### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00362
- CV

The Franklin Center for Government and Public Integrity and Jon Cassidy, Appellant s

v. The University of Texas System, Appellee

FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY NO. D
- 1
- G N
- 15
- 003417, THE HONORABLE TIM SULAK, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

The Franklin Center for Government and Public Integrity and Jon Cassidy (colle ctively, the Franklin Center) appeal t h e district court ’ s summary judgment in fav or of The Unive rsity of Texas System (the UT System ) ordering that information requ ested by the Franklin Center related to an independent i nvestigation into the U T System ’ s admissions policies

was ex cepted from discl osure unde r the Texas Public Informa t ion Act ( T PIA). See Tex. Gov ’ t Code §§ 552 .001

- . 353. We reverse the district cour t ’ s summary judgment and render judgment that some of the requested documents are not excepted from disclosure un der the TPIA.

BACKGROUND In August 201 3, a membe r of the UT System Bo ard of Regen ts and member s of the media raised qu estions about the possible existence of und ue in f lu ence in the admis sions process at The University of Texas at Austin (UT Austin)

. The UT System Chance llor and2

the Executive Vice Chanc ellor fo r Academic A f fairs tasked the Vice Chancellor and General Counsel, Daniel Sharpho rn , and the Associate Vice Ch a ncellor for Student Affairs, Wanda Mercer, with investigating whether there did exi st undue influenc e o r outside pressure in the UT Austi n admiss i ons process. The i nvestigation initially f ocused on the University of Texas School of Law (UT Law School), b u t la ter expanded to include underg raduat e admissions

.

Sharphorn and Mercer interview ed the UT Austin Presiden t , his Chief of S taff, the curre nt and former Dean s of UT Law School, the Assist ant Dean for Admis sions and Financial Aid o f UT Law Scho ol, a nd other individuals affiliated with UT Law School

. Th ey also reviewed undergraduate and law s chool admissions data, seventy

- seven letters of

recomm e ndati on sent by members of the state legislature to then

- President Bill Powers , and
Powers ’ s response s to those letters. In May 2014, a t the conclusion of the investig ation, Sharph orn and Mercer finalized the “ University of Texas System

— U.T. Austin Admiss ions Inquiry Report ” (the Inquiry Report ) . The Inquiry Report, whi ch was released to the public,
note d that the investigation fo cused on letters of recommendation “ t hat are sent directly to the president o r a dean and are outside the pres cribed applicatio n and rec ommendation pro cess. ” The inves tigation found no evidence of a “ quid pro quo [,] an exchange of admissions decisions for favors ” ; no evidence “ of a sy stematic , structured, or centralized process of reviewing a nd admitting applicants recommended by i n fluentia l individuals ” ; and no eviden ce of overt pressu re on Admiss ions Office staff to admit applica n ts based on the recommendations of persons of influenc e. The Inquiry Report did, how ever, con clude that admission decisions were li kely impacted in so m e cases b y the letters of recommenda tion and that the admission rates for applicants to whom the lette r s applied were significantly high er than for the rest of the app licant
po pul a tions. The Inquiry Report further concluded that the disparities in admiss i on rat es could3

not reas onably be explained by factors of individual merit, such as grades, test scores , or other holistic considerations. The In quiry Report de termined that further investigation was unwarranted because “ little would be gained by refining the data an d attempting to ident ify explanat ory varia bles that would pro duce a more precise estimate o f the impact of legislator letters of re commendation. ” Instead, the Inquiry Report recommended that “ the Chancellor and Executive Vice Chancellor for A c a demic Aff airs work with inst i tution presidents to ensure that all U.T. System institutions have incorpo r at ed the best practices in admissions proce sses that have been dev eloped within the U.T. System and a cross the cou ntry. ” The Inquiry Report

con cluded t hat if th e Board of R eg en t s believed that ther e were questions that s hould and could be answered by a f

u ll investigation, then the Board of Regents should , after full and careful deliberation, make the decision a bout whether to conduct such an investigati o n.

In J une 2014, after the Inquiry Report was issued, a former Admissions official reported to the UT System Chancellor and its Vice Chancell or and General Counsel that the UT Austin Office of the President ha d at times exerted pressure on the UT A ustin Office of Admissions to admit s ome applicants of lesser qu alifica tions in response to external influences.
T h at same month , the U T Austin P re sident informed the UT System Chancellor that he had fac ed
pressu re over th e admissions proce ss from do nors, alum n i, and le gislat or s and that , in certain

cases , he had respon ded to that pressure by increasing the c lass size by the added number of
p e op le he chose to admit so tha t positions were not taken away from applicants already admitted. This new information cau se d the Cha ncellor to believe that an independent firm should b e retained to more thoroughly an d comprehensiv ely review the admissions p rocess .

In August 2014, the UT System and Kroll Associate s, Inc. (Kroll) entered into an

“ Agreement Betwe en University a nd Contra ctor ” (the Agreement) whereby Kro ll, identified in4

the A greement as the “ Contrac tor , ” would act as t he independent firm to r e view the admissions process. The Agreement defined the Scope of Wo rk as follows:

The focus will be on an evaluation of th e cond uct of U.T. Austin, U.T. System, and U.T. System Bo ard of R egents , (collectively “ U.T

. ” ) officials and employees in performing a dmissions services, not on any external recommen ders. U.T. ’ s responsibility to ensure in tegrity in the handling of admi ss ions reco mmenda tions lies with the staff and officials within U.T., thus the charge is to determine if the conduct o f U.T. officials i s beyond r eproach. Specifically, the investigation should determine if U.T. Austin ’ s admissions decisions are made for an y reason other than an applica nt ’ s individual merit as measured by academic achievement and officially established personal holistic a ttributes, and if not, why not. This charge is ba sed o n the premis e that applican ts shou ld only be admitted to a public un iversity based on their individual merit, i.e., academic achievement and officially established personal holistic factors. They shou l d not gain advantage only because they are recommended outside the pres cribed admissions process by an i nfluential indiv id ual, whet her that individual is a regent, U.T. S ystem or U.T. Austin officer or staf

f member, member of the executive, legislative or judicial branch, or major donor, who adds no new substantive information about the app l icant ’ s personal merit. Any comp et i ng evide nce or premise as to the basis for admissions should be identi fied so it can be openly de bated.
The Agreement included a section defining the “ Relationship of the Parties, ” which provided:
For all purposes o f t his Agreement and notwithstandin g a ny pro vision of this Agreement to the contrary, Contractor is an indepen dent contractor and is not a state employee, partner, joint venture r , or agent of U niversity. Contractor will not bind o r attempt to bind Univer s i ty to any agreement or contract. As an ind ependent contractor, Contractor is sole ly respons ible for all taxes, w i thholdings, an d other statutory or contractual ob ligations of any sort, i ncluding workers ’ compensation insurance.
The Agreement also required Kroll to submit a final report to th e “ U .T. Austin General Counsel ” that “ describe s the investigation methods employed and rep ort s the i nvestigators ’ factual findings. ”

Kroll conducted its inve stigation , during the course of whi ch it reviewed data and document s pro vided to it by the U T Sys te m and condu cted interviews of various individuals5

invo lved in the admissions process. T he UT System explained in its brief that Kroll was provided “ a pproximately 626,000 pages ” of documents and tha t “ th e large volume was due to the way so me of the do cum en ts were stored. ” Sp e cifically , the UT System stated that several univ ersity employees and d epartments were on litigation hold status due to un related litigation and that the li tigation hold was implemen t ed “ in a way tha t made it dif ficult to extrac t the

c or re spondence Kroll requ ested, so the entire litigation hold file was provided instead. ” In its report, Kr oll stated that it reviewed appro xi mately 9,500 emails provided to it

. After completing the inv e stigation , Kro ll submitted it s Final Report i n Feb ru ar y 2015. The 101

- page report detai led Kroll ’ s findings , provided its recommendation s , and suggested best practices. Specifically, Kroll ’ s report states that while it “ has not attempted to second

- guess the mer it s of individual admissions decisions , ” it “ f ou nd a lack of guidance for decision makers ” and , in th e
repor t, “ attempt[ed] to offer some s uggested guidelines for future consideration and possible implementation. ” Kroll submitte d its report to the UT Syste m ’ s General Counsel and the r eport

was pub li s he d on the UT System ’ s website.

After Kroll ’ s report was published, the Franklin Center made a requ est under the
T PIA for “ all emails, interview tr anscri pts and other docume nts provi ded to or obtained by Kro ll investigators as part of their au dit of a dmi ss ions. ” T he UT System req uested an opin ion from the Open Records Division of the Attorney Ge neral ’ s off ice regarding whether the documents sought were required to be disclosed to the Frankli n Center. In an inf orma l letter opinion designated
OR201 5

- 14 088 , the Attorney General ruled that the infor mation was part of a completed inve stigation subject to T PIA section 552.022(a)(1). See Tex. Gov ’ t Code § 552.0 2 2(a)(1) ( completed investigation mad e of, by, or for gove rnmental body not excepted from disc losu re

un less made confidential under other law). How ever, b ecause the Texas Supreme C ourt ha s held6

that the Texas Rules of Evidence are “ other law ” for the purposes of section 552.022, the Attorney General addressed th e UT System ’ s assertion that the doc umen ts so ught wer e prote cted by the attorney

- client privilege under Te xas Rule of Evidence 503. See Tex. R. E vid. 503 (lawyer

- client privilege); In re City of Georgetown , 53 S. W .3d 328, 336 (Tex. 2001) (orig. proceeding) ( Texas Rules of E vidence are “ other la w ” within mea ni ng of sec tion 552.022). The Attorney General also con sidered the UT Sy stem ’ s claims tha t the information requested was protected by common law and constitut ional pri vac y, and other T PIA provisions. See Tex. Gov ’ t Code §§ 552.101 ( in formati on considered to be con fidential b y law, either constitutional,
statut ory, or by judicial decision ); .103 (litigation exception); .1 11 (deliberative process privile ge). The Attorney General concluded that, with certain exceptions, the documents wer e e xcep ted from dis clo sure to t he Franklin C enter.

The UT System then sued the Attorney Gener al in Travis County district court challe ng ing t he portions of the A ttorney Genera l ’ s letter ruling that ordered certain documents
to be disclosed. See id. § 552.324 ( gov e rnmental body may seek declaratory relief from

co mpliance with decision by attorney general). Th e Fr anklin Center intervened in the suit seeking a declaratory judgment that all the documents were public information not excepted from disclosure and a w rit of mandam us to compel the UT System to release the information. See id. §§ 55 2 .321, .3215. While the litigation was pen ding, the UT System creat ed a privilege log o f documents that it had sub mitted to the Attorney General as a representative sample o f th e documen ts sub

ject t o the Franklin Center ’ s TPIA requ est and asserted that all documents on the priv ilege log were protected by the a ttorney

- client privile ge. 1 T h e Franklin Center then filed an

1 Section 552 .301(e)(1)(D) of the Texas Government Code permits a gove rnmental body seeking a n Attor ney General dec isi on about whet her r equested information is excepted from7

amended petition that narrowed the scope of documents i t sou g ht under the T PIA. Specifically, the Franklin Center ’ s amended petition states that it “ seeks only that information provided to the
O AG as a representative sample identified by UT in its privi le ge log

. ” Because the scope of the docume nts sought was ther eby nar rowe d, th e ma jority of the docu ments cont aining the exceptions for disclosure that were the subject of the UT System ’ s origina l petition against the
A tto rney General were no longer the subject of the Franklin Center ’ s T P IA requ est and,
conseq u en tly, the UT Syst em ’ s challenges to the Attorney General ’ s ruling on t h at information were no longer at issue.

The docu ment s identified on the priv il ege lo g that are the subject of this appeal were all either provided to Kroll by the UT System or created by K roll in conn e cti on with its investigation. 2 The UT System grou ps the docu ments identified in the pri vilege log in three categories. First, docu ments labeled UT S

- 00001 through UTS

- 00146 consi st of internal

commun ica tions between UT System lawyers and UT S ystem c lie nts , U T Austin lawyers and UT Austin clients, and UT Syst em and UT Austin clients an d lawyers regarding matters unrelat ed to the Kroll inv estigation. Se cond, documents labeled UTS

- 001 47 through UTS

- 00722 and UTS

- 00727 through UTS

- 00734 inclu de i nterv ie w questio ns an d notes and summaries created by Kroll during Kroll ’ s interviews of UT System an d UT Austin employees and offici als. Third, documents labeled UTS

- 0723 through UTS

- 0726 include draft correspondence from UT

dis closure under the T P IA to s ubmit representative sa mple s of the inf ormation if a voluminous am ount of information was re quested. Tex. Gov ’ t Cod e § 552.301( e)(1)(D). The UT System had su bmitted a re presentative sample to the Attorney General.

2 The doc uments id entifi ed in t he priv ilege log were submitted to the tri al c ourt for in camera inspecti on. See id. § 552.322 1 (information at issue may be filed with court for in camera inspection , and on rec eipt of information co urt shall enter order that prevents rel eas e to o r acces s by an y person other than court, r evie wing cou rt o f appeals, or parties p ermitted to inspect information pursuant to protective order).8

Syst em General Counsel Da niel Sharp h o rn to UT employ ees about Kroll ’ s interviews and draft s of other investigation

- related d ocument s as edited by Sharpho rn.

The UT System and the Fr anklin Center fil ed cross

- motions fo r summary judgment regarding whether the information identifie d in the pr ivilege l og was excepted from discl osure beca use it wa s , in its entirety , pr otect ed from disclosure by Texas Rule of Evide nce 503 as “ confidential communications made for the pu rpose of facilitating the rendition o f legal services to the cl ient

. . . betwe en the cl i ent or a represent ative of the client and the client ’ s lawyer or a r epresentative of the lawyer ” or “ between the client ’ s lawyer a nd the lawyer ’ s representative. ” T ex. R. E vid . 503(b)(1)

. The par ties also joi ned issue on whether, asi de fr om the attorney

- client privilege , certain of the r eque sted information constit utes confident ial student and applicant information excep ted from discl osure as well as personal contact information also

exc epted from disclosure. See Tex. Gov ’ t Code § § 5 52.10 1 (inf ormation considered to be confidential by law or judicial decision excepted from disclosure); .114 (excepting from discl osure information in “ student record , ” as term is defined by Family Educational Rights and Pri vacy Act of 1974, 20 U.S.C. § 1 232g( a)(4), at ed uca tional institution funded by state revenue) ; .117 (information that relates to home address, home telephone number, emergency
contact information , or social security number of current or forme r offici al of governmental bo dy excepted fro m dis c losur e); .137 (e

- mail address of mem ber of public pro vided for purpose of communication electronically with governmental body is confi d ential an d not subject to disclos ure). Finally, the U T System argued that one e ma il described in the privilege log
cont a ined informati on that was con fidential under Texas Hea lth and Safet y Code section 81.046.
See Tex. Health & Safety Code § 81.046 ( information related to cases o f disease or h ealth conditions is not public information under Government Code chapter 5 2 2).9 After a hear ing, the trial court rendere d judgment grant ing the U T System ’ s motion for summary judgment and den ying the Franklin Center ’ s. The Frank lin Center perfected an appeal challenging that judgment.

DISCUSSION Attorney
- Client Privilege

Rel evant to the c ircu mstan c es here, the TPIA p rovides that a co mpleted investigation made by or for a go vern mental body is publ ic infor mation and not ex cepted from disclosure unless it is expressly confide nt ial under other law. Tex. Gov ’t Code § 552.022. Th e Texa s Rules of E vid en c e are “other law ” for the p urposes o f TPIA section 55 2 .0 22

. See In re City of Georget own , 53 S.W.3d at 329

. Texas R ule of Evidence 503(b)(1) pro tec ts:

confidential communications m ade to facilitat e the rendition of professional le gal se rvic es t o the cli ent : ( A ) between the client or the client ’ s repres entative and the client ’ s lawyer or the lawyer ’s rep resentative ; ( B ) between the client ’ s lawyer and the lawyer ’s represent ative ; ( C ) by the client, the client ’ s repre senta tive , t he c lien t ’ s la wyer , or the lawyer ’ s repre sentat ive to a l a wyer repres enting another party in a pending action or that lawyer ’ s re presentative, if the co mmunication s concern a matter of common inter est in the pending action ; ( D ) between the cl ient ’ s representat ives o r be twee n the cli ent and the clie nt ’ s repr esentati ve ; or ( E ) among lawyers and their represent atives representing the s ame cl ient.

T ex. R. Evid. 503(b) (1)

. An attorney ’ s investigation may constitute legal services such that it falls within the attorney

- cl ien t privilege. See Harlandale Indep. Sch. Dist. v. Cornyn , 25 S.W.3d 328, 334 (Tex. App.

— Austin 2000 pet

. denied). The relevant inqu iry is whether the attorney was retained to conduct an investigation related to the rendition of leg al services. Id. Fu rth er, t he attorney

- client privilege protects not only the communications between the lawyer and the client , but also communic ations between their representatives. Id. ; In re XL Specialty Ins. , 373 S.W.3d 46, 49

- 50 (Tex. 20 12) (orig. proceeding)

. A “ l awy er ’ s representative ” is “ one employed by the10

lawyer to assist in the rendition of profession al legal services. ” Tex. R. E vid. 5 03 (a ) (4)(A) ; In r e XL Specialty Ins. , 373 S.W.3d at 56 & n.17 (explaining that rule 503(a)(4) defines “ lawyer ’ s represent ativ e ” as employee of lawyer or accountant); IMC Fert ilizer , Inc. v. O ’

Neill , 846
S.W. 2 d 590, 592 (Tex. App.

— Houston [14th Dist.] 1993, no writ ) (discussing rule 503(b) and concluding that investigator was representative of attorney covered by atto rney - cl ient pri vil ege).

Whether information is subject to the TPIA and whether an exception to disclosure applies to the inf ormation at issu e are que stions of law. Cit y of Garland v. Dallas Morning News , 22 S.W.3d 351, 357 (Tex. 2000); Arlington Indep. Sch. Dist. v . T exa s Att ’ y Gen. , 37 S.W.3d 152, 163 (Tex. App.

— Aus tin 2001, no pet.). It is the gov ernmental body ’ s burden
to prove that an exception to public disclosure applies to the information at issue , City o f
Fort Worth v. Cornyn , 86 S. W .3d 320, 323 ( Tex. Ap p.

— Aus tin 20 02, no pet.), and e xceptions
to disclosure are nar rowly co nstrued, Texas State B o ard o f Chiroprac tic Ex aminers v. Abbot t , 391 S.W.3d 343, 347 (Tex. App.

— Austin 2013, no pet.)

. Thus, the UT Syst em had t he burden
to establish that the documen ts at i ss ue wer e privileged under Rule 503. See Huie v. DeSha zo , 922 S.W.2d 920, 926 (Tex. 1996).

The Frank l in Ce nter first argues that the UT System failed to carry its burden of demo nstrating that the doc uments liste d on the privilege lo g are, in their ent i re t y, pr otected by th e attorney

- client privilege. 3 In its summary judgment mo tion, the UT System ar gued th at each

3 The parties do not dispute the facts rele vant to the determination of whether the inform ation fell with in the attorn ey clie nt

- privilege. See City of Garland v. Dallas Morning News , 22 S.W.3d 351, 356 (Tex. 2000) ( “ Because the parties do not dispute the relevant facts , this is a proper case for summary judgment ” ); A & T Consultants, Inc. v. Sh arp , 904 S.W.2 d 668, 674 (T ex. 199 5) ( “ A & T's request does not raise factual issues about the nature of the information sought. ” ) ; Univer sity of Tex. Sys. v. Paxton , No. 03

- 14

- 00801

- CV, 2017 WL 1315374 (Tex. App.

— Austi n Apr. 7, 2017 , no pet.) (mem. op.) ; C ity of Houston v. P axton , No. 03

- 15

- 00093

- CV, 2016 WL 767755 , at * 3 (Tex. App.

— Austin Feb. 23, 2 016, no pet.) (mem. op.)

.11

document id entified on the log constitu ted a “ communication, c reated to facilitate the rendition of professional legal services. ” Documen ts lab ele d U TS

- 00 001 thro ugh UTS

- 00146 are email s containing internal commun ica tions between UT System lawyers and UT System clie nts , UT Austin lawyers and UT Austin clients, and between UT Syst em and UT Au stin clients an d lawyers regarding matters unrelat ed to the Kr oll inv estiga tion

. These internal communications, which th e UT System maintains were privileged attorney

- client communications, were pro vided to Kroll by the UT System

. The Franklin Cen t er arg ue d that this voluntary discl osure of the attorney

- cl ien t c omm unications to Kroll wa ived any attorney

- cl ient privi lege th at would other wise protect those communication s from disclosure. See Tex. R. Evid . 511 (a) (waiver by volunta ry disclosure) ; Paxton v. City of Dallas , 509 S.W.3d 247, 262

- 64 (Tex. 2017) (d isc uss ing waiver of attorney

- client privilege in context of TPIA). “ It is an exception to the general rule that the [attorney

- client] privilege is wai ve d if the lawyer or clie nt voluntarily disclose privileged communications to a third party. ” XL Speci al ty Ins

. , 373 S.W.3d at 50. The UT System

coun tered that it s voluntary discl osure of the c ommunicat ions to Kroll did not waive the
atto rney - client privilege bec ause Kroll was not a “ third party ” bu t a “ lawyer ’ s representative ” within the meaning of Rule 50 3(a )(4 )

.

The UT System describes d ocuments labeled UTS

- 001 47 through UTS

- 00722 and UTS

- 00727 through UTS

- 00734 as interview questions an d notes creat ed by Kro ll during Kroll ’ s inte rviews of UT System an d UT Austin employees and o ffici als

. The U T System arg ues that these doc uments are privileged attorney

- client communications bec ause the y constitute

commun ications made between the UT System ’ s employees and offi c ials a nd Kr oll, acting as a

“ lawyer ’ s r epre sen tative

. ” Similarly, the UT System argues tha t do c um ent s la bele d UTS

- 007 23 through UTS

- 00726 , which it charact eri zes as “ draft communication s from UT System Gen eral12

Couns el Dan Sh arpho rn to interv iewe es that s how Mr. Sharpho rn ’ s redline e dits , ” are, despit e having been shared with Kr oll, protected by the at tor ney - client privi l ege because that privil ege

covers “ draft documents and communi cations shared amo n g persons within the privilege to facilit ate t he rendit ion of legal services. ”

The l i nchpin of th e U T System ’ s claim of the attorney

- client privilege wit h

r espect to e ach document listed on the pr ivilege log is its assertion t hat Kroll acte d as a “ la w yer ’ s
repr esentative ”

— i .e., one “ employed by the lawyer to assist in the rendi tion of professional legal services , ” see Tex. R. Evid. 503(a )(4)( A)

— in connec ti on wi th its investigation of the admissions practices. In th e trial co urt, t he U T S ystem relied on the following facts to demonstrate that Kroll w as a “ la w yer ’ s representative

. ” F i r st, the UT System presented t wo affidavits of Daniel S harphorn, Vice Chan cello r and General Counsel for the U T System. Sha rphorn averred that i n Au gust 201 4, while he was the Univers ity ’ s Ge neral Counse l an d
act ing “ under the a utho rity of a nd at the dir ection of ” the U T Sy stem ’ s Chancell or , he hired Kroll 4 to c onduct an “ in d epe nden t inve stigation ” into concerns raised about the admissions practic es at UT Austin

. While the Kr oll investigation was focused on indiv idu als int ern al to t he UT System, Sharpho rn instructed Kroll to n o tify him if “ anything came to light that raised a ny

se ri ous co ncern, ‘ such as evidence of a quid pro qu o or a t hr eat from a recommender

. ’ ” 5 Sharphorn revi e wed “ the documents gather ed by Kro ll in relation to it s investigatio n ” to

4 In on e of his two affidavits Sharphorn averred that he hired Kroll to conduct the independent investigation

. In the other affidavit, Sharph orn aver r e d t h at UT Sy st em Cha ncellor Fran cisco Cigarroa hired Krol l. The Agree m ent was signed on the UT System ’ s beha lf by Scott C. Kelley, Exec utive Vice Chan cellor for Business Affairs

.

5 Sharphorn averred that Kroll did not report anything tha t raised “ seriou s co nc ern. ”13

“ evalua te the potential application of federal and state priv acy laws. ” 6 A ltho ugh the U T System argues in it s bri ef that Sharp horn “ relied on the Kroll investigation to d etermine whether anyone affiliated w ith U T Sy stem or UT Austin en gaged in conduct that vi olated the law or required discipli nary action, ” Sharpho rn ’ s affidavit cont ain s no s uch statements. 7 Th e UT System also relie s on the following facts stated in the affi davit of Chancellor William H. Mc R av en . Mc Raven
act ed as the chief executive officer of the UT System and was responsibl e for the operation of the UT Syst e m and its membe r institutions. McRaven averred t hat his predecessor, Francisco Cig a rroa , authorized Sharpho r n to h ire Kroll to conduct an “ independ ent i nves tigation into admis sions practices ” at UT Austin

. After receiving th e Kroll r eport, McRaven “ read [it] se ve ral
t i m es ” and spoke with Sharp horn, “ from whom [he] sought legal advice. ” McRaven av erred that : “ A f ter c areful review and con si deration [] I sent a letter to the Bo ard of R egents rendering
my de cision tha t then

- UT Austin Pr esident Bill P owers would no t be su bj ect to disciplinary action because Kroll reported that there was no violation of law, rule, or po licy , and I, therefore, determined that his conduct did not ris e to the level of willful misconduct or c riminal activity. ”

6 Shar pho r n averr ed that a fter co nducting his review, he determined that those documents “ contain certain personally identifi able student information that is protected from disclosure by the Family Educational Rights an d Priv acy Act ( “ F ERPA ” ). ”

7 T he p ara graph of Sharphor n ’ s affidavit that the UT System cites to support this assertion states that:

W illiam H. McRaven , who began his service as Chancellor of the UT System in Januar y 2015 ( “ Chancellor Mc Raven ” ), received and reviewed the r esults of th e Krol l R eport. On February 9, 2015, Chancell or McRav en sent a lett er to the UT System Board of Re gents ( the “ Board ” ) rendering his decision that then

- UT President Bill Powers would n ot be subject to discip linary action because Kroll determine d that his c onduct d i d not rise t o the level of willful mi sconduct or criminal activity.14

The UT System also relies o n the af fidavit of Ana Vieira Ayala, t he U T System ’ s A ssistant General Counsel , Legal Exp ert, and Information Coordinator . Ayala averr ed that t he documents the UT System seeks to withhold all constitute “ communications . . . made for the pur pose of facili t ating t he rendition of leg al services. ” 8 The UT Sy stem argues th at, taken together, thi s evidence demonstrate s that its attorney, Sha rphorn, “ hired Kroll to cond uct an investigation to enable Sha rpho rn to better ad vise h is clients ” and that , consequently , Kro ll is a “ lawyer ’ s representative ” as that term is defined in the Texas Rules of Evidence. See Tex. R. Evid. 503(a)(4)(A) (definin g “ lawyer ’ s repr esentative ” as “ one employed by the lawyer to assist in the

r end ition o f professional legal services ” ).

T he UT System did not present evidence sufficient to meet i ts burden to show that
Kro l l was employed by a lawyer, Sharphorn, to “ assis t in the re ndition of p rofessional legal services ” by that lawyer to his clien t , the UT System. See City of Fort Worth , 86 S.W. 3d at 3 23 (explaining that it is go vernmental body ’ s burden to prove that exc eption to public disclosure applies to information at issue); City of Houston v. Paxton , No. 0 3

- 15

- 00093

- CV; 2016 WL 767755, at *3 (Tex. App.

— Austin Feb. 23, 2016, no pet .) (mem

. op.) ( “ To make a prima facie showing of the applicability of a privilege, a party must produce evidence to support it. ” ) ;

see also Dallas Morning News , 22 S .W.3d at 357 (stating that whether ex ception to disclosure applies to information at issue is ques ti on of l aw). Thus , th e UT Syst em failed to produce evidence to su pport it s contention that Kroll w as acting as a “ lawyer ’ s representative ” such that

8 A yala does not elaborate on the na ture of the legal servic es involved . Many of the documents the UT Sys te m seeks to w ithhold a re communications between UT System l awyers and o thers abo ut mat ter s unrelated to the inquiry i nto admi ssions practices , including un related litigation. Thus, it is not clear whether the “ legal service s ” referred t o in Ayal a ’ s affidav it were rendered in connection with the admissions inquiry or wit h un r elated li tigation

.15

communications mad e to it and infor mation share d with it a re protected by Texas Rule of Evidence 5 03

. Th e recor d does not support the UT System ’ s assertion t hat Kro ll was hired to assist in the rendition of any legal services. R ather, undisputed evidence demonstrates that Kroll

w as hir ed to con duc t an independent investigation and provide recommenda t i ons fo r policy and procedural changes in the context of the UT Sy stem ’ s sel f

- imposed mission of ensuring that t he admissions process is administ ered with integrity an d fairness. That this was the p urpose of t he Kroll investigation is reflected both in the Scope o f Work itse lf, which recites that “ U.T. ’ s responsibi l ity to ensure integrity in the handling of a dmission s recommendations lie s wit h the staff and officia ls within U.T., th us the ch arge is to determine if the co nduct of U.T. officials is be yond rep roach , ” as wel l as in the content of the Final Report, which include s recommendations and suggested best pr actices for improving the UT Sy st e m ’ s admissions practic es. The Final
Re port incl ude s no legal advice , and the record does not support the UT System ’ s ass er tion t hat the investigat ion was conduct ed for the pur pose of rendering le gal servi ces to the UT System. Sharphorn stated in his affidavit that “ [b ] a sed on the res ults and t he recomm endation s of the admissions investigations and repo rt s, the UT Syst em ad mi nistrat ion proposed ne w admissions policy for the Aca demic Institutions of the Universi ty of Texas Syste m. ” It is undisputed that
t he Kroll investigation was unde rtaken to determine facts, practice s, and poli cies relating to admissions . There was no ev id ence th at the UT System was concerned about exposure to legal liability resulting from the admissions pr actices it retained Kroll to investigate

. T he fact that Sharph o rn or others w i thin the UT System reviewed the Final Report to mak e separate deci sions

a bout wh ether to take disciplinary action against any officers o r empl oye es do es not convert Kroll ’ s investigation into on e done for the p urpose of facilit atin g the ren dition of legal se rvices.16 The Kro ll rep or t was intended to be, and was, made pub lic a nd there was no evidence presented to support the notion t hat either the report or the investigation w ere done in the context of advisin g the UT Sys tem w hether an y of the facts, practices, or procedures that were discov er ed would expose the UT System to po te ntial l egal liability. T here is no evidence that any lawyer ’ s expert is e help ed define the scope of Kroll ’ s inquir y or which avenues were appropriate t o purs ue. Inst ead, the Kroll report states that “ [a] though there was s ome pushback on the sc ope a nd ex te nt of r equested documenta tion, all discus sions regarding the nature of our
reque sts and documentation w ere cordial an d p rofessional. ” The investigatio n was rep eatedly refer red to by the UT System as an “ independent ” one. C f. Harlandale Indep. Sch. Dist

. , 25 S.W .3d at 334 (except ing from disclosure independent investigation by a t torney who was fu nctioning as attorney through out employ ment). The only legal ad vice that the record reflects

was rend ere d by Sharpho rn to the UT System in connection with the K ro ll inve stigation was (1) whet her information provided to Kroll was p rote cted by the Family Educa tion al Rights a nd
Pri vacy Act in the con tex t of Vice Chanc ellor Walla ce Ha ll ’ s request to review t he documents provided by the UT System to Krol l , and (2 ) whe th er the conduct discovered by Kroll during the course of its i nve stigation would serve as the basis for disciplinary action against the n - UT Austin Pr eside nt Bill Powers. C f. In re Fairway Methan ol LLC , 515 S.W.3d 480, 485

- 86 (Tex. App.

— Hous ton [14th Dist .] 2017, orig. proce eding) (report of invest igati ve team charged w ith provi ding company with business and legal advice with respect to po tential termi nation of employees was privileged because the i nvestigation was also for purpose of assessi ng potent ial
l i a bility in l it igati on an d defenses to anticipated regulat ory proc eedings )

. Because the UT System failed to provide proof that would support that Kroll was employed to assist a UT System
attorne y in the rendition of legal services, we conclude that t he co mm unicati ons in question17

betwee n Kroll and the UT S yst em are not p rotected by the attorney

- client privilege. Tex. R. Evid. 503(a)(4 )(A), (b)(1); cf. In re Houseman , 66 S.W.3d 368, 371 (Tex. Ap p.

— Beaumont 2001, orig. proceeding ) ( psychiatrist retained to a ss e ss per son ’ s mental competency in guardianship proceeding was e mployed to assist in rendition of prof essional legal servi ces );
Wri ght v. State , 374 S.W.3d 564, 579 (Tex. App.

— Houston [1 4th Dist.] 2012, pet ref ’ d) (doctor
reta ined by de fendant ’ s tria l cou ns e l to e valuate defendan t ’ s mental state to assist in def ense against murde r charge was “ lawyer ’ s r epresentative ” )

.

Beca use the U T System failed to prese nt e vide nce that supported it ’ s contention that Kroll acted as a “ lawyer ’ s r epresentative, ” the UT S ys t em wai ved any att orney - clien t privilege as to the docu ments labeled UT S

- 00001 through UTS

- 00146 and UTS

- 007 23 through
UTS

- 00726 when it voluntar ily disclosed those documents t o Kroll. See Tex. R. Evid. 511(a); In re XL Specialty Ins. , 373 S.W.3d a t 50. For the same reason, the attorney

- client privi lege does
not cover the interview questions and notes Kroll created when conducting i ts investigation

. See City of Ho uston , 2016 WL 767755 , at *1, 4 (holding that City did not meet burden and that trial court did not err in granting summary judgment and ordering certain information related to investigation was subject to disclosure under TPIA); c f. O ’Neill , 846 S.W.2d at 59 2 (concluding that invest igator was representative of attorney covered by at torney

- client privil ege).

FER PA /Con

fidential Information
The Franklin Center a lso argues th at the trial court erred if it relied on either
FERPA or an other right to pr ivacy to conclude that any i nformation or documents described in the privilege log wer e ex ce pted fr om disc losure

. See Tex. G ov ’ t Code § § 552.101 (information is excepted from disc losure if it is information c onsidered to be confiden ti al by law, either18

constitutional , statutory, or by judici a l decision); .114 (con fidentiality of student rec ords). When
pro vidi ng the Attorney Gen era l with th e docu ments listed on the privilege log, the UT System , relying on FERPA, redacted all information it asserted was re late d to or identif ied students or applica nts

. See 20 U.S.C. § 1232g

. 9 In the letter r ul ing, the At t orney General stated:

The Unit ed S tates Department of Educa tion Family Policy Com pliance Office ( the “ DOE ” ) has informed this office FERPA does not permit state and local educational aut horities to disclose to this office , w ithout pa rental or an ad ult s tu dent ’ s consent, unreda cted , persona l ly identifi able information contained in e ducation re cords fo r the p u rpose of our review in the open records ruling process under th e A ct. The DOE has determined FER PA determinations must be made b y the edu cation al auth ority i n possession of the educatio n al records.
This Court has previ ously held that because determ ina tions about disclosure of FERPA

- protected information must be made by the institution from who m it is requ ested, “ neither th is Court, nor the trial court, nor the Office of the Atto rney Gene ral of Tex a s is the proper entit y ” to interpret
FERPA ’ s appl ica tion to an educatio nal ins titution ’ s recor ds. See B.W.B. v. Eanes Indep. Sch.
Dist. , No. 03

- 16

- 00710

- CV, 2018 WL 454783, a t *8 (T ex. Ap p.

— Austin J an. 10, 201 8, no p et.) (mem. op.)

. N ot h aving been provided the withheld student

- or applicant

- rel ated information , the A ttorney General did not review it and did not make any ruling or decision rega rding whether it constituted inf

ormation covered by FE RPA or by a n y other pri vacy rights

. Th e documen ts
presen ted to the trial court for in camera inspection were copies of the redacted documents tha t had bee n provid ed to the Attorney General. Thus, the trial court similarly could n ot h ave review ed the stud ent

- o r appl i cant

- re lated inf orm at ion a nd, conse quently , could not have made a determination about whether the redacted information con stituted information covered by

9 Under FERPA, the ter m “ educa tion records ” m eans re cords, files , docu ments, and other materials tha t contain information directly rela ted to a student and are ma intained by an educational agency or institution or by a perso n acti n g for s uch age ncy or institution. See 20 U. S.C . § 1232 g(a)(4)(A).19

FERPA or other privacy rights. I t fol lows , therefore, that the trial court ’ s order that t he UT Syste m could withho ld the docume nts descr ibed on th e privilege log could not have been based

on th e nature or content o f any of the redact ed material included ther ein

. T he trial court ’ s order cannot be interpreted as a determination one way or a not her ab out whe ther a n y do cuments on the pri vil ege lo g could b e withhe ld based on F ERP A or any constitutional or other righ t to pr ivacy that may p rotect the reda cted informatio n. Because it is apparent that the trial court did not b ase its ruli ng on the app li cab i lity of FERPA or any oth er p rivac y law, there is no trial court ruling or decision on that issue for this Court to review

. 10 Consequen tly, we do not reach the issue of whet her the UT System must provide the Franklin Center with the information it has with h eld fro m discl osure unde r section s 552.101 or 552.114. 11

CONCLUS ION

10 FERPA cr ea tes no private right of action. See Gonza ga Un iv. v. Doe , 536 U. S . 273 , 390 (2002) ( holding tha t “ FERPA ’ s nondi sclosure provisions ” do not create implied priv a te right of act i on an d do not create enforceable rig ht s under s ection 1 983) ; see also B.W.B. v. Eanes In dep. Sch. Dist. , No. 03

- 16

- 00710

- CV, 2018 WL 454783, at *8 (Te x. A pp.

— Austin Jan. 10, 2 0 18, no pet.) (mem. op) . Accordin gly, if the Franklin Center believes that the U T Syst em has n o t properly complied with FERPA, it may file a complaint with the Department of Educ ation

. See 20 U.S.C. § 1232g(g) ( “ The Secretary [of the Departmen t of Educ ation] shall establish or des ign ate an office an d review board within the Dep artment for the purpos e of investig ating, processing, reviewing, and adjudicating violations of this sec tion and complaints which may be filed concernin g allege d violations of this section

. ” ). B ut , even if before it, nei ther this C ourt, nor the trial cour t , may be as ked to “ se cond

- guess ” the UT System ’ s FERPA determinations. B.W.B. , 2018 WL 454783, at * 8

.

11 T he UT System als o sought to withhold information contained in the docu ments ide ntified on th e privilege log based on its contention that t h e inform ation wa s ex cepted from disclosure by Texas Government Code section s 552.117 and 552.137 and by Texas Health and Safety Code section 8 1.046. See Tex

. Gov ’ t Co de § 552.117 (c onfidentiality of cer tain ad dresses, telephone nu mbers, social security numbers, a nd perso nal family info rmation) , .37 (con fidential ity of certain e mail addresses ); T ex. Health & Saf ety Code § 8 1.046 (confid entia lit y of reports, records , and info rmation tha t relate to suspected case s of diseases or health conditions). T he Franklin C ent er did n ot c hallenge th e UT System ’ s withholding of information it contends is ex empted from discl osure under th ese statutes.20 Having determined th at Kro ll was not a “ la wyer ’ s repre sentativ e ” as that term is def ined in Texas Rule of Evidence 503, we con clude that none of the documents identified on the UT Syste m ’ s priv ilege l og are co vered by the attorney

- client privile ge set for th in rule 503.
See T ex . R . Evid. 503. Consequently, the documents identified on the UT System ’ s privilege log
are not “ made confidential ” by “ other law ” wi thin the me aning of Tex as Go ve rn ment Code

se ction 552.022. See Tex . Gov ’ t Code § 5 5 2.022 . We reverse the trial court ’ s summary judgment in favor of the UT System that the documents i dentified on the privilege log are protected by the attorney

- client privilege and not subject t o discl osure under th e PIA

. We do not

rea ch t he issue of whether the information redacted from the docu ments id enti fied o n the privilege log is excepted from disclosure under Texas Govern ment Code sect i o n 552.101 or 552.114. We render j udgment that the d ocume nt s iden tified o n the UT System ’ s privile ge log, a s redacted an d exc lusive of in formation with held pursuant to Texas Government Co de sections 552.117 and 552.137 an d Texas Health and Sa fety Code s ect ion 8 1 .046 , are not excepted from disclosure under t he PIA and mu st be di sclosed as public informa tion.

__ __________________ ______________________ C hari L. Kelly , Justice Before Justices Goo dwin, K elly, an d Smit h
Rever s e d and Re ndered
Fi le d: December 22, 2020