Right to Know

Open government advocates batted .300 in getting laws enacted in the 2017 regular session of the Texas Legislature to make changes to the Texas Public Information Act (TPIA). But they were bitterly disappointed and said so during a panel discussion at the September 14, 2017, annual conference hosted by the Freedom of Information Foundation of Texas (FOIFT).

 Surfing New Wave Open Government

Symposium panelist says local efforts show
potential but Austin not open government leader

by Mark Henricks
© The Austin Bulldog 2015
Posted Thursday April 23, 2015 10:44am

New technology and new ideas promise to make government more open than ever, perhaps even someday replacing politicians with direct decision-making by citizens, according to panelists in a discussion of innovation in open government held this month at Austin City Hall. At the same time attendees were warned of the risk of disenfranchising those who lack access to technology. And, while panelists lauded Austin’s image as a center of technology, the city government’s reputation for openness and transparency was said to be unremarkable.

The session took place April 9, 2015, as part of the City of Austin’s Open Government Symposium. This is the second city-sponsored symposium since 2012, when all City of Austin elected officials agreed to deferred prosecution after an Austin Bulldog investigation into their open meetings violations.

Kerry O'Connor, the city’s first chief innovation officer, moderated the panel. She was joined by Mary Beth Goodman, a senior fellow with the Washington, D.C, think tank, Center for American Progress, and Nathaniel Heller, managing director of the Results for Development Institute, a Washington, D.C. economic development research group.

Cities like Austin are on the front line in the effort to make government more transparent, according to Goodman, who was formerly director for international economic affairs on the White House national security staff. “The more we've gotten into the process, the more we've learned that citizens want to engage first and foremost at the city level,” Goodman said.

Heller, much of whose work has dealt with less-developed countries around the world, cited crowdsourcing as an example of openness that is well-suited for city government. “This is being experimented with nationally, but it's working better at the local level,” he said. Examples of using crowdsourcing in government include holding challenges and contests to get citizens to contribute their ideas about how to solve problems delivering needed city services.

O’Connor, who took over the city innovation office in 2014 after working for the U.S. State Department, said Austin has employed crowdsourcing-type tools with mixed success. “It is a nascent movement and takes a little practice to get it right,” she said. City efforts to encourage citizen contributions include CodeNEXT, an initiative to create a new land development code addressing affordability and other issues. The innovation office partnered with three volunteer working groups to generate recommendations for the program, but it still a work in progress.

Openness impedes efficiency?

The Board of Directors of the Travis Central Appraisal District last night picked a new chief appraiser and adopted a new policy to end the longstanding practice of suppressing public records in TCAD’s online searchable appraisal roll for anyone who asked.

A policy to ensure the City of Austin’s 12,000 employees comply with state law for retention of public records went from being a fully compliant initial proposal to an implemented policy that falls woefully short of compliance, say experts in the state's open government laws.

The Austin Bulldog reported August 10 on the new policy established by Austin City Manager Marc Ott to guide city employees in how to handle electronic communications about city business. The policy states if circumstances require communicating about city business on a personal communication device or account, that correspondence should be forwarded to a city account.

Flaws in the policy include not stating that the correspondence should be forwarded promptly and leaving it to the discretion of each employee to decide whether the correspondence needs to be forwarded for retention. The policy lacks any means of preventing unlawful deletion of public records or auditing compliance.

Through an open records request The Austin Bulldog obtained two draft versions of the Administrative Bulletin that was ultimately issued August 4 by the city manager. The drafts, dated June 1 and June 15, when compared to each other and the bulletin issued, show how the proposed policy was gutted.

Four experts in the state’s open government laws who are volunteer hotline attorneys with the Freedom of Information Foundation of Texas reviewed the two drafts and the Administrative Bulletin provided by The Austin Bulldog.

“This is a drastic watering down of a policy that was originally intended to comply with the law and provide transparency in government,” said Joel White of the Austin law firm Joel R. White and Associates. He is a past president of the Freedom of Information Foundation of Texas and has represented a wide range of media clients for more than two decades.

Thomas Gregor of the Houston law firm of Ogden, Gibson, Broocks, Longoria and Hall LLP, said in an e-mail, “As originally drafted, the policy better adheres to the tenets and the spirit of open government. Unfortunately, the policy that was ultimately issued was diminished to the point that, while paying lip service to open government, does not ensure or verify the retention of any public information that is generated on a personal device.

“The end result is that there remains a significant gap in the City’s compliance with the open government laws,” Gregor said.

Joe Larsen, special counsel to the Houston-based international law firm of Sedgwick, Detert, Moran and Arnold LLP, said in an e-mail, “I think the policy has been significantly weakened by giving department directors complete latitude to determine how the policy is communicated and not requiring documentation that each employee has received and has access to the information in the bulletin. This will have two likely results:

“First, instead of a formal meeting where the importance of the policy is explained and underscored, any manner of delivery is envisioned. Without a formal setting, the importance of the policy will not be conveyed.

“Second, without a roster or verification, there will be no incentive to insure that the policy is timely communicated and no way of verifying if it has. An employee is very likely to state that he/she was unaware of the policy.

“It is this very issue—claims of lack of knowledge of proper policy—that led to the implementation of required training for public information officers of governmental bodies on the Public Information Act. These officers must have a certificate indicating that they took the required training.

“By requiring employees to forward their administrative value communications to a City account, the City has effectively made each employee the public information officer for his/her personal communication device accounts, and the communication of this policy should also be in a formal setting and it should be documented.”

 

 

 

 

 

 

 

 

 

 

 

 

 

Today The Austin Bulldog filed its second lawsuit against the City of Austin in state district court for failure to promptly respond to The Austin Bulldog’s request filed under the Texas Public Information Act (TPIA), Chapter 552 of the Government Code.

The first lawsuit filed March 1, 2011, addressed similar issues. The Austin Bulldog today also filed a supplement to that lawsuit to address unresolved issues still pending and add related issues (more about that later).

The new lawsuit, The Austin Bulldog v. City of Austin, pertains to The Austin Bulldog’s open records request filed July 27 for copies of bids, contracts, scoring evaluations, correspondence, and invoices involving MWH Constructors, the firm hired by the city to oversee construction of Water Treatment Plant 4. Electronic copies of the records (pdf format) were requested on a computer disk.

Thirty-five days have elapsed since this request was filed and the city has provided none of the 4,700 pages of documents it estimated were responsive to this request.

The lawsuit asks the court to issue a writ of mandamus requiring the City of Austin to “promptly” provide copies of the requested records to The Austin Bulldog pursuant to the terms of the Texas Public Information Act. (A writ of mandamus is a judicial order directing a government official to perform a duty that is not subject to the official’s discretion.) The lawsuit also seeks reasonable and necessary attorney fees and cost to plaintiff.

“After many months of being under scrutiny over transparency issues and after a couple of weak attempts to deal with these issues, the Austin City government still has a fundamental problem: Austin officials have a bad attitude about letting the public see what they are doing,” said Bill Aleshire of Riggs Aleshire and Ray PC, who represents The Austin Bulldog.

Water Treatment Plant records withheld