HD 40: Why Has The Mission Police Department Not Properly Responded To Requests For Eddie Saenz’s DWI Video Tape?

There is an interesting behind-the-scenes development in the House District 40 race between State Rep. Aaron Pena (D-Edinburg) and Eddie Saenz (D-Edinburg). However, it’s one that doesn’t directly involve either of the two candidates. It, in fact, involves a Brownsville blogger and the city of Mission’s police department. And, it’s quite interesting, especially from an open government perspective.

Capitol Annex has obtained a letter from a Brownsville blogger to the city of Mission concerning a public information request the blogger made for various documents and a video tape related to Saenz’s arrest last year on charges of Driving While Intoxicated. It is our understanding that, although the blogger in question received documents responsive to the request, he did not receive video tapes of Saenz’s actual stop or any other subsequent interrogation which would have been videotaped.

This case is disconcerting for a couple of reasons.

First and foremost, in his letter, the blogger references that the police officer who arrested Saenz has been subject to “retaliation.” Capitol Annex has learned that the police officer’s union or employee’s association representing Mission PD officers is aware of this and that some sort of complaint or grievance has been filed.

Second, if the Mission PD since the Mission PD didn’t furnish the tape in question to the blogger who requested it, they have a couple of duties under the Texas Public Information Act which it appears they did not complete. If Mission PD desired to withhold the tape, they are required to notify the Texas Attorney General’s office that they believe the information is excepted from disclosure under the Texas Public Information Act and send the information they desire to keep secret, along with a letter stating their reasoning, to the AG–and to notify the person requesting the information that they have done so, pursuant to Texas Government Code, Section 552.301. In this particular case, it is possible that the Mission Police Department would have a valid exception to claim before the AG. Section 552.108 of the Texas Government Code provides that certain material may be excepted from disclosure if its disclosure would unduly hinder an ongoing criminal investigation or prosecution. While it is unclear how the AG would rule on this particular request–had it ever been made–it isn’t a decision the Mission PD can make on its own or in a vacuum. While I don’t think that releasing the video would particularly hinder prosecution, the exception was, at minimum, out there for the Mission PD to claim.

The most interesting thing about this is that, as a result of the Mission PD’s failure to seek an AG’s opinion on this matter in a timely or proper fashion, the tape of Eddie Saenz’ DWI arrest is now a de facto public record under Texas law, per Section 552.302 of the Texas Government Code:

§ 552.302. FAILURE TO MAKE TIMELY REQUEST FOR ATTORNEY GENERAL DECISION; PRESUMPTION THAT INFORMATION IS PUBLIC. If a governmental body does not request an attorney general decision as provided by Section 552.301 and provide the requestor with the information required by Sections 552.301(d) and (e-1), the information requested in writing is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information.

It is my understanding that, in the case of a “compelling reason” to withhold the information, the government body still has to go to the AG or to court to prevent disclosure once they have shot themselves in the foot on the statutory time-line.

The big question now is, “what happens next?” We’re in the process of obtaining more information on the allegations that the officer who arrested Saenz was subject to retaliation and will be doing some additional digging to determine what the situation is with regard to the tape in question.

What this case really needs is attention from the MainStreamMedia. Not because, necessarily, it involves a candidate (although that is without question newsworthy in and of itself) but because a city police department is evidently violating public information laws with impunity and, to date, getting away with it.