The Most Common Reason Briefs Fail — and How to Avoid It
The brief was already lost before anyone started writing it.
That is the most common reason briefs fail. Not poor writing. Not missed deadlines. Not sloppy formatting. The government body decided what to withhold, picked the exceptions that seemed to fit, and started building arguments without ever asking the harder question first: will these exceptions actually hold?
The scenario
An angry parent requests the entire personnel file of a teacher. The request is broad, the motivation is obvious, and the instinct to protect the teacher is understandable. So the government body reaches for every exception that seems relevant and starts writing.
Here is what that brief typically looks like, and why most of it fails.
Common law privacy
Common law privacy protects information that is highly personal and not of legitimate public concern. Government bodies invoke it broadly in personnel file contexts, often arguing it covers the entire file.
It does not. Common law privacy is narrow in practice. It consistently applies to things like dates of birth, medical and health information, and specific financial details such as loans or insurance. It does not cover the bulk of what ends up in a personnel file: evaluations, disciplinary records, correspondence, employment history. Invoking it as a blanket argument for an entire personnel file is an argument the ORD has seen thousands of times. It does not get better with repetition.
Section 552.102
Section 552.102 protects certain personnel information of government employees, and like common law privacy, it gets invoked broadly in personnel file requests. Also like common law privacy, it is narrower than most people assume.
552.102 generally covers dates of birth of government body employees. That is its primary, reliable application. Government bodies that invoke it as a catch-all for personnel file contents are over-reading the exception. The ORD will apply it where it fits and decline to extend it where it does not.
Section 552.103
552.103 protects information relating to litigation to which the government body is or may be a party. The key phrase is "may be a party," and government bodies frequently read it too broadly.
The scenario here is familiar. The parent has said they want to sue, or get the teacher fired, or has otherwise made their hostile intent clear. The government body concludes it reasonably anticipates litigation and invokes 552.103.
That is not enough. The ORD's standard for what constitutes a reasonable anticipation of litigation is considerably more demanding than the requestor expressing an adversarial intent. The fact that someone is angry, has threatened to complain, or has even consulted an attorney does not by itself establish that the government body reasonably anticipates being a party to litigation. This exception gets invoked constantly in personnel file disputes and fails regularly for exactly this reason.
Common law safety exception
This one appears occasionally in the angry parent scenario, particularly when the government body is genuinely concerned that the teacher is being targeted. The argument is that releasing the information could endanger the teacher.
The safety exception is narrow. It applies most reliably to undercover law enforcement and similar contexts where disclosure of identity creates genuine physical risk. A teacher whose personnel file is being requested by a hostile parent is not, in the ORD's typical analysis, the kind of situation the safety exception was designed to address. Invoking it in this context almost always fails.
Section 552.111
552.111 protects deliberative process information: the back-and-forth internal discussion through which a government body formulates policy or reaches a decision. It is a real exception with real application. It also gets stretched.
Government bodies sometimes invoke 552.111 for any internal communication that appears in a personnel file, meeting scheduling emails, administrative logistics, routine correspondence. The exception does not cover that material. It covers deliberative content: opinions, recommendations, the substance of internal decision-making. Purely factual or administrative communications, even internal ones, generally do not qualify. The ORD has been reasonably consistent on this, though the exception can apply broadly when deliberative content is genuinely present.
What the brief should have looked like
The mistake was not that the government body wanted to protect the teacher. Some of that information probably was protectable. The mistake was treating exception selection as a first draft rather than a considered legal position, reaching for everything that might stick and hoping the ORD would sort it out.
A brief that holds in this scenario is narrower. It identifies the specific information within the file that falls within a defensible exception: the date of birth under 552.102 or common law privacy, the genuinely deliberative internal communications under 552.111. It does not invoke 552.103 unless there is a factual basis for a legitimate anticipation of litigation. It does not reach for the safety exception unless the facts actually support it.
Less is usually more. A brief that makes three strong, specific arguments is in a better position than one that makes eight weak ones. Over-claiming signals to the ORD that the government body is reaching, and it can undermine the arguments that do hold.
The harder question
Before you write a single word of a brief, ask: does the exception I am invoking actually apply to these specific records, under the ORD's established interpretation? Not under the most generous possible reading, not under what the statute might mean in isolation, but under how the ORD has actually applied it across thousands of rulings.
If you do not know the answer to that question, you are not ready to write the brief. You are ready to research it. That research, knowing which exceptions hold in which fact patterns and where the ORD's lines actually are, is what separates a brief that protects information from one that gives it away.
