VIA FACSIMILE AND FEDERAL EXPRESS
Open Records Division
Office of the Attorney General of Texas
P.O. Box 12548
Austin, TX 78711-2548
RE: Landmark Legal Foundation Public Records Request
Complaint Pursuant to Section 552.3215(e)
Landmark Legal Foundation (“Landmark”) respectfully submits this complaint pursuant to Section 552.3215(e) of the Open Records Act. Given that the information sought relates to a matter of intense and ongoing public interest and may reveal official misconduct on the part of the Travis County District Attorney’s office, Landmark requests that this complaint receive expedited consideration.
Nearly 50-days have passed since the Attorney General’s Open Records
Division issued its decision directing Travis County District Attorney Ronnie
Earle (“District Attorney”) to release to Landmark certain public records
responsive to Landmark’s
Landmark requests that your office begin an immediate investigation to
determine whether the District Attorney and its legal counsel, the County
Attorney of Travis County (“County Attorney”), secured all potentially
responsive information sought by Landmark.
Moreover, as of this date these offices have failed to timely release
public information responsive to Landmark’s Application, in accordance with the
1. For the time period January 1, 2000 to October 4, 2005: Any and all information in the Travis County District Attorney’s Office (“DA”), or in the custody or control of any individual working for said office, which name or in any way reference the Democratic National Committee (“DNC”); any entity, campaign committee, employee, agent or consultant of the DNC; DNC Chairman Howard Dean; the Texas Democratic Party; any entity, campaign committee, employee, agent or consultant of the Texas Democratic Party; Texas Democratic Party Chair Charles Soechting; any members of the Texas state legislature; Texas State Representative Pete Laney; and former Congressman Martin Frost.
The information must include, but is not limited to, calendars, agendas, schedules, notes, notations, letters, audio tapes, and/or video tapes. . ..
2. This request seeks all telephonic records (including but not limited to cell phone numbers) in the custody of the DA’s office, or in the custody of any individual working for said office, or to which the DA’s office has or can receive access, disclosing telephone calls to or from Mr. Earle for the time period August 1, 2005 to October 4, 2005. This request includes all information, regardless of format, including but not limited to bills or invoices disclosing telephonic communications.
This request seeks all telephone messages, logs, notes
or notations prepared by anyone in the DA’s office for
This request seeks all telephone numbers (including but
not limited to cell phone numbers) of
This request seeks all information in the custody of the
DA’s office, or in the custody or control of any individual working for said
office, which name or in any way reference Messrs. Mark Birnbaum, Jim
Schermbeck, or their employees, agents or representatives, or the filming of
their movie “The Big Buy” which cover the period of January 1, 2002 to October
4, 2005. This includes all
telephonic records of communications involving
Landmark’s request states:
[t]his request for information does not seek any information exempt from release pursuant to Sec. 552.108 in that such release would not impede legitimate law enforcement or prosecutorial activities. Moreover, information relating to improper or illegal conduct by the DA or any person acting on behalf of or in the employment of the DA’s office is not exempt from disclosure under any exemption set forth in Chapter 552.
Finally, Landmark sought a fee
waiver or reduction for providing copies of the requested information as
Landmark is a tax exempt 501(c)(3) organization seeking the information for public dissemination and
education. (Exhibit 1, Landmark’s
Landmark submitted its response to the County Attorney’s justification on
On January 3, 2006, Landmark wrote the County Attorney reiterating the
full scope of Landmark’s request; reviewing the limited scope of the Attorney
General’s exceptions decision; requesting a redacted copy of the District
Attorney’s affidavit supporting its exceptions request; renewing Landmark’s fee
waiver request; and, finally, requesting that the County Attorney ensure that
the District Attorney preserve all records responsive to Landmark’s
request. (Exhibit 5,
To date, Landmark has not received any information from Travis County
pursuant to the
Attorney General’s Opinion
The Open Records Division issued its decision regarding the County
Attorney’s asserted justifications for withholding on
In particular, the Decision states that information sought to be withheld as grand jury information may only be withheld if the information was prepared and collected at the “express direction” of a grand jury. (See Decision, p. 2.) Moreover, the letter cautions that the Attorney General’s Decision was based on the representations contained in an assistant district attorney’s affidavit, a copy of which (even in redacted form) was never provided to Landmark despite Landmark’s request. Importantly, responsive records containing “substantially different types of information” than that in the “representative sample” submitted by the District Attorney and County Attorney are not reached by the Decision. All information not subject to the “express direction” exception or not reached by the Decision must be released promptly to Landmark. (Id. (emphasis added).)
The Decision states that records related to
Addressing the assertion of law enforcement and informer privilege exceptions, the Decision notes that Landmark is entitled to “basic information” regarding a criminal complaint, in accordance with Houston Chronicle Publishing Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App. 1975), as applied in Open Records Decision No. 127 (1976) (Decision, p. 3-5.). In particular, while a certain document submitted, “Travis County District Attorney’s Office Special Prosecution/Public Integrity Unit Contact Report” is subject generally to the law enforcement exception, the “basic information” contained in that report, with the exception of the complainant’s identity, must be released to Landmark. (See id. at 5.)
The Decision addressed certain privacy exceptions related to particular criminal records reports, common law privacy protections and motor vehicle records. (Decision, pp. 6-8.) The Decision specifically states that information that must be withheld is marked by the Attorney General’s office. (Id.) Accordingly, all other responsive information must be released to Landmark. (See id.)
Not only was the Attorney General’s Decision clear on what must be released to Landmark, it made clear that the records were ready to be released. Yet the District Attorney has not taken any steps to comply with the Decision.
Whether a public official is in violation of the Open Records Act is left to an examination of the totality of the circumstances surrounding a particular request. (See Open Records Decision No. 467.) Section 552.221(a) requires that public officials must “promptly produce public information for inspection, duplication, or both on application by any person to the officer.” Moreover, “’promptly’ means as soon as possible, under the circumstances, that is, within a reasonable time, without delay.” (Id.) (Emphasis added.)
A “reasonable time” is not specifically defined in the Open Records Act. However, when determining whether a “reasonable time” has elapsed, the Attorney General will examine the facts and circumstances of a given request, paying particular attention to the volume of information requested. Open Records Decision No. 467 at 6 (1987).
There is case law providing some guidance as to what constitutes a reasonable time for responding to such applications. In Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469 (Tex. App. 5th Dist. 1999), a reporter submitted three applications (dated February 11, 13, and 14, 1997, respectively) for production of public information. The first application sought information pertaining to a specific bus accident. The next two applications sought documents pertaining to bus accidents for a period of five years. Two and one-half weeks later, the governmental agency produced a total of 498 pages of responsive materials. (Id.)
Landmark’s request has been pending for nearly four months. It has been more than three months since the District Attorney and County Attorney have evaluated the universe of responsive records for their October 18 and 25, 2005 exceptions letters. Moreover, it has been nearly 50-days since the Attorney General directed the District Attorney to release specific documents, including portions of the “Travis County District Attorney’s Office Special Prosecution/Public Integrity Unit Contact Report”, records related to “The Big Buy” film, and even portions of documents specifically marked by the Attorney General for release to Landmark. Finally, the time for filing a legal action challenging the Attorney General’s decision has expired. Yet, nothing has been produced.
The record makes clear that the County Attorney is in possession of a significant amount of records responsive to Landmark’s Application. The District Attorney presumably searched for, collected, and evaluated responsive records in order to assert the wide range of justifications for withholding requested records set forth in the County Attorney’s October 18 and 25, 2005 requests.
It is clear that the District Attorney has no intention of complying with the Attorney General’s Decision or the Open Records Act. An investigation into this matter is compelled by the record. Moreover, additional legal action by the Attorney General is justified by the Act. In particular, Section 552.353(a) provides, in relevant part:
An officer for public information, or the officer’s agent commits an offense if, with criminal negligence, the officer or the officer’s agent fails or refuses to give access to, or provide copying of, public information to a requestor as provided by this chapter.
The District Attorney and County Attorney have not complied with the law and appear to be in violation of Section 552.353(a) – a misdemeanor -- by failing to promptly provide public information as provided in Section 552.221(a). Such disregard for the law – particularly by those charged with enforcing it -- must not be tolerated.
Landmark seeks records that may indicate that
Landmark respectfully requests that the Attorney General begin immediately an investigation to determine the extent to which the Travis County District Attorney and the County Attorney for Travis County have contravened Section 552.221(a) of the Open Records Act and are intentionally stonewalling the release of relevant information. Pursuant to Section 552.3415, please notify Landmark within thirty-one (31) calendar days of what steps the Attorney General will take to rectify this important matter.
Thank you for your prompt attention to this matter.
Assistant Attorney General
Open Records Division
P.O. Box 12548
Austin, TX 78711
Assistant County Attorney
P.O. Box 1748
Austin, Texas 78767
 Where no exceptions are asserted to the release of requested public records, Section 553.221(d) requires release within 10 business days. In the event the 10 day deadline cannot be met, the public body must inform the requester of an estimated date for release. (Id.)