MATTHEWS, SHIELS, KNOTT,

EDEN, DAVIS & BEANLAND, L.L.P.

ATTORNEYS AND COUNSELORS
M ISTI L. BEAN LAN D * TO M D . M ATTHEW S (1910-1988)
R O BER T J. D AV IS 8131 LBJ FREEWAY, SUITE 700 TO M D . M ATTHEW S, JR .
R O BER T L. ED EN DALLAS, TEXAS 75251 C HR ISTEN C . PAQ U IN
G AV IN B. JU STISS THO M AS A. SHIELS
D AN IEL A. KN O TT TELEPHONE: (972) 234-3400 JU STIN W . STEPHEN S
TELECOPIER: (972) 234-1750

*licensed in Texas and O klahoma

†licensed in Texas and Louisiana

W riter’s V oice M ail Extension: 225 December 1, 2017

W riter’s E-M ail: bdavis@ mssattorneys.com

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED NO. 7017 0660 0000 3562 2340
Open Records Division
Office of the Attorney General, State of Texas
P.O. Box 12548
Austin, Texas 78711-2548

Re: Public Information Requests Received from Ryan Gallagher on November 21, 2017,
requesting documents from Collin County Sheriff’s Office
Our File No. 1600/67953

REQUEST FOR ATTORNEY GENERAL DECISION

Dear Open Records Division:

Pursuant to the Texas Public Information Act, TEX . GOV . CODE §552.301, as the attorney for
the Collin County Sheriff’s Office, we are respectfully requesting an Attorney General Decision
regarding the Sheriff’s Office’s authority and obligation to withhold certain requested information
from public disclosure pursuant to Section 552.103 (information relating to pending litigation). This
request is submitted within ten (10) business days of the receipt of the request.

I.
Requested Information and Exception to Disclosure

On November 21, 2017, Ryan Gallagher submitted a COLLIN COUNTY SHERIFF’S OFFICE
OPEN RECORDS REQUEST FORM which seeks the following:

“I am requesting my Records from August to September 2015, in which I contacted

The Programs Director, as well as the Law Library and Indigent Defense Office. It
is in the Grievance system in the pods, the computers, where we do commissary And
the health requests, etc, it is the same system and I want my records from that
System.”

This is the second request made by Mr. Gallagher for these records. Previously, on May 4,
2017, Ryan Gallagher submitted a COLLIN COUNTY SHERIFF’S OFFICE OPEN RECORDS REQUEST
FORM which sought the following:

Grievance system records for me from 8/13/2015 and 9/18/2015. Correspondence

with Program Director, Chaplin, Indigent Defense, etc..”
November 30, 2017
Page 2

This Office, in OR2017-15760 issued July 14, 2017, determined that the Sheriff's Office may
withhold the submitted information under section 552.103(a) of the Government Code.

Pursuant to §552.301(e)(1)C), a true and correct copy of the COLLIN COUNTY SHERIFF’S
OFFICE OPEN RECORDS REQUEST FORM is attached as Exhibit No. 1. Portions of the COMPLAINT
styled Ryan Gallagher v. Collin County, Cause No. 005-00650-2017, filed on March 17, 2017, in
the Collin County Court at Law No. 5, but then transferred to the 417th District Court of Collin
County, are attached as Exhibit No. 2. A copy of the REGISTER OF ACTIONS for the case styled Ryan
Gallagher v. Collin County, Cause No. 417-01458-2017, pending in the 417th District Court of
Collin County is attached as Exhibit No. 3. A true and correct copy of representative samples1 of
the requested documents are included as Exhibit No. 4. A true and correct copy of the letter to Mr.
Gallagher from the undersigned dated December 1, 2017, is attached as Exhibit No. 5. A true and
correct copy of ORDER OF SANCTIONS AGAINST RYAN GALLAGHER is attached as Exhibit No. 6.

While Collin County and the Sheriff’s Office believe in transparent government, they are also
required to follow the applicable law(s) regarding the Texas Public Information Act. The records
sought by Requestor are part of the litigation filed by him, and thus, its release [if at all] should be
governed by the applicable rules of procedure and evidence in an appropriate court, the 417th District
Court of Collin County, Texas. Thus, the County contends that the information requested by Ryan
Gallagher is exempt from disclosure pursuant to the litigation exception of Section 552.103, except
for those 20 pages which were provided to the requestor as Exhibit No. 1 to the County’s PLEA TO
THE JURISDICTION . The Jail Grievance records regarding and/or about Mr. Gallagher are key pieces
of evidence in the pending litigation, particularly if there is an appeal. The factual and legal grounds
supporting the Collin County’s request for this Office’s decision is set forth more fully below.

II.
Legal and Factual Basis supporting Withholding of Requested Information

Requestor Ryan Gallagher filed a lawsuit against Collin County, Texas, claiming that his
rights were violated while he was incarcerated in the Collin County Jail.2 Apparently he believes
that as part of his religious practices he should have been allowed “ceremonial use of Marijuana.”3
Such lawsuit was originally filed in Collin County Court at Law No. 5 but was ultimately transferred
to the 417th District Court of Collin County, where it is currently pending until the deadline to appeal
expires as there was an order of dismissal and order of sanctions entered on November 14, 2017.4
Requestor again seeks through his COLLIN COUNTY SHERIFF’S OFFICE OPEN RECORDS REQUEST
FORM “Grievance system” records which are specifically mentioned in his lawsuit.5

1
There are 51 pages of electronic Jail Grievance records for the Requestor, of which 20 pages were
provided during the litigation as Exhibit 1 to the County’s P LEA TO THE J U RISDIC TIO N .

2
See, C O M PLAIN T , Ex. 2

3
See, C O M PLAIN T , Ex. 2

4
See, R EGISTER O F A CTIO N S , Ex. 3 and O RD ER O F S AN CTIO N S A GAIN ST R Y AN G ALLAGH ER , E X . 6

5
See, C O M PLAIN T , Ex. 2, paragraph II (“The County was made aware that this Lawsuit would be filed via
the Inmate Grievance system in the Collin County Detention Facility. . . .”).
November 30, 2017
Page 3

During the pendency of the litigation, some [20 pages]6 - - but not all - - of the information
was provided as an exhibit to the County’s PLEA TO THE JURISDICTION , and thus, a Section
552.103(a) interest still exists as to those 31 pages which were not provided. It is unknown but
presumed that the requestor wants these additional 31 pages of grievance records as part of a possible
appeal of the lawsuit or for other reasons related to the litigation.

III.
Discussion and Analysis of Exemption from Disclosure

Section 552.103(a), the “Litigation Exception”, excepts from disclosure “information relating
to litigation of a civil or criminal nature to which the state or a political subdivision may be a party.
. .” The purpose of the litigation exception is to prevent the use of the Public Information Act as a
method of avoiding the rules of discovery used in litigation. Thomas v. Cornyn, 71 S.W.3d 473, 487
(Tex. App. - - Austin 2002, no pet); Attorney General Opinion JM-1048 at 4 (1989). For
information to be excepted under the litigation exception, two requirements must be met: (1)
litigation involving the governmental body must be pending or reasonably anticipated; and (2) the
information must relate to that litigation. Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W. 2d
479, 481 (Tex. App. - - Austin 1997, no pet.). The question of whether litigation is reasonably
anticipated by the governmental entity must be determined on a case-by-case basis. See, Open
Records Decision No. 452 at 4 (1986).

The existence of pending litigation by Requestor invokes the first prong of Section 552.103.
With respect to the second prong, no doubt the Jail Grievance Records are at the core of the instant
lawsuit since they form - - to a large degree - - the Requestor’s complaints to the jail about their
[jail’s] refusal to supply him with marijuana while incarcerated. The Grievance Records are
expressly mentioned in the first lawsuit.7 Moreover, 20 pages of the Grievance Records were
attached to the County’s PLEA TO THE JURISDICTION . Thus, both prongs of the litigation exception
are present, precluding the release of the requested information.

Releasing the requested information would subjugate the ability of the trial court to control
the exchange and flow of discovery and information related to cases pending before it. In other
words, allowing Requestor to circumvent the requirements of discovery governed by the Texas Rules
of Civil Procedure and Evidence undercuts the authority of the Trial Judge of the 417th District Court
to control the cases pending before the her and ensure that all the parties comply with the applicable
rules of evidence and procedure. The undersigned, as Counsel for the County in the litigation,
specifically requests that the information sought by the requestor not be released and that any such
information be obtained through the proper legal procedures.

It is abundantly clear that both prongs of the litigation exception are present, precluding the
release of the requested information. Therefore, the requested information should be obtained, if it
can be, by utilizing the legal process and not by invoking the Texas Public Information Act.

6
The specific pages were 7, 12, 13, 15, 22, 23, 25, 26, 27, 28, 29, 30, 33, 34, 38, 39, 40, 42, 44, and 47,
which were Bates Labeled as pages 9-28 of the C O U N TY ’S P LEA TO TH E J U RISD IC TIO N .

7
See, C O M PLAIN T , Ex. 2, paragraph II (“The County was made aware that this Lawsuit would be filed via
the Inmate Grievance system in the Collin County Detention Facility. . . .”).
November 30, 2017
Page 4

The County recognizes that, generally, once information has been obtained by all parties to the
litigation through discovery or otherwise, no section 552.103(a) interest exists with respect to that
information. Open Records Decision Nos. 349 (1982), 320 (1982). Thus, information that has either been
obtained from or provided to the opposing parties in the pending litigation is not excepted from
disclosure under section 552.1 03(a), and it must be disclosed. Further, the applicability of section
552.103(a) ends once the litigation has been concluded. Attorney General Opinion MW-575 (1982);
Open Records Decision No. 350 (1982). Here, however, the requestor did not obtain all the
information through discovery in the litigation. Thus, those 31 pages which were not provided
during discovery8 or through the course of litigation should not be released.

It should be clear from the foregoing discussion and the comprehensive documentation
attached hereto that Collin County is authorized and legally obligated to withhold the requested
information from public disclosure pursuant to Section 552.103 (information relating to litigation)
of the Texas Public Information Act (the “Act”). This provision of the Texas Public Information Act
preclude the release of the requested entire Jail Grievance Records at this time. Requestor Ryan
Gallagher is being provided with a copy of this request, as required under Section 552.301(d) of the
Act, but not the exhibits.

Please feel free to contact me if you have any questions.

Very truly yours,

/s/ Robert J. Davis

ROBERT J. DAVIS

RJD/bd
T:\233\1\1600\67953\PIA 2\AGRequest 12-1-17.wpd

cc: (without any enclosures, letter only)

VIA Email AND REGULAR MAIL
Mr. Ryan Alexander Gallagher
4251 S. Quintero Way
Aurora, Colorado 80013

8
The specific pages to which the exemption applies are 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18,
19, 20, 21, 24, 31, 32, 35, 36, 37, 41, 43, 45 46, 48, 48, 50 and 51.