In the comments to this post, Morat suggests the statute that DPS was talking about, and goes to show why it's not applicable. Josh Marshall is on the same page, and he's quoted from this Star Telegram article and this Statesman article to show the contradiction that DPS is in.
"The mere invocation of it is nothing more than an attempt to find an excuse, to find some sort of cover for what is clearly an embarrassing action that was probably taken hastily," said Houston attorney Rob Wiley, a former president of the Texas Freedom of Information Foundation. "It seems on its face to be ludicrous."
Wiley and Austin media law attorney Bill Aleshire said the records destruction might have violated state open records laws, or worse.
"We've got DPS using the criminal investigation apparatus of the U.S. to track the Killer Ds, and then they destroy the evidence of the tracking on the grounds that it wasn't a criminal matter," Aleshire said. "DPS knew the first day they were looking for the Killer Ds that it was not a criminal investigation. If they violated federal regulations, if not other laws, in using the criminal investigation apparatus for this political purpose, the destruction of the records that were created could be considered obstruction of justice."
Aleshire noted that the federal code the department cited to destroy the records also seems to prohibit it from using its criminal intelligence program to collect information on the missing lawmakers.
The code is a lengthy federal provision setting guidelines for handling records in far-ranging criminal investigations such as loan sharking and drug trafficking.
Among other things, the code requires that law enforcement agencies "shall make assurances that there will be no harassment or interference with any lawful political activities as part of the intelligence operation."
Ridge made the statement near the end of a hearing before the House Select Committee on Homeland Security, as Democrats repeated their request that he release tapes of conversations between the Texas Department of Public Safety, which was searching for the missing Democrats, and an agency of Ridge's department.
"This is now potentially a criminal investigation," Ridge responded to a question from Rep. Bill Pascrell, D-N.J. "The tapes are part of the evidentiary chain. When you're involved in a criminal investigation involving information and pieces of evidence, they're not necessarily available for public review right now. At some point in time I suspect it will be available."