Three months after a group of local judges banded together to refuse an open records request by The Eagle, a special committee of their peers has decided that they were wrong in doing so.

In a ruling filed this week, the committee ordered 85th District Judge J.D. Langley, 361st District Judge Steve Smith, County Court at Law No. 2 Judge Jim Locke and former County Court at Law No. 1 Judge Randy Michel to turn over all e-mails between themselves and former juvenile referee appointee Patricia Bonilla Harrison.

Harrison was appointed to the part-time judgeship last November after a unanimous vote by the county's juvenile board, despite criticism that she had a history of alcohol-related arrests. She declined the job offer later that month, just days after The Eagle filed what would be the first of several open records requests seeking e-mails between her and the five trial court judges who sit on the board.

District Judge Rick Davis was the only person to immediately comply with the paper's request, providing documentation that no e-mails between himself and Harrison existed. The others jointly hired an attorney, arguing that private e-mails are not subject to open records requests even when sent from a county-owned computer and e-mail address.

Since then, the courthouse has been embroiled in scandal.

Michel was convicted of misdemeanor abuse of official capacity and expelled from office in December after the District Attorney's Office conducted an investigation, using its grand jury subpoena power to quietly obtain the e-mails. The documents showed the judge having illegal conversations with Harrison about an ongoing case in his courtroom, prosecutors said at the time.

Harrison pleaded guilty to a similar misdemeanor charge of improper influence.

All of the remaining judges who refused the request have since drawn challengers for the upcoming election. With the open records request becoming a campaign issue in all of the races, Locke and Langley in the past month decided to release their e-mails with Harrison while Smith provided a letter from the county's information technology department stating that none existed.

Michel's e-mails remain mostly unexamined.

Following a third round of open records requests last month in which The Eagle altered its wording, the judges decided amongst themselves that Judge Smith should go through Michel's 900 or so e-mails concerning Harrison to select ones that he deemed "work-related." As a result, 123 of Michel's e-mails were released.

Although heavily redacted, the released documents did show evidence of a romantic relationship between the two. The e-mails also gave further insight into the case that led to their convictions and showed for the first time evidence that Michel helped Harrison write her application for the juvenile referee position.

Contacted Friday, Smith said that according to his interpretation of the law, he was no longer responsible for keeping Michel's records because the judge's seat is no longer empty. Judge Bill Ballard, who has been appointed to fill the seat until a new judge is elected in November, is now responsible for turning over the e-mails, Smith said.

Ballard confirmed Friday that the e-mails should be available to the paper by Monday morning.

What The Eagle will do with the e-mails next has yet to be decided, according to Donnis Baggett, the paper's publisher and editor.

"We will examine all the e-mails carefully before writing any news stories about their contents," he said. "We're not interested in reporting salacious details of a relationship that's already been acknowledged and has caused so much pain.

"We simply want to see whether or not there's evidence of other questionable activity at the courthouse. If that evidence exists, it's our journalistic duty to report it. If there is no such evidence, we'll report that, too."

Rule 12

The fight for the documents started Nov. 15, when The Eagle filed a request with County Judge Randy Sims citing the Texas Public Information Act. Sims, who also sits on the juvenile board, oversees all county departments - including the information technology department, where the e-mails could be retrieved.

After receiving a memo from Judge Langley arguing that the judges' e-mails aren't subject to the Texas Public Information Act, Sims denied the newspaper's request and forwarded the matter to the state Attorney General's Office for an opinion. Earlier this month, the Attorney General's Office concurred with Sims.

But the reason the documents aren't subject to the Texas Public Information Act is because Rule 12 of the Texas Rules of Judicial Administration was specifically created in 1999 to address such issues. One week after The Eagle's original request, it re-filed identical requests with each of the judges, citing Rule 12.

It is under that little-known law that the paper appealed the refusal and sought an opinion from a panel of judges assigned to oversee the matter by the state's Office of Court Administration.

As part of the original requests, the paper acknowledged that e-mails pertaining to pending cases in a judge's court may not be considered public record.

"While all e-mails are preferred, in the interest of expediting the process, The Eagle would be willing to forgo messages in which the subject matter is limited only to specific cases in a judge's courtroom," the request stated. "In other words, the paper is primarily seeking subject matters that are non-work-related."

The judges argued that "non-work-related" documents are not judicial records because they weren't written in the regular course of business. But according to Houston attorney Joel White, who volunteered to represent The Eagle in the appeal on behalf of the Freedom of Information Foundation of Texas, the judges were merely using legalese to play what amounted to word games.

White, a past president of the Foundation, helped craft the law in the 1990s. It was never intended to be limited to the extent the judges were arguing, he said. The panel appears to have agreed.

"We will not apply such hyper-technical importance to the words used to request access to records that only attorneys will have the acumen to make adequate requests," the ruling states. "Citizens should be given access to judicial records regardless of whether they are able to invoke the correct 'magic words' to gain that access.

"We do not require citizens to cite to 'Rule 12' instead of the 'Public Information Act' or the 'Open Records Act.' Similarly, we will not require citizens to recite that they are seeking records 'not pertaining to a judge's adjudicative function' instead of saying they are seeking records 'that are non-work-related.'"

White said that although it's hard to imagine Michel's unreleased e-mails could be much more damning than the ones already examined, it's important that the law be upheld the way it was intended. The Eagle should have the opportunity to fulfill its role as a government watchdog, he said.

Contacted Friday at an airport in a Dallas - where he had been discussing the recent litigation with the Freedom of Information Foundation's board of directors - White predicted the precedent set by this week's ruling should have a statewide effect on the judiciary.

"I imagine there are a whole lot of e-mails being deleted as we speak," he said.

• Craig Kapitan's e-mail address is craig.kapitan@ theeagle.com.

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