygeneral. gov
Chris Sterner
Deputy General Counsel
Office of Lieutenant Governor Dan Patrick
P.O. Box 1206$
Austin, TX 7$71 1
Chris. sternerltgov. texas. gov
Karol Davidson
Assistant General Counsel
Texas Juvenile Justice Department
P.O. Box 12757
Austin, TX 7$71 1
Karol.Davidsontjjd.texas.gov
Montgomery Meitler
Assistant General Counsel
Texas Education Agency
1701 N. Congress Ave.
Austin, TX 7$701
(512) 463-9720
Montgornery. Meitlertea.texas.gov
FIRtea.texas.gov
Attachments: Exhibit A Copy of original request
Exhibit B Rep. sample of information at issue
Exhibit C Information sent to Office of the Lieutenant Governor, Texas
Education Agency, and Texas Juvenile Justice Department
Exhibit D Information sent to Office of Attorney General

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