Filed 11 March 9 P1:06 Gary Fitzsimmons District Clerk Dallas District

CAUSE NO. 11-02497 DWAINE R. CARAWAY PLAINTIFF, V. GREG ABBOTT, ATTORNEY GENERAL OF TEXAS, AND CITY OF DALLAS, DEFENDANTS, AND THE DALLAS MORNING NEWS, INC. INTERVENOR. THE DALLAS MORNING NEWS, INC., CROSS-CLAIM PLAINTIFF, V. CITY OF DALLAS, CROSS-CLAIM DEFENDANT. DALLAS COUNTY, TEXAS IN THE DISTRICT COURT OF

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 abovereferenced 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 indicated below: Via CM/RRR 7160 3901 9848 6739 0058 and facsimile at (214) 999-1111 and Hand Delivery day of March, 2011, and served upon the following counsel as

Michael Payma Sammie Smith Payma, Kuhnel & Smith, P.C. Midway Tower 4230 LBJ Freeway, Suite 121 Dallas, TX 75244 Attorney for Plaintiff Dwaine R. Caraway

CM/RRR 7160 3901 9848 6739 0072 John P. Beauchamp and facsimile at (512) 320-0167 Assistant Attorney General, 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 Via CM/RRR 7160 3901 9848 6739 0065 and facsimile at (214) 670-0622

Thomas Perkins City Attorney 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

Sign up to vote on this title
UsefulNot useful