                                                                                                      ACCEPTED
                                                                                                  03-14-00801-CV
                                                                                                          5596437
                                                                                       THIRD COURT OF APPEALS
                                                                                                  AUSTIN, TEXAS
                                                                                             6/9/2015 10:18:31 AM
                                                                                                JEFFREY D. KYLE
                                                                                                           CLERK
                              CASE NO. 03-14-00801-CV

                                                              FILED IN
                        IN THE THIRD COURT OF APPEALS  3rd COURT OF APPEALS
                                AUSTIN, TEXAS              AUSTIN, TEXAS
                                                       6/9/2015 10:18:31 AM
                                                         JEFFREY D. KYLE
    THE UNIVERSITY OF TEXAS SYSTEM AND THE UNIVERSITY OF TEXAS   AT DALLAS
                                                               Clerk
                                         Appellants,
                                              v.
                    KEN PAXTON, ATTORNEY GENERAL OF TEXAS,
                                   Appellee,
                                              v.
                                   MARILYN CAMERON,
                                   Intervenor/Appellee.

           On Appeal from the 261st District Court of Travis County, Texas
                   The Honorable Stephen Yelenosky, Presiding

                      BRIEF OF APPELLEE KEN PAXTON1,
                       ATTORNEY GENERAL OF TEXAS


    KEN PAXTON                                     KIMBERLY L. FUCHS
    Attorney General of Texas                      State Bar No. 24044140
                                                   Chief, Open Records Litigation
    CHARLES E. ROY                                 Administrative Law Division
    First Assistant Attorney General               Office of the Attorney General of Texas
                                                   P.O. Box 12548, Capitol Station
    BRANTLEY STARR                                 Austin, Texas 78711-2548
    Deputy Attorney General for Legal              Telephone: (512) 475-4195
    Counsel                                        Facsimile: (512) 320-0167
                                                   kimberly.fuchs@texasattorneygeneral.gov
    DAVID A. TALBOT, JR.
    Chief, Administrative Law Division             ATTORNEYS FOR APPELLEE KEN PAXTON,
                                                   ATTORNEY GENERAL OF TEXAS
    June 9, 2015
1
 Pursuant to Texas Rule of Appellate Procedure 7.2, the Attorney General substitutes Attorney
General Ken Paxton for former Attorney General Greg Abbott.
                       REFERENCE TO THE PARTIES

      Appellants The University of Texas System and The University of Texas at

Dallas, will be referred to, collectively, as “the University.” Appellee, Ken Paxton,

Attorney General of Texas, will be referred to as “the Attorney General,” and

Appellee Marilyn Cameron will be referred to as “Ms. Cameron.”

                      REFERENCES TO THE RECORD

      Clerk’s record will be referenced as:         C.R. [Page]




                                         ii
                                          TABLE OF CONTENTS

Reference to the Parties............................................................................................. ii

References to the Record .......................................................................................... ii

Table of Contents ..................................................................................................... iii

Index of Authorities ...................................................................................................v

Statement Regarding Oral Argument ..................................................................... vii

Issues Presented ...................................................................................................... vii

1.        Did the trial court correctly grant the Attorney General’s Motion for
          Summary Judgment? .................................................................................... vii

Introduction ................................................................................................................1

Statement of Facts ......................................................................................................2

Standard of Review ....................................................................................................3

Summary of the Argument.........................................................................................3

Argument....................................................................................................................4

     I.       The trial court correctly granted the attorney general’s motion for
              summary judgment .....................................................................................4

              A. Common-law privacy does not make the information at issue
                 confidential .........................................................................................4

              B.     The University failed to meet its burden to create a fact issue
                     capable of defeating summary judgment ............................................8

              C.     The trial court correctly considered the parties’ cross motions for
                     summary judgment ...........................................................................11

Conclusion and Prayer .............................................................................................12
                                                             iii
Certificate of Compliance ........................................................................................14

Certificate of Service ...............................................................................................15




                                                          iv
                                    INDEX OF AUTHORITIES

CASES

A & T Consultants, Inc. v. Sharp,
904 S.W.2d 668 (Tex. 1995) ............................................................................. 3, 8, 9

Abbott v. Tex. Dep’t of Mental Health & Mental Retardation,
212 S.W.3d 648 (Tex. App.—Austin 2006, no pet.) .................................................9

Adkisson v. Paxton,
No. 03-12-00535-CV, 2015 WL 1030295, at *10
(Tex. App.—Austin, March 6, 2015, no pet.) ..........................................................10

Arlington Indep. Sch. Dist. v. Tex. Attorney Gen.,
37 S.W.3d 152 (Tex. App.—Austin 2001, no pet.) ...............................................7, 9

Centeq Realty, Inc. v. Siegler,
899 S.W.2d 195 (Tex. 1995) ......................................................................................8

City of Fort Worth v. Cornyn,
86 S.W.3d 320 (Tex. App.—Austin 2002, no pet.) ...................................................9

City of Garland v. Dallas Morning News,
22 S.W.3d 351 (Tex. 2000) ......................................................................... 3, 7, 8, 12

Hubert v. Harte-Hanks Tex. Newspapers, Inc.,
652 S.W.2d 546 (Tex. App.—Austin 1983, writ ref’d n.r.e.)................................5, 7

Indus. Found. v. Tex. Indus. Accident Bd.,
540 S.W.2d 668 (Tex. 1976) ............................................................................ 4-6, 11

Johnson v. Sawyer,
47 F.3d 716 (5th Cir. 1995) .......................................................................................6

Morales v. Ellen,
840 S.W.2d 519 (Tex. App.—El Paso 1992, writ denied) ........................................6

Star-Telegram, Inc. v. Doe,
915 S.W.2d 471 (Tex. 1995) ......................................................................................5

                                                         v
Thomas v. Cornyn,
71 S.W.3d 473 (Tex. App.—Austin 2002, no pet.) ...................................................9

Totman v. Control Data Corp.,
707 S.W.2d 739 (Tex. App.—Fort Worth 1986, no writ) .........................................8

STATUTES
Tex. Gov't Code
Public Information Act ch. 502
552.001(a) ..............................................................................................................2, 7

552.001(b) ..................................................................................................................7

552.006 .......................................................................................................................8

552.021 .....................................................................................................................10

552.204 .......................................................................................................................6

552.222(b) ..................................................................................................................6




                                                              vi
              STATEMENT REGARDING ORAL ARGUMENT

The Attorney General takes the position that oral argument is not necessary in this

case, but requests the right to make an argument should oral argument be granted.


                             ISSUES PRESENTED

1.   Did the trial court correctly grant the Attorney General’s Motion for Summary

     Judgment?




                                        vii
                          CASE NO. 03-14-00801-CV

                     IN THE THIRD COURT OF APPEALS
                              AUSTIN, TEXAS

 THE UNIVERSITY OF TEXAS SYSTEM AND THE UNIVERSITY OF TEXAS AT DALLAS
                              Appellants,
                                       v.
                   KEN PAXTON, ATTORNEY GENERAL OF TEXAS,
                                  Appellee,
                                       v.
                             MARILYN CAMERON,
                             Intervenor/Appellee.

        On Appeal from the 261st District Court of Travis County, Texas
                The Honorable Stephen Yelenosky, Presiding

                    BRIEF OF APPELLEE KEN PAXTON,
                     ATTORNEY GENERAL OF TEXAS


TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

                              INTRODUCTION

      The Public Information Act (PIA) places the public’s interest in obtaining

public information above the interest of a governmental body in denying access to

the 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(a).

      In this PIA case, the University claims a list containing the names of

participants in a research study is excepted from disclosure under the PIA. Because

the University has not shown any exceptions apply to the particular information, this

Court should require that it be released to the requestor.

                            STATEMENT OF FACTS

      In 2011, Ms. Cameron requested information on specific categories of

information relating to studies for which the University had received grants from the

National Science Foundation. C.R. at 43. The University responded that it did not

have documents responsive to some categories of information (C.R. at 49), released

some information (C.R. at 4; 49), but requested a letter ruling from the Attorney

General on other information, specifically a list of names of people who participated

in a research study (C.R. at 45-51; 5). The University argued the list of names was

excepted from disclosure by Texas Government Code section 552.101 in

conjunction with common-law and constitutional privacy. C.R. at 49-51.

      The Attorney General issued Letter Ruling OR2011-17401, which concluded

that neither privacy standard applied to the list of names. C.R. at 40-42.

      The University filed suit, and Ms. Cameron intervened. C.R. at 3; 13. The

Attorney General and the University then filed cross motions for summary judgment.

                                          2
Following a hearing, the Attorney General’s motion was granted and the

University’s motion was denied. C.R. at 84-85.

                                STANDARD OF REVIEW

         A trial court’s determination of whether information requested under the PIA

must be released is a question of law requiring de novo review. See A & T

Consultants, Inc. v. Sharp, 904 S.W.2d 668, 674 (Tex. 1995); see also City of

Garland v. Dallas Morning News, 22 S.W.3d 351, 357 (Tex. 2000); Arlington Indep.

Sch. Dist. v. Tex. Attorney Gen., 37 S.W.3d 152, 163 (Tex. App.—Austin 2001, no

pet.).

                          SUMMARY OF THE ARGUMENT

         Because information held by the University is presumed to be public

information, the University has the burden to prove an exception to disclosure

applies to the information in order to withhold it. The University raised Texas

Government Code section 552.101 in conjunction with common-law privacy in its

motion for summary judgment.2 However, common-law privacy does not apply to

the information at issue, which is simply a list of names of participants in a research

study at the University. The trial court granted the Attorney General’s motion for

summary judgment on this point and denied the University’s. The trial court


2
  At the trial court level, the University argued that the information is made confidential under
the doctrine of constitutional privacy. That issue is not raised here.


                                                 3
appropriately considered the evidence presented and correctly applied the law. The

trial court’s judgment should be affirmed.

                                    ARGUMENT

   I.      THE TRIAL COURT CORRECTLY GRANTED THE ATTORNEY
           GENERAL’S MOTION FOR SUMMARY JUDGMENT.

           A. Common-law privacy does not make the information at issue
              confidential.

        The University claims the information at issue should be withheld pursuant to

Texas Government Code section 552.101 in conjunction with common-law privacy.

Common-law privacy protects only highly intimate or embarrassing information

about one’s personal life, the disclosure of which would be highly objectionable to

a reasonable person. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668,

685 (Tex. 1976). The University did not meet this threshold test.

        Over thirty years ago, the Texas Supreme Court set out the test for a claim of

common-law privacy in the context of a request for information under the PIA. See

id. The Court set out four circumstances in which common-law privacy interests are

protected. Disclosure of embarrassing private facts under the PIA concerns the

second type of interest protected under common-law privacy. It is the test for

disclosure of embarrassing private facts that is applied in PIA cases. Id. at 682-83.

The question here is whether, under the “judicial decision” provision of section

552.101 of the PIA, the common-law right of privacy prohibits the disclosure of the


                                           4
information at issue, the names of participants in a research study. The Texas

Supreme Court has determined that this section of the PIA prevents the government

from disclosing information if the disclosure would give rise to a tort action for the

“invasion of an individual’s freedom from the publicizing of his private affairs.” Id.

at 683. The elements of a tort action for disclosure of private facts are: “(1) publicity

was given to matters concerning one’s personal life, (2) publication would be highly

offensive to a reasonable person of ordinary sensibilities, and (3) the matter

publicized is not of legitimate public concern.” Star-Telegram, Inc. v. Doe, 915

S.W.2d 471, 474 (Tex. 1995) (citing Indus. Found., 540 S.W.2d at 682).

      A list of names of participants in a research project does not meet the test for

information protected under common-law privacy. See Indus. Found., 540 S.W.2d

at 683. Comparing the information protected in Industrial Foundation to this list of

names results in only one conclusion: the names of participants are not highly

intimate or embarrassing private information under the common-law privacy test.

Id. (compare to claims of injuries from sexual assault, a claim on behalf of

illegitimate children, claim for expenses of pregnancy due to failure of contraceptive

device, claims for psychiatric treatment, claims for injuries stemming from

attempted suicide); see also Hubert v. Harte-Hanks Tex. Newspapers, Inc., 652

S.W.2d 546, 551 (Tex. App.—Austin 1983, writ ref’d n.r.e.)(distinguishing the

“intimate or embarrassing information” in Industrial Foundation from the material


                                           5
sought in Hubert (names of candidates for Texas A&M University president)). The

Fifth Circuit Court of Appeals has also held that personal information such as age,

job title, and street address is not “highly intimate” information under Texas

common-law privacy. Johnson v. Sawyer, 47 F.3d 716, 732-33 (5th Cir. 1995).

       A court must first determine if the University met its burden to establish that

the information is highly intimate and embarrassing, as required under Industrial

Foundation, before the obligation to show a legitimate public concern comes into

play.3 See Indus. Found., 540 S.W.2d at 683; accord Morales v. Ellen, 840 S.W.2d

519, 524-25 (Tex. App.—El Paso 1992, writ denied). As discussed above, the

University failed to show the list of names is highly intimate or embarrassing.

Therefore, because the first prong of the Industrial Foundation test was not met,

whether the information is of legitimate public concern need not be considered.4


       3
          The requestor’s particular interest or purpose is not to be considered. Rather, it is the
interest of the public at large that is considered under the second prong of the common-law privacy
test. See Indus. Found., 540 S.W.2d at 683. Furthermore, UTD’s discussion of the requestor’s
purpose in seeking the information is inappropriate as section 552.222(b) of the PIA prohibits
consideration of the requestor’s purpose and under section 552.204, the public information officer
is not responsible for the requestor’s use of the information. See Appellant Br. at 6-7; Tex. Gov’t
Code §§ 552.204, .222(b).
       4
         In fact, the University does not really argue that it has met the standard for the first prong
of the Industrial Foundation test, but rather that the test itself needs to be expanded. Appellant
Br. at 13 (“The development of privacy law in the state of Texas did not end in 1976 with the
publication of the Texas Supreme Court’s plurality opinion in Industrial Foundation. The
University urges this Court to remand this case with instructions for the trial court to apply a
modern and robust privacy analysis, taking into account all the recent pronouncements from the
Texas Supreme Court that bear on this issue.”). The University also argues that the case should
be remanded for factual development on whether the information is intimate or embarrassing. Id.
at 11.


                                                  6
      Much of the University’s argument involves the University’s right to

academic freedom under the First Amendment. Appellant Br. at 14-17. However,

this argument was not made below, and is being raised for the first time on appeal.

Therefore, it is improper.

      Furthermore, the University urges this Court to consider academic freedom

and the potential effect on research outside of the context of Industrial Foundation.

Appellant Br. at 13-14. None of the cases cited by the University for this proposition

are Texas cases, and several address academic freedom in the context of free speech

under the First Amendment, which is not before this Court. The University has not

pointed to any Supreme Court cases suggesting that Industrial Foundation is no

longer the proper test for the common-law privacy exception.

      The PIA is to be “liberally construed in favor of granting a request for

information.” Tex. Gov’t Code § 552.001(b); see City of Garland v. Dallas Morning

News, 22 S.W.2d 351, 356 (Tex. 2000); Arlington Indep. Sch. Dist. v. Tex. Attorney

Gen., 37 S.W.3d 152, 157 (Tex. App.—Austin 2001, no pet.). “The practical effect

of a statutory directive for liberal construction of an act is that close judgment calls

are to be resolved in favor of the stated purpose of the legislation.” Harte-Hanks

Tex. Newspapers, 652 S.W.2d at 552.

      Expanding the common-law privacy test is not consistent with the stated

purpose of the PIA. See Tex. Gov’t Code § 552.001(a). The PIA does not authorize


                                           7
withholding or limiting the availability of public information except as expressly

provided. Tex. Gov’t Code § 552.006.

      Although the University asserted Texas Government Code section 552.101 in

conjunction with common-law privacy as an exception to disclosure, it failed to meet

its burden to show that the common-law privacy doctrine applies to the information

at issue. The trial court correctly granted the Attorney General’s summary judgment

motion and properly denied the University’s.

      B. The University failed to meet its burden to create a fact issue capable
         of defeating summary judgment.

      The purpose of rule 166a is to provide a procedure for disposing of a case

when no genuine issues of fact exist, and only questions of law are involved. Totman

v. Control Data Corp., 707 S.W.2d 739, 742 (Tex. App.—Fort Worth 1986, no writ).

A defendant seeking summary judgment must negate as a matter of law at least one

element of each of the plaintiff’s theories of recovery, or plead and prove as a matter

of law each element of an affirmative defense. Centeq Realty, Inc. v. Siegler, 899

S.W.2d 195, 197 (Tex. 1995).

      Matters of statutory construction are generally legal issues. City of Garland,

22 S.W.3d at 357.       In a PIA case, “[t]he questions for each category of

information. . . are: Is the information public under [the PIA]? If so, has the

constitution, a statute, or a judicial decision expressly declared it confidential?

These are questions of law.” A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 674

                                          8
(Tex. 1995). The PIA’s overall purpose supports the conclusion that information is

presumed to be subject to disclosure unless an exception to disclosure applies.

Abbott v. Tex. Dep’t of Mental Health & Mental Retardation, 212 S.W.3d 648, 663

(Tex. App.—Austin 2006, no pet.).

        Under the PIA, it is the burden of the governmental body to prove that an

exception to public disclosure applies to the information at issue. City of Fort Worth

v. Cornyn, 86 S.W.3d 320, 323 (Tex. App.—Austin 2002, no pet.); Arlington Indep.

Sch. Dist., 37 S.W.3d at 157. The party seeking to withhold information has the

burden to prove that an exception to public disclosure applies. Thomas v. Cornyn,

71 S.W.3d 473, 480-81 (Tex. App.—Austin 2002, no pet.); Arlington Indep. Sch.

Dist., 37 S.W.3d at 157.

        The University complains that the Attorney General “attached no evidence

relating to the terrorism/national security study at issue, and did not delve into the

particulars of the study or any evidence regarding what reasonable people might

think about being publically identified as being participants in the study. Without

engaging with these facts, the motion cannot negate, as a matter of law, the

application of confidentiality exception codified in § 552.101.” Appellant Br. at 12

(citation omitted). However, this analysis ignores the unique framework of a PIA

case.




                                          9
         The information is held by the University and is presumed public. It was the

University’s responsibility, not the Attorney General’s, to raise common-law

privacy and provide evidence to support its contention. Adkisson v. Paxton, No. 03-

12-00535-CV, 2015 WL 1030295, at *10 (Tex. App.—Austin, March 6, 2015, no

pet.).

         The documents produced at the letter ruling phase and the University’s

proposal to the National Science Foundation are all part of the record considered by

the trial court. C.R. at 43-56;31;58. The information at issue was presented to the

trial court for review as well. Although the University suggests the Attorney General

needed to produce information about the study and the effects on the participants,

this cannot be the case. The Attorney General cannot be required to produce

evidence to show information is not excepted from disclosure by common-law

privacy. The foundation of PIA law is the presumption that government information

is public. Tex. Gov’t Code § 552.021. If a governmental body wishes to withhold

information, the burden remains with the governmental body to prove that an

exception applies.

         The information at issue in this case is simply a list containing names of

people who participated in a research study. C.R. 31; 58. As argued in the Attorney

General’s Motion for Summary Judgment, this type of information is not the type of

information made confidential by common-law privacy under the standard set forth


                                          10
in Industrial Foundation. See Indus. Found., 540 S.W.2d at 683. As discussed

above, the Attorney General has met his burden in showing the type of information

at issue in this case is not the type of information made confidential by the Industrial

Foundation common-law privacy test. The Attorney General met his burden as

movant by showing that the University has failed to prove an element of its claim.

Once the Attorney General demonstrated the list of names was not confidential under

Industrial Foundation, the burden shifted back to the University if it wanted to

attempt to show the particulars about this study may invoke privacy protections even

if, as a general rule, a list of people participating in a research study would not. The

University attached information about the study and argued its particular subject

matter made it unique, but it could not successfully show the information met the

requirements of the Industrial Foundation common-law privacy test. The

University’s request for a remand is essentially a request for a second bite at the

apple. This Court should not grant the University a second chance to meet its burden,

and the trial court’s judgment should be affirmed.

      C. The trial court correctly considered the parties’ cross motions for
         summary judgment.

      The trial court properly considered both parties’ motions and correctly granted

the Attorney General’s motion for summary judgment and denied the University’s

motion for summary judgment.



                                          11
       When parties file cross-motions for summary judgments and the trial court

grants one side’s motion and denies the other, as was the case here, this Court should

review all evidence provided by both parties, determine all questions presented, and

determine whether the court erred. City of Garland, 22 S.W.2d at 356-57. In

addition to Letter Ruling OR2011-17401, the University attached the letter from the

requestor (C.R. at 43-44), the University’s letter briefs to the Attorney General (C.R.

at 45-51), the University’s proposal to the National Science Foundation (C.R. at 52-

56), including the informed consent form (C.R. at 55-56), and the information at

issue, which consists only of lists of names of participants in the research projects

(C.R. at 31;58). In addition to the parties’ legal arguments, the court is charged with

considering all evidence presented.

       After evaluating the arguments of the parties and the evidence presented, the

trial court determined that Texas Government Code section 552.101 in conjunction

with common-law privacy does not make the information at issue confidential. C.R.

at 84. The Attorney General’s motion for summary judgment was correctly and

appropriately granted. Therefore, this court should find the information must be

released to the requestor.

                         CONCLUSION AND PRAYER

       The Attorney General prays that this Court affirm the judgment of the trial

court in all respects.


                                          12
Respectfully Submitted,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

BRANTLY STARR
Deputy Attorney General for Legal Counsel

DAVID A. TALBOT, JR.
Chief, Administrative Law Division


/s/ Kimberly Fuchs
KIMBERLY FUCHS
State Bar No. 24044140
Chief, Open Records Litigation
Administrative Law Division
Office of the Attorney General of Texas
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 475-4195
Facsimile: (512) 320-0167
kimberly.fuchs@texasattorneygeneral.gov

Attorneys for Appellee Ken Paxton,
Attorney General of Texas




 13
                     CERTIFICATE OF COMPLIANCE

      I certify that the Brief of Appellee Ken Paxton, Attorney General of Texas,

submitted complies with Rule 9 of the Texas Rules of Appellate Procedure and the

word count of this document is 2,846. The word processing software used to prepare

this filing and calculate the word count of the document is Microsoft Word 2013.

Date: June 9, 2015

                                     /s/ Kimberly Fuchs
                                     KIMBERLY FUCHS
                                     Attorneys for Appellee Ken Paxton,
                                     Attorney General of Texas




                                       14
                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing Brief of Appellee

Ken Paxton, Attorney General of Texas, has been served on June 9, 2015, on the

following parties and/or counsel-of-record via e-serve and/or email:

H. Melissa Mather                             Marilyn Cameron
State Bar No. 240102216                       18222 Outback Lakes Trail
Assistant Attorney General                    Humble, Texas 77346
Financial and Tax Litigation Division         mizcameron@yahoo.com
P.O. Box 12548
Austin, Texas 78711-2548                      INTERVENOR, PRO SE
Telephone: (512) 475-4540
Facsimile:    (512) 477-2348
Melissa.mather@texasattorneygeneral.gov

ATTORNEY FOR APPELLANTS


                                       /s/ Kimberly Fuchs
                                       KIMBERLY FUCHS




                                         15
