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Investigators fail in attempt to use FOI Act to catch whistleblowers

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Investigators fail in attempt to use FOI Act to catch whistleblowers

  • An internal affairs investigator in El Paso planted false information in the hope that police officers he suspected of whistleblowing would leak the information to the press and provoke a Freedom of Information Act request.

Sep. 17, 2003 — Details of how an El Paso police internal affairs investigator attempted to provoke a pair of news organizations to use the state’s Public Records Act to catch suspected whistleblowers on the police force came to light in two perjury cases decided in court late August.

In an effort to prove that two high-ranking officers were leaking confidential information to the El Paso Times and KVIA-TV in El Paso, Lt. David Norman arranged for the officers to learn of a fictitious investigation in order to provoke a Freedom of Information Act request by the news organizations.

The fabricated story triggered no such FOI Act requests, and the two officers were never charged with leaking confidential information to the media. The three-year investigation came to an end late last month, when a state appellate court judge held evidence of perjury charges inadmissible, forcing prosecutors to drop the charges.

“I’ve never seen such a thing. It doesn’t seem right, but it doesn’t seem to violate the Texas Public Information Act,” said Missy Cary, assistant attorney general and chief of the state’s Open Records Division. “Although, it might be a misuse of public information or a misuse of public office.”

The long and strange Texas tale, spelled out in court documents, began Aug. 30, 1999. Assistant Chief of Police George DeAngelis sent a memorandum to Chief of Police Carlos Leon requesting an investigation of Officer Luis Cortinas, a personal assistant to Leon. DeAngelis alleged that Cortinas was working with drug traffickers. Deputy Chief Cerjio Martinez participated in the ensuing investigation, during which time he and DeAngelis sought advice from City Attorney Stephanie Osburn about whistleblower protection.

Cortinas was never charged with a crime, and was reassigned within the El Paso Police Department. DeAngelis called the investigation a “whitewash,” court records show.

On June 27, 2000, the El Paso Times and KVIA-TV reported on DeAngelis’ original memo and the confidential report on the Cortinas investigation, citing an unnamed source in the police department. The news organizations subsequently filed FOI Act requests for other documents relating to allegations of police misconduct.

Internal affairs investigators suspected DeAngelis and Martinez of leaking the documents to the Times and KVIA, but lacked proof. DeAngelis and Martinez both signed sworn statements to a grand jury that they did not leak the information, and had not communicated with the media about the incident.

According to court records, investigators then threatened Osburn with prosecution and convinced her to cooperate with their efforts to uncover the leak. Under an order by Lt. Norman, Osburn met with both officers and falsely told them that a new investigation, of Chief Leon, had been initiated. The investigators hoped that this would trigger a FOI Act request from the news organizations, thus identifying DeAngelis and Martinez as the leak.

No FOI Act request was ever made.

“The attempt here was clearly to stifle free expression,” said Bob Moore, editor of the El Paso Times. “It sent a loud and clear message: if you challenge the police chief, you will be stifled.”

DeAngelis retired and settled a whistleblower suit against the city for $275,000 earlier this year. He has also filed a notice of intent to sue the city for $2.5 million for alleged civil rights violations. Deputy Chief Martinez is still with the police department and is one of seven candidates for interim police chief when Leon retires on Sept. 29.

The prosecutor in the perjury cases against DeAngelis and Martinez dropped the charges after the state court of appeals in El Paso ruled that his evidence was inadmissable.

(State v. DeAngelis, State v. Martinez) GP

© 2003 The Reporters Committee for Freedom of the Press

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