Dallas Morning News to Pension Fund: We Weren't Trying to "Wrongfully Record" You, and Your Lawsuit Threats Are Silly

The Dallas Police and Fire Pension System has had a rough few months, what with the widespread public perception that they've installed a big, fancy Eye of Sauron downtown . Also, they're having to deal with a lot more reporters than usual, which no one enjoys. One of those reporters is The Dallas Morning News' Steve Thompson who, as you may recall, the pension fund would now very much like to sue, along with his paper, alleging that he "illegally recorded" an April 11 board meeting.

Thompson's explanation is much simpler: He says he attended the public part of the meeting, left when they broke for lunch, and accidentally left the recorder behind, balanced on the arm of a chair. When he realized he was short a recorder, he called the pension fund's spokeswoman immediately, told her what had happened, and asked her to retrieve it from the board room.

The pension fund didn't seem persuaded by that story. At the end of April, they asked District Judge Martin Lowy to rule on whether they'd be allowed to depose Thompson, with an eye toward suing him and his paper. In a delightfully bitchy response filed by the Morning News last week, the paper calls the pension fund's allegations of dirty doings "unfounded" and their arguments "legally improbable." They say that all Thompson's recorder picked up was a bunch of virtually unintelligible background conversation, several hours of it, which the pension funds lawyers are welcome to listen to any time.The paper also says that the whole lawsuit threat is little more than an attempt to "chill speech and news-gathering activities."

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The DMN's attorney, Thomas Gregor, writes in his response that Thompson returned to pick up his tape recorder from Rebecca Shaw, the pension fund's spokesperson, later on the afternoon of April 11. He transferred the recording to his computer and never listened to it. But a few days later, he got a unpleasant letter, calling the recording "secretive" and "wrongful" and lawsuit-worthy, "despite the fact," as Gregor writes, "that the recording was of an open meeting, taking place in a public meeting room, and is protected by statute."

Gregor says the newspaper invited representatives from the pension fund to review the recording, something they did on April 23. A summary shows that the first three hours of tape is from the public meeting. Thompson leaves at three. The recorder stays, where it listen to 40 fascinating minutes of lunch break, 40 more minutes of open meeting, and 13 minutes of what Gregor characterizes as "simultaneous and unintelligible background conversations in the public meeting room." Gregor repeats that part about the meeting being open and in a public place several times. Sometimes in bold.

The pension fund's argument seems to be that they had a reasonable expectation of privacy in that meeting room, a line of thought Gregor calls "self-serving, yet legally improbable."

Gregor concludes by asking Judge Lowy to deny the pension fund's request to depose Thompson, writing that the pension fund obviously hopes "to conduct an unconstitutional investigation into the newsgathering activities of Thompson and The Dallas Morning News," and to "intimidate Thompson in his future coverage of the Pension system." The whole thing, Gregor says, abuses the legal rules the pension fund is relying on, and, moreover, "trample[s] on the Texas Constitution and the First Amendment."

A hearing on the deposition was set for Judge Lowy's court this morning, but it appears to have been quietly canceled sometime late yesterday. Perhaps cooler heads have prevailed. Or the pension fund's decided to save their courtroom time for somebody else.

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