‘Cause No. I ada ey D IN THE DISTRIGHSOYRA 4, 9g DWAINE R. CARAWAY, § Plaintiff, § + § ERE ert ens vs. 8 bo SU JUDICIAL DISTRICT. § AS GREG ABBOTT, ATTORNEY § GENERAL OF STATE OF TEXAS and § CITY OF DALLAS, § Defendants, § DALLAS COUNTY, TEXAS P ” INAL PET] FOR DECLARATORY JUDGMENT. AND APPLICATION FOR TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES, Dwaine R. CARAWAY, hereinafier referred to as “PLAINTIFF”, and pursuant to Section 552.325(b) of the Texas Government Code, files this Original Petition for Declaratory Judgment and Application for Temporary Restraining Order and Temporary Injunction with the Court, asserting claims under the Uniform Declaratory Judgment Act, Chapter 37 of the Texas Civil Practices and Remedies Code and the Texas Public Information Act, Chapter $52 of the Texas Government Code. Plaintiff secks a declaration that the documents and information referred to herein are exceptions to the required disclosure under the ‘Texas Public Information Act. In support of this Petition, Plaintiff would show the Court as follows: L Discovery PLAN 1.1 Discovery is intended to be conducted under Level 2 of Tex. R. Civ. P. §190.3, 0 PARTIES AND SERVIC! 2.1 Plaintiff, DWAINE R. CaRAWay, is a resident of Dallas County, Texas. Plainuiff's Original Petition for Declaratory Judgment and Application for Temporary Restraining Order and Temporary Injunction - Page I22 23 at 4. Defendant, GREG ABnorr, is the Attorney General of the State of Texas and hercinafier referred toas“Attorney General”. He may be served with process of service at 209 West 14" Street, Austin, Texas. Plaintiff hereby requests that the District Clerk have citation served upon Defendant by certified mail, return receipt requested at the offices of the Attorney General of the State of Texas, Open Records Division, P.O. Box 12548, Austin, Texas 78701-2548, Plaintiff will also serve a copy of this Petition, with its attachments, as indicated by the certificate of service. Defendant, City OF DALLAS, may be served with process of service through the City Secretary, located at 1500 Marilla Street, Room SDS, Dallas, Texas. Ta Ven Venue is proper is proper in Dallas County under Section 15.002(a)(2) of the Texas Civil Practice and Remedies Code. Iv. FACTUAL BACKGROUND, ‘This cause of action arises under the Texas Public Information Act (“Act”), Chapter 552 of the Texas Government Code. Plaintiff would show that Defendant, City of Dallas, received formation requests from various individuals: the following publi i, Sam Merten requesting “all documentation of the Dallas Police Department 10 an incident on January 2, 2011, at [S. These would include, but not to be limited to, any notes taken by officers and police investigat officials regarding the case and any audio or video recorded at the scene.” ii, Allen Manning requesting “A copy of all reports, 911 calls, affidavits, squad car Plairtif’s Original Petition for Declaratory Judgment und Application for Temporary Restraining Order and Temporary Injunction - Page 2video and emails between police department personnel and Mayor Pro Tem Dwaine Caraway as relates to the incident 0001970-Y on January 3, 2011 at the residence on. Brandon P. Reed requesting “(1) all records, including notes taken by officers and police officials, related to the police response and investigation of an incident at the residence of Mayor Pro Tem Dwaine Caraway on or about January 2,201 including (a) incident report, call log, dispatch log that shows the officers that responded, ete.s (b) audio recording of incident; (c) any photo of any bruises or marks that were taken of Barbara, if any; (d) copies of emails, texts, or other electronic transmission between any city officials regarding incident; (e) “audio” from the officers microphone AND dashboard and video recordings.” iv. Jason Whitely requesting “(1) any and all video recordings from a DPD investigation. regarding an incident with Mayor Pro Tem Dwaine Caraway at his residence at [i HEBEEE. Ds, Texas on or about January 2, 2011; (2) Any and all audio recordings from DPD investigation regarding an incident with Mayor Pro Tem Dwaine Caraway at his residence at [EEN . Dallas, on or about January 2, 2011; (3) Any and all emails, letters, memos or other correspondence to or ftom Chief David Brown or Deputy Chief Greg Miller regarding a DPD investigation of Mayor Pro ‘Tem Dwaine Caraway at his residence at [EE Dallas, on or about January 2, 2011; (4) Any final report, interviews, statements or other paperwork collected during a DPD investigation of Mayor Dwaine Caraway at his residence ot [II Dallas, on or about January 2, 2011.” Plaimif’s Original Petition for Declararory Judgment and Application for Temporary Restraining Order and Temporary Injunction - Page 342 43 44 45 v. Steve Thompson requesting “all existing documentation of the Dallas police investigation into an incident on Jan. 2, 2011 at (ME. These would include, but not limited to, any notes taken by officers and poli vi. Scott Goldstein requesting “copies ofall records pertaining to the investigation of the below listed incident (1970-Y), including but not limited to: incident reports, affidavits, supplements, statements, lists, photographs, video recordings, audio recordings, notes, transcripts and any other applicable material.” Asevidence by the various requests listed above, Plaintiff is the subject of the requests under the Texas Public Information Act. Upon receipt of these requests, Dallas City Attomey timely submitted a request for a legal opinion from the Attomey General’s office on January 21, 2011, claiming that the information requested was exempt from disclosure pursuant to Section 552.101 of the Act. (See Exhibit “A”) On March 1, 2011, Attomey General issued an opinion (OR2011-02934) in which the Attorney General concluded that none of the information at issue is highly intimate or embarrassing and of no legitimate public interest and stated that the requested information must be released. (See Exhibit “B") The Plaintiff asserts that the requested information is exempt as a matter of law, either constitutional, statutory, or by judicial decision and are within the common law rights of privacy. Plaintiff additionally asserts that the requested information is also exempt under Section 552.101 of the Act, asit incorporates constitutional privacy. Specifically, the United States Constitution protects individual privacy rights of an individual in avoiding the Plaintiff's Original Petition for Declaratory Judgment and Application for Temporary Restraining Order and Temporary Injunction - Page 446 47 SA 5.2 disclosure of personal matters to the public. The Plaintiff believes the Attorney Gencral incorrectly applied the law regarding the exceptions. The Plaintiff therefore now brings suit, pursuant to the Texas Public Information Act, seeking a declaration that the documents and information at issue are exceptions from disclosure. Notice UNDEs 2,325(B) OF THE PUBLIC INFORMATION ACT Pursuant to Section $52.325(b) of the Public Information Act, in the course of filing this suit against the Attomey General and the City of Dallas, the Plaintiff will make a timely, good faith effort to inform the requesters of the following: i. The existence of the suit, including the subject matter and cause number of the suit (once a cause number has been assigned) and the court in which the suit is filed; ii, Their right to intervene in the suit or to choose to not participate in the suit; The fact that the suit is against the Attorney General and the City of Dallas; and iv. The addresses and phone numbers of the Office of the Attorney General and the City of Dallas. The notice will be provided to the requesters via certified mail, retum receipt requested to the address provided by each requester in their records request to the City of Dallas or via e- mail if only an e-mail address has been provided. Vi. APPLICATION FOR TEMPORARY RESTRAINING ORDER ‘ASTO DEFENDANT CITY OF DALLAS Plainuif’s Original Petition for Declaratory Judgment and Application for Temporary Restraining Order and Temporary Injunction - Page 561 6.2 63 64 65 6.6 67 68 Plaintiffs’ application for a temporary restraining order is authorized by Chapter 65 of the Texas Civil Practice and Remedies Code. Plaintiffasks the Court to prevent the City of Dallas from releasing the material at issue until this Court has had the opportunity to conduct a hearing on the merits of Plaintiff's claims. Itis probable that Plaintiff will prevail against the City of Dallas in this action secking the reversal of the Attorney General's opinion of March 1, 2011. If Plaintiff's application is not granted, harm is imminent because the material at issue will be disclosed to the public. ‘The harm which will result ifa temporary restraining order is not issued is imeparable because once the material at issue has been disclosed to the public, regardless of this Court's ultimate ruling, Plaintiff will have suffered irreparable harm which cannot be undone. Plaintiff's counsel has personally spoken with the City Attomey for the City of Dallas, and has been informed that without an Order from this Court, his office is obligated to comply with the Attorney General’s opinion. Plaintiff has no adequate remedy at law because his damages are incalculable and constitute an invasion of Plaintiff's right to privacy. There is not enough time to serve notice on Defendant, Attorney General, and to hold a hearing on this application, since Defendant, City of Dallas, could be forced to comply with the Atlomey General’s opinion at any time. Plaintiff has performed all conditions precedent and is ready, willing and able to post bond and any other equitable act as the Court deems necessary. Plaintiffs Original Petition for Declaratory Judgment and Application for Temporary Restraining Order and Temporary Injunction - Page 6vu. VEST FOR, RARY 7.1 Plaintiffasks the Court to set his application for temporary injunction for a hearing and, after the hearing, issuc a temporary injunction against Defendant City of Dallas. Plaintiff has joined all indispensable parties under Texas Rule of Civil Procedure 39 vil. PRAYER 8.1 Forthese reasons, Plaintiffasks that Defendants be cited to appear and answer and, on final trial, that Plaintiff be awarded a judgment against Defendants for the following: a b. ‘Temporary Restraining Order; ‘Vemporary Injunction; A declaratory judgment, declaring that the material at issue is except from disclosure under the Texas Public Information Act, and as such, should not be released to the public; Reasonable and necessary attorney's fees and court costs; and All other relief to which Plaintiff is entitled. Respectfully submitted, Paya, KUHNEL & SMITH, P.C. Midway Tower 4230 LBJ Freeway, Suite 121 Dallas, Texas 75244 State Bar No.: 00790560 SAMMIE M. SMITH State Bar No.: 24044902 ATTORNEYS FOR PLAINTIFF Plaintiff's Original Petition for Declaratory Judgment and Application for Temporary Restraining Order and Temporary Injunction - Page 7CERTIFICATE OF SERVICE Thereby certify that a true and correct copy of Plaintiff's Original Petition For Declaratory Judgment, and Application for Temporary Restraining Order and Temporary Injunction has been served in accordance with Texas Rules of Civil Procedure on this the __ day of March, 2011 on the following by the method indicated The Honorable Gregg Abbott Attomey General of the State of ‘Texas Office of The Attomey General Open Record Division P.O. Box 12548 Austin, Texas 78701-2548 Via CMR.RR. Mr. ‘Thomas Perkins City of Dallas City Attorney 1500 Marilla Street, Room 7DN Dallas, Texas 75201 Via Hand Delivery Plaintiff's Original Petition for Declaratory Judgment and Application for Temporary Restraining Order and Temporary Injunction - Page 8STATE OF TEXAS § § § COUNTY OF DALLAS BEFORE ME, the undersigned authority, personally appeared Dwaine R. Caraway, who, having been duly sworn, stated that he has read the above pleadings; and that the facts stated in it are within his personal knowledge and truce and correct. hE SWORN TO AND SUBSCRIBED before me on this the” __ day of March, 2011 (OFARY PUBLI OF TEXASERTIFIED ). 7005 2570 0000 1578 2: FAX NO. (512) 463-2092 January 21, 2011 Honorable Greg Abbott “Attomey General of Texas 300 W. 15th Street Clements Building, 12th Floor P.O, Box 12548 ‘Austin, Texas 78711 Re: Request for an Open Records Decision Dear Attomey General Abbott: By e-mail dated January 9, 2011, Steve Thompson has requested all existing documentation, including but not limited to, notes related to the Dallas Police Department's investigation into an incident on January 2, 2011 at 1934 Argyle Avenue, Exhibit A. “This office is responsible for representing the legal interests of the city of Dalles (“city”). In our opinion, the requested information may be exempt from required public disclosure under Section 552.101 of the Public Information Act, Chapter 552, Texas Government Code (the “Act”). Under Section 552.301 of the Act, this office now seeks your determination about whether this information is exempt from disclosure. We believe that the information in Exhibit B may be excepted from disclosure under Section 352.101 of the Act which exempts from disclosure "information considered to be confidential by Jaw, either constitutional, statutory, or by judicial decision.” Section 552.101 of the Act protects from public disclosure information coming within the commen law right of privacy. To be within the common law right of privacy, the information must (1) contain highly intimate or Gmbarrassing facts about a person's private affairs such that its release would be highly bjectionsble to a reasonable person and (2) be of no legitimate concem to the public. Open Records Decision No. 569 (1999) at 685, The information in Exhibit B consists of personal information that we believe may be protected by the common law right of privacy and would be cof no interest to the public. We have also included copies of two newspaper articles relating to the incident, Exhibit C. We seek your decision as how to proceed in this matter. crPCE OF HE CITY ATTORNEY CTY HALL OALLAS,TOXAS T3201 TELEPHONE RTWATOGSIO, FAK HTORTOGHDEJanuary 21,2011 Honorable Greg Abbott Page 2 If you have any questions regarding this matter, please contact me oF Assistant City Attorney Michael Bostic at 214.670.3519. Respectfully submitted, Lt WARREN M. S. ERNST Chief of the General Counsel Division Attachments c: (with Exhibit A only) ‘Thomas P. Perkins, Jr., City Attomey Heather Silver, Assistant City Attorney Michae! Bostic, Assistant City Attorney ‘Jeri Canter, Public Information Office Steve Thompson teveths n@e m*, ATTORNEY GENERAL OF TEXAS GREG ABBOTT March 1, 2011 City of Dallas / City Atomeys Office 1590 Maritia Street, Room 7DN Dallas, Téxas 75201 f ‘OR2011-02934 Déer Mr. Emst: You ask whether certain information is subject to required public disclosure under the Public Information Act (the “Act"), chapter 552 of the Government Code, Your request was assigned [D# 412760. “The City of Dallas (the “city”) received six requests for information pertaining to a specified Dallas Police Department investigation, including requests for the following categories of information: 1) video recordings, 2) audio recordings, 3) photographs, 4) correspondence between two named individuals, 5) call logs, 6) dispatch logs, and 7) affidavits. You state the city does not possess any information responsive to the requests for video recordings, photographs, call logs, dispatch logs, and affidavits.' You also state the city will release ‘some of the responsive information, including the correspondence between the two named individuals. You claim the submitted documents and audio recording are excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted information, We have also considered ‘comments submitted by one of the requestors. See Gov't Code § 552.304 (providing that interested party may submit comments stating why information should or should not be released). Section 552.101 of the Government Code excepts from disclosure “information considered to be confidential by law. either constitutional, statutory, or by judicial decision.” Gov't The Act does not require a governmental body to elease information that did not exist when arequest for information was received orto prepare new information in response toa request. See Econ Opportunities Dev. Corp. v. Bustamante, $62 5.W 26 266, 267-68 (Tex. Civ. App.—San Antonio 1978, wrt dism'd), Open ~ Records Decision Nos. 605 at (1992), 452 at 3 (1986), 362 at 2 (1983) — eeus65120463-2100 wow une. stare Tx Ub Post Ornice Rox 17548, Ava. 7Mr. Warrent M.S. Emst - Page 2 Code § 552.101. This section encompasses the doctrine of common-law privacy, which protects information that (1) contains highly intimate or embarrassing facts, the publication ‘of which would be highly objectionable to a reasonable person and (2) is not of legitimate concem to the public. See Indus. Found. v. Tex. Indus. Accident Bd, 540 S.W.2d 668, 683-85 (Tex. 1976). To demonstrate the applicability of common-law privacy, both prongs of this test must be established. /d. at 681-82. The type of information ‘considered intimate or embarrassing by the Texas Supreme Court in Industrial Foundation included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. Jd. at 683. Upon review, we find that none | of the information at issue is highly intimate or embarrassing and of no legitimate public interest. Accordingly, the city may not withhold any portion of the submitted information under section 552.101 ‘of the Government Code in conjunction with common-law privacy. As you raise no further ‘exceptions to disclosure, the submitted information must be released. This letter ruling is limited to the particular information at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other information or any other circumstances. ‘This ruling triggers important deadlines regarding the rights and responsibilities of the ‘governmental body and of the requestor. For more information concerning those rights and responsibilities, please visit our website at http:/www.oag.state,tx.us/open/index otl.php, cor call the Office of the Attomey General’s Open Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for providing public information under the Act must be directed to the Cost Rules Administrator of the Office of the Attomey General, toll free at (888) 672-6787. Sincerely, ‘eah B.Winguer Leah B. Wingerson Assistant Attomey General Open Records Division LBW Ref: ID# 412760 Enc. Submitted documents cc: Requestors (wlo enclosures)