### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-07-00221- CV

Appellan t, Texas De partm ent of Public Saf ety// Cr oss-Appellan t, The Texas Ob serve r

v. Appellees, G reg A bbott, Attor ney Ge neral for the State of Texas and The Texas Ob serve r// Cross-A ppellee, Texas Depart m ent of Public Saf ety

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 250 TH JUDICI AL DISTRICT NO. D-1 -GN-0 5-0 0311 9, H ONO RAB LE STEP HEN Y ELENOSK Y , JUDGE P RESIDING

O P I N I O N

T h e T ex as Depa

rtment of Public Safety (“D PS”) and the Texas Observe r (the “Obse rver ”) appea l from the trial court’s summary judgme nt decla ring , consistent with the opinion of Texas Attorney Gene ral Gre g Abbott, that DVDs containing video rec orded by secur ity came ras 1 in a Texas Capitol hallway wer e not confide ntial or excepted from p u b l i c disclosure under the Texas Public I nformation Act (the “Act”) and must be disclosed a s reque sted. DPS contends that the DVDs are confide ntial be cause the information on them rela tes to the specific ations, opera ting proce dures, or location of a secur ity sy stem used to protec t public propert y fr o m terror ism. See Tex. Gov’t Code Ann. § 418.182(a) (West 2005). DPS also asser ts that the information is excepted

DVDs (“dig ital video discs” or “dig ital versa tile discs”) are an optical disc elec tronic data 1 storag e medium.from disclosure becaus e it is an internal law enfor ceme nt rec ord, the disclosure of which would

interfere wi t h law enfor ceme nt. Id. § 552.108 (West Supp. 2009). The Observe r also appea ls, contending that the trial court err ed by deny ing the Observe r’s reque st to am end its pleading s to include a claim for attorney s’ fee s. We c onclude that, beca use the DVDs contain information that rela tes to the specif

ications of the se curity

sy stem at the ca

pitol, the DVDs at issue ar e not subject
to disclosure under the Act. As a result of this co n cl u s i o n , we need not addre ss the merits of the denial of the Observe r’s motion to file an amende d petition beca use the Ob s erve r would not be entitled to attorney s’ fees even if allowed to file i ts amende d petition. We reve rse that part of the district court’s judgme nt requiring disclosure of the DVDs , and rende r judgme nt that DPS is authorized to withhold the DVDs as c onfidential under g overnme nt code se ction 418.182(a)

.
Factual an d Procedural Background

This cause arises from t h e Obs erve r’s request t hat DP S provide “any and all video
t aken of the second floor back hallway behind the House chambe r on May 23rd[, 2 0 0 5 ] fr o m 8 : 0 0 a.m. to 10:00 p.m.” The video rec ording has been downloaded to two DVDs. Asserting that the DVDs wer e ex cepte d from dis closure under gove rnment code sections 418. 182, 552.101, and 552.108, DPS reque sted an opinion from the attorney g ene ra l re garding whether it could deny the Observe r’s reque st. DPS asser ted that the DVDs wer e confide ntial beca use they reve aled inf o rm at i on rela

ted to a secur ity sy stem used to protec t public proper ty from terror ism and wer e excepted fr om disclosure bec ause the ir rele ase w ould interfer e with law e nforc ement.

The attorney g ener al opined that the DVDs wer e not excepted from disclosure. The attorney g ener al deter

m i n ed that DPS had “not adequately shown how the submitt ed video taken
2from Capitol secur ity came ras rela tes to the specific ations , o pera ting proce dures, or location of a

secur ity sy stem used to protec t public proper ty from an act of terror ism or criminal activity rela ted
to terror ism.” The attorney g ener al co n cluded that the DVDs, there fore , wer e not confide ntial under g overnme nt code section 418.182 and could not be withh el d b ec au s e DPS had not met its burden of proof. The attorney g ener al also opined that DPS had “fa iled to demonstrate how rele ase of the reque sted information would interfe re with law enfor ceme nt” and, thus, d id not merit application of the law enf orce ment exception of g overnme nt code se ction 552.108. DPS sued the att o rn ey g ener al seeking a decla ration that the DVDs wer e excepted from disclosure. The Observe r intervene d, reque sting an injunction o rder ing DPS to disclose the DVDs to the Observe r. DPS moved for summary judgme nt on it s cl ai m fo r d ecla ratory relief

, and the Observe r filed a cross motion for partial summary jud gm en t

. The trial court g rante d the Observe r’s motion for pa rtial summary

judgme nt and denied D PS’s mot ion. The Observe r then soug ht to amend its peti t i o n t o add a reque st for a writ of mandamus compelling DPS to rele ase the DVDs. See Tex. Gov’t Code Ann. § 552.321 (West 2004). The Observe r asser ted that this amendment did not alter the nature of the trial beca use the injunction set to be g rante d and the writ of mandamus would result in the same end—produc tion of the DVDs. The Observe r asser ted that the omission of the petition for writ of mandamus was an oversig ht. DPS opposed the motion to amend, contending that trial of the amende d petition would require prese ntation of additional and diff ere nt evidence over and above a trial of a ttorney s’ fe es. The trial c ourt denied the motion to amend the petition in int erve ntion.

3I n its final judgme nt, the trial court stated that the video rec ording s wer e

not confide ntial or ex cepte d from public disclosure under the Act. The trial court or dere d DPS to produce the two DVDs, but denied the Observe r’s claim for attorney s’ fee s and all other reque sted relief . DPS and the Observe r both appe al.

Stan dard of Revie w

We reviewthe summary

judgme nt de novo. Joe v. Two T hirty Nine Joint Venture , 145 S.W .3d 150, 156 (Tex. 2004). The s t an d ar d s fo r revie wing a summary judgme nt are well established: (1) the movant must demonstrate that there is no g enuine issue of materia l fac t and that it is entitled to judgme nt as a matter of law; (2) in deciding whether a disputed issue of materia l fac t exis ts that would prec lude summary judgme nt, we take all ev i d en ce favor able to the non-movant

as true; and (3 ) we indulge ever y rea sonable infere nce and resolve any doubts in favor of the
non-movant. Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W .2d 546, 548-49 (Tex. 1985). When, as here , both pa rties file motions for summary judgme nt, w e must re view the summary judgme nt e vidence prese nted by both sides, decide all questions prese nted, and rende r the judgme nt that the trial court should have rende re d

. See City of Garland v. Dallas Morning News , 22 S.W .3d 351, 356 (Tex. 2000). When both motions are befor e the court, the co u rt may consider all the summary judgme nt evidenc e in deciding whether to g rant either motion. Dallas County Appraisal Dist. v. Institute for Aerobics Researc h , 766 S

. W .2d 318, 319 (Tex. App.—Dallas 1989, writ denied)

. The c ourt ca n consider one party ’s evidenc e in support of t he other party ’s m otion. DeBord v. Muller , 446 S.W .2d 299, 301 (Tex. 1969); Knighton v. International Bus. Machs. Corp. , 856 S.W .2d 206, 208-09 (Tex. App.—Houston [1st Dist.] 1993, writ denied)

. Whether information
4is subject to the Act and whether an exception to disclosure applies to the information are questions

of law. City of Garland , 22 S.W .3d at 357 (citing A & T Consultant s, Inc. v. Sharp , 904 S.W .2d 668, 674 (Tex. 1995)).

When interpre ting statutes, courts should asce rtain and g ive eff ect to the leg islature’s intent as expressed by

the plain meaning

of the wor ds in the statute. See E ntergy Gulf States, Inc

.
v. Summers , 282 S.W .3d 433, 437 (Tex. 2009); State v. Shumake , 199 S.W .3d 279, 284 (Tex. 2006). We use definitions pr escr ibed by the leg islature and any technica l or particula r meaning the words have acquir ed, but otherwise we construe the statute’s words acc ording to the ir plain and common meaning unless a contra

ry intention is appar en t fr o m t h e context or unless such a construction leads to nonsensical or absurd results. FKM P’ship, Ltd. v. Board of Regents of Univ. of Houston Sys. , 255 S.W .3d 619, 633 (Tex. 2008); see also Tex. Gov’t Code Ann. § 311.011 (West 2005). We

m u s t p re s u m e that ever

y word of a statute was used for a purpose, and that ever y word exclude d from a statute was excluded for a purpose. Laidlaw W a s t e Sys. (

Dallas) , Inc. v. City of W ilmer , 904 S.W .2d 656, 659 (Tex. 1995).

The purpose of the Act is to p ro v i d e p u blic acc ess to complete information about the aff airs of the g overnme nt and the officia l acts of public officia ls and employ ees. Tex. Gov’t Code Ann. § 552.001 (West 2004). I n light of the Act’s strong policy fa v o ring disclosure of public information, and consistent with the Act’s place ment of t he burden of proof on a g overnme ntal body when seeking an open rec ords deter mination from the attorney g ener al, the g overnme ntal en t i t y h as the burden of proving in a judicial proce eding that an exception to disclosure applies. Thomas v. Cornyn , 71 S.W

. 3 d 473, 488 (Tex. App.—Austin 2002, no pet.)

5(citing Tex. Gov’t Code Ann. § 552.001 (re quiring t h at Ac t b e liberally construed in favor of

g ranting reque sts for information), § 552.006 (West 2004) (prohibiting the with holding of pub l i c i n fo rm ation except as expressly provided), § 552.302 (West Supp. 2009) (cr eating presumption, absent compelling rea son , that information is public wher e g overning body fails
t o reque st attorney g ener al opinion)). Ex ceptions to the Act should be construed narr o wl y . S ee Tex. Gov’t C ode Ann. § 552.001(b); City of Garland , 22 S.W .3d at 364; Envoy Med. Sy s., L.L .C. v. State , 108 S.W .3d 333, 336 (Tex. App.—Austin 2003, no pet.). DPS’s Appeal I nformation is excepted from disclosure under the Ac t if it is considere d to be confide ntial by law—either constitutional or statutory provision or by judicial decision. Tex. Gov’t Cod e An n . § 552.101 (West 2004). DPS contends that the information contained on the DVDs at issue is confidential unde r the following statutory provision: (a) Ex cept as provided by Sub s ections (b) and (c) , information, including acc ess codes and passwords, in the po s s es s i o n o f a gover nmental entit y that rela tes to the specific ations, opera ting proce dures, or location of a secur ity sy stem used to protec t public or private p ro p er t y from an act of terror ism or rela ted criminal activity is confide ntial. (b) Financial information in the possession of a g overnme ntal entity that rela tes to the expenditure of funds by a g overnme ntal entity for a secur ity sy stem is public information that is not excepted from require d disclosure under Chapter 552. (c) I nformation in the possession of a g overnme ntal entity that rela tes to the location of a secur ity came ra in a private office at a state ag ency , including an instit ution of highe r educat i on, as define d by Section 61.003, Educa tion Code, is public information and is not excepted from require d disclosure under Chapter 552 unless the sec urity

came ra:

6(1) is located in an individual persona l residenc e for which the state provides secur ity ; or (2) is in use for

surveillance in an ac tive criminal investig ation.

Id. § 418.182. The video on the DVD s is information in the possession of a g overnme ntal entity

rec orded by part of a secur ity sy stem used to protec t public p ro p er ty from terror ism or rela ted criminal activity

. The exceptions in (b) and (c) do not apply

. The information reque sted and on the DVDs is not acc ess codes o r passwords, nor is it manuals or schema tics that expressly detail the specific ations, opera ting proce dures, or location of the secur ity came ras. The issue on appea l with respe ct to section 418.182 is whether the summary judgme nt rec ord is sufficie nt to demonstrate that the information on the DV Ds rela tes to the specif ications, operating pr ocedur es, or location of the capitol sec urity

sy stem. The lega l question reduc es t o whether the i nformation on the DVDs “ rela tes to the specific ation s ” o f the secur ity sy stem. See id

. § 418.182(a)

. The leg islature did not specific ally d ef i ne the opera tive words here —“re lates to” and “spec ifications.” I n ordinary use, “re lates t o ”

means to ha

ve a connec tion with, to r efe r to, or to c oncer n. Specifica tions of a machine or sy stem

are ty pically a list of its phy sical or technica l attributes and capa biliti es. For came ras, specific ations

2

Although we need not resor t to a dictionar

y beca use the statute use s the words’ or dinary 2 meaning s, our understanding of the words is consistent with definitions in Bla ck’s L aw Dictionary

. I t define d “re late” as meaning “[t] o stand in relation; to have be aring or conc ern; to pertain; ref er; to bring into association with or connection with.” Bla ck’s L aw Dictionary 1288 (6th ed. 1 9 9 0 ). (Subsequent editions hav e n o t i n cl u ded a definition of “re late.”) I t define s “spec ifications” as “a detailed statement, esp. of the measure ments, quality , materia ls, or other items to be provided under a contr act.” Bla ck’s L aw Dic tionary 1528 (9th ed. 2009).

7can include such details as came ra siz e, lens dimensions, zoom capa biliti es, low-lig ht c apabilities, and resolution of the imag es captur ed. The use of the term “re lates to” has the eff ect of broade ning the scope of secti o n 4 1 8

. 182 to shield more information than just the specific ations, opera ting proce dures, and locations. The terminolog y “re lates to” is very broad in its ordinary usag e, and we must presume that the leg islature used such a broad formulation purposely

. To conclude otherwise would be to judicially trunca te the ordinary meaning of the words “re lates to.” Neve rtheless, the rela tionship betwee n the information reque sted and the specific ations of a secur ity sy stem cannot be too tenuous, or the exception will swallow the g ener al pref ere nce for disclosure. Cf. New Y ork 3 State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co. , 514 U.S. 6 4 5 , 656 (1995) (“r elates to” cannot infinitely stretch scope of the term it modifies). The question befor e this Court, then, is whether the broad scope of section 418.182(a) includes the rec ording s of video imag es captur ed by

the sec urity

sy stem used to protect the ha llway behind the House chambe r outside the speake r’s off

ice a t the capitol. Appellee s contend that our analy sis is co n t ro l l ed by case s holding that public information is not rende red confide ntial mere ly bec au s e i t can be combined with other inf o rm ati on or knowledg e to reve al confide ntial information. See A & T , 904 S.W .2d at 675-76; C i t y o f L u b b o ck v. Cornyn , 993 S.W .2d 461, 465 (Tex. App.—Austin 1999, no pet.). A & T

A cur ious aspect of

the issue in this case is the proble m of construing a broa d leg islative 3 formulation narr owly as require d when construing exceptions to disclosure under the Texas Public I nformation Act. We must construe the words the leg islature used. I n this instance , the exception is written with a rathe r broad scope. We interpre t the statuto ry p ro v i s i on as written, g iving it the broad application the words require , while taking car e not to extend it bey ond what the words require

. 8conce rned a reque st for information orig inally reje cted based on a provision of the tax code deeming

confide ntial all information secur ed, derive d, or obtained by the comptroller during an examination of the taxpay er’ s books and rec ords. See A & T , 904 S.W

. 2 d at 6 7 5 (c i t i n g Tex. Tax Code Ann. § 111.006 (West Supp. 2009)). The comptroller contende d that t h e re q uested information was confide ntial beca

use, when coupled with knowledg e of chang es in the tax laws, it could be used to deduce information that was plainly confide ntial under the s t at u te. See id

. The supreme court conclude d, howeve r, that the reque stor’s intended use of the information i s i rrelevant to its confide ntiality , even if

it can be use d to deduce otherwise c onfidential informa tion. Id . at 676. I n City of Lubbock , this Court aff irmed a judgme nt th at acc ident repor ts must be disclosed to reque stors despite a statute appar ently intended to limit disclosure to persons involved in the acc ident. 993 S

. W

. 2 d at 4 6 3

. The repor ts wer e confide ntial, but available to persons who knew two of the three key fac ts: the date of the acci d en t , t h e n ame of a person involved in the

acc ident, and the specific location of the acc ident. Id

. at 464. Persons not otherwise awa re of these key fac ts, howeve r, reque sted police dispatch logs to lear n the key fac ts and then used the key fac ts to reque st the acc ident repor ts. Id

. The Cit y o f L u b bock soug ht to deny rele ase of the acc ident 4 repor ts to persons who did not know the key fac ts befor e reque sting the dispatch logs. Id

. at 464-65. This Court held that the City had no discretion to withhold the acc ident repor ts to persons with the key fac ts reg ardle ss of how they lear ned those fa cts. Id . at 465.

The leg islature had require d that reque stors know two of the key fac ts to merit disclosure 4 of the dispatch logs, but impleme n t at i on of that statute was enjoined at the time of the reque sts at issue. City of L ubbock v . Cornyn , 993 S.W .2d 461, 464 (Tex. App.—Austin 1999, no pet.) 9A & T and City of Lubbock do not control this case , howeve r, beca use the scopes of the respe ctive statutes and the information reque sted differ in cruc ial respe cts from those in this case . The statutes in t h o s e case s limit ed the scope of the confide ntiality shield to define d ty pes of information. See A & T , 904 S.W .2d at 6 7 5 (i n fo rmation secur ed, derive d, or obtained by the comptroller d u ri ng an examination of the taxpay er’ s books and rec ords); City of Lubbock , 993 S.W .2d at 463 (ac cident repor ts when reque sted by people ignor ant of key fac ts). The reque sts in those case s did not transg ress on the protec ted information. See A & T , 904 S.W .2d at 677 (informa tion reque sted conce rned comptroller’ s rec ords and actions); City of Lubbock , 993 S.W .2d at 465 (a ccide nt reports re quested by persons knowing key fac ts). By contra st, the statute at issue in this case deems confide ntial not just the specific ations of the secur ity sy stem, but also information that relates to the specific ations. The leg islature did not limit i t s p ro t ection to information that would reve al the exact specific ations throug h indirect means—for example, protec ting information listi ng the t y

pe of came ra purchase d beca use t hat knowledge could enable a reque stor to learn the specific ations from another source like an equipment manual or elec tronics store website. I nstead, the leg islature cast a protec tive shroud over all information that relates to the specific ations, there by g iving section 418.182(a) quite a broad rea ch in protec ting information reg arding secur ity sy stems d es i gned to protec t public proper ty

. There fore , we consider whether the imag es rec orded on t h e reque sted DVDs by the s ecur ity sy stem came ras relate to the s pecif i ca t i o ns of t he capitol secur ity sy stem, and whe ther the r equeste d video there fore trig g ers the c onfidentiality shield. DP S contends that the information on the DVDs rela tes to the specific ations of the capitol’s secur ity sy stem throug h its demonstration of the capa biliti es and use of th e ca m er as

10in the hallway outside the speake r’s office

. DPS’s Supplemental Answer s to I nter ro gat o ri es

attache d to the Observe r’s motion for partial summary judgme nt desc ri b e i nformation rela ting to specific ations that are reve aled by the imag es on the DV Ds. I n the answe rs, DPS states that:

• “View ing the DVDs at i ssue would reve al

. . . the came ras’ clar ity , rang e, ang le, the DVDs’ clar ity and prec ision, [and] whether the came ras rec ord in color or bla ck and w hite . . . .”

• “A terror ist could discern at exactly what point in the hallway objects that are simil ar in size to a

ny object being car

ried in the video become rec og nizable on the sec urity

came ra or

if objects that size ever

become rec og nizable.”

• “A terror ist could also discern at what point in the hallway fac es become rec og nizable . . . .”

• “View i n g t h e DVDs would also inform a viewer whether the sy stem’s rec ording abilities allow the rec orded imag e to be zoomed in and out, moved, enlar g ed, shar p ened, and/or brig htened—a ll further specific ations of the secur ity sy stem.”

DPS contends that this information relates t o the s pecif ications, opera ting procedur es, or l o ca t ion of the secur ity sy stem at the capitol and is protect ed fr o m disclosure under section 418.182(a)

. Appellee s arg ue that this information is not rela ted to the ty pe of i n fo rm ati on subject to the exception. The DVDs cer tainly contain som e information that is unrela ted t o the ex ception to disclosure at issue here

. The underly ing narr ative illust rate d by the imag es on the DVDs of who was in the hall, when they wer e there , and what they did while there is unrela ted to the specific ations of the secur ity sy stem. The medium of transmission of that underly ing narr ative, howeve r, inesca pably rela tes to the specific ations of the secur ity sy stem. T h e i m ag es on the DVDs are captur ed and

11repr oduced by the components of t he security sy stem. Specifica tions of a sec urity sy stem include the came ras’ capa

biliti es, and the DVDs demonstrate these capa biliti es throug h the char acte ristics, quality , and clar ity of the imag es rec orded. No single imag e, series of i m age s , o r day ’s footag e

nece ssarily reve als the full rang e of capa biliti es descr ibed by the specifi ca tions for the came ras, much less for the entire sy stem. Dis cl o s u re o f t h e full specific ations is not require d to trig g er confide ntiality , howeve r. Under the statute, information is confide ntial if it relates to the specific ations. See Tex. Gov’t Code Ann. § 418.182(a)

. The imag es rec orded on the DVDs rela te to the specific ations by demonstrating the capa biliti es of the came ras in action. The use this or any other reque stor might make of the knowledg e of the specific ations as reve aled by the imag es is not

a fac tor in our decision. The DVDs are confide ntial, n o t b ec au se a reque stor might use them to deduce particula

r specific ations of the secur ity sy stem, but b ec ause the information on the DVDs rela tes to the specific ations of the secur ity sy stem. We conclude that the rec orded imag es nece ssarily rela te to the specific ations of the secur ity sy stem that rec orde d t h em . Once this rela tionship is acknow ledg ed, the lang uag e of section 418.182 protec ts the information from disclosure. Whether this protec tion is g ood policy or in the public interest is a question for the leg islature. As it curr ently stands, section 418.182 is a plain leg islative choice to broadly protec t information relat i n g to

secur ity sy stems on public property . We apply that choice

. The lang uag e of the rema inder of section 418.182 limit i n g t h e scope of its exception does not alter the analy sis. The leg islature’s choice no t t o restric t public acc ess to financ ial info rm at i o n reg arding expenditures on secur ity sy stems ref lects the weig ht of the p u b lic’s interest in how its funds are being used. See id

. § 418.182(b). Al t h o u gh t h e

12financ ial information might be used t o d ed u ce information otherwise protec ted by the exception

including the specific ations of t he sy stem, the l eg islature has d etermined that the publ ic’s int ere st in the use of taxpay er reve nues justifies that risk. That choice is rec oncilable with a decision not to disclose video rec ording s of are as monitored by this sy stem that wo u l d s h ow the specific ations, opera ting proce dures, and locations in action—a differ ent, but rela ted, set of information. Simi larly , the choice to disclose information rela ting to the location of a secur ity came ra in a private office at

a state ag ency is not inconsistent with a choice to withhold rec ording s from secur ity came ras—e ven from a secur ity came ra in that private office

. See id

. § 418.182(c)

. Disclosing the location of such ca mera s does not require disclosure of inf ormation rela

ting to the spe cifica tions or opera ting proce dures. I n fac t, the statute still forbids disclosure of informa tion relating to the s pecif ications

or op er at i n g proce dures of came ras in private office s in public buildings. Whil e disclosure of
t h e location of such came ras might impinge on some of the conce rns raised by DPS in this case, that is the product of the leg islature’s policy deter mination that cre ated the Texas Public I nformation Act and its exceptions.

Appellee s arg

ue that the leg islature’s choice not to expressly deem all video rec orded by secur ity sy stems confide ntial is signific ant. The Obs er ver arg ues that finding this video confide ntial in the absenc e of such lang uag e incorre ctly ignor es the leg islature’ s choice to omit

s u ch l an gu ag e. See Laidlaw , 904 S.W .2d at 659. The leg islature, howeve r, chose to use t h e rela tively broad term “re lates to” in cre ating thi s ex ce p t i o n , to car ve out two express limit ations

on the ex ception in subsections (b) and (c) , and to not exempt video recor d ed b y t he sy stem from the exception. The limit ations on the scope of the confide ntiality exception in subsections (b) and

13(c) highlig ht the fac t that, had t h e l egislature wanted to require disclosure of video rec ording s, it

could have expressly done so. I nstead, the leg islature chose to exclude not just videos taken by

secur ity sy stems that rela te to the s y s t ems ’ specific ations, but other unspecifie d information that rela tes to the specific ations of the sy stem. We conclude that finding the video not confide ntial under section 418.182(a) would ignor e the leg islature’s choice to protec t all information that “re lates to the specific ations” as c onfidential.

Appellee s urg e that leg islative history shows that the leg islature did not intend DVDs containing video footage from the secur ity sy stem’s came ras to be confidential. When a st at ute’s lang uag e is clea

r and unambig uous, it is inappropria te to resor t to rules of construction or extrinsi c aids to construe the lang uag e. City of Rock wall v. Hughes , 246 S.W .3d 621, 626 (Tex. 2008). We have c oncluded that the w ords used in the statute c lear ly and unambig uously manifest an intent to shield all information that rela tes to the secur ity sy stem’s specific ations—information that includes the information on the DVDs at issue. Even if we considere d the leg islative history proposed by appellee s, we would not be persua ded to rea ch a differ ent conclusion. The leg islators quoted in the leg islative history

express a desire to ba lance the public’s rig ht to know how g overnme nt opera tes with the public’s interest in protec tion from terror ism. Not hing in their comments or in the leg islative history sug g ests that the lang uag e as passed does not strike this balanc e as the leg islature intended. Our conclusion in this case is consistent with the leg islature’s balanc e of those interests as expressed throug h the words of the statute. Be cause the DVDs contain video imag es re corde d by the ca pitol’s security sy stem, they contain informati o n t h at rela tes to the specific ations of a secur ity sy stem used to protec t

14public proper ty from an act of terror ism or rela ted criminal activity

. Acc ording ly , the DVDs at issue here are confide ntial and ex cepte d from dis closure. We need not consider whether t h e DV Ds are confide ntial or e x ce p t ed from dis closure under any other theory beca use t he determination would not alter the disposition of this case on a ppeal. See Tex. R. App. P . 47.1.

The Observ er’s Appeal

I n its appea l, the Observer contends that the trial court err ed by deny ing its motion
to file an amende d plea in intervention. The Observe r soug ht, a day afte r the hear ing on the motions for summary

judgme nt, to amend its petition t o include a petition for writ of m andamus. The amendment would have entitled the Observe r to attorney s’ fee s in the event it “subst an t i al l y preva iled” on its amende d petition. See Tex. Gov’t Code Ann. § 552.323 (West Supp. 2009). The trial court denied leave to amend and denied the Observe r’s reque st for a discre t ionary awa rd of attorney s’ fees related t o its decla ratory judgme nt action. See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 2008). The Observe r does not appea l the denial of the discretionar y awa rd, but contends that the trial court err ed by reje cting the amendment and, thus, barr ing the mandatory

awa rd of f ees. Be cause we conclude that the DVDs are not subject to disclosure, the Observe r is not entitled to mandamus relief order ing disclosure of the DVDs. Even if the amende d petition had been permitted, the Observe r would not substantially preva il on its claim for mandamus relief and would
not be entitled to attorney s’ fee s under section 552.323. Any err or in deny ing the motion for leave
to file the amende d petition wa s harmless. We need not consider whether the trial court err ed by

15deny ing the Observe r’s motion to file an amende d petition beca use a finding of err or would not alter the disposition of thi s case on appea l. See Tex. R. App. P . 47.1.

Conclu sion W e re verse the trial court’s g rant of the Observe r’s motion for par t i al summary judgme nt and the trial court’s denial of DPS’s motion for summary judgme nt. We g rant DPS’s motion and rende r judgme nt decla ring that the reque sted DVDs are co n fi d en t i al and that DPS is authorized to withhold them fr o m d i s cl osure pursuant to Texas Gover nment Code section 418.182(a ).

G. Alan Waldrop, Just ice Be fore J ustices Pury ear , Waldrop and He nson Reverse d and Rende red Filed: Apr il 29, 2010

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