February 7, 2006

 

 

VIA FACSIMILE AND FEDERAL EXPRESS

 

Ms. Katherine Minter Cary, Division Chief

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

                        ID #238843

                        Complaint Pursuant to Section 552.3215(e)

 

Dear Ms. Cary:

 

            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 October 4, 2005 application for production of public information (“Application”).  To date, the District Attorney has ignored its legal obligation to release these public records and is in violation of Section 552.353.

 

            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 Attorney General’s December 22, 2005 decision.  Landmark also requests that your office direct the District Attorney to release immediately all responsive records; grant Landmark’s pending and repeated fee waiver request; and impose or seek whatever additional legal remedies necessary to enforce Landmark’s rights under the Open Records Act. 


Background

 

Landmark’s Request

 

            On October 4, 2005 Landmark submitted to the District Attorney an application for production of public information seeking the following:

 

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.

 

3.      This request seeks all telephone messages, logs, notes or notations prepared by anyone in the DA’s office for Mr. Earle, including but not limited to Mr. Earle’s secretary, receptionist and or office administrator or manager, for the time period August 1, 2005 to October 4, 2005.

 

4.      This request seeks all telephone numbers (including but not limited to cell phone numbers) of Mr. Earle.

 

5.      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 Mr. Earle, the DA’s office, and Messrs. Birnbaum or Schermbeck.

 

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 October 4, 2005 Application for Production of Public Information.)

 

            On October 17, 2005, the County, acting on behalf of the District Attorney, sought clarification from Landmark only as to Item 1 of the Application.  Landmark provided its clarification on October 21, 2005 and also requested that the County Attorney respond within seven-days to Landmark’s fee waiver or reduction request.

 

            On October 18, 2005, the County Attorney notified the Attorney General’s office that certain exceptions to Landmark’s request were being asserted and that an Attorney General’s opinion was being sought.  The County Attorney indicated that a full legal justification would follow, but that responsive records were being withheld under a variety of asserted statutory exceptions.  Also on October 18, 2005, the County Attorney produced to Landmark a sparse and incomplete set of responsive records.

 

            On October 25, 2005, the County Attorney submitted a supplemental legal justification relating to its request to withhold public records.

 

            Landmark submitted its response to the County Attorney’s justification on November 3, 2005.  (Exhibit 2, Landmark’s November 3, 2005 Response.)  A supplemental response was submitted on November 17, 2005.  (Exhibit 3, Landmark’s November 17, 2005 Supplemental Response.)

 

            On December 22, 2005, your office issued its decision requiring the County Attorney and District Attorney to release all responsive information not covered by exceptions specifically delineated in the opinion.  (Exhibit 4, December 22, 2005 Attorney General Decision (“Decision”).)

 

            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, January 3, 2006 Correspondence to Assistant County Attorney.)

 

            To date, Landmark has not received any information from Travis County pursuant to the December 22, 2005 Attorney General Decision.  Further, Landmark has not received any communication from Travis County regarding the status of information in the possession of the District Attorney that is relevant to Landmark’s Application.  Despite repeated inquiries, Travis County has not addressed the issue of Landmark’s request for a fee waiver.  Finally, Landmark has received no assurances that the universe of responsive information has been or is currently being preserved.

 

Attorney General’s Opinion

 

            The Open Records Division issued its decision regarding the County Attorney’s asserted justifications for withholding on December 22, 2005.  (See Decision.)  This Decision provided a narrow reading of the exceptions advanced by the County Attorney and directed the County Attorney to promptly release relevant public records in accordance with Section 552.221(a) or to file a lawsuit challenging the ruling pursuant to Section 552.324. 

 

            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 Mr. Mark Birnbaum, Mr. Jim Schermbeck, Birnbaum Productions, or anyone acting on their individual or collective behalf or in connection with the filming of “The Big Buy,” as fully described in items 5 and 6 of Landmark’s October 4, 2005 request, must be released to Landmark.  (Decision, p. 3.)  In addition, any information responsive to Landmark’s request and previously made available to “The Big Buy” filmmakers also must be released to Landmark regardless of the applicability of any exception other than confidentiality.  (Id.)  This includes copies of any information and communications that the District Attorney considered proprietary to the filmmakers.  (See id.)

 

            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.

 

Alleged Violation

 

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.[1]  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.

 

Conclusion

 

            Landmark seeks records that may indicate that District Attorney Ronnie Earle or his surrogates engaged in potentially unethical or improper conduct.  This matter involves a timely issue relating to an ongoing news story with national implications.  Moreover, Landmark seeks information that is in the public interest and is likely to contribute to the public’s understanding of the activities of the government. 

 

            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.

 

                                                                                    Sincerely,

 

 

 

                                                                                    _____________________________

                                                                                    Mark R. Levin

                                                                                    President

 

 

Cc:       Michael A. Pearle

            Assistant Attorney General

            Open Records Division

            P.O. Box 12548

            Austin, TX 78711

            (w/o enclosures)

 

Julie Joe

            Assistant County Attorney

            Travis County

            P.O. Box 1748

            Austin, Texas 78767

            (w/o enclosures)

 

 

           

 

 



[1]  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.)