### No. 03-15-00044-CV



# In the Court of Appeals for the Third Judicial District Austin, Texas

T EXAS 

### D EPARTMENT OF 

### C RIMINAL 

### J USTICE 

### , Appellant , v. M AURIE 

### L EVIN 

### , N AOMI 

### T ERR 

### , AND 

### H ILARY 

### S HEARD 

### , Appellees

. On Appeal from the 201st Judicial District Court of Travis County, Texas

A PPELLANT 

### ’ S 

### B RIEF



### K EN 

### P AXTON 

### Attorney General of Texas C HARLES 

### E. R OY 

### First Assistant Attorney General Scott A. Keller Solicitor General R ICHARD 

### B. F ARRER 

### Assistant Solicitor General State Bar No. 24055470 O FFICE OF THE 

### A TTORNEY 

### G ENERAL 

### P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1823 Fax: (512) 474-2697 richard.farrer@texasattorneygeneral.gov C OUNSEL FOR 

### A PPELLANT 

### O RAL 

### A RGUMENT 

### R EQUESTED ACCEPTED 03-15-00044-CV 5603446 THIRD COURT OF APPEALS

AUSTIN, TEXAS 6/9/2015 2:15:01 PM JEFFREY D. KYLE

CLERK

### i I DENTITY 

### O F 

### P ARTIES 

### A ND 

### C OUNSEL 

### Appellant : The Texas Department of Criminal Justice Lead Appellate Counsel Richard B. Farrer Assistant Solicitor General State Bar No. 24055470 O FFICE OF THE 

### A TTORNEY 

### G ENERAL 

### P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1823 Fax: (512) 474-2697 richard.farrer@texasattorneygeneral.gov Additional Appellate and Trial Counsel Adam W. Aston Joseph D. Hughes Nichole Bunker-Henderson David Alan Harris O FFICE OF THE 

### A TTORNEY 

### G ENERAL 

### P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Appellee s : Maurie Levin, Naomi Terr, and Hilary Sheard Counsel for Appellees Philip Durst State Bar No. 06287850 pdurst@ddollaw .com Manuel Quinto-Pozos State Bar No. 24070459 mqp@ddollaw.com D EATS 

### , D URST 

### , O WEN 

### & L EVY 

### P.L.L.C. 1204 San Antonio, Suite 203 Austin, Texas 78701 Telephone: (512) 474-6200

### ii

Facsimile: (512) 474-7896 Maurie Levin State Bar No. 00789452 M AURIE 

### L EVIN 

### , A TTORNEY AT 

### L AW 

### 211 South Street, #346 Philadelphia, PA 19147 (512) 294-1540 (215) 733-9225 (fax) maurielevin@gmail.com

### iii T ABLE 

### O F 

### C ONTENTS 

### Identity Of Parties And Counsel ................... ............................................. i Index Of Authorities ..............................

.................................................. vii Statement Of The Case ............................. ................................................ x Statement Regarding Oral Argument ................. .................................... xi Issues Presented ..................................

................................................... . xii Introduction ......................................

................................................... ...... 1 Statement Of Facts ................................

................................................... 3 A. Disclosure Of The Woodlands Compounding Pharmacy’s Identity In 2013 Creates A Firestorm .............. ...................... 3 B. A Pharmacy In Tulsa Receives A Disturbing Email From An Individual Named Nick Humez................ ............... 5 C. TDCJ Requests A DPS Threat Assessment ............. .............. 7 D. Plaintiffs Submit A PIA Request And Later Challenge An OAG Letter Ruling Finding The Identity Of The Pharmacy Supplying Texas’s Pentobarbital Should Not Be Disclosed. ..................................... .................................... 12 E. Plaintiffs Sue To Compel Disclosure And Obtain A TR O, Which The Texas Supreme Court Stays. .............. ................ 14 F. TDCJ Obtains A Further Expert Opinion And Plaintiff s Obtain An Expert Opinion Of Their Own. ............ ............... 15 G. The Legislature Removes Any Doubt That The Identity Of Texas’s Supplier Of Execution Drugs Is Not An Appropriate Subject For PIA Requests. ............. .................. 18 Summary Of Argument ............................... ............................................ 18

### iv

Standard Of Review ................................ ................................................ 21 Argument ..........................................

................................................... .... 23 I. Texas Department Of Public Safety v. Cox Defines The Contours Of The Physical-Safety Exception To Mandat ory Disclosure Under the PIA. ......................... .................................... 23 A. Cox

Provides That The Physical-Safety Exception Can Be Established Through Detailed Evidence Or Expert Testimony. ........................................ ..................................... 24 B. Threat Assessments From Law-Enforcement Agencies Receive Deference. ................................ ................................ 25 C. Cox

Shows How The Physical-Safety Exception Ought To Apply. ......................................... ...................................... 27 1. Cox

Shows Courts Should Ordinarily Not SecondGuess Law-Enforcement Threat Assessments. ......... .. 28 2. Cox

Shows Information Should Be Withheld If It Is Connected To The Threated Harm. ................ ......... 29 3. Cox

Also Shows The Limits Of The Exception. .......... . 30 II. The Court Should Reverse And Render Judgment Becaus e The Physical-Safety Exception Is Satisfied As A Mat ter Of Law. ..............................................

.................................................. 31 A. The Requested Disclosure Would Substantially Threaten Physical Harm. ........................... ........................... 31 1. The Humez Email Is Detailed Evidence Of A Substantial Threat Of Harm That Is Connected To The Requested Information. ........................ ................ 32 2. The “Firestorm” Surrounding The Woodlands Pharmacy Is Detailed Evidence Of A Substantial

### v Threat Of Harm That Is Connected To The Requested Information. ............................ ................... 34 3. The Exploding-Head Blog Posting Is Detailed Evidence Of A Substantial Threat Of Harm That Is Connected To The Requested Information. ........ ..... 35 4. Law Enforcement’s Reaction To The Woodlands Pharmacy “Firestorm” Is Detailed Evidence Of A Substantial Threat Of Harm That Is Connected To The Requested Information. ........................ ................ 35 5. Brad Livingston’s Testimony Is Detailed Evidence Of A Substantial Threat Of Harm That Is Connected To The Requested Information. ........... ...... 36 6. McCraw’s Threat Assessment Is Detailed Evidence Of A Substantial Threat Of Harm That Is Connected To The Requested Information And Is Entitled To Deference. ......................... .................... 38 B. The Assessments Provided By TDCJ’s Experts Independently Establish The Exception As A Matter O f Law. .............................................. ......................................... 42 1. McCraw’s Opinion Demonstrates A Substantial Threat Of Physical Harm. .......................... .................. 43 2. Cunningham’s Opinion Demonstrates A Substantial Threat Of Physical Harm................ ......... 44 C. Plaintiffs’ Arguments Below Misunderstood The Governing Standards. .............................. ............................. 47 1. Plaintiffs’ Arguments Below Assumed An Incorrect Legal Standard. ......................... ................... 48 2. Plaintiffs’ Efforts To Create A Battle Of Experts On An Issue With Immediate Public-Safety Implications Is Misguided. ........................ ................... 50

### vi

D. Plaintiffs’ Expert’s Testimony Should Not Have Been Considered And, In Any Event, Could Not Undermine TDCJ’s Experts’ Testimony. ........................ ......................... 51 1. Parker Is Not Qualified............................ .................... 52 2. Parker’s Opinion Does Not Have A Sufficient Basis And Is Unreliable. ................................ ........................ 53 III. In The Alternative And At The Very Least, The Court Should Remand Because Plaintiffs Cannot Show Entitlement T o Judgment As A Matter Of Law. ...................... ............................... 57 Prayer ............................................

................................................... ....... 58 Certificate of Service ............................

................................................... 60 Certificate of Compliance ......................... ............................................... 61

### vii I NDEX 

### O F 

### A UTHORITIES 

### Cases Al’s Formal Wear of Houston, Inc. v. Sun , 869 S.W.2d 442 (Tex. App.—Houston [1st Dist.] 1993, writ denied) ................................ ...................................... 22-23 Anderson v. Snider , 808 S.W.2d 54 (Tex. 1991) (per curiam) ............ ...................... 17, 44 Broders v. Heise , 924 S.W.2d 148 (Tex. 1996) ........................ .................................... 52 Calhoun v. Killian , 888 S.W.2d 51 (Tex. App.—Tyler 1994, writ denied) . ................... 22 City of Fort Worth v. Cornyn , 86 S.W.3d 320 (Tex. App.—Austin 2002, no pet.) .... ............... 22, 31 City of Garland v. Dallas Morning News , 22 S.W.3d 351 (Tex. 2000) ......................... ............................... 22, 31 E.I. du Pont de Nemours & Co. v. Robinson , 923 S.W.2d 549 (Tex. 1995) ........................ .............................. 52, 54 Merrell Dow Pharms., Inc. v. Havner , 953 S.W.2d 706 (Tex. 1997) ........................ .................................... 53 Office of Pub. Util. Counsel v. Texas-New Mexico Pow er Co ., 344 S.W.3d 446 (Tex. App.—Austin 2011, pet. denied) ................. 26 Sells v. Livingston , 561 F. App’x 342 (5th Cir. 2014) (per curiam) ..... ...................... 2, 15 Tex. Dep’t of Pub. Safety v. Cox Tex. Newspapers L.P. , 343 S.W.3d 112 (Tex. 2011) ......................

............................ passim Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex ., 253 S.W.3d 184 (Tex. 2007) ........................ .............................. 21, 22

### viii

Thomas v. Cornyn , 71 S.W.3d 473 (Tex. App.—Austin 2002, no pet.) .... ..................... 22 Transcon. Ins. Co. v. Crump , 330 S.W.3d 211 (Tex. 2010) ........................ .................................... 52 Whirlpool Corp. v. Camacho , 298 S.W.3d 631 (Tex. 2009) ........................ .................................... 54 Statutes T EX



### . G OV 

### ’ T 

### C ODE 

### §552.021 ......................................... .............................. 23 T EX



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### C ODE 

### §552.022 ......................................... ................... xi, 23, 24 T EX



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### ’ T 

### C ODE 

### §552.101 ......................................... ......................... xi, 23 T EX



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### ’ T 

### C ODE 

### §552.152 ......................................... .............................. 23 T EX



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### ’ T 

### C ODE 

### §552.301 ......................................... .............................. 13 T EX



### . G OV 

### ’ T 

### C ODE 

### §552.301(b) ...................................... ............................ 25 T EX



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### ’ T 

### C ODE 

### §552.301(e) ...................................... ............................ 26 T EX



### . G OV 

### ’ T 

### C ODE 

### §552.1081 ........................................ ............................. 18 Rules Tex. R. Civ. P. 166a(c) ........................... ...................................... 17, 44, 57 Tex. R. Evid. 401-03 ............................................ .................................... 51 Tex. R. Evid. 702 ................................. ........................................ 51, 52, 53 Tex. R. Evid. 703 .................................

................................................... . 53 Other Authorities 7 W ILLIAM 

### D ORSANEO 

### III, T EXAS 

### L ITIGATION 

### G UIDE 

### §101.07[3][a] (2014) .............................. .......................................... 57

### ix

Act of May 20, 2015, 84th Leg., R.S., S.B. 1697 ... .................................. 18 A LEX 

### W ILSON 

### A LBRIGHT 

### , T EXAS 

### C OURTS 

### A S URVEY 

### 461 (Imprimatur Press) (2010-2011) .................... ................................ 57 Crime in the United States 2012, athttp://www.fbi.gov/about-us/cjis/ucr/crime-in-theu.s/2012/crime-in-the-u.s.-2012/violent-crime/ viol entcrime (last visited June 4, 2015) ................. ................................... 45 Tex. Att’y Gen. OR2014-09184 (2014) ............................... ................. x, 13

### x S TATEMENT 

### O F 

### T HE 

### C ASE 

### Nature of the Case : This is an appeal from a final order on cross-motions for summary judgment involving a challenge, under the Texas Public Information Act (PIA), to a Texas Attorney General Open Records ruling. See Tex. Att’y Gen. OR2014-09184 (2014). Plaintiffs seek disclosure of information pertaining to the identity of the pharmacy that supplied compounded pentobarbital for use in Texas’s execution protocol. See CR.5-68, 388-447, 730. In response to the information request, the Texas Department of Criminal Justice (TDCJ) invoked the physical-safety exception to disclosure. See Tex. Dep’t of Pub. Safety v. Cox Tex. Newspapers L.P. , 343 S.W.3d 112 (Tex. 2011). Course of Proceedings : The parties filed cross-motions for summary judgment. See CR.520-729 (TDCJ); CR.730-1907 (Plaintiffs). Trial Court : The Honorable Darlene Byrne, 201st District Court, Travis County, Texas. Trial Court Disposition : The court granted Plaintiffs’ motion and denied TDCJ’s motion. CR.2297. It severed the remaining issues on attorney’s fees and costs, thereby making its merits determination final and appealable. CR.2305-06.

### xi S TATEMENT 

### R EGARDING 

### O RAL 

### A RGUMENT 

### The State requests oral argument. This appeal appe ars to present the first opportunity for a Texas appellate court t o substantively address the physical-safety exception to mandatory disclosu re of public information since the Texas Supreme Court first rec ognized the exception in Texas Department of Public Safety v. Cox , 343 S.W.3d 112 (Tex. 2011). The exception embodies the balance between the righ t to physical safety and the public’s interest in accessing public infor mation, and the Court’s decision will likely impact potentially dangerous a nd sensitive situations beyond the current dispute about access to informat ion on the compounding pharmacy supplying Texas’s execution dr ugs. The district court’s ruling implicitly credits Plai ntiffs’ arguments that misunderstand Cox and incorrectly frame the legal standard governing the physical-safety exception. Those arg uments dilute the exception, unacceptably raise the evidentiary bar f or satisfying it, and, if given credence by this Court, threaten an unaccepta ble risk of physical harm to the public resulting from the disclosure of sensitive information, in both this case and future cases.

### xii I SSUES 

### P RESENTED 

### 1. Whether the district court erred in denying TDCJ’s motion for summary judgment and granting Plaintiffs’ cross-mot ion for summary judgment because TDCJ demonstrated that the requested information is subject to the physical-sa fety exception to public disclosure as a matter of law. 2. Whether, in the alternative, Plaintiffs at most rai sed a genuine issue of material fact with respect to the physicalsafety exception such that a trial on the merits is required.

### I NTRODUCTION



### This appeal involves the physical-safety exception to the PIA’s general requirement that public information be disc losed to requestors. No appellate court has yet substantively reviewed a district court ruling applying or rejecting the exception since the Supre me Court announced it in Cox . This Court’s decision, therefore, will set the s tage for the exception’s application across a wide range of pote ntial scenarios involving public-safety concerns. There is, however, a danger that this appeal could become sidetracked due to the initial basis for Plaintiffs ’ request for disclosure. Plaintiffs initially invoked prohibitions on cruel and unusual punishment when they requested disclosure of a wide range of i nformation on Texas executions, including Texas’s execution protocol, t est results on the drug used, and information identifying Texas’s provider of the drug. Texas has disclosed all the requested information except the identity of the drug provider. In related federal litigation, the Fifth Circuit found that the federal constitutional right to be free from cruel and unusual punishment is not implicated by a request for information identifyin g a State’s

### 2

provider of execution drugs in situations like the one presented here. See Sells v. Livingston , 561 F. App’x 342 (5th Cir. 2014) (per curiam). Nonetheless, the narrow issue in dispute—the applic ability of the physical-safety exception to a request for disclosu re of public information—remains an important one. The exceptio n balances the public’s important statutory right of access to pub lic information with extremely serious public-safety concerns. The bala nce is a delicate one, and in announcing the exception Coxwisely placed a thumb on the publicsafety side of the scale. Accordingly, Coxrequires deference to lawenforcement assessments of the “probability of harm .” The touchstone of the analysis under the exception, Cox advised, is a connection between the threatened harm and the specific information re quested. The circumstances of this case satisfy all that Cox requires to enforce the exception, and much more. Here, there is specific evidence of a highly charged, potentially dangerous atmosphere surrounding the requested information. TDCJ offered two expert ass essments of an unacceptably high “probability of harm,” as Cox describes it, should the identity of the execution-drug supplier be disclose d. One of those assessments comes from the Director of the Texas De partment of Public

### 3

Safety, the other from a law-enforcement expert. A nd there is ample evidence connecting the disclosure of the identity of the execution-drug supplier with the threatened harm. Plaintiffs, for their part, offered an expert opinion that challenges only the severity of the “probability of harm,” and declines to address the connection betwe en the requested information and the potential harm identified by TD CJ’s experts. In these circumstances, the district court should have deferred to TDCJ’s experts’ assessments of an unacceptably high probab ility of harm, noted the conclusive evidence of a direct connection betw een the threatened harm and the information requested, and held that t he physical-safety exception is satisfied as a matter of law. The Court should reverse the district court and cla rify the standards for the physical-safety exception as well as their application. S TATEMENT 

### O F 

### F ACTS 

### A. Disclosure Of The Woodlands Compounding Pharmacy’s Identity In 2013 Creates A Firestorm. In the fall of 2013, the public learned that the Wo odlands Compounding Pharmacy was supplying Texas with pento barbital for use in executions. In the immediate wake of that publi c disclosure, the pharmacy and its pharmacist received a significant amount of hate mail.

### 4

E.g. , CR.581-88 (examples of emails); CR.558 (Affidavit of Brad Livingston noting, “TDCJ and selling pharmacies hav e long been concerned about the safety of the pharmacists provi ding the drugs used in executions, based on hate mail and threats to th e pharmacists”); CR.778 (news article quoting a letter from the phar macist referencing “hate mail and messages” received following the dis closure of the pharmacy’s identity). The pharmacist characterized the situation resulting from the disclosure as a “firestorm.” CR .1859 (“Now that the information has been made public, I find myself in the middle of a firestorm.”). An October 6, 2013 blog posting contributed to the “firestorm.” CR.578-79. It includes a depiction of a man with a n exploding head, over which a heading reads, “The Pharmacist who approves the business of killing, but only under the veil of secrecy.” CR.5 78. “Meet the pharmacist,” the posting continues, “who sold the m edical ethics [sic] and shamed his profession for $2,800, Mr. Jasper Lovoi, RPh .” Id

. (emphasis in original). The “firestorm” surrounding the release of the iden tity of the Woodlands Compounding Pharmacy was a significant ev ent for both law

### 5

enforcement and the pharmacy itself. The TDCJ Offi ce of the Inspector General and the Montgomery County Sheriff’s Office sent officers to observe and provide security at an October 9, 2013 protest of the pharmacy. CR.564; CR.729. And the pharmacy sent a letter to the TDCJ “demand[ing] that TDCJ immediately return the vials of compounded pentobarbital” already provided by the pharmacy. C R.1858-59. B. A Pharmacy In Tulsa Receives A Disturbing Email From An Individual Named Nick Humez. Shortly thereafter, the environment surrounding com pounding pharmacies supplying execution drugs took a further turn for the worse. On January 29, 2014, an individual named Nick Humez sent an email to the Apothecary Shop in Tulsa, Oklahoma, upon learni ng that the pharmacy was a possible supplier of Missouri’s exec ution drugs. CR.590. The email queries whether providing execution drugs is “prudent” and recommends “were I you [the pharmacy] I’d at least want to beef up my security now that you’ve been put in the spotlight. ” Id . “As the folks at the [Murrah] federal building can tell you,” the em ail explains, “it only takes one fanatic with a truckload of fertilizer to make a real dent in business as usual.” Id . “In your place,” the email continues, “I’d eithe r swear to the nation that my company didn’t make exe cution drugs of ANY

### 6

sort, and then make dang sure that’s true, or else openly accept the burden of putting my employees and myself at unacce ptable (and possibly uninsurable) risk.” Id

. Needless to say, the email got the authorities’ att ention. Federal agents questioned Humez about it and his underlying intentions in connection to the Apothecary Shop. See CR.593-95. Humez later discussed the reasoning motivating his email. He explained—to Plaintiff Levin, no less—that in draft ing and sending the email he was attempting to impress upon the Apothec ary Shop what he considered a very obvious danger of physical harm t hat the pharmacy employees, and others, face after the pharmacy was identified as a possible supplier of execution drugs: I wanted to make clear that now that it was generally known that the Apothecary Shoppe [sic] was in fact supply ing such toxins, even if they did not see it as simply wrong , they needed to be aware that many others did, and that some of them might be dangerous to them , their employees, and the surrounding bystanders if even one fanatic . . . with a rudimentary knowledge of improvised explosives chose to go on t he attack. I felt, and thought I had made it clear, that they would be reckless not to consider this possibility and to tak e appropriate action at the very least to protect against it , as I would surely do were I in their place.

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CR.593 (emphases added). Humez further clarified t o Plaintiff Levin that his “intention . . . [was] to warn some appare ntly ignorant people of the heightened risk they were taking on now that the nature of their activities was known nationwide.” CR.593-94 (empha sis added). Finally, and in case there was any doubt regarding his views , Humez also noted: I do know that there are extremists in the right-to-life movement who would regard destroying a death drug factory as equally justified with blowing up an abortion cl inic or . . . bombing the tracks that led to Auschwitz. CR.595 (emphasis added). C. TDCJ Requests A DPS Threat Assessment. TDCJ learned about Humez’s email to the Apothecary Shop in February 2014. See CR.699-700, 704. At the time, TDCJ was in the process of finding a new provider for pentobarbital to use in Texas executions. See CR.699-700, 704. Given the “firestorm” surrounding the release of the Woodlands Compounding Pharmacy’s ide ntity, and given Humez’s recent email to the pharmacy in Oklahoma, T DCJ’s Executive Director, Brad Livingston, grew concerned about pub lic safety in connection with the possible future disclosure of t he identity of the eventual new supplier of Texas’s execution drugs. See CR.639-40; CR.701-06.

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Livingston’s concerns were further heightened by th e fact that the director of Colorado’s Department of Corrections ha d been assassinated the previous March, and that Livingston had persona lly received a number of death threats both prior to and after tha t horrific event. CR.704-05. In sum, Livingston felt that “the worl d I live in” and the “security risks that are inherent in . . . the crim inal justice world [ ] had escalated in general and specifically over the last number of months.” CR.704. Anticipating the inevitable PIA requests for inform ation about Texas’s eventual new execution-drug provider, and c onsistent with his appraisal that the criminal-justice environment con tained “security risks . . . that had escalated in” recent times, id. , Livingston requested a threat assessment from the Director of the Texas De partment of Public Safety (DPS), Col. Steven McCraw. See CR.639-40; CR.701-06. Livingston knew that an assessment would be needed quickly, given that PIA requests would likely be submitted as soon as T DCJ obtained the pentobarbital. CR.639-40; CR.701-06. McCraw provided the requested threat assessment on March 7, 2014. His assessment concluded, in no uncertain te rms, that revealing

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the identity of the compounding pharmacy posed a su bstantial risk of physical harm: Pharmacies by design are easily accessible to the p ublic and present a soft target [for] violent attacks. It is our assessment that publicly linking a pharmacy or other drug supp lier to the production of controlled substances to be used in e xecutions presents a substantial threat of physical harm to t he pharmacy, other drug supplier and its personnel and should be avoided to the greatest extent possible. CR.556. McCraw has a wealth of expertise and experience in providing threat assessments. He began his law-enforcement c areer in 1977 and served for 21 years in the Federal Bureau of Invest igation. CR.630. To this day, McCraw has retained a high level security clearance issued by the federal government, and he routinely receives c lassified and unclassified material and briefings on current and future criminal and terrorism threats. CR.631. Further, McCraw serves as a member of the International Association of Chiefs of Police Commi ttee on Terrorism and the Department of Justice Bureau of Justice Assista nce Law Enforcement Forecasting Group, and he benefits from access to threat information and national experts who serve on those committees. Id

.

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DPS, where McCraw serves as Director, routinely con ducts threat assessments on people and places, and it produces s tate-wide public safety and homeland-security threat assessments in several areas. Id. DPS threat assessments cover a variety of public-sa fety issues, including terrorism, security, and other types of threats. C R.634. Immediately prior to joining DPS, McCraw served as Director of Homeland Security in Texas, where he established a state-wide, multidisciplinary process to assess homeland-securi ty and public-safety threats and vulnerabilities on terrorism, crime, pa ndemic, disease, natural disasters and industrial accidents. CR.631

. McCraw had high-level experience with law enforceme nt and threat assessments while serving with the FBI, in a ddition to his relevant experience while with Homeland Security in Texas an d DPS. For example, at the time he retired from the FBI, McCra w was the Assistant Director of the Inspection Division within the FBI and reported directly to the FBI Director. Id . Earlier in his FBI career, McCraw established an organizational threat process and oversaw threat assessments of major drug-trafficking organizations. CR.632.

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McCraw’s FBI career also included a stint as the fi rst Unit Chief of the Latin America and Caribbean Organized Crime/Dru g Unit, where he oversaw a combined DEA and FBI Threat Assessment Te am. Id. He also served in Arizona as the FBI’s first Assistant Spec ial Agent in Charge of the Tucson Resident Agency in the Phoenix Field Off ice, where his responsibilities included overseeing developing a c omprehensive threat assessment for Southern Arizona. CR.633. In addit ion, he spent time as Deputy Assistant Director in the Investigative Supp ort Division, a position in which he conducted threat assessments o n the new FBI Director and the new Attorney General. Id

. Following the September 11 terrorist attacks, McCra w was selected by the President to serve as the Director of the Fo reign Terrorism Tracking Task Force where he reported directly to D eputy Attorney General Larry Thompson at the Department of Justice and oversaw two threat assessments requested by the U.S. Attorney G eneral. Id

. Following another promotion within the FBI, McCraw served as Assistant Director, a position in which he oversaw several threat assessments across the full spectrum of FBI respons ibilities. CR.634.

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D. Plaintiffs Submit A PIA Request And Later Challenge An OAG Letter Ruling Finding The Identity Of The Pharmacy Supplying Texas’s Pentobarbital Should Not Be Disclosed. Plaintiffs Maurie Levin, Hilary Sheard, and Naomi T err serve as counsel for capital defendants. On March 18, 2014, citing the need to safeguard prisoners’ rights under the Eighth Amendm ent, Article I §13 of the Texas Constitution, and Article 43.24 of the Texas Code of Criminal Procedure, Plaintiffs requested under the PIA the f ollowing information relating to executions performed in Texas:

• “the execution protocol by which [Texas] intend[s] to carry out . . . scheduled execution[s],”

• “the drug or drugs, including back-up, [Texas] inte nd[s] to use,”

• “the source of those drugs,”

• “the date [the drugs were] ordered and received, an d”

• “any testing conducted to ensure potency, purity, a nd integrity.” CR.20-21; see CR.22. Although TDCJ released some of the requested inform ation, it claimed that some of it may be withheld from disclo sure under the PIA’s provisions. On March 25, 2014, TDCJ requested an o pen records decision from the Office of the Texas Attorney General on wh ether the requested

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information may be withheld from disclosure under t he physical-safety and other disclosure exceptions. See T EX



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### §552.301. In support of its request to withhold the information, TDCJ provided the McCraw threat assessment and supporting documentati on (including emails to the Woodlands Compounding Pharmacy, the “ exploding head” blog posting, and the Humez email). On May 29, 2014, the Office of the Attorney General issued a letter ruling finding that information identifying the pha rmacy (and pharmacist) is subject to the physical-safety excep tion and, therefore, should not be disclosed. See CR.550-54; Tex. Att’y Gen. OR2014-09184 (2014). Ultimately, TDCJ released to the requestors all the requested information, including test results, see, e.g. , CR.408, except information identifying the pharmacist and licensed compounding pharmacy that most recently supplied pentobarbital to Texas for u se in executions. See CR.524. TDCJ also divulged that the unnamed pharma cy is a licensed compounding pharmacy open to the public and located in an urban area of a Texas city. CR.561.

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E. Plaintiffs Sue To Compel Disclosure And Obtain A TRO, Which The Texas Supreme Court Stays. Meanwhile, on March 26, 2014—the day after TDCJ req uested an open-records ruling—Plaintiffs filed suit in Travis County District Court seeking, among other things, a TRO directing TDCJ t o immediately produce to Plaintiffs the information identifying t he pharmacy. CR.5-68. Plaintiffs also sought a temporary injunction and w rit of mandamus under T EX



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### §552.321 to compel disclosure of the information. On March 27, 2014, the district court found that “i f the disclosure of this information is not ordered immediately, [Pl aintiffs’ clients on death row] will suffer irreparable injury because [ their] constitutional right to be free from cruel and unusual punishment cannot be protected in the absence of the requested information.” CR.2 66. Accordingly, the court granted a TRO requiring disclosure to Plainti ffs and their counsel, and it ordered a hearing on the requested temporary injunction for April 10, 2014. CR.266-68. TDCJ promptly filed a petition for writ of mandamus and a stay motion in the Texas Supreme Court. The Court staye d the district court’s TRO later that same day. CR.270. The Court ultima tely denied TDCJ’s mandamus petition as moot because the TRO expired while the stay was

### 15

in effect, and the temporary-injunction hearing was likewise cancelled by the stay order. CR.305. On April 2, two inmates represented by Plaintiffs s ought and obtained a preliminary injunction in federal distri ct court, which stayed the inmates’ executions and ordered discovery (unde r a protective order) that would reveal the identity of the compounding p harmacy. The Fifth Circuit promptly vacated the stays and disclosure o rders for both inmates, and in doing so rejected arguments that th e right to be free from cruel and unusual punishment requires disclosure of the identity of the pharmacy providing the pentobarbital. See Sells , 561 F. App’x at 344-45. F. TDCJ Obtains A Further Expert Opinion And Plaintiffs Obtain An Expert Opinion Of Their Own. In connection with the underlying state court manda mus litigation brought under T EX



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### ’ T 

### C ODE 

### §552.321, TDCJ retained the services of a second law-enforcement expert, J. Lawrence Cunnin gham, to conduct a comprehensive threat assessment. Like DPS Direct or McCraw, Cunningham concluded that the disclosure of the pha rmacy’s identity would substantially threaten physical harm: Based on the totality of my diverse threat assessme nt training and experience in the public and private sectors, m y review of the documents listed above, and open source publica tions, I

### 16

conclude that there is a significant and substantia l threat of physical harm to the pharmacy/compounding pharmacy and pharmacist, and others in the vicinity of the pharmacy/compounding pharmacy if the identity of th e pharmacy/compounding pharmacy or pharmacist is publ icly disclosed. CR.625, 562-76. As with Col. McCraw, Cunningham’s qualifications to serve as an expert are extensive. See CR.605-28; see also CR.597-603 (Cunningham curriculum vitae ). Cunningham had a 20-year career as a secret ser vice agent, during which he supervised a major field off ice, conducted lead security advances, and performed risk assessments f or world leaders attending major events. CR.600. More recently as a consultant, he has evaluated, developed, and implemented integrated re sponse plans, security training programs, and security policies. Id

. Cunningham currently works as a consultant conducti ng risk assessments and security training for clients inclu ding the Department of Homeland Security, the Defense Threat Reduction Agency, a number of foreign and domestic corporations, and even fore ign governments. Id

. He also currently holds several Department of Homel and Security teaching certifications and serves as an adjunct fa culty member of the National Domestic Preparedness Consortium, where he develops and

### 17

evaluates courses and seminars on preventing and co untering terrorism and other threats of violence. CR.600-01. Prior to his current position, Cunningham served as an International Security Expert for the U.S. State De partment and as a Security Supervisor in charge of dignitary security for the Stanford University World Cup Soccer venue. CR.601. Cunningham’s 20-year career in the Secret Service i s striking. He served in the Presidential Protective Division at t he White House and taught courses and revised curricula dealing with t raining all levels of Secret Service personnel. CR.601-02. He earned sev en Performance Awards and the Albert Gallatin Award for 20 years o f meritorious government service. CR.602. TDCJ also provided the opinion of Brad Livingston, which they offered as the opinion of an interested expert unde r Texas Rule of Civil Procedure 166a(c) and cases like Anderson v. Snider , 808 S.W.2d 54, 55 (Tex. 1991) (per curiam). Plaintiffs submitted an expert opinion of their own , from Thomas Parker. Parker did not offer his own threat assess ment but instead only discussed the opinions of TDCJ’s experts, ultimatel y concluding that no

### 18

threat assessment could be made under the circumsta nces. See CR.804- 05. Plaintiffs also submitted affidavits from Plai ntiff Levin and Manuel Quinto-Pozos, an attorney representing Plaintiffs i n this matter. The parties filed cross-motions for summary judgmen t. The district court granted Plaintiffs’ motion and denied TDCJ’s motion. CR.2297. G. The Legislature Removes Any Doubt That The Identity Of Texas’s Supplier Of Execution Drugs Is Not An Appropriate Subject For PIA Requests. On May 28, 2015, Governor Abbott signed into law SB 1697, which goes into effect September 1, 2015, and applies pro spectively to PIA requests made after that date (and so does not cont rol this case). It provides, in pertinent part, that “[i]nformation is excepted from the requirements of Section 552.021” of the PIA “if it contains identifying information . . . , including” information that ide ntifies: any person or entity that manufactures, transports, tests, procures, compounds, prescribes, dispenses, or prov ides a substance or supplies used in an execution. Act of May 20, 2015, 84th Leg., R.S., S.B. 1697, §5 52.1081 (to be codified at T EX



### . G OV 

### ’ T 

### C ODE 

### §552.1081). S UMMARY 

### O F 

### A RGUMENT 

### Cox defines the contours of the physical-safety except ion and points the way to the correct disposition of this appeal. Cox provides that the

### 19

physical-safety exception can be established throug h detailed evidence or expert testimony. Cox further provides that an assessment from DPS or other law-enforcement agencies or experts on the pr obability of harm is entitled to deference from the courts. The key to withholding information under the exception is a connection between the req uested information and the harm about which law enforcement has expres sed concern. Where evidence or expert testimony shows such a con nection, the information should qualify for the exception. It i s only where a connection is lacking that a more robust evidentiar y showing is required to justify withholding the information. Here, TDCJ demonstrated its entitlement to judgment , through detailed evidence and expert testimony establishing the exception as a matter of law. The detailed evidence that shows a substantial threat of harm that is connected to the release of the reques ted information includes: (1) the email from Nick Humez referencing the bombing of the Murrah federal building in Oklahoma and noting the existence of extremists willing to commit violent acts in connec tion with their opposition to the death penalty; (2) the “firestorm ” of hate mail and vitriol surrounding the disclosure of the Woodlands Pharmac y as a supplier of

### 20

execution drugs; (3) the exploding-head blog identi fying the Woodlands Compounding Pharmacy’s pharmacist as a supplier of execution drugs and superimposing that information with a depiction of a man’s head exploding; (4) the reasonable decision by law enfor cement to monitor and police a protest at the Woodlands Pharmacy; (5) Bra d Livingston’s testimony regarding his public-safety concerns in c onnection with the possible disclosure of the identity of the Texas’s supplier of execution drugs; and (6) DPS Director McCraw’s assessment tha t there is a substantial likelihood of physical harm should the identity of the supplier be disclosed. The detailed evidence is independently confirmed by the expert opinions of both McCraw and Cunningham, which are e ntitled to receive—and should receive—deference. Plaintiffs’ arguments below challenging McCraw and Cunningham miss the mark. To start, Plaintiffs continually pr esented the district court with improper formulations of the governing s tandard. Further, Plaintiffs’ efforts to turn application of the exce ption into a “battle of the experts” are misguided. Cox contemplates deference to DPS and other law-enforcement agency threat assessments, not a wa r of experts in every

### 21

case, with the public’s safety hanging in the balan ce. Plaintiffs’ expert Parker’s testimony, in any event, does nothing to u ndermine the detailed evidence demonstrating TDCJ’s establishment of the exception as a matter of law, or to undermine TDCJ’s expert’s opin ions. Parker is not qualified, and his opinions lack a sufficient basis and are unreliable. The foregoing establishes TDCJ’s entitlement to jud gment as a matter of law, and the Court should reverse the dis trict court and render judgment for TDJC. Finally, because Plaintiffs at most could only rais e a genuine issue of material fact regarding the physical-safety exce ption, the case (at worst) should be remanded for trial on the merits. S TANDARD 

### O F 

### R EVIEW 

### Although the denial of a summary judgment motion ty pically is not reviewable, review is appropriate here because the district court ruled on cross-motions for summary judgment, and because it severed its summary-judgment order. Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex ., 253 S.W.3d 184, 192 (Tex. 2007). Because TDCJ r aised an exception to mandatory disclosure under the PIA as the basis for its summary judgment request, TDCJ bore the burden in t he district court

### 22

of demonstrating that the exception is satisfied. See, e.g. , Thomas v. Cornyn , 71 S.W.3d 473, 488 (Tex. App.—Austin 2002, no pet .) (“[W]e hold that a governing body should bear the burden of pro ving in a judicial proceeding that an exception to disclosure applies. ”). Likewise, Plaintiffs bore the burden to show their entitlement to judgme nt; cross-motions for summary judgment require that “each party bears the burden of establishing that it is entitled to judgment as a m atter of law.” City of Garland v. Dallas Morning News , 22 S.W.3d 351, 356 (Tex. 2000); City of Fort Worth v. Cornyn , 86 S.W.3d 320, 322 (Tex. App.—Austin 2002, no pet.). This Court reviews the district court’s ruling on s ummary judgment cross-motions de novo by examining the evidence, determining all issues presented, and rendering the judgment the district court should have rendered. Tex. Mun. Power Agency , 253 S.W.3d at 192. If neither party has satisfied its burden to show it is entitled to judgment as a matter of law, and disputed issues of fact therefore remain, a reviewing court should remand the case for trial on the merits. E.g ., Calhoun v. Killian , 888 S.W.2d 51, 54 (Tex. App.—Tyler 1994, writ denie d); Al’s Formal Wear

### 23

of Houston, Inc. v. Sun , 869 S.W.2d 442, 444 (Tex. App.—Houston [1st Dist.] 1993, writ denied). A RGUMENT 

### I. T

EXAS 

### D EPARTMENT 

### O F 

### P UBLIC 

### S AFETY V 

### . C OX 

### D EFINES 

### T HE 

### C ONTOURS 

### O F 

### T HE 

### P HYSICAL 

### -S AFETY 

### E XCEPTION 

### T O 

### M ANDATORY 

### D ISCLOSURE 

### U NDER THE 

### PIA. Under the PIA, “public information is available to the public” upon request, T EX



### . G OV 

### ’ T 

### C ODE 

### §552.021, “subject to certain exceptions.” Cox , 343 S.W.3d at 114. Some exceptions are specified i n the PIA’s text; 1 

### others arise from the common law or other law and a re incorporated into the PIA’s scheme by other PIA provisions. See, e.g. , T EX



### . G OV 

### ’ T 

### C ODE 

### §§552.101 & 552.022. “Th[e] exceptions embrace the understanding that the public’s right to know is tempered by the indiv idual and other interests at stake in disclosing that information.” 2 

### Cox , 343 S.W.3d at

1 There is a statutory public-safety exception—not at issue here—that involves information “that relates to an employee or officer of [a] governmental body.” T EX

. G OV ’ T C ODE §552.152.

2 The PIA also involves another issue that features in, and often complicates, the PIA case law but that is not particularly relev ant for present purposes. In 1999, amendments to the PIA excluded “certain categories of public information from the [PIA’s] exceptions” to disclosure. Id . Those categories of information—often referred to as core-public or super-public information—are l isted in §552.022. Under the 1999 amendments, information falling into a §552.022 cat egory was protected from disclosure only if it was “expressly confidential u nder other law.” Id . (internal quotation marks omitted). “‘Other law,’” for the 1 999 amendment’s purposes,

### 24

114. One such exception is the physical-safety exc eption, which derives from the common law, was announced in Cox , and is at issue here. A. Cox Provides That The Physical-Safety Exception Can Be Established Through Detailed Evidence Or Expert Testimony. Cox announced as a matter of first impression that info rmation requested for disclosure under the PIA may be withh eld, under a common-law physical-safety exception, if disclosure “would substantially threaten physical harm.” 343 S.W.3d at 119. Cox explains that the exception requires courts to “cl osely examine each of the disputed documents” subject to a disclo sure request; the “dividing line between disclosure and restraint” as to each document is “determined by proof.” Id . at 118-19. The requisite proof that disclosure

“include[d] other statutes [apart from the PIA], ju dicial decisions, and rules promulgated by the judiciary.” Id

. The core-public designation is tangential to the is sues presented here because under Cox , §552.022’s “other law” includes the common law ri ght to be free from physical harm. Id . at 118. Cox ’s physical-safety exception to mandatory disclosur e, in other words, applies to core-public information. The Legislature later amended §552.022 for disclosu re requests coming after September 1, 2011, to provide that information fall ing into a §552.022 category may be protected from disclosure if it is confidential “under this chapter or other law.” T EX

. G OV ’ T C ODE §552.022.

### 25

would substantially threaten physical harm may come through either “detailed evidence or expert testimony.” Id . at 119 (emphasis added). B. Threat Assessments From Law-Enforcement Agencies Receive Deference. Cox recognizes the utility of a law-enforcement expert ’s assessment “about the probability of harm” surrounding a propo sed release of information. Id . If the assessment comes from “DPS officers” or “ other law enforcement experts,” “a certain amount of defe rence must be afforded” to it. Id . (emphasis added). In Cox , for example, the Court required deference to an assessment of risk from DP S even though DPS was a party to the litigation. Id

. The PIA’s statutory scheme provides governmental bo dies, like the TDCJ in this case, only a short amount of time to d etermine whether the requested information qualifies for an exception to disclosure. This means that a law-enforcement assessment “about the probability of harm” may in some cases be somewhat abbreviated. I ndeed, a governmental body subject to a PIA request by statu te has only 10 days either to produce requested information or seek a r uling from the Open Records Division of the Office of the Attorney Gene ral on whether the information may be withheld. See T EX



### . G OV 

### ’ T 

### C ODE 

### §552.301(b). If a

### 26

ruling is sought, the governmental body has only 15 days from the initial information request to submit written comments to t he Office of the Attorney General stating why the information qualif ies for exception from disclosure. Id . §552.301(e). This accelerated timeline and Cox ’s required deference to a DPS or law-enforcement-expert assessment means that assess ments of publicsafety risk must be taken seriously and ordinarily should receive deference from the courts, even when they are provi ded in relatively short order. After all, law enforcement officials are the experts on public safety issues, including ones that come to light qu ickly. It makes sense that their assessments of public-safety threats sho uld be respected, absent a significant showing to the contrary. Cf. Office of Pub. Util. Counsel v. Texas-New Mexico Power Co ., 344 S.W.3d 446, 450 (Tex. App.—Austin 2011, pet. denied) (agency determination in an area of agency expertise is reviewed for substantial eviden ce, which requires presumption that it is supported by substantial evi dence and requires complaining party to overcome that presumption). Recognizing that deference is owed to law-enforceme nt assessments “about the probability of harm” is not tantamount to

### 27

providing governmental bodies carte blanche to with hold every shred of information possibly connected to a public-safety s ituation. Cox explains that “vague assertions of risk” alone “will not car ry the day” under the exception. 343 S.W.3d at 119. Again, the touchsto ne is proof , which is to say proof connecting

specific requested information to the threatened harm. See id

. C. Cox Shows How The Physical-Safety Exception Ought To Apply. Cox demonstrates how the principles governing the phys ical-safety exception ought to apply. Cox involved requests for disclosure from newspapers seeking information in travel vouchers f rom the governor’s security detail. Id . The DPS, which is responsible for the governor’s protective detail, offered to release only aggregat e expense information derived from the vouchers but warned that releasing the vouchers themselves would “necessarily reveal the number of officers who traveled with the governor and his family, data that would b e valuable information for someone who intended to cause the g overnor harm.” Id

. (internal quotation marks and brackets omitted). Although the Court remanded the case for applicatio n of the newly announced standard governing the exception, it none theless instructed

### 28

that information revealing the number, “specific lo cation,” and “identity” of the guards protecting the governor should satisf y the exception. Id . at 118-19. This was so, the Court explained, because the information could give a potential and as-yet unidentified person who might be “intent on harming” the governor “the means to accomplish that goal.” Id . at 118- 19. Indeed, with respect to the “number of guards protecting the governor,” the Court indicated that the exception i n fact was already satisfied. Id . at 119 (“To the extent DPS can show . . . that re velation substantially threatens harm— as it has with respect to the number of guards protecting the governor—then the information at issue may be withheld.” (emphasis added)). Three aspects of the Cox decision bear emphasis.

1. Cox Shows Courts Should Ordinarily Not SecondGuess Law-Enforcement Threat Assessments. Cox demonstrates the deference owed to a law-enforceme nt assessment of the probability of harm. Although DP S was a party in that case, the Court nonetheless deferred to DPS’s threa t assessment. In doing so, the Court: (1) did not demand a full-blow n expert opinion from DPS; (2) did not contemplate a “battle of experts” in every case to resolve whether there was a substantial probability that re leasing the

### 29

information might lead to physical harm; (3) did no t require evidence of an actual specific, identifiable violent “threat”; (4) did not require evidence that such a threat was likely or that viol ence was likely, or instruct the district court on remand to demand any such evidence; and (5) did not require evidence of a past incident of violence by a particular

person or group. See id

. In short, Cox

teaches that when DPS or other law-enforcement agencies or officials conclude that there is a subs tantial probability of physical harm associated with releasing requested i nformation, courts should defer to that overall assessment.

2. Cox Shows Information Should Be Withheld If It Is Connected To The Threated Harm. Cox teaches that the focus should be on the connection between requested information and the threatened harm. Thu s, where the record connected requested information to the DPS’s legiti mate concern about the governor’s safety, the Court did not hesitate t o signal that the information should qualify under the exception. Fo r example, information revealing “specific details about the n umber of officers assigned to protect the governor,” “their general l ocation in relation to him,” “their dates of travel,” “the number of offic ers . . . necessary for the

### 30

governor’s security,” “the specific location . . . where the officers resided,” “and the identity of each officer” “may be withheld ” because that information could assist a person intent on harming the governor or his family. Id . at 118-19.

3. Cox Also Shows The Limits Of The Exception. Cox also indicates that an assessment of the “probabil ity of harm” does not automatically shield all requested informa tion from disclosure. Rather, each piece of information needs evidence co nnecting the information to the threatened harm. As the Court e xplained, the dividing line between disclosure and restraint must be determined by proof. To the extent DPS can show, w ith detailed evidence or expert testimony, that revelat ion substantially threatens harm—as it has with respect to the number of guards protecting the governor—then the information at issue may be withheld. Id . at 119. Under this reasoning, efforts to withhol d “all but the ultimate dollar figure for [the governor’s] trips abroad” re quired more evidentiary support connecting the specific information to the governor’s safety. Id

. Thus, for all information about trips abroad to qualify for the e xception, the record would need to explain how disclosing eac h item of information could contribute to the probability of harm to the governor. See id

.

### 31

II. T HE 

### C OURT 

### S HOULD 

### R EVERSE 

### A ND 

### R ENDER 

### J UDGMENT 

### B ECAUSE 

### T HE 

### P HYSICAL 

### -S AFETY 

### E XCEPTION 

### I S 

### S ATISFIED 

### A S 

### A M ATTER 

### O F 

### L AW 

### . Under the teachings of Cox , the record conclusively establishes that the identity of the compounding pharmacy and its ph armacist qualify for the physical-safety exception as a matter of law. See City of Garland , 22 S.W.3d at 356-57; City of Fort Worth , 86 S.W.3d at 322. Through both detailed evidence and expert testimony—although either alone would suffice—TDCJ conclusively satisfied the physical-sa fety exception as a matter of law. The Court should reverse and render judgement for TDCJ. A. The Requested Disclosure Would Substantially Threaten Physical Harm. TDCJ satisfied the physical-safety exception, as a matter of law, with respect to the identity of the compounding pha rmacy. It is important to keep in mind that, unlike the situatio n in Cox , TDCJ does not claim that all the requested information is subject to the physicalsafety exception. Rather, TDCJ has released all of the requested information with only one exception—information tha t would identify the compounding pharmacy and its pharmacist. With rega rd to that specific information, detailed evidence, including a DPS thr eat assessment entitled to deference, reveals that disclosure woul d substantially

### 32

threaten physical harm. Moreover, both the detaile d evidence and expert testimony illustrate a clear connection between the requested information and the threatened harm.

1. The Humez Email Is Detailed Evidence Of A Substantial Threat Of Harm That Is Connected To The Requested Information. In the weeks prior to the PIA request in this case, the disclosure of the identity of a provider of execution drugs led t o troubling and threatening developments in Oklahoma. This undispu ted evidence alone conclusively establishes a substantial threat of ph ysical harm and readily connects the specific information requested for dis closure to the threatened harm. See Cox , 343 S.W.3d at 119. The undisputed content of Humez’s email, and the ex tent to which federal and state law enforcement took the email se riously, exceeds what is required to demonstrate a substantial threat of physical harm, as a matter of law. In the email, Humez questioned the “pruden[ce]” of providing the drugs and recommended “beef[ing] up” security “now that you’ve been put in the spotlight.” CR.590. “[I]t only takes one fanatic with a truckload of fertilizer,” warned Humez. Id . Even an individual like Humez recognized that providing execution drug s publicly carries a

### 33

“burden of putting [one’s] employees and [oneself] at unacceptable (and possibly uninsurable) risk.” Id .; see also CR.595 (likening bombing a provider of execution drugs to “blowing up an abort ion clinic” or “bombing the tracks that led to Auschwitz.”). This risk, Hu mez noted, is “reckless,” given the fervor surrounding executions. CR.593. Even the FBI questioned Humez about his email, see CR.593-94, and TDCJ Executive Director Livingston considered the email an actual threat, setting aside its propensity to outline and describe an unaccepta bly threatening environment. See CR.558. As Cox teaches, an actual explicit threat of violence is not required to find a substantial thre at of physical harm. 343 S.W.3d at 119. The direct connection between the request for infor mation concerning the identity of the pharmacy and the thr eatened harm is readily established by Humez’s email. It was virtu ally on the heels of the disclosure of the Apothecary Shop’s identity that H umez sent his missive. Humez himself confirmed the obvious nexus between t he identity of the pharmacy and a threat of physical harm when he reco gnized that “ now that it [is] generally known that the Apothecary Sh oppe was in fact supplying” the drugs, some people might object and “some of them [the

### 34

objectors] might be dangerous to them [the pharmacy ], their employees, and the surrounding bystanders.” CR.593 (emphasis added).

2. The “Firestorm” Surrounding The Woodlands Pharmacy Is Detailed Evidence Of A Substantial Threat Of Harm That Is Connected To The Requested Information. Additionally, the “firestorm” of hate mail and thre ats surrounding the disclosure of the identity of the Woodlands Com pounding Pharmacy constitutes detailed evidence demonstrating a subst antial threat of physical harm that is directly connected to the ide ntity of the pharmacy providing execution drugs. See CR.1859 (“Now that the information has been made public, I find myself in the middle of a firestorm.”); see also CR.581-88; CR.778. Again, as with the Humez email, whether these email s themselves each constitute actual explicit threats of violence is not the only consideration. The emails’ existence and vitriolic character are on-point evidence of a dangerous environment directly connec ted to the requested information.

### 35 3. The Exploding-Head Blog Posting Is Detailed Evidence Of A Substantial Threat Of Harm That Is Connected To The Requested Information. The October 6, 2013 blog posting further proves a s ubstantial threat of physical harm connected to the identity of the p harmacy. CR.578-79. Almost immediately after the identity of the Woodla nds Pharmacy was revealed, the posting appeared, including its pictu re of the pharmacist’s head exploding and caption entitled, “Meet the phar macist who sold the medical ethics [sic] and shamed his profession for $2,800, Mr. Jasper Lovoi, RPh .” CR.578 (emphasis in original). Again, as with t he emails, whether the blog posting itself is an actual explic it threat of violence is not the only, or even the controlling, consideratio n.

4. Law Enforcement’s Reaction To The Woodlands Pharmacy “Firestorm” Is Detailed Evidence Of A Substantial Threat Of Harm That Is Connected To The Requested Information. Next comes law enforcement’s reaction to the Woodla nds Pharmacy situation, and it too is detailed evidence of a sub stantial threat of physical harm connected to the pharmacy’s identity. The “fi restorm” surrounding the disclosure of the Woodlands Pharmacy’s identity posed a sufficiently serious threat of harm to prompt the TDCJ Office of the Inspector General and the Montgomery County Sheriff’s office to dispatch officers

### 36

to observe and provide security at a protest of the pharmacy. See CR.564; CR.729. The connection between the identity of the pharmacy and a potential security risk warranting a law-enforcemen t presence is again obvious: the protest was held at the pharmacy beca use its identity was disclosed to the public.

5. Brad Livingston’s Testimony Is Detailed Evidence Of A Substantial Threat Of Harm That Is Connected To The Requested Information. The determination of TDCJ Executive Director Brad L ivingston— before any PIA request for disclosure was ever submitted— that he needed to take the necessary steps to ensure the id entity of the pharmacy remained confidential is further proof of a substan tial threat of harm. Livingston based his determination on “threats of h arm” that have “certainly escalated in degree and type” in recent times, not vague assertions of risk. CR.559. Specifically, he cite d the “graphic example on the Internet, dated October 6, 2013, [which] shows a graphic of the screaming and violently exploding head of the [Wood land compounding Pharmacy] pharmacists who [previously] supplied TDC J with lethal injection chemicals.” Id . He also referenced the Humez email, which he described as “a very recent threat to a pharmacist and their pharmacy

### 37

wherein it was threatened to place a truck filled w ith fertilizer in front of the pharmacy and blow it up.” CR.558. Livingston summed up his assessment of the threat e nvironment and its immediate connection to the identity of the compounding pharmacy when he explained why he sought a threat a ssessment from McCraw. To begin, he recognized, based on his own expertise, that the threat environment was “serious.” CR. 1343. He al so noted a clear nexus between the disclosure of the identity of a pharmac y supplying execution drugs and threats to the pharmacy: [T]here is an immediate, in my view, nexus between when a compounding pharmacy is made public and the immedia cy or nearly immediacy of the harassing E-mails and threa ts – it happened both in this case and in January of 2014 w ith respect to The Apothecary Shop in Oklahoma. The da y after it was reported that they were the likely supplier of compounded drugs to the Department of Corrections i n Missouri, a very significant and real threat -- thr eatening Email was sent. CR.1343-44. In addition to concerns specific to ex ecution drugs and the identity of the supplying pharmacy, Livingston furt her noted the nature of the larger criminal-justice environment within w hich he, and any supplier of execution drugs, must operate: [T]hat spring of 2014 was a very unsettled and dang erous world. The context included security risks that ar e inherent

### 38

in -- in the criminal justice world that had escala ted in general and specifically over the last number of months . . . . [W]e’re just roughly a year removed from the director of th e Colorado Department of Corrections being assassinated on Mar ch the 19th . . . . At that same time there were specific death threats to me, both just prior to the Executive Director in Colorado’s assassination and just shortly after it. CR.1344-45.

6. McCraw’s Threat Assessment Is Detailed Evidence Of A Substantial Threat Of Harm That Is Connected To The Requested Information And Is Entitled To Deference. In response to Livingston’s concerns, TDCJ obtained and provided the OAG and the district court with a threat assess ment from Director of DPS McCraw. Under Cox , McCraw’s assessment of the “probability of harm” is entitled to deference, so long as it is no t a “vague assertion[] of risk.” Cox , 343 S.W.3d at 119. McCraw’s assessment is anything but a vague asserti on. McCraw conducted the assessment based on the documents and evidence just described, as well as open source information and h is own expertise, training, and skill in law enforcement. See CR.634 (noting that his assessment was based on his “training and experienc e received throughout my law enforcement career, including my training and experience of conducting threat assessments for the Attorney General of

### 39

the United States and the director of the FBI.”); C R.635-36. Although McCraw is not a party to this litigation and has no interest in its outcome, he was nonetheless generally familiar with the issu es at the time Livingston requested a threat assessment from him. CR.634. McCraw connected the specific evidence he considere d with his ultimate conclusion about the threat environment. He also connected his threat assessment to the identity of the compoundin g pharmacy currently at issue. He explained that he reviewed and based his assessment on, “among other things,” “an email thre at to the apothecary shop in Oklahoma when it was revealed as a supplier of execution drugs” as well as email and blog posts setting out “excori ating criticisms of the Woodlands Pharmacy and Mr. Lovoi after TDCJ reveale d the identity of the supplier of execution drug in 2013.” CR.635; C R.686-87. McCraw’s methodology “consider[ed] the product of vulnerabil ity, probability, and consequences to determine the severity of a threat. ” Id

. McCraw specifically explained how his assessment wa s informed by the underlying evidence of threatened violence surr ounding prior disclosures of the identity of execution-drug suppl iers. Regarding the Humez email, McCraw explained:

### 40

I considered the email from Professor Humez to the Oklahoma pharmacy . . . to constitute a serious threat. The email is indicative of the fervor surrounding the death pena lty issue that, in my opinion, may likely lead to violence ag ainst the compounding pharmacy if the identity is released. CR.635. Similarly, “the other emails” in the recor d that he considered, although they “did not contain direct threats” of v iolence in and of themselves nonetheless “demonstrate the tension and attention surrounding the provision of execution drugs to TDC J, which is likely to lead to violence against the compounding pharmacy i f the identity is disclosed.” CR.636. Given all this detailed evide nce, McCraw’s assessment of a threat based on it is anything but a “vague assertion[]” Cox , 343 S.W.3d at 119. McCraw’s assessment of the pharmacy’s high vulnerab ility is similarly supported by specific details, and it als o is no vague assertion. He based the assessment on the fact that “the curre nt compounding pharmacy is open to the public and located in an ur ban area of a Texas city.” CR.635. He noted that when researching the Woodlands Pharmacy, he was able to “locate the pharmacy’s we bsite and then from open source information I could easily identify and locate the pharmacy’s employees and their family members.” Id . Moreover, public

### 41

“[p]harmacies are by design easily accessible to th e public.” Id . Thus, “[a]ny pharmacy that is located in a city and open to the public is easily accessible and presents a ‘soft-target,’ meaning it is an easy target for violence, and generally unprotected by significant security measures.” Id . “The threat extends beyond those inside the phar macy itself, because violence that occurs near the pharmacy can injure b ystanders as well.” Id

. Before reaching his conclusion, McCraw also conside red “other acts of violence” as well as the conduct of “radical fan atics, such as opponents to abortion and animal testing.” CR.636. Ultimat ely, McCraw concluded: If the supplier is identified, there is a substanti al (or significant) threat of physical harm to the pharmac ist, employees, customers, or bystanders. Issues of pass ion, including the death penalty, inherently pose a sign ificant risk of escalation to violence. Moreover, not all acts o f violence are preceded by threats. For example, the murder of the district attorney in Kaufman County was not preceded by a kn own threat. It will be difficult, if not impossible, t o stop violence against a supplier if the person seeking to cause h arm does not put the supplier on notice prior to an attack. *** It is my opinion, based on my law enforcement train ing and experience, as well as the documents, materials, an d conversations in this case, that there is absolutel y a

### 42

substantial threat of physical harm that would resu lt from the release of the name of the supplier of the executio n drug. Id

. In sum, detailed evidence conclusively establishes as a matter of law that there is a substantial threat of physical harm in connection with the possible release of information identifying the pharmacy and pharmacist providing execution drugs to Texas. B. The Assessments Provided By TDCJ’s Experts Independently Establish The Exception As A Matter Of Law. Although TDCJ was not required to provide a law-enforcementexpert opinion, it nonetheless provided two such opinions. See Cox , 343 S.W.3d at 119 (exception may be established by “det ailed evidence or expert testimony”). TDCJ offered the deposition an d affidavit testimony of a retained expert, Cunningham, as well as the al ready discussed deposition and affidavit testimony of an unretained nonparty expert, McCraw. Both opinions are entitled to deference wi th regard to their assessment of the probability of harm, and they ind ependently (and in combination) confirm that the requested information should not be disclosed because the physical-safety exception is satisfied as a matter of law.

### 43

It is difficult to imagine expert witnesses more qu alified to testify on threat assessments than Cunningham and McCraw. Cunningham has spent the vast majority of his 40-year professi onal career performing threat assessments and teaching others how to perfo rm them. See pp. 15-18 supra . McCraw, likewise, has extensive relevant experie nce, including (among other things) 21 years in the FBI as well as service as Director of Homeland Security in Texas and as Direc tor of the Foreign Terrorism Tracking Task Force, where he reported di rectly to Deputy Attorney General Larry Thompson at the Department o f Justice and oversaw two threat assessments requested by the U.S . Attorney General. CR.633; see pp. 8-11 supra .

1. McCraw’s Opinion Demonstrates A Substantial Threat Of Physical Harm. TDCJ offered an expert threat assessment from DPS’s Director, Col. McCraw. As discussed above, McCraw’s assessme nt of the probability of harm is entitled to deference under Cox

. See Part II.A.6

supra. Moreover, as also discussed at length above, the pr obability of harm identified by McCraw (and Livingston and, late r, Cunningham) is connected by detailed, specific evidence to the inf ormation that has been requested here, namely the identity of the compound ing pharmacy. See

### 44

Part II.A.1-6. McCraw’s opinion is “clear, positiv e, and direct,” is “credible and free from contradictions and inconsis tencies,” and therefore constitutes valid summary-judgment evidence that co nclusively establishes TDCJ’s entitlement to judgment as a mat ter of law. See T EX



### . R. C IV



### . P. 166a(c); see Anderson , 808 S.W.2d at 55.

2. Cunningham’s Opinion Demonstrates A Substantial Threat Of Physical Harm. Cunningham, a qualified expert on threat assessment s with extensive current assessment training and experienc e, conducted an extensive threat assessment and concluded that ther e is a substantial threat of physical harm. Cunningham based his opin ion on (1) the documents provided to McCraw, (2) his own substanti al experience and background as a law-enforcement expert, and (3) his own independent research. CR.567-74. Cunningham examined a number of factors in developi ng his opinion. CR.625-26. First, he referred to an incr ease in violent crime in the U.S. between 2011 and 2012, including shootings and bombings, and an increase in the number of terror cells in the U. S.. See CR.668-69, 625. This information, he explained, was derived from th e FBI’s database, accessible via its website, which reflects a “.7 pe rcent increase [in] violent

### 45

crime in the United States from 2011 to 2012.” CR. 669; see Crime in the United States 2012, at http://www.fbi.gov/about-us/ cjis/ucr/crime-in-theu.s/2012/crime-in-the-u.s.-2012/violent-crime/ viol ent-crime (last visited June 4, 2015). Cunningham also referred to the “Al cohol Tobacco and Firearms . . . database,” which “shows that there w ere 5900 bombing incidents domestically this past year, 2013, up 300 , approximately, from 2012.” CR.669. He also relied on his own “researc h in developing two courses which I teach for Homeland Security, NCBRT, prevention and deterrence of terrorism,” in which “we talk about t rends of terrorism and violent acts domestically and internationally.” Id . He further relied on his “work as a primary author on [a] campus emergen cies course . . . where we talk about tracking violence on [college] campuses.” Id

. Cunningham also referred to the sociopolitical clim ate surrounding certain policy issues that invoke great passion, li ke abortion, and he addressed the amount of violence related to and dir ected at abortion clinics, abortion doctors, and businesses and unive rsities involved in animal research. CR.660, 673-77, 681. Cunningham provided statistics documenting violence against abortion clinics durin g the past 38 years: I will tell you that in -- from ‘77 to 2013, there were eight murders, 17 attempted murders national -- nationwid e, 181

### 46

arsons, 42 bombings, 1,495 vandalisms, 2482 trespas sing, a hundred acid attacks, 428 death threats, 15,934 hat e mails or harassing calls, 170,710 picketing, 616 -- 61 [sic] bomb threats, and clinic blockades. Now, of that, 33,839 arrests were made. CR.676. And he explained that pro-life and animal- rights groups are the best available comparator group for violence that w ould be targeted against death-penalty participants. See id

. Next, Cunningham referred to the volatility and ove rall risk of (outside-prison) violence surrounding prison issues generally and the death penalty specifically. See CR.683. He also referred to something called “the contagion effect,” which results from I nternet communications causing dramatically increased interest in a topic, as with the increased interest in the execution process after problematic executions in Arizona and Oklahoma. See CR.656-57, 659-60, 662, 674-75, 682. The contagion effect is also consistent with the Internet providi ng greater access to methods and materials by which people can carry out violence, as well as a means to recruit members to radical groups. CR.6 75. Cunningham explained that there is a dearth of data regarding violence against compounding pharmacies typically s top producing execution drugs after being publicly identified as a supplier. He also

### 47

noted, however, that such withdrawal from the marke t could actually result in an increased risk to the remaining target s. CR.676-77. He also discussed the difficulty associated with pr edicting who will perpetrate violence in these types of situations be cause those who perpetrate such violence often give no prior warnin g and make no prior threats. CR.655-56, 659; see also CR.567, 626. Lastly, Cunningham noted the difficulties in preventing violence again st a highly accessible target like a compounding pharmacy or its pharmacis t, employees, or bystanders. See CR.626. Based on these factors, and others, Cunningham conc luded: I conclude that there is a significant and substant ial threat of physical harm to the pharmacy/compounding pharmacy and pharmacist, and others in the vicinity of the pharmacy/compounding pharmacy if the identity of th e pharmacy/compounding pharmacy or pharmacist is publ icly disclosed. CR.625. C. Plaintiffs’ Arguments Below Misunderstood The Governing Standards. Plaintiffs challenged the testimony of McCraw and C unningham with their own expert, Parker, who essentially opin ed that McCraw and Cunningham offered only “basic and unsupported fear -mongering

### 48

without any basis” and, ultimately, resorted to not hing more than “buzzwords” reflecting “inchoate, pie-in-the-sky co ncerns.” CR.732; see id . (“All of TDCJ’s arguments are basic and unsupport ed fear-mongering without any basis to establish a substantial threat of physical harm.”); CR.1918.

1. Plaintiffs’ Arguments Below Assumed An

Incorrect Legal Standard. To start, Plaintiffs arguments below were largely f ounded on incorrect formulations of the Cox standard that improperly heightened TDCJ’s burden. Small distinctions in framing the l egal standard are “very important,” as Plaintiffs themselves have arg ued, CR.731. Plaintiffs’ improper presentation of the Cox standard to the district court undermines the court’s ruling. For example, Plaintiffs erroneously argued below th at TDCJ was required to show a “high degree of certainty . . . that a substantial threat of physical harm will occur if the information is d isclosed.” CR.732. Cox reflects no such high-degree-of-certainty requireme nt. Indeed, Cox declined to adopt a standard requiring “a reasonabl y perceived likely threat.” Cox , 343 S.W.3d at 118 (noting that the standard adopt ed was “close, but not identical,” to the rejected standar d). Likewise, Plaintiffs

### 49

improperly argued that a Livingston’s testimony sho uld not be credited because it supposedly “did not suggest that violenc e was likely .” CR.743 (emphasis added). Even more off the mark were Plaintiffs’ prominent—a nd legally erroneous—arguments framing the relevant legal stan dard in terms of a failure to point to a specific past instance of “ violence against a Lethal Injection Drug provider,” CR.731 (emphasis in origi nal). See id. (arguing that “there has never been any actual violence (or threat of violence) against any Lethal Injection drug provider” “[w]hen TDCJ previously . . . let it be known who supplied them with lethal injection drugs”). As discussed above, see Part I.C.1 supra , Cox and the PIA do not require specific past incidents of violence to just ify withholding information that substantially threatens physical h arm, and it would be dangerous to impose such a per se requirement. Perhaps most egregious were Plaintiffs arguments th at a specific, concrete threat of violence is needed to establish that disclosure would substantially threaten physical harm. See CR.731 (arguing that TDCJ did not identify “any direct and actual threat of violence (even though not carried out) to any provider of Lethal Injectio n Drugs in Texas”)

### 50

(emphasis in original). Cox refutes this view of the physical-safety exception as well. See Cox , 343 S.W.3d at 119.

2. Plaintiffs’ Efforts To Create A Battle Of Experts On An Issue With Immediate Public-Safety Implications Is Misguided. Plaintiffs’ attempts to set their expert Parker aga inst Director of TDCJ McCraw and Cunningham for purposes of determin ing the “probability of harm” reflect a similar misundersta nding of the governing legal standards and, therefore, should be rejected. Cox , 343 S.W.3d at

119. Cox

anticipates deference to a law-enforcement assessm ent of the “probability of harm”; it does not countenance “a b attle of experts” where the legal standards governing expert opinions are t he lynchpin for determining whether and to what extent there is a s ubstantial publicsafety threat. Id

. This case is the first opportunity for a court of a ppeals to apply the standards announced in Cox . At stake are issues that extend far beyond death-penalty litigation or the identity of Texas’s provider of execution drugs. The physical-safety exception will be invok ed in future cases in which it is believed that disclosure of requested i nformation from a governmental body will result in a substantial thre at of physical harm.

### 51

As Cox makes clear, a DPS or other law-enforcement expert ’s assessment that there is an unacceptably high “probability of harm” should receive deference; it should not be the target of arguments traditionally reserved for situations in which no special solicitude is af forded an expert’s opinion. Further, even assuming McCraw’s and Cunningham’s op inions are properly subjected to a full-blown expert analysis or are properly part of a “battle of the experts,” the opinions readily sur vive any such attacks, for all the reasons discussed above and immediately below. D. Plaintiffs’ Expert’s Testimony Should Not Have Been Considered And, In Any Event, Could Not Undermine TDCJ’s Experts’ Testimony. Plaintiffs’ expert Parker’s testimony should not ha ve been considered by the district court and, in any event, could not undermine the testimony of TDCJ’s experts. “An expert witnes s may testify regarding matters of scientific, technical, or othe r specialized matters only if (1) the expert is qualified, (2) the probat ive value of the testimony is not outweighed by the prejudice, and (3) the exp ert’s opinion is relevant and based on a reliable foundation.” See T EX



### . R. E VID



### . 401-03, 702;

### 52

Transcon. Ins. Co. v. Crump , 330 S.W.3d 211, 215 (Tex. 2010); see E.I. du Pont de Nemours & Co. v. Robinson , 923 S.W.2d 549, 556 (Tex. 1995).

1. Parker Is Not Qualified. An expert witness must be qualified to give an opin ion by knowledge, skill, experience, training, or educatio n. See T EX



### . R. E VID



### . 702; Broders v. Heise , 924 S.W.2d 148, 153-54 (Tex. 1996). Parker is no t qualified to give an expert opinion on the probabil ity of harm in this case because he has no recent law-enforcement training. Parker has been retired from the FBI since 1994 and has no other relevant, recent law-enforcement or threat-assessme nt experience. Parker agreed that the world has changed dramatical ly since 1994. CR.963, 2231. This case involves current threats a nd relates to an environment that developed within the last one to t wo years. See CR.704- 05 (describing relevant recent developments in the threat environment). Parker’s most recent training was six or seven year s ago. CR.2220-21. He no longer holds any security clearance or police license, other than a private-investigator license. CR.2250. His last ce rtification as a California police officer was 40 years ago. CR.218 8. His current business

### 53

is exclusively serving as a hired expert witness to opine on “police practices.” CR.2191-92. Despite his lack of any recent training or experien ce, Parker did not crack a book when formulating his opinion about whe ther a threat could be determined based on the documents with which he was provided. CR.2193. He did not conduct any outside research, CR.2185, and only reviewed protocols or threat assessment “a couple o f years ago” in a source that he does not remember. CR.2217-19. In sum, Parker (1) has had no apparent law enforcem ent training in over 20 years, (2) did not conduct a threat asse ssment in connection with this case, (3) did not look at any books or co nsult other experts, and (4) has not taught any courses on threat assessment . Accordingly, he is not qualified to serve as an expert witness on thre at assessment in this

case. 2. Parker’s Opinion Does Not Have A Sufficient

Basis And Is Unreliable. Expert testimony must be based on sufficient underl ying facts or data, as required by Texas Rules of Evidence 702 an d 703. See Merrell Dow Pharms., Inc. v. Havner , 953 S.W.2d 706, 714 (Tex. 1997). The

### 54

testimony must also be reliable. Whirlpool Corp. v. Camacho , 298 S.W.3d 631, 637 (Tex. 2009); Robinson , 923 S.W.2d at 557. Parker’s opinion lacks sufficient basis and is unre liable because he considered only whether there had been relevant pas t violent acts against a pharmacy or prison. He thus refused to c onsider other, relevant past violent acts, including the recent assassinati on of the Director of the Colorado prison system, death threats against the D irector of the Texas prisons, violent acts carried out against abortion clinics and their physicians, and violent acts against universities, businesses, and personnel involved in animal research. See CR.2245-49, 2258. At the same time, however, Parker conceded that the absenc e of a violent act does not mean that one will not or cannot occur, CR .2258-59, and that there are many people opposed to the death penalty, CR.2253. Parker’s opinions are also unreliable because he wa s not engaged in the appropriate inquiry and is biased. Assuming Parker is qualified as a law-enforcement expert, the appropriate inquir y for such an expert in these circumstances is to opine on the probabili ty of harm. See Cox , 343 S.W.3d at 119. Parker’s treatment of the Humez email provides an example of his misguided inquiry. Parker concluded that the email was

### 55

not itself a threat and that Humez was merely “expr essing his concerns and, as a concerned citizen, cautioning them [the p harmacy in Oklahoma] to be aware that there are ‘fanatic’ individuals ar ound who are capable of duplicating the Oklahoma City Federal building bomb ing.” CR.793-94. But whether the email is a threat in and of itself does not answer the question at hand, which is not whether there is or was an existing threat but whether the probability of harm is unacceptably high. Cox , 343 S.W.3d at 119. Parker obstinately refused to consi der whether the email reflects an unacceptable level of possible danger, whether or not the email itself is actually a threat to blow up a phar macy with a fertilizer bomb. Moreover, Parker justified his conclusions on fact ors that cannot supply a reliable answer to the question of the pro bability of harm. For example, Parker based his conclusions on the follow ing:

• no “direct threats against any pharmacies or indivi duals connected to them,” CR.790,

• no “readily identifiable targeted threats,” id. ,

• “communications . . . expressing opinions” that “do not appear to contain any specific threat of violence,” CR.792 ,

• the exploding-head blog has no “ wording which could even be loosely interpreted as threatening,” CR.792 (emphas is added),

### 56

• that it was “unlikely that [Humez] intended to comm it any violence himself, ” CR.793 (emphasis added),

• that according to the author of the exploding-head blog, “there was nothing violent about this at all,” CR.794, an d

• “all TDCJ has presented are [ ] vague assertions of risk, especially since there have been no documented case s of violence involving such pharmacies,” CR.805. Cox instructs that specific, identifiable threats are not necessary to determine that there is an unacceptably high probab ility of harm. 343 S.W.3d at 119. Finally, Parker is biased. He sits on the Board of Directors of Death Penalty Focus, and organization whose goal is to ab olish the death penalty. CR.2252. But Plaintiffs’ September 5, 20 14, witness disclosure provides that Parker is not biased for purposes of serving as an expert in this case. CR.2289. Moreover, Parker’s CV does no t disclose his membership in Death Penalty Focus, and he only disc losed it near the end of his six-hour deposition after repeatedly dod ging questions about his membership in organizations. See CR.2162-63. Parker eventually conceded, “I am biased against the death penalty.” CR.2252. Parker’s admitted bias against the death penalty renders his opinions unworthy of any credence.

### 57

III. I N 

### T HE 

### A LTERNATIVE 

### A ND 

### A T 

### T HE 

### V ERY 

### L EAST 

### , T HE 

### C OURT 

### S HOULD 

### R EMAND 

### B ECAUSE 

### P LAINTIFFS 

### C ANNOT 

### S HOW 

### E NTITLEMENT 

### T O 

### J UDGMENT 

### A S 

### A M ATTER 

### O F 

### L AW 

### . Even if the Court were to determine that TDCJ is no t entitled to summary judgment, the grant of summary judgment for Plaintiffs must nonetheless be reversed and the case remanded for t rial on the merits. Barring a grant of judgment for TDCJ, there would r emain (at the very least) a genuine issue of material fact regarding P laintiffs’ entitlement to summary judgement. A district court, for example, should not resolve a t the summary judgment stage issues of witness creditability or t he weight to afford testimony; those issues are reserved for a trial on the merits, whether the factfinder at trial is a judge or a jury. See 7 W ILLIAM 

### D ORSANEO 

### III, T EXAS 

### L ITIGATION 

### G UIDE 

### §101.07[3][a] (2014) (noting that expert testimony that falls short of qualifying under T EX



### . R. C IV



### . P. 166a(c) “does no more than raise an issue of fact”); see also A LEX 

### W ILSON 

### A LBRIGHT 

### , T EXAS 

### C OURTS 

### A S URVEY 

### 461 (Imprimatur Press) (2010-2011). To the extent there is a fact question concerning w hether there is a substantial risk that releasing the requested infor mation would lead to violence, a trial on the merits is needed. Because Plaintiffs, at most,

### 58

could only raise a genuine issue of disputed fact r egarding the applicability of the physical-safety exception (ass uming arguendo they have refuted TDCJ’s entitlement to judgment as a ma tter of law), the portion of the order granting Plaintiffs’ summary-j udgment motion must be reversed and the case remanded for trial. P RAYER 

### For these reasons, the Court should reverse the dis trict court and render judgment for TDCJ or, in the alternative, re mand the case for trial on the merits.

### 59 Respectfully submitted. Dated: June 8, 2015

K EN 

### P AXTON 

### Attorney General of Texas C HARLES 

### E. R OY 

### First Assistant Attorney General S COTT 

### K ELLER 

### /s/ Richard B. Farrer R ICHARD 

### B. F ARRER 

### Assistant Solicitor General State Bar No. 24069702 O FFICE OF THE 

### A TTORNEY 

### G ENERAL 

### P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-2923 Fax: (512) 474-2697 richard.farrer@texasattorneygeneral.gov C OUNSEL FOR 

### A PPELLANT

### 60 C ERTIFICATE OF 

### S ERVICE 

### I hereby certify that on this the 8th day of June, 2015, a true and correct copy of the foregoing document was served v ia File & ServeXpress to all counsel of record. Philip Durst Manuel Quinto-Pozos D EATS 

### , D URST 

### , O WEN 

### & L EVY 

### , P.L.L.C. 1204 San Antonio, Ste. 203 Austin, TX 78701 Telephone: (512) 4 7 4-6200 Facsimile: (512) 474-7896 pdurst@ddollaw.com mqp@ddollaw.com Maurie Amanda Levin A TTORNEY AT 

### L AW 

### 211 South St., #346 Philadelphia, PA 19147 Telephone: (512) 294-1540 Facsimile: (215) 733-9225 maurielevin@gmail.com

/s/ Richard B. Farrer Assistant Solicitor General

### 61 C ERTIFICATE OF 

### C OMPLIANCE 

### In compliance with Texas Rule of Appellate Procedu re 9.4(i)(2), this brief contains 11,158 words, excluding the portions of the brief exempted by Rule 9.4(i)(1). /s/ Richard B. Farrer Assistant Solicitor General

# A PPENDIX

### A PPENDIX 

### T ABLE OF 

### C ONTENTS



### Order on Plaintiffs’ Motion for Summary Judgment an d Defendants’ Motion for Summary Judgment ......... .............................................. A Texas Dep’t of Public Safety v. Cox Texas Newspaper s, L.P., and Hearst Newspapers, L.L.C ., 343 S.W.3 D 

### 112, 39 M EDIA 

### L. R EP


### . 2267, 54 T EX


### . S UP


### . C T


### . J. 1428 ......................... B

# A2312 CAVSE NO. 0-1

MAVRIE N. NAOMI TERR, and, HIL\RY SHEA.RO. Jlfaintiffs



## vs. s N § THE D!STRICT RTOf § § § § § § § TRAVIS COlJNTY. TEXAS TEXAS DEPARTl\'1ENT Of' CJUl\IINAL .JOSTICE, Defcmhmt

ORDER ON PLAJNTIFFS' MOTION FOR SU:\·1MARY ,JVDGMENT and DEfENDANrS MOTION FOR SU:'Vll\,1ARY JVOGM£NT

Came on for consideration at a heari on 3, 20!:+. Plaintiffs' tvlotion !(H· Partial Summary Judgrnent and Ddcndanf s Iv·lotion l'or Surmnnry Judgrn..:nt**Plaintiff~** and Dclcndant appeared at the hearing through their respective counseL Afh;r consideTing the <lrgumcnts made a! the hearing on l)ecernbcr 20 l the relevant pleadings on l!!e. the surnmary judgment evidence tendered !o 1hc Court at the time of**tb~.:** hearing, and the C s separate on Plainti and**Dt.~l'endant's** Objections to and l\'hnions 10 Strike Summary Judgment and Delendant" s Motion to Strike Plaintit1s' Ex Thomas Parker, !10\V finds that Plaintiffs' Mntion f(lr Partial Summary Judgment should should 

### rw denied.

IS THEREFOR!: ORDER for Partial Summary Judgment is gramed and**Dcl\.~ndan(** s Motion Summary Judgm.;nt

ADJUDGED D DECR that the Plaintiffs' fV!ution

!T lS ORDERED. ADJ!JD(]ED ANI)

ErvmER. 201



### BYRNE JUDC3E PRESiDING

# BPage 1

343 S.W.3d 112, 39 Media L. Rep. 2267, 54 Tex. Sup. Ct. J. 1428 (Cite as: 343 S.W.3d 112)

© 2015 Thomson Reuters. No Claim to Orig. US Gov. W orks.

Supreme Court of Texas. TEXAS DEPARTMENT OF PUBLIC SAFETY,

Petitioner,

v. COX TEXAS NEWSPAPERS, L.P., and Hearst Newspapers, L.L.C., Respondents.

No. 09–0530. Argued Sept. 15, 2010. Decided July 1, 2011.

Background: Newspapers brought action underTexas Public Information Act (PIA) against Department of Public Safety (DPS), seeking writ of mandamus to compel the disclosure of expense vouchers relating to Governor's travel. After a bench trial, the 261st Judicial District Court, Travis County, Scott H. Jenkins , J., granted the writ. Department appealed, and the Court of Appeals, 287 S.W.3d 390, affirmed. The DPS petitioned for review.
Holding: Upon granting review, the Supreme Court, Jefferson , C.J., held that remand was necessary todetermine if revelation of requested documents substantially threatened physical harm.

Reversed and remanded.
Wainwright , J., filed opinion concurring in the judgment joined by Johnson , J.

West Headnotes

[1] Records 326 31

326 Records 326II Public Access 326II(A) In General 326k31 k. Regulations limiting access; offenses. Most Cited Cases

A law does not have to use the word “confidential” to expressly impose confidentiality.

[2] Constitutional Law 92 2471

92 Constitutional Law 92XX Separation of Powers 92XX(C) Judicial Powers and Functions 92XX(C)2 Encroachment on Legislature 92k2471 k. Modification of common law. Most Cited Cases
While the Supreme Court is not bound by the Legislature's policy decisions when it considers pr otections afforded by the common law, the boundaries the Legislature has drawn do inform its decision.

[3] Records 326 63

326 Records 326II Public Access 326II(B) General Statutory Disclosure Requirements

326k61 Proceedings for Disclosure 326k63 k. Judicial enforcement in general. Most Cited Cases
Remand was necessary in action by newspapers seeking disclosure of expense vouchers relating to Governor's travel under the Texas Public Informatio n Act (PIA) to determine if revelation of requested documents substantially threatened physical harm;PIA protected from disclosure information that substantially threatened physical harm. V.T.C.A., Gov-Page 2

343 S.W.3d 112, 39 Media L. Rep. 2267, 54 Tex. Sup. Ct. J. 1428 (Cite as: 343 S.W.3d 112)

© 2015 Thomson Reuters. No Claim to Orig. US Gov. W orks. ernment Code § 552.101

. [4] Records 326 54

326 Records 326II Public Access 326II(B) General Statutory Disclosure Requirements 326k53 Matters Subject to Disclosure; Exemptions 326k54 k. In general. Most Cited Cases
Common law protects individuals from physicalharm, and, consistent with the Texas Public Information Act (PIA), that protection extends to the di sclosure of information that substantially threatens such harm. V.T.C.A., Government Code § 552.101

.

*112 Michael P. Murphy, Asst. Solicitor General, James C. Ho , Gibson Dunn & Crutcher LLP, Dallas, David S. Morales , Office of the Attorney General ofTexas, Deputy First Assistant Attorney General, Attorney General Greg W. Abbott, Attorney General of Texas, Peter Carl Hansen, Office of the Attorney General, Bill Davis, Office of the Attorney General of Texas, Office of Solicitor General, Barbara Bryant Deane, Assistant Attorney General, Brenda Loudermilk, Office of the Attorney General of Texas , Matthew T. Bohuslav, Office of the Attorney General , for Texas Department of Public Safety.

William Gerow Christian , Graves Dougherty Hearon & Moody, PC, Austin, for Cox Texas Newspapers, L.P.
Joseph R. Larsen , Sedgwick, Detert, Moran & Arnold,LLP, Houston, for Amicus Curiae Freedom of Information Foundation of Texas.

*113 Chief Justice JEFFERSON delivered the opinion of the Court, joined by Justice HECHT , Justice GREEN , Justice GUZMAN , and Justice LEHRMANN

. Our common law protects from public disclosure highly intimate or embarrassing facts. We must deci de whether it also protects information that substanti ally threatens physical harm. We conclude that it does. Both sides raise important questions, not just abou t safety but also about the public's right to know ho w the government spends taxpayer money. Those issues could not have been fully litigated under the stand ard that prevailed before today's decision. Accordingly , we reverse the court of appeals' judgment and reman d the case to the trial court for further proceedings

. I. Background In separate requests, two reporters representing three newspapers asked the Department of Public Safety for travel vouchers from Governor Rick Perry 's security detail. One request was limited to the Gov

ernor's out-of-state trips in 2001 and 2007; the ot her was not confined to a specific period of travel. Be

lieving all of the documents to be excepted from di sclosure under the Public Information Act (specifica lly Government Code section 552.101 ), DPS sought a ruling from the Attorney General's office.
DPS noted that it is responsible for staffing the governor's protective detail and that it does not p ublicly discuss security practices or the identity ornumbers of officers so assigned. DPS offered to release aggregated expense information, warning that releasing the vouchers themselves would “necessaril y reveal the number of officers who traveled with the governor and his family,” data that “would be valua ble information for someone who intended to cause [the governor] harm.”
Based solely on DPS's letter and inspection of a subset of the responsive documents, the Attorney General determined that release of the information would place the governor in imminent threat of physical danger. Accordingly, the Attorney General concluded that the information fell within a “speci al circumstances” aspect of common law privacy thatPage 3

343 S.W.3d 112, 39 Media L. Rep. 2267, 54 Tex. Sup. Ct. J. 1428 (Cite as: 343 S.W.3d 112)

© 2015 Thomson Reuters. No Claim to Orig. US Gov. W orks. required DPS to withhold the submitted information in its entirety under Government Code section 552.101

. FN1 Cox and Hearst, publishers of the newspapers in question, sued DPS, seeking a writ of mandamus to compel complete disclosure. See TEX. GOV'T CODE § 552.321(a) . After a bench trial, the trial court found that public disclosure of the information in the vouchers would not put any person in imminent threa t of physical danger or create a substantial risk of serious bodily harm from a reasonably perceived likel y threat. The trial court ordered the clerk to issue a writof mandamus compelling DPS to produce the vouchers in their entirety.

FN1. Twice before, the Attorney Generalruled that similar vouchers had to be disclosed. See Tex. Att'y Gen. OR2004–4723 ; Tex. Att'y Gen. OR2002–0605 . In those instances, however, the only exception DPS urged was Government Code section 552.108 , which protects certain law enforcement information. See TEX. GOV'T CODE § 552.108 . Because he believed that exception to be discretionary, however, the Attorney General ruled that it could not be considered in conjunction with section 552.022. See id. § 552.022 (making certaininformation in vouchers public unless expressly confidential under “other law”). DPS did not appeal either of those rulings.
The court of appeals affirmed. 287 S.W.3d 390, 398. It held that the Attorney General's “special circumstances” exception conflicted with Industrial Foundation of the South v. Texas Industrial Acciden t Board, 540 S.W.2d 668, 685 (Tex.1976)

. *114 Id. at 394. According to the court of appeals, Industrial Foundation “declared its two-part test to be the ‘sole criteria’ for the disclosure of information to be d eemed a wrongful publication of private information under common law.” Id. (quoting Industrial Foundation, 540 S.W.2d at 686). Because DPS conceded that the first prong of that test (that the information cont ains highly intimate or embarrassing facts) had not been satisfied, the court held that the vouchers could n ot be withheld based on the common law right of privacy. Id. at 395. The court also rejected DPS's claim that theFourteenth Amendment to the United States Constitution barred disclosure of information that would create a substantial risk of serious bodily harm fr om a perceived likely threat. Id. at 398. The court observed that “[w]hether the privacy interests at issue here should merit protection under the PIA is a question for the legislature.” Id.
We granted the petition for review to examine whether the public's right to information is subjec t to reasonable limitations when its production may lead to physical harm. FN2 53 Tex. Sup.Ct. J. 1023 (Aug. 20, 2010). DPS asserts that the vouchers are confidenti al under the common law and under Government Code section 418.176(a)(2)

. FN3 We address each argument in turn.

FN2. The Freedom of Information Foundation of Texas submitted an amicus curiae brief in support of Cox and Hearst.

FN3. DPS no longer makes an argument based on a constitutional right of privacy.
II. Does “other law” include a common law right to be free from physical harm? [1] The PIA guarantees access to public information, subject to certain exceptions. See generallyTEX. GOV'T CODE ch. 552. Those exceptions embrace the understanding that the public's right to know is tempered by the individual and other interests a t stake in disclosing that information. See generally TEX. GOV'T CODE ch. 552, subch. C. In 1999, the Legislature excluded certain categories of public i nformation from the exceptions. See id. § 552.022. This core public information is currently FN4 protected from disclosure only if it is “ ‘expressly confidential under other law, ’ meaning law other than Chapter 552 of thePage 4

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© 2015 Thomson Reuters. No Claim to Orig. US Gov. W orks. Government Code, which is the Public Information Act.” In re City of Georgetown, 53 S.W.3d 328, 331 (Tex.2001) (quoting TEX. GOV'T CODE § 552.022(a) ). “Other law” includes other statutes, judicial decisions, and rules promulgated by the judi ciary. Id. at 332. “A law does not have to use the word ‘confidential’ to expressly impose confidentiality. ” Id. at 334.

FN4. The Legislature has since amended section 552.022(a) . Effective September 1,2011, core public information may be withheld if it is confidential under either the PIA or other law. See Act of May 30, 2011, 82nd Leg., R.S., S.B. 602, § 2 (to be codified at TEX. GOV'T CODE § 552.022(a) ).
The parties agree that the vouchers contain core public information. FN5 See TEX. GOV'T CODE § 552.022(a)(3) (including “information in an account,voucher, or contract relating to the receipt or expenditure of public or other funds by a governmenta l body”). For this reason, that information is presen tly unaffected by the Legislature's passage, five days afterthe court of appeals' decision, of an amendment excepting public information from disclosure “if, und er the specific circumstances pertaining to the [gover nment] employee or officer, disclosure of the information would subject the employee or officer to a substantial *115 threat of physical harm.” Act of June 3, 2009, 81st Leg., R.S., ch. 283, § 4, 2009 Tex. G en. Laws 742 (codified at TEX. GOV'T CODE § 552.151 ). Because this exception is in the PIA, it does not currently apply to core public information. FN6 TEX. GOV'T CODE § 552.022(a)

.

FN5. The parties do not address, and we do not decide, what voucher information is “core” and what is not.

FN6. The Legislature recently passed (although the Governor has not yet acted on) an amendment making vouchers confidential, but that amendment would not apply to the vouchers at issue in this case. Act introduced May 31, 2011, 82nd Leg., 1st C. S., S.B. 1, art. 79A (to be codified at TEX. GOV'T CODE ch. 660).
We turn, then, to DPS's argument that “other law” includes a common law right to be free from physica l harm. DPS urges an exception for cases in which the re is an imminent threat of physical danger. DPS asser ts that if the common law protects personal privacy, i t must logically protect physical safety as well. Ens uring the physical safety of its citizens, says DPS, is the “primary concern of every government,” FN7 and preventing disclosure that would threaten physical safety is deeply rooted in the common law. See, e.g., Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 629 (Tex.1967) (observing that “ ‘[t]he interest in freedom from intentional and unpermitted contacts with the plaintiff's person is protected by an acti on forthe tort commonly called battery’ ” (quoting WILLIAM L. PROSSER, LAW OF TORTS 32 (3d ed.1964))).

FN7. United States v. Salerno, 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)

. Freedom from physical harm is indeed a hallmark of our common law. One of our earliest reported cas es involving battery was decided by the Supreme Court of the Republic of Texas. Eli Williams sued Jesse Benton for assault and battery. Benton v. Williams, Dallam 496, 496 (Tex.1843) . Benton filed a plea asserting that he should not have to answer the complaint because “Williams [was] of African descent, and not entitled by law to maintain his action.” Id. at 496–97. The Court rejected that contention, even though the constitution at that time provided that the descendants of Africans were not entitled to the ri ghts of citizens and “shall not be permitted to remain permanently in the republic without the consent of congress.” Id. at 497. The Court held that insulatingPage 5

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© 2015 Thomson Reuters. No Claim to Orig. US Gov. W orks. Benton from Williams's battery claim would be “against law, contrary to the spirit of our institu tions, and in violation of the dictates of common humanity .” Id. The Court affirmed the trial court's judgment against Benton. Id.
Our courts have, since then, consistently protected individuals' right to be free from physical harm. FN8 Blackstone described three “absolute rights,” one of which was “[t]he right of personal security, ” consisting of “a person's legal and uninterrupted e njoyment of his life, his limbs, his body, his healt h, and his reputation.” 1 WILLIAM BLACKSTONE, COMMENTARIES *125 (1769). The common law's recognition of an action for battery emerged as a means of “keep[ing] the peace by affording a substi

tute *116 for private retribution,” FN9 and we have recognized common law battery claims for more than a century. See, e.g., Sargent v. Carnes, 84 Tex. 156, 19 S.W. 378, 378 (1892) (affirming judgment on plaintiff's assault and battery claim). Protection from physical harm is thus more firmly entrenched in our common law than the right of privacy, a relative newcomer. W. PAGE KEETON, ET AL., THE LAW OF TORTS 849 (5th ed.1984)(noting that “[p]rior to the year 1890, no English or American court ever ha d granted relief expressly based upon the invasion [o f the right of privacy]”). Indeed, we did not formall y recognize the privacy tort until 1973, although our courts of civil appeals had hinted at it previously

. FN10

FN8. See, e.g., Operation Rescue–Nat'l v. Planned Parenthood of Houston & Se. Tex., Inc., 975 S.W.2d 546, 564 (Tex.1998) (holding that “protecting the health and safety of clinic patients is a compelling stateinterest justifying restrictions on the demonstrations”); see also RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL & EMOTIONAL HARM § 5 (stating that “[a]n actor who intentionally causes physical harm is subject to liability for that harm”); cf. G., C. & S.F. R'y v. Styron, 2 Posey 275, 276–77 (Tex. Comm'n App. 1883) (not precedential) (noting that the common law recognized actions for injuries “ ‘to the absolute rights of persons, as for assaults, batteries, wounding, injuries to the health, liberty and reputation’ ” (quoting 1 CHITTY ON PLEADINGS 60)(emphasis added)).

FN9. W. PAGE KEETON, ET AL., THE LAW OF TORTS 41 (5th ed.1984).

FN10. See Billings v. Atkinson, 489 S.W.2d 858, 860 (Tex.1973) (holding, for the first time, that “an unwarranted invasion of the right of privacy constitutes a legal injury for which a remedy will be granted”); Milner v. Red River Valley Pub. Co., 249 S.W.2d 227, 229 (Tex.Civ.App.-Dallas 1952, no writ) (refusing to allow recovery for violation ofright of privacy, because it was “not ... recognized under the common law, as it existed when we adopted it,” but noting that other actions (such as penalties for libel and eavesdropping) provided some protection).
Nonetheless, thirty-five years ago, we held thatthe common law privacy protection exempted documents from disclosure under the PIA. Indus. Found., 540 S.W.2d at 686. We have never addressed whether the common law right to be free from physical harm applies as well. We conclude that it does.
The Legislature has recognized the importance of protecting physical safety, notwithstanding the man

date that courts construe the PIA in favor of discl osure. See TEX. GOV'T CODE § 552.001(b) . Several PIA exceptions are grounded in a concern for physic al safety, and the Legislature's swift passage of an e xception for information that would pose a “substant ial threat of physical harm” confirms the primacy of th is interest. FN11Page 6

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© 2015 Thomson Reuters. No Claim to Orig. US Gov. W orks. FN11. See, e.g., TEX. GOV'T CODE §§ 552.108 (exempting information held by a law enforcement agency or prosecutor if it involves a threat against a peace officer), 552.1176 (making home address, phone number, and social security number of Texas lawyers and judges confidential), 552.119(making photographs of peace officers confidential), 552.127 (excepting identifyinginformation from participants in neighborhood crime watch organizations), 552.151(excepting certain information from disclosure if it would pose a “substantial threat of physical harm”); see also House Comm. on State Affairs, Bill Analysis, Tex. H.B. 1237, 80th Leg., R.S. (2007) (noting that release of attorney personal information may “subject attorneys including current and former state and federal judges and prosecutors and their family members to harm relating to their personal safety or possible identity theft”);House Comm. on State Affairs, Bill Analysis, Tex. H.B. 273, 75th Leg., R.S. (1997)(commenting on “threats and acts of retaliation against the members of [neighborhood crime watch organizations]”); House Comm. for Public Safety, Bill Analysis, Tex. H.B.474, 70th Leg., R.S. (1987) (noting that routine release of peace-officer photographs endangers officers' lives).
Additionally, since the 1970s, the attorney general has applied a “special circumstances” exceptio n to disclosure in over 230 cases. Often, these speci al circumstances included situations in which disclosu re would place individuals in danger of physical harm. FN12 The Attorney General *117 has described the exception as covering a “very narrow set of sit uations in which release of the information” FN13 would cause someone to face “an imminent threat of physic al danger.” Tex. Att'y Gen. ORD1977–0169, at 6. It mus t be “more than a desire for privacy or a generalized fear of harassment or retribution.” Id.

FN12. See, e.g., Tex. Att'y Gen. OR2008–03289 (holding that home address,telephone number, and other identifying information relating to a Dallas Area RapidTransit employee fell within the special circumstances exception, as information was requested by a former employee who had threatened that individual); Tex. Att'y Gen. OR2008–01570 (determining that specialcircumstances justified withholding information, as city showed that former employee had made threatening statements to city staff); Tex. Att'y Gen. OR2004–10845 (holding that special circumstances justified withholding identity of alleged crime victim due to potential threat to victim's safety); Tex. Att'y Gen. ORD1977–0169 (holding that employees' addresses could be withheld because employees showed that their lives would be endangered if the information was disclosed).

FN13. Tex. Att'y Gen. OR2004–10845 , at 2.
The court of appeals held that the Attorney General's “special circumstances” exception conflicted with Industrial Foundation, in which we said that the “sole criteria” for determining whether information was exempt from disclosure as “confidential by judi

cial decision” was whether the information was of legitimate public concern and whether its publicati on would be highly objectionable to a reasonable perso n. 287 S.W.3d at 394 (citing Industrial Foundation, 540 S.W.2d at 686). That is an accurate statement for assessing matters involving that branch of the invasion-of-privacy tort (the only exception at issue in Industrial Foundation ), but not for other matters that are confidential under judicial decision. See, e.g., Ctr. for Econ. Justice v. Am. Ins. Ass'n, 39 S.W.3d 337, 348 (Tex.App.-Austin 2001, no pet.) (determining that because the “[c]ommon law protects information thatPage 7

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© 2015 Thomson Reuters. No Claim to Orig. US Gov. W orks. meets the traditional six-factor test for trade-sec ret protection,” information was excepted from disclosu re under the PIA). The court of appeals' holding is un

derstandable, given that the Attorney General has characterized the “special circumstances” exception as falling under the common law privacy umbrella. See, e.g., Tex. Att'y Gen. OR2005–07052 , at 6 (noting that “information also may be withheld under section 552.101 in conjunction with common law privacy upon a showing of certain ‘special circumstances' ” ). But freedom from physical harm is an independent interest protected under law, untethered to the rig ht of privacy.
The privacy interest protects against four distinct kinds of invasions (intrusion upon seclusion, publi c disclosure of private facts, false light publicity, and appropriation); physical harm is not among them. FN14 KEETON, THE LAW OF TORTS 40, 851 (noting that privacy is “not one tort, but a complex of fou r”). We have characterized privacy as “the right of an individual to be left alone, to live a life of secl usion, to be free from unwarranted publicity.” Billings v. Atkinson, 489 S.W.2d 858, 859 (Tex.1973) (citing 77 C.J.S. Right of Privacy § 1). By contrast, the comm on law right to be free from physical harm is an inter est in personal integrity, distinct from that covered by t he privacy interest. KEETON, THE LAW OF TORTS 40. FN15 It is integral to a civil society. Although mischaracterized as a privacy related exception, the “special circumstances” doctrine protects the right we have long recognized at common law.

FN14. As we noted in Industrial Foundation, the United States Supreme Court has also recognized a constitutional right of personal privacy in certain situations. Indus. Found. of the South v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 679 (Tex.1976)

.

FN15. See also Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 629 (Tex.1967) (describing battery as protecting “[t]he plaintiff's interest in the integrity of his person”) (quoting PROSSER, LAW OF TORTS 32 (3d ed.1964)).

[2] Both the legislative and executive branches have recognized that, as valuable *118 as the right to public information is, a person's physical safety s upersedes it. Those branches are not alone. Our common law protects—and has always protected—that interest, making such information confidential. Wemust decide, then, the appropriate standard for assessing whether disclosure would violate that inter est. While we are not bound by the Legislature's policy decisions when we consider protections afforded by the common law, “the boundaries the Legislature has drawn do inform our decision.” Ford Motor Co. v. Miles, 967 S.W.2d 377, 383 (Tex.1998) ; see also Austin v. HealthTrust, Inc., 967 S.W.2d 400, 403 (Tex.1998) . We conclude that the “substantial threatof physical harm” standard enunciated by the Legislature appropriately describes the interest protect ed under the common law, and information may be withheld if disclosure would create a substantial t hreat of physical harm. See TEX. GOV'T CODE § 552.151

. We next examine that standard in light of the recor d produced at trial.

[3] The trial court heard testimony from witnessesand reviewed the relevant documents and other exhibits. Although DPS proferred categories of lump sum expenses, showing amounts spent on airfare, lodging, meals, car rental, and related matters, itargued that disclosing the vouchers themselves would give those intent on harming the governor the meansto accomplish that goal. DPS contended that the information revealed travel patterns, the number and placement of DPS officers on the detail, and how fa r in advance officers visit a location prior to the gove rnor's arrival. The publishers presented evidence that the itemized vouchers and related documents disclose more information (and are more valuable to taxpayer s, who fund the travel) than do line items with lump s um totals. The trial court concluded, categorically, t hatPage 8

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© 2015 Thomson Reuters. No Claim to Orig. US Gov. W orks. “public disclosure of the information in the vouche rs requested by Cox and Hearst would not put any perso n in an imminent threat of physical danger or create asubstantial risk of serious bodily harm from a reasonably perceived likely threat”—the standard for t he Attorney General's “special circumstances” test andthe constitutional exception urged by DPS, respectively. This determination is close, but not identi cal, to the standard we announce today for the common law right of physical safety.

We have remanded a case to the trial court when we have changed our precedent or when the applicabl e law has otherwise evolved between the time of trial and the disposition of the appeal. See, e.g., Twyman v. Twyman, 855 S.W.2d 619, 626 (Tex.1993) (remand in interest of justice because case was tried on legal theory overruled by Court); Caller–Times Publ'g Co., Inc. v. Triad Commc'ns, Inc., 826 S.W.2d 576, 588 (Tex.1992) (remand in interest of justice because Court announced new liability standard). We have also remanded for a trial court to determine “in li ght of [our] opinion, whether any of the information shoul d be withheld from disclosure because confidential.” Indus. Found., 540 S.W.2d at 686. Here, our decision recognizes, for the first time, a common law physic al safety exception to the PIA. And even though the interest protected under that exception is well-established in our law, we have never before addressed whether or how it applies to the PIA. We conclude that a remand is appropriate.
On remand, the trial court must closely examine each of the disputed documents. DPS is likely corre ct in one sense: disclosure of some of the information in the vouchers may create a substantial threat of phy sical harm because it reveals specific details about the number of officers assigned to protect the governor , their general *119 location in relation to him, and their dates of travel. Indeed, the vouchers divulge the number of officers the DPS deemed necessary for the governor's security, the specific location (hotel a nd room number) where the officers resided when providing that security, and the identity of each o fficer the Department assigned to the governor's protectio n. Because the past is prologue, at least when it reve als protocol DPS has implemented for ensuring the safet y of government officials, we cannot agree that infor

mation from prior trips could not be used to inflic t future harm.
But this may not justify withholding all but the ultimate dollar figure for trips abroad, as DPS pro

poses. In this respect, the publishers' request has merit: the documents themselves provide a more complete picture of how taxpayer money is spent than do the general categories and totals produced by DPS. This fact was not lost on the Legislature, which categor ized certain information in vouchers as core public info rmation. See TEX. GOV'T CODE § 552.022(a) . And we agree with the trial court that the public has a legitimate interest in how public money is spent on official state business. The dividing line between disclosure and restraint must be determined by proo f. To the extent DPS can show, with detailed evidence or expert testimony, that revelation substantially thr eatens harm—as it has with respect to the number of guards protecting the governor—then the information at issue may be withheld. A certain amount of defer

ence must be afforded DPS officers and other law enforcement experts about the probability of harm, although vague assertions of risk will not carry th e day. But the public's right to “complete informatio n” FN16 must yield when disclosure of that informationwould substantially threaten physical harm. On remand, the trial court must ascertain, under this st andard, what information may be confidential and what must be disclosed. Accordingly, we remand the case for a new trial.

FN16. TEX. GOV'T CODE § 552.001(a)

. A brief word in response to the concurrence. The concurrence says our holding would “establishjudge-made exceptions to the PIA's required disclosure of information to the public, contradicting th ePage 9

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© 2015 Thomson Reuters. No Claim to Orig. US Gov. W orks. unanimous determination in our precedent, Industrial Foundation of the South v. Texas Industrial Acciden t Board. ” 343 S.W.3d at 121. But Industrial Foundation recognized that the PIA is subject to the common law and itself adopted a “judge-made” exception to disclosure: the right of privacy. Indus. Found., 540 S.W.2d at 683 (holding that right of privacy acknowledged in Billings v. Atkinson was “the type of information which the Legislature intended to exemp t from mandatory disclosure” under the PIA provision excepting matters confidential by judicial decision ). We squarely held in In re Georgetown (a case involving core public information) that “other law” included not just statutes and rules, but “judicial decisions.” Georgetown, 53 S.W.3d at 332. To reach that holding, we relied on a United States Supreme Court decision that concluded the phrase “all other law,” by itself, “indicates no limitation” and did not allow anydistinction “between positive enactments and common-law rules of liability.” Norfolk & W. Ry. Co. v. Am. Train Dispatchers Ass'n, 499 U.S. 117, 128–29, 111 S.Ct. 1156, 113 L.Ed.2d 95 (1991) , quoted in Georgetown, 53 S.W.3d at 333. The concurrence's position is not unlike the Georgetown dissent's, a position we rejected then. We reject it again today

. Compare 343 S.W.3d at 124 (suggesting that “ ‘other law’ must mean other statutory law where *120 theLegislature has declared certain information confidential”), with Georgetown, 53 S.W.3d at 339 (Abbott, J., dissenting) (suggesting that only the Leg islature could promulgate laws, so that rules of proced ure could not be “other law”).

[4] The concurrence argues that because the information itself may not implicate privacy concerns , it cannot be protected from disclosure as “expressly confidential under other law.” TEX. GOV'T CODE § 552.022 . But information does not exist in a vacuum. When disclosure carries with it a serious risk of b odily harm, we cannot ignore those consequences when deciding whether common law protections apply. Cf. U.S. Dep't of State v. Ray, 502 U.S. 164, 177, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) (considering retaliatory action that would occur if information wa s disclosed). FN17 Our common law protects individuals from physical harm, and, consistent with the PIA, FN18that protection extends to the disclosure of information that substantially threatens such harm.

FN17. See also Michael Hoefges et al., Privacy Rights Versus FOIA Disclosure Policy: The “Uses and Effects” Double Standard inAccess to Personally–Identifiable Information in Government Records, 12 WM. & MARY BILL RTS. J. 1, 7 (2003) (noting that “the [Supreme] Court considers derivative uses and secondary effects of disclosure on the privacy side as a matter of course”).

FN18. TEX. GOV'T CODE § 552.022(a)

.

III. Are the vouchers confidential under Government Code section 418.176 ? Finally, DPS contends the documents are exempt from disclosure under Government Code section 418.176 . That statute, passed in 2003, FN19 makes certain information relating to emergency response pro

viders confidential. The law provides, in pertinent part:

FN19. See Act of June 2, 2003, 78th Leg., R.S., ch. 1312, § 3, 2003 Tex. Gen. Laws 4809, 4813.

Information is confidential if the information is collected, assembled, or maintained by or for a governmental entity for the purpose of preventing, detecting, responding to, or investigating an act o f terrorism or related criminal activity and:
(1) relates to the staffing requirements of an emergency response provider, including a law enforcement agency, a fire-fighting agency, or an emergency services agency;Page 10

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© 2015 Thomson Reuters. No Claim to Orig. US Gov. W orks. (2) relates to a tactical plan of the provider; or
(3) consists of a list or compilation of pager or telephone numbers, including mobile and cellular telephone numbers, of the provider.

TEX. GOV'T CODE § 418.176(a)

.

DPS contends that section 418.176 is “other law” making the vouchers confidential. See id. 552.101. Cox and Hearst argue that the vouchers do not meet section 418.176 's requirements and, moreover, that DPS waived the issue by failing to raise it in the trialcourt and the court of appeals. Because we are remanding for a new trial, DPS may pursue this argument in the trial court in the first instance. Cf. Kallam v. Boyd, 232 S.W.3d 774, 776 (Tex.2007) (deferring decision on issue until it had been fully litigated below “ ‘so that we will have the benefit of developed ar

guments on both sides and lower court opinions squarely addressing the question’ ” (quoting *121 Yee v. City of Escondido, 503 U.S. 519, 538, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992) )).

IV. Conclusion We reverse the court of appeals' judgment and remand the case to the trial court for further proc eedings consistent with this opinion. TEX.R.APP. P. 60.2(d).

Justice WAINWRIGHT delivered a concurring opinion, joined by Justice JOHNSON

. Justice MEDINA and Justice WILLETT did not participate in the decision. Justice WAINWRIGHT , joined by Justice JOHNSON , concurring in the judgment.The media requested vouchers that detail expenditure of public funds for the governor's securi ty detail when he travels. Because it concerns how the government spends taxpayer monies, the information in vouchers is not just “public information” under the Public Information Act (PIA), it is “core” public i nformation, with a greater emphasis on disclosure th an other public information. See TEX. GOV'T CODE § 552.022(a) . The Texas Department of Public Safety argues that the information should not be disclosed , even though it is core public information, because of the risk to the safety of elected officials. There is no express exception to disclosure for this core publi c information. This tension resulted in this Court co ncluding that it may establish judge-made exceptions to the PIA's required disclosure of information to the public, contradicting the unanimous determination i n our precedent Industrial Foundation of the South v. Texas Industrial Accident Board. See 540 S.W.2d 668, 682 (Tex.1976) (plurality op.) (“We decline to adopt an interpretation which would allow the court in it s discretion to deny disclosure even though there is no specific exception provided....”); Id. at 692 (Reavley, J., dissenting) (“It was not the intention of the L egislature to turn over the administration of the Open Records Act to the judiciary.”). The Court conclude s that it is “not bound by the Legislature's policy d ecisions” in deciding common law exceptions to the statute, leaving no apparent boundaries on new common law exceptions to the legislated disclosure requirements in the PIA that courts may now create. 343 S.W.3d 112.
Further complicating the case, the trial court made an express finding that “[p]ublic disclosure o f the information in the vouchers requested by [the media representatives] would not put any person in animminent threat of physical danger or create a substantial risk of serious bodily harm from a reasona bly perceived likely threat.” The Court acknowledges a lack of expertise in such matters and credits the l aw enforcement testimony that disclosure of the vouche rs would create a threat of injury. While I agree with the Court's strong desire to keep public officials safe , once the Legislature weighed in, the question of keeping public information from the people is not one for t he courts. The Court should not judicially create an e xception to disclosure that contradicts the Legislat ure's expressed intent in the PIA. I cannot join the Cour t'sPage 11

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© 2015 Thomson Reuters. No Claim to Orig. US Gov. W orks. opinion, but because I believe that DPS argued, and the trial court accepted, an exception not allowed by law, I would remand in the interests of justice for the trial court to consider other exceptions grounded i n “other law.”

I. BackgroundThe Public Information Act contains a comprehensive scheme arming the public with statutory mandates for the government to disclose information “collected, assembled, *122 or maintained under a law or ordinance” or in connection with business by or fora governmental body, and it is to be liberally construed to grant requests for information. TEX. GOV'T CODE §§ 552.001(b) , .002(a). All such information is subject to disclosure unless it is either later exc epted from the definition of “public information” or it f alls under an exception to disclosure. See id. §§ 552.101–.151; cf., e.g., TEX. ELEC.CODE § 13.004(c) (defining certain voter registration information as confidential and not “constitut[ing] publ icinformation” for purposes of the PIA). “Public information” may be excepted from disclosure under Subchapter C, or may be prohibited from disclosure if the information is deemed “confidential.” TEX. GOV'T CODE §§ 552.007 , .101, .352.
There is, however, another level of “public information.” Members of this Court and the Attorney General's Office have, in the past, called it “supe r public” information; today the Court calls it “core public information.” See 343 S.W.3d 112; In re City of Georgetown, 53 S.W.3d 328, 341 (Tex.2001) (Abbott, J., dissenting); Tex. Att'y Gen. OR2004–7388 . This is the type of public information at the core of gover nment functions, generally relating to laws actually enacted, decisions of the judiciary, votes of the L egislature, and how the government spends the people' s money. See TEX. GOV'T CODE §§ 552.022 , .0221, .0225. As such, core public information is not subj ect to the routine exclusions in Subchapter C, but may be withheld from the public only if the information is “expressly confidential under other law.” Id. § 552.022(a) . This rule was important enough that the Legislature specifically commanded courts to comply with it. Section 552.022(b) mandates that “[a] court in this state may not order a governmental body or an officer for public information to withhold from pub licinspection any category of public information described by Subsection (a) or to not produce the cat egory of public information for inspection or duplic ation, unless the category of information is express ly made confidential under other law.” Id. § 552.022(b)

. Reporters representing the Austin American–Statesman, San Antonio Express–News, and the Houston Chronicle sent requests to DPS officials. One reporter requested “travel vouchers for Gov. Rick Perry's security detail for all trips out of state during two time periods. The first time period is January through December 2001. The second time period isJanuary through June 2007.” Another requested “access to or copies of travel vouchers for Gov. Rick Perry's security detail.” The parties acknowledge t hat these requests include “information in an account,voucher, or contract relating to the receipt or expenditure of public or other funds by a governmenta l body.” See id. § 552.022(a)(3) . As such, the information requested is core public information. Id. § 552.022

.

II. Disclosure of Core Public Information as “Expressly Confidential Under Other Law”Compared to the dozens of exceptions for disclosure of “regular” public information, there is o nly one exception to the PIA's mandated disclosure of core public information—if it is “expressly confide ntial under other law.” Id. The text of section 552.022 's narrow exclusion contains three facial requirements : the information must be “confidential,” such design ation that the information is confidential must be “ express,” and the source of the confidential designat ion must be “other law.” This requirement was put in place by a 1999 amendment. See Act of May 25, 1999, 76th Leg., R.S., ch. 1319, § 5, 1999 Tex. Gen. Laws 4501. Prior to the amendment, *123 section 552.022Page 12

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© 2015 Thomson Reuters. No Claim to Orig. US Gov. W orks. of the Government Code merely recognized the types of information enumerated in section 552.022 were “public information.” It recognized that vouchers were public information “if the information is not otherwise made confidential by law.” Id. But the amendment added language to the introductory clause , requiring that all types of core public information enumerated in section 552.022 are public information “and not excepted from required disclosure under th is chapter unless they are expressly confidential unde r other law.” Id. FN1 This 1999 amendment was heralded as a “true success” in providing a “citizen ... ful l and complete information regarding official acts of tho se who represent them and the affairs of government.” Rick L. Duncan, No More Secrets: How Recent Legislative Changes Will Allow the Public Greater Acce ss to Information, 1 TEX. TECH. J. TEX. ADMIN. L. 115, 133 (2000) . We should give effect to all the words in a statute, and to changes in the words of legislative acts. See Indep. Life Ins. Co. of Am. v. Work, 124 Tex. 281, 77 S.W.2d 1036, 1039 (1934) . As discussed below, the Court's opinion does not, as i t ignores the “express,” “confidential,” and “other l aw” requirements of the statute.

FN1. Recently, the Texas Legislature amended section 552.022 's “expressly confidential under other law” provision, and also added specific exceptions in the PIA for certain confidential information. See generally Act of May 20, 2011, 82nd Leg., R.S. (to be codified at TEX. GOV'T CODE chs. 51, 552). After the effective date, core public information may be withheld from disclosure if it is “made confidential under this chapter or other law.” Id. § 2 (to be codified at TEX. GOV'T CODE § 552.022 ). This amendment does not apply to the case at bar, because the statute's effective date is September 1, 2011. Id. § 41.

A. Other Law“Other law” means law other than the Public Information Act. City of Georgetown, 53 S.W.3d at 332–33. I disagree with the Court's assertion that “other law” exceptions to disclosure of core public information can mean “judicial decisions.” 343 S.W.3d 112. The Court cites as authority for its holding the case of In re City of Georgetown, a case in which the Court examined whether rules in the Texas Rules of Civil Procedure regarding attorney-client privilege constituted “other law” under section 552.022

. Id. (citing City of Georgetown, 53 S.W.3d at 332). In City of Georgetown, the Court held that because our enacted rules of court “have the same for ce and effect as statutes,” and the rules were derived from previously enacted statutes, such rules constitute “other law” under section 552.022

. 53 S.W.3d at 332 (quotation omitted). The Court today misreads City of Georgetown, asserting that it serves as the basis for creating common law exceptions to the PIA. The Court cites no other Texas authority for this holdi ng.Other provisions in the PIA also indicate that judicial decisions should not be “other law” for the purpose of the section. See Molinet v. Kimbrell, ––– S.W.3d ––––, 2011 WL 182230 (Tex.2011) (noting that we examine the “entire act” to glean the meani ng of a statute's text (citations and quotations omitt ed)). In section 552.101 of the PIA, the Legislature excepted from disclosure information that is “conside red to be confidential by law, either constitutional, s tatutory, or by judicial decision.” TEX. GOV'T CODE § 552.101 . This provision applies to “public information” defined and disclosable pursuant to section552.021, and not to the core public information delineated in section 552.022 . If we were to interpret “other law” in section 552.022 to include law made pursuant to a judicial decision, we would effective ly apply section 552.101 's “judicial decision” exception to disclosure to core public information. This *124 is contrary to the Legislature's explicit statement th at core public information is “ not excepted from required disclosure under this chapter, ” including section 552.101

. Id. § 552.022 (emphasis added). The most logical reading, then, is that “other law” must mea nPage 13

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© 2015 Thomson Reuters. No Claim to Orig. US Gov. W orks. other statutory law where the Legislature has decla red certain information confidential, FN2 or rules of court drafted by this Court that are commensurate with statutes. See City of Georgetown, 53 S.W.3d at 333

.

FN2. This is essentially the limited exception under the federal Freedom of Information Act. See 5 U.S.C. § 552(b)(3) (excludingfrom FOIA's reach “matters that are specifically exempted from disclosure by statute ... if that statute ... (i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and specifically references § 552(b) , if passed after 2009”).
The Court argues that the “other law” in this case is the “individual['s] right to be free from physic al harm,” as manifested in the tort of battery. 343 S. W.3d 112. The Court posits that because physical safety is “the primary concern of every government,” and the PIA protects private information, then it must sure ly protect physical safety as well. Id. at 115 (quoting United States v. Salerno, 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ). The reasoning is a sound policy argument in drafting legislation. Elec ted officials should not be subjected to harm by danger ous persons whose task may be made easier through publi c information requests. But the policy decision of ho w to satisfy that objective is not ours. The Legislat ure has made nondisclosure of the core public informati on at issue dependent on it being specifically designa ted confidential by rules or statutes outside of the PI A.

Further, this Court has never held that other tortswould protect the disclosure of core public information under section 552.022 . In Industrial Foundation of the South v. Texas Industrial Accident Boar d, we decided the scope of information protected by “judicial decision” under the predecessor to Government Code section 552.101

. 540 S.W.2d at 683. This is not an interpretation of “other law” under section 552.022 , and, as discussed above, the two provisions are not coterminous.

In Industrial Foundation, all members of the Court agreed that the scope of the “judicial decisi on” exception did not give the Court a blank check to create common law exceptions to the PIA. Id. at 681–82 (plurality op.). “It was not the intention of the Legislature to turn over the administration of the Open Records Act to the judiciary.” Id. at 692 (Reavley, J., dissenting, joined by Steakley, Pope, and Denton, J J.); see also Tex. Comptroller of Pub. Accounts v. Att'y Gen. of Tex., ––– S.W.3d ––––, 2010 WL 4910163 (Tex.2010) (Wainwright, J., dissenting) (“[C]ourts do not have the discretion to classify information as confidential on an ad hoc basis; confidentiality of public information is to be determined by the terms of the Act.”). As I discussed in Texas Comptroller, the Legislature limited our ability to create judicial exceptions to the PIA. Id. at ––––. Thus, the Legislature's definition of the “judicial exception” includes onl y the privacy torts recognized at the time of Industrial Foundation. See 540 S.W.2d at 678–81. There was one such tort at that time-public disclosure of pri vate facts. I would thus limit the scope of the “judicia l decision” exception to that tort. My fundamental concern is the Court's willingness to create common law exceptions to the comprehensive disclosurescheme of the PIA, weakening the PIA in three consecutive opinions interpreting the Act— *125 City of Dallas v. Abbott, 304 S.W.3d 380, 387 (Tex.2010) (extending response periods by governmental entitie s to requests for public information when the request was unclear), Texas Comptroller, ––– S.W.3d at –––– (holding dates of birth “confidential” under “judic ial decision” and excepting them from disclosure under the PIA), and this case, DPS v. Cox.
Immediately after the dispute over the disclosure of travel vouchers arose, the Legislature considere d making such voucher information confidential. FN3 But it did not

declare vouchers from security detailsPage 14

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© 2015 Thomson Reuters. No Claim to Orig. US Gov. W orks. “confidential,” nor did it except these vouchers fr om the definition of “public information” under 552.022(a). Instead, the Legislature passed what is currently codified as section 552.151 of the Government Code

. FN4 That section provides:

FN3. Parallel bills in the Texas House and Senate during the current legislative session attempted to specifically make “a voucher submitted or to be submitted under [Chapter 660 of the Government Code] confidential and may not be disclosed under the PIA” if the voucher was for expenses incurred in protecting an elected official or the official'sfamily. H.B. 3131, 82nd Leg. R.S., § 1 (introduced March 10, 2011); S.B.1923, 82nd Leg., R.S., § 1 (introduced April 29, 2011). Neither bill came to a vote before each bill'srespective chamber during the regular session. During the special session in June 2011, Senate Bill 1 was amended to make vouchers or other reimbursement forms confidential for a period of eighteen months following the date of travel “if the reimbursement or travel expense incurred by a peace officer while assigned to provide protection for an elected official of this state or a member of the elected official's family.” S.B. 1, 82nd Leg., 1st C.S., § 79A.01 (introduced May 31, 2011). Following the eighteen-month period, the vouchers “become subject to disclosure under Chapter 552 and are not excepted from public disclosure or confidential under that chapter or other law,” with seven exceptions, including the personal safety exception. Id. During the eighteen-month period, agencies are required to submit expense summaries providing specified, detailed information. Id. The Legislature has provided that this Court will have “original and exclusive mandamusjurisdiction” over the construction, applicability, or constitutionality of the amendment, and the amendment applies only to vouchers created on or after September 1, 2011. Id.; see also id. § 80. The Governor has not yet taken action on the bill.

Because the vouchers at issue in this caseare not covered by the new section, its interpretation is not before this Court.

FN4. The original enacting legislation added the exception as section 552.151

. See Act of May 31, 2009, 81st Leg., R.S., ch. 283, § 4, 2009 Tex. Gen. Laws 742, 743 (codified at TEX. GOV'T CODE § 552.151 ). This session, the Legislature redesignated the section as section 552.152, effective September 1, 2011. See Act of May 5, 2011, 82nd Leg., R.S., S.B. 1303, § 27.001(20). For the sake of clarity, this opinion will refer to the provision as presently in force, section 552.151

. Information in the custody of a governmental bodythat relates to an employee or officer of the governmental body is excepted from the requirementsof Section 552.021 if, under the specific circumstances pertaining to the employee or officer, disclosure of the information would subject the employee or officer to a substantial threat of physic al harm. TEX. GOV'T CODE § 552.151 (to be recodified at TEX. GOV'T CODE § 552.152 ). The amendment applies only to information to be disclosed pursuan t to section 552.021, i.e., regular “public information.” It is an exception in Subchapter C, whichspecifically does not apply to core public information, like information in the vouchers at issue i n this case. The Court argues that the Legislature's “swift passage” of section 552.151 of the Government Code “confirms the primacy” of the government's interest in protection against physical harm

. 343 S.W.3d 112. But the Legislature's intent is bes t manifested in what actually becomes law. Molinet, ––– S.W.3d at ––––

(“The plain meaning of the text is the best expression of legislative intent unless aPage 15

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© 2015 Thomson Reuters. No Claim to Orig. US Gov. W orks. *126 different meaning is apparent....”). The promulgation of section 552.151 demonstrates the opposite. Section 552.151 is not an exception to the mandated disclosure of core public information. The Court's opinion grafts the Legislature's test found in section 552.151 onto situations in which the Legislature unambiguously did not intend. The Court would rewrite section 552.151 to hold thatsuch information is “excepted from the requirements of sections 552.021 or 552.022 ” and movesthe section out of the PIA such that it can be considered “other law.” 343 S.W.3d 112 (emphasis added). The Court should not by common law override a specific statutory mandate.

B. ConfidentialEven if “other law” may include judicial decisions and the common law, section 552.022 requires that the “other law” declare the information “confi

dential.” “Confidential” may have a fluid meaning, such as “protected,” “secured,” or “safeguarded.” Cf. City of Georgetown, 53 S.W.3d at 334 (“A law does not have to use the word ‘confidential’ to expressl y impose confidentiality.”). The Legislature has enac ted a plethora of laws that deem certain information “confidential” for myriad purposes. See Tex. Comptroller, ––– S.W.3d –––– (Wainwright, J., dissenting) (noting that “no fewer than 100 Texas statutes clas sify information as confidential for purposes of the PIA ”); City of Georgetown, 53 S.W.3d at 339–40 (Abbott, J., dissenting) (providing four examples of information “expressly made confidential” in the Transportation Code, Education Code, and Family Code). Likewise, there are a number of tort actions, both statutory and common law, that recognize that certain types of in

formation are private or confidential. FN5 But in every instance, the information itself is the issue, and the statute, decision, rule, or crime exists to protect the information itself or a person who will be directly harmed by the information's release.

FN5. Examples include trade secrets, privilege, public disclosure of private facts, and gag orders during trial. See In re Bass, 113 S.W.3d 735, 739 (Tex.2003) (defining trade secrets); RESTATEMENT (THIRD) OF UNFAIR COMPETITION §§ 39 , 40 , 41 (similarly defining trade secrets and remedies available for protection of trade secrets); TEX.R. CIV. P. 193.3 (setting standards for asserting privileges in discovery); In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 222–23 (Tex.2004) (per curiam) (providing for mandamus relief for erroneous rulings on privileged documents); Indus. Found. of the S. v. Tex. Ind. Accident Bd., 540 S.W.2d 668, 682–83 (Tex.1976) (plurality op.) (discussing the tort of public disclosure of private facts); Davenport v. Garcia, 834 S.W.2d 4, 10 (Tex.1992) (discussing a court's authority to issue gag orders).
Once again, the Court creates a judicial exception to disclosure of information in the PIA based on a possible use of the information rather than the nat ure of the information itself. In Texas Comptroller, the Court, for the first time, considered derivative ha rm arising from the release of information—whether disclosure of birth dates of public employees, alon g with other information, could be used for identity theft. The Court held that such potential tortious use of the public information constituted grounds to withh old the information because it would constitute a “clea rly unwarranted invasion of personal privacy.” Tex. Comptroller, ––– S.W.3d at ––––. But the courts are not “free to balance the public's interest in discl osure against the harm resulting to an individual by reas on of such disclosure.” Indus. Found., 540 S.W.2d at 681–82 (plurality op.). “This policy determination was made by the Legislature when it enacted the statute .” Id. at 682. The Legislature granted the people's right to the information after considering *127 its potential uses and harms. The Court, apparently believing the Legislature did not sufficiently execute its task, finds a new common law exception to disclosure based on its own views of harm in the potential use of, on thisPage 16

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© 2015 Thomson Reuters. No Claim to Orig. US Gov. W orks. occasion, core public information.

In Texas Comptroller, as here, the Court did not restrict itself to considering whether the actual r elease of the information (state employees' birth dates) w as harmful, but rather whether, in the wrong hands and in combination with other information, such as Social Security numbers, state employees might be at highe r risk for identity theft. Tex. Comptroller, –––S.W.3d

––––. The harm was derivative, and the analysis allowed for post-hoc, judicially created exceptions t o disclosure. For the same reasons as in Texas Comptroller, I believe the Court's analysis and application of derivative harm to create an exception to disclo sure is inappropriate, particularly so because of the co re public nature of the information at issue, and beca use the Court's rule could permit unfettered judicial d iscretion in declaring any information not subject to disclosure. Its discovery of this common law right may even inadvertently have the effect of creating some common law cause of action for “wrongful disclosure of information,” and may have the potent ialto randomly and unnecessarily subject various government agencies and officers to criminal liability for simply disclosing what the Legislature determined, and the Court admits, is core public information. See TEX. GOV'T CODE § 552.352 (defining the misdemeanor crime of distribution of information “consid

ered confidential under the terms of this chapter”)

.

C. Expressly Even if our common law torts are “other law,” and even if, somehow, the threat of the tort of bat tery declares some unknown information “confidential,” the final requirement of section 552.022 is that the “other law” must “expressly” make the information “confidential.” The Court does not address how itbelieves that the information at issue here is “expressly” confidential. Merriam–Webster's dictionary defines “express” as “directly, firmly, and explici tly stated.” MERRIAM–WEBSTER DICTIONARY, available at

http:// www. merriam- webster. com/ dictionary/ express (last visited June 21, 2011). T he tort of battery is when a person “(a) ... acts inte nding to cause a harmful or offensive contact with the perso n of the other or a third person, or an imminent apprehe nsion of such a contact, and (b) a harmful contact w ith the person of the other directly or indirectly resu lts.” RESTATEMENT (SECOND) OF TORTS § 13 (1965) ; see also Bailey v. C.S., 12 S.W.3d 159, 162 (Tex.App.-Dallas 2000, no pet.) (“A person commits a battery if he intentionally or knowingly causes phy sical contact with another when he knows or should reasonably believe the other person will regard the contact as offensive or provocative.”). Nowhere in the tort's elements, or in any of our cases, is it “dir ectly, firmly, and explicitly stated” that battery protect s information from disclosure. The tort concerns harmful or offensive intentional contact. The Court ignores this critical requirement of the statute li miting a court's ability to protect information from discl osure. Simply put, common law battery is not “other law” under which the information at issue here is “expressly confidential.” The Court oversteps legis

lated limits recognized in Industrial Foundation to interpret exceptions to disclosure under the PIA. F or this reason, I do not join in the Court's opinion.

*128 III. Remand Is Appropriate Although I cannot join the Court's opinion, I join its judgment that remand is appropriate. I believe DPS's and the trial court's improper reliance on th e “special circumstances” exception, and the possibil ity of harm to public officials, warrants a remand in t he interests of justice. I also believe that DPS shoul d have the opportunity to argue that a specific exception to disclosure made by the Homeland Security Act should apply.
The Court relies on and builds upon the Attorney General's “special circumstances” test, which theAttorney General has applied numerous times in various letter rulings, in support of its holding toda y. However, this test, and its rulings, do not apply t o the information at issue here nor to the legal theory u ponPage 17

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© 2015 Thomson Reuters. No Claim to Orig. US Gov. W orks. which the Court relies in withholding the informati on. The genesis of the test is a one-page letter ruling from 1974, that was later expanded in 1977. It was not a freestanding test to withhold information, but ra ther was used in determining whether information could b ewithheld as a “clearly unwarranted invasion of personal privacy,” a separate, statutory exception to disclosure of non-core public information in the Act. Tex. Att'y Gen. ORD–54 (1974); Tex. Att'y Gen. ORD–169 (1977) ; see also TEX. GOV'T CODE § 552.102 (providing an exception for regular “public” information for information in a personnel file, “t hedisclosure of which would constitute a clearly unwarranted invasion of personal privacy”). In otherwords, the attorney general examined “special circumstances,” such as an employee's specific history of being threatened, harassed, or stalked, to see if i nformation in a state employee's personnel file shou ld not be disclosed under what is now section 552.102 of the PIA. Rather than protecting more information from disclosure, the “special circumstances” test, as initially articulated by the attorney general, actu ally required more information to be disclosed, because only if the “special circumstances” existed could a n employee's personnel information (including his or her home address, phone number, and other personal information) be withheld. Tex. Att'y Gen. ORD–54 (1974); Tex. Att'y Gen. ORD–169 (1977)

. In later attorney general opinions, though, the “special circumstances” test was not discussed in conjunction with section 552.102 's “clearly unwarranted invasion of personal privacy” in employees' personnel files, but rather as a privacy exception or “other judicial decision” under section 552.101

. See, e.g., Tex. Att'y Gen. OR2004–10845 . No party extensively discussed the evolution of this test in t he attorney general's office from 1977 until today. However, it appears that the attorney general's bas is for applying the “special circumstances” test to in

formation not subject to disclosure was based on th e application of the tort of public disclosure of pri vate facts (discussed in Industrial Foundation and analyzed under the employment file exception, predecessor to section 552.102 ) as another “judicial decision” excluding information pursuant to section 552.101

.It also appears that the Attorney General has determined that section 5 52. 101 is “other law” for the purpose of deciding whether core public information can be withheld. I agree that the tort of public di sclosure of private facts may be a “judicial decisio n,” as it was extant at the time the PIA was promulgate d, that could be the basis of an exclusion from disclo sure under section 552.101 and may also be “other law” bywhich core public information is “expressly confidential” under section 552.022 . However, section 552.101 , in and of itself, cannot be “other law” to withhold core public information. To enact such a r ule would thwart the Legislature's *129 expressed intent that core public information is not subject to the Subchapter C exceptions, including section 552.101

. This is further evidenced by the fact that the Legi slature's new “special circumstances” exception, which appears to be similar to the Attorney General'sso-called common law privacy “special circumstances” exception, is in Subchapter C, thus currently a pplying to “public information” but not core public information that must be disclosed pursuant to section 552.022 . Therefore, the Attorney General's “special circumstances” exception should not apply to the information here.
The Attorney General's “special circumstances” test cannot apply in this situation. However, becau se the use of the test as an independent basis for wit hholding information was reasonably well established in a number of attorney general letter rulings for a number of years, because DPS and the trial court erroneously relied upon the test, and because of th e serious personal safety concerns at issue in this c ase, I would remand in the interest of justice to allow DP S to argue any and all exceptions that are based on “oth er law,” such as one based on Government Code sectionPage 18

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© 2015 Thomson Reuters. No Claim to Orig. US Gov. W orks. 418.176 , the exception from the Homeland Security Act. See TEX.R.APP. P. 60.3; Low v. Henry, 221 S.W.3d 609, 621 (Tex.2007) (remanding “to allow the parties to present evidence responsive to [the Cour t's] new guidelines”).

On remand, the trial court should consider whether specific information in the vouchers raises serious security concerns and should be redacted. F or example, in the sample submitted in camera to the Court, one cannot only identify at which specific hotels the Governor's security detail stayed and, i nferentially, whether they stayed in the same hotel as the Governor, but also when the members of the deta il arrived and departed from the foreign country. Othe r information in the vouchers, such as total amounts spent for lodging or costs of meals, may not presen t the same security concerns. The trial court should carefully consider the varying levels of concern fo r the different types of information in the vouchers.

IV. Conclusion There is legitimate concern about fashioning a rule that could allow those who want to do harm to government officials to gain information to help th em do so through the government's own records. The rul e the Court announces today—that it can fashion common law exceptions to disclosure of core public information—is based on a genuine concern to protec t our public officials from physical harm and acts of terrorism, but it thwarts the Legislature's clear s tatement that it, not the courts, grants exceptions to the public's access to public information. There are ma ny statutes and rules that make information “expressly confidential,” but the judge-made tort of battery i s not one, and we should guard against any court creating reasons to keep government information from its citizens. That policy-laden task, as emphasized in Industrial Foundation, belongs to the Legislature. Because the Court's rule opens the door to new judi

cially created exceptions to disclosure of core pub lic information and weakens what was one of the strongest, most robust freedom of information statu tes in the nation, FN6 I respectfully cannot join the Court's opinion. But because I believe remand in the intere st of justice is appropriate, I join the Court's judgm ent.

FN6. See City of Dallas, 304 S.W.3d at 395 n. 5 (Wainwright, J., dissenting) (citing 151 Cong. Rec. S1525–26 (Feb. 16, 2005) (statement of Senator John Cornyn)).

Tex.,2011.Texas Dept. of Public Safety v. Cox Texas Newspapers, L.P. 343 S.W.3d 112, 39 Media L. Rep. 2267, 54 Tex. Sup. Ct. J. 1428

END OF DOCUMENT