For Their Eyes Only

It all started with a rumor.

Late in the 2005 legislative session, a contentious floor debate was riling up the Texas House. The scuttlebutt was that a wealthy Republican campaign donor was lingering in the back hall, twisting lawmakers’ arms to vote his way. To confirm the rumor, The Texas Observer filed a public information request for video footage from the security camera in the back hallway. That launched a five-year court battle between the magazine and the Texas Department of Public Safety over what constitutes public information and whether government agencies can keep video from public buildings secret.

The saga ended in late April when a state appeals court—in an opinion that open-government advocates are calling misguided—ruled that the video could be withheld. The ruling could prevent reporters and the public from obtaining video from courthouses, city halls or any government building in Texas.

The Department of Public Safety spent quite a bit of public money to keep the tapes hidden. The agency paid $254,727 to private attorneys to handle the case, according to agency records. The DPS, citing broad language in a 2003 homeland security law, argued that releasing the security tapes could make the Texas Capitol vulnerable to terrorism.

The Texas attorney general’s office, which joined the Observer in arguing the tapes were public information, didn’t buy DPS’s argument. Neither did a state district judge, who ordered the video released. But on April 29, the 3rd District Texas Court of Appeals disagreed, ruling that the tapes were confidential.

Austin attorney Jeremy Wright, who represented the Observer, says the ruling goes against Texas’ long tradition of open government. Texas has one of the strongest public-information statutes in the country, and state courts have long favored the release of government material. But it’s now uncertain whether video of government officials in a public building—recorded with public money—will ever be available to the public.

 

The dispute began on May 23, 2005, when House members were heatedly debating public school vouchers. There were loud whispers around the House floor that James Leininger—a prolific contributor to Republican campaigns and major supporter of school vouchers—was lingering in the hall behind the House chamber, lobbying recalcitrant Republicans to vote for his coveted voucher proposal. This seemed plausible; then-House Speaker Tom Craddick was hauling GOP House members into his office for arm-twisting sessions in a last-ditch (and ultimately unsuccessful) effort to pass the bill.

Leininger’s presence in the hallway would have violated House rules, which forbid lobbyists from entering the House floor and the adjacent back hall during session. It would have been a big story. So then-Observer editor Jake Bernstein requested the video from DPS, which oversees security at the Capitol.

DPS refused and appealed to the attorney general’s office. The AG ordered DPS to release the footage. The department refused again and hired the pricey law firm of Akin, Gump, Straus, Hauer & Feld to file suit to keep the tapes secret. DPS would end up paying Akin Gump—and later Diamond McCarthy, which handled the appeal—$254,727 in public funds over five years, according to 84 pages of DPS invoices the Observer obtained through an open records request.

It turned out that Leininger wasn’t in the back hallway after all. But the lawsuit had become bigger than Leininger. The case had turned into a fight over whether the state could use homeland security laws to squelch open government.

The heart of the DPS argument was a 2003 state law that exempts some details about government security cameras—such as passwords and access codes—from Texas’ expansive public information act. Video footage isn’t mentioned in the law, though a broad section in the statute deems confidential any information that “relates to the specifications, operating procedures or location of a security system.” That wording seemed intended to keep documents like system manuals secret. But DPS used the Legislature’s imprecise language to argue that video footage was related to a security system’s “specifications.”

The Observer and the attorney general’s office contended that because the law doesn’t mention video footage, the Legislature intended to keep video public. Austin state District Judge Stephen Yelenosky agreed, ruling that DPS had “failed to demonstrate how release of the requested information would interfere with law enforcement.”

But in April, the three-judge appellate panel decided that was too high a standard. In its opinion, written by Justice Alan Waldrop, the higher court concluded that video footage would show the security system’s capabilities—whether the camera could move, zoom in, record in color—details that “related” to the system’s specifications.

The Observer and the Texas attorney general have decided not to appeal the case to the Texas Supreme Court. Given the high court’s current makeup, it was unlikely the Observer could win. A Supreme Court ruling would have applied statewide—an even worse outcome for proponents of open government. The 3rd District Court ruling covers only the Austin area and the Texas Capitol.

It’s worth noting that the appeals court, even as it ruled against the Observer, conceded that the outcome may not be ideal. “Whether this protection is good policy or in the public interest is a question for the Legislature,” Waldrop wrote.

Wright, the Observer’s lawyer, says the decision isn’t good public policy. He hopes the Legislature will clarify what should be kept secret—and whether it intended the law to shield video from public buildings. “Given the statute’s catch-all language, it’s uncertain how courts will interpret future requests,” Wright says.

The current law is murky and leaves it to Texas judges whether material should be released. In this case, they sided with secrecy over open government.

 

Hear Dave Mann’s comments on Texas’ public-information statute and The Observer’s decision not to appeal the case: