Texas Third Court of Appeals rules failure to claim attorney-client privilege is not a waiver of privilege under the Public Information Act

By C. Robert Heath and Gunnar P. Seaquist

In a significant shift from prior attorney general decisions, the Texas Third Court of Appeals in Abbott v. City of Dallas ruled that failure to claim the attorney-client privilege within the ten-day period does not result in a waiver of the privilege for purposes of the Public Information Act. The Court reasoned that the attorney-client information was “confidential under other law” and was protected from required disclosure not only under Government Code 552.107, the attorney-client privilege exemption, but also under Government Code 552.101, the exemption for information made confidential by law. If information is confidential under section 552.101, which under this new case includes information protected by the attorney-client privilege, then that is sufficient to overcome the presumption of openness that attaches when a governmental body fails to request a ruling from the attorney general within ten business days of receiving a public information request. While governmental bodies will still need to submit documents to the attorney general when they assert the information is an attorney-client communication excepted from public disclosure under the Public Information Act, the failure to meet the ten-day deadline should not result in a determination that the privilege was waived by the delayed request for a decision.

The court of appeals opinion included a dissent, and it seems likely the attorney general will ask the Supreme Court to hear the case.