For TX District and County Attorneys Who Got An ACLU Open Records Request

I don't usually do this, but it seems I need to take a moment on this blog to handle some official ACLU of Texas work stuff -- apparently a lot of county-level officials have been coming to Grits looking for information about an open records request I filed with them on behalf of ACLU of Texas. Just to keep from answering 300+ separate emails and phone messages, I thought I'd clarify the request here.

Here's the deal: Regular readers know I supported a new statute last year on behalf of ACLU at the Texas Lege protecting the right of Texans to carry a firearm in their vehicle. The new law creates a presumption that drivers are "traveling" (and therefore legally carrying a weapon in their vehicle) unless one of five things is true: (a) the weapon is in plain view, (b) the defendant is a convicted felon, (c) it's a public, not a personal vehicle, (d) the defendant was committing a Class B misdemeanor or worse, or (e) the defendant is a gang-banger.

The bill author, state Rep. Terry Keel (R-Austin) who is running unopposed, now, in the GOP primary for the Texas Court of Criminal Appeals, thinks the meaning was clear: “In plain terms, a law-abiding person should not fear arrest if they are transporting a concealed pistol in a motor vehicle,” Keel said in a public statement when the bill became law in September.

But some DAs, most prominently Houston's Chuck Rosenthal, have said they won't change how they instruct officers to enforce that statute, telling police to rely on old case law rather than the new statutory language. That's why I sent out an open records request on behalf of ACLU to Texas' district and county attorneys asking for any advice, recommendations or other communications to law enforcement agencies in their jurisdiction about how to interpret the new statute. I know from media reports that at least some DAs, like Rosenthal, did issue such advice, and I'd like to quantify how many told local agencies in their jurisdictions to thwart Rep. Keel's stated legislative intent.

That said, Texas' open records law doesn't require DAs or county attorneys to create any new document if it doesn't already exist, only to provide ACLU (or any requestor) with copies of any advice, recommendation, information, etc., that's already been compiled. N.b. If no one in your agency prepared such information, then just write us a note letting us know you don't have any responsive documents in your possession. If you didn't write a policy but forwarded some news article, email, listserv note, Power Point presentation or other information for clarification of the law, then that would be the responsive document. Or, some DAs or CAs may have issued formal, written policies -- clearly that would be responsive, too.

This hopefully isn't a big deal, guys -- if you created or distributed such advice or information, send it along. But if you didn't, no big deal -- just let me know. Thanks a lot for your patience, and I'm sorry if the letter was unclear. A bunch of you seemed confused by it.

And now, back to the regularly scheduled blog programming already in progress ...

UPDATE: Who said prosecutors and the ACLU never agree? I forwarded this post to Shannon Edmonds, a lobbyist for the Texas District and County Attorneys Association, who replied, "we're telling those who ask the same thing as you put in your blog, with one exception: if an officer asks for written legal advice in a specific case (as opposed to a general policy), that comes under protected work product. But that fact pattern is very unlikely. Otherwise, they should give you a copy."

I'd agree with that caveat, and wouldn't contest an agency withholding advice given under that fact pattern (because it would fall under an allowable exception, specifically 552.108, which is the open-case-exception for law enforcement in the TX Public Information Act). If it wasn't advice requested in a specific case, though, it ought to be public. Thanks, Shannon!