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 Depositions Expose Public Information Flaws

An assistant city manager who doesn’t like to write,
a public information manager who is inexperienced

by Ken Martin
© The Austin Bulldog 2015
Posted Monday November 9, 2015 3:44pm

“The City of Austin is committed to an open and transparent government. I believe this is an integral part of maintaining a vital and robust democracy.” — City Manager Marc Ott

Marc OttMarc OttOtt published this oft-repeated pledge in an April 8, 2015, memo titled “City of Austin Open Data Initiative 2.0.”

Yet, the City has failed to consistently live up to that commitment. By actual performance the City has demonstrated that it receives and routes public information requests to departments or offices thought to have the applicable records but fails to follow up and ensure compliance with the Texas Public Information Act (TPIA) Government Code Chapter 552.

Brian RodgersBrian RodgersA prime example of the City’s spotty performance was evidenced in the outcome of the lawsuit Brian Rodgers v. City of Austin. As reported November 2, 2015, by The Austin Bulldog, the City agreed to pay Rodgers $5,000 to settle the case and thereby avoid a motion for sanctions or a full-blown trial over its gross mishandling of his public information requests and its inept response to the lawsuit.

Rodgers, who spent about twice the amount he’s getting back in settling the lawsuit, considers the expense to be a good investment in his education as a civic activist. As the plaintiff he sat in on the two depositions taken in this case and observed firsthand how the public officials answered.

“I finally get to understand how the process works—I no longer have to wonder,” Rodgers told The Austin Bulldog. “It's a lack of power by public information manager, a lack of cooperation by city staff, and no one responsible to comply with the law. So it’s set up to gum up the work of activists. Justice delayed is justice denied.

“If they intentionally wanted to thwart people from getting to the root of things before the City Council decides, this will do it,” Rodgers said. “It's easily gamed.”

Although Ott’s commitment to open government, cited above, was made within the context of expanding an existing initiative to publish more of the valuable data the City collects on the City’s website—and in the process possibly reduce the number of public information requests—the City cannot achieve openness, transparency, and accountability if the public’s right to know, which is enshrined in the TPIA, is thwarted.

Bill AleshireBill AleshireTwo sworn depositions taken by Rodgers’ attorney, Bill Aleshire of Aleshire Law PC, as part of the discovery process in the lawsuit provide significant insights about the shortcomings in the City’s public information system.

(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.)

Deposition of assistant city manager

Sue EdwardsSue EdwardsAssistant City Manager Sue Edwards salary is, like all assistant city managers, $210,995 a year, according to the Texas Tribune’s database.

Although Edwards oversees eight departments and offices she readily admitted that she puts almost nothing in writing.

Aleshire learned this in response to questions for Edwards based on the fact that Rodgers had received almost no correspondence involving her—not even for controversial topics like the meetings she had with a lobbyist and developers who want to use 700 acres of land at Walter E. Long Metropolitan Park as the site of two for-profit golf courses.

Likewise for the city’s missed opportunity to acquire 75 acres of surplus state land along Bull Creek Road for an inner-city park. The land instead was sold to a private developer.

When Aleshire asked Edwards why out of more than 12,000 pages of e-mails he had found only seven from her, none of which were substantive, she answered, “I just don’t write that many e-mails. I am not the kind of person who feels like I can communicate when I write e-mails. I don’t like to write, period. ... That has been my practice over the last 21 years. I’m not hiding anything at all.”

Asked again by Aleshire, Edwards said, “I really communicate better one-on-one, and it’s easier for me to communicate one-on-one. I really do not like writing. I don’t like even writing memos when the City Manager says, ‘Hey, would you write a memo for me?’”

While there’s no law that says a public official is forced to create a written record of actions taken on matters of public interest, Aleshire was taken aback by the possibility that other public officials might operate like this.

“Imagine if every city, county and state employee did the same thing,” Aleshire told The Austin Bulldog. “Imagine if everybody behaved like that in government. How much trust would the public have that business was being conducted on the up and up?”

The deposition shows that Aleshire walked Edwards through a long list of complaints he had sent to the City about its continuing lack of response to Rodgers’ public information requests, with no explanation given for the delay, and even a final warning that a lawsuit would ensue if records were not provided. He then asked Edwards if that met her expectation for how the City should perform.

“I would expect that they would respond,” Edwards said.

But she went on to equivocate, saying, “It’s not as simple as it looks. I think again that my expectation is certainly that everybody respond to the best of their ability. But there are many departments involved, and there are many people who sometimes are there and sometimes not when a request comes in so that they sometimes can’t meet those deadlines.”

Aleshire asked again, “It this the way you think that the PIR system ought to work from what you’ve seen?”

She replied, “I think we can all improve what we do.”

City’s public information manager

Santos Eloy Del BosqueSantos Eloy Del BosqueSantos Eloy Del Bosque III is the City’s public information manager. His personnel records indicate he is paid $85,000 a year to oversee a Public Information Request (PIR) Team within the City’s Law Department.

He was promoted to the manager’s position in December 2014 after serving nine months as an administrative specialist on the PIR Team at an annual salary of $44,928, according to his personnel records, and then three months as the acting public information manager.

Del Bosque testified that he had no previous experience in processing public information requests before being hired by the City in December 2013 as an administrative specialist.

At the time of his August 26, 2015, deposition, in addition to Del Bosque, the PIR Team consisted of two full-time permanent employees, one full-time temporary employee, and one part-time temporary employee (30 hours per week). An additional full-time permanent employee was added October 19.

The combined annual salaries of the entire PIR Team, including Del Bosque, is now more than $300,000, according to information compiled from their personnel records.

The Del Bosque deposition

As the person in the driver’s seat when it comes to processing public information requests, the answers that Del Bosque provided in his deposition illustrate some inherent weaknesses in the City’s performance.

He said no one person is responsible for making sure the City complies with the TPIA. Asked if that means multiple people are responsible or no one is responsible, he replied, “I don’t know the answer to that question.”

The City has a two-tier system when it comes to searching for requested e-mails or text messages:

• Electronic correspondence sent or received by elected officials or their staff members are independently searched for on city servers by security personnel in the Communications and Technology Management Department. These messages are then reviewed by the relevant offices for responsiveness, redactions if needed, and to identify legal exceptions, if any.

• Electronic correspondence sent or received by all other City personnel are initiated by the departments or offices that have been tasked to provide responsive information.

The City Manager in August 2011 established a policy that requires city employees who use private devices or accounts for e-mails or texts involving city business to forward those communications to their government e-mail accounts, so they would be treated as public information as required by the TPIA. Del Bosque said he was not aware of any actions the City has taken to make sure that City employees are complying with the city manager’s policy.

Del Bosque agreed with Aleshire that a critical step in obtaining the full disclosure of public information is deciding to which departments the PIR Team should send requests. “It’s part of our process to assess the request and then select the right departments,” Del Bosque said.

An ongoing matter of concern is whether the City is conducting a thorough search to find public information. When asked who at the City is tasked with reviewing or determining whether a search was adequate to discover potentially responsive records, Del Bosque replied, “I know of no one.”

Del Bosque said he would have no way of knowing if a department chose not to provide documents that could prove embarrassing by claiming it had no responsive records. “We send out requests to the departments, and then we rely upon the departments to get us back the information.”

If a requestor complains that not all responsive records were provided, Del Bosque said, “We would go back to the department and ask for a re-search.”

Del Bosque said he was not aware of whether any audit had been performed during his time on the PIR Team to determine whether the City was complying with the TPIA. “Each department is tasked with making a good-faith effort to search for the records....” No one other than the department personnel themselves search for responsive records.

It is standard practice for the PIR Team to forward to requestors any responsive information that comes from the mayor and council offices, the city manager, and assistant city managers. Asked why the system is different for those officials than for the rest of city’s bureaucracy, Del Bosque replied, "It's just something we've done.”

City errors in the Rodgers lawsuit

Del Bosque said that the Rodgers request for correspondence between City officials and the Downtown Austin Alliance was erroneously closed out by an intern before the information was provided.

He said it was his responsibility to go through e-mails of the prior mayor and council members responsive to Rodgers’ request before sending them to Rodgers but he failed to do so because, “I got confused with the multiple requests....”

Del Bosque could not recall why it took five weeks after Rodgers asked for records about the proposal for golf courses on land at Walter E. Long Metropolitan Park before that request was forwarded to Sue Edwards.

He also could not recall seeing any e-mails from Aleshire before the lawsuit was filed, including the one threatening a lawsuit. Yet he said he was not shocked to see the lawsuit.

Del Bosque said that after reading the lawsuit he did “nothing specifically.” He could not recall if after reading the lawsuit he went looking for records.

Although the lawsuit stated that the requestor had not gotten responsive information, even after Del Bosque read it he took no action because “ it was being handled by the Law Department.”

Plaintiff’s perspective on findings

The net effect of all that Del Bosque had to say in his deposition left Rodgers with strong opinions about his performance.

When the lawsuit hit, instead of looking to see if the information had not been provided, as alleged in the petition, Del Bosque did nothing. “It seems like he was waiting for someone to tell him what to do,” Rodgers said.

Rodgers questioned whether Del Bosque is qualified for the job.

“When they hired Del Bosque, they didn’t open up the search and find a crack person who knew how to do this. They wanted someone to corral and put within these margins. That’s the way it looked in the deposition. He had a narrow purview of what’s required.”

Rodgers’ lawyer, Bill Aleshire, was also dismayed by Del Bosque’s answers.

“If City Manager Ott wanted to set up a system designed not to work and headed by someone with no background to make the system work,” Aleshire said, “then Ott has a glorious victory here and a fantastic success if that's what he was trying to do.”

“If that's what Ott wanted to do—pretending to be transparent and accountable—he would have a system designed to fail, and have no mechanism to identify their errors and correct them. No way of knowing even if they properly searched for information and where records might be,” Aleshire said. “There’s no ongoing regular evaluation of how they're doing. They are even ignoring e-mails from a lawyer saying he didn't get records. That's not behavior or a system for someone who wants to be transparent and accountable.”

“The more embarrassing it is, the least likely it is the Ott administration will turn over records,” Aleshire said.

Links:

Oral Deposition of Sue Edwards, August 28, 2015 (101 pages)

Oral Deposition of Santos Eloy Del Bosque III, August 26, 2015 (125 pages) with appended changes of October 9, 2015 (3 pages)

Settlement Agreement and Release, Brian Rodgers, Plaintiff, v. The City of Austin, Defendant, Cause No. D-1-GN-15-002291

Brian Rodgers, Plaintiff, v. The City of Austin, Defendant, Cause No. D-1-GN-15-002291 (34 pages with exhibits filed June 11, 2015)

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 Plaintiff’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:

Rodgers Settles TPIA Suit for $5,000: City’s bungled response to Rodgers’ public information requests compounded by inept handling of lawsuit, November 2, 2015

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

 

 

Comments   

 
+1 #1 Lindfa Curtis 2015-11-09 21:28
I have one word. Sickening. I have one question. Why do we put up with this?

PS Thanks for all you do -- Ken, Bill and Brian.
 
 
0 #2 David Orshalick 2015-11-12 00:52
Have these failures to comply with the state statute been referred to the County Attorney for prosecution?

The open government act clearly spells out the misdemeanor penalties for failing to comply. It even mandates proper training in the legal requirements of the law by public officials as well as the officer for public information.
 
 
0 #3 Editor 2015-11-12 10:31
Re: #2 David Orshalick:

The county attorney gets our News Alerts and so may be aware of the situation.

Government Code Sections 552.351, 552.352, and 552.353 (the Texas Public Information Act) address criminal violations.
--.351 addresses destruction, removal, or alteration of public information.
--.352 addresses distribution or misuse of confidential information.
--.353 addresses failure or refusal of officer for public information to provide access to or copying of public information.
 

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