Well-intentioned reforms were made during county attorney’s investigation but the City’s TPIA compliance is still shaky
Investigative Report by Ken Martin
Part 1 in a Series
“Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees….” —Texas Public Information Act
Major flaws in the City of Austin’s response to public information requests were exposed in The Austin Bulldog’s stories about the experiences of requestor Brian Rodgers in his lawsuit, Brian Rodgers v. City of Austin.
The City not only failed to provide the information but ignored complaints from Rodgers’ attorney, Bill Aleshire—even his final warning that litigation would ensue if the information were not provided. Then when the lawsuit did hit, the City heedlessly claimed in its original answer that the information had already been provided. During discovery that claim was proven to be patently false.
The lawsuit was settled with the City agreeing to pay Rodgers $5,000 for its poor handling of his several information requests and to avoid a motion for sanctions for its inept response to the lawsuit. That’s only about half the amount he spent to force the City to pay attention.
This article will detail how and why the City’s system for processing public information requests became what it is today. Later articles will show that what happened to Rodgers was not an isolated incident but rather an indication of systemic problems.
Big changes made but flaws remain
These problems have persisted despite numerous major initiatives.
The City created a team of senior advisors to review its practices and make recommendations to enhance compliance and oversight, and streamline the process for public information requests.
The City moved responsibility for processing public information requests to the Law Department and established within it a Public Information Request (PIR) Team whose salaries now total more than $300,000 a year.
The City committed more than $360,000 to contract for a PIR software system and provided training on the new software to more than a hundred PIR Team and departmental employees who process requests.
Despite these efforts the city has not maintained complete and consistent compliance with the TPIA and the statutory requirements and deadlines it imposes.
To appreciate the City’s current system for responding to PIRs it is necessary to first understand in more detail the major changes that have been made and the forces that necessitated these efforts.
One thing is certain: these changes were not made as a result of some entrepreneurial spirit rising up spontaneously within the City bureaucracy. They were not prompted by an elected leadership that suddenly chose to seek the Holy Grail of transparency and open government.
These changes were made to amend for criminal conduct that could have landed the entire governing body in jail. In fact the City spent more than $600,000 on outside attorneys to fend off prosecution for criminal violations that led to these reforms and provide advice about how to achieve better compliance. These reforms were initiated while being investigated to convince prosecutors that the City was serious about doing better.
Turning over a new leaf
The story begins nearly five years ago.
That’s when The Austin Bulldog broke the news that the mayor and every council member were participating in regularly scheduled round-robin meetings to discuss city business behind closed doors.
The same day our story broke—January 25, 2011—County Attorney David Escamilla announced he had received a criminal complaint about these regularly scheduled private discussions and was reviewing it.
The person who filed the complaint was Brian Rodgers, a real estate investor, co-founder of ChangeAustin.org, and longtime civic activist who has routinely requested information from the City about matters of significant public interest—the same man who just settled a lawsuit with the City of Austin over his public information requests.
Escamilla’s low-key announcement marked the beginning of a 21-month criminal investigation.
Flash forward to October 24, 2012, when Escamilla announced the results of that investigation. He issued a seven-page press release that stated, “In addition to the systematic one-on-one meetings that were the subject of the original complaint, we found that council members regularly deliberated outside of the public’s purview by use of almost every modern communications medium that exists.
“As a result of our investigation, we found probable cause to believe that multiple violations of the Texas Open Meetings Act had occurred.” Probable cause exists when facts and circumstances would lead a reasonable person to believe that a suspect had committed a crime.
A member or group of members of a governmental body commits an offense if the member or group of members knowingly conspires to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter.
The evidence showed the topics discussed in these illegal quorum communications included how much money they would vote to approve in settling with the family of Nathaniel Sanders II, who was shot and killed by a police officer; coordinating public statements they might make about that shooting; discussing the proposed construction of Water Treatment Plant 4, which would cost some $500 million dollars; discussing the upcoming performance evaluation of City Manager Marc Ott “that can get us to 7 (votes); and much, much more.
To avoid being charged, prosecuted, and, if convicted, sentenced to from one to six months in jail and fined, each elected official—and their respective criminal defense attorneys—signed Compliance Agreements (aka Deferred Prosecution Agreements).
An ingrained practice
The agreements showed that the investigation found probable cause and listed specific violations that had been committed on numerous occasions by each elected official, including Mayor Lee Leffingwell and Council Members Sheryl Cole, Mike Martinez, Laura Morrison, Chris Riley, Bill Spelman, and Randi Shade. (Shade, who was defeated by Kathie Tovo in her reelection bid of 2011, was no longer on the City Council when the investigation was completed, but nevertheless was required to sign an agreement.)
Mayor Lee Leffingwell, initially elected as a council member in 2005, was the longest serving member of the 2011 City Council. The agreement he signed states that even when he first took office there was an existing practice of systematically scheduling private one-on-one meetings between council members and the mayor to discuss each week’s City Council meeting agenda. The agreements signed by the other council members were similar, in that they all began participating in these closed-door meetings as soon as they took office.
As mayor, Leffingwell in July 2010 changed this longstanding practice—and in effect compounded the offense—by instead scheduling and holding two-on-one meetings with council members, because, as he stated in an e-mail, there had not been enough time in one-on-one meetings to go over the entire council meeting agendas.
These illegal meetings continued as an institutionalized practice until The Austin Bulldog exposed it and the county attorney’s investigation was announced. As a result, the private meetings were immediately halted. The council instead started holding posted work sessions with published agendas.
But the elected officials were also put on their best behavior going forward. The agreements they signed included a waiver of the statute of limitations on use of the collected evidence. This provision would allow the county attorney the option to use the evidence for prosecution if they were to commit new violations within two years.
In effect, the mayor and council members were put on probation to ensure compliance.
Because the elected officials were not charged and convicted, the City reimbursed the fees charged by their respective criminal defense attorneys, which totaled $157,636.
The payments were discretionary, not mandatory, and were paid without action by the City Council in a public meeting. This was possible because the amounts paid for individual attorney’s fees—from as little as $7,525 for Council Member Spelman, to as much as $47,810 for Mayor Leffingwell—did not exceed the City Manager’s spending authority.
The Austin American-Statesman reported the city had also paid three law firms a total of $444,000 for advice on matters relating to complying with the Texas Open Meetings Act.
Thus the City spent more than $600,000 working its way through the county attorney’s investigation, avoiding criminal prosecution, and agreeing to improve compliance.
This was a costly and traumatic experience for the City and its elected officials, but changing meeting practices was not nearly all that was done.
E-mail and public information
The county attorney’s press release ending the open meetings investigation stated, “During the course of our investigation, it became apparent that additional transparency weaknesses beyond TOMA (Texas Open Meetings Act) existed at City Hall, including in the areas of the Texas Public Information Act (TPIA), personal financial disclosure requirements, and records retention. The agreements released today, along with new initiatives adopted by the City, include provisions for greater attention and compliance with all these requirements by the council members involved.”
In addition to reforming the City Council’s meeting practices, and with the goal of attaining better TPIA compliance, the City has made major changes in how it handles public information requests. It also issued new policies governing the use and retention of electronic communications for city business.
These changes, too, were triggered by The Austin Bulldog when on March 1, 2011—and during the early stages of the county attorney’s investigation—the Bulldog sued the City for failure to release some 13 months of e-mails about city business that the mayor and council members had exchanged on their private e-mail accounts.
The lawsuit was prompted by the City’s response to The Austin Bulldog‘s public information request for e-mails the elected officials had exchanged about city business from January 1, 2010, through January 27, 2011.
The City charged The Austin Bulldog $1,043 for copies of 2,660 pages of these e-mails but provided only copies of messages that were exchanged through the elected officials’ city e-mail accounts. (All other media organizations got these records a few days later for free because the Bulldog—being the first requestor—paid the charges levied to collect, assemble, and redact the records as needed.)
Withheld e-mails from private accounts
The City did not provide any e-mails that had been exchanged about city business on private accounts. The City claimed that it did not collect, assemble and maintain e-mails these officials exchanged about city business on their private accounts.
Worse, the City claimed it had no legal right of access to those messages. That claim proved indefensible because The Austin Bulldog’s request for e-mails was addressed not only to the City but also to the individual officeholders—who by law are the official custodians of records for their offices. In essence the City was falsely claiming the elected officials did not have access to their own private e-mail accounts.
Once sued, however, each of the officials relented and “voluntarily” turned over varying numbers of e-mails. In doing so, some claimed they thought the law was “unsettled” on the issue of whether these e-mails were public information. This despite numerous advisory opinions issued by the Texas Attorney General that stated such e-mails were public information and subject to disclosure.
Less than six weeks after being sued, on April 7, 2011, the City Council enacted Resolution No. 20110407-014 to require the elected officials and the five employees they directly supervise to use government accounts for official business. The Resolution stated that if circumstances were to require the use of private e-mail accounts, they must promptly forward those communications to their government accounts so the correspondence could be retained and available upon request.
Four months later, as directed by the same Resolution, City Manager Marc Ott issued Administrative Bulletin 08-06 to establish a similar policy that applied to all City employees. Eventually, as required by the Resolution, a similar policy was also applied to the appointed members of all City boards and commissions, who for the first time were issued City e-mail addresses. (Previously, board and commission members had used their private e-mail accounts in conducting City business, and those private e-mail addresses were “official” in the sense they were published on the City’s website.)
In addition to these actions taken by the City, the Texas Legislature in its 2011 session updated the TPIA to make explicit what the Attorney General’s opinions already stated: that correspondence about government business is public information regardless of where the communication originates or where the information resides. These records literally belong to the government—not to the public official or employee who sends or receives them.
Public information system evolution
Even after the county attorney’s investigation was completed in late 2012, the City’s Communications and Public Information Office was responsible for receiving public information requests and coordinating internal city actions to retrieve responsive information. That changed in 2013 when the Law Department started preparing to take over that responsibility.
In July 2013 the Law Department hired a public information manager—a newly created position. The manager would form and head a PIR Team of employees who would receive and process public information requests.
The PIR Team, initially consisting of the manager and one assistant, and with help from the city attorney’s paralegal, took over those duties in September 2013. Two additional employees were hired in December 2013. At the time the process was manually managed and PIR compliance with TPIA deadlines were monitored using only an Excel spreadsheet.
In laying groundwork for a future in which PIR processing would be automated, the City signed a contract in December 2013 to purchase software services from vendor Lockheed Martin Desktop Solutions Inc. for a Hosted Public Information Request System at an initial cost of $305,924 (subsequently increased to $363,842 through amendments).
Use of the new software—called the IQ PIR Tracker System—went live a year later in December 2014. According to Austin Finance Online, Lockheed Martin was paid $236,971 between February 2014 and June 2015, the latest payment posted.
The IQ PIR Tracker system requires the PIR Team to log each new request, assign each a unique PIR number, and then direct the PIR to the City department(s) that may have responsive information.
The online-form page also has information about requesting records from Austin Municipal Court, but it should be noted that court records are not subject to the TPIA. Municipal Court will respond and provide certain information but it isn’t bound by the deadlines or subject to the penalties imposed by the Act.
The Austin Police Department has a separate site for public information requests but those also are logged into the IQ PIR Tracker System.
Finding responsive information
Each City department and office has designated one or more Single Points of Contact (SPOCs) who are individually licensed to use the software. These employees receive public information requests from the PIR Team, make an entry in the IQ PIR Tracker System to show they have acquired it, and then contact the appropriate personnel within their department to search for and retrieve the requested information.
For PIRs seeking e-mails involving the elected officials and their staff members, the searches are performed by the Communications and Technology Management Department (CTM) but any information that’s found is provided to the elected officials’ offices for review.
CTM does have the capability to search for e-mails for all city personnel, but “only does so upon request from the department,” said Media Relations Manager David Green.
In actual practice, the searches for responsive e-mails held by the departments are done by departmental personnel. This may entail searching the computers of whoever may have the information being sought.
In the deposition of Public Information Manager Santos Eloy Del Bosque III, taken in the lawsuit Brian Rodgers v. City of Austin, he testified that he was not aware of any training programs, guidelines, or suggestions that departments have been given to understand how to accurately locate potentially responsive records.
Further, the TPIA, which requires elected officials and certain others to undergo training in the law, does not require this training to be taken by the pivotal employees in each department and office who must deal with each public information request that comes their way.
Government agencies are permitted to charge for providing public information. If the charge for a copies will exceed $40 or a request to inspect paper copies will exceed $40, a written itemized statement must be provided to the requestor, per TPIA Section 552.2615. The requestor then has 10 business days to either accept the charge or modify or cancel the request.
Providing responsive information
Once the information has been located the department will review it to determine that it is responsive to the request, redact elements that cannot be released (such as the e-mail addresses of private persons), and identify legal exceptions, if any.
If responsive information appears to qualify for a legal exception and be withheld from release, the records will be conveyed to the Law Department for review and, if necessary, for filing a request for an Attorney General’s opinion for permission to withhold. If an AG’s opinion is requested, that will add significant delay, as it may take 45 days or more to get a decision.
The requestor must be provided with a copy of the City’s request for an AG’s opinion. The requestor also will receive a copy of the opinion itself. Requestors do not have to wait passively when an AG’s opinion has been sought. They are entitled to file their own comments with the AG to argue for release of the information the City seeks to withhold.
If no legal exception bars release, the TPIA requires that “a governmental body shall promptly produce public information for inspection, duplication, or both.” The Act defines “promptly” to mean “as soon as possible, under the circumstances, that is, in a reasonable time, without delay.”
If the information cannot be produced within 10 business days after the date the information is requested, the agency “shall certify that fact in writing to the requestor and set a date and hour within a reasonable time when the information will be available for inspection or duplication.”
Once responsive information has been located, reviewed, redacted, and determined to be appropriate for release, then the department may either send it to the requestor directly or relay it to the PIR Team for release to the requestor.
Responsibility for compliance is diluted
The City Attorney is the senior executive responsible for ensuring the City’s TPIA compliance. The City Attorney does not directly oversee these processes, but the PIR Team is in her department and under the direct supervision of the department’s chief administrative officer.
Most of the actual responsibility for compliance with the TPIA is—and always has been—in effect delegated to the City’s various offices and departments. The key responsibility of the PIR Team is to correctly identify the departments and offices that may have the public information being requested, send the PIR to them for action, and follow-up to ask for timely response.
The PIR Team can’t second guess the effectiveness of searches for information performed by the City’s many offices and departments. In that sense, the City’s PIR response is not much different now than when the Public Information Office fielded requests.
In his August 26, 2015, deposition taken in Brian Rodgers v. City of Austin, Public Information Manager Del Bosque testified, “[W]e send out requests to the departments, and then we rely on the departments to get us back the information.”
The key difference is that having the IQ PIR Tracker System software provides a far better capability to monitor how each request is handled, to follow up as needed, and to document every step of the process.
The IQ PIR Tracker System also provides a means to attach whatever information has been sent to a requestor so that the information will be readily available should another person ask for it.
Still, the responsibility for responding to PIRs remains highly fragmented.
Attorney Aleshire asked Del Bosque this hypothetical question in the deposition:
“Suppose that a department has very embarrassing documents that they have that are responsive to a PIR, but the department personnel doing the searches does not want to produce those documents or even admit that the document exists. So they respond to your office that they have no responsive records. How would they ever get caught doing that?”
To which Del Bosque replied:
“My only knowledge of it, that their response to us was they had no responsive information. So I would have no way of knowing. We rely on the departments.”
Compliance with the TPIA and the deadlines it imposes depends on the dutiful performance of every person involved. Compliance also heavily depends on the integrity of the people who possess responsive information to release it—even when the information may be embarrassing or possibly incriminating.
The PIR Team has doubled in size since September 2013 when the Law Department first assumed responsibility for processing information requests. Today it consists of the manager and five others.
But if the PIR Team makes no concerted effort to consistently send requests to the appropriate departments—and then follow up to monitor progress—the statutory deadlines for responding to public information requests will not be met consistently. Errors will occur. Requests will fall through the cracks of a system that depends upon close attention to duty by every individual involved.
The overarching questions
Brian Rodgers’ TPIA lawsuit and the depositions taken in discovery, as reported by The Austin Bulldog November 9, provided an unwelcome but insightful example of what happens when a cog jams in the City’s machinery.
When the machine stalls then questions must arise:
• Was the failure to comply with the law the result of negligence? Clearly the City was negligent in responding to Rodgers’ requests.
• Was information willfully withheld or delayed until it was virtually useless to citizens interested in being informed about and interacting on matters of public concern before final decisions are made?
• When does negligence or inordinate delay become so egregious that it takes a lawsuit to pry the information out of the bureaucracy?
• And while the TPIA gives requestors standing to sue for information, how many requestors can afford to use this last-resort, expensive, and time-consuming option?
“…The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.” —Texas Public Information Act
This report was made possible by contributions to The Austin Bulldog, which operates as a 501(c)(3) nonprofit to provide investigative reporting in the public interest. You can help sustain this important work by making a tax-deductible contribution&view=form&id=7&Itemid=19″>tax-deductible donation.
City of Austin Resolution For Use of Personal Communication Devices, Resolution No. 20110407-014
Oral Deposition of Sue Edwards, August 28, 2015 (101 pages)
Oral Deposition of Santos Eloy Del Bosque III, August 26, 2015 (125 pages) with appended changes of October 9, 2015 (3 pages)
Settlement Agreement and Release, Brian Rodgers, Plaintiff, v. The City of Austin, Defendant, Cause No. D-1-GN-15-002291
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