The Austin Bulldog Files Civil Complaint Against City of Austin and Council Members
Travis County Attorney David Escamilla Has Legal Authority to Force Compliance
The 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
This complaint is related to, but separate from, The Austin Bulldog v. Mayor Lee Leffingwell et al, a lawsuit filed March 1 for failure to promptly and fully respond to The Austin Bulldog’s open records requests filed under the TPIA.
As reported March 2 by The Austin Bulldog, the lawsuit also alleges that the city is not complying with the Local Government Records Act by failing to retain local government records so they would be available for response to open records requests.
The complaint emphasizes that The Austin Bulldog has not requested—and does not want—copies of e-mails that concern personal matters. But public records should not escape public disclosure merely because a city official or employee decides to create or receive that official correspondence on their personal e-mail account.
The Austin Bulldog presented an offer to settle the lawsuit on March 4 to the mayor, council members and City of Austin. As reported March 18 by The Austin Bulldog, the offer expired that day without action being taken by the defendants.
Attorney Bill Aleshire of Riggs Aleshire & Ray PC represents The Austin Bulldog in both the complaint and the lawsuit.
“From my experience as a Hotline volunteer for the Freedom of Information Foundation of Texas and my practice in this area, I can tell you that the complaint process under Section 552.3215 of the TPIA is very rarely used,” Aleshire said.
“But that complaint process is particularly well suited to a situation like this where a news reporter is faced with an entire city system of patterns and practices that serve to conceal public information in violation of the Act. System-wide violations can be investigated and resolved by the county attorney by either getting voluntary compliance by the city, hopefully, or through court orders if necessary.”
The alleged violations
“The Austin Bulldog alleges that the City of Austin (including its council members and certain staff) engages in a pattern and practice of deliberate or negligent acts that violates the public’s right of access to public information,” the complaint states.
The violations occurred by withholding information in the following ways:
(1) By using personal e-mail addresses to correspond about public business, deliberately to attempt to conceal this information from the public.
(2) By permitting city officials and employees to delete electronic correspondence without review by any person to ensure that destruction of these public records complies with records management laws for retention of correspondence for up to five years.
(3) By concealing the personal e-mail addresses used by council members and employees to conduct public business. TPIA Section 552.137 permits such redaction only of e-mail addresses of “a member of the public.”
(4) By failing to properly search for records in response to open records requests.
(5) By failing to “promptly” disclose public information as required by TPIA Section 552.221, which defines promptly as follows: “as soon as possible under the circumstances, that is, within a reasonable time, without delay.”
Open records requests
The Austin Bulldog filed open records requests under the TPIA on January 19, 2011, and January 27, 2011. On February 22 the City of Austin released hundreds of e-mails but letters signed by Assistant City Attorney Jacqueline Cullom stated that e-mails created by council members on their personal computers and cell phones were not “public information” subject to the TPIA.
Since the lawsuit was filed, Mayor Lee Leffingwell and Mayor Pro Tem Mike Martinez have released hundreds of e-mails that were sent or received on their city e-mail accounts, demonstrating lack of compliance with the TPIA.
On March 21, attorney James E. “Jim” Cousar, acting on behalf of the city, responded to The Austin Bulldog’s open records request of February 26 for copies of e-mails that had been deleted by council members and their staff since January 18, 2011. The responses showed that the city unlawfully redacts the personal e-mail addresses of council members used to conduct city business. These records also prove that council members and their staff are routinely deleting records that retention laws require to be kept for up to five years.
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