Public Information

 Depositions Expose Public Information Flaws

An assistant city manager who doesn’t like to write,
a public information manager who is inexperienced

by Ken Martin
© The Austin Bulldog 2015
Posted Monday November 9, 2015 3:44pm

“The City of Austin is committed to an open and transparent government. I believe this is an integral part of maintaining a vital and robust democracy.” — City Manager Marc Ott

Ott published this oft-repeated pledge in an April 8, 2015, memo titled “City of Austin Open Data Initiative 2.0.”

Yet, the City has failed to consistently live up to that commitment. By actual performance the City has demonstrated that it receives and routes public information requests to departments or offices thought to have the applicable records but fails to follow up and ensure compliance with the Texas Public Information Act (TPIA) Government Code Chapter 552.

A prime example of the City’s spotty performance was evidenced in the outcome of the lawsuit Brian Rodgers v. City of Austin. As reported November 2, 2015, by The Austin Bulldog, the City agreed to pay Rodgers $5,000 to settle the case and thereby avoid a motion for sanctions or a full-blown trial over its gross mishandling of his public information requests and its inept response to the lawsuit.

Rodgers, who spent about twice the amount he’s getting back in settling the lawsuit, considers the expense to be a good investment in his education as a civic activist. As the plaintiff he sat in on the two depositions taken in this case and observed firsthand how the public officials answered.

“I finally get to understand how the process works—I no longer have to wonder,” Rodgers told The Austin Bulldog. “It's a lack of power by public information manager, a lack of cooperation by city staff, and no one responsible to comply with the law. So it’s set up to gum up the work of activists. Justice delayed is justice denied.

“If they intentionally wanted to thwart people from getting to the root of things before the City Council decides, this will do it,” Rodgers said. “It's easily gamed.”

Although Ott’s commitment to open government, cited above, was made within the context of expanding an existing initiative to publish more of the valuable data the City collects on the City’s website—and in the process possibly reduce the number of public information requests—the City cannot achieve openness, transparency, and accountability if the public’s right to know, which is enshrined in the TPIA, is thwarted.

Two sworn depositions taken by Rodgers’ attorney, Bill Aleshire of Aleshire Law PC, as part of the discovery process in the lawsuit provide significant insights about the shortcomings in the City’s public information system.

(Disclosure: Aleshire has represented The Austin Bulldog in three lawsuits, two of which were TPIA actions against the City of Austin (see links to related stories below.)

Deposition of assistant city manager

 Rodgers Settles TPIA Suit for $5,000

City’s bungled response to Rodgers’ public information
requests compounded by inept handling of lawsuit

by Ken Martin
© The Austin Bulldog 2015
Posted Monday November 2, 2015 1:34pm

In a relatively rare but not unheard of result in a civil lawsuit filed under the Texas Public Information Act (TPIA), the City of Austin will pay civic activist Brian Rodgers $5,000 to settle. He filed the lawsuit June 11, 2015, after the City failed to provide public records he had requested about three high-profile matters of public interest.

From his point of view the roughly $10,000 Rodgers spent on this lawsuit was a good investment, even though he will recoup only half that amount.

“Central to my effectiveness as an activist is my ability to get information from the city, facts on how decisions are made,” Rodgers told The Austin Bulldog. “Without transparency there is no way to do it. I can't interview every staff person. The lawsuit was necessary because I had reached an impasse on getting documents. They were stalling, redacting things they shouldn't have.”

Rodgers’ public information requests sought records about how plans were formulated to lease 700 acres of land at Walter E. Long Metropolitan Park in East Austin for a private, for-profit golf development; the City’s failure to procure 75 acres of surplus state land along Bull Creek Road for an inner-city park; and City officials’ communication with the Downtown Austin Alliance leading up to a light-rail election in which the organization spent $440,000 of tax funds on political advertising to back the plan.

The $5,000 payment will be made pursuant to a settlement offered by Rodgers, accepted by the city, and signed October 27 by Assistant City Manager Sue Edwards.

The settlement requires the city to pay Rodgers within 30 days, and requires Rodgers to within 10 business days of receiving payment to file a request to dismiss the lawsuit with prejudice, meaning Rodgers is forbidden from filing another lawsuit based on the same grounds.

Rodgers attorney Bill Aleshire of Aleshire Law PC said, “The City settled the case rather than face a hearing on sanctions or a full-blown trial over the way they handled Rodgers’ public information requests in the first place, and then how they handled his lawsuit.”

Disclosure: Aleshire has represented The Austin Bulldog in three lawsuits, two of which were TPIA actions against the City of Austin (see links to related stories below).

No admission of guilt

 Commissioner Daugherty Won’t Be Prosecuted

Prosecutor filed motion to dismiss criminal complaint
over alleged violations of Texas Public information Act

by Ken MartIn
© The Austin Bulldog 2015
Posted Friday October 23, 2015 3:00pm

The special prosecutor who investigated a criminal complaint against Travis County Precinct 3 Commissioner Gerald Daugherty told The Austin Bulldog he has presented to the presiding judge a motion to dismiss the case and a proposed order.

“There's no evidence of probable cause,” said Leslie B. Vance of Marble Falls, the former district attorney handling the complaint.

The criminal complaint filed March 17, 2014, alleged that Daugherty violated sections of the Texas Public Information Act through “willful destruction of public information and ... criminally negligent failure and refusal to give SOS Alliance, as requestor, access to public information.”

Bill Bunch, executive director of the Save Our Springs Alliance, who signed the criminal complaint, strongly disagrees with Vance’s decision to seek dismissal.

“Suggesting there was no violation is rather absurd in this case when Commissioner Daugherty admitted under oath that he deleted e-mails, deleted text messages, and did not produce some of the documents until months after the request because he overlooked them,” Bunch said, referring to Daugherty’s sworn deposition taken in a related civil case, which is still pending.

Vance said, “He didn’t do anything that violates the law, there’s been no crime committed by him. That’s why the civil case has all but been dismissed—and it’ll be dismissed too.”

The civil case was argued before District Judge Stephen Yelonosky July 13, as reported by The Austin Bulldog. Both Travis County and the SOS Alliance have filed additional briefs as recently as October 6 that Yelonosky will consider in deciding jurisdictional issues.

Calls seeking comment from Commissioner Daugherty and his criminal defense attorney, Randy Leavitt, were not immediately returned.

The argument for prosecution

 Daugherty Wins SOS Round One

Judge Yelonosky rules mostly in favor of county
commissioner but leaves room for further action

by Ken Martin
© The Austin Bulldog 2015
Posted Monday July 27, 2015 4:20pm

In the public information lawsuit the Save Our Springs Alliance initiated against Travis County Precinct 3 Commissioner Gerald Daugherty, which was argued in court July 13, District Judge Stephen Yelonosky denied most of what the plaintiff sought.

But the judge left the door open as to whether the SOS Alliance could persuade the court to order Commissioner Daugherty or Travis County, or both, to change recently enacted policies regarding retention of and access to public records.

“There remains a question of the court's jurisdiction, as a pure question of law, over a Declaratory Judgment Action seeking to enforce the Public Information Act. The parties have not adequately briefed this, so the court must defer a ruling on the plea to the jurisdiction in this regard until they have,” the ruling states.

Although the lawsuit is technically about whether Daugherty has properly complied with the Texas Public Information Act by providing all records requested by the SOS Alliance May 31, 2013, the larger issue is whether SOS can 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.

SOS may seek to settle out of court

 SOS v Daugherty Pending Decision

Travis County seeks dismissal of lawsuit against
county commissioner, SOS wants more records

by Ken Martin
© The Austin Bulldog 2015
Posted Tuesday July 21, 2015 12:58pm
Updated Tuesday, July 21, 2015 5:03pm (to include a link to the SOS Alliance’s original petition)

In an ongoing battle over whether State Highway 45 Southwest will be built over the environmentally sensitive Barton Springs portion of the Edward Aquifer, the Save Our Springs Alliance is waging a two-pronged attack, through both a civil lawsuit and a criminal complaint, on Travis County Precinct 3 Commissioner Gerald Daugherty, the leading proponent of the project.

Both actions claim that Daugherty violated the Texas Public Information Act, which provides both civil and criminal penalties for violations.

The criminal case is being held in abeyance until the lawsuit is resolved. To that end, a nearly three-hour hearing was held July 13 before Judge Stephen Yelenosky of the 345th Judicial District Court.

Assistant County Attorney Tony Nelson, who represents Daugherty, contends the lawsuit should be dismissed.

Nelson filed a Plea to Jurisdiction April 8, 2015, meant to refute claims made by SOS in the lawsuit and request dismissal because Daugherty and Travis County have exhausted all means of finding and providing the records that SOS requested in its public information request.

The SOS request was for any e-mails, memoranda, and attachments sent or received by Daugherty or his executive assistants that referenced the proposed SH45 SW that were sent or received between January 1, 2013, and the date of the request, May 10, 2013. The request covered the beginning months of Daugherty’s current term in office.

Issues before the court