Office of the Attorney General Open Records Division 300 West is" Street Austin, Texas 78701 RE: Request for Open Records Decision - Exemptions from Disclosure Public Information Act I Dallas Police &Fire Pension System March 25, 2013 Dear Attorney General Abbott: This law firm represents the Dallas Police & Fire Pension System (the "System") On March 25, 2013, the System received an email request from Steve Thompson, Staff Writer for The Dallas Morning News (the "DMN") requesting to inspect emails exchanged between Richard Tettamant and Mike Snyder since a certain date (herein called the "Tettamant Snyder Email Request," so named to distinguish it from prior and any subsequent requests which also pertain to the System). A copy of the Tettamant Snyder Email Request is attached as Exhibit "A". This letter is timely made within 10 business days after the System received the Tettamant Snyder Email Request and seeks an opinion from your office allowing the System to refuse to produce the requested information under the exceptions described more fully below. The System attaches a representative samplar of the responsive documents for in-camera review. A. Investment information related to Museum Tower, L.P., was previously held by the Attorney General to be excepted from disclosure pursuant to Sections 552.143. The System has already been obliged to file dozens of requests for the same guidance, as we here again request, that Section 552.143 of the Texas Government Code applies and we believe that the requestor knows or should know when considering this and future requests that Section 552.143 applies to requests that related to Museum Tower, L.P. (Subsequent citations are to Sections in Chapter 552 of the Texas Government Code unless the form of the citation indicates otherwise.) Office of the Attorney General Open Records Division AprilS, 2013 Page 2 Almost all information responsive to the request includes information excepted from disclosure pursuant to Section 552.143. Specifically, virtually all responsive information relates to Museum Tower, L.P., which is not a governmental body. Rather, Museum Tower, L.P., is a limited partnership in which the System has invested through a wholly-owned limited liability company, and its investment was not for purposes of reinvestment. In Open Records Decisions 2012-13914, 2013-04717 and 2013-05330 courtesy copies of which are attached hereto as Exhibit "B", Exhibit "C" and Exhibit "0" respectively, the Attorney General previously held that information related to Museum Tower was excepted from disclosure pursuant to Section 552.143. Section 552.143, provides, in part, as follows: (c) All information regarding a governmental body's direct purchase, holding, or disposal of restricted securities that is not listed in Section 552.0225(b)(2)-(9), (11), (13)-(16) is confidential and excepted from the requirements of Section 552.021. This Subsection does not apply to a governmental body's purchase, holding, or disposal of restricted securities for the purpose of reinvestment nor does it apply to a private investment fund's investment in restricted securities. Section 552.143(c). All of the submitted information pertains to the System's direct purchase, holding, or disposal of a restricted security. See id. Section 552.143(d)(3) (defining "restricted securities" for purposes of Section 552.143). Further, as referenced in the DMN article dated January 5, 2013, a copy of which is attached as Exhibit "E", additional investors have expressed interest in investing in the security. Thus, with the exception of information the System must release pursuant to subsections 552.0225(b)(2)-(9), (11), and (13)-(16), which were provided to the requestor, the System must withhold all such other information under Section 552.143(c). B. Responsive information should be excepted from disclosure under Section 552.103 because litigation is anticipated. In Open Records Decisions 2012-13914 and 2013-04717, courtesy copies of which are attached hereto as Exhibit "B" and Exhibit "C", respectively, the Attorney General held that certain information related to potential threatened litigation-the same anticipated litigation that is also specifically identified here-is excepted from disclosure. The System again requests that portions of the attached information be excepted from disclosure pursuant to Section 552.103. Specifically, Section 552.103(a) excepts from public disclosure: Office of the Attorney General Open Records Division April 8, 2013 Page 3 [I]nformation relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party. For information to be excepted from public disclosure by section 552.103(a), two requirements must be met: (1) litigation involving the governmental body must be pending or reasonably anticipated, and (2) the information must relate to that Iitigation. 1 The System contends that the Information requested by the Requestor is excepted from disclosure under Section 552.103(a) based on impending litigation. By way of background, portions of the requested Information involve the recently constructed and newly opened Museum Tower, a 42-story high-rise condominium. The publicly accessible but privately owned Nasher Sculpture Center in the City of Dallas has made repeated assertions, almost universally supported by various media organizations (including the requestor's newspaper), in a number of both print and on-line stories that Museum Tower is destroying art in the museum, destroying the visitors' experience in the museum, destroying vegetation in its garden, and raising temperatures as much as 25 degrees due to sunlight reflecting off of the glass wall of the Museum Tower for a few hours each day. (Copies of numerous news articles were attached to a prior Open Records Request dated June 25,2012 and the subject of Open Records Decision 2012- 13914 attached as Exhibit "8".) Not only would the System be a likely party to any suit filed regarding Museum Tower, but there would likely be full legal and financial recourse against the System as a result of the anticipated suit. Museum Tower's owners were asked by civic leaders to attempt to resolve this matter short of litigation. They have not only participated in such mediation efforts but also abided by the mediator, respected civic leader and attorney Tom Luce's request for a "black-out" on all public comments or interviews despite the fact that spokespersons for the Nasher continue to speak out on the matter, including their architect, Renzio Piano. Mr. Piano asserts he has no obligation to respect the media black-out and was quoted by 0 Magazine writer Tim Rogers in his April 19, 2012 post (following his April Cover Story article, Towering Infemo) as stating: "If there is any need of legal action, that will be done of course. Nobody should think that they can destroy a building or an institution like this without any problem." A copy of this blog article is attached as Exhibit 'IF". 1 See University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479,481 (Tex. App.-Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210,212 (Tex. App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.). Office of the Att orney General Open Records Division April B, 2013 Page 4 To date, all efforts to resolve the dispute have failed. Further, persons connected with the Nasher as wel l as the very vocal arts community in Dallas, including both print and broadcast media, continue to attack Museum Tower, its architects and developers-all of which led to the termination of the unsuccessful negotiations and the greater likelihood that only litigation can and will resolve this more than $200 Million dollar dispute. A copy of the October 25, 2012 DMN article regardi ng the resignation of Mr. Luce as mediator is attached as EXHIBIT " Gil . It should be noted that individuals who support the Nasher and or who are acting as surrogates for the Nasher have taken to posting inf lammatory comments on Facebook attacking individual s who are or were in the process of closing on their purchase of or about to move into condominiums in Museum Tower. [ &... 1' C. Responsive information is confidential by " ot her law" . Moreover, port ions of the responsive information attorney-client , and/or work product ion privileges. fall under t he consulting expert, Consequently, certain identified 2Redacted on copy to Requestor as it reveals attorney mental impressions in connect ion with reasonably anticipated litigation. Tex. R. Civ. P. 192.5. 3 Redacted on copy to Requestor as it reveals attorney mental impressions in connect ion with reasonably anticipated litigation. Tex. R. Civ. P. 192.5. Office of the Attorney General Open Records Division April 8, 2013 Page 5 information concerning discussions with or advice from the undersigned attorney must be redacted as privileged and exempt from disclosure under Texas Rules of Civil Procedure Section 192.3 and 192.5, including but not limited to subsections 192.5 (a)(1) or (2), or (b) as well as Section 552.101. Section 552.022 provides, in relevant part, as follows: (a) Without limiting the amount or kind of information that is public information under this chapter, the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law: Section 552.022(a) (emphasis added). Again, the Texas Supreme Court has held the Texas Rules of Evidence and the Texas Rules of Civil Procedure are "other law" within the meaning of Section 552.022. See In re City of Georgetown, 53 S.W.3d 328, 336 (Tex. 2001). Moreover, Section 552.101, entitled "Exception: Confidential Information," states that "[i]nformation is excepted from the requirements of Section 552.021 if it is information considered to be confidential by law, either constitutional, statutory, or by judicial decision." i. Requested Information is Exempted from Disclosure because it Relates to the indenties of Consulting Expert(s). Rule 192.3 of the Texas Rules of Civil Procedure provides the consulting expert privilege. A party to litigation is not required to disclose the identity, mental impressions, and opinions of consulting experts whose mental impressions or opinions have not been reviewed by a testifying expert. See Tex. R. Civ. P. 192.3(e). A "consulting expert" is defined as "an expert who has been consulted, retained, or specially employed by a party in anticipation of litigation or in preparation for trial, but who is not a testifying expert." Tex. R. Civ. P. 192.7. The System contracted with consulting experts for services in anticipation of and preparation for litigation involving Museum Tower. Furthermore, the consulting experts have been retained solely for consultation and will not testify at trial, and testifying experts have not reviewed the consulting expert's work. Portions of the responsive information reveal the consulting experts' identities as well as mental impressions or opinions of one or more experts and are accordingly excepted from disclosure. Office of the Attorney General Open Records Division April 8, 2013 Page 6 ii. Responsive Information is Protected by the Attorney-Client and/or Work Product Privilege. Further, portions of the requested information are subject to the attorney-client and/or work product privilege. Section 552.107(1) protects information that comes within the attorney-client privilege. The test for determining whether information is protected under the attorney-client privilege under Section 552.107(1) is the same as the test under Texas Rule of Evidence 503. Tex. Att'y Gen. ORD2012-00071 (2012). It follows that information deemed confidential under the Texas Rules of Evidence is excepted from disclosure under the Act. Here, the controlling provision is Texas Rule of Evidence 503. Texas Rule of Evidence 503 encompasses the attorney-client privilege and provides in part: A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (A) between the client or a representative of the client and the client's lawyer or a representative of the lawyer; (B) between the lawyer and the lawyer's representative; (C) by the client or a representative of the client, or the client's lawyer or a representative of the lawyer, to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein; (D) between representatives of the client or between the client and a representative of the client; or (E) among lawyers and their representatives representing the same client. TEX. R. EVID. 503(b)(1). Thus, a communication is "confidential" for purposes of the Texas Rules of Evidence if it is "not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication." Id. at 503(a)(5). Office of the Attorney General Open Records Division April 8, 2013 Page 7 In addition to attorney-client communications, information responsive to the Tettamant Snyder Email Request also reveals work product that is excepted from disclosure. Work product is defined as: (1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents; or (2) a communication made in anticipation of litigation or for trial between a party and the party's representatives or among a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents. Tex. R. Civ. P. 192.5(a). Accordingly, in order to withhold work product from disclosure under rule 192.5, a governmental body must demonstrate that the material, communication, or mental impression was created for trial or in anticipation of litigation. Id. Information that meets the work product test is confidential under Rule 192.5 provided the information does not fall within the purview of the exceptions to the privilege enumerated in rule 192.5(c). Pittsburgh Coming Corp. v. Caldwell, 861 S.W.2d 423, 427 (Tex. App.-Houston [14th Dist.] 1993, no writ). For the purpose of Section 552.022(a), information is confidential under Rule 192.5 only to the extent the information implicates the core work product aspect of the work product privilege. Tex. Att'y Gen. ORD 677 (2002). Core work product is defined as the work product of an attorney or an attorney's representative developed in anticipation of litigation or for trial that contains the attorney's or the attorney's representative's mental impressions, opinions, conclusions, or legal theories. TEX. R. CIV. P. 192.5(a), (b)(1). Accordingly, in order to withhold attorney core work product from disclosure under rule 192.5, a governmental body must demonstrate that the material was 1) created for trial or in anticipation of litigation and 2) consists of an attorney's or the attorney's representative's mental impressions, opinions, conclusions, or legal theories. Id. Additionally pursuant to Section 552.111 Exception: Agency Memoranda and Texas Rule of Civil Procedure 192.5, certain interagency and intraagency memorandum are excepted from public disclosure based on the work product privilege. Tex. Att'y Gen. ORD-677 (2002). In addition, as noted in the Public Information Handbook 2012 edition at page 109, Section 552.111 encompasses information generated by agency personnel as well as information created for an agency by outside consultants acting on behalf of the agency. Portions of the Tettamant Snyder Email Request are protected from disclosure as work product, as they contain the mental impressions, opinions, conclusions and/or legal Office of the Attorney General Open Records Division April 8, 2013 Page 8 theories in handling the forthcoming litigation. The documents at issue, and the work of the attorneys and others documented therein, were generated in conjunction with the impending litigation between the System and Nasher Sculpture Center by attorneys retained by the System for legal representation. It was with this litigation in mind that the System's attorneys and consultants conducted investigations, completed research, prepared memoranda, and provided legal advice to the System. The attorneys' and others related mental impressions, as well as the process by which the attorneys and consultants developed their opinions and legal conclusions, are included in the documents and should therefore be protected from disclosure. Texas Rule of Civil Procedure 192.5 and Texas Rule of Evidence 503 are intended to protect such information and should be applied to the redacted portions of the attached bills from disclosure. Further, to the extent additional arguments are necessary, responsive information relates to retained consultants to the System specifically hired to address anticipated litigation regarding Museum Tower. The emails reveal work product of the consultants and includes strategy, which was made in anticipation of litigation. Further, the emails reveal what activity has taken place in the context of the contemplated litigation. The consultation services assist Strasburger & Price, LLP, in the rendition of its professional legal services to the System, which are in fact enhanced by such consultation. It would be damaging to the System's legal position in those matters for its adversaries or potential adversaries to have access to that information. For these reasons, portions of the requested information relate to contemplated litigation and should be excepted from disclosure under Texas Rule of Evidence 503, Texas Rule of Civil Procedure 192.5, and Sections 552.022,552.101,552.107, and 552.011 of the Act. D. Responsive information containing private email addresses should be excepted from disclosure under Section 552.137 - Confidentiality of Certain Email Addresses. A few of the responsive documents contain email addresses of persons not having a contractual relationship with the governmental body and thus is exempt under Section 552.137(a). For the foregoing reasons, the System respectfully requests that the Attorney General rule that the requested information is excepted from disclosure in its entirety, or in the alternative the System seeks exemption to redact portions as indicated on the responsive documents submitted for in-camera review. Thank you for your consideration of this request. Please do not hesitate to contact me with any questions. Office of the Attorney General Open Records Division April 8, 2013 Page 9 Respectfully submitted, Gary B. Lawson GBL:lt Enclosures cc: Joshua Mond, Esq. Mr. Steve Thompson (w/o in-camera documents) 4733499.1/SP/18516/0154/040813 -----Original Message----- From: Thompson, Steve [mailto:stevethompson@dallasnews.com] Sent: Monday, March 25, 2013 8:28 AM To: info Cc: Richard Tettamant Subject: open records request -- Mike Snyder emails Dear DPFP: I request to inspect all emails exchanged between Richard Tettamant and Mike Snyder. Please limit the responsive records to only emails sent since Jan. 1, 2012. I make this request as a reporter for The Dallas Morning News and on its behalf. Pleasecontact me by email or by the phone number provided below to arrange a time and date for this inspection. Thanks, Steve Thompson Staff Writer The Dallas Morning News cell: 214-766-8813 EXHIBIT "A" ATTORNEY GENERAL OF TEXAS GREG ABBOTT September 4,2012 Mr. Gary B. Lawson Strasburger 901 Main Street, Suite 4400 Dallas, Texas 75202-3794 OR2012-13914 Dear Mr. Lawson: You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 463760. The Dallas Police and Fire Pension System (the "system"), which you represent, received a request for all e-mails received by or generated by staff of the system that pertain to the Museum Tower condominium project during a specified time period. You claim the submitted information is excepted from disclosure under sections 552.101,552.102,552.103, 552.104,552.105,552.107,552.110,552.111,552.136, 552.137, and 552.143 of the Government Code, as well as privileged under rule 503 of the Texas Rules of Evidence and rule 192.5 of the Texas Rules of Civil Procedure. 1 We have considered the exceptions you claim and reviewed the submitted representative sample of information.' 'Although you raise section 552.101 of the Govemment Code in conjunction with sections 552.110 and 552.137 of the Govemment Code and Texas Rule of Evidence 503 and Texas Rule of Civil Procedure 192.5, this office has concluded section 552.101 does not encompass other exceptions found in the Act, and does not encompass discovery privileges. See Open Records Decision Nos. 676 at 1-2 (2002), 575 at 2 (1990). 2We assume the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988),497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent those records contain substantially different types of information than that submitted to this office. POST OFFICE Box 12548. AUSTIN, TEXAS 78711-2548 TEL: (512) 4632100 WWW.TEXASATTORNEYGENERAL.GOV An Equal Opportunity Emf/oJu . Prinrrd on Papt'r EXHIBIT "B" Mr. Gary B. Lawson - Page 2 Initially, we must address the system's obligations under section 552.301 of the Government Code, which prescribes the procedures a governmental body must follow in asking this office to decide whether requested information is excepted from public disclosure. Pursuant to section 552.301 (b), a governmental body must ask for a decision from this office and state the exceptions that apply within ten business days of receiving the written request. See Gov't Code 552.301(b). Further, pursuant to section 552.301(e), a governmental body must submit to this office within fifteen business days of receiving an open records request (1) written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld, (2) a copy of the written request for information, (3) a signed statement or sufficient evidence showing the date the governmental body received the written request, and (4) a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. See id. 552.301(e). You have marked portions of the submitted information under sections 552.102,552.104,552.105, and 552.136 of the Government Code. However, you have failed to submit any arguments to this office explaining the applicability of these exceptions. Accordingly, we conclude the system failed to comply with the procedural requirements mandated by section 552.301 of the Government Code with respect to these exceptions. Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with the procedural requirements ofsection 552.30 I results in the legal presumption that the requested information is public and must be released unless there is a compelling reason to withhold the information from disclosure. See id. 552.302; Simmons v. Kuzmich, 166 S.W.3d 342 (Tex. App.c--Fort Worth 2005, no pet.); Hancock v. State Ed. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.-Austin 1990, no writ); see also Open Records Decision No. 630 (1994). Generally, a governmental body may demonstrate a compelling reason to withhold information by showing that the information is made confidential by another source of law or affects third party interests. See ORD 630. Although the system has marked information under sections 552.104 and 552.105 ofthe Government Code, these exceptions are discretionary in nature and may be waived. See Gov't Code 552.007; Open Records Decision Nos. 665 at 2 n.5 (2000) (discretionary exceptions generally), 663 at 5 (1999) (waiver of discretionary exceptions), 592 (1991) (governmental body may waive statutory predecessor to section 552.104). Accordingly, no portion of the submitted information may be withheld under section 552.104 or section 552.105 of the Government Code. However, as sections 552.102 and 552.136 of the Government Code can provide compelling reasons to withhold information, we will consider the applicability of these sections to the submitted information. Additionally, we will consider the applicability ofthe exceptions for which you provided arguments to this office. Next, you indicate some of the submitted information is subject to section 552.0225 of the Government Code. Section 552.0225(b) provides, in relevant part, as follows: EXHIBIT "B" Mr. Gary B. Lawson - Page 3 The following categories ofinformation held by a governmental body relating to its investments are public information and not excepted from disclosure under [the Act]: (2) the date that a fund or investment entity described by Subdivision (1) was established; (3) each date the governmental body invested in a fund or investment entity described by Subdivision (1); (4) the amount ofmoney, expressed in dollars, the governmental body has committed to a fund or investment entity; (5) the amount ofmoney, expressed in dollars, the governmental body is investing or has invested in any fund or investment entity; (6) the total amount ofmoney, expressed in dollars, the governmental body received from any fund or investment entity in connection with an investment; (7) the internal rate of return or other standard used by a governmental body in connection with each fund or investment entity it is or has invested in and the date on which the return or other standard was calculated; (8) the remaining value of any fund or investment entity the governmental body is or has invested in; (9) the total amount of fees, including expenses, charges, and other compensation, assessed against the governmental body by, or paid by the governmental body to, any fund or investment entity or principal of any fund or investment entity in which the governmental body is or has invested; (11) each recusal filed by a member of the governing board in connection with a deliberation or action of the governmental body relating to an investment; EXHIBIT !lB H Mr. Gary B. Lawson - Page 4 (13) the minutes and audio or video recordings of each open portion ofa meeting of the governmental body at which an item described by this subsection was discussed; (14) the governmental body's percentage ownership interest in a fund or investment entity the governmental body is or has invested in; (15) any annual ethics disclosure report submitted to the governmental body by a fund or investment entity the governmental body is or has invested in; and (16) the cash-on-cash return realized by the governmental body for a fund or investment entity the governmental body is or has invested in. Gov't Code 552.0225(b)(2)-(9), (11), (13)-(16). You indicate the types ofinformation you have marked are subject to the relevant portions of section 552.0225(b) of the Government Code. The exceptions to disclosure found in the Act, including section 552.143, do not apply to information that is made public by section 552.0225. See Open Records Decision Nos. 623 at 3 (1994), 525 at 3 (1989). Therefore, the system must release those portions of the submitted information that are subject to the relevant portions of section 552.0225(b) of the Government Code. You argue the remaining information is excepted from disclosure under section 552.143 of the Government Code, which provides, in part, (c) All information regarding a governmental body's direct purchase, holding, or disposal of restricted securities that is not listed in Section 552.0225(b)(2)-(9), (11), (13)-(16) is confidential and excepted from the requirements of Section 552.021. This Subsection does not apply to a governmental body's purchase, holding, or disposal ofrestricted securities for the purpose of reinvestment nor does it apply to a private investment fund's investment in restricted securities. Gov't Code 552.143(c). You argue the submitted information pertains to the system's direct purchase, holding, or disposal of a restricted security. See id. 552.143(d)(3) (defining "restricted securities" for purposes of section 552.143). You inform us the submitted information involves the Museum Tower, which you state is not a governmental body. You state Museum Tower, L.P., is a limited partnership in which the system has invested through a wholly-owned limited liability company, and its investment was not for purposes of reinvestment. Accordingly, based on your representations and our review, we find the system has demonstrated the applicability of section 552.143( c) to the remaining information. Thus, with the exception of information the system must release pursuant to EXHIBIT "B" Mr. Gary B. Lawson - Page 5 subsections 552.0225(b)(2)-(9), (11), and (13)-(16) of the Government Code, the system must withhold the submitted information under section 552.143(c) ofthe Government Code.' This letter ruling is limited to the particular information at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other information or any other circumstances. This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and ofthe requestor. For more information concerning those rights and responsibilities, please visit our website at http://\vww.oag.state.tx.us/openJindex orl.php, or call the Office of the Attorney General's Open" Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for providing public information under the Act must be directed to the Cost Rules Administrator of the Office of the Attorney General, toll free at (888) 672-6787. Sincerely, Claire V. Morris Sloan Assistant Attorney General Open Records Division CVMS/som Ref: 10# 463760 Ene. Submitted documents c: Requestor (w/o enclosures) lAs our ruling is dispositive, we need not address your remaining arguments against disclosure of the responsive information. EXHIBIT "B" ATTORNEY GENERAL OF TEXAS GREG ABBOTT March 2J. 20J3 Mr. GaryB. Lawson Counsel tor the Dallas Police& Fire PensionSystem Strasburger & Price. LLP 901 Main Street. Suite4400 Dallas. Texas 75202-3794 OR2013-047l7 Dear Mr. Lawson: You ask whether certain information is subject to required public disclosure under the PublicInformation Act(the"Act"), chapter552of the GovernmentCode. Yourrequestwas assigned ID# 481856. TheDallas Policeand FirePensionSystem(the"system"), which yourepresent, receiveda request for e-mails between a namedindividual and anyemployeeof a namedcompanyfor a specified periodof time. Youclaimthe requested informationis exceptedfromdisclosure under sections 552.103, 552.107, 552.110, 552.111, 552.137, and 552.143 of the Government Code. andprivileged underTexasRulesofCivil Procedure192.3 and192.5 and Texas Rule of Evidence 503. 1 We have considered your arguments and reviewed the submitted representative sample of information.' We have also received and considered 'Although you also mark some of the submitted e-mails under section 552.102 of the Government Code. you have provided no arguments explaining how this exception is applicable to the submitted mformation. Therefore, we assume you no longer assert this exception. See Gov't Code 552.30 I(e)(1 )(A), .302. We assume the"representative sample" of records submitted to thisofficeis trulyrepresentative of therequested records asa whole, See OpenRecords Decision Nos.499(1988),497(1988). Thisopenrecords letter does 110t reach. andtherefore does not authorize the withholding of, anyother requested records to the extent those records contain substantially different types of information than thosesubmitted to this office. Pan OffiCE Box 12548, AUSTIN. TEXAS 787112548 TEl: (512) 4632100 WWIIV.TEXASlITTORNYGENERlIL.GOV . A : ~ f/ufilt::",}I#"]t!tl'1ft o,Piutu1tirJ E""lcyn ' Printed,)n l1uyduJ PilI" EXHIBIT "G" Mr. Gary B. Lawson- Page 2 comments from the requestor. See Gov't Code 552304 (interested party may submit comments stating whyinformation shouldor should not be released). Initially, we note a portion of the submitted information was created after the request was received. This information, which we havemarked, is not responsive tothe instant request for information. This ruling does not address the public availability of non-responsive information, and thesystemisnotrequiredtorelease non-responsive information inresponse tothis request. You argue some of the responsive information is excepted from public disclosure under section 552.I0I of the Government Code) in conjunction with Texas Rules of Civil Procedure 192.3 and 192.5 and Texas Rule of Evidence 503. 4 We note that this office generally does not address discovery andevidentiaryrulesthatmayor maynot beapplicable toinformation submittedtoour office bya governmental body. SeeOpen Records Decision No. 416(1984) (finding that evenif evidentiary mle specified that certain information may not be publiclyreleased duringtrial, it wouldhave no effect on disclosability under Act). However. the Texas Supreme Courthas ruledthat the Texas Rulesof Civil Procedure and the Texas Rules of Evidence are "other law" that make information confidential for the purposes of section 552.022. SeeGov't Code 552.022 (enumerating several categories of information not excepted from required disclosure unless expressly confidential under the Act or other law); see also In re CityofGeorgetown, 53S.W.3d 328 (Tex. 2001). In this instance, the responsive information doesnot fall intooneof the categories ofinfonnation made expresslypublic by section 552.022 of the Government Code. Therefore, the Texas Rules of CiviI Procedure andTexas RulesofEvidence arenot applicable. Wealso notethat section 552.101 does notencompass civil discovery privileges. SeeOpenRecords Decision Nos.647 at 2(1996). Accordingly, weconclude the systemmaynot withhold anyportion of the responsive information pursuant to section 552.101 of the Government Code in conjunction with the TexasRules of Civil Procedure or the TexasRules ofEvidence. Next, wenote that youargue someofthesubmitted information is excepted fromdisclosure under section 552" 11 0 of the Government Code. We note, however, section 552.110 is designed to protect the interests ofthird parties not the interests of a governmental body. Thus, we will not consider the system'sarguments undersection 552.110, and none of the submitted information maybe withheld undersection 552.110 on the basisof the system's interests. >Section ::. 52" 101 exceptsfrom publicdisclosure "information considered to be confidential by law, eitherconstitutional. statutory, or byjudicial decision." Gov't Code 552.10J. 'We note the properexceptions toraisewhen asserting theattorney-client privilege and workproduct privilege for informal ion not subject to section 552.022 of the Government Code are sections 552.107 and552111 of the Government Code,respectively, See OpenRecords Decision Nos. 676 at I -2 (2002),677 (2002), EXHIBIT "e" Mr. Gary B. Lawson - Page3 You argue the rernammg information at issue is excepted from disclosure under section 552.143 of the Government Code, whichprovides, inpart, (c) All information regarding a governmental body's direct purchase, holding, or disposal of restricted securities that is not listed in Section 552.0225(b)(2)-(9), (11), (13)-(l6) isconfidential andexcepted from the requirements of Section 552.021. This Subsection does not applyto a governmental body'spurchase, holding, ordisposal ofrestrictedsecurities for the purpose of reinvestment nordoes it applyto a private investment fund's investment in restricted securities. Gov't Code 552.143(c). You argue the information pertains to the system's direct purchase, holding, or disposal of a restricted security. See id. 552.I43(d)(3) (defining "restricted securities" for purposes of section 552.143); see a/so 17C.F.R. 230.l44(a)(3) (defining "restrictedsecurities" as"securities acquired directly or indirectly from the issuer, or fromanaffiliateof theissuer, ina transaction orchainoftransactions not involvingpublic offering"). You inform us the submitted information involves Museum Tower, L.P. (the "MuseumTower"), which youstateis not a governmental body. Youstatethesystem's limited partnership interest in the Museum Tower, is a security acquired directly fromthe issuer of the security, the Museum Tower, in a transaction that did not involve a public offering. Accordingly, based onyourrepresentations andourreview, wefindthe systemhas demonstrated the applicability of section 552.l43(c)tosollle of the information at issue. Thus, the systemmust withhold the information wehavetnarkedunder section552.143(c) of the Government Code. However, we find the system has failed to demonstrate howthe remaining information pertains to the system's direct purchase, holding, or disposal of a restricted security. Accordingly, noneoftheremaining informationmaybewithheldunder section 552.143ofthe Government Code. Section 552.103 of theGovernment Codeprovides in relevant part as follows: (a) Information is excepted from [required public disclosure] if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or maybe a partyor to which an officeror employee of the state or a political subdivision, as a consequence of the person's officeor employment, is or maybe a party. (c) Information relating to litigation involving a governmental bodyor an officer or employee of a governmental body is excepted from disclosure under Subsection (a)onlyifthelitigation ispendingorreasonablyanticipated on thedatethat therequestor applies tothe officer for public information for access to or duplication of the information. EXHIBIT "G" Mr. Gary B. Lawson - Page 4 Gov't Code ~ 552.1 03(a), (c). A governmental bodyhas the burden of providing relevant facts and documents to showsection 552.1 03(a) is applicablein a particular situation. The test for meeting this burden is a showing that (1) litigation was pending or reasonably anticipated on the date the governmental body received the request for information, and(2)the informationat issueis relatedto that litigation. SeeUniv. of'Tex. LawSch. v. Tex. Legal Found., 958 S.W.2d479,481 (Tex. App.-Austin 1997, no pet.); Heard v. Houston Post Co. 684 S.W.2d 210, 212 (Tex. App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.); OpenRecords DecisionNo. 551 at 4 (1990). Agovernmental body must meet both prongs of this test for informationto be excepted under section 552.103(a). See ORD551. To establishthat litigationis reasonablyanticipated,a governmental bodymust provide this officewith "concrete evidenceshowingthat the claimthat litigationmay ensue is morethan mere conjecture:' See Open Records DecisionNo. 452 at 4 (1986). Whether litigation is reasonably anticipated must be determined on a case-by-case basis. See id. Concrete evidencetosupport a claimthat litigationis reasonablyanticipatedmayinclude,forexample, the govemmental body's receipt of a letter containing a specific threat to sue the governmental bodyfromanattorneyfor apotential opposingparty.' OpenRecordsDecision No. 555 (1990); see Open Records Decision No. 518 at 5 (1989) (litigation must be "realistically contemplated"). On the other hand, this office has determined that if an individual publiclythreatens tobringsuit against a governmental body, but does not actually take objective steps toward filing suit, litigation is not reasonably anticipated. SeeOpen Records DecisionNo. 331 (1982). Further,the fact that a potential opposingparty has hiredan attorney whomakes a request for informationdoes not establish that litigation is reasonablyanticipated. Open Records DecisionNo. 361 (1983). Youcontend the systemreasonablyanticipates litigationbecauseit is currentlyin a dispute with the Nasher Sculpture Center (the "Nasher"), You explain the Nasher has made allegations that glare emanating from the glass walls of the Museum Tower, a high-rise residential condominiumowned bythe system, is damagingthe Nasher's art and vegetation and creating an unpleasant experience for visitors. You state representatives of Museum Tower and the Nasher recentlyparticipated in mediationefforts which were unsuccessful. You indicate all efforts short of litigation to resolve the dispute have failed and state the systemanticipates being a party to any suit regarding MuseumTower and you argue there would be legal and financial recourse against the systemas a result of any suit. Based on your representationsand our review, we determinethe systemhas established it reasonably anticipated litigation on the date it received the request for information. We also find the addition.. this officehas concludedthat litigation wasreasonably anticipated whenthe potential opposing party took the following objective steps toward litigation: filed a complaint with the Equal Employment Opportunity Commission, see Open Records Decision No. 336 (1982); hiredan attorney who madea demand fordisputed payments andthreatened tosueifthepayments werenot madepromptly, seeOpen Records Decision No. 346(1982):andthreatened to sueonseveral occasions andhiredanattorney, seeOpen Records Decision No. 288(1981). EXHIBIT "G" Mr. Gary B. Lawson - Page 5 information at issue is relatedto litigationthe systemanticipated on the date of its receipt of the request for information. Accordingly,the systemmaywithholdthe informationyouhave marked under section 552J03 of the Government Code." However, once the information at issue has been obtained by all parties to the anticipated litigation through discoveryor otherwise, no section 552.1 03(a) interest exists with respect to the information. SeeOpen Records Decision Nos. 349 (1982), 320 (1982). Further, the applicability of section 552.103(a) ends once the litigation has concluded or is no longer reasonably anticipated. See Attorney General Opinion MW-575 (1982); see also Open Records Decision No. 350 (1982). Section 552.111 of the Government Code excepts from disclosure "[ajn interagency or intraagencymemorandumor letter that wouldnot be available by lawto a party in litigation withthe agency[.r Gov't Code 552.111. Section552.111encompasses the attorneywork product privilege found in rule 192.5 of the Texas Rules of Civil Procedure, which is discussedabove. City of'Garlandv. DallasMorningNews, 22 S.W.3d351, 360 (Tex. 2000); Open Records Decision No. 677 at 4-8 (2002). Rule 192.5 defines work product as (1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party's representatives, including the party' s attorneys, consultants, sureties, indemnitors, insurers, employees, or agents; or (2) a communicationmade in anticipationoflitigation or for trial between a party and the party's representatives or among a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees or agents. TEX. R. Ctv. P. 192.5. A governmental body seeking to withhold information under this exception hears the burdenof demonstratingthe information was created or developed for trial or in anticipation of litigation by or for a party or a party's representative. TEX. R. Ctv. P. 192.5:ORD677 at 6-8. In order for this office to conclude the information was made Of developed in anticipation of litigation, we must be satisfied a) a reasonable person would have concluded from the totality of the circumstances surrounding the investigation that there was a substantial chance that litigation would ensue; and b) the party resisting discovery believedingoodfaith thattherewas a substantialchance that litigationwould ensue and Icreated or obtainedthe information] for the purpose ofpreparing for such litigation. "As o.ir ruling dispositive. weneednotaddressyourremaining arguments againstdisclosure of this information EXHIBIT "G" Mr. GaryB. Lawson- Page6 Nat "l Tank Co. 1'. Brotherton, 851 S.W.2d 193,207 (Tex. 1993). A"substantial chance"of litigation does not mean a statistical probability, but rather "that litigation is more than merely an abstract possibility or unwarranted fear:' ld. at 204; ORD677at 7. Furthermore, as noted above, if a requestor seeks a governmental body's entire litigation file, the governmental bodymayassertthe fileisexceptedfromdisclosure initsentiretybecausesuch a request implicates the core work product aspect of the privilege. See ORD 677 at 5-6. Thus, in such a situation, if the governmental body demonstrates the file was created in anticipation of litigation, this office will presumethe entire file is within the scope of the privilege. See ORO647 at 5; see also Curry, 873 S.W.2dat 380. You claim a portion of the remaining responsive information consists of attorney work product that is protected under section 552.111. You informus the information at issue contains the mental impressions and advice of consultants for and representatives of the system that were created or developed in anticipation of litigationwith the Nasher. Upon review, we findthe system has demonstrated the applicabilityof the attorneywork product privilege tothe information at issue, whichwehavemarked. Thus,the systemmaywithhold the information we markedunder section552.111 of the Government Code.' Section 552.137of the Government Code exceptsfrom disclosure "an e-mail address of a memberof the publicthat is providedfor thepurposeofcommunicating electronically with a governmental body," unlessthe memberof the publicconsentsto its releaseor the e-mail addressis of a type specifically excludedby subsection(c). Gov't Code 552.137(a)-(c). Wenote the information at issue includes the requestor's e-mail address, to which he has a right of access pursuant to section 552.137(b) of the Government Code. See id. 552.137(b). Accordingly, thesystemtnustwithholdthe e-mailaddresses youhavemarked, in addition to the e-mail addresses we have marked, under section 552.137 of the Government Code, unlessthe ownersof the addresses haveaffirmatively consentedto their release. In summary, the system must withhold the information we have marked under section552.143(c) of'the Government Code. Thesystemmaywithholdthe informationyou havemarked under section552.103 of the Government Codeand the information we have marked under the section552.111 of the Government Code. Thesystemmust withholdthe e-mail addresses you have marked, in addition to the e-mail addresses we have marked, under section 552.137 of the Government Code, unless the owners of the addresses have affirmatively consentedto their release. The system must releasethe remainingresponsive information. "r A .:... otu informal I' A' is dispositive, we neednot addressyour remaining arguments against disclosureof this EXHIBIT "e" Mr. Gary B. Lawson - Page 7 This letter ruling is limited to the particular information at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other information or any other circumstances. This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and ofthe requestor. For more information concerning those rights and responsibilities. please visit our website at http://\\\\'\v.oag.state.tx.us/opcnJindex orl-php, or call the Office of the Attorney General's Open Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for providing public information under the Act must be directed to the Cost Rules Administrator ofthe Office of the Attorney General, toil free, at (888) 672-6787. Sincerely. Paige Lay Assistant Attorney General Open Records Division PLlbhf Ref: 10# 481856 Enc. Submitted documents cc: Requestor (w/a enclosures) EXHIBIT "G" ATTORNEY GENERAL OF TEXAS GREG ABBOTT April 3,2013 Mr. Gary B. Lawson Strasburger & Price, LLP 901 Main Street, Suite 4400 Dallas, Texas 75202-3794 OR2013-05330 Dear Mr. Lawson: You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 ofthe Government Code. Your request was assigned ID# 482923. The Dallas Police and Fire Pension System (the "system"), which you represent, received a request for e-mails between two named individuals for a specified period oftime. You claim the requested information is excepted from disclosure under sections 552.103, 552.107, 552.110,552.111,552.137, and 552.143 of the Government Code, and privileged under rule 192.3 of the Texas Rules of Civil Procedure. 1 We have considered your arguments and reviewed the submitted information. We have also received and considered comments from the requestor. See Gov't Code 552.304 (interested partymay submit comments stating why information should or should not be released). Section 552.143 of the Government Code provides, in part, the following: 'Although you also raise section 552.101 of the Government Code in conjunction with Texas Rules of Civil Procedure 192.3 and 192.5 and Texas Rule of Evidence 503, this office has concluded that section 552.101 does not encompass discovery privileges. See Open Records Decision Nos. 676 at 1-2 (2002), 575 at 2 (1990). Furthermore, we note the proper exceptions to raise when asserting the attorney-client privilege and work product privilege for information not subject to section 552.022 of the Government Code are sections 552.107 and 552.111 ofthe Government Code, respectively. See Open Records DecisionNos. 676 at 1 -2,677 (2002). Additionally, although it appears you raise section 552.022 of the Government Code as an exception to disclosure, we note section 552.022 is not an exception to disclosure. Rather, section 552.022 enumerates categories of information that are not excepted from disclosure unless they are made confidential under the Act or other law. See Gov't Code 552.022. POST OFFICE Box 12548, AUSTIN, TEXAS 787112548 TEL: (5]2) 4632]00 WWW.TEXASATTORNEYGENERAL.GOV An Equal Employment 0Ppt)fttu/:uy Employer . Prinrrd on Ruyclfd Papa EXHIBIT "0" Mr. Gary B. Lawson - Page 2 (c) All information regarding a governmental body's direct purchase, holding, or disposal of restricted securities that is not listed in Section 552.0225(b)(2)-(9), (11), (13)-(16) is confidential and excepted from the requirements of Section 552.021. This Subsection does not apply to a govemmental body's purchase, holding, or disposal ofrestricted securities for the purpose ofreinvestment nor does it apply to a private investment fund's investment in restricted securities. Gov't Code 552.143(c). You argue some of the submitted information pertains to the system's direct purchase, holding, or disposal ofa restricted security. See id. 552. 143(d)(3) (defining "restricted securities" for purposes of section 552.143); see also 17 C.F.R. 230.144(a)(3) (defining "restricted securities" as "securities acquired directly or indirectly from the issuer, or from an affiliate ofthe issuer, in a transaction or chain of transactions not involving public offering"). You inform us the information at issue involves Museum Tower, L.P. (the "Museum Tower"), whieh you state is not a governmental body. You state the system's limited partnership interest in the MuseumTower, is a seeurityaequired directly from the issuer of the security, the Museum Tower, in a transaction that did not involve a public offering. Accordingly, based on your representations and our review, we find the system has demonstrated the applicability ofsection 552.143(c) to the information you have marked. Thus, the system must withhold the information you have marked under section 552.143(c) of the Government Code. Section 552.107(1) of the Government Code protects information that comes within the attorney-client privilege. When asserting the attorney-client privilege, a governmental body has the burden ofproviding the necessary facts to demonstrate the elements ofthe privilege in order to withhold the information at issue. Open Records Decision No. 676 at 6-7 (2002). First, a governmental body must demonstrate that the information constitutes or documents a communication. !d. at 7. Second, the communication must have been made "for the purpose offacilitating the rendition ofprofessional legal services" to the client governmental body. TEX. R. EVID. 503(b)(1). The privilege does not apply when an attomey or representative is involved in some capacity other than that of providing or facilitating professional legal services to the client governmental body. In re Tex. Farmers Ins. Exch., 990 S.W.2d 337,340 (Tex. App.-Texarkana 1999, orig. proceeding) (attorney-client privilege does not apply if attorney acting in a capacity other than that of attomey). Third, the privilege applies only to communications between or among clients, client representatives, lawyers, and lawyer representatives. See TEX. R. EVID. 503(b)(1). Thus, a governmental body must inform this office ofthe identities and capacities ofthe individuals to whom each communication at issue has been made. Lastly, the attorney-client privilege applies only to a confidential communication, meaning itwas "not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance ofthe rendition ofprofessional legal services to the client or those reasonablynecessary for the transmission of the communication." Id. 503(a)(5). Whether a communication meets this definition depends on the intent ofthe parties involved at the time the information was communicated. Osborne v. Johnson, 954 S.W.2d 180, 184 (Tex. App.-Waco 1997, orig. proceeding). EXHIBIT "0" Mr. Gary B. Lawson - Page 3 Moreover, because the client may elect to waive the privilege at any time, a governmental body must explain that the confidentiality of a communication has been maintained. Section 552.107(1) generally excepts an entire communication that is demonstrated to be protected by the attorney-client privilege unless otherwise waived by the governmental body. See Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996) (privilege extends to entire communication, including facts contained therein). You state the remaining information consists of a communication between the system and an attorney for the system that was made in furtherance ofthe rendition ofprofessional legal services to the system. We understand this communication was made in confidence, and that confidentiality has been maintained. Based on your representations and our review, we find you have demonstrated the applicability of the attorney-client privilege to the remaining information. Accordingly, the system may withhold the remaining information under section 552.107(1) of the Government Code.' In summary, the system must withhold the information you have marked under section 552.143(c) of the Government Code. The system may withhold the remaining information under section 552.107(1) of the Government Code. This letter ruling is limited to the particular information at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other information or any other circumstances. This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and ofthe requestor. For more information concerning those rights and responsibilities, please visit our website at http://www.oag.state.tx.us/open/index orl.php, or call the Office of the Attorney General's Open Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for providing public information under the Act must be directed to the Cost Rules Administrator ofthe Office of the Attorney General, toll free, at (888) 672-6787. Ana Carolina Vieira Assistant Attorney General Open Records Division ACV/ag 2As our ruling is dispositive, we need not address your remaining arguments against disclosure of this information. EXHIBIT "0" Mr. Gary B. Lawson - Page 4 Ref: ID# 482923 Ene. Submitted documents c: Requestor (w/o enclosures) EXHIBIT "0" eXCLUSIVE NASHERCClNiFlC)VE:RS;Y To ermay sold Ii) bl!e until we It we- MUlieurn TIlVI'l't Ul-.Ill Museum of 1)l!J)wi and 1tJ(l\ft roll, truvcl'lliallandmm", torllll1l!. [)allti JIld NlI;llncr Cent;;r rnI't'T a am- hill! the Arts Oi.,ttnct fOf monthllc. "1>ft. hu dem- O!1nl'alOO time and that minded dt:-t.T}Oj)e' led Ii> our cflIimflunJty, VI'!!: VI'm!kl VI'tJicome EXHIBIT "E" Tower deal could break Nasher logjam Matthc'I\1>' group receives a ofthe l'emwnder, most left would go to the of its Tetta previmlsly told The Neu. the to Mat- thews were to dose as out- the return on wouldbe ant'W mar town. In It June interview with '['he Tettamant was asked the did so we finda successful we tend to sticlt with Tettamant said. "JackMattlle'l\1> is Ii phEmolme- the limitl"<i controls the tower - M\IJlel1mTo'\\'ec LP- is foc that but: \X:nsionsysltem is obli- if don't cover tbe lion. Total cost to beabout Tettamant has said he doesn't re- lated to the tower to increflsc much current level because funds from condo Tettamant told Till: Dallas MtlTnl'ngNf:1tll8last month the dellt sllcloliat roltl/;hly $175 mil- on both sides work- on this v.ith a sense of the possible, as to "fhis won't work won't " the ma','orBwd Matthews debt on the tower. In the proposed would a sum and become the controi- Must of the proCOOi:h Danas Mayor Mike Rawlings tor who to the two sides find a solution. He ac- cused Tettamant of not: in erg say that """",if'" have and done little to work toward a solu- tion. Pension say that the mediator was bi- and that its officials have 'worked toward a so- lution. Nasher offi- with of the rich and arts valnms, have overblmvn the and \'ilified 'Iet- tanlaIlt. cussions have been StallL'ii" In Dallus attorney ""n\lf!lmp you can and newcreattvttv oeoole into the "'4UClILlV' "'" ,,,,,'v that out """",",,,+hi,,,.. that has been stalled," Most of the tower's rondos in proven JACK HAT- THEWS;s oned sev- eral poten- tia! interested in Museum Tower. Continued trom Page \A ment. In an email eXl:hwlge, administrator is sold out and that e.xcited and feels likethe MuseumToweris EXHIBIT "E" South stroot. More the Offini Hotelat the convention center. I've worked it o v e r ~ but hard to sure there are win-win said. st homPSOfl@daIJasflIilWS.COm: gjacobson(idaJlfJ5flews.com Uta Stlll/S,,,tf POO!<>I/,,,!>twt Museum Tower, seen from Klyde W<lrren Park. Is scheduled toh<lveits opening cli/lli/OratlonThursday: Most of the tower's condos range in price from about $1million to about $4 minion. EXHIBIT "E" A DAILV CONVr;:RSATlON ABOUTDALLAS Renzo Piano Threatens To Take IVIllseumTower to Court Tim Rooers Perhaps by now my MuseumTower and it is the Nasher JI.:'''l.!J'lLU,t' Center. There's one aspect of the story address in the two go to I don't think that ,,,,,ill happen for several reasons, not the least ofwhich is David Haemisegger, president of both NorthPark Management Company and the Nasher's board, doesn't want to sue. But, a Iawsuit within the realm of possibility. Moee than one person told me that a on the Museum Tower side could run to million. How do you attach a brise solei! to a 42-story building that was never intended to support such a structure? The fL'[ would be expensive, And it would wipe out any that the building's owner, the Dallas Police & Fire Pension System, could hope to reap. In fact, it could put the project in the red. So they won't W'ant to fL>:: the problem on their side. On the other you (among others) Piano. The famed architect who designed the Nasher told me that he will not change his roof. "\'Vhat we can do is make a blind roof, he said. "But I "ill never. Not out of respect for mywork and out of respect for the legacy of Ray Nasher. I will never." And, even if he did change his roof, that \....,ouldn't save the garden, which is right now being cooked by ?...'1useum Tower. EXHIBIT "F" acknowledged the matter to court has crossed his mind. "Those people [meaning the Tower's designers, developers, owners] don't understand that we \\111 make trouble for them if they don't find a solution, Piano there is any need of action, that be done, of course. Nobody should think that they can destroy a building or an institution like this withcut any problem. So whar 'wouldhappen if the Nasher brought a nuisance claim against Museum One lawyer I talked to said that the woeld lose. XYJill1am..MlmJ21YmJ;h is an Austin construction lawyer with some skins on the walt \\''hen I put the quesuon to him, he was in.itiany puzzled. He J d never handled such a "light trespass" case before. could he call one to mind. So he did what any smart guy with skins on the wall would do: he had some junior do a \vhole bunch of workfor him to try to figure it out. Allensworth was kind enough to send me a report on his findings.. You can But here's the upshot: prevail in a nuisance claim, the Nasher would have to showthat the Museum Tower developers invaded the Nasher's interest in its land by conduct that was: 1) negligent; 2) intentional and unreasonable; or 3) abnormal and out of place in surroundings. Allensworth's young associate wrote: "The developer was probably not negligent in constructing the newbuilding because it did not owe a legal duty to the museum. Additionally,even ifthe del,reloper'sconduct was intentional, ... commercial development is not an unreasonable activity, Finally, commercial construction would not qualify as abnormal and out of place in the surroundings." Vv l 1"lat' s more, nuisance law on an objective standard. It doesn't protect an "ultra-sensitive property owner." That pretty well describes the Nasher. As I say, though, all the forgoing is probably a moot issue. This thing is going to be decided in the court of public opinion, where different rules apply. EXHIBIT "F" be Callas, Texas, Thursday. october 2.5.2012 NASHER ", ...",n:r;; CONTROVERSY L e quits mediator By MICHAEL GRANBERRY and GARY JACOBSON Staff Luce cited .differences with the own- TOM LUCE of the 4</'.- storv luxu- ry condo tower in a email sent at 5:03 a.m, in whieh he blamed his resiana- tionon ad- ministrator for the Dallas Po- lice & Fire Pension owns $200 million residential enclave. Luces departure came one lUtwllUgS to bro- settlement between the Nasher Sculp- ture Center and Museum See,RAWLINGS Page 12A EXHIBIT "G" Rawlings says he's sho d tum ofevents in dispute the fund words, an idea mgranberry@da!lasnews,com; gjacobson@'da!!asnews.com Cost, Rawlings issue, "This thing in which we of the Nasher the ness success ofMuseumTower," In the end, he said, he wants U everybody to hold hands and we're to have a great successful tower and a great mu- seum. I want everybody to feel good about that, going forward." Staff writer Rudolph Bush con- tributedto this report me: He then singled out Tettarnant by saying; ''1don't know why one individual is them- selves from the policeand fire like this," Glare controversies are noth- ing new in the architecture world. One arose over FrankGehrys de- sign of the Walt Disney Concert Hall in Los but that dis- In to louvers tnat enai- neers could apply to the facing glass of Museum Tower, the chief being a me- chanical system used on a build- Germany,Rawlings said he in success of this [Museum Tower]. And to have one individual on their be- Officials for the have offered to, in "fix" the Nasher roof, Nasher officials have vehemently rejected, DespitecitingRenzoPi- ano, "the world-class architect application in a war invested in working with Museuru'Iower." In an interview'Iuesday night, hours after the pension boardhad toured the Nasher, where Tetta- mant disavowed a "louvered" so- lutionthat has been months in the making and would limit the cost to $10 million, Rawlings said he was "a little shocked this. The of this conversation has one of openness with each other and trying to find a solu- tion: "With this tactic of being open and bringing in specialists that rule out any solutions before EXHIBIT "G" In a letter sent Wednlesday ternoonto MuseumTower home- owners, Tettamantwrotethat on- ly a "handful" of potential solu- tions remain, They he wrote, so ad- of the Nasher's and the son-in-lawof the center's founder, the late Raymond Nash er, responded to Luces departure by praising Luce and lamenting the time that's without a "Forthepast sixmonths at the request of Mayor Rawlings, Tom has worked diligently and tire- lesslyfor the benefitof the people of Dallas members ofthe Dallas and Fire Pension solution to percent. ,2010agreement between Muse- um Tower and another limits to 35 Luce Facebook 10m for re- "m;cu,v", he must leadership on both sides forthright and issue, Unfortu- 'We the mayor didn't work" In his 'Iettarnant recent events have made dear that the conditions and un- which I to serve to find a mutually beneficial for all arc not be- adhered to you. This sad- dens me because I believethis is such an issue for our with the our wonder- Continued from PagelA an inter- view that leadership on both sides needs to operate with the "same sense of a barb directed at the pension fund. Tettamant countered by say- "We are that Tom Luce he was to continue as the towards at a collaborative, reasonable, solution to the reflec- tion of the Museum Tower onto the Nasher Center and thank Mr. hisservice." dav after a busload of'Iettamants members and hired con- sultants took an afternoon lour of the Nasher in which evidence of emanat- reflective