AUSTIN – For the past year, numerous Texas counties pursuing opioid litigation against pharmaceutical giants have been subject to open records requests. The requests have sought a wide-range of information, including attorney solicitation emails, contract details with outside counsel and, in some cases, even time and expense records.
On Oct. 12, Titus County filed suit against Attorney General Ken Paxton, asserting time and expense documents sought under the Texas Public Information Act are protected by attorney-client privilege and must be withheld from required public disclosure under the Texas Public Information Act.
The lawsuit comes on the heels of a recent ruling from the Attorney General’s office, which found Titus County’s time and expense records are indeed “public information” and subject to the TPIA.
Titus County had argued the records aren’t subject to the act because its outside counsel, Simon Greenstone Panatier, a Dallas law firm representing several other Texas counties in opioid litigation, holds them.
“You state you do not maintain the requested time and expense records. You further state the information at issue is maintained by (Simon Greenstone),” the AG’s Oct. 3 opinion states. “However, we understand the county attorney’s office has contracted with (Simon Greenstone) as special counsel for the opioid litigation issue. We also note (Simon Greenstone) is contractually obligated to maintain records of the costs spent on the litigation at issue.
“Thus, we find public money was spent for the purpose of writing, producing, collecting, assembling, or maintaining the information at issue.”
When making its AG opinion request, Titus County declined to send its time and expense records for review – a detail that was not overlooked.
“Although the county attorney’s office raises an exception to disclosure, because you have not submitted the requested information for our review, we have no basis for finding any of the information excepted from disclosure,” the opinion states.
“Thus, we have no choice but to order the requested information released…”
In its suit against Paxton, Titus County argues the AG “skipped an important procedural step” by not allowing it the opportunity to “submit additional information, as required by section 552.303(c) of the TPIA.”
The section states: “If the attorney general determines that information in addition to that required … is necessary to render a decision, the attorney general shall give written notice of that fact to the governmental body and the requester.”
The county maintains it should have been given the opportunity to submit the additional documents.
Titus County initially received an open records request on July 11, seeking time and expense records related to the County’s opioid litigation. Two weeks later, County Attorney Mark Cobern informed the requestor that the estimated costs for the documents would be between $15,000 and $18,000. Shortly thereafter, Titus County sought an opinion from the Attorney General to withhold the requested time and expense records.
As previously reported, Texas counties represented by Simon Greenstone were demanding tens of thousands of dollars to fulfill open records requests for time and expense records related to the opioid litigation.
In response, complaints were made to the Attorney General’s Office, arguing the cost estimates were excessive and violated the Texas Public Information Act. Soon after, the counties began releasing the documents for free.
An addendum to Titus County’s contract with Simon Greenstone requires the firms representing Titus County in the opioid litigation to keep “current and complete written time and expense records” and that “All time and expense records kept in accordance with this agreement are public information subject to required disclosure under Chapter 552 of the Texas Government Code, and all applicable sections.”
On Oct. 3, right before receiving the AG’s opinion, Titus County’s attorney, Cobern, notified the requestor that a Simon Greenstone attorney would provide the documents, redacted to conceal allegedly privileged information, as an interim response under the TIPA until such time that the redacted records could be reviewed.
The next day, according to the lawsuit, the requestor informed Simon that he would not accept redacted records after the AG ruled that Titus County could not withhold the requested information.
Titus County also argues that the interests of other counties pursuing litigation against opioid manufacturers could be implicated if the County is forced to release the time and expense records without redactions.
“[T]he joint client doctrine protects the other counties affected, counties that have a lawyer in common and a common interest with Titus County. Those counties did nothing to waive the privilege. Those counties did not have even the opportunity to object to disclosure, an opportunity they likely would have had had the Attorney General made its initial ruling about the applicability of the TPIA and then allowed briefing,” the suit states.
The county is seeking declaratory judgment and is represented by Jennifer Riggs of Riggs & Ray in Austin