A few days ago, I saw this story in the Texas Tribune about a new open-records request about Governor Perry’s traveling security detail. The gist of the Tribune story was that DPS had actually destroyed older records, including all records for fiscal year 2007. (From the story: “Those records include documents that had been the subject of a controversial court case and previous freedom of information requests from news outlets, officials said.”)
This piqued my curiosity because — if those records had, indeed, already been destroyed — then the agency’s big win in the Texas Supreme Court just a few weeks ago might have been in a moot controversy. I wouldn’t want to be the state lawyer who had to explain that one, either to the Supreme Court (if this revelation led to a rehearing motion) or to the trial court on remand.
Now, the Tribune reports that it has been given a clarification:
While accounting records are indeed gone, the agency said Monday that it had erroneously described the extent of the records destruction. The department now says that any records that had been the subject of a lawsuit brought by newspapers trying to get more information about the expenses had been preserved.
That makes much more sense to me, given how open-records requests work. When an agency objects to a request, they are (so far as I understand) supposed to forward the documents to the Attorney General. It would be quite unusual for records in the hands of the AG to be destroyed while litigation is ongoing.
So, the jurisprudential crisis seems to be avoided. The open-records crisis? That’s now for the trial court to sort out.