A news organization’s long-sought disclosure of documents related to the University of Texas’ investigation into allegations of improper admissions practices reached the Texas Supreme Court on Wednesday.
The court, minus Justice Jimmy Blacklock, heard arguments over whether 744 documents from the investigation fall under the attorney-client privilege because they were produced by a consulting firm acting as a lawyer’s representative to The University of Texas System.
The system in 2013 hired Kroll Associates to investigate questions raised by Board of Regents member Wallace Hall about possible undue influence on the student admissions process at UT Austin. The Kroll investigation found that under UT Austin President Bill Powers, the university admitted certain students over the objections of the admissions office after receiving requests from influential individuals. Kroll concluded that the practice violated no law, rule or policy and no disciplinary action was taken against Powers.
In 2015 the Franklin Center for Government and Public Integrity, a nonprofit conservative news organization, and Jon Cassidy filed a Public Information Act request seeking all documents that Kroll obtained during its investigation. The center ultimately narrowed its request to certain documents listed on a privilege log the university system sent the Office of Attorney General. The trial court agreed with UT that all the requested documents were protected by attorney-client privilege and that the privilege was not waived because Kroll acted as a “lawyer’s representative.”
The Third Court of Appeals reversed the trial court’s judgment and required disclosure of all the documents. It held that the UT System did not present evidence sufficient to meet its burden to show that Kroll was employed by the system’s general counsel to assist in providing legal services to the system.
Lanora C. Pettit, principal deputy solicitor general at OAG, said privilege was not waived at the time the documents were produced regardless of the later decision to publish the report.
“This Court has recognized that in the government context, the attorney-client privilege applies with – and I quote – ‘special force’ because public officials are duty bound to understand and respect the legal limits on their power,” Pettit said.
The Third Court’s ruling, she said, effectively precludes a governmental lawyer from using an outside consultant or investigator from looking into allegations of misconduct.
“In doing so the Third Court deprived public officials of advice they need to do their duty to the people of Texas when that need is at an apex,” Pettit said.
The Franklin Center’s lawyer, Joseph R. Larsen of Gregor Wynne Arney, warned the justices against broadly allowing government entities to shield misconduct by merely hiring lawyers to investigate.
“What this Court is doing is more than an abstract exercise,” said Larsen. “If this Court rules for the University of Texas I guarantee you that every governmental body is going to start running their investigations through the counsel’s office just to be able to withhold it from the public.”
Asked about that comment during her rebuttal time, Pettit called it hyperbole.
Justice Evan Young pushed back.
“I don’t think anyone here on the bench is suggesting that’s what happened here necessarily,” he said. “But is he not right in saying that if we rule for you, other governmental units in the future will be able to say ‘all right we now have, the map has been drawn’?”
“Your honor, first there is a heavy presumption in Texas law that public entities act in good faith and that argument assumes the opposite,” Pettit responded.
She said the privilege would apply only when a unit of government made a “good-faith effort to facilitate the provision of legal services” and not “to create a veil of secrecy inconsistent with Texas law.”
The cause number is 21-0534.