City Sued Over Public Records
Brian Rodgers lawsuit alleges failure to lawfully
respond to requests on three high-profile topics
by Ken Martin
© The Austin Bulldog 2015
Posted Friday, June 12, 2015 1:41am
Updated Saturday, June 13, 2015 2:57pm
Brian RodgersLongtime civic activist Brian Rodgers filed a lawsuit late yesterday against the City of Austin over the city’s alleged failures to comply with the Texas Public Information Act (TPIA) in responding to his requests for records involving several controversial matters.
The lawsuit seeks an expedited hearing on a mandamus to order the City of Austin to supply all information that Rodgers asked for in three public information requests.
Bill Aleshire“This lawsuit demonstrates that the claim by management of the City of Austin that it is dedicated to ‘transparency and accountability’ is a farce,” states the lawsuit, filed on behalf of Rodgers by attorney Bill Aleshire of Aleshire Law PC. (Brian Rodgers, Plaintiff, v. The City of Austin, Defendant, Cause No. D-1-GN-15-002291.) Aleshire represented The Austin Bulldog in two TPIA lawsuits against the City of Austin in 2011.
Rodgers’ public information requests involved:
• Correspondence between City officials and the Downtown Austin Alliance while plans for a light-rail election were being devised.
• Records about how the plan was formulated to allow some 700 acres of Walter E. Long parkland to be turned over to a for-profit developer without getting voter approval as required by the Austin City Charter.
• Records about the city’s failure to timely respond to notice from the Texas Department of Transportation and losing the opportunity to purchase surplus property on Bull Creek Road that could have been developed as a park but instead went to a private, for-profit developer.
Steve AdlerAleshire e-mailed a copy of the lawsuit to Mayor Steve Adler late Thursday. The Austin Bulldog e-mailed a request for the mayor’s comments Thursday evening. Adler did not immediately respond to the e-mail. or a voice mail message left for one of the mayor’s staff members.
Late Friday afternoon, an Adler staff member sent a prepared statement from Adler: “I can’t comment on pending litigation, but the City of Austin should and must comply with all provisions of the Texas Public Information Act, including the production of responsive information when sought by the general public.”
City’s inattention, inaction unlawful
In response to Rodgers’ open records requests, “City management blatantly violated the Texas Public Information Act (TPIA) by refusing to promptly supply (or supply at all) public information on these controversial matters that could be embarrassing to the City, its current or prior officials, and its management staff,” the pleadings allege.
“Rodgers will prove,” the pleadings further state, “that City management completely ignored requests for information, made unauthorized and unexplained redactions, omitted responsive records, and despite warning, continue to stall while the controversial matters progressed for decision by the City Council.
“Even after the City was clearly warned it writing that it had failed to comply with the TPIA, city management stonewalled, making this lawsuit necessary under TPIA Section 552.321.
“It was only eight months ago that City of Austin officials completed deferred prosecution for violating open government laws,” the lawsuit states. “Rodgers experience with trying to get complete disclosure of public information demonstrates that City management has not learned much from the past and its process for responding to public information requests—supposedly “promptly” as required by the TPIA—is in utter shambles.”
In addition to the mandamus, the lawsuit seeks monetary relief of $100,000 or less (a required statement under the Civil Practices and Remedies Code, and not an expectation of the plaintiff, Aleshire told The Austin Bulldog), plus costs and reasonable and necessary attorney fees per TPIA Section 552.323.
Deferred prosecution over TOMA violations
David EscamillaThe lawsuit’s mention of deferred prosecution refers to the outcome of the 20-month investigation conducted by County Attorney David Escamilla. He announced his investigation the same day The Austin Bulldog published an investigative report January 25, 2011, that exposed the years long, institutionalized practice in which the mayor and council members held regularly scheduled, round-robin meetings before each meeting of the Austin City Council.
Brian Rodgers was also key to the county attorney’s investigation because he filed a criminal complaint shortly before The Austin Bulldog’s story broke, and was the source who tipped the Bulldog about the illegal practice.
The manner in which the council members held these regular meetings established an illegal “walking quorum” in which all members of the city’s governing body talked to all the other members about city business. In legal terms, this practice constituted a conspiracy to circumvent the Texas Public Information Act. Section 551.143 of the Act provides such violations can be punished by a fine of not less than $100 or more than $500; confinement in the county jail for not less than one month or more than six months; or both the fine and confinement.
Escamilla’s investigation found numerous instances of probable cause that showed the Act was violated by the mayor and every council member. Not only were the members of the governing body regularly meeting in a way that violated the Act, they also were violating the law by means of holding illegal quorum discussions via e-mail, text messages, and telephone calls.
While the evidence collected in the investigation showed probable cause and was sufficient to charge the mayor and council members with criminal offenses, prosecution was not undertaken. The matter was resolved instead by requiring the mayor and five sitting council members (and one former council member) to sign agreements that would allow for two year’s probation. If at any time during that period another violation occurred the county attorney could not only prosecute for the new offense but also the old offenses using all evidence collected in his lengthy investigation.
After the deferred prosecution agreements were signed, the city paid $157,636 in legal fees for the private attorneys hired by the mayor and council members to defend them against the criminal investigation being conducted by the county attorney. The city also paid about $440,000 for attorneys to provide the City Council with guidance on compliance with open government laws.
Although the county attorney’s investigation stemmed from violations of the Texas Open Meetings Act, the deferred prosecution agreements also required the city to reform and streamline its practices for responding to open records requests under the TPIA.
In essence, the Rodgers lawsuit alleges that despite the pressure exerted by the county attorney for the City of Austin to reform and improve its response to requests filed under the TPIA, in his case the city did not comply with the law.
Bulldog sued city twice over TPIA
Attorney Aleshire has pursued cases against government agencies for failure to comply with the TPIA on numerous occasions in jurisdictions all over the state of Texas.
He twice represented The Austin Bulldog in TPIA lawsuits filed against the City of Austin, the mayor and council members.
The first of these lawsuits filed March 1, 2011, stemmed from the city, mayor and council members’ failure to turn over e-mails they had exchanged about city business using private e-mail accounts over a period of 13 months.
Although several opinions issued by the Texas Attorney General stated that e-mails on private devices or private accounts to or from public officials were public records if they involved government business, the City of Austin contended the law was not settled on that issue.
Once sued, however, the mayor and council provided those e-mails, many of which exposed the behind-the-scenes communications about issues of major significance, including lining up votes to approve construction of Water Treatment Plant 4, a project costing some $500 million, and ongoing discussions about whether to approve a $750,000 settlement with the family of Nathaniel Sanders II, who was shot and killed by an Austin police officer.
On April 7, 2011, as a result of The Austin Bulldog’s lawsuit, the City Council passed a resolution to reform its electronic communications practices and order the city manager to do likewise for the city’s employees and the city clerk to do so for the appointed members of the city’s boards and commissions.
The Austin Bulldog’s second lawsuit against the city, filed September 1, 2011, was for its failure to provide records pertaining to plans to build Water Treatment Plant 4. The county attorney’s investigation later showed that almost all of the discussions about how to prevent postponement of the vote to authorize construction of the plant occurred in e-mails exchanged on non-city accounts and via telephone discussions.
In 2013, the Texas Legislature strengthened the TPIA to make explicitly clear that electronic communications about government business are public records that belong to the government regardless of on what account or what device the communications occurred. As such, the records must be retained and made available upon request, unless subject to exemptions provided in the TPIA that permit withholding.
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Related Bulldog coverage:
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
City Spent $157,636 to Defend Council Violations: Payments made for private lawyers for mayor, council members in criminal investigation, April 8, 2013
Deferred Prosecution Ends Open Meetings Investigation: Mayor and five current council members sign agreements waiving statute of limitations and requiring major reforms, October 24, 2012
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
Brian Rodgers, Plaintiff, v. The City of Austin, Defendant, Cause No. D-1-GN-15-002291 (34 pages with exhibits)
Walter E. Long Metropolitan Golf Course Proposal