Originally Published by the Austin American-Statesman
In an unusual and head-spinning twist, prosecutors in the criminal case against Texas Attorney General Ken Paxton sued the attorney general’s office Thursday to block the release of sensitive case information that could hinder Paxton’s defense but that his own agency ordered to be turned over to a Texas newspaper.
Go ahead, read that sentence again.
The latest twist began Oct. 14 when The Dallas Morning News requested copies of thousands of pages of investigative records that prosecutors had provided to Paxton’s defense lawyers in preparation for a potential trial on allegations that Paxton broke state securities laws in private business deals in 2011 and 2012.
Prosecutors sent a same-day reply email denying the request, saying previous attorney general opinions had declared such information off limits under the Texas Public Information Act. They also sought an attorney general’s opinion on whether the records could be withheld — a step the law requires when requested government information is denied.
On Jan. 4, however, the attorney general’s Open Records Division sent a letter informing the prosecutors that they had failed to take a second step required by the law — submitting their legal reasons for denying the request, along with samples of the requested information so Open Records Division lawyers could verify whether it fell under the law’s exceptions to disclosure.
Because the law wasn’t followed, the requested information must be automatically released, the letter said, adding that the only step remaining to prosecutors is a lawsuit “if you believe the information is confidential.”
That lawsuit was filed in Travis County district court Thursday by Dave Feldman, a Houston lawyer that Paxton’s trial judge appointed to represent prosecutors Kent Schaffer, Brian Wice and Nicole DeBorde in the matter.
The prosecutors were appointed to Paxton’s case after Collin County District Attorney Greg Willis — a friend and former business partner of Paxton — stepped aside in April. They normally work as defense lawyers and aren’t accustomed to responding to open records requests.
“Talk about meeting yourself coming around the corner,” Feldman told the American-Statesman. “We’re having to sue the AG so we don’t have to disclose information adverse to the AG that we shouldn’t have to disclose under the law.”
According to attorney general’s office spokeswoman Cynthia Meyer, established screening procedures kept Paxton and other executive administrators from reviewing the request for an open records ruling in a case that involved Paxton. The review process was instead handled by the chairman of the agency’s opinion committee and the general counsel, she said.
Efforts to reach Paxton’s defense lawyers were unsuccessful Thursday night.
Feldman said defense lawyers and prosecutors have an interest in protecting the information from release to the news media. “Fundamentally, it comes down to the notion of a fair trial and avoiding pretrial publicity that might be prejudicial (to Paxton),” he said.
According to the lawsuit, the Public Information Act exempts from disclosure “information held by a … prosecutor that deals with the detection, investigation or prosecution of a crime.”
The mistake by prosecutors, the lawsuit said, shouldn’t result in the release of information that would violate Paxton’s privacy and property interests, including his right to an impartial trial. In addition, the prosecutors argued, releasing the information would violate state District Judge George Gallagher’s written order barring evidence in Paxton’s case from being provided to news organizations before it had been presented in court.
“Such disclosure would hinder ongoing prosecution of the underlying cases, be in direct violation of a court order and violate the privacy and property rights of Ken Paxton,” the lawsuit said.