VIA FACSIMILE AND
FIRST CLASS MAIL
Assistant County Attorney
P.O. Box 1748
Austin, TX 78767
Dear Ms. Joe:
I am in
receipt of your February 10, 2006
letter. For the record, your office has
not provided Landmark Legal Foundation with a single piece of public
information since the Office of the Attorney General instructed you to do so
some fifty (50) days ago. But for our
filing a complaint with the Office of the Attorney General on February 7, 2006 about your office’s non-responsiveness,
we would have had no idea of your current position respecting a copy of the
film “The Big Buy.”
of the Attorney General already adjudicated this issue in its December 22, 2005 opinion. I refer you to page three (3), the second
full paragraph of the opinion, which states:
Next, an interested third party is
allowed ten business days after the date of its receipt of the governmental
body’s notice under section 552.305(d) to submit its reasons, if any, as to why
information relating to that party should be withheld from public
disclosure. See Gov’t Code §552.305(d)(2)(B).
As of the date of this letter, Mark
Birnbaum and Birnbaum Productions have not
submitted to this office reasons explaining why the district attorney should
not release their information.
Therefore, these third parties have provided us with no basis to
conclude that they have a protected proprietary interest in any of the
information at issue, and none of it may be withheld on that basis. See
Gov’t Code § 552.110(b) (to prevent disclosure of commercial or financial
information, a party must show by specific factual or evidentiary material, not
conclusory or generalized allegations, that it actually faces competition and
that substantial competitive injury would likely result from disclosure); Open
Records Decision Nos. 552 at 5 (1990) (party must establish prima facie case
that information is trade secret), 542 at 3 (1990).
clear, the film producers had every opportunity to raise a timely objection but
did not. By certified letter, on October 18, 2005, you specifically
informed Mr. Jim
George, Attorney for Birnbaum Productions,
of Landmark’s request for, among other things, a copy of “The Big Buy.” Moreover, you provided Mr.
George with instructions on how he and his
clients could file an objection with the Office of the Attorney General seeking
an exception from Landmark’s request.
You provided Mr. George
with the relevant sections of the Texas Code, the specific information he might
want to provide to the Office of the Attorney General in support of such a
request, and the address of the Open Records Division. Nonetheless, no objection of any kind was
filed with the Office of the Attorney General.
To reiterate, the Office of the Attorney General ruled fifty (50) days
ago that “... these third parties have provided us with no basis to conclude
that they have a protected proprietary interest in any of the information at
issue, and none of it may be withheld on that basis.” Yet, your office now appears to be asserting
a proprietary interest on behalf of this third party in contravention of the
Office of the Attorney General’s opinion.
your suggestion that our lawyers travel from the Washington D.C. area to Austin,
Texas to view the film is not only impractical and expensive, but it does not
comply with the ruling of the Office of the Attorney General. Keep in mind, Landmark has no commercial
interest in this film and cannot as Landmark is a tax-exempt, non-profit
501(c)(3) organization under the Internal Revenue Code.
There is no
basis whatsoever to continue improperly withholding the film. Indeed, Landmark’s request requires that you
produce not only the film, but everything and anything in the possession of the
Travis County District Attorney’s Office relating to the film, which has not been
specifically exempted from production by the Office of the Attorney General.
By copy of
this letter, we ask the Office of the Attorney General to immediately direct
the Travis County Attorney to release a copy of this film to Landmark. It is the duty of the Travis County
Attorney’s Office to comply with state law and the orders of the Office of the
Attorney General, not to serve as special pleader for a third party for the
purpose of concealing public information
of the Attorney
Via Fax: (512) 481-1992