Capitol security at issue in court fight over videotapes

This is very interesting. This is a case that might makeit to the Texas Supreme Court. Access to the tapes has become a looming issue despite the fact that what started all this was a request for the tapes in order to see if philanthropist, pro-voucher supporter and funder, James Leininger, violated the law during the 2003 legislative session. We should all stay tuned to see how all of this develops.

A larger issue, of course, is freedom of the press, a constitutional right.

-Angela

Capitol security at issue in court fight over videotapes
DPS has spent $165,000 in effort to keep information from the public.

By Mark Lisheron
AMERICAN-STATESMAN STAFF
Sunday, October 14, 2007

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."

DPS Director Tommy Davis declined to comment because the case is pending, a spokesman for the department said. Raymond White, the attorney representing DPS, did not return telephone calls.

Ernest Angelo Jr., chairman of the Public Safety Commission, a panel of appointees overseeing the department, defended the decision to hire private counsel with tax dollars.

"Security is the issue," Angelo said last week. "Obviously, we decided there was a principle to defend the agency's security measures. Any time you hire lawyers, it's going to cost big bucks."

Gov. Rick Perry, who appointed Angelo and is responsible for the other four appointments to the Public Safety Commission, has taken no position on the case because it is still being argued, spokeswoman Krista Moody said. Perry believes DPS has followed proper procedures in the case, Moody said.

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."

Should the department lose its appeal, Angelo said, he expects to take and supports taking the case before the Texas Supreme Court. Not only could taxpayer-funded legal fees double by then, but attorneys for the Observer could demand reimbursement from the state if the Supreme Court were to side with the newspaper.

So far, Kator, Parks & Weiser, an Austin law firm, has represented the Observer for no charge, in sympathy with the newspaper's open records argument, said Jeremy Wright, the lawyer assigned to the case. The firm will have rung up more than $75,000 in fees by the time the appeal is completed and could easily top $100,000 if the case reaches the state Supreme Court, he said.

"Their argument has been the same from the beginning," Wright said. "What you have is the government using the Homeland Security Act as an excuse to keep from the public basic information they are entitled to."

Carona said he is impatient with an increasing tendency of state agencies to go to court rather than give up materials the attorney general deems public. The number of lawsuits filed challenging an attorney general's ruling that records be made public was 88 in 2006, up from 76 in 2005 and 64 in 2004, according to the attorney general's records.

Whether the Public Safety Commission will continue to support the legal blockade cannot be determined because the commission lacks a quorum. Last session, the Legislature approved adding two seats to the three-member commission. Angelo continues as chairman, and Perry recently appointed San Antonio attorney Allan Polunsky to replace Louis Sturns, who stepped down to take an appointment as judge in Tarrant County District Court. The three other commission appointments remain unfilled.

The DPS position continues to have support from the top. "I'm a taxpayer too, but with the importance of homeland security, I think we have an obligation to follow this case to the end," Angelo said. "A lot of cases don't get resolved until you take them to the top."

mlisheron@statesman.com; 445-3663

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