Letter to TX AG Paxton re BodyCam Videos

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     Avi S. Adelman5620 East Side Avenue

    Dallas Texas 75214

    Telephone 214.923.3562 / Fax 214-292.9761 / [email protected]

    TO Texas Attorney General Ken Paxton

    Office of the Attorney GeneralPO Box 12548

    Austin, TX 78711-2548

    CC Dallas City Attorney’s Office

    Criminal Law and Police Section

    CC Mickey Osterreicher

    General Counsel, National Press Photographers Association

    Date July 1, 2015

    On June 29, 2015, the City Attorney’s office delivered to Correspondent a letter sent to

    your office on June 9, 2015 (attached), in re

    ORR# 2015-06160

    Requested Information: Body Cam Videos (BWC), 2 CDsRequest Date: April 13, 2015

    This letter asked for forgiveness for not submitting a request for approval to withhold

    the requested BWC video within the required 10 days from the date my request was

    submitted, and a request to withhold the requested BWC video.

    This letter was NOT presented to Correspondent until June 29, 2015, only after being told

    Correspondent was prepared to contact the Attorney General about the failure to deliver

    or reply to requests for BWC files. Note that the document does not include a Copied To(Correspondent) section at the end of the letter. 

    Section 552.302 provides:

    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

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    is presumed to be subject to required public disclosure and must be released

    unless there is a compelling reason to withhold the information.

    Correspondent petitions the Attorney General to postpone answering the City

    Attorney’s request until such time as consideration of this document has been

    completed. If the request has been answered, it should be declared null and voidpending a review of this submission.

    Correspondent also requests that the Attorney General seek legal action against the City

    of Dallas for purposely ignoring provisions of the Public Information Act by failing to

    include Correspondent on all documentation, and failing to submit the required

    documentation per the schedule outlined in the Act.

    On April 11, 2015, Correspondent submitted an Open Records Request to the Dallas

    Police Department (DPD) for copies of body-worn-camera (BWC) videos related to anincident on the Santa Fe Trail on March 27, 2015. A copy of that request is attached.

     

    On April 15, 2015, the DPD’s Open Records Office notified Correspondent that the

    requested files would not be available for at least 30 days.

      On May 23, 2015, Correspondent inquired about the status of the request. On

    May 26, 2015, DPD Open Records Office notified Correspondent the April 15

    email referred to 30 business days, not calendar days, and that the DPD was

    working hard to prepare the files.

     

    On Thursday, June 11, 2015, Correspondent was notified the files were ready to

    pick up, and they were comprised of five DVD disks.

      On Thursday, June 18,2015, Correspondent went to the DPD Open Records Office

    and was given five DVD disks to review.

     

    Upon review, it was determined the video files were dashcam recording systems

    installed in five different DPD vehicles which were at the scene of the incident.There was no BWC video in the package. DPD staff did not know why the BWC

    video was not included, and stated they would send a message to the DPD Central

    Division (where the incident took place) in an effort to locate the file.

      On June 22, 2015, Correspondent notified the DPD Open Records Office that –

    upon review of photographs from the incident and the dashcam videos – that

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    only one BWC video camera was observed on a DPD officer nicknamed Officer

    Mike, and that the second officer, T. Nguyen, was wearing a different device,

    possibly a pager or phone, on his uniform.

     

    On June 28, 2015, Correspondent notified DPD Open Records that he was setting

    a deadline of Close of Business on July 3, 2015, for the DPD to provide a WRITTENanswer as to where the BWC file was and when a copy will be delivered.

    The City’s June 9 letter asked your office for approval to withhold two BWC files due to

    the content, specifically, medical treatment provided to a DPD officer who had suffered

    a heart attack on the Santa Fe Trail.

    The City Attorney is aware that Correspondent’s request is not for the ‘medical’ portion

    of the video, but for that portion of the event (less than five minutes) that have nothing

    to do with the medical services provided, but instead, with illegal orders and actions byDPD officers directed at the Correspondent.

    The City Attorney is aware Correspondent has filed numerous complaints against many

    DPD officers who were present for their combined and individual efforts to violate the

    First Amendment rights of the Correspondent, a freelance photographer. A meeting

    with the Chief of the DPD division in which these officers work had been postponed due

    to timing issues. It has been postponed again due to this request to your office.

    The City Attorney is aware Correspondent only wants those portions of the video(s) in

    which a DPD officer only known as Officer Mike - and possibly another officer (based onthe request to withhold two CDs) – from their arrival through their departure from the

    scene.

    The City Attorney has reviewed the video(s) and is using the medical treatment as a

    pretext to shield what Correspondent believes are incriminating acts committed by the

    numerous DPD officers, something they do not want released.

    This includes illegal orders to the Correspondent to cease taking photographs,

    comments by other officers who either issued similar illegal orders or took physicalactions to prevent Correspondent from taking photographs, all of which are in violation

    of DPD General Orders and / or violations of Correspondent’s First Amendment rights.

    The City Attorney is aware anyone using Windows 7 Live Movie Maker can prepare a

    redacted tape of the events, deleting those portions of the file which document the

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    medical treatment, but leaving all recordings from the time Officer Mike and the other

    officers arrived on the scene up until their departures from the area.

    For example, attached is a transcript of comments by another officer at the scene,

    derived from dashcam video recordings off his portable radio. Officer Rugby (real name

    unknown) uses several obscenities to describe Correspondent, telling other officers hereally wanted to arrest Correspondent on any charge he could create, and takes specific

     physical action to prevent the Correspondent from taking photographs.

    Correspondent is asking the Attorney General to deny the City’s request to withhold the

    two referenced videos.

    Correspondent is asking the Attorney General to order the City to release a file with all

    medical procedures redacted, leaving intact all recordings from the time Officer Mike

    and other officers arrived on the scene up until their departures from the area.

    With best regards,

    Avi S. Adelman

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    In a FAQ (Frequently Asked Questions) document on the Texas Attorney General’s

    website regarding how the Open Records Request process should work, you will find the

    following outline:

    What procedures must be followed if a governmental body wishes to withhold

    information?

    Within ten business days of receiving a written request, the governmental body must:

     

    write the Attorney General, asking for a decision and state which exceptions apply

    to the requested information;

      provide the requestor with a written statement that the governmental body

    wishes to withhold the information and that it has asked the Attorney General for

    a decision;

      provide the requestor with a copy of the governmental body's correspondence to

    the Attorney General; and 

    make a good faith attempt to notify, in the form prescribed by the Attorney

    General, any affected third parties of the request.

    Within fifteen business days of receiving your request, the governmental body must:

     

    write the Attorney General and explain how the claimed exceptions apply;

      provide a copy of your written request to the Attorney General;

     

    provide a signed statement to the Attorney General stating the date the request

    was received by the governmental body or provide evidence sufficient to

    establish the date the request was received; and  provide copies of the documents requested or a representative sample of the

    documents to the Attorney General and the documents must be labeled to show

    which exceptions apply to which parts of the documents.

    Source: https://www.texasattorneygeneral.gov/open/og_faqs.shtml

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    According to the Texas Attorney General’s Public Information Handbook 2014 

    Section 552.302 of the Act provides:

    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 torequired public disclosure and must be released unless there is a compelling reason to

    withhold the information.

    Section 552.302 provides:

    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.

    Section 552.301(b)

    establishes a deadline of ten business days for the governmental body to request a

    decision from the attorney general and state the exceptions that apply.

    Subsection (d) of section 552.301

    requires that the governmental body notify the requestor within ten business days if it is

    seeking an attorney general decision as to whether the information may be withheld.

    Section 552.301(e)

    establishes a deadline of fifteen business days for the governmental body to provide the

    other materials required under that subsection to the attorney general.

    Subsection (e-1) of section 552.301

    requires that the governmental body copy the requestor on its written comments,

    within fifteen business days, redacting any portion of the comments that contains the

    substance of the information requested.

    Section 552.302

    provides that if the governmental body does not make a timely request for a decision,

    notify and copy the requestor, and make the requisite submissions to the attorney

    general as required by section 552.301, the requested information will be presumed to

    be open to the public, and only the demonstration of a “compelling reason” for

    withholding the information can overcome that presumption.

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     Avi S. Adelman5620 East Side Avenue Dallas, Texas 75214

    Telephone - 214.923.3562 Fax - 214.292.9761 Email - [email protected]

    April 11, 2015

    Dallas Police Department

    Open Records Division

    In accordance with the Texas Public Information Act, I make the following requests for

    information.

    Subject of Open Records Request

    On March 27, 2015, at approximately 4pm, a Dallas Police bicycle patrol of ficer suffered

    a heart attack while on the Santa Fe Trail near Henderson Avenue.

    A review of photographs of of ficers at the scene confirmed that many of them were

    wearing Body-Worn Cameras, issued by the Dallas Police Department.

    The attached photographs show at least two of ficers (names unknown) wearing these

    cameras. Correspondent does not know how many other of ficers at this incicdent were

    wearing body cameras.

    This request is for all video files generated during that incident, starting approximately at

    3:50pm and ending at approximately 4:15pm, by all of ficers involved in this incident.

    The information within these files primarily benefits the general public, especially in

    regards to an Internal Affairs investigation into the actions of these of ficers to preventCorrespondent from taking photographs of the incident. I am seeking a waiver of all

    charges incurred for this request.

    This request is made under the Texas Open Records Act, chapter 552 of the Government Code

    (formerly V.T.C.S. article 6252) as well as Article I, Sec. 8 of the Texas Constitution, the First

    Amendment to the United States Constitution, the common law of the State of Texas and any

    statue providing for public access to government information:

    I request I be sent copies of the following documents or, if there are a large number, be

     permitted to inspect the following documents and receive one copy of the ones I would like.If you have any questions about the nature or scope of this request, please call me at the

     phone number listed below. Should you determine that all or some portion of the information

    requested is excepted from required disclosure, I request that you provide me with the portions

    of the requested information that are public and reasonably segrable from that which you

     believe is excepted. If any records are in active use or in storage, please certify this fact in

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    writing and set a date and hour within a reasonable time when the records will be available, as

    required by section 552.221 of the Act.

    If you determine that all or some portion of the information requested is excepted from required

     public disclosure under a particular exception, I request that you advise me as to which

    exceptions you believe apply. If you rely on previous determination, please advise me of the

    applicable court decision or Attorney General’s opinion.

    If there is no such determination, please advise me of the request for such an opinion, as

    required under section 552.301 of the Act, and a dated copy of your letter to the Attorney

    General. I call your attention to section 522.353 of the Act, which provides penalties for a

    failure to release public records.

    I am prepared to pay reasonable costs for copying, within the guidelines set by sections

    552.261, 552.262, 552.263, 552.267, 552.268, 552.269.

    As an alternative to condensing or compiling information to the specific pieces requested, the

    City may provide me copies or access to documents (“raw documents”) which contain the

    information requested. If you have any questions, I can be reached by telephone at the number

     below.

    Thank you for your timeliness and I await your response.

    Sincerely,

    Avi S. Adelman

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     Avi S. Adelman5620 East Side Avenue Dallas, Texas 75214

    Telephone - 214.923.3562 Fax - 214.292.9761 Email - [email protected]

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    DALLAS POLICE DEPARTMENT JACK EVANS POLICE HEADQUARTERS 1400 SOUTH LAMAR STREET DALLAS, TEXAS 75215

    April 15, 2015

    Avi Adelman5620 East Side AvenueDallas, TX 75214

    RE: Public Information Request Number 2015-06160

    Dear Ms. Adelman:

     The Open Records Team has received your request for information pursuant to the PublicInformation Act.

     The information you requested will require additional time to retrieve. Factors affecting yourrequest will depend upon the information you are requesting and the divisions, sections orunits responsible for retrieving that information. With this in mind, the information you arerequesting will be ready for retrieving within 30 business days from the date of this letter andby 10:00 am.

     The Open Records Team apologizes for this delay in fulfilling your request. If you need anyinformation, please feel free to contact the Open Records Team by calling 214-671-3148.

    Sincerely,

    DAVID O. BROWNCHIEF OF POLICE

    Phyllis I. Nobles

    Phyllis I. Nobles, #5393Lieutenant of PoliceOpen Records TeamOffice of the Chief of Staff

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    DPD radio trac notes where the incident is taking place

    Ocer Rugby exits his vehicle

    Background noise – sounds like Avi yelling in background upon his arrival to the scene.

    Oce Rugby moves out of frame to walk up berm

    More of Avi in background 

    Female Ocer #1 GO AWAY!

    Avi I can take pictures (unintelligible)

    Female Ocer #1 GO ON...

    Avi (to Ocer Rugby) Ocer, you are wasng your me, deal with the issue…

    Rugby Alright.

    Avi (Unintelligible) …. Get out of my way.

     Another ocer yells to Avi, unintelligible (regarding where to stand on berm)

    Avi to ocer on berm You are going to have me arrested for WHAT??

    Transcript of Ocer “Rugby” speaking at Ocer Down

    Incident / Santa Fe Trail / March 27, 2015

    The recording sequence was acvated when the

    vehicle’s emergency lights were turned on. It

    recorded everything prior to his arrival at the incident

    through the ocers heading to Baylor to follow theambulance. The enre tape is about 16 minutes long.

    This recording was captured on the dashcam tape,

    which was released to Avi S. Adelman on June 18.

    The ocer was not wearing any kind of personal

    idencaon nameplate on his uniform. We have

    learned he plays rugby for a local team, so for this

    transcript he is idened as Ocer Rugby. The names

    of other ocers speaking are not known, so theyidened by numbers.

    The video can be seen on You Tube at this link:

    hp://nyurl.com/ocerrugby

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    Rugby What kind of individual are you?

    Avi I am a photographer and you are a cop. You need to be a cop.

      Are you trying to (unintelligible) with me?

    Rugby I’m not trying…

    Ocer #1 (Mike?) The line’s gonna be right there Avi.  Right here. Just stay right here.

    Rugby (to himself) Piece of crap individuals in the world

    Avi You are gonna waste your me.

      What are you doing?

    Unidened Teenager walking with ocers

      I am helping them.

    Avi You are wasng your me.

    Rugby starts following Avi around, along with unidened Asian ocer 

    Avi to Rugby Are you crazy?

    Rugby Minding my own business, sir.

      I can move like I wanna move, it’s a free country.

      You take your pictures.

      I am gonna move my own body.

    Rugby (to himself) Piece of crap.

    Rugby to Avi Get on the street, dude.

    Avi Stop chasing me

    Lots of background noise. Rugby is standing by ocer being treated, talking to another ocer 

    Rugby to Ocer #2 This fool is trying to take pictures of one of our guys. That’s vicious.

      Piece of crap here, man

    Background radio – ocer is going to Baylor. Lots of silence as ocers leave the area.

     Aer ambulance leaves, Avi starts to go back to his truck 

    Avi to Rugby Do you have a problem sir?

    Rugby No not at all, Mr. Adelman.

    Ocer Mike

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    Avi Then why don’t you get away from me??

    Rugby I can stay right here.

    Avi Then you can hear me call a sergeant.

    Rugby Go ahead and call, go ahead and call

    Avi You are are insult to ….Rugby Where you going, man?

    Avi I’m done – what’s your problem?

    Rugby I am just going for a walk – it’s a free country.

      Just going for a walk.

    Avi What are you going to do to me, harass me??

    Rugby I am just going for a walk. It’s a free country, I can walk.

    Avi Knock yourself out.

    Rugby What you worried about me, I need the exercise??

     Avi leaves area, Rugby goes back to other ocers. Long space of silence.

    (Rugby speaking to other ocers)

    Rugby Is there anybody you just want to punch the crap out of??

      I wish he had gave me any reason to put him in jail.

    Long break, Rugby talks about resource center 

    Rugby to Ocer #3 Hey, who that dude work for?? That Avi dude?

    Ocer #3 Who? That Jewish guy???

    Rugby Yeah

    Ocer #3 He don’t work for anybody.

      He’s one of the acvists who lives in the area.

    Ocer #4 Hey, don’t worry about Avi

    Rugby Piece of crap right there.

    Talk about moving police bicycles

    Rugby What do you say, he’s one of these acvists?

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    Ocer #5 The guy that was out here taking pictures?

      He used to live up on Greenville Avenue.

    Ocer #6 He lives on East Side now

    Rugby What does he do?

    Ocer #7 Nuthin, he’s just…Rugby He’s goa have a website or something

    Ocer #8 Yeah, he’s got a website

    Rugby I hope he puts something on that thing – piece of crap.

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    Subject: RE: Re: Open Records Request 2015-06160, Video/Santa Fe Trail

    From: "Anderson, Frankie"

    Date: 5/26/2015 9:01 AM

    To: "[email protected]"

    Ms. Adelman,

     

    Your Open Records Request is not complete. Open Records worksrelessly to compete Open Records Request in amely manner. The 30 day me period you were given, was 30 business days, not including holidays. We are working

    to complete your request, so please bear with us. I will connue to check on your request and nofy you when it is

    completed.

     

    From: Avi S. Adelman [mailto:[email protected]]

    Sent: Saturday, May 23, 2015 11:12 PM

    To: Anderson, Frankie

    Cc: Mickey Osterreicher

    Subject: Fwd: Re: Open Records Request 2015-06160, Video/Santa Fe Trail

     

    Ms Anderson

    In regards to the aached leer from April 15...

    1 - My name is AVI and it is NOT a female name. It is a Hebrew name derived from Abraham.

    2 - Your leer notes that the body cam videos were going to be ready on May 15th. I have allowed extrame to cover

    for any unforeseen circumstances which may delay the date.

    Please confirm that the video files are ready for me to pick up, preferably at an early hour this week.

    I look forward to your reply.

    Avi S. Adelman

    -------- Forwarded Message --------

    Subject:Re: Open Records Request 2015-06160, Video/Santa Fe Trail

    Date:Wed, 15 Apr 2015 13:51:00 +0000

    From:Anderson, Frankie

    To:[email protected] 

     

    e: Open Records Request 2015-06160, Video/Santa Fe Trail

    6/28/2015

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    Subject: BodyCam video - Officer Mike / Officer down video at Santa Fe Trail

    From: "Avi S. Adelman"

    Date: 6/28/2015 4:38 PM

    To: "Tillotson, Nekia" , Mickey Osterreicher

    , "Tittle, Gary" , "Brown, David"

     

    Sgt Tillotson

    Nearly two months ago, I filed an Open Records Request for the bodycam video of an officer idenfied as

    OFFICER MIKE (see photo aached) from the Officer Down / Santa Fe Trail Incident nearly three months ago.

    I was nofied immediately thereaer it would take 30 days to deliver the file. Then another 15 days.

    Two weeks ago, I was given access to FIVE dashcam videos. I was NOT given the bodycam video. No

    explanaon was off ered as to why it was not included in the files provided. Your office sent a query to

    Central Division about this file.

    As of this wring, I have not been nofied that the file is or is not available, when I will get it, or who has it

    and / or why it has not been released.

    Since there has been no communicaons to me about the file, I will assume the Department is illegally

    withholding the file contrary to the State of Texas' Public Informaon Act.

    If the Dallas Police Department does not provide a WRITTEN answer as to where this file is and when I will

    get a copy of it, I will file a complaint with the Aorney General's office. My deadline for the Department to

    answer this request is Close of Business July 3, 2015.

    Regards,

    6/28/2015

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    Avi S. Adelman

    --

     

    A c i t i z e n ' s r i g h t t o f i l m g o v e r nm e n t o f f i c i a ls , i n c l u d i n g l a w  

    e n f o r c e m e n t o f f i ce r s , i n t h e d i sc h a r g e o f t h e i r d u t i e s in a p u b l i c  

    s p a c e i s a b a s ic , v i t a l a n d w e l l - e s t a b l i sh e d l i b e r t y s a f e g u a r d e d b y t h e  

    Fi r s t Am e n dm e n t . Ga t h e r i n g i n f o r m a t i o n ab o u t g o v e r n m e n t o f f i c ia l s  

    i n a f o r m t h a t c an b e r e a d i l y d i ss em i n a t e d t o o t h e r s s er v e s a s a  

    ca r d i n a l Fi r st A m e n d m e n t i n t e r e s t i n p r o t e c t i n g a n d p r o m o t i n g t h e  

    f r e e d i s cu s s i o n o f g o v e r n m e n t a l a f f a i r s . - US Court of Appeals for the

    First Circuit

    Avi S. Adelman

    [email protected]

    Phone - 214.923.3562

    Fax - 214.292.9761

     Attachments:

    Photo-of-Dallas-cop-by-Avi-Adelman-620x330.jpg 78.2 KB

    Cam video - Oficer Mike / Oficer down video at Santa Fe Trail