Amalia Rodriguez-Mendo2 District Clerk Travis District No. _

11 October 3 P2:30






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PLAINTIFF'S ORIGINAL PETITION Plaintiff Magical Elves, Inc. ("Magical Elves") files this petition against Greg Abbott, in his official capacity as Attorney General for the State of Texas ("Attorney General") and would respectfully show the Court as follows: INTRODUCTION Magical Elves brings this action to protect confidential, proprietary information

("Confidential Information") from disclosure by the Office of the Governor ("OOG") in response to two requests under the Texas Public Information Act, TEX. GoV'T CODE §§ 552.001-.353 (Vernon 1994 & Vernon Supp. 2010) ("Act"). issued a letter ruling, OR2011-13668, On September 21, 2011, the Attorney General

that erroneously concluded that OOG was required to

release all of the responsive documents in its possession without redacting the Confidential Information. Information By this action, Magical Elves seeks a declaratory judgment that its Confidential is excepted from required public disclosure under Section 552.11 O(b) of the

Government Code and therefore must be redacted from any documents produced in response to the requests. DISCOVERY CONTROL PLAN 1. Discovery should be conducted under the Level 2 procedures of Rule 190 of the

Texas Rules of Civil Procedure.

PARTIES 2. Plaintiff Magical Elves, Inc. is a California corporation with its principal place of

business in Los Angeles, California. 3. Defendant Greg Abbott is the Attorney General of the State of Texas. The Open Defendant may be

Records Division of the Attorney General's Office issued 0R2011-13668. served with process at 209 West 14th Street, Austin, Texas 78701. NOTICE TO REQUESTORS 4.

Pursuant to Section 552.325(a) of the Government Code, Joe Tone and Peggy

Fikac, the individuals who requested the information at issue, are not named here as defendants. By copy of Plaintiff s Original Petition, they will be notified of the following: (1) the existence of this suit, the subject matter and cause number for this suit, and the court in which it has been filed; (2) that they have the right to intervene in the suit or to choose not to participate; (3) that Attorney General Greg Abbott is named as the defendant; (4) and that the Attorney General's address is 209 West 14th Street, Austin, Texas 78701 and phone number is (512) 463-2191. JURISDICTION AND VENUE 5. Venue is proper and mandatory in Travis County. See TEX. GoV'T CODE

§§ 552.324-.325. 6. The doctrine of sovereign immunity is not a bar to jurisdiction because Section

552.325 of the Government Code expressly authorizes the relief sought by this action.

7. Magical Elves is one of the top television production companies in the world, and produced programming for networks such as NBC, ABC, Bravo, have included Project One of

having developed Showtime,

Oxygen, USA, and HBO.

Magical Elves'


Runway, Work of Art, Project Greenlight, Last Comic Standing, and Treasure Hunters. 2

Magical Elves' most successful programs is Top Chef, a critically acclaimed and Emmy awardwinning reality-competition program that airs on the cable television network Bravo. 8. The upcoming ninth season of Top Chef will focus on Texas.

Top Chef Texas

will premiere on November 2,2011. about the upcoming season-the

Production for Top Chef Texas is ongoing, and key details

number of episodes, specific air dates of each episode other not been publicly

than the premiere, filming locations, and numerous creative elements-have disclosed. 9. For programs like Top Chef, brand integration-the

use of products, services, and

brands in the program-is

a common form of advertising. Magical Elves has been successful at

soliciting brand integration and tradeout agreements with over 100 brands, spanning every industry. In addition to products and brands, Magical Elves also enters into brand integration

and tradeout agreements relating to the location of episodes, including agreements with hotels and government tourism boards. Each season involves new and different brand integration and tradeout agreements, which are the product of negotiations between Magical Elves and the potential advertisers. 10. with the State. For Top Chef Texas, Magical Elves entered into a brand integration agreement In the course of the negotiations of that agreement, Magical Elves provided

confidential and proprietary information regarding Top Chef, as well as creative concepts and production ideas for Top Chef Texas. 11. On July 12, 2011, Mr. Tone submitted a request to OOG under the Act seeking

various documents, including contracts, proposals, email communications, and other information relating to the production of Top Chef Texas. On July 27, 2011, Ms. Fikac requested many of the same documents. Both requests were submitted by OOG to the Attorney General for an

opinion regarding whether the responsive documents were subject to required public disclosure 3

under the Act. Magical Elves timely submitted third-party comments to the Attorney General, explaining why its Confidential Information was excepted from required public disclosure under Section 552.110(b) of the Government Code and why its personal contact information was excepted from required public disclosure under Section 552.137 of the Government Code. 12. On September 21, 2011, the Attorney General issued 0R2011-13668, which

concluded that, although certain personal contact information must be redacted, none of the Confidential 552. 110(b). 13. redactions Magical Elves does not challenge the Attorney General's ruling with respect to of personal contact information under Section 552.l37. With respect to the Information was excepted from required public disclosure under Section

Confidential Information, however, the Attorney General erred in holding that it was not subject to redaction under Section 552.11 O(b). Importantly, the responsive documents do not include the final, signed brand integration agreement. Rather, they contain proposals, correspondence, and Disclosure of certain competitive injury, its

related documents exchanged in the course of confidential negotiations. portions of this information would cause Magical Elves substantial


its competitive position as to other production companies and undermining effectively with potential advertisers. In addition,

ability to negotiate

the Confidential

Information includes details about the number of episodes and creative elements of Top Chef Texas, the public disclosure of which would reduce viewers' and advertisers' interest in the

upcoming season and allow competitors to copy creative elements of the program and schedule counter-programming. 14. Accordingly, while Magical Elves does not object to the disclosure of the vast

majority of the documents responsive to the requests, the Confidential Information must be withheld from public disclosure under Section 552.11 O(b), and the responsive documents must

be redacted to protect it. If the Confidential Information is properly redacted (along with the personal contact information that the Attorney General has held must be redacted), Magical Elves will not oppose the disclosure of the documents. DECLARATORY JUDGMENT 15. Magical Elves hereby adopts and relies on the preceding paragraphs 1-14 above,

seeks in camera review of the documents that OOG has been instructed to release, and sues for a declaratory judgment that the Confidential Information, as identified and marked by Magical Elves, is excepted from public disclosure by Section 552.11 O(b) of the Government Code and therefore must be redacted from the responsive documents and withheld by OOG. STATUTORY AFFIRMATIVE DEFENSE 16. Under section 552.353(c) of the Government Code, OOG has an affirmative

defense to prosecution under the Act for not releasing the information at issue in 0R2011-13668 while this action is pending. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff Magical Elves prays that this

Court render the declaratory judgment as requested herein and grant such other and further relief, legal and equitable, to which Plaintiff shows itself to be entitled.


Respectfully submitted, VINSON & ELKINS L.L.P. By: isi Thomas S. Leatherburv Thomas S. Leatherbury State Bar No. 12095275 Marc A. Fuller State BarNo. 24032210 Tyler J. Bexley State Bar No. 24073923 2001 Ross Avenue, Suite 3700 Dallas, TX 75201 Tel: 214.220.7792 Fax: 214.999.7792 tl Susan D. Banowsky State Bar No. 00787609 2801 Via Fortuna, Suite 100 Austin, Texas 78746 Tel: (512) 542-8634 Fax: (512) 236-3238

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