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Hays Co DA Confirms City of Kyle Violated Open Records Act
Under the Texas Public Information Act (TPIA) anyone can file an open records complaint with a local District or County Attorney. Texas Government Code 552.3215 identifies a “complainant” to be a victim.
In order for a complaint, per 552.3215(e), to be valid it must:
- be in writing and signed by the complainant;
- state the name of the government body that allegedly committed the violation, as accurately as can be done by the complainant;
- state the time and place of the alleged commission of the violation, as definitely as can be done by the complainant; and
- in general terms, describe the violation.
Once the complaint is provided to the local prosecutor, the government office must accept the complaint and file it. This is a legislative requirement. The local prosecutor must determine if a violation occurred and if the office will take an action.
If the local prosecutors decide not to act then the victim can request the Texas Attorney General’s Office act on the complaint.
Statutes to Consider When Violation of the Open Records Act Occurs Through Withholding
There are more than a couple statutes to consider when violations of the open records act occurs. Generally, the complaint to the local prosecutor is for injunction relief, but that does not mean the complaint does not have merit for other violations of law.
The Open Records Act has a few of its own laws. Some are even considered acts of “official misconduct.” Under Texas Code of Criminal Procedures, this is defined as an offense that is an intentional or knowing violation of law committed by a public servant while acting in an official capacity as a public servant.
Texas Government Code 552.353 states: an officer for public information, or the officer’s agent, commits an offense if, with criminal negligence, the officer or the officer’s agent fails or refuses to give access to, or to permit or provide copying of, public information to a requestor as provided by this chapter.
There are other laws to consider; as well. For instance, Texas Penal Code 39.02, Abuse of Official Capacity states the following: a public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly: violates a law relating to the public servant’s office or employment; or misuses government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant’s custody or possession by virtue of the public servant’s office or employment.
Texas Penal Code 37.10, Tampering with Government Records states: a person commits an offense if he intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record.
This Is Not a Usual Attempt to Withhold Records
Under the context and history towards this particular requester, one may feel as though he was being retaliated against for his attempt to file complaints with the City of Kyle. This means that a complaint of Texas Penal Code 36.06, Obstruction or Retaliation may be a viable consideration by the local prosecutor. The statute states: a person commits an offense if the person intentionally or knowingly harms or threatens to harm another by an unlawful act: in retaliation for or on account of the service or status of another as a person who has reported or who the actor knows intends to report the occurrence of a crime; or to prevent or delay the service of another as a person who has reported or who the actor knows intends to report the occurrence of a crime.
In this scenario, the person has continuously attempted to report a crime to the City of Kyle. All of which was never investigated by the City of Kyle. Rather, the City of Kyle allowed its prior City Manager to resign after an internal investigation. There was never any mention of the external complaint filed. What did happen was a cover up by the City of Kyle which resulted in a malicious prosecution attempt by a different local attorney’s office. Thus, was the reason for requesting the records sought; as the records were created through false means to subject a citizen to the rigors of prosecution in a case it knew it could never win. Ultimately to cover up improper actions of the City of Kyle.
That malicious prosecution attempt is pending a lawsuit filing due before the end of January 2024.
DA’s Office Confirms Violation of Open Records Act
I am the Assistant District Attorney handling your complaint. This is regarding the re-assertion of your complaint regarding Kyle Police Department (the “department”) not complying with OR2022-14159 by failing to release some of the requested information. We, as before, have determined the violation did occur, and the department did not comply with OR2022-14159. However, because the department timely cured the violation by releasing the documents to you, we have also determined we will not pursue an injunction for said violation.e-Mail Dated May 5, 2023, from a Hays County Assistant District Attorney
So, what makes this unique? Interesting enough, the request was for the original police report used by the City of Kyle to ruin the requesters employment at various locations. The Texas Attorney General’s Office required the release of this false document on May 17, 2022. On October 26, 2022, the City of Kyle stated the following:
The City has reviewed its files and has located responsive records to your request and is releasing the documents identified by the Attorney General as public. Please log in to the Records Center at the following link to the appropriate response.
On March 10, 2023, the victim filed a complaint with the Hays County District Attorney’s Office because he did not receive this falsified record that was ordered release since May 2022. There were numerous attempts to contact the City of Kyle to release the record. It failed to do such, so the requester made a new open records request to obtain it and an additional document after filing a complaint with the Hays County District Attorney’s Office. During the new request, the City of Kyle knowing it would not look good to have a new complaint filed with the Texas Attorney General’s Office under the circumstances, released the record in the new request.
Second Complaint Deemed Valid by Hays Co DA’s Office
The victim also received response from the Hays County District Attorney’s Office on the subsequent complaint.
I am the Assistant District Attorney handling your complaint regarding the City of Kyle (the “city”) where you allege the city did not release an Air Force Office of Special Investigation report (the “report”). For reference, it appears the city’s internal reference number is W013874-030123.
We have been unable to determine whether the violation alleged in the complaint was committed; it is not clear if the report was released, or if the report existed and was in the possession of the city at the time of your request. Regardless, we have decided not to pursue an injunction against the city as, after speaking with the city’s counsel, they have found a report that seems to be the document you are looking for and have agreed to release it to you.
If you do not receive the document in 30 days, please reach out directly to me and we can re-address the issue.e-Mail Dated May 5, 2023, from a Hays County Assistant District Attorney
The report referenced in the subsequent request shows falsified statements in the City of Kyle’s main report. Over the course of many years, since before October 1, 2018, through present, the City of Kyle has involved themselves in improper actions leading to infringement of freedoms. All of which lead to the Hays County District Attorney’s Office to recuse itself from a falsified case by the City of Kyle.
The new prosecutors, Travis County Attorney’s Office, elected to attempt a malicious prosecution scheme which failed and now they are subject to a pending lawsuit. However, the City of Kyle has yet to perform its duty and take a citizens complaint. The duty of the City Manager, per municipal ordinance. The duty the prior City Manager neglected and the City Council failed to assure.
We will provide more on the records sought, why they were sought, and the chilling effect the City of Kyle is producing over improper actions on salary dollars of the city.
A Couple of Our Other Reads
You may be interested in learning about how many disciplinary actions the City of Kyle took on police officers in 2021.
Or you may find our story on the City of Kyle’s prior City Manager and the internal complaint made on him.
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