Professional Documents
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11 March 9 P1:06
Gary Fitzsimmons
District Clerk
Dallas District
CAUSE NO. 11-02497
V.
AND
V.
CITY OF DALLAS,
CROSS-CLAIM DEFENDANT. 68TH JUDICIAL DISTRICT
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"),
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
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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."
for information similar to that requested by The News (the "Additional Requests").
responsive to The News Requests and the Additional Requests from the City of Dallas and
General on behalf of The News demonstrating that the public interest overcomes any asserted
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.
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.
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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
Specifically, the City of Dallas contended that the common law right of privacy protected the
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
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
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
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
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.
constitutional privacy, Mr. Caraway cannot meet his high burden of proof to show the
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.
17. The City of Dallas is withholding information responsive to The News Requests in
responsive to The News Requests is public information under the TPIA that must be disclosed.
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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
VI.
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
VIII.
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.
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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
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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:
Paul C. Watler
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