Affirmed and Memorandum Opinion filed January 28, 2020.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00264-CV

                          STETSON ROANE, Appellant

                                          V.

    KEN PAXTON, ATTORNEY GENERAL OF TEXAS; AND SEGUIN
           INDEPENDENT SCHOOL DISTRICT, Appellees

                    On Appeal from the 200th District Court
                             Travis County, Texas
                    Trial Court Cause No. D-1-GN-17-001843

                          MEMORANDUM OPINION

      Stetson Roane appeals from the trial court’s summary judgment declaring that
information marked as In Camera Sealed Exhibit 1 is not excepted from required
public disclosure and must be released by Seguin Independent School District (“the
District”) because claimed exceptions under the Public Information Act (“PIA”) do
not apply. See Tex. Gov’t Code Ann. § 552.101 (excepting information considered
confidential by law). In two issues Roane challenges the trial court’s rulings granting
the appellees’ summary judgment and denying his summary judgment. We conclude
the information ordered to be disclosed is not exempt from disclosure and affirm the
trial court’s judgment.

                     FACTUAL AND PROCEDURAL BACKGROUND

      Roane served as superintendent of the District from July 2015 through
February 28, 2017. On January 26, 2017, an employee of the District filed a sexual
harassment complaint against Roane. The events giving rise to the sexual harassment
complaint occurred at an out-of-town conference related to education and the
employee’s work with the District. Roane resigned as superintendent on February
28, 2017.

      Between January 31, 2017 and April 6, 2017, the District received several
open records requests under the PIA from persons associated with various media
outlets. The requests included:

            • Any and all former complaints against Roane as superintendent;
            • All information concerning the sexual harassment complaint
              against the superintendent and any other complaints being
              investigated by the District, and information concerning payment
              of the superintendent’s attorneys’ fees and alcohol research;
            • Investigative report regarding the superintendent that was
              delivered to the District board on February 21;
            • The superintendent’s separation agreement;
            • The agreement placing the superintendent on paid administrative
              leave;
            • All complaints filed against the superintendent and the
              settlement agreement;
            • The letter to the Attorney General in response to media requests
              for public information; and
            • Information about a polygraph test including the test results.

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      The District notified Roane of his right to file a third-party objection with the
Texas Attorney General’s Office (“OAG”) to disclosure of the requested
information. See Tex. Gov’t Code Ann. § 552.305. On February 21, 2017, Roane
filed a timely request with the OAG in which Roane asserted that the requested
information fell under the common-law privacy exception to the PIA, specifically,
that the requested information was (1) highly intimate or embarrassing; and (2) not
of legitimate concern to the public. See Tex. Gov’t Code Ann. § 552.101. The
District requested a determination from the OAG that certain PIA exceptions applied
to the information. See Tex. Gov’t Code Ann. §§ 552.101 (information considered
to be confidential by law); 552.103 (information related to litigation of a civil or
criminal nature to which the governmental agency is or may be a party); 552.107
(information protected by the attorney-client privilege); 552.116 (audit working
papers); 552.117 (confidentiality of certain identifying information); and 552.135
(name of student or employee of school district who has furnished a report of another
person’s possible violation of criminal, civil, or regulatory law to the school district
or proper regulatory enforcement authority).

      On April 24, 2017, the OAG issued an opinion letter addressing the District’s
alleged exceptions to the PIA. See Tex. Att’y Gen. OR2017-08661. The OAG found
that the information marked as “audit working papers” and certain identifying
information was exempt from disclosure and the District could withhold that
information. Id.; see also Tex. Gov’t Code Ann. §§ 552.116; 552.117; 552.135. The
OAG further found that with regard to the investigation into the alleged incident of
sexual harassment the District should redact the identities of victims and witnesses,
but could not withhold the remaining information in conjunction with common-law
privacy. See Tex. Gov’t Code Ann. § 552.101. Roane filed notice with the OAG that
he objected to its finding on common-law privacy.


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      The OAG subsequently issued two additional letter rulings in which it found
certain information to be protected by the attorney-client privilege and section
552.107 of the Government Code. See Tex. Att’y Gen. OR2017-10411. The OAG
further held that the District could not release information obtained as a result of a
polygraph test. See Tex. Att’y Gen. OR2017-13127.

      Roane filed suit seeking a declaratory judgment that the requested information
was exempt from disclosure under sections 552.101 and 552.117 of the Texas
Government Code. See also Tex. Gov’t Code Ann. § 552.325 (parties to suit seeking
to withhold information). After Roane’s suit was filed the District identified 79
pages of documents that were responsive to the PIA request (“In Camera Sealed
Exhibit 1”). Roane filed a motion for summary judgment in the trial court in which
he alleged that the documents were not subject to disclosure under the PIA because
they contained highly intimate and embarrassing information in which there was no
legitimate public interest under the common-law privacy doctrine. The OAG filed a
motion for summary judgment in which it alleged that Roane failed to demonstrate
the applicability of common-law privacy because the information at issue was either
not highly intimate or embarrassing or was of legitimate public interest.

      The trial court granted the OAG’s motion for summary judgment, denied
Roane’s summary judgment, and rendered declaratory judgment that the information
was not excepted from required public disclosure and must be released to the
requestors in accordance with the OAG’s letter rulings.

                              STANDARD OF REVIEW

      We review declaratory judgments under the same standard as other judgments
or decrees. Tex. Civ. Prac. & Rem. Code § 37.010; Hawkins v. El Paso First Health
Plans, Inc., 214 S.W.3d 709, 719 (Tex. App.—Austin 2007, pet. denied). Here,
because the trial court rendered the declaratory judgment through summary
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judgment proceedings, “we review the propriety of the trial court’s declarations
under the same standards we apply to summary judgment.” Hawkins, 214 S.W.3d at
719. A trial court’s summary judgment is reviewed de novo. Provident Life &
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). Accordingly, we
review the trial court’s final judgment granting both declaratory and summary
judgment de novo.

      When both parties move for summary judgment, each party bears the burden
of establishing that it is entitled to judgment as a matter of law. City of Garland v.
Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000); Abbott v. Dallas Area Rapid
Transit, 410 S.W.3d 876, 879 (Tex. App.—Austin 2013, no pet.). When both parties
move for summary judgment on the same issues and the trial court grants one motion
and denies the other, we consider the summary judgment evidence presented by both
sides, determine all questions presented, and if we determine that the trial court
erred, render the judgment the trial court should have rendered. Valence Operating
Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

                      THE TEXAS PUBLIC INFORMATION ACT

      The PIA embodies the State’s policy 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 Ann. § 552.001(a); Paxton v. City of Dallas, 509 S.W.3d 247, 251 (Tex.
2017). The PIA therefore mandates the disclosure of public information, subject to
certain exceptions. See generally Tex. Gov’t Code Ann. §§ 552.001–.353. But a
governmental body cannot unilaterally determine that an exception applies because
“[t]he people, in delegating authority, do not give their public servants the right to
decide what is good for the people to know and what is not good for them to know.”
Id. § 552.001(a); City of Dallas, 509 S.W.3d at 251. Accordingly, when seeking to

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withhold information under a PIA exception, the governmental body must timely
request a decision from the OAG, specify under which exception the information
falls, and provide the reasons why the exception applies, and the OAG must
promptly render a decision in a written opinion. Tex. Gov’t Code Ann. §§
552.301(a), (e)(1)(A); 552.306(a), (b); City of Dallas, 509 S.W.3d at 251. If the
governmental body disputes the decision, its exclusive remedy is to seek declaratory
relief in district court. Tex. Gov’t Code Ann. § 552.324(a); City of Dallas, 509
S.W.3d at 252.

       On appeal, “we generally give due consideration to [OAG] decisions,
although they are not binding, because the Legislature has directed the [OAG] to
determine whether records must be disclosed under the PIA.” Austin Bulldog v.
Leffingwell, 490 S.W.3d 240, 250 (Tex. App.—Austin 2016, no pet.). Additionally,
in interpreting the PIA, the Legislature has directed that the PIA “shall be liberally
construed in favor of granting a request for information.” Tex. Gov’t Code Ann. §
552.001(b). Therefore, “close judgment calls are to be resolved in favor of the stated
purpose of the legislation,” and courts may require disclosure of information “even
when disclosure might cause inconvenience or embarrassment.” Hubert v. Harte-
Hanks Tex. Newspapers, Inc., 652 S.W.2d 546, 552 (Tex. App.—Austin 1983, writ
ref’d n.r.e.) (citing Industrial Found. of the S. v. Texas Indus. Accident Bd., 540
S.W.2d 668, 678 (Tex. 1976)). “Whether information is subject to the Act and
whether an exception applies to the information are questions of law.” Texas Dep’t
of Pub. Safety v. Abbott, 310 S.W.3d 670, 673 (Tex. App.—Austin 2010, no pet.).

                                         ANALYSIS1

       In both issues on appeal Roane contends that the in camera documents filed

       1
         The Supreme Court of Texas ordered the Third Court of Appeals to transfer this case to
this court. See Tex. Gov’t Code § 73.001. Under the Texas Rules of Appellate Procedure, “the
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as In Camera Sealed Exhibit 1 are excepted from required public disclosure as a
matter of law under section 552.101 of the PIA and that the trial court erred in not
properly applying this exception.

       Roane argues that under section 552.101 common-law privacy protects the
information from disclosure. Section 552.101 allows public information to be
“excepted from the [public disclosure] requirements of Section 552.021 if it is
information considered to be confidential by law, either constitutional, statutory, or
by judicial decision.” Tex. Gov’t Code Ann. § 552.101.

       The common-law right to privacy protects information from disclosure when
“(1) the information contains highly intimate or embarrassing facts the publication
of which would be highly objectionable to a reasonable person, and (2) the
information is not of legitimate concern to the public.” Industrial Found., 540
S.W.2d at 685. Importantly, however, the highly intimate or embarrassing facts must
be “about a person’s private affairs.” Id. at 683; see Tex. Att’y Gen. OR-470 at *3
(1987) (“Even if these records contain highly subjective comments that are
embarrassing to the principal, they are not protected . . . unless the comments contain
intimate or embarrassing facts about a person’s private affairs.”). Personal
information about employees that does not shed light on their official actions would
not further the purpose of the statute, which is to provide citizens with “complete
information about the affairs of government and the official acts of public officials
and employees.” Texas Comptroller of Pub. Accounts v. Attorney Gen. of Tex., 354
S.W.3d 336, 346 (Tex. 2010) (quoting Tex. Gov’t Code Ann. § 552.001(a)). When


court of appeals to which the case is transferred must decide the case in accordance with the
precedent of the transferor court under principles of stare decisis if the transferee court’s decision
otherwise would have been inconsistent with the precedent of the transferor court.” Tex. R. App.
P. 41.3. We are unaware of any conflict between Third Court of Appeals precedent and that of this
court on any relevant issue.

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the information concerns work conduct or job performance of public employees, it
is generally not a matter of private affairs, but of public concern. See Tex. Att’y Gen.
OR470 at *4 (1987) (noting that hives from job stress is not of public concern, but
that “[a] public employee’s job performance does not generally constitute private
affairs”).

       Roane argues that within In Camera Sealed Exhibit 1 there was highly
intimate and embarrassing information about Roane and others even though the
information was “cast as allegations disputed by [Roane], and many of these
allegations are not relevant to the sexual harassment complaint of a subordinate
based solely on one off-duty private conversation on January 17, 2017.” The
summary judgment record, however, fails to demonstrate that the information
involved matters relating to a “person’s private affairs.” Industrial Found., 540
S.W.2d at 683. Matters of workplace harassment, discrimination, and policy
violations in a governmental body are, by their very nature, generally not a “person’s
private affairs.” Leander Indep. Sch. Dist. v. Office of Attorney Gen. for State, No.
03-18-00243-CV, 2018 WL 6581523, at *8 (Tex. App.—Austin Dec. 14, 2018, no
pet.) (mem. op.).

       We acknowledge that case law may support a privacy exception as a matter
of a “person’s private affairs” for the victim’s identity and highly personal
identifying information in instances of sexual assault in the workplace. See, e.g.,
Industrial Found., 540 S.W.2d at 683. But here the OAG has already provided such
protection by excepting from required public disclosure the informers’ identities
under section 552.135. See Tex. Att’y Gen. OR2017-08661.

       In Roane’s motion for summary judgment and on appeal he argues that In
Camera Sealed Exhibit 1 contains highly intimate and embarrassing information,
which should not be released pursuant to the PIA. We have reviewed the information

                                           8
provided to this court in camera. We note that the complainant’s name and other
individuals’ names have been redacted from the information ordered to be disclosed.
Each of the documents relate to the workplace harassment allegation and do not
contain information about Roane’s private affairs. The objectionable information has
been redacted pursuant to the OAG’s third letter. See Tex. Att’y Gen. OR2017-
13127. Because the information relates to matters of workplace harassment, Roane
failed to meet his burden under the first prong of Industrial Foundation of
identifying “highly intimate or embarrassing facts” that relate to a person’s private
affairs. See 540 S.W.2d at 683.

      Roane challenges the OAG’s reliance on the decision in Morales v. Ellen, 840
S.W.2d 519 (Tex. App.—El Paso 1992, writ denied). The OAG referenced the Ellen
decision in its letter ruling noting that if there is an “adequate summary of an
investigation of alleged sexual harassment, the investigation summary must be
released . . . along with the statement of the accused.” See Tex. Att’y Gen. OR2017-
08661. The OAG further noted that “when no adequate summary exists, detailed
statements regarding the allegations must be released, but the identities of victims
and witnesses must still be redacted from the statements.” Id. In this case there was
no summary of the sexual harassment allegation. The identities of the complainant
and the witnesses were properly redacted from the documents subject to disclosure.
The OAG did not rely on the Ellen decision in making its determination that the
documents in In Camera Sealed Exhibit 1 were subject to disclosure. The OAG
determined that the documents did not contain information about a person’s private
affairs. See Tex. Att’y Gen. OR2017-08661. The trial court did not err in its
judgment confirming the OAG’s decision.

      Roane argues that the OAG improperly relied on the absence of an
investigative summary in this case. To the contrary, the OAG’s letter ruling properly

                                          9
addressed the documents to be disclosed in this case. The presence or absence of an
investigative summary did not bear on the trial court’s decision and does not affect
this court’s conclusion. Roane has not met his burden under the first prong of the
Industrial Foundation test that the information would disclose highly intimate or
embarrassing facts of a person’s private affairs. Based on the record before us, we
therefore hold that the trial court did not err in concluding that Government Code
section 552.101 does not apply to In Camera Sealed Exhibit 1. See Leander Indep.
Sch. Dist., 2018 WL 6581523, at *8 (“Matters of workplace harassment,
discrimination, and policy violations in governmental body are, by their very nature,
generally not a ‘person’s private affairs.’”).2 We overrule Roane’s issues on appeal.

                                         CONCLUSION

       We affirm the trial court’s judgment granting the OAG’s motion for summary
judgment and denying Roane’s motion.




                                              /s/    Jerry Zimmerer
                                                     Justice



Panel consists of Justices Wise, Zimmerer, and Spain.




       2
          Even if the information had included highly intimate or embarrassing facts of a person’s
private affairs, we note that the information at issue may be of legitimate concern to the public.
The sealed exhibit includes information concerning the conduct of public school employees—
important matters of natural concern to parents and other members of the public. See City of San
Antonio v. Texas Att’y Gen., 851 S.W.2d 946, 950 (Tex. App.—Austin 1993, writ denied) (stating
that “legitimacy of public interest” in how public officers perform their duties “is not in doubt”).

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