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CAUSE NO.

_

Plaintiff,

§ §

§ IN THE DISTRICT COURT OF § TRA VIS COUNTY, TEXAS

§

§

§

§ JUDICIAL DISTRICT

§

§

HEARST NEWSPAPERS, LLC, d/b/a The Houston Chronicle,

v.

Rick PERRY, in his official capacity as Governor of the State of Texas,

Defendant.

PLAINTIFF'S ORIGINAL PETITION FOR MANDAMUS AND DECLARATORY JUDGMENT

TO THE HONORABLE COURT:

Hearst Newspapers, LLC, d/b/a The Houston Chronicle (the "Chronicle"), files this

Original Petition for Mandamus and Declaratory Judgment against Rick Perry, in his official

capacity as Governor of the State of Texas (the "Governor"), and would respectfully show the

Court the following:

I

DISCOVERY CONTROL PLAN

1. Pursuant to Rule 190.1 of the Texas Rules of Civil Procedure, Plaintiff intends to

conduct discovery in this case under level 2.

II

INTRODUCTION

2. As set forth herein, the Chronicle filed a Public Information Act request with the

Governor for certain information concerning the February 17,2004 execution of Cameron Todd

Willingham (the "Willingham Execution"). The Governor raised only one objection to the

request, concerning the disclosure of email addresses. After that single, limited objection was resolved by agreement with the Chronicle, the Governor represented that it would produce responsive materials.

3. Instead, contrary to its representations, the Governor secretly removed certain key

responsive documents from its production without notifying the Chronicle of its grounds for doing so, or even that any documents were being removed in the first place. Only when the Chronicle inquired about certain documents apparently missing from the Governor's production did the Governor's office belatedly inform the Chronicle that it had withheld certain purportedly privileged documents.

III PARTIES

4. Plaintiff Hearst Newspapers, LLC is a Delaware limited liability company. The

Houston Chronicle is a daily newspaper of general circulation in the City of Houston and State of Texas. The Chronicle's business address is 801 Texas Avenue, Houston, Texas. The Chronicle is a "requestor" within the meaning of the Texas Public Information Act. Tex. Gov't Code Ann. § 552.003(6).

5. Defendant Rick Perry is the Governor of Texas and may be served at the office of

his general counsel, 1100 San Jacinto, Austin, Texas 78701.

IV JURISDICTION AND VENUE

6. This Court has jurisdiction pursuant to Section 552.321(a) of the Texas

Government Code, which allows a requestor of public information to tile suit in a district court for mandamus to compel a governmental body to make information available for public

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inspection if the governmental body does not request an Attorney General decision in the appropriate time or refuses to supply the public information, This Court also has jurisdiction pursuant to the Texas Uniform Declaratory Judgments Act. Tex. Civ, Prac. & Rem. Code § 37.001 et seq.

7. Venue is proper in Travis County, Texas pursuant to Section 552.321(b) of the

Texas Government Code and Section 15.015 of the Texas Civil Practice & Remedies Code because the Governor's main offices are located in Austin, Texas.

V

FACTS AND AUTHORITIES

8. The Chronicle brings this suit under the Texas Public Information Act, Tex. Gov't

Code § 552.001, et seq. (the "Public Information Act"), for the release of certain public records held by the Governor.

9. By email dated August 31,2009, the Chronicle, through its reporter Lise Olsen,

submitted a Public Information Act request to the Governor (the "Request," a true and correct copy of which is annexed hereto as Exhibit A). Specifically, the Chronicle sought copies of "all requests for reprieve/pardon/clemency and related correspondence or e-mails submitted to the Governor's Office related to" the Willingham Execution, and "the governor's official response(s) as well as internal correspondence or e-mails related to consideration of the request for reprieve/pardon/clemency, including any case summary and attachments prepared by the attorney general's office or other government officials for the governor about the Willingham case" (hereinafter, collectively, the "Willingham Records").

10. The Governor, through its counsel, Mark Adams, responded to the Request by

electronic mail dated September 16,2009. In that emailc Mr. Adams asked if the Chronicle

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would be willing "to redact personal email addresses." The email further stated, "It is perfectly fine if you do not agree to these redactions; however if that is the case we would request a ruling from the Attorney General in which we would seek to protect such information." The e-mail set forth no other grounds for resisting disclosure of any of the Willingham Records and omitted to state any other basis on which the Governor intended to withhold responsive documents. A true and correct copy ofthe Governor's September 16, 2009 response is annexed hereto as Exhibit B.

11. On September 17,2009, Ms. Olsen replied to Mr. Adams's email, stating,

"Without conceding that these personal e-mails are not public information, I am willing to agree to these redactions to speed the processing of this request." Ms. Olsen continued, "I assume names and other descriptive information included in the e-mails will not be redacted." Mr. Adams replied later on September 17,2009: "Great. Thank you very much." A true and correct copy ofthe September 17, 2009 email exchange is annexed hereto as Exhibit C.

12. On or about September 17, 2009, Mr. Adams notified Ms. Olsen by telephone that

on September 16,2009, the Governor had filed a public information decision request with the Attorney General concerning the redaction of email addresses (the "September 16 Request"), and that in view of the Chronicle's agreement to permit the Governor to redact the email addresses, the Governor would withdraw the September 16 Request. Mr. Adams omitted to state that the Governor intended to withhold responsive documents on any other basis. To date, the Governor has not provided the Chronicle with a copy of the September 16 Request.

13. On or about September 28,2009, the Governor, through Mr. Adams, sent a letter

to the Attorney General (copying the Chronicle) (the "September 28 Letter," a true and correct copy of which is annexed hereto as Exhibit D), in which the Governor advised the Attorney

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General that it was withdrawing the September 16 Request. The September 28 letter states, in

relevant part,

The Office of the Governor on September 16, 2009 sent your office an initial Public Information Decision Request regarding some responsive documents. After reviewing the documents, our office is withdrawing our initial request and providing the documents to the requestor.

The September 28 Letter omitted to state the grounds on which the Governor apparently had

made the September 16 Request, or the reasons for withdrawing that request. The September 28

Letter also omitted to state that the Governor intended to withhold or redact any responsive

documents.

14. On October 1,2009', Ms. Olsen received an email sent on behalfofMr. Adams.

That email stated that the request "yielded 883 pages ofresponsive material" and that "[ujpon

receipt of payment, we will provide you with the responsive materials" (emphasis added). The

email omitted to state that the Governor intended to redact or withhold any responsive material

or the grounds for such removal. A true and correct copy of the October 1, 2009 email is

annexed hereto as Exhibit E.

15. The Chronicle received certain responsive documents on or about October 7,

2009. The October 5, 2009 transmittal letter accompanying these documents omitted to state

that certain responsive documents had been removed or the grounds for such removal, A true

and correct copy of the transmittal letter is annexed hereto as Exhibit F.

16. A review of the materials produced by the Governor suggested that the production

was incomplete. On October 7, 2009, Ms. Olsen contacted Mr. Adams by email to inquire about

the certain documents that had not been produced (the "October 7 Olsen Email," a true and

correct copy of which is annexed hereto as Exhibit G). That email reads:

I see no staff summaries, recommendations or commentary from

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the governor's staff ill the file at all regarding the case. It seems unlikely that the governor had time to read all 800 pages of material. Can you explain why there are no summaries, recommendations or commentary included?

17. In response to the October 7 Olsen Email, the Governor, for the first time,

disclosed that some unknown number of key responsive documents had been secretly removed

from the materials produced to the Chronicle. In an October 7, 2009 email from Mr. Adams (the

"October 7 Adams Email," a true and correct copy of which is annexed hereto as Exhibit H), the

Governor stated,

All of the material that falls within that description has been the subject ofa previous PIR. At that time we submitted a brief to the AG's office requesting that the information be protected under the attorney-client privilege exception. The AG's Office issued a ruling in April of this year in which they agreed that those documents were protected by the attorney-client privilege. Once the AG's Office has made a ruling on whether or not the PIA requires disclosure of particular documents, that ruling is dispositive as far as those particular documents are concerned.

18. The October 7 Adams Email included a link to an April 8, 2009 opinion letter

from Matt Entsminger, Assistant Attorney General, to Katherine R. Fite, counsel to the Governor

(the "April 9 Opinion," a true and correct copy of which is annexed hereto as Exhibit I). In the

April 9 Opinion, the Attorney General's office expressed its view that based on the governor's

representation: that two documents, submitted ex parte in connection with the April 9 Opinion,

were "attorney-client communications made in furtherance of the rendition of professional legal

services to the governor," those documents "are protected by the attorney-client privilege and

may therefore be withheld from disclosure pursuant to section 552.107(1) of the Government

Code."1 The April 9 Opinion goes on to state, "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

The April 9 Opinion also held that two other documents "must be withheld from disclosure pursuant to section 552.10 1 of the Government Code."

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ruling must not be relied upon as a previous determination regarding any other information or any other circumstances."

19. The Chronicle brings this action to protect its right of public access.

20. The Governor is a "governmental body" and must comply with the Public Information Act. Tex. Gov't Code Ann. § 552.003(1)(A)(i).

21. The Willingham Records are "public information." Tex. Gov't Code Ann. §

552.002(a)(1 ).

22. The Governor bears the burden of proving an exception to disclosure applies.

23. The Willingham Records must be released because (i) the Governor failed to provide the Chronicle with a copy of the September 16 Request, (ij) the Governor failed to request an Attorney General opinion that the Willingham Records are protected by the attorneyclient privilege, (iii) the Governor failed to notify the Chronicle within 10 business days of receiving the Chronicle's Request that it intended to withhold the Willingham Records pursuant to a claim of attorney-client privilege or any other exemption from disclosure, and (iv) no compelling reason exists to withhold the Willingham Records. Tex. Gov't Code Ann. §§ 552.301,552.302,552.326.

24. Alternatively, the Willingham Records must be released because they (i) are not

exempt from disclosure under the April 9 Opinion, (it) are not protected by the attorney-client privilege in any event. Tex. Gov't Code Ann. § 552.107(1).

COUNT ONE: MANDAMUS

25. The Chronicle repeats and re-alleges the allegations contained in paragraphs]

through 24, as if fully set forth herein.

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26. The requested information is subject to disclosure under the Public Information

Act and no exemption applies.

27. The remedy of mandamus is specifically available to the Chronicle pursuant to

Tex. Gov't Code § 552.321. Mandamus should issue compelling the Govemor to make the requested information available for inspection because the Govemor failed to notify the Chronicle within 10 business days of receiving the Request that it intended to withhold the Willingham Records pursuant to a claim of attorney-client privilege or any other exemption from disclosure, because no compelling reason exists to withhold the information, and because the Governor refused to supply public information not exempt from disclosure.

COUNT TWO: DECLARATORY JUDGMENT

28. The Chronicle repeats and re-alleges the allegations contained in paragraphs 1

through 27, as if fully set forth herein.

29. The Governor is not in compliance with the Texas Public Information Act by

reason of failing to release requested public information. The Chronicle seeks a declaratory judgment that the requested information is subject to disclosure under the Public Information Act and no exemption applies.

30. The Chronicle is entitled to a declaratory judgment regardless of whether or not

additional relief is or could be claimed, whether by mandamus or otherwise. Tex. Civ. Prac. & Rem. Code § 37.003(a).

31. The Chronicle accordingly requests a declaration from this Court by final order

that the requested information is public information and not subject to any exemption to the Public Information Act.

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COUNT THREE: COSTS AND ATTORNEYS' FEES

32. The Chronicle repeats and re-alleges the allegations contained in paragraphs 1

through 31, as if fully set forth herein.

33. The Chronicle seeks an award of its costs and reasonable attorneys' fees pursuant

to the express authority granted in the Public Information Act, Tex. Gov't Code § 552.323, and the Declaratory Judgments Act, Tex. Civ. Prac. & Rem. Code § 37.009. The Chronicle should substantially prevail in this action and the Governor did not act in reasonable reliance on a judgment or order of a court, the published opinion of an appellate court, or a written decision of the Attorney General.

WHEREFORE, PREMISES CONSIDERED, Hearst Newspapers, LLC d/b/a The Houston Chronicle, respectfully requests that the Court set the foregoing matters for a full and final hearing at the earliest possible date, and, upon final hearing, grant the following relief to the Chronicle:

1. entry of an order of mandamus compelling the Governor to produce the information requested;

2. entry of a final judgment declaring that the information requested is public information and not subject to any exemption to the Public Information Act;

3. an award granting the Chronicle judgment of and from the Governor for the Chronicle's reasonable attorneys' fees, court costs and costs of litigation; and

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4. such other and further relief, whether at law or in equity, as the Chronicle may be

entitled to receive.

DATED this 27th day of October, 2009.

Respectfully Submitted,

·~l~-l\vj"\l~~~)h4A(LCl-

JqnatI1'fm Donnellan (State Bar No. 24063660) St{eph~n H, Yuhan

O'ffi6'e of General Counsel

THE HEARST CORPORATION 300 West 57th Street

New York, NY 10019 Telephone: 212-649-2020 Facsimile: 212·649-2035

ATTORNEYS FOR PLAINTIFF, HEARST NEWSPAPERS, LLC

CERTIFICATE OF SERVICE

r hereby certify that a true and correct copy of the foregoing Original Petition has been forwarded to counsel of record by U.S. First Class Mail and/or facsimile on this the 27th day of October, 2009 as follows:

Mark Adams, Esq.

Office of Texas Governor Rick Perry General Counsel's Office

P.O. Box 12428

1100 San Jacinto Austin, Texas 78711

Jonathan Donnellan

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Exhibit A

Olsen. Lise

From:

Sent:

To:

Cc:

Subject:

Olsen, Lise

Monday, August 31,20096:12 PM 'publicrecords@governor.state.tx.us' Petchel, Jacquee; Turner, Alan Public Records request

Office of the Governor Public Information Request General Counsel Division P.O. Box 12428

Austin, TX 78711

August 31, 2009-08-31

Under the Texas Public Information Act, I request copies of all requests for reprieve/pardon/clemency and related correspondence or e-mails submitted to the Governor's Office related to the execution on February 17, 2004 of Cameron Willingham, TDCJ 999041. I also request the governor's official response{s) as well as internal correspondence or e-rnails related to consideration of the request for reprieve/pardon/clemency, including any case sum mary and attachments prepared by the attorney general's office or other government officials for the governor about the Willingham case.

Lise Olsen Special Projects

The Houston Chronicle (713) 362-7462 lise.olsen@chron.com

1

Exhibit B

Page 1 of 1

Olsen, Lise

From:

Sent:

To:

Mark Adams [mark.adams@governor.state.tx.us] Wednesday, September 16, 2009 11 :04 AM Olsen, Lise

Subject: public information request for Willingham documents

Ms. Olsen,

Regarding your recent public information request in which you ask for documents pertaining to Cameron Willingham, I am writing to see if we have your permission to redact personal email addresses. It is perfectly fine if you do not agree to these redactions; however if that is the case we would request a ruling from the Attorney General in which we would seek to protect such information.

I was also writing to see if you could call me today to discuss the size and cost of your request. We have approximately 500 pages of letters and emails that the Office of the Governor received in 2004 from citizens across the world informing the governor of their position on the matter. The cost for these documents would be approximately $50.00 (10 cents per page). I wanted to find out if you wanted these documents along with the other documents that are responsive to your request. My direct line is 512-463-6614.

Thanks,

Mark Adams

Office of Texas Governor Rick Perry General Counsel's Office

P.O. Box 12428

1100 San Jacinto

Austin, Texas 78711

(512) 463-1788

318-794-1170 (cell)

Unless otherwise indicated Of obvious from the nature of this transmittal, the information contained in this email message is attorney-client privileged and confidential. Any unauthorized review, use, disclosure or distribution is prohibited without the express authorization of the Office of the Governor.

10/2112009

Exhibit C

Page 1 of2

Olsen, Lise

From: Mark Adams [mark.adams@governor.state.tx.us]

Sent: Thursday, September 17, 20099:39 AM

To: Olsen, Lise

Subject: RE: public information request for Willingham documents

Great. Thank you very much. - Mark

From: Olsen, Use [mailto:Lise.Olsen@chron,com] Sent: Thursday, September 17, 2009 9:37 AM To: Mark Adams

Subject: RE: public information request for Willingham documents

Hi Mark-

I was traveling most of yesterday and just received your e-mail. Without conceding that these personal e-mails are not public information, I am willing to agree to these redactions to speed the processing of this request. I assume names and other descriptive information included in the e-mails will not be redacted.

I am happy to pay for copies of e-rnails you describe as well.

Lise

Lise Olsen Special Projects

The Houston Chronicle (713) 362-7462 fise.olsen@chron.com

From: Mark Adams [mailto:mark.adams@governor.state.tx.us] Sent: Wednesday, September 16, 2009 11:04 AM

To: Olsen, Lise

Subject: public information request for Willingham documents

Ms. Olsen,

Regarding your recent public information request in which you ask for documents pertaining to Cameron Willingham, I am writing to see if we have your permission to redact personal email addresses. It is perfectly fine if you do not agree to these redactions; however if that is the case we would request a ruling from the Attorney General in which we would seek to protect such information.

I was also writing to see if you could call me today to discuss the size and cost of your request. We have approximately 500 pages of letters and ernails that the Office of the Governor received in 2004 from citizens across the world informing the governor of their position on the matter. The cost for these documents would be approximately $50.00 (10 cents per page). I wanted to find out if you wanted these documents along with the other documents that are responsive to your request. My direct line is 512-463-6614.

Thanks,

Mark Adams

Office of Texas Governor Rick Perry General Counsel's Office

P.O. Box 12428

1100 San Jacinto

10121l2.009

Exhibit D

~~~'~.'_m_"_. ~~_._ •• __ •• __ , •. _._.,_"._._~~,_., __ ".,~_~~.~

----~--~ ... --.- .. - ··-~·----·~---I

I

I

OFFICE OF THE GOVERNOR

HlCI( [,ERRY

GOVERNOI\

September 23,2009

Via Interagency Mail

The Honorable Greg Abbott Texas Attorney General P.O. Box 12548

Austin, Texas 78711-2548

Attn.: Amanda Crawford

RE: WlTHDRA WAL OF PUBLIC lNFORMA nON DECISION REQUEST

I

i I

I

I

i

I

Dear General Abbott:

The Office of the Governor received on September I, 2009 a public information request from Lise Olsen. Specifically, the request was for:

I request copies of all requests for reprieve/pardon/clemency and related correspondence or e-mails submitted to the Governor's Office related to the execution on February 17, 2004 of Cameron Willingham, TDCJ 999041. J also request the governor's official response(s) as well as internal correspondence or e-mails related to consideration of the request for reprieve/pardon/clemency, including any case summary and attachments prepared by the attorney general's office or other government officials for the governor about the Willingham case.

The Office of the Governor on September 16) 2009 sent your office an initial Public Information Decision Request regarding some responsive documents. After reviewing the documents, our office is withdrawing our initial request and providing the documents to the requestor.

If you have any questions or need additional information, you may contact me at the address below or at (512) 463-1788.

Mark Adams

Office' of the General Counsel

POST OFFICI, Box 12428 l\USTIN, TI'x,-\, 78711 (512)463-2000 (VOiCIi)/f)IAI. 7-1-1 FOil RI;I.\\, SI"1\'IC", V'oIT WW\\,.TIiXA,ONI.IXF,.CO;l Tilli OmCl,II. WIlli SITI' OF THE STilTf. OF TEX"S

i

I I )

I

I

I

cc: Lise Olsen

The Houston Chronicle

Enclosure: .

Copy of Pllc

Exhibit E

Page 1 of 1

Olsen, Lise

From:

Sent:

To:

Lucy Nashed [Iucy.nashed@governor.state.tx.us] Thursday, October 01, 20093:04 PM

Olsen, Use

SubjectPIR Olsen 488-09 Attachments: OLSEN_ 488.pdf

September 28, 2009

Ms. Lise Olsen

The Houston Chronicle (lise.o/sen@chron.com)

Dear Ms. Olsen:

We received on September 1, 2009 your request under the Public Information Act (the !telA") for the following information:

I request copies of all requests for reprieve/pardon/clemency and related correspondence or emails submitted to the Governor's Office related to the execution on February 17, 2004 of Cameron Willingham, TDCJ 999041. I also request the governor's official response(s) as well as internal correspondence or e-mails related to consideration of the request for reprieve/pardon/clemency, including any case summary and attachments prepared by the attorney general's office or other government officials for the governor about the Willingham case.

Your request yielded 883 pages of responsive material. The cost for copying these materials is $88.30 (at $0.10 per page).

Upon receipt of payment, we will provide you with the responsive materials. You may send a check (made payable to "Office of the Governor") to me with a copy of this letter and I will mail the materials to you. Or, if you prefer, you may deliver a check in person and pick the materials up at that time. If you elect to pick the materials up, please contact me at the telephone number below so that I can arrange to have a packet ready when you arrive.

If you have any questions or need additional information, you may contact me at the address below or at (512) 463-1788.

Sincerely,

Mark Adams

Office of the General Counsel

1 ,,1'"11 I'"I"{\()

Exhibit F

PIC THf

October 5, 2009

M" Lise O!::;en

The Houston Chronicle (tisv.olsenuiclrron.cant)

Dear Ms. Olsen;

Werece.ved on September 1,2009 your request under the Public Infonnnrion Act (the 'TJA") for the following information:

I ;'CI.j\lcst COpi0S of 8.1.1 requests for reprieve/pardon/clemency and related correspondence or e-rnai h submitted to the Ci()\(':'nor'" Office related to rhe execution on February 17, 2004 of Cameron \VilLngham, 'IDCi 999041. 1 also requc- l the govcrnors official responsers) as well as internal correspondence Or e-rnails related to consideration of the request for reprieve/pardon/clemency, inc luding :my case summary and artachments prepared by the attorney genera i' s office or other government officials for the governor about the Willingham casco

Your request yielded 883 pages of responsive material. The cost for copying these materials is $8830 (at $0.10 per page) and we have received your payment.

! f yOll have any questions or need additional information, you may contact me at the address below or at (512) 463-1788,

Sincerely,

Mark Adams

Office of the General Counsel

Lise Olsen

Date

Exhibit G

Constituens' e-mails in Willingham file

Page 1 of3

Olsen, Use

From: Olsen, Lise

Sent: Wednesday, October 07, 2009 1 :07 PM

To: 'Mark Adams'

Subject: RE: Constituens' e-mails in Willingham file

Mark:

I see no staff summaries, recommendations or commentary from the governor's staff in the file at all regarding the case. It seems unlikely that the governor had time to read all 800 pages of material.

Can you explain why there are no summaries, recommendations or commentary included?

Lise Olsen Special Projects

The Houston Chronicle (713) 362-7462 lise.olsen@chron.com

From: Mark Adams [mailto:mark.adams@governor.state.tx.us] Sent: Wednesday, October 07,2009 11:13 AM

To: Olsen, Lise

Subject: RE: Constituens' e-mails in Willingham file

Lise,

Okay. Don't hesitate to let me know if! can make something clearer for you or if you still have concerns.

- Mark

From: Olsen, Lise [mailto:Lise.Olsen@chron,com] Sent: Wednesday, October 07,2009 11:08 AM To: Mark Adams

Subject: RE: Constituens' e-rnails in Willingham file

Mark-

When I looked at the e-mails there are many pages that have a blank message and are stamped "information redacted" but in analyzing them further, I think what may have happened is that the messages were printed on a separate page without the header information. I'll look harder at this as I go - just got the information a few minutes ago and seeing so many blank messages prompted that message, but I think I can resolve it by pairing the header pages with the messages.

Lise Olsen Special Projects

The Houston Chronicle (713) 362-7462 lise.olsen@chron.com

From: Mark Adams [mailto:mark.adams@governor.state.tx.us] sent: Wednesday, October 07,2009 11:01 AM

To: Olsen, Lise

Constituens' e-maiIs in Willingham file Subject: RE: Constituens' e-rnalls in Willingham file

Page 2 of3

Lise, 1 will be happy to look into that for you. Can you please tell 11'1e the page numbers (or at least a sampling of the page numbers) you are referring to'?

Thanks.

Mark Adams

Office of Texas Governor Rick Perry General Counsel's Office

P.O. Box 12428

1100 San Jacinto

Austin, Texas 78711

(512) 463-1788

318-794-1170 (cell)

Unless otherwise indicated or obvious from the nature of this transmittal, the information contained in this email message is attorney-client privileged and confidential. Any unauthorized review, use, disclosure or distribution is prohibited without the express authorization of the Office of the Governor.

From: Olsen, Lise [matlto.ljse.Olsenrdichron.com] sent: Wednesday, October 07,2009 10:58 AM To: Mark Adams

Subject: Constituens' e-malls in Willingham file

Mark:

There are many constituents' e-mails where the entire message was redacted without explanation of why. Though I agreed to redacting personal e-mail addresse_$..ldid not agree to redaction of the entire content of those emails. Can you please explain?

Lise Olsen

Special Projects

The Houston Chronicle

(713) 362-7462

lise.olsen@chron.com

This e-mail message is intended only for the personal use of the recipient(s) named above. If you are not an intended recipient, you may not review, copy or distribute this message.

If you have received this communication in error, please

notify the sender immediately bye-mail and delete the original message.

========================================================

This e-mail message is intended only for the personal use of the recipient(s) named above. If you are not

Constituens' e-mails in Willingham file

an intended recipient, you may not review, copy or distribute this message.

If you have received this communication in error, please

notify the sender irr~ediately bye-mail and delete the original message.

Page 3 of3

Exhibit H

Constituens' e-mails in Willingham file

Page 1 of3

Olsen, Lise

From: Mark Adams [mark.adams@governor.state.tx.us]

Sent: Wednesday, October 07, 2009 1 :32 PM

To: Olsen, Lise

Subject: RE: Constituens' e-mails in Willingham fife

Lise,

All the material that falls within that description has been the subject of a previous PfR. At that time we submitted a brief to the AG's office requesting that the information be protected under the attorneyclient privilege exception. The AG's Office issued a ruling in April of this year in which they agreed that those documents were protected by the attorney-cHent privilege. Once the AG's Office has made a ruling on whether or not the PIA requires disclosure of particular documents, that ruling is dispositive as far as those particular documents are concerned. You may access the AG's opinion here:

- Mark Adams

From: Olsen, Lise [mailto:Use.Olsen@chron.com] Sent: Wednesday, October 07, 2009 1:07 PM

To: Mark Adams

Subject: RE: Constituens' e-rnails in Willingham file

Mark:

J see no staff summaries, recommendations or commentary from the governor's staff in the file at all regarding the case. It seems unlikely that the governor had time to read all 800 pages of material.

Can you explain why there are no summaries, recommendations or commentary included?

Lise Olsen Special Projects

The Houston Chronicle (713) 362-7462 lise.olsen@chron.com

From: Mark Adams [mailto:mark.adams@governoLstate.tx.us] Sent: Wednesday, October 07,2009 11:13 AM

To: Olsen, Lise

Subject: RE: Constituens' e-rnails in Willingham file

Lise,

Okay. Don't hesitate to let me know if I can make something dearer for you or if you still have concerns.

- Mark

From: Olsen, Use [mallto:Use.O!sen@chron.com] Sent: Wednesday, October 07,2009 11:08 AM To: Mark Adams

Subject: RE: Constituens' e-rnails in Willingham file

Mark-

Constituens' e-mails in Willingham file

Page 2 of3

When llooked at the e-mails there are many pages that have a blank message and are stamped «information redacted" but in analyzing them further, 1 think what may have happened is that the messages were printed on a separate page without the header information. I'll look harder at this as I go - just got the information a few minutes ago and seeing so many blank messages prompted that message, but I think I can resolve it by pairing the header pages with the messages.

Lise Olsen Special Projects

The Houston Chronicle (713) 362-7462 lise.olsen@chron.com

From: Mark Adams [mailto:mark.adams@governor.state.tx.us] Sent: Wednesday, October 07, 2009 11:01 AM

To: Olsen, Lise

Subject: RE: Constituens' e-rnails in Willingham file

Lise, I wifl be happy to look into that for you. Can you please tell me the page numbers (or at least a sampling of the page numbers) you are referring to?

Thanks,

Mark Adams

Office of Texas Governor Rick Perry General Counsel's Office

P,O. Box 12428

1100 San Jacinto

Austin, Texas 78711

(512) 463-1788

318-794-1170 (cell)

Unless otherwise indicated or obvious from the nature of this transmittal, the information contained in this email message is attorney-client privileged and confidential. Any unauthorized review, use, disclosure or distribution is prohibited without the express authorization of the Office of the Governor.

From: Olsen, Use [mailto:Use.Olsen@chron,com] Sent: Wednesday, October 07, 2009 10:58 AM To: Mark Adams

Subject: Constituens' e-rnalts in Willingham file

Mark:

There are many constituents' e-mails where the entire message was redacted without explanation of why. Though I agreed to redacting personal e-mail addresses.ldid not agree to redaction of the entire content of those emails. Can you please explain?

Lise Olsen

Special Projects

Constituens' e-mails in Willingham file The Houston Chronicle

(713) 362-7462

Jise.olsen@chron.com

========================================================

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Page 3 of3

Exhibit I

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ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

April 8, 2009

Ms. Katherine R. Fite Assistant General Counsel Office of the Governor P.O. Box 12428

Austin, Texas 78711

0R2009~04633

Dear Ms. Fite:

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# 340145.

The Office of the Governor (the "governor") received a request for information related to the execution of a named individual. You state most of the requested information will be released to the requestor. You claim that the submitted information is excepted from disclosure under sections 552.101, 552.107, and 552.111 of the Government Code. L We have considered the exceptions you claim and reviewed the submitted information. We have

" ..••....• ,. ". __ ···c ·c..

also considered comments submitted by the Texas Board of Pardons and Paroles (the

"board"). See Gov't Code § 552.304 (interested party may submit comments stating why information should or should not be released).

Section 552.1 0 1 ofthe Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Id. § 552.101. Section 552.101 encompasses information protected by other statutes, such as section 508.313 of the Government Code, which provides in part:

1 Although you raise section 552.101 in conjunction with rule 503 of the Texas Rules of Evidence, this office has concluded that section 552.10 1 does not encompass discovery privileges. -See Open Records Decision No. 676 at 1-2 (2002).

POST OFFICE Box 12548. AUS1'lN, TEXAS 78711-2548 TEL: (512)463·2100 WWW.OAG.STllTE.TX,US An Equal Employuurn 0pPf}NUnity Employu· Printed tin. R~cycl~d P(tPfl'

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Ms. Katherine R. Fite - Page 2

(a) All information obtained and maintained [by the Texas Department of Criminal Justice], including a victim protest letter or other correspondence, a victim impact statement, a list ofinrnates eligible for release on parole, and an arrest record of an inmate, is confidential and privileged if the information relates to:

(1) an inmate of the institutional division [of the Texas Department of Criminal Justice] subject to release on parole, release to mandatory supervision, or executive clemency;

(2) a releasee; or

(3) a person directly identified in any proposed plan of release for an inmate,

(b) Statistical and general information relating to the parole and mandatory

~~~~--~~~---·~~t~:S!~~:~~:~i:~~~~~:~!:i:~~~fs:~~::~:s:~ c~~~l:~~~~~····-------·-··-··--··-~----- -~-~-I

privileged and must be made available forpublic inspection at any reasonable time.

(c) The [Texas Department of Criminal Justice], on request or in the normal course of official business, shall provide information that is confidential and privileged under Subsection (a) to:

(I) the governor;

(2) a member of the [board] or a parole commissioner;

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(3) the Criminal Justice Policy Council in performing duties of the council under Section 413.017 [of the Government Code]; or

(4) an eligible entity requesting information for a law enforcement, prosecutorial, correctional, clemency, or treatment purpose.

ld. § 508.3 13 (aHc). Section 508.313 requires the Texas Department of Criminal Justice (the "department") to transfer information to the governor for consideration in clemency matters; such a transfer does not affect the confidentiality ofthe information. See id. § 508,313(c). The governor and the board state that submitted Exhibits D and E were transferred by the board and the department to the governor for his consideration in a clemency matter. Accordingly, we determine that Exhibits D and E are confidential under section 508.3l3 of .

Ms. Katherine R. Fite - Page 3

the Government Code and must be withheld from disclosure pursuant to section 552,101 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 llieourden of proviillng the necessary facts to demonstrate llie elements brille prlvil·-::-eg".-e::----~----1 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. Id at 7. Second, the communication must have been made "for the purpose offacilitating the rendition of professional legal services" to the client governmental body. TEx. R. Bvro. 503(b)(l)' The privilege does not apply when an attorney 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 thanthat()f att()Il1ey):. Third,

..... -~~.~. ·~·~~the·-priv·ilege ... apPlies ·-oniy·-to·-communlcatlons~··beiween· ··O~ . among· . ciienis,client'--'~'----"-'-----I

representatives, lawyers, and lawyer representatives. See TEX. R. EVID. 503(b)(1). Thus, a governmental body must inform this office of the identities and capacities of the individuals' to whom each communication at issue has been made. Lastly, the attorney-client privilege applies only to a confidential communication, meaning it was "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. 503(a)(5). Whether a communication meets this definition depends on the intent of the parties involved at the time the information was communicated. Osborne v. Johnson, 954 S.W.2d 180, 184 (Tex. App.-Waco 1997, no writ). 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. We note that 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).

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You assert the memorandum in Exhibit B and notes in Exhibit C are attorney-client communications made in furtherance of the rendition of professional legal services to the governor. You further state that the communications were intended to be confidential and that their confidentiality has been maintained. Based on these representations and our review of the information, we agree that Exhibits B and C are protected by the attorney-client

2 As our ruling is dispositive, we need not address your remaining arguments against disclosure of this information.

Ms. Katherine R. Fite ~ Page 4

privilege and may therefore be withheld from disclosure pursuant to section 552.107 of the Government Code?

In summary, the governor must withhold Exhibits D and E under section 552.101 of the Government Code in conjunction with section 508.313 of the Government Code. The

governor may wiTIiliolCfEXli:i15iESB and~C unCler section 552-:-r0T5fll1eGovernmenf-coCl!"e.--------+

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 of the requestor. For more information concerning those rights and responsibilities. please visit our website at h:ttp:llwww.oag.state.tx.us/openiindex_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 1

--·-·--··~-Infoi1natr()n~undertlieAct mustbedrrected totheT~·o-st Rules Acl.ffiimstratOrof the OfficeoI-~----- i

the Attorney General at (512) 475-2497. '

Sincerely,

Matt Entsminger

Assistant Attorney General Open Records Division

MRE/dls

Ref: 1D# .340145

Ene. Submitted documents

c: Requestor

(w/o enclosures)

s As our ruling is dispositive, we need not address your remaining arguments against disclosure of this information.