Travis County seeks dismissal of lawsuit against county commissioner, SOS wants more records
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
Bill Bunch, executive director of the Save Our Springs Alliance, argued that the lawsuit should not be dismissed because factual issues exist that must be resolved by the court. He was assisted by SOS staff attorneys Kelly Davis and Lauren Ice.
E-mails withheld—One key issue is whether e-mails exchanged among various officials involved in planning SH45 SW and Assistant County Attorney Tom Nuckols legitimately qualify to be withheld from the SOS Alliance, or be heavily redacted before being furnished to SOS under an exception for attorney-client privilege, meaning confidential communication from a client asking for or receiving legal advice.
Travis County sought and obtained an opinion from the Texas Attorney General that found the attorney-client privilege did apply and the e-mails involving Nuckols could be withheld.
But the lawsuit claims that because the county provided only a representative sample of the e-mails identified for attorney-client privilege to the attorney general, and not every communication, that some of the messages might be lawfully released, e.g., e-mails that merely copied Nuckols on communication between two non-lawyers.
Nelson provided a computer disk to Judge Yelenosky containing all of the messages for his private review in camera (in chambers). Yelenosky said he was not certain when he would be able to finish his review and render a decision.
“In our view it should be indisputable there is still a live controversy over the documents you will review in camera,” Bunch told the court.
When Judge Yelenosky asked Bunch if the information in those e-mails is now “stale” more than two years later, Bunch replied, “As this highway project moved forward we realized this is still important information. These are critical documents.”
SOS attorney Davis told The Austin Bulldog after the hearing, “…even if the Attorney General saw all the withheld e-mails and deemed them confidential, the Texas Public Information Act provides for a requestor to file suit to have a court assess the confidentiality of a document. Although persuasive, the AG’s opinion on a document’s confidentiality is not binding on a court.
“There are several cases on this point,” Davis said. “Nelson is arguing—without any support—that the AG’s opinion ends the matter. It does not, which is why Yelonosky is now looking at them in camera.”
Missing e-mails—In a sworn deposition taken February 20, 2014, Daugherty admitted he failed to keep copies of some e-mails involving SH45 SW that were sent or received on his cell phone, his computer at his home, or his wife’s computer.
Testimony indicated Daugherty donated his wife’s Dell computer to the nonprofit Lone Star Paralysis Foundation sometime around early 2014, well after SOS filed this lawsuit. Daugherty said in the deposition that he did not record the contents of the hard drive on that computer before donating it.
A deposition given by a Foundation employee indicated there was nothing on the computer when it was received. SOS wanted to obtain a forensic examination of the computer but the Foundation and SOS did not reach an agreement about how that was to be done and protect the privacy of the Foundation clients who used the computer.
Nelson said in court, “If the donated computer contained public information that Daugherty had access to and he knew information on was that computer there would have been a requirement under the Act to produce it. We are saying the evidence in this court does not support that. … There is no need for Daugherty to go back to Lone Star and say we need the computer back for forensic analysis. We believe that’s another red herring offered.”
The Lone Star Paralysis Foundation was founded by Doug English, who was described in a May 12, 2015, article in the Austin American-Statesman, as a former Texas Longhorn football star and Daugherty’s “college buddy.” The article focused on two no-bid contracts that Daugherty sponsored that fell just below the $50,000 threshold to require competitive bidding.
Missing text messages—Although Daugherty did not provide all text messages exchanged during the period covered by the public information request, his attorney argued that Daugherty did search his cell phone and also requested messages from his provider, AT&T. In response, AT&T provided a letter indicating the company does not store the content of text messages and only records the dates, times and phone numbers involved. Nelson argued that even if the court should order Daugherty to produce the messages there are no means to do so.
Nelson cited case law in El Paso v. Abbott in which the Third Court of Appeals in Austin ruled a public information lawsuit is rendered moot if everything has been done to provide responsive information.
But Bunch countered that not everything has been done. The records of those text messages in the form of the dates, times, and phone numbers are available, and Daugherty could ask the parties he communicated with if they still have those text messages to furnish them.
Nelson argued, however, that under the El Paso standard the Texas Public Information Act does not require a governmental body to “take every step conceivable to find information responsive.”
“To require Daugherty with respect to this request and every public information request that comes into his office … to call someone and say, ‘Hey, do you have a text message from me?’ would be excessive and would bind other officials to do the same and is not required by the Act, Nelson contended. “We think under case law that it is not a basis for mandamus (a court order) to take steps beyond what Daugherty has already taken.”
Nevertheless, two days after the hearing before Judge Yelenosky, on July 15—“without conceding or admitting that such requests to third parties/external entities to produce documentation responsive to a PIR are required under the TPIA or other controlling statute or legal authority”—Nelson himself e-mailed letters to Hays County Commissioners Will Conley and Mark Jones to request they review their records and provide Travis County with copies of all text messages and e-mails about SH45 SW in which Commissioner Daugherty was the sender, recipient or courtesy copied on between January 1, 2013, through May 10, 2013, if any such records exist.
Records retention policy—On March 24, 2015, the Travis County Commissioners Court, after a briefing from Nelson, voted unanimously to adopt a revised Chapter 42 of the Travis County Code. Nelson said in the July 13 hearing that the new county policy for electronic communications requires using county resources and county accounts when sending or receiving communications about county business. When using private devices or accounts, the policy requires those communications to be forwarded to a county account for retention and availability upon receipt of a public information request.
Daugherty also adopted a similar policy governing electronic communications procedures for his Precinct 3 employees, but required forwarding of county-related messages created or received on private devices or accounts only if the county employee involved in the communication decides the record has no administrative value and is not required to be retained under schedules approved by the Texas State Library and Archives Commission.
Nelson argued that new communication policies adopted for Travis County and Precinct 3 would address past problems in records retention; therefore failure to properly retain the records SOS had sought should be moot.
Bunch noted that the Texas Public Information Act, Sections 522.004 and 552.201(b) do require retention of records. The latter designates each elected county officer the public information custodian of information created or received by that officer’s office; the former requires the elected county officer to preserve records.
One of the court documents filed by SOS states, “Defendant’s flouting of the public information laws is a critical issue that needs to be addressed through an all-inclusive, genuine policymaking effort, not through an eleventh hour, reactive policy tailored to toss out Plaintiff’s claims here.”
To which Nelson responded in another filing, “Essentially, Plaintiff asks this Court to allow Plaintiff to substitute its judgment for that of the Commissioners Court and Commissioner Daugherty to adopt policies for Travis County and Precinct 3. There is simply no authority requiring or even supporting these proposed actions.”
In court, Bunch, citing case law in Heckman v. Williamson County, although not a public information lawsuit, further stated “the mere adoption of new policies does not moot a case where a plaintiff’s complaint focuses on the defendant’s actions and behavior.”
Judge’s decision pending
“Typically I like to finish a case the same week, but I don’t know if I can (in this case),” Yelonosky told the opposing attorneys. “If I haven’t done so in two weeks I will let you know how much longer it will take.”
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Plaintiff’s Original Petition in Save Our Springs v. Gerald Daugherty, November 12, 2013
SOS Alliance v. Daugherty Oral Deposition, February 20, 2014
SOS Alliance v. Daugherty Oral Deposition Changes, February 20, 2014
Chapter 42 of Travis County Code, County Records, adopted by the Travis County Commissioners Court March 24, 2015
Respondent Gerald Daugherty’s Plea to Jurisdiction, April 8, 2015
Plaintiff Response to Respondent’s Plea to Jurisdiction, May 21, 2015
Respondent’s Response to Motion to Compel, May 28, 2015
Plaintiff Post-Argument Correction and Clarifications, July 17, 2015
Related Bulldog coverage: This is the 54th story covering local government agencies’ problems and progress in dealing with open government issues.