shirley pigott md open records requests from dps

8/14/2019 Shirley Pigott MD Open Records Requests From DPS

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1

Cohen, Jennifer

From: Shirley Pigott MD [[email protected]]Sent: Thursday, February 18, 2010 11:33 AMTo: PIO - Texas DPSSubject: Open records request

Dear Ms Block,

Per Texas and United States Open government laws, please release to me in electronic format, all speeding

stops in the history of his DPS employment where Alfred Ochoa stopped or detained someone for going 9 mph

or less over the speed limit.

What was the date Officer Ochoa began his employment with DPS?

Thank you.

Shirley Pigott MDTexas Medical Board Watch

Texas Phoenix 007

361-894-6464 home361-652-9474 cell


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TEXAS DEPARTMENT OF PUBLIC SAFETY5805 N. LAMAR BLVD. BOX 4087 AUSTIN, TX 78773-0001

512/424-2000

www.txdps.state.tx.us

STEVEN C. McCRAW

DIRECTOR

LAMAR BECKWORTH

BRAD RABLEDEPUTY DIRECTORS

COMMISSION

ALLAN B. POLUNSKY, CHAIR

C. TOM CLOWE, JR.

ADA BROWN

JOHN STEENCARIN MARCY BARTH

EQUAL OPPORTUNITY EMPLOYER

COURTESY SERVICE PROTECTION

March 5, 2010

Via Email

Shirley PigottTexas Medical Board [email protected]

RE: PIA Request for traffic citation information for Alfred Ochoa involving stops for speeding 9 mph

or less over the speed limit (ORA # 10-0388)

Dear Ms. Pigott:

The Department of Public Safety received your above-referenced request on February 18, 2010. Wehave determined that complying with your request will result in the imposition of a charge that exceeds$40. Therefore, we are providing you with the enclosed cost estimate as required by Gov't Code 552.2615.

The requested information can be made available only at a cost that covers the programming and/ormanipulation of data. SeeGovt Code 552.231(a). The above-requested information is not available

in the requested form. The information is currently stored in one or more extensive databases.Accessing the requested information will require filtering and sorting a very large amount of data. Theestimated time it will take to capture the requested data is approximately one week. The estimated costof providing the responsive records is $46.46, as set forth on the enclosed cost estimate. There is not aless expensive way for you to obtain this information. These charges may be reduced if you narrow orclarify the scope of your request.

Your request will be considered automatically withdrawn if you do not notify us in writing within tenbusiness days from the date of this letter that you either:

(a) accept the charges;

(b) wish to modify your request; OR(c) have sent to the Open Records Division of the Office of the AttorneyGeneral a complaint alleging that you are being overcharged for theinformation you have requested.


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TEXAS DEPARTMENT OF PUBLIC SAFETY 2



If you have any questions regarding this request, please contact me at (512) 424-2890.

Sincerely,

Jennifer C. CohenAssistant General Counsel

\\hqogcs001\public\Legal\ORA\2010 requests\10-0388\10-0388 letter to requestor (10-03-05).doc


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Cost Estimate for ORA # 10-0388

Item Number Cost Total

Standard Copies $0.10 per page

Accident Report $6.00 each (TRC 550.065)

Large Copies $0.50 per page

Photographs $1.26 each

Compact Discs $1.00 each

DVDs $3.00 each

Video Cassettes $2.50 each

Audio Cassettes $1.00 each

Personnel Charges 2.3 $15.00 per hour $34.50Programming Charges $28.50 per hour

20% of labor charges $6.90

Mainframe $10.00 per CPU minute

Midrange $1.50 per CPU minute

Client/Server 2.3 $2.20 per clock hour $5.06

P/C or LAN $1.00 per clock hour

actual costs

$46.46

Nonstandard Copies

Computer Charges

Total

Overhead Charges

Postage & Shipping

Prepared on 3/5/2010


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1

Cohen, Jennifer

From: OGC WebmasterSent: Monday, February 22, 2010 11:45 AMTo: 'Shirley Pigott MD'Subject: RE: Freedom of information requests concerning DPS Officers Alfred Ochoa and Daniel

Terronez, and the events of September 29, 2007

Ms. Pigott,

The Department of Public Safety General Counsel is Stuart Platt; however, I will be coordinating the response

to your below request. Initially, please note that the federal Freedom of Information Act (5 U.S.C. Ch. 552)

applies to federal agencies, not to state agencies. The Texas Public Information Act (PIA) (Gov't Code Ch. 552)

applies to governmental bodies in this state, and your request will be considered under this act.

Further, the Department does not have a single custodian of all records. Rather, the section which originally

generates the requested records is generally the custodian of such records. As a matter of clarification, please

be advised that the Department does not certify documents, nor do we provide business records affidavits. If

you wish to authenticate documents for admission in court, please submit a subpoena to the custodian of therequested records.

Additionally, the injunction attached to your request was issued in the case of Keith Wayne Schmidt v. DPS. It

does not appear to be related in any way to the incident for which you are seeking information. Please clarify

how this injunction is related to your request.

Jennifer C. Cohen

Assistant General Counsel

Texas Dept. of Public Safety

(512) 424-2890

This e-mail, including any attached files, may contain confidential and privileged information for the sole use of the intended recipient. Any review,

use, distribution, or disclosure by others is strictly prohibited. If you are not the intended recipient (or authorized to receive information for the

intended recipient), please contact the sender by reply e-mail and delete all copies of this message.

From: Shirley Pigott MD [mailto:[email protected]]

Sent: Monday, February 22, 2010 11:10 AMTo: PIO - Texas DPS; Bonnie Kaderka Texas Medical Board Open RecordsSubject: Re: Freedom of information requests concerning DPS Officers Alfred Ochoa and Daniel Terronez, and the

events of September 29, 2007

Dear Ms Block,

Please consider this letter as a formal request for information under the Freedom of Information Act and the Texas Open Records Act,

the Public Information Act, chapter 552 of the Government Code.

Kindly identify the individual who is DPS custodian of open records and who is the DPS General Counsel that

will review my request.

TIME IS OF THE ESSENCE. Thank you for your immediate time and attention in this matter.

Sincerely,


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2

Shirley Pigott MD

On Mon, Feb 22, 2010 at 10:30 AM, PIO - Texas DPS wrote:

Thank you for your open records request. I have forwarded it to the DPS General Counsels office, and theywill send a response within 10 business days. For more information on the Public Information Act, please see

Chapter 552 of the Texas Government Code, available at

http://www.statutes.legis.state.tx.us/Docs/GV/pdf/GV.552.pdf.

Respectfully,

Texas Department of Public Safety

Public Information Office

From: Shirley Pigott MD [mailto:[email protected]]Sent: Saturday, February 20, 2010 1:41 AM

To: PIO - Texas DPS

Cc: Shirley Pigott MD Texas USA

Subject: Freedom of information requests concerning DPS Officers Alfred Ochoa and Daniel Terronez, and the events of September

29, 2007

Dear Ms Block:

Please consider this letter as a formal request for information under the Freedom of Information Act and the Texas Open Records Act,

the Public Information Act, chapter 552 of the Government Code.

On the night of September 29, 2007, I was stopped by DPS Officer Alfred Ochoa, ostensibly for speeding 9 mph over the posted speed

limit. Unbelievably, events ensued which led to felony indictments against me being issued on January 8, 2008. The evening o

January 7, 2008, my husband of 39 years, a professor of organic chemistry at Victoria College, who, I believe, had been warned inadvance of the outcome, committed suicide.

Judge Randy Clapp granted me a motion to compel the production of a certified true, correct, and complete copy of the video, but the

Wharton County DA gave me an uncertified copy which lacked the first few seconds or minutes.

DPS is required both by federal and state law to provide me with the evidence I have requested. I have attached an order issued by

Federal Judge Keith Ellison which makes it clear that DPS must comply with the law in this situation.

DPS videos, as you know, are triggered to begin when an officer turns on his lights and siren. The video I received begins with

dispatch citing my name, which was their response to Officer Ochoa 'running my plates'. The first critical exculpatory moments

which would show Officer Ochoa turning on his lights and siren while tailgating me at 74 mph, are missing.


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3

Under the Freedom of Information Act and the Texas Open Records Act and Government Code Section 522, please provide me with a

certified true and correct copy of the first five minutes of the official DPS video, beginning at the beginning, ie, when it was triggered

by Officer Ochoa turning on his lights and siren.

Under the Freedom of Information Act and the Texas Open Records Act and Government Code Section 522, please provide me with

any and all documents, field notes, transcripts, emails, telephone records, dispatch records, memoranda, dispatch tapes, audio tapes

video tapes, CDs or DVDs, written or recorded statements, or any other evidence concerning the incident with Officer Ochoa on

September 29, 2007, that have come into your possession, including but not limited to any and all files you have in your possession or

in the possession of any employee of the Texas DPS.

Pursuant to the Freedom of Information Act and the Texas Open Records Act and Government Code Section 522, please provide me

with any and all written policies and procedures or guidelines concerning, guiding, directing, or controlling the Texas DPS Officers

which may dictate or suggest the mode and manner of carrying out their duties and expected behavior in dealing with or addressing

the public during a traffic stop. This request is for the written policies and procedures or guidelines that were applicable and in effec

on September 29, 2007.


with the complete personnel file concerning or pertaining to Officers Ochoa and Daniel Terronez.


with the complete employment and disciplinary file concerning or pertaining to Officer Ochoa and Officer Daniel Terronez.


with copies of any and all documents, photographs, images, emails, memoranda, letters, written communications, videotapes, audio

recordings, or digital recordings of any kind showing, reflecting, or evidencing the scene, activities, or events in or surrounding any

concern, inquiry, report, or complaint filed against Officer Ochoa or Terronez or any of the other officers, supervisors, deputies, or

other employees of the Texas DPS who came in contact with me on September 29, 2007.


with a list all traffic stops, including warnings or citations made by Officers Ochoa or Terronez in the history of their employment a

DPS where the alleged speed was less than 10 mph in excess of the posted speed limit.

This request is for any documents or tangible evidence that you may have or that you may have the ability to secure in performing

your duty to investigate the conduct and actions of Officers Ochoa and Terronez. I must remind you that it is a crime to destroy or

hide any of the exculpatory evidence requested herein or to advise, assist, or coach any other person to destroy or secret exculpatory

evidence. Your proper role as an investigator, consistent with your legal obligation to afford the accused the presumption ofinnocence, is to secure, protect, and preserve all of the evidence, including any and all exculpatory evidence. Considering the conduc

of the officers involved, it is urgent that we remind this department of its duty with respect to investigations.

If you refuse to comply with this request, then immediately explain your refusal to do so.

TIME IS OF THE ESSENCE. Thank you for your immediate time and attention in this matter.


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4

Very truly yours,

Shirley Pigott MD

Texas Medical Board Watch

Texas Phoenix 007361-894-6464 home

361-652-9474 cell


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512/424-2000


STEVEN C. McCRAW

DIRECTOR

LAMAR BECKWORTH


COMMISSION


C. TOM CLOWE, JR.

ADA BROWN




March 9, 2010

Via Email

Shirley PigottTexas Medical Board [email protected]

RE: PIA Request for complete personnel and disciplinary files of Trp. Alfred Ochoa and Lt.

Daniel Terronez (ORA # 10-0401)

Dear Ms. Pigott:

The Department of Public Safety received your above-referenced request on February 22, 2010.Initially, please note that the federal Freedom of Information Act (5 U.S.C. Ch. 552) applies tofederal agencies, not to state agencies. The Texas Public Information Act (PIA) (Gov't Code Ch.552) applies to governmental bodies in this state. Further, please be advised that the Departmentdoes not certify documents, nor do we provide business records affidavits. If you wish toauthenticate documents for admission in court, please submit a subpoena to the custodian of therequested records.

Regarding your request for a certified true and correct copy of the first five minutes of theofficial DPS video of your traffic stop, please be advised that a search of Department recordsbased on the information provided revealed no information responsive to this request. Therequested video was turned over to the district attorney, and the Department no longer has acopy. You were previously notified of this on June 11, 2009.

Regarding your request for any and all documentsconcerning the incident with Officer Ochoaon September 29, 2007, please note that the Department has previously obtained a ruling fromthe attorney generals office with respect to this information. Open Records Letter Ruling 2009-11328. Your criminal case is still pending in the courts; accordingly, we are continuing to

withhold the requested information pursuant to Govt Code 552.108(a)(1). See id. The firstpage of your offense report was previously released to you on August 4, 2009.

Turning now to your request for any and all written policies and procedures or guidelinesconcerning, guiding, directing, or controlling the Texas DPS Officers which may dictate orsuggest the mode and manner of carrying out their duties and expected behavior in dealing withor addressing the public during a traffic stop, please find enclosed an electronic copy of theDepartments General Manual from 2007. Also enclosed is a copy of the current Texas Highway


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Patrol Manual. Please note that historical copies of the THP manual are not retained by theDepartment; however, each page contains on the bottom the date on which that page was lastupdated.

You next request the complete personnel file concerning or pertaining to Officers Ochoa and

Daniel Terronez and the complete employment and disciplinary file concerning or pertainingto Officer Ochoa and Officer Daniel Terronez. Disciplinary records are part of an officerspersonnel file; accordingly, these requests seem to be for the same information. Release of acommissioned officers personnel records is governed by Govt Code 411.00755. Please seethe attached cost estimate for information on the cost of obtaining the public information fromTrp. Ochoas and Lt. Terronezs personnel files.

Records related to misconduct by an officer may not be disclosed unless they resulted indisciplinary action against the officer. See id. at 411.00755(b)(1)(B). As used in this statute,disciplinary action means discharge, suspension, or demotion. See id. at 411.00755(a)(2)and 411.0072(a)(1). We believe the remaining records responsive to this portion of your request

may be excepted from required public disclosure at this timepursuant to Govt Code 552.101in conjunction with 411.00755. We are seeking a ruling from the attorney general's office withrespect to disclosure of these records, and a copy of our request letter is enclosed. You will benotified directly by the attorney general's office when a ruling is issued.

You also request any and all documentsshowing, reflecting, or evidencing the scene,activities, or events in or surrounding any concern, inquiry, report, or complaint filed againstOfficer Ochoa or Terronez or any of the other officers, supervisors, deputies, or other employeesof the Texas DPS who came in contact with me on September 29, 2007 . As noted above,complaint investigations against a commissioned officer are not subject to disclosure unless theyresulted in disciplinary action. Further, the Department does not have any records responsive tothis portion of your request except for the information the Department is withholding pursuantto Govt Code 552.108(a)(1), above.

Next, you request a list all traffic stops, including warnings or citations made by Officers Ochoaor Terronez in the history of their employment at DPS where the alleged speed was less than 10mph in excess of the posted speed limit. Please note that the Department does not classify stopsas less than 10 mph over the speed limit. However, we will be happy to provide you with a listof all stops made by Trp. Ochoa and/or Lt. Terronez for which we have records. The requestedinformation can be made available only at a cost that covers the programming and/ormanipulation of data. See Gov't Code 552.231(a). The above-requested information is notavailable in the requested form. The information is currently stored in one or more extensivedatabases. Accessing the requested information will require programming to filter and sort avery large amount of data. The estimated time it will take to capture the requested data isapproximately two weeks. Please see the attached cost estimate for information on the cost ofobtaining these records.

Finally, you request any documents or tangible evidence that you may have or that you mayhave the ability to secure in performing your duty to investigate the conduct and actions of

Officers Ochoa and Terronez. It is unclear what information you may be referring to here. The


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only documents or evidence viewed in reviewing your complaint of Trp. Ochoa and Lt. Terronezwas your offense report and Trp. Ochoas dash-cam video. As noted above, the Department iswithholding your offense report pursuant to Govt Code 552.108(a)(1), and we do not have acopy of Trp. Ochoas dash-cam video as it was turned over to the district attorneys office sometime ago.

We have determined that complying with your request will result in the imposition of a chargethat exceeds $40. Therefore, we are providing you with the enclosed cost estimate as required byGov't Code 552.2615. The estimated cost of providing the responsive records is $170.66, asset forth on the enclosed cost estimate. There is a less expensive way for you to obtain thisinformation. You may view the personnel information in person at our offices. If you choose toview the information in person, please provide me with three dates and times when it will beconvenient for you to visit. Additionally, these charges may be reduced if you narrow or clarifythe scope of your request.

Your request will be considered automatically withdrawn if you do not notify us in writing

within ten business days from the date of this letter that you either:

(a) accept the charges;(b) wish to modify your request; OR(c) have sent to the Open Records Division of the Office of theAttorney General a complaint alleging that you are beingovercharged for the information you have requested.

If you have any questions regarding this request, please contact me at (512) 424-2890.

Sincerely,


cc: The Honorable Greg AbbottAttorney General of TexasOpen Records Division209 West 14th Street, 6th FloorAustin, Texas 78701

fax: (512) 463-2092

\\hqogcs001\public\Legal\ORA\2010 requests\10-0401\10-0401 letter to requestor (10-03-09).doc


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512/424-2000


STEVEN C. McCRAW

DIRECTOR

LAMAR BECKWORTH


COMMISSION


C. TOM CLOWE, JR.

ADA BROWN




March 9, 2010

Via Facsimile

The Honorable Greg Abbott

Attorney General of Texas

Open Records Division(512) 463-2092

RE: PIA Request for complete personnel and disciplinary files of Trp. Alfred Ochoa and Lt. DanielTerronez (ORA # 10-0401)

DATE REQUEST FOR INFORMATION RECEIVED: 2/22/2010

DATE REQUEST FOR RULING SUBMITTED TO ATTORNEY GENERAL: 3/9/2010

Dear Attorney General Abbott:

The Department of Public Safety received the above-referenced request for information from Shirley

Pigott on February 22, 2010. Due to the Texas Independence Day holiday on March 2, 2010, when ouroffices were closed, we believe this request for a ruling on disclosure is timely made in accordance with

Govt Code 552.301. We believe at least a portion of the requested information is excepted fromrequired public disclosure pursuant to Govt Code 552.101. Accordingly, we are requesting a rulingregarding the release of these records.

Please find enclosed the request from Shirley Pigott and the notice of our request for a ruling sent to the

requestor. The responsive records will be submitted to your office no later than March 16, 2010. Pleasefeel free to contact me at (512) 424-2890 if you have any questions.

Sincerely,

Jennifer C. Cohen

Assistant General Counsel

cc: Shirley Pigott MD

Texas Medical Board Watch

[email protected]

\\hqogcs001\public\Legal\ORA\2010 requests\10-0401\10-0401 letter to AG (10-03-09).doc


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Cost Estimate for ORA # 10-0401

Item Number Cost Total

Standard Copies 202 $0.10 per page $20.20

Accident Report $6.00 each (TRC 550.065)

Large Copies $0.50 per page

Photographs $1.26 each

Compact Discs $1.00 each

DVDs $3.00 each

Video Cassettes $2.50 each

Audio Cassettes $1.00 each

Personnel Charges 7.3 $15.00 per hour $109.50Programming Charges $28.50 per hour

20% of labor charges $21.90

Mainframe $10.00 per CPU minute

Midrange $1.50 per CPU minute

Client/Server 7.3 $2.20 per clock hour $16.06

P/C or LAN $1.00 per clock hour

actual costs $3.00

$170.66

Nonstandard Copies

Computer Charges

Total

Overhead Charges

Postage & Shipping

Prepared on 3/9/2010


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512/424-2000


STEVEN C. McCRAW

DIRECTOR

LAMAR BECKWORTH


COMMISSION


C. TOM CLOWE, JR.

ADA BROWN




March 10, 2010

Via Hand Delivery

The Honorable Greg Abbott

Attorney General of Texas

Open Records Division209 West 14th Street, 6th Floor

Austin, Texas 78701

RE: PIA Request for complete personnel and disciplinary files of Trp. Alfred Ochoa and Lt. DanielTerronez (ORA # 10-0401)

DATE REQUEST FOR INFORMATION RECEIVED: 2/22/2010

DATE REQUEST FOR RULING SUBMITTED TO ATTORNEY GENERAL: 3/9/2010

DATE RESPONRIVE RECORDS SUBMITTED TO ATTORNEY GENERAL: 3/10/2010

Dear Attorney General Abbott:

The Department of Public Safety received the above-referenced request for information from Shirley

Pigott on February 22, 2010. Due to the Texas Independence Day holiday on March 2, 2010, when ouroffices were closed, we believe this request for a ruling on disclosure is timely made in accordance with

Govt Code 552.301. As previously noted, we believe at least a portion of the requested information isexcepted from required public disclosure pursuant to Govt Code 552.101.

Government Code 552.101 states that [i]nformation is excepted from the requirements of Section

552.021 if it is information considered to be confidential by law, either constitutional, statutory, or byjudicial decision. This section encompasses Govt Code 411.00755, which states:

(b) Notwithstanding Chapter 552, the personnel records of acommissioned officer of the department may not be disclosed or otherwise

made available to the public, except the department shall release:(1) any letter, memorandum, or document relating to:

(B) misconduct by the officer, if the letter, memorandum, or document

resulted in disciplinary action.

For purposes of Govt Code 411.00755, disciplinary action includes only discharge, suspension, or

demotion. See id. at 411.0072(a)(1) and 411.00755(a)(2). The requestor seeks information

regarding investigation into a complaint against a commissioned officer, where the investigation did not


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result in disciplinary action against the officer. Accordingly, we believe that the requested documents

are confidential and must be withheld under Govt Code 552.101 in conjunction with 411.00755.

Please find enclosed the responsive records we wish to except from required disclosure. The

Department also wishes to withhold photographs and/or videos that constitute a pictorial illustration of

matters described in the requested documents. If you need to view these records in order to determinewhether they are also excepted from disclosure pursuant to Govt Code 552.108, please notify me and

I will provide copies to you. Please feel free to contact me at (512) 424-2890 if you have any questions.

Sincerely,


cc: Shirley PigottTexas Medical Board Watch

[email protected]

\\hqogcs001\public\Legal\ORA\2010 requests\10-0401\10-0401 letter to AG (10-03-09).doc

shirley pigott md open records requests from dps

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