Wednesday, October 17, 2012
7 DFW-area cities lead attempts to deny access to public records
We know the "where," but the "why" remains mysterious.
Among the state’s biggest cities, several sprawling Dallas-area suburbs tallied the highest rate of requests to Texas Attorney General Greg Abbott last year to keep government information secret, according to a recent examination by the Center for Public Integrity.
The probe examined the number of attempts by the 20 largest Texas cities to block public requests for information in 2011, then looked at how those numbers stacked up for each city, according to the rate of requests per 100,000 population. The “winners” were not the state’s biggest cities. McKinney had the highest rate of requests asking that Abbott allow the withholding of documents sought by citizens under the Texas Public Information Act. Next up were McAllen, Garland, Mesquite, Plano and Arlington. Fort Worth was ranked eighth and Dallas ninth, giving the Dallas-Fort Worth area seven of the top 10 in the rankings.
The investigation also looked at the cities’ batting averages in getting their requests approved by Abbott’s office. McKinney won full or partial approval to withhold information in 95 percent of its cases; most of those requests were partially approved, meaning some information did have to be released.
Not all cities tally their batting averages, nor does Abbott’s office, but San Antonio’s results were especially low, with only 49 percent of requests to withhold information approved, according to its available statistics. Fort Worth reported getting 92 percent of its requests to Abbott approved in full or in part in 2011, and Austin reported an approval rate of 91 percent. (Some cities reported referral numbers that differed slightly from those obtained from the attorney general’s office.)
Abbott is involved because, in most cases, Texas law requires that governmental bodies seeking to withhold information ask the attorney general for permission to do so.
McKinney, a suburb of 136,000 located north of Dallas, asked for 441 attorney general rulings in 2011 to permit it to withhold government information. That’s 324 ruling requests per 100,000 population — tops in the state.
By comparison, Houston, the Lone Star State’s largest city, made 882 submissions to Abbott last year to withhold information. That ranked it 13th among the 20 largest cities in the state, with 41 ruling requests per 100,000 people. The city in the top 20 ranking lowest in attorney general submissions was Grand Prairie, with six requests per 100,000.
“It’s good to know where the frequency of requests are coming from,” said Keith Elkins, executive director of the Freedom of Information Foundation of Texas. “The second issue, now, is to find out why.”
For the moment, that answer seems elusive. Neither Elkins nor other Texas open-government watchdogs could offer theories as to why so many of the high-ranking cities were clustered around Dallas. But they did make it clear they weren’t happy with the situation.
“It’s the kind of thing that people should be aware of, and if I were a lawmaker up in the Dallas-Fort Worth area I’d want to know why,” said Michael Schneider, director of newsroom and legal services for the Texas Association of Broadcasters.
“They are the public records, after all, and the public should have access to them,” Schneider said.
Officials in the Dallas-Fort Worth region may need refreshers on open government laws, added Elkins.
“Since this appears to be happening often in one geographical area, we will be more than glad to come to that area and hold training seminars for them,” Elkins said.
Cities say they proceed with caution
Several city officials contacted by the Center for Public Integrity said that in seeking attorney general approval, they were trying to guard against disclosing information that they believe is confidential by law.
“Maybe it’s because we try to be careful about what we’re releasing,” said Camelia Taylor, a spokeswoman for the city of Dallas, which in 2011 submitted the highest total number of requests to Abbott of any governmental entity in the state — 1,107 in all. “It’s better to be safe than sorry.”
Abbott, a Republican, has called the city of Dallas a “repeat offender” in limiting access to public records, according to The Dallas Morning News. But when weighted for population, Dallas ranked ninth among the major cities last year, with 90 attorney general requests per 100,000 people, according to the Center’s findings. Dallas officials said they don’t track how many of their requests get approved by Abbott’s office.
Abbott declined to comment on the Center for Public Integrity findings. His office did provide the number of attorney general rulings sought by each city and background on the open records law. Officials there said the attorney general’s office bases its rulings on whether the information requested falls within exceptions that prevent release under the Texas Public Information Act.
Not all of Abbott’s declarations carry the same weight. Informal rulings, which are posted online, are letters relating to the specifics only of an individual case. More than 18,000 of these rulings were issued in 2011. In broader open records “decisions” the attorney general issues formal opinions that can be cited as precedent in other cases.
Public records cases submitted to the attorney general deal with car wrecks, police shootings, child abuse and hostile work environments, among other subjects. Citizens ask for such government records as construction contracts, police reports, videotapes and emails.
“They can be all over the map,” said Tom Kelley, a spokesman for the attorney general.
History of the Public Information Act
The modern-day Texas Public Information Act, one of the strongest in the nation, was born out of the Sharpstown stock fraud scandal in the early 1970s that drove numerous state politicians from office and resulted in beefed-up open government laws. The Texas Open Records Act was established in 1973 and later became known as the Texas Public Information Act. It states that the law “shall be liberally construed in favor of granting a request for information.”
A 50-state report released in March by the State Integrity Investigation — a partnership of the Center for Public Integrity, Global Integrity and Public Radio International — found that while Texas’ open records law is fairly strong as written, the way it’s put into practice leaves gaps and sometimes keeps public information secret. The Lone Star State ranked 29th overall in public access to information, but was one of many states to receive a grade of F in that category.
If an attorney general ruling is being sought, officials must ask for that ruling within 10 days of the original information request and must cite exceptions in the law allowing information to be kept confidential, such as pending litigation, personnel information, competitive bidding information, trade secrets or computer infrastructure security. The attorney general’s office then agrees or disagrees. But many government officials routinely wait 10 business days to hand over documents even if they aren’t seeking an attorney general ruling, Elkins noted in an interview for the State Integrity Investigation.
Getting an opinion from the attorney general can take up to 45 days by law, and open government activists contend the process is abused by public officials who simply want to postpone a citizen request.
“It’s the knee-jerk reaction of the governmental entity to delay,” said Texas attorney Laura Prather, who represents news organizations in First Amendment cases and lobbies the Legislature on open government matters. If a local government is losing more than it’s winning with the attorney general, one has to wonder whether the government’s motivation “is solely for the purpose of delay,” Prather said.
Reporter Brian Collister of WOAI television in San Antonio recently sought city records about public money going to a nonprofit group for use at a senior citizens center. The city sought an attorney general’s ruling. Collister said he felt that the city reacted without regard to the specifics of his request because when he asked a city official what information could be deemed confidential, he says he was told, “I don’t know — haven’t looked.” City spokeswoman Di Galvan said Collister made a broad request for “any and all documents” and city officials asked for an attorney general ruling because they believed information such as legal matters, Social Security numbers, telephone numbers and personal family information was confidential. The city and Collister had discussions in a “detailed process” and ultimately agreed on which information was to be released, so the city withdrew the attorney general request, Galvan said.
For the city of McKinney, most submissions to Abbott’s office last year involved police records, though some dealt with general city business, said city spokeswoman Anna Clark.
“Particularly for the police side, an overabundance of caution is definitely practiced,” Clark said, explaining her city’s top ranking based on requests per population.
Clark said the city of McKinney was already looking for ways to handle public information requests more efficiently, and will now consider the Center for Public Integrity’s findings.
“That’s definitely something that we want to review,” Clark said.
The city of McAllen was second among major cities in the frequency of ruling requests to the attorney general with 313 in 2011, or 234 per 100,000 population.
Sixty-one percent of its requests to deny information were granted at least partially by Abbott’s office, according to city statistics.
Following the top five of McKinney, McAllen, Garland, Mesquite and Plano in the rate of requests to Abbott’s office were Arlington, ranked sixth, then Corpus Christi, Fort Worth, Dallas and El Paso.
Ranking 11th through 20th were Lubbock, San Antonio, Houston, Austin, Irving, Amarillo, Brownsville, Laredo, Pasadena and Grand Prairie.
One man’s experience with the law
Raymond Crawford, a leader of Dallas Area Residents for Responsible Drilling, which keeps a watch on natural gas drilling plans in the region, had an up-close look at how the state’s Public Information Act is put into practice. He requested information from the city in 2011 about the impact of hydraulic fracturing — or “fracking” — on the dam at Joe Pool Lake, about 10 miles southwest of Dallas.
City officials sent his request to the attorney general in an effort to withhold information, but later withdrew it. It still took months to obtain the records, Crawford said.
“I didn’t really know the rules of the game, so to speak,” said Crawford, who was using the Public Information Act for the first time. “I didn’t get exactly what I was looking for, but I got something.”
This year Crawford made a second public records request to obtain more information on potential gas drilling and the dam. Although the city released some of the documents initially, it made a submission to the attorney general to withhold other information. Later, the attorney general’s office ordered all the information released, with the possible exception of a cell phone number. Crawford received records revealing that the city “did have a conversation with the Army Corps of Engineers about … seismic activity in drilling, fracking,” he said.
Crawford said he believes city officials sought attorney general rulings to withhold some of the records partly as a “stalling tactic” to postpone releasing documents.
A Dallas spokeswoman did not respond to requests for comment on Crawford’s case.
Cities’ volume of requests, AG results vary widely
Some cities stood out for trying to deny information in more than 20 percent of citizen records requests they received over all, a percentage that seemed high to Prather, the open government lawyer. Lubbock sought attorney general rulings for 24 percent of its requests from the public, McKinney in 29 percent and El Paso in 63 percent. Dallas, by contrast, attempted to deny records in just 5 percent of its 2011 cases.
The top 20 cities varied greatly in how many total requests they said they received from the public in 2011. All but three cities provided their totals or an estimate of them, and of those the numbers ranged from a low of 622 in Lubbock to more than 36,000 in Corpus Christi. Assistant City Attorney Ronald Bounds in Corpus Christi said his city’s number is high because it included requests made to the police department from other governmental bodies, which he called “back counter” requests under the Public Information Act.
Among those tracking their batting average with Abbott’s office, San Antonio got rejected the most, 51 percent of the time, according to city statistics. The figures did not include some possible police department requests from the first three months of 2011, which the city said are no longer accessible.
“We cannot speculate how the [attorney general] makes a determination,” Galvan, the city spokeswoman, said when asked to comment on the low success rate. Galvan said the city takes public information requests seriously and works to respond to them quickly.
Collister, the San Antonio television reporter who makes frequent open records requests, said that in many cases, overwhelmed staff members seem to be simply trying to extend their deadline for releasing records.
Other times, he said, “they’re clearly stonewalling.” Another WOAI television reporter, Mireya Villarreal-Gideon, recently asked for city records on the disciplinary action against two city employees found to be misusing suites at the Alamodome sports stadium. The city contends in a letter to Abbott’s office that the information would be “personally and professionally embarrassing” and that it is “of no legitimate concern to the public.” Galvan said it is rare for the city to receive a request for disciplinary action against civilian employees, “so we are asking for a ruling and will release any documents required by law.” The case remains pending.
In Dallas, Taylor said that much of the information the city seeks to withhold pertains to attorney-client privilege or personal data. “Certain information within the open records act we can’t disclose — personal information. Some people are adamant about getting people’s personal information,” she said.
But open records advocates point out that some personal information can be routinely redacted from requested public records without a new attorney general ruling when a “previous determination” has been made that the specific information can be withheld. That information can include government employees’ tax forms, employees’ driver’s license numbers and email addresses for private citizens who communicated with the governmental body.
Even so, disputes continue over such items.
Case in point: Ken Martin, founder and editor of The Austin Bulldog, a small nonprofit news organization, took on the city of Austin last year to force the release of emails from City Council members’ private accounts that related to city business.
Though city officials gradually handed over a number of emails to Martin, he said he is continuing to fight in court for clarification on the release of public officials’ private email addresses if the account is used for government business, because state law is unclear on the subject. The attorney general wasn’t asked to weigh in on the Austin case, Martin said. In similar situations he has said the information should be released.
A court fight can be overwhelming for an average person. “It depends on how much money you have to throw into a lawsuit,” said Martin, adding that he has a passionate attorney who does much of his work for The Austin Bulldog for free.
Little recourse if a request is denied
If the attorney general’s office sides with a state or local government entity and says information should be kept secret, the only recourse for a citizen who requested the information is a lawsuit in state court.
Because court battles can be expensive and time-consuming, usually news organizations, not private citizens, wage them, said Elkins of the Freedom of Information Foundation of Texas.
The Austin American-Statesman, Houston Chronicle and San Antonio Express-News sued for access to the detailed travel records of Gov. Rick Perry’s taxpayer-funded security officers after Abbott’s office said summaries of the travel could be released, but that disclosing the actual records could provide too much information about Perry’s travel and jeopardize his safety.
The lawsuit began in 2007 and was resolved only in the past year, with final court rulings that the records can be kept secret.
Prather, the open government attorney, said Texas law doesn’t guarantee a plaintiff will recover attorneys’ fees if he or she wins such a case in court, so finding a lawyer to take an open records case is difficult for a regular citizen. There’s not nearly so heavy a financial burden on a governmental body if it goes to court.
“Obviously, the government already has their lawyers,” she said.
Elkins of the Freedom of Information Foundation said public officials should simply take a more open approach “that the majority of information belongs to the people.”
They should post frequently sought information online, saving everyone time and money, he said, and shouldn’t make it difficult for people to make specific public records requests.
“The more barriers you put up to getting the information, the more chilling effect it has,” Elkins said.
This story was originally posted to the Texas Tribune.
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