It’s a question that remains unanswered nearly two years after it was first asked by the folks at the Austin-based Texas Observer.
Last Wednesday the ice storms in Austin delayed word from State District Judge Stephen Yelenosky, who was expected to rule on matters related to attorneys’ fees that would have propelled the case forward — either to the point where the Texas Department of Public Safety accepted his December decision that the tapes be made public, or held during an appeal.
A quick recap of the case:
On May 25, 2005, word swirled around Austin that Leininger was in the Capitol — everywhere from outside the governor’s office to the House Chamber’s back hall — twisting the arms of Republican legislators over a voucher bill.
“During the debate, there were all these rumors that Leininger was at the Capitol and was there since early that morning and they had been pulling representatives off the floor to talk to him,” said Texas Observer Executive Editor Jake Bernstein in a phone interview from his Austin home.
“So, we figured, let’s find out, let’s see if he in fact is in the back hall. I went back to the back hall during the debate to see if any were being pulled off, but I was only there for a short time during the debate and didn’t see anyone,” Bernstein said. “I did see the cameras, though, and that they were plainly visible. Everyone could see them.”
To discover the truth behind something that has become the stuff of political urban legend, the staff of the Observer decided to get their hands on incontrovertible proof: the security tape from those cameras Bernstein saw in the back hall.
In 2005, when the Observer first requested the so-called “back-hall tape,” DPS immediately began stonewalling. DPS asked Texas Attorney General Greg Abbott to rule that the tape should be exempt from disclosure under the Texas Public Information Act for several reasons — mainly related to homeland-security exemptions added to open-records law immediately following 9/11.
However, in August 2005, the attorney-general’s office issued an open-records opinion laying to waste DPS’s arguments. Since Texas law says that a government agency ordered by the attorney general to release records may sue the AG to keep those records private, that’s exactly what DPS did, again citing homeland-security exemptions. (The Texas Observer is an intervenor in the lawsuit, which is actually between DPS and the AG.)
In December 2006, Yelenosky issued a summary judgment in favor of the AG and the Observer, declaring that the tapes were not subject to the homeland-security exceptions in the state’s open-records law.
Until all of the ancillary matters are heard by Judge Yelenosky, the case isn’t over at the district-court level. DPS may appeal Yelenosky’s ruling to the Third Court of Appeals, and to the Supreme Court of Texas — indefinitely pushing back the date anyone may see conservative paymaster Leininger allegedly doing his thing on film.
For Bernstein, the lawsuit is about more than whether Leininger is a bully.
“There are two parts of it,” Bernstein said. “One was whether Leininger was back there and the kind of influence he exerts in the Capitol. The second was, that there was an important precedent here. We are increasingly becoming a more surveillant society,” Bernstein said. “We have the red-light cameras, and with those and others DPS has the control of now, they have the technology to put all of that on a digital system and sync that up and do surveillance of the public in a way that has never been done before.”
Bernstein also wonders how much taxpayer money DPS will spend on the lawsuit. “They have hired an outside law firm, and that’s not cheap. It’s a lot of money. When are legislators and taxpayers going to step in and say, ‘This is a ridiculous waste of our money?’”
“The precedent is very important because the public should be able to oversee this and know what `DPS` are up to.”