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Watler Board Certified, Civil Trial Law Texas Board of Legal Specialization (214) 953-6069 (Direct Dial) (214) 661-6669 (Direct Fax) pwatler((l!jw.com
Office of the Attorney General Open Records Division ATTN: Amanda Crawford, Esq. P.O. Box 12548 Austin, TX 78711 RE:
Via CiWIRRR 71603901 984867359727 andfacsimile at (512) 475-2994
Complaint Regarding Dallas Police Department's Noncompliance with Texas Public Information Act as a Result of Improper Records Retention Practices and Procedures
Dear Ms. Crawford: I write on behalf of my client, The Dallas Morning News C'The News"), to express concerns regarding the Dallas Police Department's ("DPD") failure to comply with the letter and spirit of the Texas Public Information Act ("TPIA") as a result of its improper and noncompliant records retention practices and procedures. For the reasons discussed below, The News urgently requests that the Attorney General's Open Records Division investigate DPD's compliance with the TPIA and its records retention practices and procedures and take appropriate action to enforce applicable law, including the TPIA. As you know, the Texas Local Government Code, the Texas Administrative Code, the Dallas City Code, and the DPD Records Retention Schedule mandate that DPD retain records, including email and text communications, for certain minimum time periods depending on the subject matter of the records. See Tex. Local Gov't Code §§ 201.001-205.009; 13 Tex. Admin. Code § 7.125; Dallas City Code §§ 39C-l et seq.'; DPD Document Retention Schedule (April 15, 2009l The records retention periods set forth in the Texas Administrative Code and the DPD Document Retention Schedule are mandatory, and DPD is prohibited from disposing of a record prior to the expiration of its retention period. See Tex. Local Gov't Code § 202.001(a); 13 Tex. Admin. Code § 7.l23(c); Dallas City Code § 39C-15.
A copy of Dallas City Code §§ 39C-J et seq. is attached hereto as Exhibit A. A copy of the current DPD Document Retention Schedule is attached hereto as Exhibit B.
We note that both state and local law set forth criminal penalties for those who destroy or delete governmental records without authorization. Tex. Gov't Code 552.351; Local Gov't Code § Dallas Code
ATTN: Amanda Crawford, Esq. July 12,2012 Page 2 Strict compliance with all applicable records retention schedules is essential because OPO records constitute local government records, and all such records are subject to the TPIA, Chapter 552 of the Texas Government Code. See Tex. Local Gov't Code § 201.009(a); see also Tex. Govt Code § 552.002(b) (defining public information subject to disclosure). As discussed below, OPO's improper and noncompliant records retention practices and procedures are impeding The News' right of access to public records in violation of the TPIA. The News' concerns about OPO's records retention practices and procedures emanate from OPO's response to a series of TPIA requests submitted by The News, through its reporter Scott Goldstein, on March 15, 2012. The TPIA requests sought all emails and text messages sent to or from two named OPO officers, Deputy Chief Ches Williams and Lt. Jeff Cotner, that same day. One week after Mr. Goldstein submitted the TPIA requests, OPO responded by claiming that no responsive records were found.4 Upon receiving OPO's response, Mr. Goldstein asked OPO officials to confirm that Deputy Chief Williams and Lt. Cotner did not send a single email or text message on March 15, 2012. In meetings with several OPO officials, including representatives of the OPO Records Division, Mr. Goldstein was told that Deputy Chief Williams and Lt. Cotner's March 15,2012 email communications likely had been moved to the "trash" and then the "dumpster," and if both the "trash" and "dumpster" were emptied, the communications would have been permanently deleted and unable to be recovered. OPO officials also told Mr. Goldstein that OPO policies and state law generally do not obligate OPO to retain email communications for any period of time, and regardless, the OPO email server(s) are at least nine years old and thus so outdated and limited that OPO is unable to retain emails for more than 60 days anyway. The stated OPO records retention practices and procedures fail to comply with numerous provisions of the Texas Local Government Code, the Texas Administrative Code, the Dallas City Code, and the OPO Records Retention Schedule. As an initial matter, and contrary to OPO officials' assertions, both the OPO Records Retention Schedule and state law require that all OPO personnel retain records, including email communications, for certain minimum time periods depending on the subject matter of the communications. See 13 Tex. Admin. Code § 7.125; OPO Document Retention Schedule; see also Tex. Local Gov't Code § 201.003 (defining "local government record"). Likewise, state law mandates that OPO's email server(s) be of sufficient capacity and capability to allow for the retention of all records in full compliance with applicable records retention schedules. See 13 Tex. Admin. Code §§ 7.72, 7.76; see also 13 Admin. Code § 7.79 ("An electronic recordkeeping system must not provide an impediment
39C-21. We further note that the criminal provisions of TPIA Section 552.351 do not contain a temporal requirement that is, a person commits an offense under Section 552.351 if the person "willfully destroys, mutilates, removes without permission ... , or alters public information," even if such destruction, mutilation, removal, or alteration occurs in the absence of a pending TPIA request for the public information that is destroyed, mutilated, removed, or altered. See Tex. Gov't Code § 552.351.
Copies of DPD's responses to the March 15,2012 TPIA requests are attached hereto as Exhibit C.
ATTN: Amanda Crawford, Esq. July 12,2012 Page 3 to access to public records."). To the extent that DPD's email server(s) are incapable of storing records or present an impediment to public access to such records, DPD is in violation of state law. See id.; Tex. Gov't Code § 552.004. Additionally, The News has learned that email communications sent to and from Deputy Chief Williams and Lt. Cotner on March 15, 2012 were deleted in apparent violation of applicable records retention schedules and the TPIA. Through separate TPIA requests for email communications of DPD Chief David Brown and Assistant Chief Cynthia Villarreal, The News has obtained email communications sent to and from Deputy Chief Williams and Lt. Cotner on March 15,2012.5 Such communications were responsive to The News' March 15,2012 TPIA requests, but DPD claimed there were no responsive records, ostensibly because Deputy Chief Williams and Lt. Cotner had deleted them. Even a cursory review of these email communications reveals that their subject matter - internal affairs investigation, criminal history report, and offense investigations records dictates that they be retained for a minimum of three (3) years and until the offense's statute of limitations has run, respectively. DPD Records Retention Schedule PS 4075-01D, PS 4175-05A, PS 4125-05A. The fact that these email communications were not retained by Deputy Chief Williams and Lt. Cotner, as acknowledged by DPD in response to The News' March 15,2012 TPIA request, establishes that DPD has failed to comply with mandatory records retention schedules as well as the TPIA. DPD's response to a more recent TPIA request from The News serves as an even starker example of DPD's failure to comply with mandatory records retention schedules, and ultimately, the TPIA. By email dated May 3, 2012, The News, through Mr. Goldstein, requested copies of, among other records, "all letters sent from the DPD Open Records Unit in 2012 informing an open records requester that no records were found." DPD untimely responded by letter dated May 18, 2012, and advised Mr. Goldstein that "no records were found" that were responsive to his TPIA request." DPD's response is belied by the fact that Mr. Goldstein himself has received numerous "no record" responses from the DPD in 2012, including but not limited to the responses attached as Exhibit C hereto. 7 Only one possibility remains: DPD has failed to retain all of its "no record" responses to TPIA requests since at least January 1, 2012. This is a clear violation of the applicable retention schedules, which require DPD to retain such records for at least one year. 13 Tex. Admin. Code § 7.125 (schedule GR1000-34a); DPD Records Retention
A representative sample of the email communications sent to and from Deputy Chief Williams and Lt. Cotner on March 15, 2012. obtained in response to separate TPIA requests for email communications from Chief Brown and Assistant Chief Villarreal. are attached hereto as Exhibit O.
Copies of the May 3, 2012 TPIA request and OPO's May 18,2012 response thereto are attached hereto as Exhibit E. Although OPO's response is dated May 18, 2012, the response was not actually sent to Mr. Goldstein until June II, 2012. OPO's unexplained delay in providing the TPIA response to Mr. Goldstein is itself a violation of the TPIA. See Tex. Gov't Code § 552.221.
A copy of yet another "no record" response from OPO, dated April 24,2012,
is attached hereto as Exhibit F.
I 10 IS/GOOD3
ATTN: Amanda Crawford, Esq. July 12,2012 Page 4 Schedule GR1000-34. DPD's failure to retain its "no record" TPIA responses also is, ironically, a violation of the TPIA. See Tex. Gov't Code §§ 552.004,552.351. By letter dated April 23, 2012, counsel for The News notified Dallas City Attorney Tom Perkins of The News' concerns regarding DPD's improper and noncompliant records retention practices and procedures.f Specifically, The News requested that the City of Dallas Records Management Officer perform a comprehensive review and audit of DPD's records retention practices and procedures and take remedial action to correct any noncompliant practices and procedures in order to ensure full compliance with the TPIA. To date, neither Mr. Perkins nor any representative of the Dallas City Attorney's office has issued a formal response to the April 23, 2012 letter. However, in an interview with Mr. Goldstein, Assistant City Attorney Warren Ernst defended DPD's practices and procedures and stated that "The job of police officers is to provide public safety. Not to provide a record for you to do your story. So the emphasis is on public safety."" In the words of The News' editorial board, "these worthy goals need not exist in conilict."lo Indeed, the TPIA, the Texas Local Government Code, the Texas Administrative Code, the Dallas City Code, and the DPD Records Retention Schedule mandate that DPD conduct its public safety services in a transparent manner. The News demands nothing less than full compliance with the TPIA and all applicable records retention schedules. Accordingly, The News urgently requests that the Attorney General's Open Records Division investigate DPD's compliance with the TPIA and its records retention practices and procedures, including, but not limited to, the capacity and capability of DPD's electronic recordkeeping technology, and take appropriate action to enforce DPD's compliance with the TPIA, the Texas Local Government Code and the Texas Administrative Code. The News stands ready to cooperate in whatever manner the Open Records Division deems appropriate. Thank you for your attention to this matter.
Paul C. Watler PCW/rdp
A copy of the April 23, 2012 letter to Dallas City Attorney Tom Perkins is attached hereto as Exhibit G.
') Copies of a news article and an editorial published by The News regarding this subject are attached hereto as Exhibit H.
See Ex. H, "Editorial: Dallas police should halt email deletion."
ATTN: Amanda Crawford, Esq. July 12,2012 Page 5 cc: Mr. Tom Perkins City Attorney Dallas City Hall 1500 Marilla Street. Room 70 North Dallas, TX 75201-6622 Ms. Peggy D. Rudd Director and Librarian Texas State Library and Archives Commission P.O. Box 12927 Austin, TX 78711-2927 Via Hand Delivery and U.S. First Class Mail
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