Sunday, July 10, 2011

Waco public information stonewalling comes to a head

"Lib Trib," attorneys blocked from prompt release of arrest affidavits

Reporting by R.S. Gates
Story by The Legendary Jim Parks

Waco – City of Waco public information policies routinely deny criminal defendants due process of law, according to a complaint lodged with the office of the Attorney General.

Furthermore, complaints from the editor and publisher of the Waco “Tribune-Herald” and a member of the criminal defense bar make it clear that the city's public information policy has not been uniformly enforced.

According to a front-page story which appeared today in the daily paper's Sunday edition, a public information policy that allows City Attorney Leah Hayes up to 10 days to seek an opinion from the Attorney General's office has only been in force for attorneys and mass media outlets since the end of June.

Ms. Hayes has for many months maintained that under the law, she has 10 days to respond to all such requests, and that furthermore she has limited staff to handle such requests.

The Legendary published the same story at the end of January – six months ago - then on two successive dates in February of this year. At that time, the policy did not apply to major accredited media outlets and broadcaster or attorneys, only to private citizens and blogsters like The Legendary.

The Tribune-Herald filed a complaint with the AG, citing in the Public Information Act from the Texas Local Government Code after local attorney Lawrence Johnson told Editor and Publisher Donnis Baggett that he was refused access to a probable cause affidavit in support of an arrest warrant served on one of his clients.

The Legendary filed a similar complaint on the City of Robinson Police Department in a similar denial of public information during the fall of 2010. We received relief in that case, but under the AG's doctrine, each case must be pursued individually, a time consuming task.

There is a fine line between news and history, and the Tribune-Herald for many months enjoyed the advantage, while The Legendary has been summarily ignored.

When city attorneys told Mr. Baggett and representatives of the newspaper that they must first review all such requests, the news editor filed the complaint, quoting Tom Kelly of the AG's office.

Mr. Kelly said an arrest warrant affidavit, just like the first page of an arrest or offense report, is “absolutely public information.” It must be released as soon as it is served, according to the Texas Code of Criminal Procedure.

Mr. Baggett protested, saying “In a democratic society, information is power. When you stanch the flow of information, it's a denial of power to those who are supposed to have it – the people.”

Mr. Johnson said the policy, which requires that anyone seeking information fill out a request form and file it with the city's legal staff at City Hall, then wait for a reply, prevents not only the accused from getting at the information that will be used against them in court, but similarly deprives their families and attorneys of the same information.

The open records law provides that any inquiry be answered promptly at the place of business where the records are kept during regular business hours.

Interested persons have to travel to another department in another building several blocks distant to get the information – but only after it has been cleared as public information.

Mr. Johnson, a former member of the Waco City Council, learned of the new policy when he went to the municipal clerk's office to pick up an arrest warrant affidavite on June 29. The information became available only after he waited until the following Thursday, more than a week later.

“The accused have the right to know what they're being charged with,” Mr. Johnson told newsmen. “If you don't have an affidavit, you can't question probable cause. You can't file a motion for an examining trial.”

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