Cause No. ________

IRVING INDEPENDENT § IN THE DISTRICT COURT OFSCHOOL DISTRICT, §

§Plaintiff, §

§V. § TRAVIS COUNTY, TEXAS

§KEN PAXTON, ATTORNEY GENERAL §FOR THE STATE OF TEXAS, §

§Defendant. § _____ JUDICIAL DISTRICT

IRVING INDEPENDENT SCHOOL DISTRICT’SORIGINAL PETITION FOR DECLARATORY

JUDGMENT AND OTHER RELIEF

TO THE HONORABLE JUDGE OF THE COURT:

The Plaintiff Irving Independent School District (“Irving ISD” or “District”) petitions for

declaratory and other relief as follows:

I. PARTIES

Irving ISD is an independent public school district that was created by state law and is a

political subdivision of the state. Its address is 2621 W. Airport Freeway, Irving, Texas 75062.

The Defendant and Respondent, Ken Paxton, is the elected Attorney General for the State

of Texas (“General Paxton”), maintains an office, and may be served at the Office of the

Attorney General, 300 W. 15th Street, Austin, Texas 78701. He is sued only in his official

capacity as Attorney General.

II. OTHER INTERESTED INDIVIDUALS

This is a lawsuit by a governmental entity to maintain the confidentiality of information

requested under the Texas Public Information Act (“PIA”). Pursuant to Section 552.325(b) of

the Texas Government Code, Irving ISD has informed the requester, by certified mail, return

receipt requested and email, that this lawsuit has been filed and included information regarding

D-1-GN-16-000820

53RD

2/25/2016 2:17:07 PM Velva L. Price District Clerk Travis County

D-1-GN-16-000820Ruben Tamez

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the suit’s subject matter and cause number (which has yet to be assigned); the court in which the

action has been filed, his right to intervene or not to participate; the party against whom the

lawsuit has been filed (the Attorney General); and the address and phone number of the Office of

the Attorney General as listed on its website.

III. JURISDICTION AND VENUE

This Court has jurisdiction under Article 5, § 8 of the Texas Constitution and Texas

Government Code §§ 24.007-24.008, 24.011, 552.324, and 552.353(b)(3).

IV. FACTUAL AND PROCEDURAL BACKGROUND

1. The requestor, Avi Selk, made a request for information to Irving ISD. One of

Mr. Selk’s requests is the subject of this appeal under the PIA. See TEX. GOV’T CODE

§§ 552.324, 552.353(b)(3). In this PIA request, Mr. Selk sought “[a] copy of the inquiry from

the U.S. Department of Justice (DOJ) pertaining to CRS training.”

2. On November 18, 2015, the Irving ISD responded to requestor Selk that it did not

have any documents responsive to the request for “a copy of the inquiry from the U.S.

Department of Justice pertaining to CRS training.” The Irving ISD responded further that, to the

extent Mr. Selk was requesting “a copy of any inquiry from the DOJ pertaining to the MacArthur

student arrest,” Irving ISD would seek an Attorney General opinion on whether the information

was non-disclosable.

3. Irving ISD timely requested a determination from the Attorney General as

permitted by Texas Government Code § 552.301 that the information in question was not subject

to disclosure. Irving ISD argued that the information was subject to several exceptions to

disclosure, namely: (1) information regarding ongoing law enforcement proceedings protected

by the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq.; (2) information regarding

students protected by the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C.

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§ 1232g, et seq.; and (3) information relating to reasonably anticipated litigation protected by the

Texas Government Code § 552.103. As required by the Attorney General’s procedures, Irving

ISD attached the information that it sought to withhold to its determination request, and it

marked the information to indicate privileged or confidential matter.

4. On February 11, 2016, General Paxton issued open records decision OR2016-

03385, ordering the District to disclose the information requested. (Exhibit A.) Irving ISD

challenges this ruling.

5. In particular, Irving ISD challenges the portion of the ruling that states that Irving

ISD did not reasonably anticipate litigation by November 12, 2015, when the District received

Mr. Selk’s request for public information. In open records decision OR2016-03385, the

Attorney General disagreed that the District’s receipt of an inquiry from the U.S. Department of

Justice – prior to the District’s receipt of the PIA request – satisfied the litigation exception.

6. The Attorney General’s application of the anticipation-of-litigation exception is

inconsistent with previous rulings of the Attorney General and is simply contrary to the common

law understanding of anticipation of litigation. The Attorney General’s ruling reveals no

principled basis for such inconsistencies.

7. The Attorney General did not properly apply the law to the information at issue

here. Accordingly, the Irving ISD challenges the Attorney General’s application of these

exceptions to the information at issue in this case. The Attorney General’s interpretation and

application of the exception was overly narrow, and his analysis was incorrect and contrary to

established law.

V. DECLARATORY RELIEF

8. The PIA provides that a governmental agency may file a petition for declaratory

judgment against the Attorney General if it reasonably believes that the information is not

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required to be disclosed. TEX. GOV’T CODE § 552.353(b)(3).

9. Based on the foregoing facts, the Irving ISD seeks a declaration from this Court

that open records decision OR2016-03385 is erroneous, that one or more of the cited PIA

sections and statutes or rules apply to prevent disclosure of the information relating to litigation

involving a governmental body that was reasonably anticipated on the date the information was

requested, and that the information may be withheld as protected by the litigation exception.

VI. PERMANENT INJUNCTION

10. Irving ISD asks the Court to set its request for a permanent injunction for a full

trial on the merits and, after trial, issue a permanent injunction enjoining the enforcement of the

ruling in OR2016-03385 and prohibiting the Attorney General or any interested party from

compelling the release of the information at issue that is the subject of OR2016-03385.

VII. CONDITIONS PRECEDENT

11. All conditions precedent have been performed or have occurred.

VIII. PRAYER

For the foregoing reasons, the Plaintiff Irving Independent School District asks this Court

to render a declaratory judgment that OR2016-03385 is erroneous, that the information in

question is confidential, and all other relief against the Texas Attorney General Paxton,

Defendant as follows:

12. declaratory relief;

13. permanent injunction;

14. costs of suit;

15. reasonable attorney fees; and

16. all other relief available at equity or law.

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Respectfully submitted,

THOMPSON & HORTON LLP

By: /s/ Lisa A. BrownLisa A. BrownTexas Bar No. 03151470

Melisa E. MeylerTexas Bar No. 24090122

Phoenix Tower, Suite 20003200 Southwest FreewayHouston, Texas 77027-7554(713) 554-6741 (telephone)(713) 583-7934 (fax)

lbrown@thompsonhorton.commmeyler@thompsonhorton.com

ATTORNEYS FOR THE PLAINTIFFIRVING INDEPENDENT SCHOOL DISTRICT

712035_3093990.000001

 

 

Exhibit A  

   

KEN PAXTON ATTORNEY GENERAL OF TEXAS

February 11,2016

Ms. Melisa E. Meyler Counsel for Irving Independent School District Thompson & Horton LLP Phoenix Tower, Suite 2000 3200 Southwest Freeway Houston, Texas 77027-7554

Dear Ms. Meyler:

0R2016-03385

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# 597951.

The Irving Independent School District (the "district"), which you represent, received a request for any inquiry from the United States Department of Justice (the "DOJ") pertaining to a named individual. You claim the submitted information is excepted from disclosure under sections 552.103 and 552.114 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

The United States Department of Education Family Policy Compliance Office (the "DOE") has informed this office the Family Educational Rights and Privacy Act ("FERP A"), 20 U.S.C. § 1232g, does not permit state and local educational authorities to disclose to this office, without parental consent, unredacted, personally identifiable information contained in education records for the purpose of our review in the open records ruling process under the Act.] Consequently, state and local educational authorities that receive a request for education records from a member of the public under the Act must not submit education records to this office in unredacted form, that is, in a form in which "personally identifiable

IA copy of this letter may be found on the Office of the Attorney General's website: hUp:l/www.oag.stale.tx .lIs/open120060725u doe.pdf.

Post Office Box 12548, Austin, Texas 78711-2548 • (512) 463-2100 • www.texasattorneygeneral.gov

Ms. Melisa E. Meyler - Page 2

information" is disclosed. See 34 C.F.R. § 99.3 (defining "personally identifiable information"). You claim the submitted information is protected by FERP A and have submitted unredacted education records for our review. Because our office is prohibited from reviewing these records to determine the applicability ofFERP A, we will not address its applicability to any of the responsive information. Such determinations under FERP A must be made by the district. Likewise, we do not address your argument under section 552.114 of the Government Code. See Gov't Code §§ 552.026 (incorporating FERPA into Act),.114 (excepting from disclosure "student records"); Open Records Decision No. 539 (1990) (determining same analysis applies under section 552.114 of Government Code and FERPA). However, we will address your remaining arguments against disclosure of the submitted information.

The district asserts the responsive information is protected by section 552(b)(7) of title 5 of the United States Code, the Freedom of Information Act ("FOIA"). We note FOIA is applicable to information held by an agency of the federal government. In this instance, the information at issue is held by the district, which is subject to the laws of the State of Texas. See Attorney General Opinion MW -95 (1979) (FOIA exceptions apply to federal agencies, not to state agencies); Open Records Decision Nos. 496 (1988), 124 (1976); see also Davidson v. Georgia, 622 F.2d 895,897 (5th Cir. 1980) (state governments are not subject to FOIA); Open Records Decision No. 561 at 7 n.3 (1990) (noting federal authorities may apply confidentiality principles found in FOIA differently from way in which such principles are applied under Texas open records law). This office has stated in numerous opinions that information in the possession of a governmental body of the State of Texas is not confidential or excepted from disclosure merely because the same information is or would be confidential in the hands of a federal agency. See, e.g., Attorney General Opinion MW -95 (neither FOIA nor federal Privacy Act of 1974 applies to records held by state or local governmental bodies in Texas); ORD 124 (fact that information held by federal agency is excepted by FOIA does not necessarily mean that same information is excepted under Act when held by Texas governmental body). Thus, the district may not withhold the submitted information on the basis ofFOIA.

Section 552.103 of the Government Code provides 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 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.

(c) Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure

Ms. Melisa E. Meyler - Page 3

under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information.

Gov't Code § 552.103(a), (c). The governmental body has the burden of providing relevant facts and documents to show the section 552.1 03 (a) exception is applicable in a particular situation. The test for meeting this burden is a showing that (1) litigation is pending or reasonably anticipated on the date the governmental body received the request for information and (2) the information at issue is related to that litigation. Univ. a/Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d479, 481 (Tex. App.-Austin 1997, orig. proceeding); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.-Houston [1st Dist.] 1984, writ ref d n.r.e.); Open Records Decision No. 551 at 4 (1990). The governmental body must meet both prongs of this test for information to be excepted from disclosure under section 552.103(a).

The question of whether litigation is reasonably anticipated must be determined on a case-by-case basis. See Open Records Decision No. 452 at 4 (1986). To demonstrate litigation is reasonably anticipated, the governmental body must furnish concrete evidence that litigation involving a specific matter is realistically contemplated and is more than mere conjecture. Id. Concrete evidence to support a claim that litigation is reasonably anticipated may include, for example, an attorney for a potential opposing party making a demand for payment and asserting an intent to sue if such payments are not made. Open Records Decision Nos. 555 at 3 (1990), 346 (1982). Further, concrete evidence to support a claim that litigation is reasonably anticipated may also include the governmental body's receipt of a letter containing a specific threat to sue the governmental body from an attorney for a potential opposing party. ORD 555 (1990); see Open Records Decision No. 518 at 5 (1989) (litigation must be "realistically contemplated"). In addition, this office has concluded litigation was reasonably anticipated when the potential opposing party threatened to sue on several occasions and hired an attorney. See Open Records Decision No. 288 at 2 (1981). However, an individual publicly threatening to bring suit against a governmental body, but who does not actually take objective steps toward filing suit, is not concrete evidence that litigation is reasonably anticipated. See Open Records Decision No. 331 at 1-2 (1982).

You contend the submitted information relates to litigation the district reasonably anticipated on the date it received the instant request. In support of your argument you state, and submit documentation showing, before the date of the request, the district received a letter from the Educational Opportunities Section of the Civil Rights Division of the DO] notifying the district the DO] received a complaint alleging discrimination against a district student under Title IV of the Civil Rights Act of 1964. See 42 U.S.c. § 2000c et seq. Further, you state, after the date the district received the present request for information, the district received a demand letter from an attorney for private individuals threatening litigation pertaining to the incident that is the subject of the DO] inquiry. However, you do not inform our office that, at the time the district received the present request, anyone had taken any concrete steps

Ms. Melisa E. Meyler - Page 4

toward the initiation of litigation regarding this matter. Consequently, we find you have failed to demonstrate the district reasonably anticipated litigation when it received the present request for information. As such, we conclude the district may not withhold the submitted information under section 552.103. As no further exceptions to disclosure have been raised, the district must release the submitted information.

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 http://www.texasattorneygeneral.gov/open/orl ruling info.shtml, 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 may be directed to the Office of the Attorney General, toll free, at (888) 672-6787.

Cole Hutchison Assistant Attorney General Open Records Division

CH/bhf

Ref: ID# 597951

Enc. Submitted documents

c: Requestor (w/o enclosures)

CIVIL CASE INFORMATION SHEET

CAUSE NUMBER (FOR CLERK USE ONLY): COURT (FOR CLERK USE ONLY): _________ _

S Irving ISD v. Ken Paxton, Attorney General for the State of Texas

TYLED~~ ____ ~ ____ ~ __ ~ ____________________ ~ __ _

(e g. John Smith v. All American Insurance Co; In re Mary Ann Jones; In the Matter ofthe Estate of George Jackson)

A civil case information sheet must be completed and submitted when an original petition or application is filed to initiate a new civil, family law, probate, or mental health case or when a post-judgment petition for modification or motion for enforcement is filed in a family law case The information should be the best available at the time of filing This sheet, approved by the Texas Judicial Council, is intended to collect information that will be used for statistical purposes only It neither replaces nor supplements the filings or service of pleading or other documents as required by law or rule. The sheet does not constitute a discovery request, response, or

I . d' dbl I suppiomentatlon. an It IS not a mlSSI eat tna .

I. Contact information for perlion completing case information sheet: Names of parties in case: Person or entity completing sheet is: ilAltomcy for PlaintifffPctitioncr

Name: Email: Plaintiff(s )/Peti tioner(s): 0/>1'0 Se Plaint ifffl'ctitioncr

Usa Brown Ibrown@thompsonhorton.com Irving Independent O Titic IV-D Agency oOthcr:

Address: Telephone: School District ~200 Southwest Fwy, Suite 2000 713-554-6767 Defendant(s)fRespondent(s) Additional Parties in Child Support Case

City/State/Zip: Fax: Custodial Parent:

Houston, TX 77027 713-583-7934 Ken Paxton, Attorney General for the State of Texas

i~~O;~a~~~;~ Non-Custodial Parent:

I AUach additional page as necessal')' lo list all parties} Presumed Father:

2. Indicate case type. or identify the most important issue in the case (select onlv I):

Civil Family Law Post-judgment Actions

Contract Injury or Damo2e Real Property Marrill2e Relationship (non-Title IV-D) Debt/Contract gAssaultlBattery DEminent Domain/ gAnnulmenl DEnforcement

oConsumerlDTPA oConstruction Condemnation oDeclare Marriage Void oModitication-Custody oDebtlContract oDefamation oPartition Divorce oModitication-Other oFraudlMisrepresentation Malpractice oQuiet Title oWith Children Title IV-D o Other DebtlContract: DAccounting oTrespass to Try Title oNo Children !:::!EnforcementIModification

oLegal oOther Property: oPatemity Foreclosllre DMedical DReciprocals (UlFSA)

oHome Equity-Expedited DOther Professional DSupport Order oOther Foreclosure Liability: Related to Criminal o Franchise Matterli Other Family Law Parent-Child Relationship

Olnsurance oMolor Vehicle Accident b)Expunction DEnforce Foreign DAdoption/Adoption with oLandlordfTenant oPremises oJudgment Nisi Judgment Termination oNon-Competition Prodllct Liability oNon-Disclosure DHabeas Corpus oChild Protection oPartnership oAsbestos/Silica oSeizure/Forfeiture DName Change oChild Support oOther Contract: oOther Product Liability oWrit of Habeas Corpus- o Protective Order oCustody or Visitation

List Product: Pre- indictment oRemovalofDisabilities oGeslational Parenting oOther: of Minority oGrandparent Access

oOther Injury or Damage: oOther: oParentage/Patemity oTennination of Parental

Emplovment Other Civil Rights

oDiscrimination ilAdministrative Appeal oLawyer Discipline oOther Parent-Child

o Retal iati on oAnlitrust/Unfair oPerpetuate Testimony oTermination Competition oSecurities/Stock OWorkers' Compensation oCode Violations o Tortious Interference OOther Employment: oForeign Judgment o Olher;

olntellectual Property

Tax Probate & Mental Health bjTax Appraisal Probate/Wills/Intestate Administration QGuardianship--Adull oTax Delinquel1cy oDependent Administration oGuardianship--Minor OOtherTax olndependent Administration OMental Health

oOther Estate Proceedings o Other:

3. Indicate procedure or remedy. if applicable (may select more than /): gAppeal from Municipal or Justice Court oArbitration-related

~Declaratory Judgment oGamishment

gPrejudgment Remedy oProtective Order

OAUachment DIn terp leader oReceiver oBili of Review oLicense oSequestration OCertiorari oMandamus oTemporary Restraining OrderlTnjunction oClass Action oPost-judgment oTurnover

Amalia Rodriguez-Mendoza District Clerk, Travis County

Civil Division (512) 854-9457

REQUESTED BY:

ATTORNEY/FILER: Lisa Brown

PHONE II: 713-333-6141

SERVICE REQUEST FORM

SUBMITTED BY: Melisa Mevler

EMAIL: Ibrown@)thomDsonhorton.com

ISSUE PROCESS FOR:

CAUSE II: CASE STYLE: Irving Independent School District v. Ken Paxton, Attorney General for the State of Texas

QUICK CITATION REQUEST: (FOR SERVICE OF CITATION ON ALL DEFENDANTS BY PERSONAL

ISSUE CITATION TO ALL DEFENDANTS LISTED IN THE ORIGINAL PETITION AT THE ADDRESS SPECIFIED IN THE PETITION AND FORWARD THE CITATION(5) TO THE FOLLOWING:

Iii TRAVIS CO. CONSTABLE (specify): Precinct 5

D PRIVATE PROCESS AGENCY (specify):

D CERTIFIED MAIL BY CLERK D ATTORNEY/REQUESTER

D I HAVE INCLUDED ATTACHMENTS TO THIS REQUEST (e.g. DISCOVERY) TO INCLUDE

DETAILED SERVICE REQUEST: (ON PARTICULAR PARTIES, BY VARIOUS DELIVERY METHODS, OR FOR NON-CITATION L

DESCRIPTION OF INSTRUMENT(S) TO BE SERVED: I Original Petition

DI HAVE INCLUDED ATTACHMENTS TO THIS REQUEST (e.g. discovery) TO INCLUDE IN THE CITATION

TYPE OF PROCESS TO I Iii CITATION D CERTIFIED NOTICE D PROTECTIVE ORDER' DTRO'" D INJUNCTION'" D SEQUESTRATION'"

ISSUE: DATTACHMENT' DEXECUTION'DABSTRACT' DSUPERSEDEAS" DSCIRE FACIAS' DOTHER"

'SPECIFY TITLE AND DATE OF UNDERLYING ORDER IN CASE RECORD: I "ATTACH A COPY OF BOND AND/OR OTHER SUPPORTING

DOCUMENT

SERVICE TO BE ISSUED:

PARTY NAME: Ken Paxton, Attorney General forthe State of Texas

PARTY TYPE: Defendant

i!lUSE ADDRESS IN ORIGINAL PETITION DSECRETARY OF STATE

DOTHER ADDRESS:

PARTY NAME:

PARTY TYPE:

DUSE ADDRESS IN ORIGINAL PETITION DSECRETARY OF STATE

DOTHER ADDRESS:

PARTY NAME:

PARTY TYPE:

EMAIL PROCESS TO:

~TRAVIS CO. CONSTABLE

DATTORNEY/REQUESTOR

DPRIVATE PROCESS AGENCY:

Process Agency Name:

Constable Precinct 5

EMAIL PROCESS TO:

~TRAVIS CO. CONSTABLE

DATTORNEY /REQUESTOR

DPRIVATE PROCESS AGENCY:

Process Agency Name:

Constable Precinct 5

EMAIL PROCESS TO:

~TRAVIS CO. CONSTABLE

DATTORNEY/REQUESTOR

DPRIVATE PROCESS AGENCY: DUSE ADDRESS IN ORIGINAL PETITION DSECRETARY OF STATE Process Agency Name:

DOTHER ADDRESS: Constable Precinct 5

I 'THIS TYPE OF SERVICE MAY REQUIRE A COURT ORDER. ENTER DATE OF SERVICE ORDER IN CASE RECORD:

ADDITIONAL INSTRUCTIONS FOR CLERK OR FOR OFFICER SERVING PROCESS:

SERVE VIA:

i!I PERSONAL SERVICE

DCERTIFIED MAIL (BY CONSTABLE)

D CERTIFIED MAIL (BY CLERK)

DCITATION BY POSTING'

DCITATION BY PUBLICATION'

SERVE VIA:

D PERSONAL SERVICE

DCERTIFIED MAIL (BY CONSTABLE)

DCERTIFIED MAIL (BY CLERK)

DCITATION BY POSTING'

DCITATION BY PUBLICATION'

SERVE VIA:

D PERSONAL SERVICE

DCERTIFIED MAIL (BY CONSTABLE)

DCERTIFIED MAIL (BY CLERK)

DCITATION BY POSTING'

DCITATION BY PUBLICATION>

J

Please use Constable Precinct 5 for service .

FOR ADDITIONAL PARTIES TO BE SERVED, USE e-FllED PROCESS ISSUANCE REQUEST FORM ADDENDUM