Maybe all is fair in love and war, but in open government, there are rules. Specifically, there is Chapter 552 of the Texas Government Code, known as the Texas Open Government Act, which stipulates that if a government agency hands out information to the public, it must fork it over to all who request it; it can’t offer the information to some but withhold it from others; and it can’t drag its heels in providing the information. That a state agency failed to abide by those rules is the thrust of a lawsuit against the Texas Department of Public Safety (DPS) that was filed last month in Travis County District Court by the Austin American-Statesman. The outcome could set an important precedent in the continually evolving case law of open government, open records, and freedom of information.
The suit — which the Statesman later dropped, then asked to have reinstated, and is currently negotiating with the attorney general’s office — stems from last month’s release of a DPS report on evidence the department possesses regarding the infamous Branch Davidian disaster in Waco. The report was prepared for the U.S. congressional committee investigating the debacle, and was delivered to that committee on Sept. 9. On that same day, it was also delivered into the hands of Dallas Morning News reporter Lee Hancock.
A week earlier, Statesman reporter Mike Ward had requested a copy of the report, a request he repeated on Sept. 10. But Ward was treated very differently than Hancock — the DPS told him he would have to wait until the next Monday, Sept. 13, because the agency needed time to review the report and redact sensitive military information. On that date, the DPS promised, the report would be released to the public and placed on the DPS Web site (http://www.txdps.state.tx.us/). The Statesman — which claims it didn’t actually know the Morning News had the report, but merely suspected it did — refused to wait, and on Sept. 10 filed an open records request.
Two questions are central to this spat: First, did the DPS play favorites by forking over the information to the Morning News while keeping it from the Statesman? Second, did the department unneccesarily — and thus unlawfully — delay the release of public information?
As for the first question, the DPS claims that, at least as an institution, it displayed no intentional favoritism.
Instead, according to an Oct. 5 letter from Assistant Attorney General Andy Taylor to American–Statesman lawyer Jennifer S. Riggs (of Hill Gilstrap Adams & Graham), the report was not divulged to the Morning News by the department itself, but by an individual agent, Texas Rangers Senior Captain Bruce Casteel. The captain had approved giving the report to Hancock (on the condition that Hancock hold the story until Sept. 13), but, according to Taylor, Casteel denied to his DPS superiors until Sept. 12 that he had done so. Taylor claimed in his letter that “DPS is taking appropriate internal measures to prevent this from happening again,” although what those measures were is unclear. (Calls to Casteel were forwarded to the DPS public information office, which declined to comment on the case due to the pending litigation.)
The second question may be a more important matter; it is definitely a bigger source of friction between the paper and the department. The open records law says that governmental bodies must produce requested records “promptly,” but also says that if an agency can’t produce the records within 10 business days, it must “certify that fact in writing to the requestor and set a date and hour within a reasonable time when the information will be available– ”
The Statesman interpreted “promptly” to mean “immediately” — Sept. 10 — asserting that the 10-day waiting period was only to determine whether the records were in fact public. The paper contended that since DPS had already declared the report public on Sept. 9 by saying it intended to release the information, there should have been no waiting period after that date. The Statesman was even willing to have the military information — technical details of the construction of the XM651E 140-mm CS cartridge — left out if the report if could get the rest of it right away. (Hancock’s Morning News story included that information.)
“Agency [DPS] officials said the report would be made public,” Statesman managing editor Kathy Warbelow told “Media Clips.” “If they’re going to make it public, what is the purpose of the delay?”
Travis County Judge Paul Davis agreed, and granted the Statesman‘s request, staying the release until 5pm the next day to give DPS time to appeal.
The AG’s office was initially warm to granting the request, but, according to Taylor’s letter, “After consultation with [the DPS], [the AG’s office] were advised that DPS believed that an appeal was warranted to vindicate an important legal principle: Whether a governmental body could lawfully be denied a reasonable opportunity to review and evaluate an open records request within the 10-day response time provided by the Public Information Act. — By acceding to the Statesman‘s lawsuit and Judge Davis’ erroneous order, the message would be that one need only file suit to obtain a response to an open records request within one day of filing the request.”
“I would say that’s not the law,” said Randall Terrell, another Hill Gilstrap lawyer working on the case. “Generally, a public document is public and subject to immediate release to all who request it. [DPS] alleged as their defense that they had not had time to review the report. — The documents we introduced at trial had them saying, “We intend to release it unless we hear otherwise.’ We thought they had already made the decision that it was public.
“An agency clearly has 10 days to evaluate whether information is public,” Terrell continued. “However, once it was decided that it was public, they must release it.”
As for the cartridge info itself, Terrell said, “We thought it was apparent at the trial that they were making the claim [that the information was too sensitive to release] as an excuse to delay release. We thought the DPS was just fishing for reasons not to produce the report.”
The DPS and attorney general’s office went to the Third Court of Appeals on Sept. 11, but their appeal was denied. They immediately took their plea to the Texas Supreme Court, which granted them a stay until 8am on Sept. 13, by which time the two sides were expected to have their legal responses prepared.
On the morning of Sept. 12, Casteel finally confessed to Colonel Dudley Thomas, the director of the DPS, that he had given the report to Hancock. But the AG’s office and DPS didn’t tell this to the Statesman; instead, they negotiated a settlement with the Hill Gilstrap lawyers. The DPS would hand over the report to the Statesman, minus the cartridge info, at 4:55pm that day, and would not issue a press release saying that the document was available until 8am the next morning. In exchange, the Statesman agreed to drop its suit.
But the matter wasn’t over. At some point in the next few days, the Statesman‘s lawyers claim, they became aware that their suspicions regarding the Morning News were true, and they got torqued off at DPS again. The Statesman lawyers fired off a letter to DPS demanding to know why the AG and DPS hadn’t volunteered the information regarding Casteel and Hancock as they were trading the report for a suit dismissal. (Taylor’s letter rebuts that the Statesman knew about Hancock all along, but their lawyers never brought up the matter during negotiations.) By law, Statesman lawyers contended, DPS should have handed the report over to the Statesman (or anyone else who asked) as soon as DPS brass knew the report had been released by one of the agency’s officers.
Interestingly, and contrary to the Statesman‘s legal position, Taylor’s Oct. 5 letter claims that Statesman editor Rich Oppel “advised Colonel Thomas that he was planning to sue the DPS that day in order to get the Report before others in the media obtained it.” Warbelow strongly denies this, saying, “We did not sue to get it first. That’s impossible [since the law doesn’t allow it]. We sued to make it public.”
As for the provision in the settlement delaying announcement of the report’s availability until 8am on Sept. 13, which would seem contrary to the spirit of the Statesman‘s position, Terrell said, “It’s exactly what it seems like. We went through a lot of effort to get that document. We knew we couldn’t ask them not to release it to anyone who asks. We can’t. That’s against the law. — We thought the only thing we could try to do was keep them from announcing it — and try to get a scoop.” However, Terrell said, if anyone else had asked for the report before that time, the DPS would have had a legal duty to provide it.
In any case, after Taylor’s letter admitted Casteel’s actions, the Statesman asked the court to reinstate the suit, demanding reimbursement of attorney’s fees, an explanation from the AG and DPS as to why they should not be held in contempt, and the imposition of sanctions upon the two departments. Among the sanctions, the Statesman asks that the attorney general be required to explain to all state agencies that they can’t delay the release of public info, they can’t play favorites in giving it out, and they can’t demand dismissal of a lawsuit in exchange for the release of information.
As of this writing, the suit has yet to be reinstated by the court, and the parties are trying to negotiate a settlement. It’s a good bet that one will be reached, as Warbelow now sounds more conciliatory toward the state agencies: “The discussions we are in now are good-faith discussions. The attorney general supports open records. This has been unfortunate, but we believe it can be resolved.”
Ellinger Evicted
I keep thinking that sooner or later, the silliness and absurdity at KOOP radio has to level off. Surely there must be an upper limit to the arrogance of the station’s board of trustees. But apparently not.
Readers may remember that Jim Ellinger, the founder of the (supposedly) cooperatively run community station, was “indefinitely suspended” from his weekly show by the trustees, for rather spurious and heavy-handed reasons (see “Media Clips,” July 23). Now, they’ve gone so far as to ban him from KOOP’s building, as well as any building that KOOP might be using for an event. In a letter dated Oct. 16, KOOP’s trustees informed Ellinger that he was “not welcome and entry is forbidden at any place where KOOP activities are officially taking place (for instance the AFL-CIO offices located at 1106 Lavaca Street Austin TX 78701 which is officially provided for our use). You are hereby notified that you are not welcome and entry is forbidden to come on the property at 304 East 5th Street, Austin, TX 78701 nor any outer building or hallway belonging to KOOP Radio station at 304 East 5th Street Austin, TX 78701.”
There may be some problems for KOOP in enforcing this edict, however: KOOP does not own the building at 304 E. Fifth, nor is it the only tenant of the building. On Monday, Ellinger said that he had officially been welcomed back to the building by the building’s manager, San Jacinto Properties. (At press time, San Jacinto Properties had not returned my call.)
And over at the AFL-CIO, where KOOP meetings are frequently held, AFL-CIO legal director Rick Levy said, “Nobody outside of here has the authority to ban anybody from this building. As far as I’m concerned, this doesn’t affect his ability to access the premises.”
This isn’t the first time KOOP has had a disagreement over the AFL-CIO building. Last year, then-trustee Donna Hoffman got into a spat with some AFL-CIO employees that resulted in KOOP briefly being banned from the building until Hoffman apologized.
Asked what may have precipitated this action, Ellinger said, “I don’t know. I have no idea. I’ve had no altercation or interaction with them since I was suspended back in July.”
KOOP board of trustees president Teresa Taylor would not comment on the letter.
P.R. 101
One of the hardest things for journalists to decide is whom to consider a credible source, and whom to write off as just a crank or a crazy. Unfortunately, that too often results in “official” sources getting preferential treatment — and the official version of events unquestioningly reported as truth — while well-informed but less media-savvy activists and concerned citizens wrongly get dumped into the latter categories.
To help activists polish their act, ProTex: Network for a Progressive Texas will offer a media skills training workshop on Wednesday, Nov. 10, 7-9:30pm in room CMA 5.160 of UT’s Communications Complex at the corner of Guadalupe and Dean Keeton (26th). The workshop will offer tips on putting together news releases, press conferences, and event planning, as well as strategies for writing letters and op/ed pieces. The workshop will be facilitated by UT journalism professor and activist Robert Jensen. To reserve a space, call 481-1965. 
This article appears in Carol Keeton Rylander.