Public Information

 Tab for Public Records $133,000

City of Austin cost estimate for records
related to its Right of Way decisions

by Ken Martin
© The Austin Bulldog 2017
Posted Monday June 12, 2017 11:03am
Updated Tuesday June 20, 2017, 12:14pm 
to add theCity's first response to the attorney general

Well this case probably would not qualify for the Golden Padlock Award bestowed annually by Investigative Reporters and Editors. The award is designed to dishonor the most secretive publicly funded agency or person in the United States.

But on a local level in the Austin area—if anyone were keeping track—this might rank among the highest cost estimates furnished by a government agency for providing records in response to a single public information request.

The request was filed with the City of Austin by Wayne Dolcefino of Houston-based Dolcefino Consulting. Recently he survived a head-on highway wreck that might easily have been fatal. Now he’s trying to make the best of a collision between the public’s right to know and a government agency’s unyielding response.

Dolcefino is no stranger to public information fights. He is a former investigative reporter and winner of 30 Emmy Awards for his work in television and numerous other awards, according to his website. Back in the 1970s he worked at KLBJ Radio here in Austin. More recently, in Houston at KTRK-TV he headed the station’s 13 Undercover Unit at for 27 years.

Dolcefino filed a public information request six months ago and is still waiting for the information. He asked for records that he needed to investigate the “staggering right of way fees for developers trying to build new apartment complexes and office buildings,” which he says ultimately result in charging higher rents to cover the costs.

He asked for copies of three kinds of records: (1) the personnel files of 11 named employees, (2) emails sent or received after January 1, 2016, by these employees, and (3) other electronic communications covering the same period for these individuals.

A whopper of a cost estimate

 New Public Info Procedure Questioned

City of Austin will require that emailed
requests be sent to only two addresses

by Ken Martin
© The Austin Bulldog 2017
Posted Wednesday March 15, 2017 9:18pm

The City of Austin issued a press release this morning to announce a new procedure that would take effect in three business days on March 20. It would allow requests filed under the Texas Public Information Act (TPIA) via email only to be sent to one of two addresses, one for records held by the Austin Police Department ([email protected]) and a second for all other departments ([email protected]).

“Requests sent to any other email at the City of Austin will not constitute an official records request. All City staff have been instructed to respond to requests and direct people to the proper email address,” the press release states.

Austin attorney Bill Aleshire of Aleshire Law PC, on behalf of The Austin Bulldog, immediately fired off a letter to the Austin City Attorney to challenge this procedure.

“I question the legality of this new procedure that may play ‘gotcha’ or delay when common folks make requests to the City for public information,” Aleshire wrote.

“First of all, what authority does the staff have to impose such rules? Under the TPIA, only the City Council can promulgate such rules, and I have been unable to locate any such recent action by Council.”

Aleshire is currently representing The Austin Bulldog in a petition to intervene in opposition to Travis County Attorney's motion, in his lawsuit against Attorney General Ken Paxton, to close the courtroom to the public and to permanently seal related exhbits, motions and responses in the case. Aleshire previously represented The Austin Bulldog in two successful lawsuits against the City of Austin to obtain public records.

City Attorney responds

 Big Win for Public’s Right to Know

No more hiding identities of the public officials
who do government business on private e-mails

by Ken Martin
© The Austin Bulldog 2016
Posted Monday April 11, 2016 2:09pm
Updated Tuesday April 12, 2016 10:54am (to add link to Corpus Christi Caller-Times coverage)
Updated Wednesday April 13, 2016 1:28pm (to add link to Watchdog.org Texas Bureau coverage)
Updated Thursday April 14, 2016 1:46pm (to add link to FierceGovernmentIT coverage)
Updated Wednesday April 20, 2016 3:07pm (to add link to FindLaw publication of opinion)

More than five years after The Austin Bulldog filed a lawsuit against Mayor Lee Leffingwell, the other six council members, and the City of Austin, the Austin-based Third Court of Appeals on April 8, 2016, handed down a landmark legal decision. The court ruled that government officials are not “members of the public” and when they use private e-mail accounts to conduct public business they will forfeit the right to keep their e-mail addresses concealed from the public.

The Third Court’s ruling advances the public’s interest in holding government officials accountable. The decision is of vital interest in government and legal circles, and it triggered a front-page story in the Austin American-Statesman as well as articles in both the Texas Tribune and Law360.com, a national publication covering the legal industry.

The decision serves notice to elected officials and others in government service that they ought to do the public’s business through their government-issued e-mail addresses—and not hide public information by using personal accounts.

“Any time a public official uses a private e-mail account for public business—that’s highly suspect,” said Attorney Joseph Larsen, special counsel to Sedgwick Law in Houston and a board member of the Freedom of Information Foundation of Texas.

Decision will have wide impact

 Daugherty’s Civil Case to Continue

SOS Alliance also seeks a new special prosecutor and
judge to reinstate criminal complaint against Commissioner

by Ken Martin
© 2015 The Austin Bulldog
Posted Tuesday January 5, 2016 2:15pm

The Save Our Springs Alliance won a victory in the form of a December 10, 2015, ruling by District Judge Stephen Yelonosky that will allow a trial on the merits in the civil case against Travis County Precinct 3 Commissioner Gerald Daugherty.

If the case goes to trial the SOS Alliance will seek to persuade the court to order Commissioner Daugherty or Travis County, or both, to change policies enacted last spring regarding retention of and access to public records.

Bill Bunch, executive director of the SOS Alliance, told The Austin Bulldog he will seek a finding by the court that violations of the Texas Public Information Act did, in fact, occur.

Bunch said such a finding would provide a basis for changing the policies to make sure that no violations like this occur again in the future.

In the beginning the lawsuit was about whether Daugherty had properly complied with the Act by providing all records requested by the SOS Alliance May 31, 2013. In Daugherty’s deposition and a court hearing held July 13, 2015, it was clear that he had not done so, but those records are no longer available. The larger issue for the SOS Alliance was whether it could find ammunition in those records for slowing or halting plans to build State Highway 45 Southwest over the sensitive Barton Springs portion of the Edwards Aquifer.

The case for getting more records is now moot, but Bunch wants to prevent the commissioner and Travis County from ever again failing to retain public records or allowing their destruction.

 Austin’s Failing Public Information System

Well-intentioned reforms were made during county attorney’s
investigation but the City’s TPIA compliance is still shaky

© The Austin Bulldog 2015
Investigative Report by Ken Martin
Part 1 in a Series
Posted Monday November 23, 2015 1:40pm

“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