NEWS MEDIA UPDATE · TEXAS · Freedom of Information · Jan. 26, 2006
State attorney general sues sheriff for open records release
Jan. 26, 2006 · Texas Attorney General Greg Abbott sued the Upshur County Sheriff’s Office for failure to comply with the state’s open records law, sparking the office to reverse course and agree to release the requested files this week.
The records relate to the investigation into the fatal shooting of Jonathan J. King by a Gladewater police officer after a hit-and-run incident in June. King’s family requested the files.
Cases involving an attorney general suing local officials for public records are rare.
“Usually when we threaten to file suit, they comply right away,” said Tom Kelley, Abbott’s press secretary. “This [case] involves an officer shooting, which is a bigger case in play here.”
Under the Texas Open Records Act, a government body that wishes to withhold records must ask for a ruling by the attorney general. The sheriff’s office, through the district attorney’s office, requested a decision, claiming that the files should be withheld under the act’s law enforcement exemption. The sheriff’s office did not provide a copy of the information requested or a representative sample as required under the act.
In October, the attorney general ruled that the requested information was presumed open and must be released because the sheriff’s office did follow protocol in requesting that the records stay confidential, Kelley said. “We had no recourse except to tell them in October to release that file as it was when the requester requested it,” he said.
The sheriff’s office also did not show, as required by the law, that releasing the records would interfere with an investigation or prosecution of a crime.
“They can make that claim but they have to give that information to us, and we make that determination because we enforce that law,” Kelley said.
The law allows the requester or the attorney general to sue to compel the governmental body to release the information if the governmental body refuses to supply information that the attorney general has determined is public.
Upshur County District Attorney Mike Fetter said the sheriff was following legal advice from his office in withholding the records.
“There were some legal issues involved as to whether or not we had to have the attorney general’s opinion released,” Fetter said. “The sheriff had no idea what was going on in our office in those negotiations. The sheriff in no way intended to withhold information from anybody.”
Although the district attorney’s office agreed to release the files, the files were not ready when King’s attorney tried to pick them up, Barry Hardin, the family’s attorney, said Thursday. “None of the government entities . . . have released any information regarding what happened.”
King allegedly tried to run over an officer but another passenger in King’s car said in her statement to investigators that the police officer began shooting at King while he was trying to drive away, Hardin said. The officer returned to duty only days after the shooting.
Randy Sanders of the Freedom of Information Foundation of Texas applauded the attorney general for pursuing the case.
“The fact that the attorney general is challenging the sheriff to release information that apparently should have been released, at least to the attorney general, speaks highly for open government, and it never hurts the citizens of this country to know what their government is doing,” Sanders said. “This attorney general does not act irrationally and he generally stands on good law.”
(Abbott v. Upshur County) — KV