You are on page 1of 8

Filed

11 March 9 P1:06
Gary Fitzsimmons
District Clerk
Dallas District
CAUSE NO. 11-02497

DWAINE R. CARAWAY IN THE DISTRICT COURT OF


PLAINTIFF,

V.

GREG ABBOTT, ATTORNEY GENERAL


OF TEXAS, AND CITY OF DALLAS,
DEFENDANTS,

AND

THE DALLAS MORNING NEWS, INC. DALLAS COUNTY, TEXAS


INTERVENOR.

THE DALLAS MORNING NEWS, INC.,


CROSS-CLAIM PLAINTIFF,

V.

CITY OF DALLAS,
CROSS-CLAIM DEFENDANT. 68TH JUDICIAL DISTRICT

PLEA IN INTERVENTION OF THE DALLAS MORNING NEWS, INC. AND


CROSS-CLAIM AGAINST THE CITY OF DALLAS

TO THE HONORABLE COURT:

The Dallas Morning News, Inc. d/b/a The Dallas Morning News intervenes in the above-

referenced cause to oppose the relief requested by Plaintiff Dwaine R. Caraway and to compel

disclosure of public information under the Texas Public Information Act (the "Act" or "TPIA"),

TEX. Gov'T CODE § 552.001, et seq.

GROUNDS FOR INTERVENTION AND CROSS CLAIM

l. Intervenor and Cross-Claim Plaintiff The Dallas Morn ng News, Inc. is a

Delaware corporation authorized to do business in Texas with its principal place of business in

Dallas County, Texas, and publishes a daily newspaper of general circulation, The Dallas

PLEA IN INTERVENTION OF THE DALLAS MORNING NEWS, INC. AND CROSS-CLAIM AGAINST
THE CITY OF DALLAS - Page 1
6056647v 1 131015/00001
Morning News ("The News"). The News is a "requestor" within the meaning of TPIA Section

552.003(6).

2. As the requestor of the information at issue, The News has a statutory right to

intervene in this suit, pursuant to Section 552.325(a) of the Act and a statutory right to seek a

writ of mandamus against the City of Dallas, pursuant to Section 552.321 of the Act.

IL

FACTUAL BACKGROUND

3. This lawsuit arises out of TPIA requests to the City of Dallas regarding an

incident that took place at the residence of then Mayor Pro Tem Dwaine Caraway and State

Representative Barbara Caraway on or about January 2, 2011, in which the Dallas police were

summoned and about which police made official reports and records. There is a legitimate

public concern regarding this incident and official records about it because it involves the actions

of two public officials and the response of the Dallas police department and chief.

4. The News, through its reporter and agent Steve Thompson, submitted a TPIA

request to the City of Dallas, seeking "all existing documentation of the Dallas police

investigation in an incident on Jan. 2, 2011 [at Mr. Caraway's residence]. These would include,

but not limited to, any notes taken by officers and police."

5. The News, through its reporter and agent Scott Goldstein, also requested from the

City of Dallas "copies of all 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." The requests by The News shall be collectively referred to as "The News Requests."

PLEA IN INTERVENTION OF THE DALLAS MORNING NE S, INC. AND CROSS-CLAIM AGAINST


THE CITY OF DALLAS - Page 2
6056647v.1 131015/00001
6. In addition to The News Requests, the City of Dallas received four other requests

for information similar to that requested by The News (the "Additional Requests").

7. The Attorney General received comments opposing release of information

responsive to The News Requests and the Additional Requests from the City of Dallas and

received comments from The News.

8. Reporter Steve Thompson of The News submitted comments to the Attorney

General on behalf of The News demonstrating that the public interest overcomes any asserted

privacy interest of Mr. Caraway:

The documents I have requested are clearly and absolutely of legitimate


concern to the public. Here's why:

First, they involve two public figures, the Mayor Pro Tem of Dallas,
Dwaine Caraway, and a state representative, Barbara Caraway. From the
beginning, Dwaine Caraway has handled this matter not as an ordinary
private citizen but as a public official. Rather than call 911 or the police
department, Dwaine Caraway called the police chief s cell phone directly.
That call prompted the chief to send, not ordinary officers, but an elite
team of special investigators. The details of what they found are
necessary for the public to determine whether the uses of power
surrounding this incident were appropriate.

Second, when asked about the incident by a newspaper reporter, Dwaine


Caraway (who is head of the City Council's public safety committee) gave
an account that directly contradicted that of police. Investigators reported
having responded to a marital dispute. Dwaine Caraway said the incident
had nothing to do with him or his wife, but rather involved a disturbance
between two of his friends, "Arthur and Archie." The public needs to
have details of the investigation to determine whether they should question
the honesty and integrity of their police department or that of one of their
elected officials.

Third, Dwaine Caraway used his stature as the mayor pro tem to obtain
public space and meeting time to discuss the incident. On Jan. 12,
Caraway requested and received several minutes during a Dallas City
Council meeting to give a statement about the incident. If the details of
this matter had not become of public concern before this point, they
certainly did so now, when Caraway used a public meeting to discuss it.

PLEA IN INTERVENTION OF THE DALLAS MORN NG NEWS, INC. AND CROSS-CLAIM AGAINST
THE CITY OF DALLAS - Page 3
6056647\ 1 131015/00001
Finally, I have reported on the City of Dallas for several years, and I have
never known city officials to withhold details of a police response or
investigation in order to protect ordinary private citizens from
embarrassment. That they seek to do so in this case, involving a matter
that an elected official by his own actions converted into a public
controversy, is only further evidence of why news gathering on this matter
should not be inhibited.

9. The City of Dallas incorrectly contended that the information was exempt from

disclosure pursuant to Section 552.101 of the Act, which excepts from disclosure "information

considered to be confidential by law, either constitutional, statutory, or by judicial decision."

Specifically, the City of Dallas contended that the common law right of privacy protected the

information sought in The News Requests. This contentious is without merit.

10. In ruling OR2011-02934, the Attorney General correctly rejected the City of

Dallas' arguments and ordered that all of the information made the subject of The News Requests

and the Additional Requests be released by the City of Dallas.

11. Mr. Caraway filed this suit, seeking a declaration from the Court that the

information requested in The News Requests and Additional Requests are excepted from

disclosure under the TPIA and seeking a temporary restraining order and temporary injunction to

prevent the release of such information.

THE REQUESTED INFORMATION IS PUBLIC INFORMATION

12. The News agrees with the Attorney General that the information requested by The

News, which the Attorney General has ordered to be released, constitutes "public information"

within the meaning of the Act without exception. In particular, the public interest outweighs any

claimed privacy or other personal interest in non-disclosure by Mr. Caraway.

PLEA IN INTERVENTION OF THE DALLAS MORNING NE S, INC. AND CROSS-CLAIM AGAINST


THE CITY OF DALLAS - Page 4
6056647v.1 131015/00001

13. Mr. Caraway alleges two bases for withholding the information that the Attorney

General has ordered to be disclosed: (1) that the information is exempt as a matter of law, either

constitutional, statutory or by judicial decision and common law rights of privacy, and (2) that

constitutional privacy protects the information from disclosure.

14. As to the public information that Mr. Caraway claims is exempt as a matter of

law, either constitutional, statutory or by judicial decision and common law rights of privacy,

Mr. Caraway cannot meet his high burden of proof to show the information is not of legitimate

public concern.

15. As to the public information that Mr. Caraway claims is protected by

constitutional privacy, Mr. Caraway cannot meet his high burden of proof to show the

information is protected by constitutional privacy.

IV.

GENERAL DENIAL

16. The News opposes Mr. Caraway's request for declaratory and injunctive relief.

To the extent necessary, The News enters a general denial pursuant to Rule 92 of the Texas Rules

of Civil Procedure.

V.

PETITION FOR WRIT OF MANDAMUS

17. The City of Dallas is withholding information responsive to The News Requests in

violation of the TPIA.

18. As the Attorney General announced in OR2011-02934, the information

responsive to The News Requests is public information under the TPIA that must be disclosed.

PLEA IN INTERVENTION OF THE DALLAS MORNING NEWS, INC. AND CROSS-CLAiM AGAINST
THE CITY OF DALLAS - Page 5
6056647v.1 131015/00001

19. Pursuant to Section 552.321 of the Act, The News is entitled to a writ of

mandamus compelling the City of Dallas to disclose all responsive information in accordance

with the Attorney General's Ruling OR2011-02934.

VI.

REQUEST FOR COSTS AND ATTORNEYS' FEES

20. The News seeks a determination that it is the prevailing party and accordingly, an

award of its costs and attorneys' fees against the City of Dallas pursuant to Section 552.323 of

the Act.

VII.

CONDITIONS PRECEDENT

21. Pursuant to Rule 54 of the Texas Rules of Civil Procedure, all conditions

precedent have been performed or have occurred.

VIII.

REQUEST FOR DISCLOSURES

22. Under Texas Rules of Civil Procedure 194, The News requests that Plaintiff

disclose, within 50 days of the service of this request, the information or material described by

Rule 194.2.

IX.

PRAYER

23. Upon final hearing, The News requests the Court enter a take-nothing judgment

denying any declaratory or injunctive relief requested by Plaintiff, and award The News its court

costs and reasonable and necessary attorneys' fees from Mr. Caraway.

PLEA IN INTERVENTION OF THE DALLAS MORNING NEWS, INC. AND CROSS-CLAIM AGAINST
THE CITY OF DALLAS - Page 6
6056647‘ 1 131015/00001
24. The News also prays that upon final hearing, the Court issue a writ of mandamus

compelling the City of Dallas to release information to The News in accordance with Attorney

General Ruling OR2011-02934, award The News its court costs and reasonable and necessary

attorneys' fees, and such other and further relief to which it may be entitled.

Respectfully submitted,

Paul-C. Watler
State Bar No. 20931600
Nicole R. Metcalf
State Bar No. 24056241

JACKSON WALKER, LLP


901 Main Street, Suite 6000
Dallas, Texas 75202
Telephone: (214) 953-6000
Facsimile: (214) 953-5822

ATTORNEYS FOR INTERVENOR AND


CROSS-PLAINTIFF THE DALLAS
MORNING NEWS, INC.

PLEA IN INTERVENTION OF THE DALLAS MORNING NEWS, INC. AND CROSS-CLAIM AGAINST
THE CITY OF DALLAS - Page 7
6056647v.1 131015/00001
CERTIFICATE OF SERVICE

This is to certify that, pursuant to Texas Rules of Civil Procedure, the foregoing has been

filed with the court on this day of March, 2011, and served upon the following counsel as

indicated below:

Michael Payma Via CM/RRR 7160 3901 9848 6739 0058


Sammie Smith and facsimile at (214) 999-1111
Payma, Kuhnel & Smith, P.C. and Hand Delivery
Midway Tower
4230 LBJ Freeway, Suite 121
Dallas, TX 75244
Attorney for Plaintiff Dwaine R. Caraway

John P. Beauchamp CM/RRR 7160 3901 9848 6739 0072


Assistant Attorney General, and facsimile at (512) 320-0167
Open Records Litigation
Environmental Protection and
Administrative Law Division
P.O. Box 12548, Capital Station
Austin, TX 78701-2548
Attorney for Greg Abbott, Attorney General of Texas

Thomas Perkins Via CM/RRR 7160 3901 9848 6739 0065


City Attorney and facsimile at (214) 670-0622
City of Dallas
1500 Marilla St., Room 7DN
Dallas, TX 75201
Attorney for the City of Dallas

Paul C. Watler

PLEA IN INTERVENTION OF THE DALLAS MORNING NEWS, INC. AND CROSS-CLAIM AGAINST
THE CITY OF DALLAS - Page 8
6056647‘.1 131015/00001