Agency not required to release Texas gov's travel info

Steve Korris Jul. 20, 2011, 9:15am


AUSTIN, Texas (Legal Newsline) - Newspapers might expose Gov. Rick Perry to physical harm if they track his travels too closely, the Supreme Court of Texas ruled on July 1.

Five justices found the Department of Public Safety can conceal information in Perry's vouchers, like the number of guards protecting him on trips.

"Because the past is prologue, at least when it reveals protocol DPS has implemented for ensuring the safety of government officials, we cannot agree that the information from prior trips could not be used to inflict future harm," Chief Justice Wallace Jefferson wrote.

Rather than decide which parts of the vouchers belong to the public, the justices ordered Travis County District Judge Scott Jenkins to reach a decision by holding trial.

Jenkins previously held a bench trial and ruled that the Austin American-Statesmen, the San Antonio Express-News, and the Houston Chronicle could see every detail.

Jefferson advised Jenkins that, "A certain amount of deference must be afforded DPS officers and other law enforcement experts about the probability of harm, although vague assertions of risk will not carry the day."

He wrote, "But the public's right to complete information must yield when disclosure of that information would substantially threaten physical harm."

Justices Nathan Hecht, Paul Green, Eva Guzman and Debra Lehrmann joined him.

Justices Dale Wainwright and Phil Johnson concurred in remanding the case for a new trial, but they deplored the rest of the majority's decision.

Wainwright wrote, "Because the Court's rule opens the door to new judicially created exceptions to disclosure of core public information and weakens what was one of the strongest, most robust freedom of information statutes in the nation, I respectfully cannot join the Court's opinion."

He endorsed a new trial because he felt Jenkins should consider allowing an exception to disclosure under the Homeland Security Act.

Justices David Medina and Don Willett did not participate.

When the reporters first asked for Perry's vouchers, the Department of Public Safety offered lump sums for air fare, lodging, meals and car rentals.

The reporters rejected lump sums, and the department asked Attorney General Greg Abbott for an opinion.

He determined that release would put Perry in imminent threat of physical harm, and he granted a privacy exception under common law.

Cox Texas Newspapers and Hearst Newspapers, publishers of the dailies, sued the Department of Public Safety to compel disclosure.

Jenkins found disclosure wouldn't put anyone in imminent threat of physical danger or create a substantial risk of bodily harm from a likely threat.

Third District appellate judges in Austin affirmed his decision.

At the Supreme Court, however, the department argued that details would reveal travel patterns, numbers and placement of officers, and timing of their advance visits.

The department pleaded that ensuring physical safety is the primary concern of every government, and most Justices agreed.

Jefferson found the appellate court decision understandable, given that Abbott granted a privacy exception.

"But freedom from physical harm is an independent interest protected under law, untethered to the right of privacy," he wrote.

"We have characterized privacy as the right of an individual to be left alone, to live a life of seclusion, to be free from unwarranted publicity," he wrote.

"By contrast, the common law right to be free from physical harm is an interest in personal integrity, distinct from that covered by the privacy interest," he wrote.

"It is integral to a civil society," he wrote.

Abbott and nine assistants represented the department.

William Christian represented Cox Texas Newspapers.

The docket lists Hearst Newspapers as a party but names no one as counsel.

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