VIA FACSIMILE AND FIRST CLASS MAIL

 

Ms. Julie Joe

Assistant County Attorney

Travis County

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.”

 

            The Office 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).

 

 

            To be 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.

 

            Obviously, 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

 

                                                            Sincerely,

 

 

 

                                                            Mark R. Levin

                                                            President

 

 

Cc:       Ms. Katherine Minter Cary, Office of the Attorney General

            Via Fax:  (512) 481-1992