DUSTIN H. BoD 2nd Judicial District Attorney Coryell County, Texas September 29, 2021 The Honorable Ken Paxton ATTORNEY GENERAL, STATE OF TEXAS P.O. Box 12548 Austin, TX 78711-2548 ATTN: Open Records Division Dear Attorney General Paxton, On August 31, 2021 the Brown County Sheriff's Office and the District Pro Tempore for Brown County, Scott K. Stevens each received a request for a record to be produced pursuant to the Public Information Act. The record sought to be produced involves a recently concluded prosecution for which the District Attorney of Coryell County and two of his assistant district attorneys, Jeffrey Parker and Scott K. Stevens, have been appointed as District Attorney’s Pro Tem to investigate and/or prosecute the case, the Sheriff of Brown County has designated the District Attorneys Pro Tem to respond to the request on his behalf. A copy of email showing the request and the date of receipt are included herewith. Pursuant to Tex. Oce. Code $1701.62, this request for opinion is made by the 20" working day after receipt of the request. ‘The request seeks a copy ofa body cam recording of the incident which was the subject of the recently concluded prosecution, The Defendant in that case is William Wesley Ruth. Ruth was charged with Assault on a Public Servant(Peace Officer). The Defendant entered a guilty plea to the lesser included offense of Attempted Assault on a Public Servant(Public Servant) and admitted guilt to four other felony offenses in exchange for a recommendation that he received a deferred adjudication probation and that the other four felonies be considered in punishment and then barred under Tex. Penal Code §12.45. The judge of the 35% Judicial District Court, the Hon. Cecil Puryear (sitting by assignment) accepted the recommendation and plea agreement and pronounced the disposition on open court on August 31, 2021. The “recordings” in this case are from two body-worn cameras which were worn by two Deputy Sheriff's from the Brown County Sheriff's Office. One recording (Body Camera Post Office Box 19 2548635911 Bx 2267 E. Leon Steet 2848655147 Fax Gatesville, Texan 76528,#128) is comprised of 9 distinct video files, apparently generated before during and after an incident in which Mr. Ruth was eventually arrested but resisted the arresting officer(s).. The individual files are listed below by the file name as supplied to the Coryell County District Attorney, but in the correct order to go view the overall recording in chronological order. The file names do not correspond with the actual order in which the files were recorded, although the files times establish what appears to be the correct chronological order. The recording begins several minutes before the actual arrest and the resisting and continues for quite some time afterwards, although the video recording—but not the audio—malfunctioned when the camera was knocked off of the Deputy’s chest. After the Deputy was able to retrieve the camera, the problem was corrected, and proper video recording resumed. The other recording, labeled “In-Car Video #124” is actually the body worn camera from the other deputy. It is also a recording that is similarly saved in multiple (six) files. They are also listed in the second table below in the proper order to view the overall recording in proper chronological order. There is a similar, but much shorter, interruption in video recording only as with Body Camera #128. Background In an otherwise unrelated civil law suit, an District Judge sitting by assignment (not the judge mentioned by Mr. Ruth in the recording and not Judge Puryear), after hearing, found Mr. Ruth in contempt of Court and eventually ordered that he be committed for 30 days to the Brown County Jail. An order was issued to effect the arrest and commitment of Mr. Ruth to serve the 30 day sentence. In the process of a Brown County Deputy Sheriff attempting to take Mr. Ruth into custody, the recordings identified above were created. Much of the conduct for which Mr. Ruth plead guilty, was recorded inside the home of Mr. Ruth’s mother. Mr. Ruth was apparently caring for and/or occupying the residence at the time of the events in question. In the video recording, the Deputy refers to it as “a family home.” There have been two other requests from the same requestor seeking, at that time, only limited portions of one of the recordings. In the first request the core issue was not reached because the requestor did not comply with Tex. Occ. Code §1701.661(a) in specifying the video requested. In the second request the core issue was again not reached because the prosecution of Defendant was then pending. As noted above Defendant’s plea agreement resulted in the termination of all the pending cases. The deferred adjudication order is the cause number in which the recordings requested herein were evidence. The core issues in this case should now be ripe for consideration. According to Tex. Occupations Code § 1701.661 (relating to the use of body-worn cameras by peace officers), the release of such a recording is prohibited unless Mr. Ruth consented to its release, as a significant portion of the recording was made in a private place, See Tex.Occupations Code § 1701.651(3)(defining private place for purposed of Subchapter N of the Tex. Occupations Code). Mr. Ruth, when contacted by the undersigned prosecutor, specifically refused to consent to the release of the recording. The Recordings: Body Camera #128: Filename File Date File Time Body Camera #128 [4].mp4 1/11/2019 5:49 pm Body Camera #128 [3].mp4 11/2019 5:59 pm Body Camera #128 [2].mp4 W/112019 6:09 pm Body Camera #128 [1].mp4 W112019 6:19 pm Body Camera #128.mp4 11172019 6:29 pm Body Camera #128 [8].mp4 1/11/2019 6:39 pm Body Camera #128 [7].mp4 Wi12019 6:49 pm Body Camera #128 [6].mp4 W12019 6:59 pm Body Camera #128 (5].mp4 112019 7:09 pm In-Car Video #124(actually Body Camera) Filename File Date File Time In-Car Video #124 [5].mp4 1112019 5:49 pm In-Car Video #124 [4].mp4 Wi2019 5:59 pm In-Car Video #124 [3].mp4 1/11/2019 6:09 pmIn-Car Video #124 [2].mp4 1/11/2019 6:19 pm In-Car Video #124 [1].mp4 1/11/2019 6:29 pm In-Car Video #124.mp4 1/11/2019 6:39 pm Alll of the times in the chart above are the beginning time of the recordings in local time, however the on-screen clock in Body Camera #128 is approximately 5 hours ahead of the actual time. The times referenced herein will state the file name being referenced then reflect the time from the beginning of the file played in minutes and seconds, a slash to separate the times, and then the time shown on the on-screen clock on the recording (Body Camera #128 [4].mp4; 06:20/23:55:xx). The onscreen clock changes the date from 1/11/2019 to 1/12/2019 a few minutes into the first recording, even though the actual offense and all portions of the recording that take place inside the home occurred on 1/11/2019. Body Camera #128 Initially the body worn camera recording begins at (Body Camera #124 [4].mp4; 00:00/23:49). At (Body Camera #124 [4].mp4; 02:36/23:51:59), Mr. Ruth invites the deputies into the home and they follow him in. At (Body Camera #124 [3].mp4; 06:30/23:55:54), the deputy exits the home until returning inside at (Body Camera #128 (3].mp4; 03:33/00:02:57). The remaining deputy stays in the home during that time. After returning in the deputy remains inside until some time during the malfunction of the video portion of the recording. The video is restored at (Body Camera #128 [2].mp4; 03:46/00:13:10). The deputy leaves the residence at (Body Camera #128 [2].mp4; 04:11/00:13:25) He returns inside the home at (Body Camera #128 [1]; 07:13/00:26:38) and exits again at (Body Camera #128.mp4; 02:18/31:42). After that time, the recording takes place outside the home until Body Camera #128 [8]; 08:15/00:47:39) when the deputy enters his vehicle and leaves the scene. The remainder of the recording takes place in the patrol vehicle or at the Brown County Jail. The portions recorded outside the home, both after before and after the initial entry, and until Mr. Ruth is placed in the patrol car and transported to the jail, take place in the area immediately around the home of Mr. Ruth’s mother. Much, if not all, of that area would be considered in the curtilage of the home. Mr. Ruth did not appear to be occupying the home, but apparently did have full access the home and surrounding land on which the home was situated. The door into which the deputies entered and some of the area immediately outside the door could be seen from the roadway, though most of other areas, are blocked from view from the road by trees and/or undergrowth. ‘The recordings do not clearly show this.Body Camera #124 Initially the body worn camera recording begins at (Body Camera #124 [5].mp4; 00:00/23:49:59). At (Body Camera #124 [5].mp4; 02:04/23:52:03), Mr. Ruth invites the deputies into the home and they follow him in. At (Body Camera #124 [4].mp4; 07:11/00:07:10) the video portion of the recording is disrupted but quickly resumes, apparently on the floor, a few seconds later. It then continues while the deputy replaces it on his body and the arrested Defendant is escorted from the house at (Body Camera #124 [4].mp4; 09:46/00:09:46). The deputy re-enters the home at (Body Camera #124 [2].mp4; 08:24/00:28:23) where he remains until (Body Camera #124 [2].mp4;00:29:17). The deputy does not return inside the house for the remainder of the recording. Generally, the law permits public information that is held by the State of Texas to be disclosed at the discretion of the government entity in possession of the information even if an applicable exception to disclosure under the PIA would otherwise apply. However, when the disclosure of that information is prohibited by law, the governmental entity has no discretion whatsoever to permit its disclosure. In the first instance the information is not confidential information, rather information to which an exception to disclosure applies. In the second instance, the information is confidential information. The wrongful dissemination of confidential information, in particular information that is specifically prohibited from disclosure, cannot form the basis of a claim the governmental agency has waived the confidentiality of the information. A separate governmental agency similarly cannot waive the confidentiality or the right to seek to withhold information to which and exception applies for another governmental agency. Tex. Occ. Code § 1701.661(f) states that “A law enforcement agency may not release any portion of a recording made in a private space...” and, Tex. Occ. Code § 1701.651(3) states that a private space is “a location in which a person has a reasonable expectation of privacy, including a person’s home.” The effect of these two provisions is to create a prohibition on the release of such a recording, as well as making any such recording confidential information. Confidential information is excepted from disclosure under the Public Information Act. Itis the position of the Prosecutors Pro Tem on behalf of the Brown County Sheriff's office that in this instance Defendant was in a place in which he had a reasonable expectation of privacy when he was recorded. Therefore, the recording of him in that place is statutorily prohibited from disclosure to a member of the public and is confidential information. Because there is no right to disclose information that is prohibited by statute from disclosure, there can be no waiver by a representative of the State of such a right. Therefore, there is no waiver of the right to withhold the recording after a request for its disclosure under the PIA. Similarly, the Coryell County District Attorney’ Office believes those portions of the recordings are prohibited from disclosure.Previously, this requestor took the position that the Brown County Sheriff's Office had displayed to the requestor limited portions of one of the recordings created while the deputies were in the home. He has stated that because of that they cannot seek to withhold those portions of the video. The Coryell County District Attorney’s Office and the Brown County Sheriff's Office previously sought to withhold those portions for the reasons stated above. In addition to the above information, it is important to know that the home belongs to Mr. Ruth’s mother, Peggy Joyce Ruth. Though not in the recordings, nor, apparently, was she present in the home at the time, Ms. Ruth has a reasonable expectation of privacy in her home. The statute does not appear to require that the person recorded be the person with the expectation of privacy that make the place a private space. It defines a private space as one in which a person has a reasonable expectation of privacy..Requestor has taken the position that Mr. Ruth waived any claim of a reasonable expectation of privacy when he invited the officers into the home. Mr. Ruth cannot, however, waive Ms. Ruth’s privacy rights. Copies of the body cam recordings (meaning all 9 files in one instance and six files in the other as a whole) in question is included with this request for review by your office. A copy of this request for an opinion is being sent to Mr. Cooksey as the requestor and to Mr. Ruth due to the potential implication of his privacy interests. No recording is produced at this time, as it is unclear whether the entire recording is considered to have been recorded within the curtilage of the home, and because the statute does not appear to require that the person who has a reasonable expectation of privacy must be the one who is the subject of the recording. Nor does the statute appear to contemplate a waiver of such expectation of privacy by the person who is the subject of the recording. Lastly a copy of an in-car video and audio recording is requested, that being In-Car Video #128. That recording contains that same occurrences recorded by the patrol car and the deputy’s body microphone. The same portions of audio that were recorded on Body Camera #128 are in the in-car video. The same rules would apply to the audio of that as apply to the Body Camera #128 recordings. It is not clear whether the same would apply to the video recording, though video from the car was recorded in the same location. The Prosecutors Pro Temp take no position on the propriety of releasing the recordings now that the prosecution has ended, but ask that an opinion be rendered so it can be properly determined what is legally permitted to be released, what is prohibited from release in order that any recording that prohibited from release not be improperly released. For ease of use, the recordings have been placed on a USB drive for review. The times specified above are in lieu of marking the actual recordings as the undersigned is not aware of'a way to mark the recordings in the same manner in which, for example, a .pdf file may be marked. The times and full recording of Body Camera #128 are intended as arepresentative sample to be used in judge In-Car Video #128. Based on the determination as to Body Camera #128, the equivalent portions of In-Car Video #128 will be produced or Withheld as required. Accordingly, since all three recordings are subject to the Attorney General issuing an opinion, none of them have been produced to the requestor, Mr. Ruth, or Ms. Ruth. A copy of this request is being provided to each of them at as required. Sincerel, Scott K. Stevens Prosecutor Pro Tem Brown County, Texas First Assistant District Attorney Coryell County, Texas P.O. Box 919 Gatesville, Texas 76528 254-865-5911, ext, 2267 254-865-5147 (fax) scott.stevens@coryellcounty.org State Bar No. 19189420 ce: joecooksey@harrisbb.com William Wesley “Bill” Ruth via email to william.w.ruth@icloud.com Peggy Joyce Ruth, 601 CR 233, Brownwood Texas 76801-8721