TEXAS ETHICS COMMISSION P.O. Box 12070, Capitol Station ‘Austin, Texas 78711-2070 aul W. Hoty Commision Gui ugh tin Chase Unerneee “i Cin Vice Chae Witetnins Dako ‘Tan Haro Nass Lan Aaley ‘ob eng Ereete Dice ‘Tom Ramey October 21, 2015 Office of the Attomey General Open Records Division P. O. Box 12548 Austin, Texas 78711-2548 RE: Request for Decision Under Public Information Act Open Records Division ID #591585 Dear Office of the Attorney General: ‘The ‘Texas Ethics Commission (“Commission”) respectfully requests your opinion concerning whether certain information requested from the commission is exempt from disclosure under sections 552.103(a), 552.107(1), of 552.111 of the Goverment Code, laws contained within the Public Information ‘Act (“the Act”). On September 30, 2015, Mr. Tony McDonald (“requestor”) sent to the Commission an e-mail that requested “copies of all emails and attachments sent or received by any commissioner or employee or agent of the Texas Ethics Commission on any account or any device, public or personal, to or from any commissioner, employee, or agent of the Missouri Ethics Commission as well as any email containing the term ‘Missouri Ethics.”” A copy of the e-mail was provided to you on October 14, 2015. We have provided to the requestor copies of certain responsive documents, which are not included with this request for a ruling, Also responsive to the request are communications to or from an employee of the Commission that we believe are privileged or exempt from disclosure under the aforementioned sections of the Act and may be withheld in their entirety. A copy of each communication is included with this letter and marked as Exhibits A,B, C, and D. The communications include type-written citations to the exceptions on which we wish to base the withholdings, located beside each “Exhibit” label. * Mir. MeDonel is an employee and general counsel of Empower Texan, a 501(¢)é) organization Came vist our home page at hp:fiewethicsstat.c:us onthe Interne. ($12) 463-5800 + FAX (612) 463-5777 + TDD 1-800-735-2989 ‘hte trons et taal me a ne yen the in ec.Office of the Attomey General October 21, 2015 Page 2 of 9 Background The Commission is a state agency created by article III, section 24a, of the ‘Texas Constitution. The duties and powers of the Commission are prescribed by chapter 571 of the Government Code and include the administration and enforcement of laws and regulations concerning the lobbying of state officials, campaign finance, personal financial disclosure of public officials, and limited sections of the Penal Code. Gov't Code § 571.061. Section 571.121 of the Govemment Code provides that the Commission may hold hearings and render decisions on complaints or reports of violations as provided by chapter 571 of the Government Code. Id. § 571.121. Certain individuals may file with the Commission a swom complaint alleging that a person subject to a law administered and enforced by the Commission has violated a rule adopted by or a law administered and enforced by the Commission. Id. § 571.122(a).. After the Commission accepts jurisdiction over a complaint, the complaint may proceed through various steps of review, including the holding of a preliminary review hearing. Id. § 571.125. During a preliminary review hearing, the Commission may consider all submitted evidence related to the complaint, may review any documents or material related to the complaint, and shall determine whether there is credible evidence that provides cause for the Commission to conclude that a violation within the jurisdiction of the Commission has occurred. Jd. § 571.125(d). If the Commission determines that there is credible evidence for the Commission to determine that a violation has occurred, the Commission shall resolve and settle the complaint or motion to the extent possible. Id. § 571.126(b). If the Commission is unsuccessful in resolving and settling the complaint or motion, the Commission shall order a formal hearing, to be held in accordance with sections 571.129 through 571.132 of the Government Code. Id. If the Commission determines that there is insufficient credible evidence for the Commission to determine that a violation within the jurisdiction of the Commission has occurred, the Commission may dismiss the complaint or motion or promptly conduct a formal hearing under sections 571.129 through 571.132. Jd. § 571.126(4), Subchapters C-H of Chapter 2001 of the Government Code apply to a formal hearing conducted by the Commission. Jd. § 571.139(¢).. To appeal a final decision of the Commission, a respondent or a respondent’s agent may file a petition in a district court in Travis County or in the county in which the respondent resides. Id. § 571.133(a). An appeal is not limited to questions of law, and the substantial evidence rule does not apply. ‘The action shall be determined by trial de novo. Jd. § 571.133(d).. ‘Summary of Litigation For purposes of understanding the basis for certain withholdings, a summary of relevant litigation is necessary. In April 2012, four sworn complaints (collectively, “the complaints”) were filed with the Commission: two (SC-3120487 and SC-3120488) against an individual, Mr. Michael Quinn Sullivan,” and two (SC-3120485 and SC-3120486) against Empower Texans (collectively, “the respondents”). The complaints against Mr. Sullivan alleged that Mr. Sullivan did not register as a lobbyist in calendar years 2010 and 2011. The complaints against Empower Texans alleged, in part, that Empower Texans accepted political contributions and made political expenditures for a political committee without filing proper Mr. Sullivan is the president of Empower Texans.Office of the Attomey General October 21, 2015 Page 3 of 9 disclosures. On September 3, 2013, the respondents filed their first of several lawsuits against the Commission, styled Empower Texans, Inc. and Michael Quinn Sullivan v. Texas Ethics Commission, in the District Court of Travis County, Texas, 126th Judicial District, Cause No. D-1-GN-13-003095. The respondents filed a petition for writ of mandamus, requesting, in part, the production of an audio recording of a Commission enforcement proceeding. The Commission retained outside counsel, Bric J.R. Nichols of the law firm Beck Redden LLP in Austin, Texas (“outside counsel”), to provide legal services to the Commission regarding the matter and matters arising out of the aforementioned matter (for which the Offfice of the Attorney General provided approval on October 14, 2013). The plaintiffs filed a notice of nonsuit in the case on August 13, 2014, On February 12, 2014, the Commission held a prehearing conference in connection with a formal hearing on the complaints. During that conference, the Commission voted to issue subpoenas to the respondents, ordering the production of documents relevant to the complaints, requiring the production of documents by March 6, 2014. On February 26, 2014, the respondents filed a lawsuit against the Commission, styled Empower ‘Texans, Inc. and Michael Quinn Sullivan v. The State of Texas Ethics Commission and Natalia Luna Ashley, in the United States District Court for the Western Division of Texas, Austin Division, Cause No. 1:14-cv-00172-SS. The respondents requested that the court issue a temporary restraining order to prohibit enforcement of the subpoenas. Copies of the verified complaint and application for injunctive relief, the subsequent motion for temporary restraining order, and the defendants’ response to the motion for preliminary injunction are included with this letter. (Exhibit E.) On March 20, 2014, the district court held a hearing on the case and directed the parties to narrow the subpoenas. The district court also ordered the plaintiffs in the case to file a pleading setting forth their position regarding abstention pursuant to Younger v. Harris (Exhibit F.) The commission was represented in the litigation by Gunnar Seaquist, who was at that time Assistant Attorney General in the Office of the Attomey General. ‘On April 3, 2014, the Commission held a prehearing conference in preparation for a formal hearing on the complaints and voted to issue new subpoenas to the respondents, ordering the production of documents relevant to the complaints. On April 25, 2014, the district court in Cause No, 1:14-cv-00172-SS dismissed the case based on Younger abstention. (Exhibit G.) Five days later, the respondents filed a lawsuit against the Commission, styled Empower Texans, Inc. and Michael Quinn Sullivan v. The State of Texas Ethics Commission and Natalia Luna Ashley, in the District Court of Travis County, Texas, 53rd Judicial District, Cause No. D-1- GN-14-001252. The respondents filed a petition requesting that the court issue a protective order and quash the Commission subpoenas issued on April 3, 2014, and requesting a declaratory judgment, injunctions, and other relief. (Exhibit H.) The case remains pending. On May 28, 2014, the Commission held a prehearing conference in preparation for the formal hearing and to consider the respondents’ objections and motion to quash the subpoenas, filed with the * Younger v. Harris, 401 US. 37 (1971).Office of the Attomey General October 21, 2015 Page 4 of 9 Commission. The Commission issued an order on May 29, 2014, granting respondents relief regarding some objections and denying others. As a result, the respondents were required to produce documents in accordance with the May 29, 2014, order and subpoenas. On June 11, 2015, the Commission voted to report the failure of the respondents to comply with the April 3, 2014, subpoenas to the Travis County District Courts. On July 2, 2015, the respondents filed an amended petition in Cause No, D-1-GN-14-001252, requesting that the court issue a protective order and quash the Commission subpoenas, requesting a declaratory judgment, injunctions, and other relief. (Exhibit I.) On October 5,2015, the Commission filed a petition (Cause No. D-1-GN-15-004455) in Travis County District Court, seeking an order compelling compliance with the administrative subpoenas issued by the Commission on April 3, 2014, (Exhibit J.) In all of the litigation and in the complaints, the respondents’ legal counsel included Mr. James E. “Trey” Trainor and Mr. Joseph “Joe” Nixon of the firm Beirne, Maynard & Parsons, L-L-P. Please also note that the exhibits included with the court filings are not included with this letter, as they are voluminous and they do not appear to be relevant for purposes of this ruling request. However, we can provide any additional documents that are necessary for your ruling, Documents at Issue in This Request E-mails Dated March 24, 2014 After the district court directed the parties in Cause No. 1:14-cv-00172-8S to narrow the Commission’s February 12, 2014, subpoenas, a Commission employee sent an e-mail mail is included at Exhibit On March 24, 2014, the same Commission employee sent a similar e-mail to} The e-mail is included as Exhibit B. On March 24. 2014, the Commission employee received| |The e-mail included as Exhibit C is a communication sent by the Commission employce tofEEEEEN2t forwarded the e-mail response, with “This paragraph includes substantive content of the withheld e-mail tht will be redacted from the copy of this request letter that we are providing to the requestor.Office of the Attomey General October 21, 2015 Page 5 of 9 attachments.° E-mail Dated March 25, 2014 On March 25, 2014, the same Commission employee forwarded a copy of the March 24, 2014, e- ei 7 ca i ‘the e-mail is included as Exhibit D. ‘None of the e-mails at issue in this request has been disclosed to the public. eptions from Disclosure Under the Act As explained below, the Commission believes that certain information requested by the requestor is excepted from disclosure under Sections 552.103(a) (pending litigation), 552.107(1) (attorney-client privilege), and 52.111 (deliberative process and work product privileges) of the Act. Section 552.103(a) ~ Pending or Reasonably Anticipated Litigation Section 552.103(a) of the Government Code provides: Information is excepted from the requirements of Section 552.021 ifit is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is ormay be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person’s office or employment, is or may be a party. Gov't Code § 552.103(a). The exception applies to information relating to such litigation if the litigation is pending on the date that the requestor applies for access to or duplication of the information. Id. § 552.103(c). The exception also applies to information relating to reasonably anticipated litigation. Open Records Decision No. 452 (1986). All of the e-mails (and their attachments) at issue in this request relate to pending litigation for purposes of Section 552.103: specifically, the district court proceedings identified as Cause No. D-1-GN- 14-001252, which seeks to quash subpoenas issued by the Commission; and Cause No. D-1-GN-15- 004455, which secks to enforce the subpoenas. ‘The e-mails were written in response to and in preparation forthe aforementioned litigation that was in federal district court (Cause No, 1:14-cv-00172-SS), which sought to quash subpoenas issued by the Commission on February 12, 2014, in the same underlying swom complaint proceedings. As explained above, the Commission issued the subpoenas requiring the respondents to produce certain documents relevant o the complaints, The federal district court judge ordered the respondents to file a pleading setting * This paragraph includes substantive content ofthe withheld e-mail that willbe redacted from the copy of this request letter that we are providing o the requester. ® This paragraph includes substantive content ofthe withheld e-mail that willbe redacted from the copy ofthis request letter that we are ‘providing tothe requestor,Office of the Attorney General October 21, 2015 Page 6 of 9 forth their position regarding abstention pursuant to Younger: in other words, to address whether the federal court should abstain in deference to ongoing proceedings before the Commission. Thus, it was reasonably anticipated that, in the event that the federal judge dismissed the case based on Younger abstention, the respondents would seck relief either in proceedings before the Commission (i.e. a formal hearing subject to the Administrative Procedure Act) or in state court, That fact is also indicated in the content of each e-mail, which states, While the federal case was pending, Commission staff The new subpoenas were issued on April 3, 2014. On April 25, 2014, the district court dismissed the federal case based on Younger abstention, and five days later the respondents filed Cause No. D-1-GN-14-001252 in state court to challenge the new subpoenas, as anticipated. Both the original and the amended petitions in Cause No. D-1- GN-14-001252 seek to quash those live subpoenas, while Cause No. D-1-GN-15-004455 seeks to enforce the subpoenas.’ Please note that due to the fact that the e-mails at issue were created as a result of litigation that was, pending or anticipated at that time, and that much of the litigation remains pending, we believe that Section 552.103(a) applies to the e-mails and attachments in their entirety. We therefore respectfully request a decision regarding whether these documents may be withheld under Section 552.103(a). Section $52.107(1) — Attomey-Client Privilege Section 552.107(1) of the Government Code protects information that is within the attomey-client privilege. Gov't Code § 552.107(1). The attorney-client privilege is outlined by rule 503 of the Texas Rules of Evidence. The rule provides that a client has a privilege to refuse to disclose confidential communications made for the purpose of facilitating the rendition of professional legal services to the client: (A) between the client or a representative of the client and the client's lawyer or a representative of the lawyer; (B) between the lawyer and the lawyer's representative; (© by the client or a representative of the client, or the client's lawyer or a representative of the lawyer, to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein; (D) between representatives of the client or between the client and a representative of the client; or (©) among lawyers and their representatives representing the same client. * "is paragraph includes substantive content ofthe withheld e-mail that will be redacted from the copy ofthis request letter that we are providing to the requestor. * ‘This paragraph includes substantive content of the withheld e-mail that will be redacted from the copy of this request letter that we are providing to the requestor.Office of the Attomey General October 21, 2015 Page 7 of 9 Tex. R. Evid. § 503(b)(1). ‘The e-mail dated March 25, 2014, is a communication made from a Commission employee to is i ion in Cause No. 1:14-cv-00172-SS. {The Commission has maintained, and intends to continue maintaining, the confidentiality of the e-mail and its contents.” Based on the foregoing, we respectfully request a decision regarding whether the e-mail may be withheld under Section 552.107(1). Sec mn 552.111 ~ Deliberative Process Section 552.111 exempts from required public disclosure certain intemal communications. The law states: ‘An interagency or intraagency memorandum or letter that would not be available by law to a party in litigation with the agency is excepted from the requirements of Section 552.021 Gov't Code § 552.111 The Texas Supreme Court, other Texas appellate courts, and the Texas Attorney General have consistently held that this exception incorporates the deliberative process privilege and excepts from public disclosure documents and records that reflect an agency’s deliberative process as it relates to policymaking. See, e.g, City of Garland v. The Dallas Morning News, 22 8.W.3d 351 (2000), no pet.; Arlington Independent School District v. Texas Attorney General, 37 S.W.3d 152 (Tex.App-—Austin 2001), no pet; Lett v. Klein Independent School District, 917 8.W.2d 455, (Tex.App.—Houston [14th Dist.] 1996), writ denied, 978 8.W.2d 120 (1998) (per curiam); Tex. Att’y Gen. Open Records Decision No. 631 (1995). In Garland, the Supreme Court of Texas agreed with established casclaw that section 552.111 of the Government Code incorporates the deliberative process privilege. Garland, 22 S.W.2d at 360. The Court also agreed that the deliberative process privilege applies to agency communications, or parts of agency communications, that relate to the agency’s policymaking. Jd. at 364. These communications must be predecisional and deliberative in order to be covered by the privilege. Jd. at 361. In Open Records Decision No. 615, the Texas Attorney General recognized that the deliberative process privilege “protects ‘intra- governmental documents reflecting advisory opinions, recommendations and deliberations comprising part ofa process by which governmental decisions and policies are formulated.”” Tex. Att'y Gen. Open Records Decision No. 615 at 4 (1993) (citing Car! Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40F.R.D.318 DD.C. 1966). The purpose of the privilege, it was noted, “is to foster “frank expression and discussion among those upon whom rests the responsibility for making the determinations that enable government to ° ‘Tis paragraph includes substantive content of the withheld e-mail that will be redacted from the copy of this request letter that we are providing to the requestor.Office of the Attorney General October 21, 2015 Page 8 of 9 operate.” Jd. In the decision, the Attorney General stated that the deliberative process privilege incorporated into the Open Records Act (now the Public Information Act) excepts from disclosure internal communications consisting of advice, recommendations, opinions, and other material that reflects the policymaking processes of a governmental body. Id. at 5. We believe that internal, predecisional, and undisclosed written statements concerning the Commission’s enforcement proceedings that are created by a member, employee, or agent of the Commission in response to events directly affecting the Commission, including litigation to which the Commission is a party, and internal documents that critique, comment on, evaluate, or otherwise discuss such statements reflect the deliberative process of the Commission in relation to matters of law and policy and therefore may be excepted from public disclosure under the deliberative process privilege. ‘As noted in Open Records Decision No. 559, section 552.111 encompasses the entire contents of a draft, including comments, and we therefore believe that the documents identified in this section may be withheld in their entirety from public disclosure under section $52.11 of the Government Code, and we respectfully request a decision regarding whether such documents may be withheld. Section 552.111 — Work Product Privilege Section 552.111 of the Government Code excepts from required public disclosure certain interagency or intraagency communications. The exception incorporates the privilege for work product provided by rule 192.5 of the Texas Rules of Civil Procedure, which provides that “core work product” is not discoverable. Tex. R. Civ. P. § 192.5(b). Core work product consists of the work product of an attorney or an attomey’s representative that contains the attorey’s or the attorney's representative’s mental impressions, opinions, conclusions, or legal theories. Zd. ‘The e-mails were created as a result of, and in preparation for, pending litigation in federal court, and in anticipation of further litigation in state court. If disclosed, the e-mails may reveal the mental impressions, opinions, conclusions, or legal theories of Commission staff o counsel representing the Commission. Thus, we believe that the e-mails are covered by the work product privilege and may be withheld in their entirety from public disclosure under section 552.111 of the Government Code, and we respectfully request a decision regarding whether such documents may be withheld. Please also note that this letter includes information that we believe is privileged and confidential. Thus, we have redacted that information from the copy of this letter that is provided to the requestor, pursuant to section 552.301 (c-1) of the Government Code. Such redactions are indicated by footnotes at the end of each respective paragraph. ‘Thank you for your attention to this matter and please do not hesitate to call me at 463-5800 if you have any questions.Office of the Attorney General October 21, 2015 Page 9 of 9 Sincerely, Tan M. Steusloff General Counsel : Mr. Tony MeDonald Letter by e-mail: imedonald@empowertexans.com Empower Texans Letter and exhibits E through J by mail P.O. Box 200248 Austin, Texas 78720-0248 (excluding Exhibits A through D) Enclosures: Documents Marked as Exhibits A through J TEC Ref: ID# 33331 OAG Ref: ID# 591585