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Texas Public Information Act

Paxton still holding on to bogus voter purge data

It’s all about secrecy. He doesn’t want you to know what he’s up to.

Best mugshot ever

More than a month after a legal settlement was reached to scrap the review, Paxton’s office has indicated it is keeping open the criminal investigation file it initiated based on the secretary of state’s referral. That’s even after the list was discredited when state officials realized they had mistakenly included 25,000 people who were naturalized citizens and admitted that many more could have been caught up in the review.

Paxton’s office made that indication in a letter this week denying The Texas Tribune’s request for a copy of the list of flagged voters.

The Tribune originally requested the list soon after Whitley announced the review. But the attorney general — whose office also serves as the arbiter of disputes over public records — decided that the list could remain secret under an exemption to Texas public information law that allows a state agency to withhold records if releasing them “would interfere with the detection, investigation, or prosecution of crime.” The office separately confirmed that it had opened a “law enforcement investigation file.”

Following the settlement in late April — and after the secretary of state’s office rescinded the advisory that launched the review — the Tribune re-upped its request with both the secretary of state and the attorney general’s office. But the secretary of state’s office in late May and the attorney general’s office this week asserted they would still withhold the list based on the law enforcement exemption.

“As the law, facts, and circumstances on which that ruling was based have not changed, we will continue to rely on that ruling and withhold the information at issue,” Lauren Downey, an assistant attorney general, told the Tribune in an email.

[…]

“It’s very troubling that the attorney general would base an investigation on a debunked list that we know contains tens of thousands of naturalized citizens,” said Nina Perales, vice president of litigation of the Mexican American Legal Defense Fund, which sued the state on behalf of several naturalized citizens. “If the only basis of the investigation is that voters are naturalized U.S. citizens, then that’s discriminatory and unconstitutional.”

See here for the background. Lord only knows what there might be to investigate, since the list in question was based on useless data, but that sort of trivia doesn’t stop Ken Paxton. Is there some kind of legal action people could take to force Paxton to fish or cut bait? If there is, I hope they pursue it. If not, I guess we just have to wait.

Paxton sues San Antonio over Chick-fil-A records

We really do live in strange times.

Best mugshot ever

It’s a red-meat issue, but it feeds on chicken.

San Antonio’s decision to exclude Chick-fil-A from its airport continues to resound in political circles. Legislators passed a religious freedom bill that gained steam after it was rebranded as the ‘Save Chick-fil-A bill.’ Gov. Greg Abbott beamed over its success on Twitter.

And Attorney General Ken Paxton, declining to wait for his own department to rule on a public records request, on Monday filed suit against the city to force it to hand over records he wants for his office’s investigation.

[…]

According to the suit filed in Travis County district court on Monday, Paxton’s office requested records on April 11 — including calendars, communications and records of meetings among City Council members, city employees and third parties — related to the city’s decision to remove the restaurant from its airport concessions contract. Paxton’s suit seeks to compel the city to release the records.

“The City of San Antonio claims that it can hide documents because it anticipates being sued,” Paxton said in a statement. “But we’ve simply opened an investigation using the Public Information Act. If a mere investigation is enough to excuse the City of San Antonio from its obligation to be transparent with the people of Texas, then the Public Information Act is a dead letter.”

Nirenberg said in a statement Monday that the city had asked Paxton for clarification on the request but never received a response.

“The fact that he went straight to filing a lawsuit instead of simply answering our questions proves this is all staged political theater,” Nirenberg said.

The deputy city attorney, Edward Guzman, responded to Paxton’s request April 24 saying the city was seeking to withhold some records based on 63 exceptions to the state’s public information act, according to the suit. In a May 2 letter, the city also argued the information is exempt because of litigation that was likely to come from Paxton.

State law exempts the release of information related to “pending or reasonably anticipated” litigation.

San Antonio City Attorney Andy Segovia said in a statement Monday that the city provided nearly 250 pages of documents for review by the Attorney General’s Open Records Division and is still waiting for a decision.

Segovia said the city will comply with any Open Records Division ruling. He also shed doubt on the motivation behind Paxton’s investigation.

“The State Attorney General’s office has not specified the legislative authority they are relying on to investigate the airport contract,” Segovia said. “Furthermore, it is clear from the strident comments in his press release that any ‘investigation’ would be a pretense to justify his own conclusions.”

See here, here, and here for some background. Any resemblance of the arguments in this case to those in the dispute between Paxton’s office and the House Oversight Committee are, I’m sure, totally coincidental. Whatever else happens in this ridiculous case, the Chick-fil-A follies have provided the wingnuts with the grievance they needed to get their “religious liberties” bill through the Lege, so in that sense Paxton et al have already won. The Rivard Report has more.

Darian Ward indicted on charge of violating public information laws

Wow.

Mayor Sylvester Turner’s former press secretary, Darian Ward, was indicted by a grand jury this week for failing to turn over public records in response to a reporter’s request late last year.

The indictment, handed up Tuesday but released by Harris County District Attorney Kim Ogg’s office Thursday, says Ward, in “misrepresenting” the number of emails responsive to a reporter’s request for correspondence about her personal business activities, “unlawfully, with criminal negligence … failed and refused to give access to … public information.”

Ward resigned in January, weeks after news broke that she had been suspended for withholding the records, and because the records showed she had routinely conducted personal business on city time.

[…]

“Mayor Turner expects every city of Houston employee to comply with the Texas Public Information Act,” mayoral spokeswoman Mary Benton said, noting the mayor was on a trade mission to South America. “Questions about today’s grand jury decision should be directed to the Harris County District Attorney’s office.”

She is charged with failure or refusal by an officer for public information to provide access to public information, a misdemeanor punishable by a fine of up to $1,000, six months in jail or both.

The indictment first was reported by KPRC Channel 2.

[…]

Kelley Shannon, executive director of the Freedom of Information Foundation of Texas, said it is common for officials to stall the release of records or impose unreasonable charges for the documents’ release without technically violating the law, and many more — typically unprovable — cases in which requesters suspect the act is being violated.

“It is very important that officials are taking the Texas Public Information Act seriously,” Shannon said. “Whatever comes out of this indictment, it shows that attention is being focused on the Public Information Act and the importance of adhering to the act.”

See here and here for some background on Darian Ward’s end of tenure with the city. I’m irresponsibly speculating well in advance of any evidence, but I would not be surprised if this winds up with a plea deal and a minimal fine. Whether that sets an example for adhering to the Public Information Act or not is up for debate, but I will agree that this law is routinely ignored and should be enforced more often. Those of you with long memories may recall the Rick Perry email saga, which included a complaint filed with the Travis County DA that did not result in any charges. We live in different times now, I guess.

A setback for transparency

I don’t care for this.

BagOfMoney

The Texas Supreme Court on Friday limited the public’s right to know about private groups that get government funds.

In a 6-3 opinion, the court sided with the Greater Houston Partnership, agreeing that GHP doesn’t have to open its check registers even though it received funds from the city of Houston and other local governments worth about $1 million per year.

Open government advocates slammed the decision to curtail the reach of the Texas Public Information Act.

“Now GHP and groups like it that tap the spigot of public funding may draw the curtain against citizens examining how those funds are spent,” attorney Paul Watler wrote in a statement for the Freedom of Information Foundation of Texas.

GHP hailed the decision as a protection against unwarranted intrusions on private business.

“With this ruling, economic development and chamber of commerce organizations like the Partnership can continue to work on behalf of their communities without being mischaracterized as governmental bodies,” President Bob Harvey wrote in a statement, saying those protections are now also extended to other private organizations that contract with the government.

[…]

The case stemmed from a 2007 request by Jim Jenkins of Montgomery County, who wanted to see how GHP spends the city’s money. GHP, the region’s major economic development group, argued it wasn’t a governmental body for the purposes of the act, and eventually sued to block disclosure of its finances.

The Texas Attorney General, a trial court and an appellate court each previously ruled that GHP must open its books because, although it runs primarily on membership dues, it performs work for the city that makes it, in essence, an extension of the government. GHP plays a significant role in Houston’s economic development programs, courts new business for the city and plans mayoral business recruiting trips. It also analyzes business prospects to help City Council determine whether to offer incentives.

Jenkins, a small business owner, complained that there is too much money and politics at play in the way businesses get taxpayer-funded incentives, creating a field of “haves” and “have nots” based on political access. He argued that GHP’s expenditures would shed light on that process.

If the city “can just give money to a private entity like that with no accounting, we’re all in trouble,” Jenkins said.

[…]

Joe Larsen, another Freedom of Information Foundation attorney, said the court’s new test could have the effect of allowing government to easily outsource its functions. For example, a corporation with $200 million in total revenue could run the city’s water department for $10 million. As long as most of its income comes from other ventures, the corporation wouldn’t be subject to public information requests about the utility.

“That’s pretty hard to swallow,” said Larsen, who believes the all-conservative court is giving undue deference to private enterprise in this case.

Lynne Liberato, who argued for GHP, said governments outsource to the private sector all the time – like the foreign companies that build and operate toll roads. She said even in those situations, much information is still available through the government, such as contracts, reports and expenditures.

Gotta say, that explanation from the GHP’s attorney makes this ruling sound even worse. I just don’t get the justification. Rulings like this are a good argument for having more diversity of opinion on the court. Maybe having at least one person analyzing this from something other than a conservative perspective wouldn’t have changed the outcome, but it’s hard to see how it would have hurt.

More troubles for CM Jones

There have not been many dull moments this year for CM Jolanda Jones. That seems unlikely to change in the near future.

[O]n Wednesday, revelations surfaced that one of her staffers photographed a citizen picking up public records from her office and that the police union asked the Harris County district attorney to investigate Jones for allegedly practicing law without a license.

Both are likely to provide further ammunition for Jones critics and fodder for her campaign opponents.

Earlier Wednesday, Parker said someone from her office had called the state Attorney General’s office for counsel on how to respond to a Sept. 15 incident in which Jones’ chief of staff, Jack Valinski, allegedly took pictures of a 23-year-old law school graduate who came to pick up emails and calendar information he had requested under the Texas Public Information Act.

“It completely freaked him out,” attorney Billy Skinner said of his client, Andy West. “He felt scared. He felt intimidated.” Skinner said West is not connected to the campaigns of any of Jones’s three opponents on the November ballot for At-Large Position 5 on the Council.

Mr. Skinner has uploaded a video of the incident, presumably taken from City Hall security cameras. He also addressed Council, and specifically CM Jones, about the incident this past Thursday. You can see that video here; go to video 4, and scroll ahead to 15:20 for the nine-minute exchange, including Mayor Parker’s postscript. I will leave both to your interpretation.

[L]ater Wednesday, the friction between Jones and the Houston Police Officers’ Union flared anew when the union delivered a letter to District Attorney Pat Lykos asking her to investigate Jones for practicing law without a license.

The State Bar of Texas suspended the councilwoman’s law license on Sept. 1 because she had failed to pay her annual membership dues and her attorney occupational tax. She was reinstated Sept. 30 when she paid the arrears in full. The police union submitted legal documents signed by Jones with September dates to indicate that she continued to practice law during the suspension.

“It’s starting to look a lot like Groundhog Day at HPOU. If the sun comes up, then there’s a good chance that Ray Hunt will lodge a complaint somewhere,” Jones spokeswoman Kelly Cripe said in an email. Hunt is the union’s vice president.

You can see the HPOU press release here. I’ve not seen any of the referenced documents, and not being an attorney I’m not sure I’d know what to make of them if I had. Far as I know, the grievance the HPOU filed against Jones with the State Bar has not yet been resolved. We’ll see what Lykos does with this hot potato.

City to release documents related to red light camera study

They’re being ordered to do so by a judge, but it doesn’t look like they’re particularly bothered by it.

Paul Kubosh and Randall Kallinen filed a lawsuit challenging the city’s refusal to release 208 documents they requested under the Texas Public Information Act, many of them internal city communications and e-mails to and from the camera vendor, relating to last year’s city-sponsored study of the effectiveness of the camera program.

State District Judge Tracy Christopher has ordered the city to release 160 of 208 contested documents, ruling the city legal department presented no evidence they should be withheld under the law’s exceptions for attorney-client privilege or the deliberative process.

[…]

City attorney Arturo Michel said the city likely would not appeal the order, noting that many of the documents had been added as exhibits to motions filed in court.

Okay then. I’m not sure why it took this long to release these documents, given that the study came out nearly a year ago, followed almost immediately by Kubosh and Kallinen’s suit demanding the release of the draft report of the study. The city hasn’t exactly gone to the mat to defend the need to keep these docs secret, so perhaps a certain amount of fuss could have been avoided.

Be that as it may, the idea behind this is apparently to fuel an effort to get a referendum to remove the cameras onto the ballot in 2010. Kubosh and Kallinen think that these docs will have something in them that will expose the program as a fake, or something. And who knows, maybe they’re right, though again it seems to me that if the city were concerned about it, they’d be putting up more of a fight to keep the docs secret. (They may yet appeal the initial ruling, so it’s not a given that they’ll hand them over.) All I know is that Kubosh was sure that the city’s camera program was unconstitutional, and he’s since given up that fight after losing in court.

Let’s assume for a minute that the docs do all get released, and there’s no smoking gun in them, though there are a few bits and pieces that Kubosh and Kallinen seize on to press their case. What are the odds their desired referendum passes? Offhand, I would say they’d have a chance, but I’d make it no better than a coin flip. They’ll have passion on their side, which certainly counts for something, but I can’t quite shake the feeling that their base is mostly Republicans who mostly don’t live in the city of Houston. Paul Kubosh, for example, doesn’t live in the city of Houston, at least according to his voter registration card. If this would be a city of Houston referendum, as I presume it would be, he himself would not be eligible to vote for it. I could be wrong, and I’d love to see some polling data on this, just as I’d love to see an update to that original badly-flawed study, but I’m not nearly as sure as they are that there’s gold at the end of this particular rainbow.