Execution Memos: Cornyn Slams the Door

During his three-year tenure as Texas attorney general, Sen. John Cornyn was generally considered a strong advocate of open public records. But in November of 2002, just before leaving office, Cornyn issued an opinion that not only reversed a long-standing state policy of public access to certain information, but also potentially created a rationalization for refusing disclosure of many documents long considered public.

In the July/August 2003 issue of The Atlantic Monthly, Alan Berlow reported the contents of 57 executive death penalty case clemency memos prepared by then-Gov. George W. Bush's general counsel, Alberto Gonzales. Berlow obtained the Bush memos last spring, under the Texas open records law. Publication of Berlow's article prompted the Chronicle to file a similar open records request, asking for all of Bush's death-penalty clemency memos, as well as all death-penalty memos prepared for Gov. Rick Perry by General Counsel Bill Jones.

Instead of releasing the documents, J. Kevin Patterson, Perry's assistant general counsel, appealed our request to the AG's office, asserting that both Bush's and Perry's memos (including those already disclosed) are "privileged" attorney-client communications and therefore legally exempt from public disclosure. The memos contain "advice and opinions" from counsel to governor, he argued, "made in confidence in furtherance of the attorney's rendition of professional legal services" to the governor, who uses the memos to decide whether a death row inmate will receive clemency or die by lethal injection. "Disclosure of information relating to such matters would inhibit free discussion among staff personnel as to this type of policy issue," wrote Patterson. On Sept. 10, the AG's office agreed, issuing an opinion, written by Assistant AG June B. Harden, that Perry's memos "may be withheld in their entirety."

It was an opinion that likely would not have been rendered less than a year ago.

Berlow obtained the Bush memos last spring under a 12-year-old interpretation of the open records' exception for attorney-client communications. The long-standing parameters of that exception had been in place since Nov. 26, 1990, when former AG Jim Mattox penned an open records decision on the matter. In brief, Mattox wrote that a governmental entity could not withhold the entirety of any document prepared as part of an attorney-client relationship if the document contained any "factual information" that was not strictly opinion or advice. Under this ruling, each document was reviewed individually, and only information considered privileged or protected under common-law privacy was redacted and withheld from disclosure. Last year, all of that changed.

On Nov. 30, 2002, in the next-to-last open records decision penned by then-Attorney General John Cornyn, he opined that whether a document will be considered privileged attorney-client communication -- and thus exempt from public disclosure -- depends more on the facts surrounding the document's creation rather then on the document's content. As such, whether the document contains "factual information" that would otherwise be public matters less than a determination of whether the document was: 1) intended as a "confidential" or privileged document, and 2) whether the document's confidentiality has been maintained.

According to Cornyn's "re-evaluation" of Mattox's 1990 rule, the decision to restrict previously public information under his new "intent" scheme was "suggested" in recent Texas Supreme Court opinions regarding attorney-client communications. But it isn't clear why or how a court opinion would affect the release of purely "factual information" -- except, perhaps, that reviewing and redacting is a cumbersome job. "[I]n restricting the scope of [the attorney-client exception] to 'privileged' information, this office has engaged in a practice of conducting a word-by-word examination in documents, granting the exception only to the very specific information comprising a 'client confidence' or attorney advice, opinion, or analysis," Cornyn wrote. "We now reconsider this practice." In short, Cornyn wrote that when the intent of an attorney-client communication is that the document will remain confidential, and when that confidentiality has been maintained, the government should have the same privacy protections as private citizens. "A governmental body has as much right as a private individual to consult with its attorney without risking the disclosure of [those] communications," he wrote.

In challenging the Chronicle's open records request, Perry's office also sought to extend Cornyn's November 2002 decision to exempt from disclosure the previously released Bush memos. In late August they dropped that specific challenge, telling us that they would release those memos. As it turned out, the governor's office was in possession of only 10 of the 135 previously released memos, which Patterson now says he simply "forgot" to mention, and that to receive the additional memos the Chronicle would have to file a new request with the Texas State Library and Archives Commission. On Sept. 17, we filed that request -- which is again being appealed to the AG's office for clarification on whether, and in what form, Bush's memos may be released, in light of the changes wrought by Cornyn's 2002 decision. A decision from the AG is expected in early December.

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