The Texas Attorney General, Not Keen on Putting the "Open" in Open Records Requests

Yesterday's mail included a couple of letters from the Texas Attorney General, which I will share, regarding two unrelated matters. The first was an opinion dealing with my letter to Dallas Area Rapid Transit on March 23 in which I requested:

"All reports generated by DART's departments of board support, auditor or counsel within the last six months concerning a letter sent to DART board members by a business associate, former or current, of board member William Tsao concerning contracts sought with DART by a company with which Mr. Tsao was associated according to the letter-writer."
This letter and the reports concerning it were the subject of a special briefing to the DART board executive committee, from which I was physically barred. DART argued to the Texas Attorney General that it should not have to provide me with the report I was seeking because it was protected as attorney-client privilege. The Attorney General agreed with DART that the report I was seeking was so protected.

This morning I sent the following e-mail to Shirley Thomas, DART's senior assistant general counsel:

Ms. Thomas:
Yesterday I received from the Texas Attorney general a copy of a letter sent to you by the AG dated June 9, 2010, concurring with your argument that information I was seeking about the William Tsao ... report was privileged and exempt as an attorney client communication.

I believe that you misrepresented the chain of custody of the report in your letter to the A.G. The report I was seeking was generated by the department of board support, not the counsel, and was distributed to board members by that department.

Copies were retrieved by DART counsel in order to retroactively immunize the report as if it had been originally created by counsel. I believe this treatment of the report and your characterization of it to the Texas Attorney General were improperly manipulative.

My original letter should have alerted the A.G to this possibility. By failing to make any apparent inquiry into the provenance of the report, the A.G aids and abets you in deceiving the public about the nature of this report, which in fact is public and belongs to the public.

I asked her to respond. I will let you know if she does. If you never hear from me again, it's because I died of holding my breath.

The second letter from the A.G. concerns a request I made to the Texas Historical Commission last March seeking information about efforts by the U.S. Army Corps of Engineers to have the Trinity River levees declared an historic site. My suspicion has always been that this is a bogus attempt by the Corps to come up with a flaky excuse for saying no to the Trinity River toll road.

If the Corps can blame saying no to the highway on the levees being historic, then the Corps won't have to give the real reason: stupidest idea in the history of the world that the Corps fecklessly supported for years anyway..

So, think about it. This is about whether or not something is historic. It's research. Local history research -- usually the provenance of older gentlemen who wear bolo ties. How much of a secret can it be?

The Corps, not surprisingly, argued that it's all a huge top-secret matter that cannot be disclosed. Kind of like nuclear secrets. But I didn't ask the Corps. I asked the Texas Historical Commission for their end of it.

The law says if the feds want to keep something secret, they have to keep it secret. If they hand it out to a state agency, it's not secret any more. In his letter to the Historical Commission, the A.G. points that out. He says normally the information I am seeking should be public.

However, "in the interests of comity between state and federal authorities," the A.G. tells the historic commission they can keep the historic levee research and any attendant correspondence secret. Law says public. A.G says not so much.

I could go to court. It's not worth it. Know why?

Think again. What could they have that's so explosive? I don't know, but I can guess. You know what they have that they don't want the public to know about? I suspect they have nothing. Zip. Nada. Empty pockets. That's what they're all afraid of allowing the public to see.

Here is some made-up correspondence that I have invented out of whole cloth to give you an example of what it could be:

Corps to Historical Commission:

"Is there any possible way we could get the dirt levees along the Trinity River declared historical or just, we don't know, special or something? We need an excuse for saying no to the trinity River Toll Road."

Commission to Corps:

"Get outta here! Are you joking? Hey, Mr. Big Corps Pants, we didn't ride into town on a melon truck you know. You're not going to get us caught in the middle of that one!"
So, anyway, the box score here is oh-for-two for the Schutze. DART is definitely not going to tell you about that latter from a former associate of board member Tsao or about the investigation of the letter and subsequent report to the DART board executive committee. I have tried calling Tsao for months: Cat's got his tongue big-time. So, you can't know what's going on there.

And, no, you cannot know -- must not know! -- anything about the explosively sensitive research into the historic status of the Trinity River levees.

I do have this thought rattling around my head: Attorney General Greg Abbott is the guy the Republicans on the Dallas County Commissioners Court wanted to bring in to investigate possible wrongdoing by Democrats in Dallas.

Why? Is it because he's such a fearless champion of truth and openness?

Just thought you'd like to not know what's going on.

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Jim Schutze has been the city columnist for the Dallas Observer since 1998. He has been a recipient of the Association of Alternative Newsweeklies’ national award for best commentary and Lincoln University’s national Unity Award for writing on civil rights and racial issues. In 2011 he was admitted to the Texas Institute of Letters.
Contact: Jim Schutze