The News-Journal filed a complaint with the Attorney General’s Office on Monday morning about Upshur County Sheriff Larry Webb’s handling of a request for a high-profile offense report earlier this month.
Late Monday afternoon, the newspaper received a certified letter, dated Dec. 12, from Webb saying he will send information in an assault complaint against District Clerk Karen Bunn to the Attorney General’s Office seeking verification that it can withhold part of the Nov. 14 offense report.
The report, by courthouse maintenance crew member Ricky Freeman, accuses Bunn of assault on a public servant, a third-degree felony.
Both Freeman and Bunn have declined to comment on the investigation. As of last week, Bunn said she’d not been formally told of any charges pending against her.
The News-Journal requested a copy of Freeman’s complaint Nov. 30, and the sheriff’s response withholding a major portion of that report arrived by mail last week on department letterhead dated Dec. 6.
It cited the “ongoing investigation” exception to the Texas Public Information Act, in withholding the part of the report describing what Freeman is accusing Bunn of doing.
That exception allows law enforcement to keep some information from the public.
However, state open records law requires a governmental entity to send information it plans to withhold to the Attorney General’s Office. Legal staff in Austin go through the information and make a final determination on what the agency can and can’t make public.
“The thing that caught my eye is an entity like that saying they can just decide to withhold the information,” Kelley Shannon, executive director of the Freedom of Information Foundation of Texas, said Monday. “Agencies have to ask permission (to withhold). This is becoming a problem. We’re seeing this in a few instances, and it’s basically government agencies thumbing their nose at the law.”
Webb’s certified letter indicates his office has complied with the law.
“I believe it is in the public interest to demonstrate that we take our responsibility to the public seriously,” Webb wrote the newspaper reporter who requested the report. “Therefore, we will submit your request related to (the offense report) to the Attorney General’s Office for opinion ...”
Typically, law enforcement enjoys very wide discretion when citing the “ongoing investigation” exception. The government agency has to claim it within 10 days of receiving the request and notify the requester it is withholding some information pending the attorney general’s determination.
A 1976 opinion by then-Attorney General John Hill says the front page of offense reports is an open record. It also says that front page should include “detailed description of offense.”
Webb did not respond to a text Monday morning informing him of the newspaper’s complaint and offering to take any comment he has.
Shannon, whose nonprofit foundation promotes open government, said she had forwarded a News-Journal article reporting the assault charge and Webb’s response to the paper’s open records request to the Attorney General’s Office. She said she’d learned someone from the AG’s office had contacted Upshur County.
She said she had relayed statements by Webb and Chief Deputy David Hazel, that the AG’s training they’d received taught them to withhold documents they wish to withhold under the ongoing probe exception without first sending the information to Austin.
“That is not how the AG’s office conducts its training,” Shannon said. “Sounds like we got the attention of the AG’s office.”
A foundation board member later confirmed that Assistant Attorney General Justin Gordon had called Webb’s office Monday morning.
“They explained that they reconsidered their earlier determination that a ruling was not required and have already submitted a ruling request to our office,” Gordon wrote FOI Board member Chris Cobler. “I did confirm that they are not permitted to withhold information ... unless they request a determination from our office.”
The sheriff’s certified mail, dated Dec. 12, confirms part of that.
“I am confident that we have presented all required public information in relation to your open records request in this matter,” Webb wrote. “And I anticipate the Attorney General’s Office will concur. This case status may change in time, and that change in status may or may not result in further information being released, depending on its outcome and applicable law.”