November 2, 2005

BY FACSIMILE AND FED EX

 

Ms. Katherine Minter Cary, Division Chief

Open Records Division

Office of the Attorney General of Texas

P.O. Box 12548

Austin, Texas  78711-2548

 

            Re:       Landmark Legal Foundation Public Records Request

                        ID #238843

                        Response to Travis County Attorney Exceptions Request

 

Dear Ms. Cary:

 

            Landmark Legal Foundation (“Landmark”) submits these comments pursuant to Section 552.304 of the Open Records Act.

 

            With inaccurate and unsupported legal analysis, and a procedurally defective request, the Travis County Attorney (the “County Attorney”), acting on behalf of the Travis County District Attorney (the “District Attorney” or “DA”), seeks permission to withhold a broad universe of public records properly requested by Landmark on October 4, 2005.  The exceptions asserted by the County Attorney lack legal or factual justification and should be rejected.  Moreover, given that the public information Landmark seeks may prove embarrassing to the District Attorney’s office, your office should immediately instruct the County Attorney and the District Attorney to ensure that they have complied with and continue to comply with their obligation to preserve and secure all records subject to Landmark’s public records request.  Open Records Decision 505 (1988).  The District Attorney should be compelled to produce the requested responsive records immediately.

 

I.          Background

 

            Landmark’s Request

 

            On October 4, 2005 Landmark submitted to the Travis County 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 Legal Foundation, October 4, 2005 Application for Production of Public Information.)

 

            On October 17, 2005, the County Attorney’s office sought clarification from Landmark only as to Item 1 of the Request.  Landmark provided its clarification on October 21, 2005.

 

            On October 18, 2005, the County Attorney notified the Attorney General’s office that certain exceptions limited 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 its supplemental legal justification relating to its withholding of public information and provided Landmark with an incomplete set of responsive records.  Landmark respectfully submits these comments.

 

            Records Produced[1]

 

            Records received from the District Attorney’s office include a handful of email transmissions related only to Item 5 of Landmark’s request; heavily redacted schedule or calendar entries for District Attorney Earle relating only to the documentary film referenced in Item 5 of the Request; a log of Mr. Earle’s long distance phone calls relating apparently only to the documentary film; some phone messages from Texas state legislators; schedule or calendar entries relating to appointments with state legislators; a small number of correspondence with state legislators providing responses to a small number of issues; and a handful of phone messages that appear to be primarily from reporters.

 

II.        Legal Analysis

 

            The County Attorney asserts that records sought by Landmark are excepted and/or exempted from production under a sweeping reading of the “grand jury information” exemption; may be withheld by an overly broad “informant’s privilege”; and must be withheld in order to avoid an unexplained, catch-all “law enforcement interference” privilege.  In addition, the County Attorney asserts that some of the responsive records must be withheld to avoid the disclosure of “highly intimate and embarrassing facts”; that information relating to certain criminal records may not be released; and that email addresses of private individuals must be withheld.  

 

The County Attorney’s legal and factual justifications for withholding are insufficient as a matter of law.  The County Attorney has not satisfied its burden to provide the Attorney General’s office a “compelling basis” to support the District Attorney’s request to withhold these responsive records.  Accordingly, pursuant to Section 552.302, the County Attorney and District Attorney must be ordered to release the responsive records.

 

A.                 The Burden Lies With the County Attorney to Demonstrate an Asserted Exception’s Sufficiency.

 

Section 552.001(a) provides:

 

Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this sate that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees.

 

            Moreover, Section 552.001(b) states that “[t]his section shall be liberally construed in favor of granting a request for information.”  When a government official, office, or agency seeks the Attorney General’s approval for withholding public records from the public, the government is charged with demonstrating a compelling basis for the refusal to produce records.  See Thomas v. Cornyn, 71 S.W.3d 473 (Tex.App. 2002).  See also Open Records Decision 7622 (2003) (October 23, 2003) (citing Hancock v. State Bd. Of Ins., 797 S.W.2d 379, 381-82 (Tex.App. 1990) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to Section 552.302)).  The County Attorney has not remotely presented a “compelling basis” for its blanket exceptions and/or exemptions assertions.

 

B.                 The County Attorney’s Rationale For Withholding Information Pursuant To The Grand Jury Exemption Is Improper.

 

Travis County District Attorney Ronnie Earle, through the County Attorney’s office, has withheld from the Attorney General responsive records of an undisclosed nature and an undisclosed number.  While it is impossible to tell from the County Attorney’s justification letter, it appears as though any and all records responsive to Item 1 of Landmark’s request are treated by the County Attorney as grand jury information exempt from disclosure.  The County Attorney’s justification, however, fails to provide the Attorney General’s office with any basis for permitting the withholding of these records.  Moreover, the County Attorney’s explanation fails to satisfy basic procedural requirements for asserting the grand jury information exemption.

 

 

 

1.                  Substantive Insufficiency

 

The Public Records Act does not apply to information within the actual or constructive possession of a grand jury.  Open Records Decision 513 (1988).  For records to be in a grand jury’s “actual or constructive” possession, the information must have been collected and held by an individual or entity acting “at the direction of a grand jury as the grand jury’s agent.”  Id.  The Attorney General’s decision went on to state that:

 

[i]nformation obtained pursuant to a grand jury subpoena issued in connection with [a particular] investigation is within the grand jury’s constructive possession.  On the other hand, the fact that information collected or prepared by the district attorney is submitted to the grand jury, when taken alone, does not mean that the information is in the grand jury’s constructive possession when the same information is also held by the district attorney.  Information not produced as a result of the grand jury’s investigation may be protected under one of the Open Records Act’s exceptions, but it is not excluded from the reach of the Open Records Act by the judiciary exclusion. … 

 

You may not withhold your entire investigation simply because the grand jury considered some of the information the district attorney’s office collected.  Id.

 

Moreover, the Attorney General’s office has recently affirmed this standard for permitting the assertion of the grand jury information exemption, concluding that “if an investigation began before any information was submitted to the grand jury, and the grand jury did not formally request or direct all of the governmental body’s actions in the investigation then the information is not deemed to be in the grand jury’s constructive possession.”  Open Records Decision 7622 (2003).

 

            The County Attorney’s blanket refusal to release records it deems (apparently on nothing more than second-hand information) to be grand jury information utterly fails to demonstrate that the withheld records satisfy the “constructive possession” standard.   Rather, the October 25 justification letter states simply that:

 

The District Attorney’s Office has acted at the direction of grand juries as their agent in preparing or collecting some of the responsive information.  We assert that all records collected, assembled, or maintained by the District Attorney’s Office as an agent for a grand jury are records of the judiciary and as such are not subject to disclosure under the Act.  Accordingly we have not enclosed any such records for your office to review.

 

The County Attorney’s position flies in the face of the law and clear standard set forth by the Attorney General’s office.  “[A]ll records collected, assembled, or maintained by the District Attorney’s Office as an agent for a grand jury” is not the same as records collected ­at the direction of a grand jury as the grand jury’s agent.   Without more explanation, it is impossible for the Attorney General office to determine the sufficiency of the grand jury exemption asserted by the County Attorney (and District Attorney).

 

2.                  Procedural Insufficiency

 

Not only is the claimed grand jury exemption substantively deficient, it fails to meet a fundamental procedural requirement set forth long ago by the Attorney General’s  office.  In order to assert the grand jury exemption, the County Attorney must provide the Attorney General with an affidavit from District Attorney Earle that all the responsive information withheld “was prepared or collected at the express direction of the grand jury. . ..”  Open Records Decision 513 (1988).  An assurance by the County Attorney, which is not in the form of a sworn affidavit, does not comply with the law and does not provide a compelling basis to assert the grand jury information exemption. 

 

Moreover, the County Attorney and District Attorney’s failure to provide an affidavit in support of its grand jury exemption does not comply with the procedural requirements when seeking an Attorney General’s decision set forth in Section 552.310, which “results in the legal presumption that the information is public and must be released.” Open Records Decision 7622 (2003).  Since the County Attorney and District Attorney have not complied with the clear legal requirements for asserting the grand jury exemption, they should be directed to produce all responsive records they seek to withhold under this exemption.

 

C.                 The Informer’s Privilege Exception - Justification Lacks Merit.

 

The County Attorney asserts that some of the records responsive to Landmark’s Request must be withheld pursuant to an informer’s privilege contained in the Texas Rules of Evidence.  As the County Attorney acknowledges, this privilege only justifies the withholding of information to the extent necessary to protect that informer’s identity.  Moreover, the informer’s privilege does not extend to the disclosure of identities of persons who are known to the subject of the information.  Open Records Decision 515 (1988).  The County Attorney does not claim, nor does any authority cited, that the informer’s privilege extends to organizations and thus cannot be used to withhold the identity of officers, employees or agents of any organization contained in Landmark’s Request.

 

The individuals and entities subject to Landmark’s request are well known and have long public records relating to their interests in particular matters involving the Travis County District Attorney’s office.  It is highly unlikely that an examination of the responsive records in this case will justify the assertion of the informer’s privilege.  Moreover, the informer’s privilege cannot be extended to individuals who lobby for the prosecution of an individual.

 

To the extent the privilege applies to the records responsive to Landmark’s Request, the information may only be withheld to protect the individual’s identity and not the responsive record in its entirety.  Open Records Decision 549 (1990).

 

D.                Enforcement Exception Justification - Vague, Overbroad and Insufficient.

 

The County Attorney asserts that the law enforcement exception applies to records Landmark seeks in that they: 1) pertain to active ongoing criminal investigations being conducted by the District Attorney’s office; 2) include records prepared by prosecutors in anticipation of or in the course of preparing for criminal litigation or reflects the prosecutors’ mental impressions or legal reasoning; and 3) relates to closed criminal investigations that did not result in conviction or deferred adjudication.

 

Aside from the statutory language, however, the County Attorney does not provide any meaningful explanation how the release of any particular responsive record will “unduly interfere” with law enforcement or crime prevention.  Open Records Decision 508 (1988).  Before a governmental body can successfully assert the law enforcement exception to releasing public records, it must “do more than merely make a conclusory assertion that releasing the information would unduly interfere with law enforcement – the governmental body must demonstrate as much.”  Id.  Moreover, the assertion that information requested reflects a prosecutor’s mental impressions or reasoning, must be accompanied by an explanation justifying such an assertion.  2004 Tex. Public Information Handbook, Office of the Attorney General at 93.

 

The County Attorney’s assertion fails to meet the required legal standard and contains nothing more than conclusory statements.  Open Records Decision 508 (1988).  Therefore, the Attorney General should direct the release of the responsive records.

 

E.                 The County Attorney’s Remaining Exception Assertions Do Not Justify Blanket Withholding of Responsive Records.

 

The County Attorney seeks to withhold responsive records that are protected by a general privacy exception for information that is highly intimate, embarrassing and not of legitimate concern to the public; records from the Texas and National Crime Information Center; and the email addresses of members of the public.

 

Landmark has never requested email addresses of members of the public, and in any event, such addresses are easily redacted from the production of email communications.  Moreover, Landmark has not sought any individual’s criminal records. And Landmark is not seeking highly intimate and embarrassing information, which can also be redacted from production.  (However, evidence of wrongdoing or misconduct does not fall within the privacy exception.)

 

 

 

III.       Conclusion

           

            A compelling basis has not been presented by the County Attorney to support the District Attorney’s wholesale withholding of information responsive to Landmark’s October 4, 2005 public records request.  The County Attorney’s justification is, as explained, legally deficient and defective in several respects.

 

            Importantly, nothing provided to Landmark or the Attorney General’s office indicate that District Attorney Earle has made even a minimal effort to identify the universe of information that is potentially responsive to Landmark’s Request.  For example, the only email provided to Landmark involves “The Big Buy” documentary production.  However, Landmark’s Request includes all email communications from January 1, 2000 to October 4, 2005.  The only telephone information Landmark received includes message logs and a handful of telephone calls from reporters and state legislators.  Landmark’s Request seeks and extensive volume of telephonic records, including all telephonic records … in the custody of the DA’s office.  Landmark’s Request includes the production of, among other things, a broad range of schedules and calendars.  The only calendars Landmark has received appear to be limited to meetings with the producers of “The Big Buy.”  Moreover, there appears to have been no effort to redact information.  Instead, it appears that information was withheld wholesale.  

 

            We respectfully submit that the District Attorney and County Attorney have violated repeatedly the Open Records Act, are obstructing the production of public information, and by this obstruction are attempting to extend the statutory deadline for the production of public information.  Therefore, Landmark requests that the Attorney General direct the District Attorney and County Attorney to immediately account for the information and provide Landmark with all responsive records. 

 

            In addition, neither the District Attorney nor the County Attorney have responded to Landmark’s request for a fee waiver.  Landmark is an Internal Revenue Code 501(c)(3) tax-exempt organization.  The information will be used solely for public dissemination and is of no commercial value to Landmark.  Therefore, Landmark asks that the Attorney General’s office issue Landmark a fee waiver.  Landmark is prepared to provide the Attorney General’s office with evidence of its tax-exempt status. 

 

           

                                                                        Sincerely,

 

 

 

                                                                        Mark R. Levin

 

Cc:       Julie Joe



[1]   The County Attorney has notified the individuals responsible for producing “The Big Buy” of Landmark’s request and informed them that they are responsible for asserting any privileges that would prevent release of the information sought in Item 5.  Landmark has not been notified by these third parties that they object to Landmark’s request.  Should an exception be sought, Landmark respectfully requests an opportunity to respond.