City’s bungled response to Rodgers’ public information requests compounded by inept handling of lawsuit
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
The signed document states that the parties acknowledge and agree that the settlement does not constitute an admission of any wrongdoing. Although that boilerplate disclaimer avoids the necessity for the City to admit mistakes, the facts in the case point to serious failings—both in responding to Rodgers’ public information requests and in the legal actions taken in responding to the lawsuit.
First, the City failed to provide all records responsive to public information requests that Rodgers filed in March 2015. The City gave him nothing for his requests filed in April 2015.
Second, the City failed to provide the information even after Aleshire sent e-mails to follow up on the requests.
Third, the City even ignored Aleshire’s May 14, 2015, message, in which he included a shot-across-the-bow warning: “No further notice will be given to the City regarding this noncompliance with the TPIA before enforcement action is taken.”
In addition to ignoring all these red flags before Aleshire filed the lawsuit June 11, 2015, the City compounded its errors by attempting to dismiss the lawsuit as being groundless.
The City’s Original Answer filed July 6, 2015, by Assistant City Attorney Chris Coppola stated, “Defendant City of Austin asserts that Plaintiff’s claims are moot because it has voluntarily produced all public records that are responsive to the public information requests identified in the petition.” Coppola in effect made the same claim in a separate filing August 10, 2015.
This tactic backfired.
Aleshire notified Coppola in an August 11, 2015, e-mail: “I will seek sanctions because of the false pleading in the City’s Answer that you signed claiming that the City had already voluntarily produced all of the public records that were responsive to the Rodgers’ PIR (public information request) when the Answer was filed … (and) “you doubled down on that false pleading” in the August 10 filing.
Coppola replied August 17, 2015, and conceded, “Perhaps the affirmative defense was inartfully worded, but that does not make it a false pleading because a lawsuit can become moot at any time.” Coppola nevertheless agreed to amend his filings.
It was not until August 17, 2015, that the City provided the last of the records Rodgers had sought—more than nine weeks after getting hit with the lawsuit.
Aleshire e-mailed Coppola again August 27, 2015, stating, “The City’s behavior in this case is, in my opinion, sanctionable. And we intend to ask the Court to enter a sanction of at least $1.00 as a matter of principle to keep the City from ever doing this again to a TPIA requestor.”
What did the plaintiff learn?
Aleshire said the lawsuit pried loose information that provided insight into the proposal to build a golf course on parkland that has not been reported by the media. This information showed that City officials and developers had talked about the deal a year before the idea surfaced at the City Council.
“They completely ignored our Downtown Austin Alliance PIR despite my two months of warnings and then waited until two months after the lawsuit was filed, and all we got was a high volume of non-interesting stuff,” he said. The records obtained as a result of the lawsuit indicated that the public information manager in the Law Department who handled that request had been given these e-mails two months before the lawsuit, but failed to provide them to Rodgers.
Although getting $5,000 from the City is a victory of sorts, unanswered questions remain.
Aleshire said, “We squeezed a lot out of them, but I’m left with the uncomfortable feeling we didn’t get everything and I have no way to prove it.”
Further, “I never got anybody at the City to say they screwed up, to say, ‘We’re sorry,” he said. “They fought us for four months on a lawsuit that should have fallen dead.”
Despite the City’s flawed responses to Rodgers’ public information requests that were exposed by his lawsuit, he remains skeptical that the City will improve its performance.
“I don’t think the City is going to do a damn thing unless the council tells them to,” Rodgers said. “I don’t know how the system is going to change just because we now understand it and exposed it. I think the council has to step in and direct the city manager to make some changes.”
Aleshire said, “Let me put this in plain language so it’s real clear. When people, no matter who they are, ask the City for public information, they should not have to put up with this kind of bullshit.”
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Settlement Agreement and Release, Brian Rodgers, Plaintiff, v. The City of Austin, Defendant, Cause No. D-1-GN-15-002291
Plaintiff’s Original Petition for Mandamus in Brian Rodgers, Plaintiff, v. The City of Austin in Brian Rodgers, Plaintiff, v. The City of Austin, Defendant, Cause No. D-1-GN-15-002291 (12 pages filed June 11, 2015)
Defendant’s Original Answer, Affirmative Defenses, and Request for Disclosure, Cause No. D-1-GN-15-002291 (3 pages).
Defendant’s First Amended Answer and Affirmative Defenses in Brian Rodgers, Plaintiff, v. The City of Austin, Defendant, Cause No. D-1-GN-15-002291 (3 pages).
Defendant’s Letter to Plaintiff’s Attorney conveying the City’s response to Plaintiff’s First Discovery Requests as well as numerous documents responsive to the original public information requests (31 pages submitted August 10, 2015)
Defendant’s Letter to Plaintiff’s Attorney regarding the threat of sanctions (3 pages submitted August 17, 2015)
Defendant’s Amended Response to Plantiff’s First Request for Admission (2 pages).
Defendant’s Response to Plaintiff’s Second Request for Admissions (4 pages)
Walter E. Long Metropolitan Golf Course Proposal
Related Bulldog coverage:
City to Rodgers’ Lawsuit: Fuhgeddaboudit: City of Austin’s answer claims suit is moot as it has provided all responsive records, July 6, 2015
City Sued Over Public Records: Brian Rodgers lawsuit alleges failure to lawfully respond to requests on three high-profile topics, June 12, 2015
Downtown Alliance Rail Spending Questioned: Civic activist Rodgers warns City of Austin not to reimburse $440,000 in Let’s Go Austin contributions, November 25, 2014
The Austin Bulldog Files Second Lawsuit Against City of Austin for Withholding Records: City not responsive to open records request concerning water treatment plant construction, September 1, 2011
The Austin Bulldog Files Lawsuit to Compel Compliance with the Law: Mayor and council members not in compliance with statutes for public information, records retention, March 2, 2011