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Bulldog’s Complaint Dismissed

Posted Friday, April 22, 2011 4:21pm
County Attorney’s Office ‘Cannot Determine’
City of Austin Committed Alleged Violations

Bulldog’s Complaint Was the First Presented
for Violation of Texas Pubic Information Act

by Ken Martin
© The Austin Bulldog 2011

The Travis County attorney’s office today issued a response to The Austin Bulldog’s complaint that alleged the City of Austin had violated the Texas Public Information Act by withholding public information.

The letter signed by James W. Collins, executive assistant Travis County attorney, states that the county attorney’s office “cannot determine that the violations alleged in your complaint were committed by the City of Austin.”

The letter states that this was a first complaint received by the Travis County Attorney’s office that was filed under Section 552.3215 of the Texas Public Information Act.

Attorney Bill Aleshire of Riggs Aleshire and Ray LP, who represented The Austin Bulldog in this matter, said, “This decision does not say the county attorney’s office exonerated the city, just that the county attorney’s office could not determine that the violations occurred as worded in the complaint.

 

City, council members answer lawsuit

Posted Monday, April 11, 2011 1:22pm
City of Austin and Council Members File
Answer to The Austin Bulldog’s Lawsuit

Answer Challenges Standing and Claims
Requests for Open Records Fulfilled, Mostly

by Ken Martin
© The Austin Bulldog 2011

Separate answers were filed this morning for the City of Austin, Mayor Lee Leffingwell and each council member in response to The Austin Bulldog v. Mayor Lee Leffingwell et al.

The Austin Bulldog filed the lawsuit in state district court March 1 to sue the mayor and each council member in their official capacity, and the City of Austin, for failure to promptly and fully respond to The Austin Bulldog’s requests filed January 19 and January 27, 2011, under the Texas Public Information Act. (See March 2 report.)

Despite numerous searches, and multiple separate releases of e-mails and text messages by the mayor and council members, nearly four months have elapsed since the initial requests and the city has still not released all the records that existed on city servers—and concedes that fact in its answer to the lawsuit.

What legal action The Austin Bulldog takes in response to the defendants’ answers to the lawsuit will be determined after evaluating what the city means when it says it will “very shortly” furnish additional records responsive to The Austin Bulldog’s open records requests.

Pattern of hiding communications

City Council Records Retention Problems

Posted Wednesday April 6, 2011 9:03pm
City of Austin’s Records Retention Undermined
by Lack of Controls Over Deletion of E-mails

Missing Records Likely More
Important Than Gossipy Tidbits

Investigative Report by Ken Martin
© The Austin Bulldog 2011

The Austin American-Statesman and some television reports had a field day serving up e-mail exchanges among the mayor and council members that reveal the proclivity of some officeholders to hold side discussions among themselves during council meetings in which they demeaned certain citizens and showed a lack of confidence in high-level employees, including the city manager, an assistant city manager and the fire chief.

This rush to dish the dirt out of the e-mails that have been released—in response to open records requests filed under the Texas Public Information Act, first by The Austin Bulldog and later the Statesman and other media—has been entertaining, in a sense, and has triggered profuse apologies from the offending officeholders. A heaping helping of humble pie has been served up and choked down.

What has not been reported is how these elected officials, and their staff members, may be failing to properly manage e-mails and other correspondence to make sure that local government records are collected, assembled, and maintained in accordance with the Local Government Records Act.

At present, the city permits every city official and employee to conduct public business by creating or receiving local government records via e-mail and to keep them secret by using personal e-mail accounts.

The city also permits every official and employee who uses a computer to choose—without review by anyone else—when to delete local government records in the form of e-mails created or received on the city’s computers. Once e-mails are deleted, the right of access to them through the Texas Public Information Act, Government Code Chapter 552, is soon permanently lost.

The city’s failure to comply with the Texas Public information Act and the Local Government Records Act was the basis for the lawsuit, The Austin Bulldog v. Mayor Lee Leffingwell, et al, as reported March 2. The city has until April 11 to file its initial reply to the pleadings.These shortcomings are also the basis for The Austin Bulldog's complaint filed with County Attorney David Escamilla,as reported March 23.

The city’s response to The Austin Bulldog’s open records requests for deleted e-mails indicate that some e-mails that should have been retained are being deleted.

Records retention basics

Bulldog Files Civil Complaint Against City

Posted Wednesday March 23, 2011 4:54pm
The Austin Bulldog Files Civil Complaint
Against City of Austin and Council Members

Travis County Attorney David Escamilla
Has Legal Authority to Force Compliance


by Ken Martin
© The Austin Bulldog 2011

David EscamillaThe Austin Bulldog today filed a formal complaint with Travis County Attorney David Escamilla against the City of Austin and Austin City Council members pursuant to Section 552.3215 of the Texas Public Information Act (TPIA), Chapter 552 of the Government Code.

This complaint, which is civil in nature, not criminal, requests that Escamilla use his authority to determine if the City of Austin and its officials have violated the TPIA as alleged in the complaint.

If Escamilla finds that violations have occurred, the complaint asks that he seek a court order requiring the city, council members and staff to comply with the Act. He has the authority to bring a lawsuit in the name of the State of Texas for declaratory judgment and injunctive relief that is in addition to any other civil, administrative, or criminal action.

Escamilla declined to comment about the complaint.

Filing the complaint initiated a statutory process, detailed in Section 552.3215(g) of the TPIA, that by law requires Escamilla before the 31st day after the complaint is filed (in this case before April 23) to determine whether the violation alleged in the complaint was committed and whether an action will be brought against the governmental body, and to notify the complainant in writing of his determination.

Complaint separate from lawsuit

Expired: Bulldog’s Offer to Settle City Lawsuit

Posted Friday, March 18, 2011 6:14pm
Expired: The Austin Bulldog’s Offer to Settle Its
Lawsuit with City, Mayor and Council Members

Does This Mean These Elected Officials
Want to Continue to Violate State Laws?

by Ken Martin
© The Austin Bulldog 2011

As reported March 2, The Austin Bulldog filed a lawsuit against the mayor, each city council member, and the City of Austin over the city’s decision to withhold certain government records—including records involving public business that were created or received on the mayor or council members’ cell phones or personal computers or the city’s Spark chat system.

The lawsuit claims that council members have violated records management laws by not turning these records over to the city so that the city can comply with the Texas Public Information Act.

Bill AleshireJim CousarOn March 4, The Austin Bulldog’s attorney, Bill Aleshire of Riggs Aleshire & Ray PC, submitted a settlement offer to the attorney handling the lawsuit for the city, James E. “Jim” Cousar of Thompson & Knight LLP.

The Austin Bulldog seeks to help the City of Austin become the shining beacon of open government in Texas,” the settlement offer states. “An important first step in that process is for Austin officials to stop communicating about city business in ways that avoid application of the Texas Public Information Act to such correspondence.”

The settlement offer expired at 5pm today. No defendant accepted the proposed terms. Fifteen minutes before the offer expired, Cousar spoke with Aleshire on the telephone.

“He (Cousar) told me that six of the seven members of the council and the City of Austin respectfully decline the offer to settle,” Aleshire said. “I told him we would respectfully proceed with the lawsuit.”

Settlement offer conditions