Investigations and Surveillance of Black Lives Matter

Texas Department of Public Safety
Public Information Request Coordinator
P.O. Box 4087
Austin, Texas 78773

NOTICE: Please read this request carefully. Failure to comply with the Texas Public Information Act, including improperly withholding or redacting information without proper justification, may result in litigation, including but not limited to an Article 78 proceeding to compel compliance.

Subject: Texas Public Information Act Request – Investigations and Surveillance of Black Lives Matter

Dear Public Information Officer,

Pursuant to the Texas Public Information Act (Chapter 552 of the Government Code), I am writing to request access to specific records held by the Texas Department of Public Safety (DPS) related to the investigation and surveillance of the organization known as Black Lives Matter (BLM) and its local chapters (e.g., BLM Houston, BLM Dallas, BLM Austin) from January 1, 2015, to December 31, 2021.

Requested Information:

1. Investigation Records:
• Dates and brief descriptions of the last three instances where BLM or its local chapters were investigated or surveilled by the DPS.
• Copies of investigation reports, including initial reports, progress reports, and final reports.
2. Contextual Documents:
• Internal memos, emails, and other communications (including attachments) related to the initiation, conduct, and conclusion of the investigations.
• Documents detailing the purpose of the investigations, the methodologies used, and the findings of each investigation.
• Meeting notes or summaries from any internal meetings where these investigations were discussed.
3. Public Safety Assessments:
• Assessments or analyses discussing the public safety implications of these investigations.
• Risk assessments or threat evaluations that were conducted as part of or in conjunction with these investigations.
4. Policies and Procedures:
• Copies of any policies, guidelines, or procedures related to the surveillance or investigation of BLM or related groups.
• Training materials or manuals used by DPS personnel in conducting such investigations.
5. Interagency Communications:
• Correspondence between DPS and other law enforcement agencies (local, state, or federal) regarding the investigation or surveillance of BLM.
• Records of any interagency meetings or collaborations related to these investigations.
6. Electronic Communications:
• Emails, text messages, and other forms of electronic communication from January 1, 2015, to December 31, 2021, that include any of the following keywords: “Black Lives Matter,” “BLM,” “BLM Houston,” “BLM Dallas,” “BLM Austin,” “protest,” “demonstration,” “rally,” “activist,” “surveillance,” “investigation.”
7. Previous Request Communications:
• All records of email communications, internal memos, notes, and any other correspondence related to my previous Texas Public Information Act request (PIR# 23-1052, Tracking #2023-24018), which sought documents related to the surveillance or investigation of Black Lives Matter and related groups. This includes any communications between the DPS and other entities concerning the processing, handling, or response to this request.

Addressing Common Exceptions:
I am aware that DPS has previously cited sections 552.101 and 552.108 of the Government Code, as well as section 418.177 of the Texas Homeland Security Act (HSA), as grounds for withholding information. However, these exceptions do not universally apply to the requested information:

• Section 552.101 and 418.177: Section 418.177 pertains specifically to information related to the prevention, detection, or investigation of terrorism or related criminal activity. General law enforcement investigations that do not directly pertain to terrorism do not fall under this provision. The case Texas Department of Public Safety v. Cox Texas Newspapers, LP, 304 S.W.3d 191 (Tex. App. – Austin 2009), clarified that the public’s right to transparency outweighs broad claims of confidentiality under general security concerns.
• Section 552.108: This section is intended to protect information related to ongoing law enforcement proceedings or internal records used for law enforcement purposes. In City of Dallas v. Abbott, 304 S.W.3d 380 (Tex. 2010), it was clarified that unless the release of information would interfere with law enforcement or prosecution, the information should be disclosed. Additionally, the peaceful nature of BLM activities typically does not warrant withholding information under this provision.

Furthermore, as established in Dallas Morning News v. City of Dallas, 281 S.W.3d 708 (Tex. App. – Dallas 2009), a government entity cannot withhold requested information unless it can demonstrate that the information falls within a specific exception under the Texas Public Information Act. Any attempt to withhold, redact, or delete responsive records or documents must be accompanied by a specific and detailed justification for each exemption relied upon.

If any part of the requested information is considered exempt, I request a written explanation specifying the legal grounds for each redaction or withholding, including references to the specific statutory provisions that justify the exemption.

Fee Waiver Request:
In accordance with the Texas Public Information Act, I request a waiver of all fees associated with this request. The disclosure of the requested information is in the public interest as it is likely to contribute significantly to public understanding of government operations and activities and is not primarily in my commercial interest.

This request is for the sake of public transparency and is not for commercial purposes. Should there be any fees associated with this request, despite the waiver request, please inform me of the total charges in advance. I would prefer the request to be fulfilled electronically via email, but I am also open to receiving the information in other formats if necessary.

Thank you for your attention to this matter. I look forward to your prompt response within the 10 business days required by statute.

Sincerely,

Jordan Lassiter

July 2, 2024

To Whom It May Concern,

Re: Appeal of Public Information Act Request Denial; OR2023-24018; ID# 070720 (PIR# 23-1052)

I am writing to formally appeal the denial of my Public Information Act request. I respectfully request a review of the decision, with specific reference to each point of denial and the applicable legal precedents. The information requested pertains to investigations or surveillance related to specified keywords. The Texas Department of Public Safety has claimed exemptions under sections 552.101 and 552.108 of the Government Code.

Failure to Meet Statutory Deadlines

Initially, it is acknowledged that the Department failed to meet the statutory deadlines as imposed by section 552.301 of the Government Code. The failure to comply with these procedural requirements results in a presumption that the information is public unless there is a compelling reason to withhold it (Gov’t Code § 552.302; Simmons v. Kuzmich, 166 S.W.3d 342, 350 (Tex. App.—Fort Worth 2005, no pet.); Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.—Austin 1990, no writ)).

Despite the department’s claim of exceptions, the compelling reasons to withhold must be more than procedural failures.

Section 552.101 and the Homeland Security Act

The denial letter invokes section 552.101 in conjunction with section 418.177 of the Texas Homeland Security Act (HSA). To withhold information under section 418.177, it must be shown that the information:

1. Is collected, assembled, or maintained by or for a governmental entity for the purpose of preventing, detecting, or investigating an act of terrorism or related criminal activity.
2. Relates to an assessment of the risk or vulnerability of persons or property, including critical infrastructure, to an act of terrorism or related criminal activity.

Legal Argument Against Withholding

1. Burden of Proof:
• Open Records Decision No. 649 at 3 (1996) states that merely reciting the statute’s key terms does not demonstrate applicability. The governmental body must explain adequately how the records fall within the claimed exception (Gov’t Code § 552.301(e)(1)(A)).
• In Abbott v. Texas Dep’t of Transp., 335 S.W.3d 226, 235 (Tex. App.—Austin 2010, no pet.), it was held that the burden is on the governmental body to establish how the information meets the criteria for the exception.
2. Presumption of Openness:
• Given the procedural failure to meet deadlines, the information is presumed public. The presumption must be overcome by a compelling reason (Gov’t Code § 552.302).
• City of Garland v. Dallas Morning News, 22 S.W.3d 351, 357 (Tex. 2000), reiterates that the governmental body must provide clear and convincing evidence to overcome the presumption of openness.
3. Insufficient Justification:
• The explanation that the documents are “assessments produced by the [department] of threats facing persons and property from acts of terrorism and related criminal activity” is not sufficient. The argument lacks specificity and fails to establish how the release would indeed harm public safety beyond speculative assertions (City of Dallas v. Abbott, 304 S.W.3d 380, 387 (Tex. 2010)).
• In Industrial Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 668, 678 (Tex. 1976), the court noted that exceptions to disclosure must be construed narrowly.

Section 552.108 - Law Enforcement Exception

The Department also cited section 552.108. To withhold information under section 552.108, it must be shown that the release of the information would:

1. Interfere with the detection, investigation, or prosecution of crime.
2. Cause substantial harm to the law enforcement agency’s operations.

Legal Argument Against Withholding

1. Interference with Law Enforcement:
• The governmental body must demonstrate how the release of the information would interfere with law enforcement activities. General assertions are not sufficient (Ex parte Pruitt, 551 S.W.2d 706, 710 (Tex. 1977)).
• In Cox Texas Newspapers, L.P. v. City of Austin, 343 S.W.3d 112, 119 (Tex. 2011), the court emphasized that the governmental body must provide specific factual evidence that the release would interfere with law enforcement.
2. Substantial Harm to Operations:
• The Department must show substantial harm, not speculative or minimal harm, to its operations (Texas Dep’t of Pub. Safety v. Cox Texas Newspapers, L.P., 343 S.W.3d 112, 120 (Tex. 2011)).
• Katz v. United States, 389 U.S. 347, 351 (1967), underscores the need for a clear link between the release of information and the alleged harm.

Request for Clarification

While the Department sought and received clarification on the request, extending the deadline, the fundamental failure to meet initial statutory requirements remains problematic. Therefore, the ruling under City of Dallas v. Abbott must consider the actual procedural context.

Conclusion

Based on the analysis provided, I respectfully request that the Department re-evaluate its position on withholding the requested information. The procedural failures and insufficiently justified exceptions do not meet the legal standards required to withhold information presumed public.

I await your prompt response on this matter. Should you need any additional information or further clarification, please do not hesitate to contact me.

Sincerely,

Jordan Lassiter

October 14, 2024

Texas Department of Public Safety
P.O. Box 4087
Austin, TX 78773-0001

Subject: Follow-Up on Texas Public Information Act Request #P003738-061624 and Appeal

Dear Public Information Officer,

I am writing to follow up on my Texas Public Information Act (TPIA) request (#P003738-061624), initially submitted on June 16, 2024, and my formal appeal filed on July 2, 2024. As of today, I have not received a substantive response to either my request or the subsequent appeal. This continued delay is a violation of statutory obligations and established case law.

Pursuant to Section 552.301 of the Texas Government Code, the Texas Department of Public Safety (DPS) is required to respond to public information requests within ten business days or seek an opinion from the Attorney General’s Office to withhold information. Moreover, my appeal, which challenges the use of Sections 552.101 and 552.108 as a basis for withholding information, remains unanswered.

Judicial precedent reinforces the need for timely responses and transparency:

1. Texas Department of Public Safety v. Cox Texas Newspapers, L.P., 343 S.W.3d 112 (Tex. 2011): The Texas Supreme Court emphasized that failure to comply with statutory deadlines may result in the waiver of an agency’s right to withhold information. The court stressed the importance of adhering to the deadlines outlined in the TPIA to preserve the public’s right to access government records.
2. City of Dallas v. Abbott, 304 S.W.3d 380 (Tex. 2010): This case reiterates that the TPIA imposes strict deadlines on governmental bodies and underscores the significance of transparency. When these deadlines are not met, agencies lose the ability to claim exceptions under the law.
3. Kallinen v. City of Houston, 462 S.W.3d 25 (Tex. 2015): The Texas Supreme Court clarified that delays and noncompliance with the TPIA’s procedural requirements can subject an agency to legal action, including the issuance of a writ of mandamus to compel compliance.
4. Dallas Morning News v. City of Dallas, 281 S.W.3d 708 (Tex. App. 2009): This case demonstrates the courts’ willingness to enforce compliance with TPIA requests, further underscoring that continued nonresponse and delay may result in legal consequences, including court-ordered disclosures and potential penalties.
5. Open Records Decision No. 664 (2000): The Attorney General’s Office affirmed that governmental bodies are required to respond to public information requests within the statutory timeline and must provide specific justifications for any delay or denial. Failure to do so constitutes a violation of the TPIA.

Given the continued lack of response, I am now prepared to pursue legal remedies, including filing a lawsuit or seeking a writ of mandamus to enforce the disclosure of the requested records. As outlined in Texas Government Code Section 552.321, such an action may be necessary when a governmental body refuses to provide access to public information or fails to follow the procedural rules of the TPIA.

This letter serves as a final notice and request for compliance. If no response is received within the next five business days, I will proceed with initiating litigation to enforce my rights under the TPIA.

Thank you for your attention to this matter.

Sincerely,
Jordan Lassiter