2/24/2010 yA CAUSE NO. 2010-11963 LLOYD E. KELLEY § iN THE DISTRICT COURT OF § 8 vs. § HARRIS COUNTY, TEXAS § FRANK J. WILSON, PAULINE HIGGINS, § L. ERIK OISTAD, DAVID W. COUCH, § METROPOLITAN TRANSIT AUTHORITY — § OF HARRIS COUNTY, TEXAS, and 8 Se JANE DOE 8 JUDICIAL DISTRICT PLAINTIFF'S ORIGINAL PETITION AND APPLICATION FOR TEMPORARY REST) IG AND INJUNCTION ‘TO THE HONORABLE COURT: COMES NOW, LLOYD E. KELLEY, Plaintiff, and files this, his Original Petition and Application for Temporary Restraining Order, Temporary Injunction and Permanent Injunction, and for causes of action would show as follows: 1 PARTIES 1. Plaintiff, LLOYD E. KELLEY is an individually doing business in Harris County, Texas. 2 Defendant, FRANK J. WILSON, is an individual doing business in Harris County Texas and may be served at his principal place of business Metropolitan Transit Authority of Harris County, Texas, 1900 Main Street, Houston, Texas 77208-1429. 3. Defendant, PAULINE HIGGINS, is an individual doing business in Harris County Texas and may be served at her principal place of business Metropolitan Transit Authority of Harris County, Texas, 1900 Main Street, Houston, Texas 77208-1429. 4, Defendant, L. ERIK OISTAD, is an individual doing business in Harris County Texas and may be served at his principal place of business Metropolitan Transit Authority of Harris County, Texas, 1900 Main Street, Houston, Texas 77208-1429. FILED Loren Japkson Disina Sek FEB 24 2010 a By. i Fa ~-5. Defendant, DAVID W. COUCH, is an individual doing business in Harris County Texas and may be served at his principal place of business Metropolitan Transit Authority of Harris County, ‘Texas, 1900 Main Street, Houston, Texas 77208-1429. 6. Defendant, METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY, TEXAS, (*METRO") is apolitical subdivision of the J. Wilson, President & Chief Executive Officer, Metropolitan Transit Authority of Harris County, ity of Houston, Texas and may be served through Frank Texas, 1900 Main Street, Houston, Texas 77208-1429. ML. JuRIsDI ANI 7. ‘The amount in controversy is within the jurisdictional limits of this Honorable Court. Ail parties reside in and/or do business in Harris County. Each Defendant has substantial contacts with Texas. Therefore, jurisdiction is proper. 8. Venue is proper in Harris County, Texas, because all, or essentially all of the parts of the events or omissions giving rise to this the cause of action accrued in Harris County, Texas, and/or because at least one Defendant resides and/or does business in Harris County, Texas. il. Fact, BACKGROUND 9 Pla under the Texas Public Information Act (“TPIA”). (Attached hereto as Exhibit “A" is a true and tiff, LLOYD E. KELLEY, on or about January 27, 2010 issued a request for records correct copy of the request.) Plaintiff Kelley's TPIA has been made pursuant to the Texas Public Information Act (Tex. Gov't Code §552.001, et seq.). 10. Defendant Frank J. Wilson, acting on behalf of Defendant METRO, on or about February 10,2010 acknowledged receipt of the Mr. Kelley's TPIA (See Mr. Wilson's February 10,2010-letter attached hereto as Exhibit “B”.) 11, _Inresponse to METRO’s acknowledgment of receipt of Mr. Kelley's TPIA, Mr. Kelley sent Defendant Wilson and METRO aletter of February 11,2010 clarifying that he was not withdrawing his TPLA and he insisted that the documents be produced as requested. (See Mr. Kelley's February 11, 2010-letter, attached hereto as Exhibit “C.”) Page 2 of 612, Upon information and belief, the Defendants are destroying, have destroyed and will continue to destroy the documents requested by Mr. Kelley in his TPIA. The Defendants’ actions are in violation of on or more of the following laws: section 552.351(a) of the Texas Public Information Act; section 201.008 of the Texas Local Government Records Act; the common law right of access: and possibly the Texas Penal Code section 37.10(a)(3) [imposing penalties for destruction of government records]. 13, The Plaintiff has and will suffer irreparable damages for which there is no adequate remedy at law. The records and information sought is unique A. VIOLATION OF THE TEXAS PUBLIC INFORMATION ACT 14, Plaintiff incorporates by reference all claims made above. 15, Under section $52.351(a) of the Texas Public Information Act (“TPIA*) a person commits an offense ifthe person willfully destroys, mutilates, removes without permission as provided by this, chapter, or alters public information. Tex. Gov't Code §352.35 (a). 16. Defendants by their actions have and/or continue to willfully destroy, alter and/or remove public information, some of which are the subject of Plaintiff's pending Public Information Act request, Defendants’ conduct is illegal and should be immediately stopped Tex. Gov't Code $552.351(a). 17, Based upon the above, Plaintiff has pled a cause of action for violation of the TPIA, shown aright to recovery on this cause of action, and shown irreparable harm. Plaintiffis therefore entitled to injunctive relief, which he requests below TION OF THE TEXAS LOCAL MENT cr 18. Plaintiff incorporates by reference all claims made above. 19. Under section 202.008 of the Local Government Act, “[aJn officer or employee of a local government commits an offense if the officer or public employee knowingly or intentionally violates this subtitle or rules adopted under it by destroying or alienating a local government record in contravention of this subtitle.” Tex. Local Gov't Code § 202.008. Page 3 of 620. The documents at issue may not be destroyed while a TPIA request is pending. Tex. Local Gov't Code $202,002. 21. Defendants by their actions have and/or continue to willfully destroy, alter and/or remove public information, some of which are the subject of Plaintiff's pending Public Information Act request. Defendants’ conduct is illegal and should be immediately stopped. Tex. Gov't Code $202.08. 22. Based upon the above, Plaintiff has pled a cause of action for violation of the Texas Local Government Records Act, shown a right o recovery on this cause of action, and shown irreparable harm. Plaintiff is therefore entitled to injunctive relief, which he requests below. C._VIOLATION OF THE COMMON LAW RIGHT OF ACCESS 23. Plaintiff incorporates by reference all claims made above. 24. The denial ofaccess to public records contravenes important constitutional and common law access rights. As the US Supreme Court aptly noted. “[pJeople in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” Richmond Newspapers, Inc. v. Virginia, 48 U.S. 555, 572 (1980). A common law right of access to public records, matters, and proceedings is firmly estal ¥, Walker, 29 S.W.3d, 271, 279 n.7 (Tex. App.-Houston [14 Dist.] 2000, pet.denied). 25. Defendants by their actions have and/or continue to willfully destroy, alter and/or remove ed. See, e.g., Randolph public information, some of which are the subject of Plaintiff"s pending Public Information Act request. Defendants” conduct is illegal and should be immediately stopped. Tex. Gov't Code $202.08. 26. Based upon the above, Plaintiff has pled a cause of action for violation of the Common Law Access Rights, has shown a right to recovery on this cause of action, and shown irreparable harm. Plaintiff is therefore entitled to injunctive relief, which he requests below. Vv. REQUEST FOR TEMPORARY RESTRAINING ORDER: 27. Plaintiff incorporates by reference all claims made above. 28. Plaintiff asks this Honorable Court to issue a Temporary Restraining Order against the Defendants to stop the alleged destruction of documents, whether in paper or electronic form, Page 4 of 6including any and all copies and backups thereof. Further, Plaintiffrequest that the court declare that the Defendants have a ministerial duty to retain documents and to issue a writ of mandamus or other appropriate court order to require the Defendants to produce all of the documents requested by Plaintiff in his TPIA. Vi. REQUEST FOR PERMANENT INJUNCTION 29. Plaintiff asks this Honorable Court to issue a Permanent Injunction against the Defendants in the same form as requested in the Temporary Restr vi IRREPARABLE INJURY AND PROBABLE RIGHT OF RECOVERY 30. Plaintiff will suffer irreparable injury if the requested restraining order and injunction are not ing Order Request above. ssued, Specifically, there us a reasonable probability that Plaintiff and the public at large will forever be deprived of the opportunity to review the requested documents and information under his TPIA request, if the Defendants are allowed to illegally destroy or seeret away the requested documents and information. 31. Under the circumstances there is imminent risk that the actions of the Defendants, unless restrained, will constitute violations os state law and create an imminent risk or probable and irreparable injury to the rights of Plaintiff and the public. Plaintiff has a particularized interest in protecting this electronic information from unlawful destruction because he has requested the information in his TPIA request. 32. Plaintiff has a probable right of recovery, and has no adequate remedy at law unless the requested relief is granted. 33. Asa result of Defendants” violations of the Texas Public Information Act, the Local Government Records Act and the common law right of access, Plaintiff is entitled to recover, and for which he seeks. his attorneys" fees and costs incurred herein, Page 5 of 6Ix. PRAYER WHEREFORE, PREMISES CONSIDERED, Plait f, LLOYD E. KELLEY asks this Honorable Court to issue a Temporary Restraining Order, and/or a Temporary Injunction, and/or a Permanent Injunction, as requested above, that he be awarded all damages resulting from the Defendants’ conduct, and for recovery of his attorneys” fees and expenses, and for such other and further relief, both general and special, at law or in equity, to which he may be justly entitled. Respectfully submitted, WEST & WEST, LLP By: Michael D. West State Bar No, 00785220 David West State Bar No 21209500 Fulbright Tower 1301 McKinney, Suite 3010 Houston, Texas 77010 Telephone (713) 222-9378 Facsimile (713) 222-9397 ATTORNEYS FOR PLAINTIFF, LLOYD E. KELLEY Page 6 of 6