Update on the DPS/Observer kerfuffle

Remember how the Texas Observer won a court ruling last November to compel the Department of Public Safety to turn over security videos from the Capitol hallways in order to see if GOP sugar daddy James Leininger was there to personally lobby for a voucher bill? And remember how DPS drew a line in the sand and proceeded to spend thousands of taxpayer dollars to get off the hook for that? Well, here's another update to that story.

Over the past two years, the Department of Public Safety has sent more than $165,000 of taxpayer money on attorney's fees to keep videotapes recorded by security cameras in a back hall of the Capitol secret. The case could go to the Texas Supreme Court -- despite rulings by the attorney general and a state district judge that the tapes should be made public.

The agency has insisted from the start that it will not give the tapes to the Texas Observer, a small-circulation, nonprofit investigative newspaper, because they reveal details that would compromise security at the Capitol. Attorney General Greg Abbott and District Judge Stephen Yelenosky have ruled that argument baseless.

Undaunted, the DPS is pressing on. Its attorneys are scheduled to make their case again Oct. 24 before a panel of three judges at the 3rd Court of Appeals.

The department's persistence in the matter has infuriated the chairman of the state Senate's Transportation and Homeland Security Committee. Sen. John Carona has promised his committee will find out how the case has been allowed to go on this long. The committee is expected to meet in November.

"The DPS is simply wrong on this issue," said Carona, R-Dallas. "This has nothing to do with security. I can think of no conceivable reason why DPS should be using taxpayer funds to hire private attorneys. This is simply an agency giving political cover for the Legislature. This is a misuse of public funds."

[...]

The saga began on May 26, 2005, when the Austin-based Texas Observer made a formal request to the DPS, which oversees Capitol security, under the Texas Public Information Act, for tapes recorded on May 23, 2005.

Jake Bernstein, executive editor of the biweekly newspaper, was trying to verify rumors that on that day James Leininger, one of the state's wealthiest Republican campaign donors, was in the hall behind the House chamber lobbying lawmakers to pass a pilot school voucher program. Such lobbying just outside the chamber is against House rules.

An amendment to launch the pilot program failed in the House, and the DPS denied the Observer's request, citing the Texas Homeland Security Act.

The videotapes "contain critical, sensitive information that relates to many specifications, operating procedures and locations of the Capitol security system, of which they are an integral part," according to a DPS brief filed with the appellate court. A terrorist could capitalize on such information, compromising the ability of the department to protect people who work in or visit the Capitol.

After reviewing the tapes, Assistant Attorney General Ramsey Abarca wrote to DPS staff counsel on Aug. 26, 2005, that their contents had nothing to do with security.

"The department has not adequately shown how the submitted video taken from Capitol security cameras relates to the specifications, operating procedures, or location of a security system used to protect public property from an act of terrorism," Abarca wrote in a letter to DPS counsel. The department, Abarca said, must release the video to the Observer.

The department responded by asking the attorney general for permission to hire private lawyers to get the opinion of a district judge. On April 12, Yelenosky ruled that the DPS had five days to turn over the tapes. DPS attorneys immediately filed an appeal.

Bernstein said he thinks that speculation by Carona and others that the DPS is perpetrating some kind of political cover-up is off-base. Bernstein said he believes the department is convinced that giving up the tapes will set a precedent that will leave security vulnerable to increasingly intrusive open records requests.

The case for the Observer has become far less about Leininger's whereabouts and much more about the DPS abusing homeland security law at considerable expense to taxpayers, Bernstein said. When the Observer made an open records request to obtain invoices for its legal fees, the DPS complied, and the newspaper posted them on its Web site in late September.

"Beyond this being a frivolous lawsuit, what I find a little depressing is the DPS is proceeding like there is this bottomless bag of money from which to draw," Bernstein said. "It just never occurred to us that they would carry this as far as they have."

Well, nobody expected the Spanish Inquisition, either. We'll see what happens when the Third Court, and (one presumes) the Texas Supremes ultimately weigh in on this. Will DPS pursue this to the US Supreme Court if they lose, or will they just go off into a corner and threaten to hold their breath until they turn purple? Stay tuned. Link via the Observer blog.

Posted by Charles Kuffner on October 16, 2007 to Legal matters