TIMOTHY DAVIS CANTEY HANGER PLAZA

LICENSED IN TEXAS, KENTUCKY AND OHIO 600 WEST 6TH STREET, SUITE 300
DIRECT: (817) 877-2804 FORT WORTH, TEXAS 76102-3685
EMAIL: TDAVIS@CANTEYHANGER.COM MAIN: (817) 877-2800
FAX: (817) 877-2807

January 24, 2022

VIA EMAIL ONLY

Amanda Bigbee, Esq.
350 Keller Parkway
Keller, Texas 76248
amanda.bigbee@kellerisd.net

RE: Terms of Engagement

Dear Ms. Bigbee:

I represent Christine Molloy. This letter concerns claims Ms. Molloy has against the Keller
Independent School District regarding the school district’s creation of a “challenge committee” to
review books with questionable content contained in KISD’s libraries and classrooms and made
available to KISD students.

As I am certain you are aware, parents discovered books with extremely graphic sexual
content in KISD’s schools in the last few months. An outcry to remove this material from public
schools and to protect children from this content has continued to reverberate in the community.
Ms. Molloy attempted to participate in the challenge committee. However, prior to her
participation, KISD presented her with a confidentiality agreement as a requirement of her work
on behalf of the committee. In fact, it presented her with two. The first one required parents to
agree:

…to keep all information confie3dential [sic] and to discuss this

information only with members of the committee during the
discussion.

Ms. Molloy objected to this blanket confidentiality agreement that would cover all her
work with the committee and its activities. She was then presented with a second confidentiality
agreement relating to the members of the committee. I’ve attached both of these draft agreements.

When Ms. Molloy communicated that she would not sign the new confidentiality
agreement, she was prohibited from serving on the committee. When she asked to merely observe
the committee’s work, she was denied access even to observe the meeting.
Amanda Bigbee, Esq.
January 24, 2022
Page 2

These actions are a violation of the Texas Open Meetings Act. In Texas, “Every regular,
special, or called meeting of a governmental body shall be open to the public…” subject to very
limited (and inapplicable) exceptions. Tex. Gov’t Code § 551.002. This requirement applies to a
school district board of trustees. Tex. Gov’t Code § 551.001(3)(E). Committees of a governmental
body are also subject to the requirement. Willmann v. City of San Antonio, 123 S.W.3d 469, 479
(Tex. App.—San Antonio 2003, pet. denied). The challenge committee is subject to this open
meetings requirement because the board creates these committees pursuant to KISD Board Policy
EF(Local).

Further, I am concerned that these actions are a violation of Ms. Molloy’s due process
rights. As the El Paso Court of Appeals has plainly stated:

The United States Supreme Court has recognized that parents have
a liberty interest in the care, custody, and control of their children.
Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 2060–2061, 147
L.Ed.2d 49 (2000). These parental interests are a fundamental right
protected by the Due Process Clause of the Fourteenth Amendment
to the United States Constitution. Id. at 2060.

Bates v. Tesar, 81 S.W.3d 411, 435 (Tex. App.—El Paso 2002, no pet.). These rights are protected
by both the federal and the Texas constitutions.

Thus, the confidentiality agreement is completely contrary to these legal requirements and
the public policy in favor of transparency that is the rationale for the law. Further, I have reviewed
a letter written by KISD’s outside counsel, Sarah Flournoy, where she claims a right to secrecy
because, “Members [of the challenge committee] may reasonably fear scrutiny, social media posts and
other outside forces – both hostile and supportive, suppressing voluntary participation.” I’ve attached
this letter for your reference although I suspect you likely have a copy.

This claim is baffling coming from a public school. Instead of providing full transparency to
the process, KISD has instead chosen to shroud the process in total secrecy. It will not identify the
challenge committee members, it will not allow the public to observe their deliberations and the
substance of their review, and it will not make the work product of this committee available for public
review. Yet, the committee’s work concerns that which we all hold most dear: our children. Those
involved with decisions affecting our children should be proud to stand up and identify themselves.
Their ethical responsibilities to our society’s most treasured members should outweigh their fear of
public criticism.

KISD should immediately open the challenge committee process up with complete
transparency. It should make its members publicly-known, allow the public to attend each meeting,
and produce material related to the committee’s work (or produced by the committee) when requested.
Amanda Bigbee, Esq.
January 24, 2022
Page 3

At a minimum, if it refuses to take these steps toward transparency, it should stop the work of any
challenge committee until this dispute is resolved.

As you know, the Texas Open Meetings Act provides civil remedies and criminal penalties
for violations of its provisions. Additionally, an interested person may bring an action by
mandamus or injunction to stop, prevent, or reverse a violation or threatened violation of the Act
by members of a governmental body. The Act also expressly waives sovereign immunity for
violations of the Act and authorizes a court to award reasonable attorney fees and litigation costs
to the party who substantially prevails in an action brought under the Act.

I also write to demand that you preserve any documents, data, and tangible things that
relates to or was created by the challenge committee.

The duty to preserve documents applies to each recipient of this letter and extends to
documents, data, and tangible things in KISD’s possession, custody, and/or control, as well as any
and all of its trustees, employees, or agents who possess or control documents, materials, tangible
goods, and other items that one could reasonably anticipate to be subject to discovery in any action
filed over the Potential Violations. KISD is under an obligation to exercise reasonable efforts to
identify and notify such nonparties, including employees of corporate or institutional parties.

“Documents, data, and tangible things” is to be interpreted broadly to include writings;

records; files; correspondence; reports; memoranda; calendars; diaries; minutes; electronic
messages; voicemail; e-mail; text messages; telephone message records or logs; computer and
network activity logs; hard drives; backup data; removable computer storage media such as tapes,
disks, and cards; printouts; document image files; Web pages; databases; spreadsheets; software;
books; ledgers; journals; orders; invoices; bills; vouchers; checks; statements; worksheets;
summaries; compilations; computations; charts; diagrams; graphic presentations; drawings; films;
charts; digital or chemical process photographs; video, phonographic, tape, or digital recordings
or transcripts thereof; drafts; jottings; and notes. Information that serves to identify, locate, or link
such material, such as file inventories, file folders, indices, and metadata, is also included in this
definition.

This term specifically includes all communications among board members and KISD
employees relating to the challenge committee and the confidentiality agreement requirement for
the 2021-2022 school year.

KISD’s duty to preserve evidence is to be interpreted broadly to accomplish the goal of

maintaining the integrity of all documents, data, and tangible things reasonably anticipated to be
subject to discovery under the Texas Rules of Civil Procedure in any action filed. Preservation
includes taking reasonable steps to prevent the partial or full destruction, alteration, testing,
deletion, shredding, incineration, wiping, relocation, migration, theft, or mutation of such material,
as well as negligent or intentional handling that would make material incomplete or inaccessible.
Amanda Bigbee, Esq.
January 24, 2022
Page 4

Further, if KISD’s practices involve the routine destruction, recycling, relocation, or mutation of
such materials, it must either:

1. halt such business processes;

2. sequester or remove such material from the business process; or,
3. arrange for the preservation of complete and accurate duplicates or copies of such
material, suitable for later discovery if requested.

Your immediate attention to these matters is anticipated. Be advised that any failure to
comply with this preservation request that results in the destruction of data may result in sanctions
and/or a spoliation instruction in any subsequently filed suit.

My client sincerely wants to resolve this matter in such a way that she can participate in
the challenge committee and, ultimately, ensure her child receives an age-appropriate education.
That said, if immediate action to fully address Ms. Molloy's concerns is not taken, then Ms. Molloy
is prepared to pursue every civil remedy available to her, including but not limited to filing a
lawsuit to protect her rights. Please contact me as soon as you are able to provide a thorough
response to the matters set out in this letter so that we can discuss that resolution.

Sincerely,

Timothy Davis

Enclosures
Attachment 1
 Keller Independent School District
Confidentiality/Expectations Agreement for Book Challenge Committee

I ________________________________ agree to serve on the Book Challenge Committee.

I understand that information discussed during the committee is confidential in nature.

I agree to keep all information confie3dential and to discuss this information only with members of the
committee during the discussion.

________________________________ ________________________

Name Date
Attachment 2
 Keller Independent School District
Confidentiality/Expectations Agreement for Book Challenge Committee

I ________________________________ agree to serve on the Book Challenge Committee.

I understand that the final determination as well as a summary of the group’s discussion will be
documented in a final report without identifying the committee members. I agree to maintain the
confidentiality of committee members after the meeting to ensure all individuals feel comfortable and
confident sharing their honest opinions and thinking with the group.

I agree to keep the identity of committee members confidential. Should I breach this agreement I
understand that I will no longer be invited to serve on any book challenge committee in the future.

________________________________ ________________________

Name Date
Attachment 3
DR. SARAH S. FLOURNOY 100 Main Street
Direct Dial and E-mail: Fort Worth, Texas 76102-3090
817.339.2417 Telephone: 817.338.1700
sflournoy@belaw.com Facsimile: 817.870.2265

December 15, 2021

Via EFiling System

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

Re: OAG Tracking ID – OR93024221

Texas.gov Request ID – 66142782
Request for Decision Regarding Texas Public Information Act (“PIA”) Request
from Erik Leist received by the Keller Independent School District (“KISD” and
“District”)

Dear Attorney General Paxton,

Please be advised, Keller ISD is represented in the above referenced matter by Brackett & Ellis,
P.C. This letter serves as KISD’s request for an Open Records decision and comments stating the
reasons why the identified exceptions apply. Amanda Bigbee, Keller ISD General Counsel,
directly submitted a 10-day Determination Request Letter on December 8, 2021.

On Tuesday, November 16, 2021 at 8:26 p.m., Erik Leist via online portal submitted a request for
information to Keller ISD (Exhibit 1) seeking the following records:

1. All written communication, including but not limited to emails, documents, statements,
text messages, and transcribed voicemails, etc. related to the challenge process of Gender
Queer, Out of Darkness, Jack of Hearts (and Other Parts), Infinity Cycle, Flamer, and Fun
Home.
2. This includes, but is not limited to, communication between members of these challenge
committee, communication between the Board, Superintendent and Administration,
district library staff and/or any combination therein.
3. This includes, but is not limited to, the date the challenge process started, when it ended
and formal reports generated, names of challenge committee members and their
positions/community status.
4. These requests include all complete email threads and their attachments where the subject
is mentioned including parties listed.
Office of the Attorney General
Open Records Division
December 15, 2021
Page 2

Because the request was made after regular business hours, the request was not received by the
District until Thursday, November 17, 2021. Further, the District was closed for Thanksgiving
Break November 22-26, 2021. Exhibit 2. The fifteenth business day is therefore Wednesday,
December 15, 2021.

Keller ISD is providing the Requestor with some of the requested documents, but requests a
determination from your office whether portions of the information sought are exempt and
privileged from disclosure under the following exceptions set forth in the Texas Government Code:

1. §552.101 Confidential Information by Law – Judicial Decision; and,

2. §552.107 Certain Legal Matters.

Pursuant to Texas Government Code §552.301, KISD submits for consideration its written
comments herein stating the reason(s) why the above listed exception applies allowing the District
to withhold portions of the responsive records. Enclosed with this letter is a copy of the records
being withheld. Exhibit 3. The document(s) submitted with this letter are strictly confidential and
should be treated accordingly. See Tex. Gov’t. Code §552.3035. In accordance with the Family
Educational Rights and Privacy Act, any student names and personally identifiable information
have been redacted from the materials provided and where necessary, “student” has been
substituted.

1. §552.101 Confidential Information by Law – Judicial Decision.

The request seeks the “names of challenge committee members” and several responsive records
include this information. Exhibit 3. Texas Government Code §552.101 excepts from disclosure
“information considered to be confidential by law, either constitutional, statutory, or by judicial
decision” and incorporates constitutional privacy. The Texas Supreme Court in In re Bay Area
Citizens Against Lawsuit Abuse, determined that the First Amendment of the U.S. Constitution’s
protection of freedom of association protected an organization’s list of contributors from
compelled disclosure through a discovery request in pending litigation. 982 S.W.2d 371 (Tex.
1998). The Court stated:

Freedom of Association for the purpose of advancing ideas and

airing grievances is a fundamental liberty guaranteed by the First
Amendment. Compelled disclosure of the identities of an
organization’s members or contributors may have a chilling effect
on the organization’s contributors as well as on the organization’s
own activity. For this reason, the First Amendment requires that a
compelling state interest be shown before a court may order
disclosure of membership in an organization . . . It is immaterial
whether the beliefs sought to be advanced by the association pertain
to political, economic, religious or cultural matters, and state action
Office of the Attorney General
Open Records Division
December 15, 2021
Page 3

which may have the effect of curtailing the freedom to associate is

subject to the closest scrutiny.

Id. at 375. The party resisting disclosure bears the initial burden of making a prima facie showing
that disclosure will hinder First Amendment rights, but “the burden must be light.” Id. at 376.
Quoting the U.S. Supreme Court in Buckley v. Valeo, 424 U.S. 1, 74 (1976), the Court determined
that the party resisting disclosure must show “a reasonable probability that the compelled
disclosure of a party’s contributors’ names will subject them to threats, harassments, or apprisal
from either government officials or private parties.” Id. Such proof may include “specific evidence
of past or present harassment of members due to their organizational ties, or of harassment directed
at the organization itself.” Id.

The Supreme Court has held that “[g]roups which themselves are neither engaged in subversive or
other illegal or improper activities nor demonstrated to have any substantial connections with such
activities must be protected in their rights of free and private association guaranteed by the First
and Fourteenth Amendments.” 372 U. S. 557-558. Indeed, The First and Fourteenth Amendment
rights of free speech and free association are fundamental and highly prized, and “need breathing
space to survive.” NAACP v. Button, 371 U. S. 415, 371 U. S. 433. “Inviolability of privacy in
group association may in many circumstances be indispensable to preservation of freedom of
association, particularly where a group espouses dissident beliefs.” NAACP v. Alabama, 357 U.S.
at 357 U. S. 462

Keller ISD Board Policy EF(Local) provides that instructional materials, including library books,
may be challenged by an individual and provides the process for which the challenge is conducted.
Where library books are challenged, the process includes the formation of a committee of
volunteers that reads the challenged book, meets to discuss the specifics of the complaint, and then
votes to: 1) return the book to the library free from restrictions, 2) remove the book from the
library, or 3) return the book with restrictions. The challenge committee is not a governmental
body subject to the Open Meetings Act. Nor is it a standing committee. Instead, for each challenge
a separate committee is constituted, and the outcome of the vote is a policy decision for that
particular book only. Further, committee votes are anonymous using a paper ballot. This ensures
that committee members can vote freely and no one member feels outnumbered or intimidated by
other members who may support a different outcome. Committee members include District
employees, parents, community members and others who have volunteered to participate.

Disclosure of committee membership lists will hinder the District’s ability gather volunteers for
challenge committees, inhibit the activity of the challenge committees themselves, and violate the
First Amendment privacy rights of individuals volunteering their time in this important work

Members may reasonably fear scrutiny, social media posts and other outside forces – both hostile
and supportive, suppressing voluntary participation. See, NAACP v. Alabama (1958). Currently,
there are 25 book challenges pending in the District and each challenge requires volunteers to form
a challenge committee for the purpose of reading the challenged library book and deciding its
Office of the Attorney General
Open Records Division
December 15, 2021
Page 4

status. When asked to serve on a challenge committee, at least one potential volunteer before
answering asked if committee members names would be subject to disclosure. Exhibit 4. Further,
by their very nature, the challenged books are controversial. The public comments at school board
meetings show a level of passion around this topic that is, at times, overwhelming. See Exhibit 4
and the public comments at the November 15, 2021 Keller ISD Board of Trustee Meeting 1. As the
first speaker said: “No matter which way you do what you do or don’t do; you’re going to be
criticized by someone or some group.” In addition, Governor Greg Abbott has used Twitter to
encourage prosecution of staff members responsible for pornographic materials in school libraries.
A committee member who believes a library book should remain in the library would reasonably
fear pressure from the state’s highest office to seek criminal charges against them. Finally, as
Exhibit 4 shows, the meetings themselves, without outside influence, are stressful and time-
consuming. Book challenge committees need breathing space to read, review and discuss the
challenge at issue without outside pressure. In making a decision regarding the challenge, some
volunteers will undoubtedly disagree with the committee.

Thus, the District has made the requisite prima facie showing of a reasonable probability that
committee participants will be subject to threats, harassment, or appraisal if their names are
disclosed. These volunteers have a fundamental and highly prized right to free speech and free
association and the committees themselves need breathing space to accomplish their task.
Considering the facts, the supporting information submitted, and the totality of the circumstances,
a prima facie showing that disclosure of the identities of committee members in this instance will
burden First Amendment rights of freedom of association. The District should withhold the names
of challenge committee members.

2. §552.107 Certain Legal Matters.

The request seeks all written communication, including emails, between the Board, Superintendent
and the administration related to the challenge process. Texas Government Code Section 552.107
protects from disclosure the same information protected under Texas Rule of Evidence 503. Open
Records Decision No. 676 (2002). Accordingly, in order to withhold attorney-client privileged
information from disclosure under rule 503, a governmental body must 1) show that the document
is a communication transmitted between privileged parties or reveals a confidential
communication; 2) identify the parties involved in the communication; and 3) show that the
communication is confidential by explaining that it was not intended to be disclosed to third
persons and that it was made in furtherance of the rendition of professional legal services to the
client. Tex. Att'y Gen. Op. OR2017-22852 (2017)

The record in question is an email communication between Charles Randkley, Dr. Rick Westfall
and Amanda Bigbee. Exhibit 4. Both Mr. Randkley and Dr. Westfall are clients of Ms. Bigbee.
Mr. Randkley is a Keller ISD Trustee and member of the District’s governing Board. Dr. Westfall
is the Keller ISD Superintendent. Ms. Bigbee is a licensed Texas attorney currently employed by

1
Speakers’ comments begin at minute 11:35 in the linked video.
Office of the Attorney General
Open Records Division
December 15, 2021
Page 5

Keller ISD as general counsel. The communication in question was not intended to be disclosed
to third persons and was not shared outside of Keller ISD. Further, the Keller ISD Board has not
voted to waive the District’s attorney-client privilege with respect to the email communication.

Finally, the email communication was initiated by the Trustee and addressed to both the
Superintendent and Attorney seeking information on the origin and parameters of the challenge
process. In response, the Superintendent provides additional information and context, but
specifically defers to the Attorney for additional information and clarification. The Attorney then
provides the requested professional legal services, which the Board member acknowledges as
such. The communication was made to facilitate the rendering of professional legal services and
should be withheld from disclosure its entirety. See Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex.
1996) (privilege extends to entire communication, including facts contained therein).

Keller ISD requests a determination from your office that the exception under Texas Government
Code Chapter 552, identified above, applies to the documents requested by Erik Leist and should
be withheld by the District.

A copy of this letter is being provided to Requestor Erik Leist. Thank you for your consideration.
Please do not hesitate to contact me with any questions at 817-339-2417.

Very truly yours,

Sarah S. Flournoy, J.D., Ed.D.

Attorney for Keller ISD

Enclosures

cc: Erik Leist, Requestor

Keller ISD