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Cause No. _
DWAINE R. CARAWAY, Plaintiff,
§ § § § § § § § §
GREG ABBOTT, ATTORNEY GENERAL OF STATE OF TEXAS and CITY OF DALLAS,
.. __ flCPUJ Y
DALLAS COUNTY, TEXAS
PLAINTIFF'S ORIGINAL PF:TITION FOR DECLARATORY JUf)GMENT AND APPLICATION FOR TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES, DWAINE R. CARAWAY, hereinafter 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 Uni fonn Declaratory Judgment Act, Chapter 37 of the
Texas Civil Practices and Remedies Code and the Texas Public Information Act, Chapter 552 of the
Texas Government Code. Plaintiff seeks 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, PlaintifTwould show the Court as follows:
1.1 Discovery is intended to be conducted under Level 2 of Tex. R. Civ. P. §190.3.
PARTIES AND SERVICE
2.1 Plaintiff, DWAINE R. CARAWAY, is a resident of Dallas County, Texas.
Plaintiffs Original Petition/or Declaratory Judgment and
Application/or Temporary Restraining Order and Temporary Injunction - Page I
2.2 Defendant, GREG AnH01T, is the Attorney General of the State of Texas and hereinafter
referred to as "Attorney General". He may be served with process of service at 209 West 14th
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. Plainti ff will also serve a copy of this Petition, with its attachments, as
indicated by the certificate of service.
2.3 Defendant, CJTY OF DALLAS, may be served with process of service through the City
Secretary, located at 1500 Marilla Street, Room 50S, Dallas, Texas.
3.1 Venue is proper is proper in Dallas County under Section 15.002(a)(2) of the Texas Civil
Practice and Remedies Code.
4.1 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
the following public information requests from various individuals:
I. Sam Merten requesting "all documentation of the Dallas Police Department
investigation into an incident on January 2, 2011, at
would include, but not to be limited to, any notes taken by officers and police
officials regarding the case and any audio or video recorded at the scene."
11. Allen Manning requesting "A copy of all reports, 911 calis, affidavits, squad car
Plaintiffs Original Petition/or Declaratory Judgment and
Application/or Temporary Restraining Order and Temporary Injunction - Page 2
video and crnails between police department personnel and Mayor Pro Tern Dwaine
Caraway as relates to the incident 0001970- Y on January 3, 2011 at the residence on
111. Brandon P. Reed requesting H( I) 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 Tern Dwaine Caraway on or about January 2, 2011 including
(a) incident report, call log, dispatch log that shows the officers that responded, ctc.;
(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; (c) "audio" from the officers
microphone AND dashboard and video recordings."
IV. Jason Whitely requesting "( 1) any and all video recordings from a DPO investigation
regarding an incident with Mayor Pro Tern Dwaine Caraway at his residence at"
_, Dallas, Texas on or about January 2, 2011 ~ (2) Any and all audio
recordings from OPO investigation regarding an incident with Mayor Pro Tern
Dwaine Caraway at his residence at
Dallas, on or about January
2, 20 II; (3) Any and all ernails, letters, memos or other correspondence to or from
Chief David Brown or Deputy Chief Greg Miller regarding a OPD investigation of
Mayor Pro Tern Dwaine Caraway at his residence at
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
Dallas, on or about January 2, 2011."
Plaintiffs Original Petition for Declaratory Judgment and
Application/or Temporary Restraining Order and Temporary Injunction - Page 3
v. Steve Thompson requesting "all existing documentation of the Dallas police
investigation into an incident on Jan. 2, 20 II at
include, but not limited to, any notes taken by officers and pol icc."
VI. Scott Goldstein requesting "copies of all records pertaining to the investigation of the
below listed incident (1970- V), including but not limited to: incident reports,
affidavits, supplements, statements, lists, photographs, video recordings, audio
recordings, notes, transcripts and any other applicable material."
4.2 As evidence by the various requests listed above, Plaintiff is the subject of the requests under
the Texas Public Information Act.
4.3 Upon receipt of these requests, Dallas City Attorney timely submitted a request for a legal
opinion from the Attorney 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")
4.4 On March 1, 20 II, Attorney General issued an opinion (ORlO 11-02934) 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")
4.5 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, as it incorporates constitutional privacy. Specifically, the United
States Constitution protects individual privacy rights of an individual in avoiding the
Plaintiffs Original Petition for Declaratory Judgment and
Application/or Temporary Restraining Order and Temporary Injunction - Page 4
disclosure of personal matters to the public.
4.6 The Plaintiff believes the Attorney General incorrectly applied the law regarding the
4.7 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
NOTICE UNDER SECTION 552.325(0) OF THE PUOLIC INFORMATION ACT
5.1 Pursuant to Section 552.325(b) of the Public Information Act, in the course offiling this suit
against the Attorney 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;
Ill. 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
5.2 The notice will be provided to the requesters via certified mail, return 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.
ApPLICATION FOR TEMPORARY RESTRAINING ORDER AS TO DEFENDANT CITY OF DALLAS
Plaintiff's Original Petition for Declaratory Judgment and
Application/or Temporary Restraining Order and Temporary Injunction - Page 5
6.1 Plaintiffs' application for a temporary restraining order is authorized by Chapter 65 of the
Texas Civil Practice and Remedies Code.
6.2 Plaintiff asks 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 Plaintiffs claims.
6.3 It is probable that Plaintiff will prevail against the City of Dallas in this action seeking the
reversal of the Attorney General's opinion of March 1,2011.
6.4 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 if a temporary restraining order is not
issued is irreparable because once the material at issue has been disclosed to the public,
regardless of this Court's ultimate ruling, Plainti fT will have suffered irreparable harm which
cannot be undone.
6.5 Plaintiff's counsel has personally spoken with the City Attorney 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.
6.6 PlaintifThas no adequate remedy at law because his damages are incalculable and constitute
an invasion of Plaintiffs right to privacy.
6.7 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 Attorney General's opinion at any time.
6.8 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/or Dec/oratory Judgment and
Application/or Temporary Restraining Order and Temporary Injunction - Page 6
REQUEST FOR TEMPORARY INJUNCTION
7.1 Plaintiff asks the Court to set his application for temporary inj unction for a hearing and, after
the hearing, issue a temporary injunction against Defendant City of Dallas. Plaintiff has
joined all indispensable parties under Texas Rule of Civil Procedure 39.
8.1 For these reasons, Plaintiff asks that Defendants be cited to appear and answer and, on final
trial, that Plaintiff be awarded a judgment against Defendants for the following:
a. Temporary Restraining Order;
b. Temporary Injunction;
c. 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;
d. Reasonable and necessary attorney's fees and court costs; and
f. All other relief to which Plaintiff is entitled.
PA YMA, KUHNEL & SMITH, P.C. Midway Tower
4230 LBJ Freeway, Suite 121 Dallas, Texas 75244 (214) 999-0000 T
(214) III I F
State Bar No.: 24044902 ATTORNEYS FOR PLAINTIFF
Plaintiffs Original Petition for Declaratory Judgment and
Application/or Temporary Restraining Order and Temporary Injunction - Page 7
CERTIFICA n: OF SERVICE
I hereby 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 Attorney General of the State of Texas Office of The Attorney General
Open Record Division
P.O. Box 12548
Austin, Texas 78701-2548 Via CM.R.R.R.
Mr. Thomas Perkins City of Dallas
1500 Marilla Street, Room 7DN Dallas, Texas 75201
Via Hand Delivery
PlaintifFs Original Petition/or Dec/oratory Judgment and
Application/or 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 arc
within his personal knowledge and truce and correct.
SWORN TO AND SUBSCRIBED before me on this thc:="_ day of March, 201l.
city of Dallas
CERTIFIED MAIL NO. 7005 25700000 1578 2252 VIA FAX NO. (512) 46J.2092
January 21. 2011
Honorable Greg Abbott Attorney General of Texas 300 W. 15th Street
Clements B uilding, 12th floor P.O. Box 12548
Austin, Texas 78711
Re: Request for an Open Records Decision
Dear Attorney General Abbott:
Bye-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 Dallas ("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 552.101 of the Act which exempts from disclosure "information considered to be confidential by law, either constitutional. statutory, or by judicial decision." Section 552.101 of the Act protects from public disclosure information coming within the common law right of privacy. To be within the common law right of privacy. the information must (1) contain highly intimate or embarrassing facts about a person's private affairs such that its release would be highly objectionable to a reasonable person and (2) be of no legitimate concern 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 of 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.
January 21, 2011 Honorable Greg Abbott Page 2
If you have any questions regarding this matter. please contact me or Assistant City Attorney Michael Bostic at 214.67t).3519.
wARREN M. S. ERNST Chief of the General COWlSe1 Division
c: (with Exhibit A only)
Thomas P. Perkins.Tr., City Attorney Heather Silver, Assistant City Attorney Michael Bostic, Assistant City Attorney Jeri Carter. Public Information Office
Steve Thompson email@example.com
'The Act does not require a governmental body to release information that did not exist when a request for information was received Or [0 prepare new information in response to 8 request. Sec Econ. Opportunities ____ , _ __Qe:!_':...C;op: .v. Bustamante, 562 S. W,2d 266, 267-68 (Tex. Civ. App.-San Antonio 1978, writ dism'd); Open
Records Decision-Nos, 6bTalrrr992J.~52af3-(P)86);-362ar2~ 1983); , - .- - -- - _'-- - ._- .- --,- ., - ~
ATTORNEY GENERAL OF TEXAS GREG ABBOTT
Mr. Warrent M.~: Ernst
City of Dallas /
City Atlome/s Office
1500 Marilla Street, Room 7DN Dallas, rixas 75201
Dc!p.l Mr. Ernst:
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 10# 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.lOl 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
l'OST OH'Ct lIox 125"8. ,",UqlN. Tou 7P.711,25.S 'r[L;(51~H63-2100 WWW.lIA(;.n ... Tr..TX.U~
Mr. Warrent M.S. Ernst - 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 concern to the public. See Indus. Found. v. Tex. Indus. Accident Ed., 540 S. W.2d 668, 683-85 (Tex. ] 976). To demonstrate the applicability of common-law privacy, both prongs of this test must be established. Id. 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. Id. 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.uslopen/index orl.php, or call the Office of the Attorney 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 Attorney General, toll free at (888) 672-6787.
Leah B. Wingerson Assistant Attorney General Open Records Division
Ref: 10# 412760
Ene. Submitted documents
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