Bulldog Files Lawsuit to Compel Compliance

The Austin Bulldog electronically filed a lawsuit in state district court last night to sue the mayor and each council member in their individual capacity, and the City of Austin, for failure to promptly and fully respond to The Austin Bulldog’s requests filed under the Texas Public Information Act (TPIA), Chapter 552 of the Government Code.

The city’s decision to withhold certain government records—including records involving public business that were created or received on the mayor and council members’ cell phones or personal computers—lays bare a major problem preventing citizens from obtaining complete information about the affairs of government: To withhold records created or received on officeholders personal computers and cell phones is to effectively gut the Texas Public Information Act. To allow this to stand would amount to an open invitation for city officials and employees to conduct business in the shadows.

Withholding these public records from disclosure as requested by The Austin Bulldog on January 19, 2011, and January 27, 2011—and doing so without seeking an Attorney General’s opinion—only adds to the city’s previously reported problems in governmental transparency, evidenced by The Austin Bulldog’s story published January 25, which exposed the ongoing violations of the Texas Open Meetings Act, Chapter 551 of the Government Code.

Further, The Austin Bulldog’s lawsuit asserts there is evidence that one or more Austin officials deliberately use their private e-mail accounts to try to keep substantive communications about city business from being available through the city’s computer servers.

In one case, a council member asked a constituent to switch over to the council member’s personal e-mail address to continue discussing the controversial topic of tax subsidies for The Domain shopping center. This e-mail discussion obviously concerns important public business, as those subsidies amounted to anywhere from $25 million to more than $60 million, depending on whose figures you believe.

Records retention paramount

The Local Government Records Act, Section 201.003(8), defines a “local government record” as “any document, paper, letter, book, map, photograph, sound or video recording, microfilm, magnetic tape, electronic medium, or other information recording medium, regardless of the physical form….”

It is the content of any of these recording media—not the physical form in which it is maintained—that determines whether it is a local government record.

Section 201.005 of the Local Government Records Act states that local government records created or received in the transaction of official business, or the creation or maintenance of which were paid for by public funds, are declared to be public property. A local government officer or employee does not have any personal or property right to a local government record, even though the officer or employee developed or compiled it.

Per the Texas Local Government Code, Section 202.008, it is a violation of law for a public officer, including a council member, to destroy or fail to deliver records. An offense under this section is a Class A misdemeanor.

By law, the mayor and each council member is the custodian of the e-mails, text messages, chat messages, and any other records involved in the transaction of government business for their individual offices.

E-mails and text messages are classified as “correspondence” that by law must be maintained by the city for a period of two years.

The records requested

The Austin Bulldog filed requests under the Texas Public Information Act on January 19, 2011, and January 27, 2011, for e-mails, letters, memoranda, notes, or other forms of written communication from the mayor and each council member to (or copied to, or blind copied to) any council member(s) or the mayor from January 1, 2010 to January 27, 2011.

These requests included all such written communication regardless of whether other persons also were sent the communication.  If any e-mails within the scope of those requests were initially deleted, then the requests applied to any backup copy of such e-mail(s) that were subject to retention under Texas Government Code Chapter 441 or Local Government Code, Title 6, Subtitle C.

Although hundreds of e-mails were received on February 22 as a result of those requests, it is obvious that numerous e-mails were not provided. For example, no e-mails at all were provided by Mayor Pro Tem Mike Martinez for the year 2010. On February 24, attorney Bill Aleshire, representing The Austin Bulldog, notified Assistant City Attorney Jacqueline Cullom that no e-mails were received for Martinez and asked her to rectify the situation promptly. The Austin Bulldog still has not received any e-mails from Martinez for 2010.

In addition, Only three e-mails for the year 2010 were provided by Council Member Bill Spelman. The responses from Spelman and Martinez are in sharp contrast to the response from Council Member Randi Shade, who supplied 686 pages of e-mails for 2010, and Mayor Lee Leffingwell, who supplied 94 pages for 2010.

The lawsuit also directs the court’s attention to the fact that none of the e-mails provided by the mayor and council members appear to discuss such major and controversial projects as Water Treatment Plant 4 or tax subsidies for the Formula 1 race track.

Further, the city’s replies to these open records requests states, “…the documents provided in response to your request do not include any information that is not assembled, collected or maintained by the City of Austin as public information. The City is not providing any e-mails or other forms of communication not created on city-owned equipment. The City does not have access to any city official’s personal cell phone or personal computer. As such, this information does not fit the definition of public information under the Texas Public Information Act since the City has no right of access.”

The City of Austin withheld these records without seeking approval from the Texas Attorney General for an exception to disclosure. Further, opinions previously issued by the Attorney General clearly indicate that e-mails created using a council member’s personal e-mail account in connection with the transaction of official business constitute “public information” and must be released to the requestor. Attorney General Opinion OR2010-10687 dated July 19, 2010 (see page 2) delivered that finding in connection with an open records request filed by The Austin Bulldog to obtain e-mails created by Georgetown Council Member Pat Berryman.

What the lawsuit seeks

The Austin Bulldog v. Lee Leffingwell, mayor, et al, asks the court to:

• Order the mayor and council members to turn over local government records they created or received on personal computers or cell phones to the Austin Records Management Officer for the time period required by Records Retention Schedules for those records to be maintained by the city.

• Enjoin the mayor and council members and their successors in office and Austin employees from withholding government records in the future, including those created or received by Austin officials or employees on their personal computers or cell phones, from the Austin Records Management Officer.

• Order the City of Austin, upon receipt of the e-mail and text messages from the mayor and council members’ personal computers and phones (as requested by The Austin Bulldog on January 19, 2011, and January 27, 2011) to promptly provide those records to The Austin Bulldog.

• Order the City of Austin to provide to The Austin Bulldog copies of any local government records that were collected on the city’s computer server during 2010 (as requested by The Austin Bulldog on January 19, 2011, and January 27, 2011) that the city has not yet provided.

• Order the defendants to pay reasonable and necessary attorney fees and costs to The Austin Bulldog.

Bill Aleshire of Riggs Aleshire & Ray P.C. is The Austin Bulldog’s attorney in this lawsuit.

Background

As reported by The Austin Bulldog on January 25, County Attorney David Escamilla received a complaint about the open meetings violations and launched an inquiry. Mayor Lee Leffingwell reacted by immediately canceling the private meetings that council members had been holding to deliberate the city’s business, initiated public work sessions the day before each council meeting, and pledged to fully cooperate with Escamilla’s inquiry.

The 2010 calendars of four council members published with the January 25 story provide evidence that the city has, in effect, maintained an institutionalized conspiracy to conduct a daisy chain of meetings involving the mayor, every council member, and the city manager immediately preceding each council meeting for the purpose of circumventing the Texas Open Meetings Act. Those calendars showed that Council Member Chris Riley held 256 private meetings with the mayor, other council members and the city manager in 2010; Council Member Laura Morrison held 194; Council Member Randi Shade held 190; and Council Member Bill Spelman held 163 (in 11 months, as his December calendar had not been published).

The first dozen stories on the Open Meetings Act violations published by The Austin Bulldog include five exclusive question-and-answer interviews with council members conducted before breaking the story. Council members generally said they viewed these private meetings as a means to exchange information and said the system of one-on-one meetings was an established practice when they took office.

Last July, the mayor changed his one-on-one meetings with council members to two-on-one meetings to provide more time for going through the council meeting agendas. In The Austin Bulldog’s interviews, none of the council members—including attorneys Chris Riley and Sheryl Cole, who have experience in the Open Meetings Act—said they had questioned the practice.

The Austin Bulldog’s story published last night detailed how an aide to Council Member Randi Shade issued explicit instructions to other council aides about how to disable the chat history function for the specific purpose of evading the requirement to make government records of these chats available under the Texas Public Information Act.

To read the original lawsuit and exhibits filed March 1, 2011, click here. To read the First Amended Petition filed March 11, 2011, click here.

Update: The First Amended Petition to The Austin Bulldog v. Lee Leffingwell, et al, was posted and linked to this report at 5:56pm March 13, 2011.

This report was made possible by contributions to The Austin Bulldog, which operates as a 501(c)(3) nonprofit to provide investigative reporting in the public interest. The Austin Bulldog has many investigative projects waiting to be funded and would appreciate contributions to help with the costs associated with this lawsuit. Please make a tax-deductible contribution right now.