D-1-GN-16-000820

Cause No. ________

IRVING INDEPENDENT
SCHOOL DISTRICT,
Plaintiff,
V.
KEN PAXTON, ATTORNEY GENERAL
FOR THE STATE OF TEXAS,
Defendant.

2/25/2016 2:17:07 PM
Velva L. Price
District Clerk
Travis County
D-1-GN-16-000820
Ruben Tamez

IN THE DISTRICT COURT OF

TRAVIS COUNTY, TEXAS

53RD
_____ JUDICIAL DISTRICT

IRVING INDEPENDENT SCHOOL DISTRICTS

ORIGINAL 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

the suits 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. Selks requests is the subject of this appeal under the PIA.

See TEX. GOVT 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.
-2-

 1232g, et seq.; and (3) information relating to reasonably anticipated litigation protected by the
Texas Government Code 552.103. As required by the Attorney Generals 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. Selks request for public information.

In open records decision OR2016-03385, the

Attorney General disagreed that the Districts receipt of an inquiry from the U.S. Department of
Justice prior to the Districts receipt of the PIA request satisfied the litigation exception.
6.

The Attorney Generals 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 Generals ruling reveals no
principled basis for such inconsistencies.
7.
here.

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

Accordingly, the Irving ISD challenges the Attorney Generals application of these

exceptions to the information at issue in this case. The Attorney Generals 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
-3-

required to be disclosed. TEX. GOVT 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.
11.

CONDITIONS PRECEDENT

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.

-4-

Respectfully submitted,
THOMPSON & HORTON LLP

By:

/s/ Lisa A. Brown

Lisa A. Brown
Texas Bar No. 03151470
Melisa E. Meyler
Texas Bar No. 24090122
Phoenix Tower, Suite 2000
3200 Southwest Freeway
Houston, Texas 77027-7554
(713) 554-6741 (telephone)
(713) 583-7934 (fax)
lbrown@thompsonhorton.com
mmeyler@thompsonhorton.com

ATTORNEYS FOR THE PLAINTIFF

IRVING INDEPENDENT SCHOOL DISTRICT
712035_3
093990.000001

-5-

ExhibitA

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
0R2016-03385
Dear Ms. Meyler:
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 FERPA 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 FERPA
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): _ __ _ _ _ _ _ __

Irving
ISD____
v. Ken
Attorney General
the State of Texas
____
__ Paxton,
____________________
__for
_

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 initi ate 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
th e 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
.
b l eat tna I.
mlSSI
an d'It IS not ad
suppiomentatlon.
I. Contact information for perlion completing case information sheet:

Names of parties in case:

Name:

Plaintiff(s )/Peti tioner(s):

Email:

Usa Brown

Ibrown@thompsonhorton.com

Address:

Telephone:

~200 Southwest Fwy, Suite 2000 713-554-6767

City/State/Zip:

Houston, TX 77027

Fax:

713-583-7934

i~~ O;~a~~~;~

Person or entity completing sheet is:

ilAltomcy for PlaintifffPctitioncr
0/>1'0 Se Plaint ifffl'ctitioncr
O Titic IV-D Agency
oOthcr:

Irving Independent
School District

Additional Parties in Child Support Case

Defendant(s)fRespondent(s)

Custodial Parent:

Ken Paxton, Attorney General

for the State of Texas

Non-Custodial Parent:

I AUach additional

Presumed Father:

page as necessal')' lo list all parties}

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

Family Law

Civil
Contract
Debt/Contract
oConsumerlDTPA
oDebtlContract
oFraudlMisrepresentation
o Other DebtlContract:
Foreclosllre
oHome Equity-Expedited
oOther Foreclosure
Franchise
Olnsurance
oLandlordfTenant
oNon-Competition
oPartnership
oOther Contract:

Injury or Damo2e
gAssaultlBattery
oConstruction
oDefamation
Malpractice
DAccounting
oLegal
DMedical
DOther Professional
Liability:
oMolor Vehicle Accident
oPremises
Prodllct Liability
oAsbestos/Silica
oOther Product Liability
List Product:
oOther Injury or Damage:

Emplovment
oDiscrimination
o Retal iati on
oTermination
OWorkers' Compensation
OOther Employment:

Tax
bjTax Appraisal
oTax Delinquel1cy
OOtherTax

Real Property
DEminent Domain/
Condemnation
oPartition
oQuiet Title
oTrespass to Try Title
oOther Property:

Marrill2e Relationship
gAnnulmenl
oDeclare Marriage Void
Divorce
oWith Children
oNo Children

Related to Criminal
Matterli
b)Expunction
oJudgment Nisi
oNon-Disclosure
oSeizure/Forfeiture
oWrit of Habeas CorpusPre- indictment
oOther:

Other Family Law

DEnforce Foreign
Judgment
DHabeas Corpus
DName Change
o Protective Order
oRemovalofDisabilities
of Minority
oOther:

Other Civil
ilAdministrative Appeal
oAnlitrust/Unfair
Competition
oCode Violations
oForeign Judgment
olntellectual Property

oLawyer Discipline
oPerpetuate Testimony
oSecurities/Stock
o Tortious Interference
o Olher;

Post-judgment Actions
(non-Title IV-D)
DEnforcement
oModitication-Custody
oModitication-Other
Title IV-D
!:::!EnforcementIModification
oPatemity
DReciprocals (UlFSA)
DSupport Order
Parent-Child Relationship
DAdoption/Adoption with
Termination
oChild Protection
oChild Support
oCustody or Visitation
oGeslational Parenting
oGrandparent Access
oParentage/Patemity
oTennination of Parental
Rights
oOther Parent-Child

Probate & Mental Health

Probate/Wills/Intestate Administration
oDependent Administration
olndependent Administration
oOther Estate Proceedings

3. Indicate procedure or remedy. if applicable (may select more than /):

gAppeal from Municipal or Justice Court
~Declaratory Judgment
oGamishment
oArbitration-related
OAUachment
DIn terp leader
oBili of Review
oLicense
OCertiorari
oMandamus
oClass Action
oPost-judgment

QGuardianship--Adull
oGuardianship--Minor
OMental Health
Other:

gPrejudgment Remedy
oProtective Order
oReceiver
oSequestration
oTemporary Restraining OrderlTnjunction
oTurnover

SERVICE REQUEST FORM

Amalia Rodriguez-Mendoza
District Clerk, Travis County
Civil Division

(512) 854-9457

REQUESTED BY:
ATTORNEY/FILER: Lisa Brown
PHONE II:

SUBMITTED BY: Melisa Mevler

713-333-6141

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 CERTIFIED MAIL BY CLERK

D PRIVATE PROCESS AGENCY (specify):

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
DESCRIPTION OF INSTRUMENT(S) TO BE SERVED:

Original Petition

DI HAVE INCLUDED ATTACHMENTS TO THIS REQUEST (e.g. discovery) TO INCLUDE IN THE CITATION
TYPE OF PROCESS TO
ISSUE:

Iii CITATION

D CERTIFIED NOTICE D PROTECTIVE ORDER' DTRO'" D INJUNCTION'" D SEQUESTRATION'"

DATTACHMENT'

DEXECUTION'DABSTRACT' DSUPERSEDEAS" DSCIRE FACIAS'

'SPECIFY TITLE AND DATE OF UNDERLYING ORDER IN CASE RECORD:

DOTHER"

"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

EMAIL PROCESS TO:

SERVE VIA:

~TRAVIS CO. CONSTABLE

i!I PERSONAL SERVICE

DATTORNEY/REQUESTOR

DCERTIFIED MAIL (BY CONSTABLE)

DPRIVATE PROCESS AGENCY:

D CERTIFIED MAIL (BY CLERK)

Process Agency Name:

DCITATION BY POSTING'

DOTHER ADDRESS:

Constable Precinct 5

DCITATION BY PUBLICATION'

PARTY NAME :

EMAIL PROCESS TO:

SERVE VIA:

~TRAVIS CO. CONSTABLE

D PERSONAL SERVICE

PARTY TYPE :

DATTORNEY/REQUESTOR

DCERTIFIED MAIL (BY CONSTABLE)

DUSE ADDRESS IN ORIGINAL PETITION DSECRETARY OF STATE

DPRIVATE PROCESS AGENCY:

DCERTIFIED MAIL (BY CLERK)

Process Agency Name:

DCITATION BY POSTING'

DOTHER ADDRESS:

DCITATION BY PUBLICATION'

Constable Precinct 5

PARTY NAME :

EMAIL PROCESS TO:

~TRAVIS CO. CONSTABLE

D PERSONAL SERVICE

PARTY TYPE :

DATTORNEY/REQUESTOR

DCERTIFIED MAIL (BY CONSTABLE)

DUSE ADDRESS IN ORIGINAL PETITION DSECRETARY OF STATE

DPRIVATE PROCESS AGENCY:

Process Agency Name:

DCITATION BY POSTING'

DOTHER ADDRESS:

SERVE VIA:

Constable Precinct 5

DCERTIFIED MAIL (BY CLERK)

DCITATION BY PUBLICATION>

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 :

Please use Constable Precinct

5 for

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

service .