                                                                                          ACCEPTED
                                                                                      03-15-00093-CV
                                                                                              6701214
                                                                           THIRD COURT OF APPEALS
                                                                                      AUSTIN, TEXAS
                                                                                 8/28/2015 1:25:02 PM
                                                                                    JEFFREY D. KYLE
                                                                                               CLERK




                                                            FILED IN
                                                     3rd COURT OF APPEALS
                         No. 03-15-00093-CV              AUSTIN, TEXAS
           _______________________________________________
                                                     8/28/2015 1:25:02 PM
                                                       JEFFREY D. KYLE
                     In the Court of Appeals for the         Clerk
                     Third District of Texas at Austin
           _______________________________________________

                             CITY OF HOUSTON,
                                                               Appellant
                                      V.

               KEN PAXTON, ATTORNEY GENERAL OF TEXAS,
                                                        Appellee
           _______________________________________________

            On Appeal from the 250th Judicial District Court
                         Travis County, Texas
                Trial Court Case No. D-1-GV-14-000227
  ______________________________________________________________

                       Appellant’s Reply Brief
  ______________________________________________________________

Donna L. Edmundson                         Mary E. (“Mary Beth”) Stevenson
City Attorney                              Assistant City Attorney
                                           SBN: 24072366
Judith L. Ramsey                           CITY OF HOUSTON LEGAL
Chief, General Litigation Section          DEPARTMENT
                                           900 Bagby, Fourth Floor
                                           Houston, Texas 77002
                                           832.393.6491 (Telephone)
                                           832.393.6259 (Facsimile)
                                           marybeth.stevenson@houstontx.gov

                            Attorneys for Appellant




                                                      Oral Argument Requested
                                         Table of Contents

                                                                                                      Page

Index of Authorities .................................................................................... iii

Summary of Argument in Reply ................................................................... 1
Argument and Authorities ............................................................................ 2

I.      The client is the City, and the City may assert the attorney-client
        privilege for statements made by its employees to City lawyers
        taken in the course of an internal investigation and made part of its
        investigative report. ............................................................................. 2

II.     The Attorney General concedes that the entire investigative report
        is excepted from disclosure, and nonetheless still demands that
        exact copies of a portion of that report be disclosed. ............................. 3

III.    There is no merit to the Attorney General’s contention that
        applying Harlandale to the witness statements in this case would
        enable a governmental body to circumvent the PIA. ............................. 5

Conclusion and Prayer ................................................................................. 6

Certificate of Compliance ............................................................................. 7
Certificate of Service .................................................................................... 8




                                                     ii
                                        Index of Authorities

                                                                                                   Page(s)

Cases

Harlandale Indep. Sch. Dist. v. Cornyn,
  25 S.W.3d 328 (Tex. App.—Austin 2000, pet. denied) ......................passim

In re USA Waste Mgmt. Res., L.L.C.,
    387 S.W.3d 92 (Tex App.—Houston [14th Dist.] 2012, orig.
    proceeding) .......................................................................................... 2-3

Upjohn Co. v. United States,
  449 U.S. 383, 101 S. Ct. 677 (1981) ............................................... 2, 4, 5, 6


Other Authorities
Texas Disciplinary Rule of Professional Conduct 1.12 ................................... 4




                                                     iii
                       Summary of Argument in Reply

      The City does not ask this Court to construe the attorney client privilege

expansively but instead to apply it consistently with its own precedent. While

the Attorney General acknowledges that the witness statements were part of

the City’s investigative report, and that, as attached to the report, those

statements are protected from disclosure under Harlandale Independent School

District v. Cornyn, 25 S.W.3d 328 (Tex. App.—Austin 2000, pet. denied), the

Attorney General then argues that any other copies of those statements must

be disclosed. This makes no sense. If the investigative report is privileged, so

are its component parts, according to Harlandale.

      Second, there is no merit to the Attorney General’s argument, contrary

to this Court’s holding in Harlandale, that a government body could circumvent

the PIA by merely attaching unrelated documents to an investigative report

and thereby shield those documents from disclosure. No party argues that

unrelated documents appended to an investigative report should be protected.

That argument loses force where, as here, the documents indisputably relate to

the City’s internal investigation. The Attorney General’s parade of horribles is

based on a straw man argument, not on the facts of this case.

      The information at issue here—witness statements from interviews

conducted in the course of the internal investigation to which the investigative
report directly pertains—were properly attached to and incorporated into the

investigative report compiled by City attorneys to render legal advice to the

City; those statements are therefore protected by the attorney-client privilege.


                          Argument and Authorities

I.    The client is the City, and the City may assert the attorney-client
      privilege for statements made by its employees to City lawyers taken
      in the course of an internal investigation and made part of its
      investigative report.

      The client is the City, and the City’s attorneys in the OIG are lawyers for

the City. CR.14-18, 19. The internal investigation in this case was conducted at

the behest of the City, and City policy dictates that City employees are

expected to cooperate with any OIG investigation. CR.16 (Section 5.7.3).

      Like the attorney in Harlandale, the City’s lawyers at OIG compiled a

report after conducting interviews with several employees, and the

“Information at Issue” in this case was attached to and used in that report. 25

S.W.3d at 330; CR.22, IAI at AG Jenkins(Brooks)00008-14, 00024-28. Like

the in-house attorneys in Upjohn and Waste Management, the information

gleaned from the internal investigation here enabled OIG attorneys Sandra W.

Robinson and Inspector General Robin Curtis to render legal advice regarding

personnel issues and departmental guidance. CR.14-16, 19; see Upjohn Co. v.

United States, 449 U.S. 383, 394, 101 S. Ct. 677 (1981); In re USA Waste Mgmt.


                                        2
Res., L.L.C., 387 S.W.3d 92, 97-98 (Tex App.—Houston [14th Dist.] 2012,

orig. proceeding).


II.   The Attorney General concedes that the entire investigative report is
      excepted from disclosure, and nonetheless still demands that exact
      copies of a portion of that report be disclosed.

      In its Opinion Letter, the Attorney General agreed with the City

concerning most of the information that the City sought to withhold. CR.27

(“[W]e find that you have established most of the submitted information is

protected by attorney-client privilege.” (citing Harlandale, 25 S.W.3d 328)).

Indeed, the Attorney General states on appeal that he “agrees the entirety of

the report would be excepted from disclosure if requested under the PIA, in

accordance with Harlandale.” Brief at 20. He then goes on to explain that,

because the Requestor sought the entire report and requested the statements of

witnesses, her request is different from the request in Harlandale. Brief at 20.

      The Attorney General attempts to create a distinction where none exists.

If the entire report is not subject to disclosure, as the Attorney General

recognizes, then neither are copies of the report’s component parts. See

Harlandale, 25 S.W.3d at 335 (When an attorney conducts an investigation in

her capacity as an attorney for the purpose of providing legal services and

advice to a client, an attorney’s entire investigative report comes under the



                                         3
attorney-client privilege); accord Upjohn, 449 U.S. at 395 (interviews and

questionnaires circulated by general counsel to employees were protected by

privilege). In Harlandale, this Court has already rejected the Attorney General’s

piecemeal approach to an investigative report. 25 S.W.3d at 335.

      And, contrary to the Attorney General’s contentions, Harlandale did not

separately consider whether each and every exhibit was eligible for being

protected by the attorney-client privilege; the entire report, including its

component parts, were found to be protected from disclosure as privileged

because they were part of the investigative report. Id.

      The report—with its component parts—was confidential attorney-client

communication from City lawyers to the City. See, e.g., Texas Disciplinary

Rule of Professional Conduct 1.12, cmt. 3 (providing that interviews between a

lawyer and an employee made in the course of an internal investigation are

confidential and may not be disclosed to other employees unless permitted by

the organization); IAI at AG Jenkins(Brooks)00008, 00024 (indicating the

confidential nature of the communication). There is no basis for the Attorney

General to find that copies of component parts of the report should be subject

to disclosure while also conceding that the entire investigative file is protected

from disclosure.




                                        4
III.   There is no merit to the Attorney General’s contention that applying
       Harlandale to the witness statements in this case would enable a
       governmental body to circumvent the PIA.

       The Attorney General raises the specter that a governmental body may

circumvent the PIA by attaching any documents to an investigative report.

Brief at 23. Yet no one contends that the statements at issue were not an

integral part of, and directly related to, the internal investigation or that they

were improperly attached to the investigative report. The Attorney General’s

argument is based on speculation and not on the facts of this case.

       Additionally, the Attorney General does not contest that the very

information the Requestor seeks is available to the Requestor through doing

her own legal and investigative work by interviewing the witnesses herself. See

Harlandale, 25 S.W.3d at 335 (stating that “[i]n weighing these competing

concerns [between the PIA and attorney-client privilege], we need not

surrender the fundamental protections afforded by the privilege to uphold the

interests of the Act” and holding in favor of the privilege because requestor

could obtain information from the same sources) (emphasis added); accord

Upjohn, 449 U.S. at 396 (“considerations of convenience do not overcome the

policies served by the attorney-client privilege”). Indeed, Jenkins’ letter request

indicates that she was already aware of the identities of some, if not all, of the




                                        5
witnesses who could supply her with the factual information about the alleged

wrongdoing in the affected City department. CR.12.

       In sum, the interviewees whose statements are at issue gave those

statements in cooperation with the OIG pursuant to City policy and at the

City’s behest. IAI at AG Jenkins(Brooks)00008-14, 00024-28; CR.14-16. The

information is confidential attorney-client information where, as here, it is

1) an integral part of an internal City investigation, 2) conducted by attorneys

on behalf of their client (here, the City), 3) for the express purpose of rendering

legal advice to the client based on the results of the investigation. This is core

attorney conduct and core communication for which a client rightly expects

confidentiality. See Harlandale, 25 S.W.3d at 334-35; Upjohn, 449 U.S. at 394.


                             Conclusion and Prayer

       For the foregoing reasons, the City respectfully asks the Court to:

1) reverse the judgment of the trial court; 2) render judgment for the City that

the remaining “information at issue,” IAI at AG Jenkins(Brooks)00008-14,

00024-28, is protected from disclosure by the attorney-client privilege; 3) grant

the City its costs and expenses; and 4) grant the City any other relief to which

it is entitled.




                                        6
                                     Respectfully submitted,

                                     DONNA L. EDMUNDSON
                                     City Attorney
                                     JUDITH L. RAMSEY
                                     Chief, General Litigation Section


                                     By:    /s/ Mary Beth Stevenson
                                           Mary E. (Mary Beth) Stevenson
                                           Assistant City Attorney
                                           SBN: 24072366
                                           CITY OF HOUSTON LEGAL
                                           DEPARTMENT
                                           900 Bagby, 4th Floor
                                           Houston, Texas 77002
                                           832.393.6491 (Telephone)
                                           832.393.6259 (Facsimile)
                                           marybeth.stevenson@houstontx.gov

                                     Attorneys for Appellant


                         Certificate of Compliance

      I certify that the foregoing was prepared in Microsoft Word 2010
Version 14.0 in Calisto MT 14 point font; the word-count function shows that,
excluding those sections exempted under TRAP 9.4(i)(1), the brief contains
1,294 words.

                                      /s/ Mary Beth Stevenson
                                      Mary E. (Mary Beth) Stevenson




                                      7
                            Certificate of Service

      I hereby certify that on this 28th day of August, 2015, a true and correct
copy of the foregoing has been served on counsel below via e-service.

Matthew R. Entsminger
Assistant Attorney General
Open Records Litigation
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
matthew.entsminger@texasattorneygeneral.gov

Attorney for Appellee
                                     /s/ Mary Beth Stevenson
                                    Mary E. (“Mary Beth”) Stevenson




                                       8
