Ar OBSERVER Send a sample issue of the new to a friend! EMAIL OR CALL MARrelrrarM I RAWASIMIWAI V all I NIVUILSM AP OBSERVER -*OBSERVER * OBSERVER 4 OBSERVER ok .1111111131* A NOTE TO OUR DEAR READERS The Texas Observer makes a fraction of its income from subscriptionsthough we treasure each and every one. Most of our income comes from folks like you who value truth-telling journalism and give what they can. In other words, we operate more like National Public Radio, and less like The New Yorker. Our new Observer Partners program is our future. By becoming an Observer Partner, you become a vital part of ensuring not only the future of the print magazine, but the growth of our daily website at www.texasobserver.org . As you know, we’ve recently redesigned and revamped our magazine. But to reach new generations of progressive Texans who get their news from electronic media, our smallbut-dedicated staff is also working overtime to take full advantage of new-media opportunities. We’re giving a fast-growing online audience a daily dose of the Observer’s hard-hitting reporting and fearless commentary. The Observer Partners program supports both the magazine and our expanded efforts online. Please do what you can to help the Observer continue to provide the sharpest reporting from the strangest state in the Union. Yours for a better Texas, Bob Moser Editor For more information on Observer Partner levels and benefits, go to www.texasobserver.org . during session. It would have been a big story. So thenObserver 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 payingAkin Gumpand 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 camerassuch as passwords and access codesfrom 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 capabilitieswhether the camera could move, zoom in, record in colordetails 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 statewidean 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 secretand 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. 10 JUNE 11, 2010 The Observer loses a fight over whether the state can use homeland security laws to squelch open government. READ Rick Casey’s column from the Houston Chronicle supporting the Observer’s case at tx1o.com/dpscase
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