April 8, 2013

BY: FEDERAL EXPRESS
Office of the Attorney General
Open Records Division
300 West is" Street
Austin, Texas 78701
RE: Request for Open Records Decision - Exemptions from Disclosure
Public Information Act I Dallas Police &Fire Pension System
March 25, 2013
Dear Attorney General Abbott:
This law firm represents the Dallas Police & Fire Pension System (the "System") On
March 25, 2013, the System received an email request from Steve Thompson, Staff
Writer for The Dallas Morning News (the "DMN") requesting to inspect emails
exchanged between Richard Tettamant and Mike Snyder since a certain date (herein
called the "Tettamant Snyder Email Request," so named to distinguish it from prior and
any subsequent requests which also pertain to the System). A copy of the Tettamant
Snyder Email Request is attached as Exhibit "A".
This letter is timely made within 10 business days after the System received the
Tettamant Snyder Email Request and seeks an opinion from your office allowing the
System to refuse to produce the requested information under the exceptions described
more fully below. The System attaches a representative samplar of the responsive
documents for in-camera review.
A. Investment information related to Museum Tower, L.P., was previously held
by the Attorney General to be excepted from disclosure pursuant to
Sections 552.143.
The System has already been obliged to file dozens of requests for the same
guidance, as we here again request, that Section 552.143 of the Texas Government
Code applies and we believe that the requestor knows or should know when
considering this and future requests that Section 552.143 applies to requests that
related to Museum Tower, L.P. (Subsequent citations are to Sections in Chapter 552 of
the Texas Government Code unless the form of the citation indicates otherwise.)
Office of the Attorney General
Open Records Division
AprilS, 2013
Page 2
Almost all information responsive to the request includes information excepted
from disclosure pursuant to Section 552.143. Specifically, virtually all responsive
information relates to Museum Tower, L.P., which is not a governmental body. Rather,
Museum Tower, L.P., is a limited partnership in which the System has invested through
a wholly-owned limited liability company, and its investment was not for purposes of
reinvestment.
In Open Records Decisions 2012-13914, 2013-04717 and 2013-05330
courtesy copies of which are attached hereto as Exhibit "B", Exhibit "C" and
Exhibit "0" respectively, the Attorney General previously held that information related
to Museum Tower was excepted from disclosure pursuant to Section 552.143.
Section 552.143, provides, in part, as follows:
(c) All information regarding a governmental body's direct purchase,
holding, or disposal of restricted securities that is not listed in Section
552.0225(b)(2)-(9), (11), (13)-(16) is confidential and excepted from the
requirements of Section 552.021. This Subsection does not apply to a
governmental body's purchase, holding, or disposal of restricted securities
for the purpose of reinvestment nor does it apply to a private investment
fund's investment in restricted securities.
Section 552.143(c). All of the submitted information pertains to the System's direct
purchase, holding, or disposal of a restricted security. See id. Section 552.143(d)(3)
(defining "restricted securities" for purposes of Section 552.143). Further, as referenced
in the DMN article dated January 5, 2013, a copy of which is attached as Exhibit "E",
additional investors have expressed interest in investing in the security. Thus, with the
exception of information the System must release pursuant to subsections
552.0225(b)(2)-(9), (11), and (13)-(16), which were provided to the requestor, the
System must withhold all such other information under Section 552.143(c).
B. Responsive information should be excepted from disclosure under Section
552.103 because litigation is anticipated.
In Open Records Decisions 2012-13914 and 2013-04717, courtesy copies of which
are attached hereto as Exhibit "B" and Exhibit "C", respectively, the Attorney General
held that certain information related to potential threatened litigation-the same
anticipated litigation that is also specifically identified here-is excepted from disclosure.
The System again requests that portions of the attached information be excepted from
disclosure pursuant to Section 552.103. Specifically, Section 552.103(a) excepts from
public disclosure:
Office of the Attorney General
Open Records Division
April 8, 2013
Page 3
[I]nformation relating to litigation of a civil or criminal nature
to which the state or a political subdivision is or may 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.
For information to be excepted from public disclosure by section 552.103(a), 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 Iitigation.
1
The System contends that the Information requested by the Requestor is excepted from
disclosure under Section 552.103(a) based on impending litigation. By way of
background, portions of the requested Information involve the recently constructed and
newly opened Museum Tower, a 42-story high-rise condominium. The publicly
accessible but privately owned Nasher Sculpture Center in the City of Dallas has made
repeated assertions, almost universally supported by various media organizations
(including the requestor's newspaper), in a number of both print and on-line stories that
Museum Tower is destroying art in the museum, destroying the visitors' experience in
the museum, destroying vegetation in its garden, and raising temperatures as much as
25 degrees due to sunlight reflecting off of the glass wall of the Museum Tower for a few
hours each day. (Copies of numerous news articles were attached to a prior Open
Records Request dated June 25,2012 and the subject of Open Records Decision 2012-
13914 attached as Exhibit "8".) Not only would the System be a likely party to any suit
filed regarding Museum Tower, but there would likely be full legal and financial recourse
against the System as a result of the anticipated suit.
Museum Tower's owners were asked by civic leaders to attempt to resolve this matter
short of litigation. They have not only participated in such mediation efforts but also
abided by the mediator, respected civic leader and attorney Tom Luce's request for a
"black-out" on all public comments or interviews despite the fact that spokespersons for
the Nasher continue to speak out on the matter, including their architect, Renzio Piano.
Mr. Piano asserts he has no obligation to respect the media black-out and was quoted
by 0 Magazine writer Tim Rogers in his April 19, 2012 post (following his April Cover
Story article, Towering Infemo) as stating: "If there is any need of legal action, that will
be done of course. Nobody should think that they can destroy a building or an
institution like this without any problem." A copy of this blog article is attached as
Exhibit 'IF".
1 See University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479,481 (Tex. App.-Austin 1997,
no pet.); Heard v. Houston Post Co., 684 S.W.2d 210,212 (Tex. App.-Houston [1st Dist.] 1984, writ ref'd
n.r.e.).
Office of the Att orney General
Open Records Division
April B, 2013
Page 4
To date, all efforts to resolve the dispute have failed. Further, persons connected with
the Nasher as wel l as the very vocal arts community in Dallas, including both print and
broadcast media, continue to attack Museum Tower, its architects and developers-all
of which led to the termination of the unsuccessful negotiations and the greater
likelihood that only litigation can and will resolve this more than $200 Million dollar
dispute. A copy of the October 25, 2012 DMN article regardi ng the resignation of
Mr. Luce as mediator is attached as EXHIBIT " Gil .
It should be noted that individuals who support the Nasher and or who are acting as
surrogates for the Nasher have taken to posting inf lammatory comments on Facebook
attacking individual s who are or were in the process of closing on their purchase of or
about to move into condominiums in Museum Tower. [
&... 1'
C. Responsive information is confidential by " ot her law" .
Moreover, port ions of the responsive information
attorney-client , and/or work product ion privileges.
fall under t he consulting expert,
Consequently, certain identified
2Redacted on copy to Requestor as it reveals attorney mental impressions in connect ion with reasonably
anticipated litigation. Tex. R. Civ. P. 192.5.
3 Redacted on copy to Requestor as it reveals attorney mental impressions in connect ion with reasonably
anticipated litigation. Tex. R. Civ. P. 192.5.
Office of the Attorney General
Open Records Division
April 8, 2013
Page 5
information concerning discussions with or advice from the undersigned attorney must
be redacted as privileged and exempt from disclosure under Texas Rules of Civil
Procedure Section 192.3 and 192.5, including but not limited to subsections 192.5 (a)(1)
or (2), or (b) as well as Section 552.101.
Section 552.022 provides, in relevant part, as follows:
(a) Without limiting the amount or kind of information that is public
information under this chapter, the following categories of information are
public information and not excepted from required disclosure under this
chapter unless they are expressly confidential under other law:
Section 552.022(a) (emphasis added). Again, the Texas Supreme Court has held the
Texas Rules of Evidence and the Texas Rules of Civil Procedure are "other law" within
the meaning of Section 552.022. See In re City of Georgetown, 53 S.W.3d 328, 336
(Tex. 2001).
Moreover, Section 552.101, entitled "Exception: Confidential Information," states that
"[i]nformation is excepted from the requirements of Section 552.021 if it is information
considered to be confidential by law, either constitutional, statutory, or by judicial
decision."
i. Requested Information is Exempted from Disclosure because it Relates to
the indenties of Consulting Expert(s).
Rule 192.3 of the Texas Rules of Civil Procedure provides the consulting expert
privilege. A party to litigation is not required to disclose the identity, mental impressions,
and opinions of consulting experts whose mental impressions or opinions have not been
reviewed by a testifying expert. See Tex. R. Civ. P. 192.3(e). A "consulting expert" is
defined as "an expert who has been consulted, retained, or specially employed by a
party in anticipation of litigation or in preparation for trial, but who is not a testifying
expert." Tex. R. Civ. P. 192.7.
The System contracted with consulting experts for services in anticipation of and
preparation for litigation involving Museum Tower. Furthermore, the consulting experts
have been retained solely for consultation and will not testify at trial, and testifying
experts have not reviewed the consulting expert's work. Portions of the responsive
information reveal the consulting experts' identities as well as mental impressions or
opinions of one or more experts and are accordingly excepted from disclosure.
Office of the Attorney General
Open Records Division
April 8, 2013
Page 6
ii. Responsive Information is Protected by the Attorney-Client and/or Work
Product Privilege.
Further, portions of the requested information are subject to the attorney-client and/or
work product privilege. Section 552.107(1) protects information that comes within the
attorney-client privilege. The test for determining whether information is protected
under the attorney-client privilege under Section 552.107(1) is the same as the test
under Texas Rule of Evidence 503. Tex. Att'y Gen. ORD2012-00071 (2012). It follows
that information deemed confidential under the Texas Rules of Evidence is excepted
from disclosure under the Act. Here, the controlling provision is Texas Rule of Evidence
503.
Texas Rule of Evidence 503 encompasses the attorney-client privilege and provides in
part:
A client has a privilege to refuse to disclose and to prevent any other
person from disclosing 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;
(C) 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
(E) among lawyers and their representatives representing the
same client.
TEX. R. EVID. 503(b)(1). Thus, a communication is "confidential" for purposes of the
Texas Rules of Evidence if it is "not intended to be disclosed to third persons other than
those to whom disclosure is made in furtherance of the rendition of professional legal
services to the client or those reasonably necessary for the transmission of the
communication." Id. at 503(a)(5).
Office of the Attorney General
Open Records Division
April 8, 2013
Page 7
In addition to attorney-client communications, information responsive to the Tettamant
Snyder Email Request also reveals work product that is excepted from disclosure.
Work product is defined as:
(1) material prepared or mental impressions developed in anticipation of
litigation or for trial by or for a party or a party's representatives, including
the party's attorneys, consultants, sureties, indemnitors, insurers,
employees, or agents; or
(2) a communication made in anticipation of litigation or for trial between a
party and the party's representatives or among a party's representatives,
including the party's attorneys, consultants, sureties, indemnitors,
insurers, employees, or agents.
Tex. R. Civ. P. 192.5(a). Accordingly, in order to withhold work product from disclosure
under rule 192.5, a governmental body must demonstrate that the material,
communication, or mental impression was created for trial or in anticipation of litigation.
Id. Information that meets the work product test is confidential under Rule 192.5
provided the information does not fall within the purview of the exceptions to the
privilege enumerated in rule 192.5(c). Pittsburgh Coming Corp. v. Caldwell,
861 S.W.2d 423, 427 (Tex. App.-Houston [14th Dist.] 1993, no writ).
For the purpose of Section 552.022(a), information is confidential under Rule 192.5 only
to the extent the information implicates the core work product aspect of the work
product privilege. Tex. Att'y Gen. ORD 677 (2002). Core work product is defined as the
work product of an attorney or an attorney's representative developed in anticipation of
litigation or for trial that contains the attorney's or the attorney's representative's mental
impressions, opinions, conclusions, or legal theories. TEX. R. CIV. P. 192.5(a), (b)(1).
Accordingly, in order to withhold attorney core work product from disclosure under rule
192.5, a governmental body must demonstrate that the material was 1) created for trial
or in anticipation of litigation and 2) consists of an attorney's or the attorney's
representative's mental impressions, opinions, conclusions, or legal theories. Id.
Additionally pursuant to Section 552.111 Exception: Agency Memoranda and Texas
Rule of Civil Procedure 192.5, certain interagency and intraagency memorandum are
excepted from public disclosure based on the work product privilege. Tex. Att'y Gen.
ORD-677 (2002). In addition, as noted in the Public Information Handbook 2012 edition
at page 109, Section 552.111 encompasses information generated by agency
personnel as well as information created for an agency by outside consultants acting on
behalf of the agency.
Portions of the Tettamant Snyder Email Request are protected from disclosure as work
product, as they contain the mental impressions, opinions, conclusions and/or legal
Office of the Attorney General
Open Records Division
April 8, 2013
Page 8
theories in handling the forthcoming litigation. The documents at issue, and the work of
the attorneys and others documented therein, were generated in conjunction with the
impending litigation between the System and Nasher Sculpture Center by attorneys
retained by the System for legal representation. It was with this litigation in mind that
the System's attorneys and consultants conducted investigations, completed research,
prepared memoranda, and provided legal advice to the System. The attorneys' and
others related mental impressions, as well as the process by which the attorneys and
consultants developed their opinions and legal conclusions, are included in the
documents and should therefore be protected from disclosure. Texas Rule of Civil
Procedure 192.5 and Texas Rule of Evidence 503 are intended to protect such
information and should be applied to the redacted portions of the attached bills from
disclosure.
Further, to the extent additional arguments are necessary, responsive information
relates to retained consultants to the System specifically hired to address anticipated
litigation regarding Museum Tower. The emails reveal work product of the consultants
and includes strategy, which was made in anticipation of litigation. Further, the emails
reveal what activity has taken place in the context of the contemplated litigation. The
consultation services assist Strasburger & Price, LLP, in the rendition of its professional
legal services to the System, which are in fact enhanced by such consultation. It would
be damaging to the System's legal position in those matters for its adversaries or
potential adversaries to have access to that information.
For these reasons, portions of the requested information relate to contemplated
litigation and should be excepted from disclosure under Texas Rule of Evidence 503,
Texas Rule of Civil Procedure 192.5, and Sections 552.022,552.101,552.107, and
552.011 of the Act.
D. Responsive information containing private email addresses should be
excepted from disclosure under Section 552.137 - Confidentiality of Certain
Email Addresses.
A few of the responsive documents contain email addresses of persons not having a
contractual relationship with the governmental body and thus is exempt under Section
552.137(a).
For the foregoing reasons, the System respectfully requests that the Attorney General
rule that the requested information is excepted from disclosure in its entirety, or in the
alternative the System seeks exemption to redact portions as indicated on the
responsive documents submitted for in-camera review. Thank you for your
consideration of this request. Please do not hesitate to contact me with any questions.
Office of the Attorney General
Open Records Division
April 8, 2013
Page 9
Respectfully submitted,
Gary B. Lawson
GBL:lt
Enclosures
cc: Joshua Mond, Esq.
Mr. Steve Thompson (w/o in-camera documents)
4733499.1/SP/18516/0154/040813
-----Original Message-----
From: Thompson, Steve [mailto:stevethompson@dallasnews.com]
Sent: Monday, March 25, 2013 8:28 AM
To: info
Cc: Richard Tettamant
Subject: open records request -- Mike Snyder emails
Dear DPFP:
I request to inspect all emails exchanged between Richard Tettamant and Mike Snyder. Please
limit the responsive records to only emails sent since Jan. 1, 2012.
I make this request as a reporter for The Dallas Morning News and on its behalf. Pleasecontact
me by email or by the phone number provided below to arrange a time and date for this
inspection.
Thanks,
Steve Thompson
Staff Writer
The Dallas Morning News
cell: 214-766-8813
EXHIBIT "A"
ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September 4,2012
Mr. Gary B. Lawson
Strasburger
901 Main Street, Suite 4400
Dallas, Texas 75202-3794
OR2012-13914
Dear Mr. Lawson:
You ask whether certain information is subject to required public disclosure under the
Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was
assigned ID# 463760.
The Dallas Police and Fire Pension System (the "system"), which you represent, received a
request for all e-mails received by or generated by staff of the system that pertain to the
Museum Tower condominium project during a specified time period. You claim the
submitted information is excepted from disclosure under sections 552.101,552.102,552.103,
552.104,552.105,552.107,552.110,552.111,552.136, 552.137, and 552.143 of the
Government Code, as well as privileged under rule 503 of the Texas Rules of Evidence and
rule 192.5 of the Texas Rules of Civil Procedure. 1 We have considered the exceptions you
claim and reviewed the submitted representative sample of information.'
'Although you raise section 552.101 of the Govemment Code in conjunction with sections 552.110
and 552.137 of the Govemment Code and Texas Rule of Evidence 503 and Texas Rule of Civil
Procedure 192.5, this office has concluded section 552.101 does not encompass other exceptions found in the
Act, and does not encompass discovery privileges. See Open Records Decision Nos. 676 at 1-2 (2002), 575
at 2 (1990).
2We assume the "representative sample" of records submitted to this office is truly representative of
the requested records as a whole. See Open Records Decision Nos. 499 (1988),497 (1988). This open records
letter does not reach, and therefore does not authorize the withholding of, any other requested records to the
extent those records contain substantially different types of information than that submitted to this office.
POST OFFICE Box 12548. AUSTIN, TEXAS 78711-2548 TEL: (512) 463·2100 WWW.TEXASATTORNEYGENERAL.GOV
An Equal Opportunity Emf/oJu . Prinrrd on Papt'r
EXHIBIT "B"
Mr. Gary B. Lawson - Page 2
Initially, we must address the system's obligations under section 552.301 of the Government
Code, which prescribes the procedures a governmental body must follow in asking this office
to decide whether requested information is excepted from public disclosure. Pursuant to
section 552.301 (b), a governmental body must ask for a decision from this office and state
the exceptions that apply within ten business days of receiving the written request. See
Gov't Code § 552.301(b). Further, pursuant to section 552.301(e), a governmental body
must submit to this office within fifteen business days of receiving an open records
request (1) written comments stating the reasons why the stated exceptions apply that would
allow the information to be withheld, (2) a copy of the written request for information, (3) a
signed statement or sufficient evidence showing the date the governmental body received the
written request, and (4) a copy of the specific information requested or representative
samples, labeled to indicate which exceptions apply to which parts of the documents. See
id. § 552.301(e). You have marked portions of the submitted information under
sections 552.102,552.104,552.105, and 552.136 of the Government Code. However, you
have failed to submit any arguments to this office explaining the applicability of these
exceptions. Accordingly, we conclude the system failed to comply with the procedural
requirements mandated by section 552.301 of the Government Code with respect to these
exceptions.
Pursuant to section 552.302 of the Government Code, a governmental body's failure to
comply with the procedural requirements ofsection 552.30 I results in the legal presumption
that the requested information is public and must be released unless there is a compelling
reason to withhold the information from disclosure. See id. § 552.302; Simmons v.
Kuzmich, 166 S.W.3d 342 (Tex. App.c--Fort Worth 2005, no pet.); Hancock v. State Ed. of
Ins., 797 S.W.2d 379, 381-82 (Tex. App.-Austin 1990, no writ); see also Open Records
Decision No. 630 (1994). Generally, a governmental body may demonstrate a compelling
reason to withhold information by showing that the information is made confidential by
another source of law or affects third party interests. See ORD 630. Although the system
has marked information under sections 552.104 and 552.105 ofthe Government Code, these
exceptions are discretionary in nature and may be waived. See Gov't Code § 552.007; Open
Records Decision Nos. 665 at 2 n.5 (2000) (discretionary exceptions generally), 663 at 5
(1999) (waiver of discretionary exceptions), 592 (1991) (governmental body may waive
statutory predecessor to section 552.104). Accordingly, no portion of the submitted
information may be withheld under section 552.104 or section 552.105 of the Government
Code. However, as sections 552.102 and 552.136 of the Government Code can provide
compelling reasons to withhold information, we will consider the applicability of these
sections to the submitted information. Additionally, we will consider the applicability ofthe
exceptions for which you provided arguments to this office.
Next, you indicate some of the submitted information is subject to section 552.0225 of the
Government Code. Section 552.0225(b) provides, in relevant part, as follows:
EXHIBIT "B"
Mr. Gary B. Lawson - Page 3
The following categories ofinformation held by a governmental body relating
to its investments are public information and not excepted from disclosure
under [the Act]:
(2) the date that a fund or investment entity described by
Subdivision (1) was established;
(3) each date the governmental body invested in a fund or investment
entity described by Subdivision (1);
(4) the amount ofmoney, expressed in dollars, the governmental body
has committed to a fund or investment entity;
(5) the amount ofmoney, expressed in dollars, the governmental body
is investing or has invested in any fund or investment entity;
(6) the total amount ofmoney, expressed in dollars, the governmental
body received from any fund or investment entity in connection with
an investment;
(7) the internal rate of return or other standard used by a
governmental body in connection with each fund or investment entity
it is or has invested in and the date on which the return or other
standard was calculated;
(8) the remaining value of any fund or investment entity the
governmental body is or has invested in;
(9) the total amount of fees, including expenses, charges, and other
compensation, assessed against the governmental body by, or paid by
the governmental body to, any fund or investment entity or principal
of any fund or investment entity in which the governmental body is
or has invested;
(11) each recusal filed by a member of the governing board in
connection with a deliberation or action of the governmental body
relating to an investment;
EXHIBIT !lB
H
Mr. Gary B. Lawson - Page 4
(13) the minutes and audio or video recordings of each open portion
ofa meeting of the governmental body at which an item described by
this subsection was discussed;
(14) the governmental body's percentage ownership interest in a fund
or investment entity the governmental body is or has invested in;
(15) any annual ethics disclosure report submitted to the
governmental body by a fund or investment entity the governmental
body is or has invested in; and
(16) the cash-on-cash return realized by the governmental body for a
fund or investment entity the governmental body is or has invested in.
Gov't Code § 552.0225(b)(2)-(9), (11), (13)-(16). You indicate the types ofinformation you
have marked are subject to the relevant portions of section 552.0225(b) of the Government
Code. The exceptions to disclosure found in the Act, including section 552.143, do not apply
to information that is made public by section 552.0225. See Open Records Decision
Nos. 623 at 3 (1994), 525 at 3 (1989). Therefore, the system must release those portions of
the submitted information that are subject to the relevant portions of section 552.0225(b) of
the Government Code.
You argue the remaining information is excepted from disclosure under section 552.143 of
the Government Code, which provides, in part,
(c) All information regarding a governmental body's direct purchase, holding,
or disposal of restricted securities that is not listed in
Section 552.0225(b)(2)-(9), (11), (13)-(16) is confidential and excepted from
the requirements of Section 552.021. This Subsection does not apply to a
governmental body's purchase, holding, or disposal ofrestricted securities for
the purpose of reinvestment nor does it apply to a private investment fund's
investment in restricted securities.
Gov't Code § 552.143(c). You argue the submitted information pertains to the system's
direct purchase, holding, or disposal of a restricted security. See id. § 552.143(d)(3)
(defining "restricted securities" for purposes of section 552.143). You inform us the
submitted information involves the Museum Tower, which you state is not a governmental
body. You state Museum Tower, L.P., is a limited partnership in which the system has
invested through a wholly-owned limited liability company, and its investment was not for
purposes of reinvestment. Accordingly, based on your representations and our review, we
find the system has demonstrated the applicability of section 552.143( c) to the remaining
information. Thus, with the exception of information the system must release pursuant to
EXHIBIT "B"
Mr. Gary B. Lawson - Page 5
subsections 552.0225(b)(2)-(9), (11), and (13)-(16) of the Government Code, the system
must withhold the submitted information under section 552.143(c) ofthe Government Code.'
This letter ruling is limited to the particular information at issue in this request and limited
to the facts as presented to us; therefore, this ruling must not be relied upon as a previous
determination regarding any other information or any other circumstances.
This ruling triggers important deadlines regarding the rights and responsibilities of the
governmental body and ofthe requestor. For more information concerning those rights and
responsibilities, please visit our website at http://\vww.oag.state.tx.us/openJindex orl.php,
or call the Office of the Attorney General's Open" Government Hotline, toll free,
at (877) 673-6839. Questions concerning the allowable charges for providing public
information under the Act must be directed to the Cost Rules Administrator of the Office of
the Attorney General, toll free at (888) 672-6787.
Sincerely,
Claire V. Morris Sloan
Assistant Attorney General
Open Records Division
CVMS/som
Ref: 10# 463760
Ene. Submitted documents
c: Requestor
(w/o enclosures)
lAs our ruling is dispositive, we need not address your remaining arguments against disclosure of the
responsive information.
EXHIBIT "B"
ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
March 2J. 20J3
Mr. GaryB. Lawson
Counsel tor the Dallas Police& Fire PensionSystem
Strasburger & Price. LLP
901 Main Street. Suite4400
Dallas. Texas 75202-3794
OR2013-047l7
Dear Mr. Lawson:
You ask whether certain information is subject to required public disclosure under the
PublicInformation Act(the"Act"), chapter552of the GovernmentCode. Yourrequestwas
assigned ID# 481856.
TheDallas Policeand FirePensionSystem(the"system"), which yourepresent, receiveda
request for e-mails between a namedindividual and anyemployeeof a namedcompanyfor
a specified periodof time. Youclaimthe requested informationis exceptedfromdisclosure
under sections 552.103, 552.107, 552.110, 552.111, 552.137, and 552.143 of the
Government Code. andprivileged underTexasRulesofCivil Procedure192.3 and192.5 and
Texas Rule of Evidence 503.
1
We have considered your arguments and reviewed the
submitted representative sample of information.' We have also received and considered
'Although you also mark some of the submitted e-mails under section 552.102 of the
Government Code. you have provided no arguments explaining how this exception is applicable to the
submitted mformation. Therefore, we assume you no longer assert this exception. See Gov't Code
§§ 552.30 I(e)(1 )(A), .302.
We assume the"representative sample" of records submitted to thisofficeis trulyrepresentative of
therequested records asa whole, See OpenRecords Decision Nos.499(1988),497(1988). Thisopenrecords
letter does 110t reach. andtherefore does not authorize the withholding of, anyother requested records to the
extent those records contain substantially different types of information than thosesubmitted to this office.
Pan OffiCE Box 12548, AUSTIN. TEXAS 78711·2548 TEl: (512) 463·2100 WWIIV.TEXASlITTORN£YGENERlIL.GOV
. A : ~ £f/ufilt::",}I#"]t!tl'1ft o,Piutu1tirJ E""lcyn ' Printed,)n l1uyduJ PilI"
EXHIBIT "G"
· Mr. Gary B. Lawson- Page 2
comments from the requestor. See Gov't Code § 552304 (interested party may submit
comments stating whyinformation shouldor should not be released).
Initially, we note a portion of the submitted information was created after the request was
received. This information, which we havemarked, is not responsive tothe instant request
for information. This ruling does not address the public availability of non-responsive
information, and thesystemisnotrequiredtorelease non-responsive information inresponse
tothis request.
You argue some of the responsive information is excepted from public disclosure under
section 552.I0I of the Government Code) in conjunction with Texas Rules of Civil
Procedure 192.3 and 192.5 and Texas Rule of Evidence 503.
4
We note that this office
generally does not address discovery andevidentiaryrulesthatmayor maynot beapplicable
toinformation submittedtoour office bya governmental body. SeeOpen Records Decision
No. 416(1984) (finding that evenif evidentiary mle specified that certain information may
not be publiclyreleased duringtrial, it wouldhave no effect on disclosability under Act).
However. the Texas Supreme Courthas ruledthat the Texas Rulesof Civil Procedure and
the Texas Rules of Evidence are "other law" that make information confidential for the
purposes of section 552.022. SeeGov't Code§ 552.022 (enumerating several categories of
information not excepted from required disclosure unless expressly confidential under the
Act or other law); see also In re CityofGeorgetown, 53S.W.3d 328 (Tex. 2001). In this
instance, the responsive information doesnot fall intooneof the categories ofinfonnation
made expresslypublic by section 552.022 of the Government Code. Therefore, the Texas
Rules of CiviI Procedure andTexas RulesofEvidence arenot applicable. Wealso notethat
section 552.101 does notencompass civil discovery privileges. SeeOpenRecords Decision
Nos.647 at 2(1996). Accordingly, weconclude the systemmaynot withhold anyportion of
the responsive information pursuant to section 552.101 of the Government Code in
conjunction with the TexasRules of Civil Procedure or the TexasRules ofEvidence.
Next, wenote that youargue someofthesubmitted information is excepted fromdisclosure
under section 552" 11 0 of the Government Code. We note, however, section 552.110 is
designed to protect the interests ofthird parties not the interests of a governmental body.
Thus, we will not consider the system'sarguments undersection 552.110, and none of the
submitted information maybe withheld undersection 552.110 on the basisof the system's
interests.
>Section ::. 52" 101 exceptsfrom publicdisclosure "information considered to be confidential by law,
eitherconstitutional. statutory, or byjudicial decision." Gov't Code§ 552.10J.
'We note the properexceptions toraisewhen asserting theattorney-client privilege and workproduct
privilege for informal ion not subject to section 552.022 of the Government Code are sections 552.107
and552111 of the Government Code,respectively, See OpenRecords Decision Nos. 676 at I -2 (2002),677
(2002),
EXHIBIT "e"
· Mr. Gary B. Lawson - Page3
You argue the rernammg information at issue is excepted from disclosure under
section 552.143 of the Government Code, whichprovides, inpart,
(c) All information regarding a governmental body's direct purchase,
holding, or disposal of restricted securities that is not listed in
Section 552.0225(b)(2)-(9), (11), (13)-(l6) isconfidential andexcepted from
the requirements of Section 552.021. This Subsection does not applyto a
governmental body'spurchase, holding, ordisposal ofrestrictedsecurities for
the purpose of reinvestment nordoes it applyto a private investment fund's
investment in restricted securities.
Gov't Code § 552.143(c). You argue the information pertains to the system's direct
purchase, holding, or disposal of a restricted security. See id. § 552.I43(d)(3) (defining
"restricted securities" for purposes of section 552.143); see a/so 17C.F.R. § 230.l44(a)(3)
(defining "restrictedsecurities" as"securities acquired directly or indirectly from the issuer,
or fromanaffiliateof theissuer, ina transaction orchainoftransactions not involvingpublic
offering"). You inform us the submitted information involves Museum Tower, L.P.
(the "MuseumTower"), which youstateis not a governmental body. Youstatethesystem's
limited partnership interest in the Museum Tower, is a security acquired directly fromthe
issuer of the security, the Museum Tower, in a transaction that did not involve a public
offering. Accordingly, based onyourrepresentations andourreview, wefindthe systemhas
demonstrated the applicability of section 552.l43(c)tosollle of the information at issue.
Thus, the systemmust withhold the information wehavetnarkedunder section552.143(c)
of the Government Code. However, we find the system has failed to demonstrate howthe
remaining information pertains to the system's direct purchase, holding, or disposal of a
restricted security. Accordingly, noneoftheremaining informationmaybewithheldunder
section 552.143ofthe Government Code.
Section 552.103 of theGovernment Codeprovides in relevant part as follows:
(a) Information is excepted from [required public disclosure] if it is
information relating to litigation of a civil or criminal nature to which the
state or a political subdivision is or maybe a partyor to which an officeror
employee of the state or a political subdivision, as a consequence of the
person's officeor employment, is or maybe a party.
(c) Information relating to litigation involving a governmental bodyor an
officer or employee of a governmental body is excepted from disclosure
under Subsection (a)onlyifthelitigation ispendingorreasonablyanticipated
on thedatethat therequestor applies tothe officer for public information for
access to or duplication of the information.
EXHIBIT "G"
· Mr. Gary B. Lawson - Page 4
Gov't Code ~ 552.1 03(a), (c). A governmental bodyhas the burden of providing relevant
facts and documents to showsection 552.1 03(a) is applicablein a particular situation. The
test for meeting this burden is a showing that (1) litigation was pending or reasonably
anticipated on the date the governmental body received the request for information,
and(2)the informationat issueis relatedto that litigation. SeeUniv. of'Tex. LawSch. v. Tex.
Legal Found., 958 S.W.2d479,481 (Tex. App.-Austin 1997, no pet.); Heard v. Houston
Post Co. 684 S.W.2d 210, 212 (Tex. App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.);
OpenRecords DecisionNo. 551 at 4 (1990). Agovernmental body must meet both prongs
of this test for informationto be excepted under section 552.103(a). See ORD551.
To establishthat litigationis reasonablyanticipated,a governmental bodymust provide this
officewith "concrete evidenceshowingthat the claimthat litigationmay ensue is morethan
mere conjecture:' See Open Records DecisionNo. 452 at 4 (1986). Whether litigation is
reasonably anticipated must be determined on a case-by-case basis. See id. Concrete
evidencetosupport a claimthat litigationis reasonablyanticipatedmayinclude,forexample,
the govemmental body's receipt of a letter containing a specific threat to sue the
governmental bodyfromanattorneyfor apotential opposingparty.' OpenRecordsDecision
No. 555 (1990); see Open Records Decision No. 518 at 5 (1989) (litigation must be
"realistically contemplated"). On the other hand, this office has determined that if an
individual publiclythreatens tobringsuit against a governmental body, but does not actually
take objective steps toward filing suit, litigation is not reasonably anticipated.
SeeOpen Records DecisionNo. 331 (1982). Further,the fact that a potential opposingparty
has hiredan attorney whomakes a request for informationdoes not establish that litigation
is reasonablyanticipated. Open Records DecisionNo. 361 (1983).
Youcontend the systemreasonablyanticipates litigationbecauseit is currentlyin a dispute
with the Nasher Sculpture Center (the "Nasher"), You explain the Nasher has made
allegations that glare emanating from the glass walls of the Museum Tower, a high-rise
residential condominiumowned bythe system, is damagingthe Nasher's art and vegetation
and creating an unpleasant experience for visitors. You state representatives of Museum
Tower and the Nasher recentlyparticipated in mediationefforts which were unsuccessful.
You indicate all efforts short of litigation to resolve the dispute have failed and state the
systemanticipates being a party to any suit regarding MuseumTower and you argue there
would be legal and financial recourse against the systemas a result of any suit. Based on
your representationsand our review, we determinethe systemhas established it reasonably
anticipated litigation on the date it received the request for information. We also find the
addition.. this officehas concludedthat litigation wasreasonably anticipated whenthe potential
opposing party took the following objective steps toward litigation: filed a complaint with the Equal
Employment Opportunity Commission, see Open Records Decision No. 336 (1982); hiredan attorney who
madea demand fordisputed payments andthreatened tosueifthepayments werenot madepromptly, seeOpen
Records Decision No. 346(1982):andthreatened to sueonseveral occasions andhiredanattorney, seeOpen
Records Decision No. 288(1981).
EXHIBIT "G"
· Mr. Gary B. Lawson - Page 5
information at issue is relatedto litigationthe systemanticipated on the date of its receipt of
the request for information. Accordingly,the systemmaywithholdthe informationyouhave
marked under section 552J03 of the Government Code."
However, once the information at issue has been obtained by all parties to the anticipated
litigation through discoveryor otherwise, no section 552.1 03(a) interest exists with respect
to the information. SeeOpen Records Decision Nos. 349 (1982), 320 (1982). Further, the
applicability of section 552.103(a) ends once the litigation has concluded or is no longer
reasonably anticipated. See Attorney General Opinion MW-575 (1982); see also
Open Records Decision No. 350 (1982).
Section 552.111 of the Government Code excepts from disclosure "[ajn interagency or
intraagencymemorandumor letter that wouldnot be available by lawto a party in litigation
withthe agency[.r Gov't Code § 552.111. Section552.111encompasses the attorneywork
product privilege found in rule 192.5 of the Texas Rules of Civil Procedure, which is
discussedabove. City of'Garlandv. DallasMorningNews, 22 S.W.3d351, 360 (Tex. 2000);
Open Records Decision No. 677 at 4-8 (2002). Rule 192.5 defines work product as
(1) material prepared or mental impressions developed in anticipation of
litigation or for trial by or for a party or a party's representatives, including
the party' s attorneys, consultants, sureties, indemnitors, insurers, employees,
or agents; or
(2) a communicationmade in anticipationoflitigation or for trial between a
party and the party's representatives or among a party's representatives,
including the party's attorneys, consultants, sureties, indemnitors, insurers,
employees or agents.
TEX. R. Ctv. P. 192.5. A governmental body seeking to withhold information under this
exception hears the burdenof demonstratingthe information was created or developed for
trial or in anticipation of litigation by or for a party or a party's representative.
TEX. R. Ctv. P. 192.5:ORD677 at 6-8. In order for this office to conclude the information
was made Of developed in anticipation of litigation, we must be satisfied
a) a reasonable person would have concluded from the totality of the
circumstances surrounding the investigation that there was a substantial
chance that litigation would ensue; and b) the party resisting discovery
believedingoodfaith thattherewas a substantialchance that litigationwould
ensue and Icreated or obtainedthe information] for the purpose ofpreparing
for such litigation.
"As o.ir ruling dispositive. weneednotaddressyourremaining arguments againstdisclosure of this
information
EXHIBIT "G"
Mr. GaryB. Lawson- Page6
Nat "l Tank Co. 1'. Brotherton, 851 S.W.2d 193,207 (Tex. 1993). A"substantial chance"of
litigation does not mean a statistical probability, but rather "that litigation is more than
merely an abstract possibility or unwarranted fear:' ld. at 204; ORD677at 7. Furthermore,
as noted above, if a requestor seeks a governmental body's entire litigation file, the
governmental bodymayassertthe fileisexceptedfromdisclosure initsentiretybecausesuch
a request implicates the core work product aspect of the privilege. See ORD 677 at 5-6.
Thus, in such a situation, if the governmental body demonstrates the file was created in
anticipation of litigation, this office will presumethe entire file is within the scope of the
privilege. See ORO647 at 5; see also Curry, 873 S.W.2dat 380.
You claim a portion of the remaining responsive information consists of attorney work
product that is protected under section 552.111. You informus the information at issue
contains the mental impressions and advice of consultants for and representatives of the
system that were created or developed in anticipation of litigationwith the Nasher. Upon
review, we findthe system has demonstrated the applicabilityof the attorneywork product
privilege tothe information at issue, whichwehavemarked. Thus,the systemmaywithhold
the information we markedunder section552.111 of the Government Code.'
Section 552.137of the Government Code exceptsfrom disclosure "an e-mail address of a
memberof the publicthat is providedfor thepurposeofcommunicating electronically with
a governmental body," unlessthe memberof the publicconsentsto its releaseor the e-mail
addressis of a type specifically excludedby subsection(c). Gov't Code § 552.137(a)-(c).
Wenote the information at issue includes the requestor's e-mail address, to which he has a
right of access pursuant to section 552.137(b) of the Government Code. See id.
§552.137(b).• Accordingly, thesystemtnustwithholdthe e-mailaddresses youhavemarked,
in addition to the e-mail addresses we have marked, under section 552.137 of the
Government Code, unlessthe ownersof the addresses haveaffirmatively consentedto their
release.
In summary, the system must withhold the information we have marked under
section552.143(c) of'the Government Code. Thesystemmaywithholdthe informationyou
havemarked under section552.103 of the Government Codeand the information we have
marked under the section552.111 of the Government Code. Thesystemmust withholdthe
e-mail addresses you have marked, in addition to the e-mail addresses we have marked,
under section 552.137 of the Government Code, unless the owners of the addresses have
affirmatively consentedto their release. The system must releasethe remainingresponsive
information.
"r
A
.:...
otu
informal I' A'
is dispositive, we neednot addressyour remaining arguments against disclosureof this
EXHIBIT "e"
Mr. Gary B. Lawson - Page 7
This letter ruling is limited to the particular information at issue in this request and limited
to the facts as presented to us; therefore, this ruling must not be relied upon as a previous
determination regarding any other information or any other circumstances.
This ruling triggers important deadlines regarding the rights and responsibilities of the
governmental body and ofthe requestor. For more information concerning those rights and
responsibilities. please visit our website at http://\\\\'\v.oag.state.tx.us/opcnJindex orl-php,
or call the Office of the Attorney General's Open Government Hotline, toll free,
at (877) 673-6839. Questions concerning the allowable charges for providing public
information under the Act must be directed to the Cost Rules Administrator ofthe Office of
the Attorney General, toil free, at (888) 672-6787.
Sincerely.
Paige Lay
Assistant Attorney General
Open Records Division
PLlbhf
Ref: 10# 481856
Enc. Submitted documents
cc: Requestor
(w/a enclosures)
EXHIBIT "G"
ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
April 3,2013
Mr. Gary B. Lawson
Strasburger & Price, LLP
901 Main Street, Suite 4400
Dallas, Texas 75202-3794
OR2013-05330
Dear Mr. Lawson:
You ask whether certain information is subject to required public disclosure under the
Public Information Act (the "Act"), chapter 552 ofthe Government Code. Your request was
assigned ID# 482923.
The Dallas Police and Fire Pension System (the "system"), which you represent, received a
request for e-mails between two named individuals for a specified period oftime. You claim
the requested information is excepted from disclosure under sections 552.103, 552.107,
552.110,552.111,552.137, and 552.143 of the Government Code, and privileged under
rule 192.3 of the Texas Rules of Civil Procedure.
1
We have considered your arguments and
reviewed the submitted information. We have also received and considered comments from
the requestor. See Gov't Code §552.304 (interested partymay submit comments stating why
information should or should not be released).
Section 552.143 of the Government Code provides, in part, the following:
'Although you also raise section 552.101 of the Government Code in conjunction with Texas Rules
of Civil Procedure 192.3 and 192.5 and Texas Rule of Evidence 503, this office has concluded that
section 552.101 does not encompass discovery privileges. See Open Records Decision Nos. 676 at 1-2
(2002), 575 at 2 (1990). Furthermore, we note the proper exceptions to raise when asserting the attorney-client
privilege and work product privilege for information not subject to section 552.022 of the Government Code
are sections 552.107 and 552.111 ofthe Government Code, respectively. See Open Records DecisionNos. 676
at 1 -2,677 (2002). Additionally, although it appears you raise section 552.022 of the Government Code as
an exception to disclosure, we note section 552.022 is not an exception to disclosure. Rather, section 552.022
enumerates categories of information that are not excepted from disclosure unless they are made confidential
under the Act or other law. See Gov't Code § 552.022.
POST OFFICE Box 12548, AUSTIN, TEXAS 78711·2548 TEL: (5]2) 463·2]00 WWW.TEXASATTORNEYGENERAL.GOV
An Equal Employment 0Ppt)fttu/:uy Employer . Prinrrd on Ruyclfd Papa
EXHIBIT "0"
Mr. Gary B. Lawson - Page 2
(c) All information regarding a governmental body's direct purchase,
holding, or disposal of restricted securities that is not listed in
Section 552.0225(b)(2)-(9), (11), (13)-(16) is confidential and excepted from
the requirements of Section 552.021. This Subsection does not apply to a
govemmental body's purchase, holding, or disposal ofrestricted securities for
the purpose ofreinvestment nor does it apply to a private investment fund's
investment in restricted securities.
Gov't Code § 552.143(c). You argue some of the submitted information pertains to the
system's direct purchase, holding, or disposal ofa restricted security. See id. § 552. 143(d)(3)
(defining "restricted securities" for purposes of section 552.143); see also 17 C.F.R.
§230.144(a)(3) (defining "restricted securities" as "securities acquired directly or indirectly
from the issuer, or from an affiliate ofthe issuer, in a transaction or chain of transactions not
involving public offering"). You inform us the information at issue involves Museum
Tower, L.P. (the "Museum Tower"), whieh you state is not a governmental body. You state
the system's limited partnership interest in the MuseumTower, is a seeurityaequired directly
from the issuer of the security, the Museum Tower, in a transaction that did not involve a
public offering. Accordingly, based on your representations and our review, we find the
system has demonstrated the applicability ofsection 552.143(c) to the information you have
marked. Thus, the system must withhold the information you have marked under
section 552.143(c) of the Government Code.
Section 552.107(1) of the Government Code protects information that comes within the
attorney-client privilege. When asserting the attorney-client privilege, a governmental body
has the burden ofproviding the necessary facts to demonstrate the elements ofthe privilege
in order to withhold the information at issue. Open Records Decision No. 676 at 6-7 (2002).
First, a governmental body must demonstrate that the information constitutes or documents
a communication. !d. at 7. Second, the communication must have been made "for the
purpose offacilitating the rendition ofprofessional legal services" to the client governmental
body. TEX. R. EVID. 503(b)(1). The privilege does not apply when an attomey or
representative is involved in some capacity other than that of providing or facilitating
professional legal services to the client governmental body. In re Tex. Farmers Ins.
Exch., 990 S.W.2d 337,340 (Tex. App.-Texarkana 1999, orig. proceeding) (attorney-client
privilege does not apply if attorney acting in a capacity other than that of attomey). Third,
the privilege applies only to communications between or among clients, client
representatives, lawyers, and lawyer representatives. See TEX. R. EVID. 503(b)(1). Thus, a
governmental body must inform this office ofthe identities and capacities ofthe individuals
to whom each communication at issue has been made. Lastly, the attorney-client privilege
applies only to a confidential communication, meaning itwas "not intended to be disclosed
to third persons other than those to whom disclosure is made in furtherance ofthe rendition
ofprofessional legal services to the client or those reasonablynecessary for the transmission
of the communication." Id. 503(a)(5). Whether a communication meets this definition
depends on the intent ofthe parties involved at the time the information was communicated.
Osborne v. Johnson, 954 S.W.2d 180, 184 (Tex. App.-Waco 1997, orig. proceeding).
EXHIBIT "0"
Mr. Gary B. Lawson - Page 3
Moreover, because the client may elect to waive the privilege at any time, a governmental
body must explain that the confidentiality of a communication has been maintained.
Section 552.107(1) generally excepts an entire communication that is demonstrated to be
protected by the attorney-client privilege unless otherwise waived by the governmental body.
See Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996) (privilege extends to entire
communication, including facts contained therein).
You state the remaining information consists of a communication between the system and
an attorney for the system that was made in furtherance ofthe rendition ofprofessional legal
services to the system. We understand this communication was made in confidence, and that
confidentiality has been maintained. Based on your representations and our review, we find
you have demonstrated the applicability of the attorney-client privilege to the remaining
information. Accordingly, the system may withhold the remaining information under
section 552.107(1) of the Government Code.'
In summary, the system must withhold the information you have marked under
section 552.143(c) of the Government Code. The system may withhold the remaining
information under section 552.107(1) of the Government Code.
This letter ruling is limited to the particular information at issue in this request and limited
to the facts as presented to us; therefore, this ruling must not be relied upon as a previous
determination regarding any other information or any other circumstances.
This ruling triggers important deadlines regarding the rights and responsibilities of the
governmental body and ofthe requestor. For more information concerning those rights and
responsibilities, please visit our website at http://www.oag.state.tx.us/open/index orl.php,
or call the Office of the Attorney General's Open Government Hotline, toll free,
at (877) 673-6839. Questions concerning the allowable charges for providing public
information under the Act must be directed to the Cost Rules Administrator ofthe Office of
the Attorney General, toll free, at (888) 672-6787.
Ana Carolina Vieira
Assistant Attorney General
Open Records Division
ACV/ag
2As our ruling is dispositive, we need not address your remaining arguments against disclosure of this
information.
EXHIBIT "0"
Mr. Gary B. Lawson - Page 4
Ref: ID# 482923
Ene. Submitted documents
c: Requestor
(w/o enclosures)
EXHIBIT "0"
eXCLUSIVE NASHERCClNiFlC)VE:RS;Y
To ermay
sold
Ii) bl!e
until we It we-
MUlieurn TIlVI'l't Ul-.Ill
Museum of
1)l!J)wi and 1tJ(l\ft roll,
truvcl'lliallandmm",
torllll1l!.
[)allti JIld
NlI;llncr Cent;;r
rnI't'T a am-
hill! the
Arts Oi.,ttnct fOf
monthllc.
"1>ft. hu dem-
O!1nl'alOO time and
that
minded dt:-t.T}Oj)e'
led Ii> our cflIimflunJty,
VI'!!: VI'm!kl VI'tJicome
EXHIBIT "E"
Tower deal could break Nasher logjam
Matthc'I\1>' group receives a
ofthe l'emwnder, most
left would go to the
of its
Tetta·
previmlsly told The
Neu«. the to Mat-
thews were to dose as out-
the return on
wouldbe
ant'W
mar
town.
In It June interview with
'['he Tettamant was
asked the did so
we finda successful
we tend to sticlt
with Tettamant said.
"JackMattlle'l\1> is Ii phEmolme-
the limitl"<i
controls the
tower - M\IJlel1mTo'\\'ec LP-
is foc that
but: \X:nsionsysltem is obli-
if
don't cover tbe
lion. Total cost
to beabout
Tettamant has
said he doesn't re-
lated to the tower to increflsc
much current level
because funds from condo
Tettamant told Till: Dallas
MtlTnl'ngNf:1tll8last month the
dellt sllcloliat roltl/;hly $175 mil-
on both sides work-
on this v.ith a sense of the
possible, as to "fhis
won't work won't
" the ma','orBwd
Matthews
debt on the tower.
In the proposed
would
a
sum and become the controi-
Must of the proCOOi:h
Danas Mayor Mike Rawlings
tor who to the two
sides find a solution. He ac-
cused Tettamant of not:
in
erg say that """",if'"
have and done
little to work toward a solu-
tion.
Pension
say that the mediator was bi-
and that its officials have
'worked toward a so-
lution. Nasher offi-
with of the
rich and arts
valnms, have overblmvn the
and \'ilified 'Iet-
tanlaIlt.
cussions have been StallL'ii"
In Dallus attorney
""n\lf!lmp you can
and newcreattvttv
oeoole into the "'4UClILlV'
"'" ,,,,,'v that out """",",,,+hi,,,..
that has been stalled,"
Most of the
tower's rondos
in
proven
JACK HAT-
THEWS;s
oned sev-
eral poten-
tia!
interested
in Museum
Tower.
Continued trom Page \A
ment. In an email eXl:hwlge,
administrator
is sold out and that
e.xcited and
feels likethe MuseumToweris
EXHIBIT "E"
South
stroot.
More
the Offini
Hotelat the convention
center.
I've worked
it
o v e r ~
but hard to
sure there are win-win
said.
st homPSOfl@daIJasflIilWS.COm:
gjacobson(i»daJlfJ5flews.com
Uta Stlll/S,,,tf POO!<>I/,,,!>twt
Museum Tower, seen from Klyde W<lrren Park. Is scheduled toh<lveits opening cli/lli/OratlonThursday: Most of the tower's
condos range in price from about $1million to about $4 minion.
EXHIBIT "E"
A DAILV CONVr;:RSATlON ABOUTDALLAS
Renzo Piano Threatens To Take IVIllseumTower to
Court
Tim Rooers
Perhaps by now my
MuseumTower and it is the Nasher
JI.:·'''l.!J'lLU,t' Center. There's one aspect of the story
address in the two
go to I don't think that ,,,,,ill happen for several
reasons, not the least ofwhich is David Haemisegger,
president of both NorthPark Management Company and the
Nasher's board, doesn't want to sue. But, a Iawsuit
within the realm of possibility.
Moee than one person told me that a on
the Museum Tower side could run to million. How do
you attach a brise solei! to a 42-story building that was never
intended to support such a structure? The fL'[ would be expensive, And it would wipe out any
that the building's owner, the Dallas Police & Fire Pension System, could hope to reap. In
fact, it could put the project in the red. So they won't W'ant to fL>:: the problem on their side.
On the other you (among others) Piano. The famed architect who designed the
Nasher told me that he will not change his roof. "\'Vhat we can do is make a blind roof, » he said.
"But I "ill never. Not out of respect for mywork and out of respect for the legacy of Ray Nasher. I
will never." And, even if he did change his roof, that \....,ouldn't save the garden, which is right now
being cooked by ?...'1useum Tower.
EXHIBIT "F"
acknowledged the matter to court has crossed his mind. "Those people
[meaning the Tower's designers, developers, owners] don't understand that we \\111 make
trouble for them if they don't find a solution, Piano there is any need of action, that
be done, of course. Nobody should think that they can destroy a building or an institution like
this withcut any problem.
So whar 'wouldhappen if the Nasher brought a nuisance claim against Museum One
lawyer I talked to said that the woeld lose.
XYJill1am..MlmJ21YmJ;h is an Austin construction lawyer with some skins on the walt \\''hen I put the
quesuon to him, he was in.itiany puzzled. He
J
d never handled such a "light trespass" case before.
could he call one to mind. So he did what any smart guy with skins on the wall would do: he
had some junior do a \vhole bunch of workfor him to try to figure it out. Allensworth
was kind enough to send me a report on his findings.. You can But here's the
upshot:
prevail in a nuisance claim, the Nasher would have to showthat the Museum Tower developers
invaded the Nasher's interest in its land by conduct that was: 1) negligent; 2) intentional and
unreasonable; or 3) abnormal and out of place in surroundings.
Allensworth's young associate wrote: "The developer was probably not negligent in constructing
the newbuilding because it did not owe a legal duty to the museum. Additionally,even ifthe
del,reloper'sconduct was intentional, ... commercial development is not an unreasonable activity,
Finally, commercial construction would not qualify as abnormal and out of place in the
surroundings."
Vv
l
1"lat' s more, nuisance law on an objective standard. It doesn't protect an "ultra-sensitive
property owner." That pretty well describes the Nasher.
As I say, though, all the forgoing is probably a moot issue. This thing is going to be decided in the
court of public opinion, where different rules apply.
EXHIBIT "F"
be
Callas, Texas, Thursday. october 2.5.2012
NASHER ", ...",n:r;;
CONTROVERSY
L e
quits
mediator
By MICHAEL GRANBERRY
and GARY JACOBSON
Staff
Luce cited
.differences
with the own-
TOM LUCE of the
4</'.- storv luxu-
ry condo tower in a
email sent at 5:03 a.m, in
whieh he blamed his resiana-
tionon ad-
ministrator for the Dallas Po-
lice & Fire Pension
owns $200 million
residential enclave.
Luces departure came one
lUtwllUgS to bro-
settlement between the
Nasher Sculp-
ture Center
and Museum
See,RAWLINGS Page 12A
EXHIBIT "G"
Rawlings says he's sho d
tum ofevents in dispute
the
fund
words,
an idea
mgranberry@da!lasnews,com;
gjacobson@'da!!asnews.com
Cost, Rawlings
issue, "This
thing in which we
of the Nasher the
ness success ofMuseumTower,"
In the end, he said, he wants
U everybody to hold hands and
we're to have a great
successful tower and a great mu-
seum. I want everybody to feel
good about that, going forward."
Staff writer Rudolph Bush con-
tributedto this report
me:
He then singled out Tettarnant
by saying; ''1don't know why one
individual is them-
selves from the policeand fire like
this,"
Glare controversies are noth-
ing new in the architecture world.
One arose over FrankGehrys de-
sign of the Walt Disney Concert
Hall in Los but that dis-
In to louvers tnat enai-
neers could apply to the
facing glass of Museum Tower,
the chief being a me-
chanical system used on a build-
Germany,Rawlings said he
in success of this
[Museum Tower]. And to have
one individual on their be-
Officials for the
have offered to, in
"fix" the Nasher roof,
Nasher officials have vehemently
rejected, DespitecitingRenzoPi-
ano, "the world-class architect
application in a war
invested in working with
Museuru'Iower."
In an interview'Iuesday night,
hours after the pension boardhad
toured the Nasher, where Tetta-
mant disavowed a "louvered" so-
lutionthat has been months in the
making and would limit the cost
to $10 million, Rawlings said he
was "a little shocked this. The
of this conversation has
one of openness with each
other and trying to find a solu-
tion:
"With this tactic of being open
and bringing in specialists that
rule out any solutions before
EXHIBIT "G"
In a letter sent Wednlesday
ternoonto MuseumTower home-
owners, Tettamantwrotethat on-
ly a "handful" of potential solu-
tions remain, They he
wrote, so ad-
of the Nasher's
and the son-in-lawof the center's
founder, the late Raymond Nash
er, responded to Luces departure
by praising Luce and lamenting
the time that's without a
"Forthepast sixmonths at the
request of Mayor Rawlings, Tom
has worked diligently and tire-
lesslyfor the benefitof the people
of Dallas members ofthe
Dallas and Fire Pension
solution to
percent.
,2010agreement between Muse-
um Tower and another
limits to 35
Luce
Facebook
10m for re-
"m;cu,v", he must
leadership on both sides
forthright and
issue, Unfortu-
'We
the mayor didn't
work"
In his
'Iettarnant
recent events have made dear
that the conditions and un-
which I to serve to
find a mutually beneficial
for all arc not be-
adhered to you. This sad-
dens me because I believethis is
such an issue for our
with the
our wonder-
Continued from PagelA
an inter-
view that leadership on both
sides needs to operate with the
"same sense of a barb
directed at the pension fund.
Tettamant countered by say-
"We are that Tom Luce
he was to continue as
the towards
at a collaborative, reasonable,
solution to the reflec-
tion of the Museum Tower onto
the Nasher Center and
thank Mr. hisservice."
dav after a busload of'Iettamants
members and hired con-
sultants took an afternoon lour of
the Nasher in which
evidence of
emanat-
reflective

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