in Houston, Texas
texas public information act
Government contractors resist Texas public records law with lawsuits
Tuesday, Nov 27, 2012, 12:04PM CST
By Mark Lisheron
dome

People who work for your government and deal with your government would rather you didn’t know so much about your government. And they would like the law to reflect that view.

Don’t take our word for it. As many as half of the lawsuits filed with the Attorney General’s office come from government contractors who want to skirt the Texas Public Information Act, Amanda Crawford, the assistant attorney general for open records, told a Senate Committee on Open Government hearing Monday, Associated Press reports.

As we have been reporting for more than a year, the Austin American-Statesman has been fighting in court to determine exactly the taxpayers’ involvement in a recently staged Formula 1 race outside of Austin.

Circuit of the Americas, the company that made agreements with the state, Travis County and Austin to build its grand prix race track, has argued disclosing details of those agreements would compromise it in the marketplace.

Crawford told two-fifths of the committee (Chairman Rodney Ellis, D-Houston, and vice-chairman Wendy Davis, D-Fort Worth, were there. Kevin Eltife, R-Tyler and outgoing Sens. Florence Shapiro and Jeff Wentworth were not.) what she regularly sees are contracts drawn with government bodies who are allowed very little access to the contractual fine points.

If your elected officials don’t know what is going on, what are the odds that you will?

The committee leaders also heard from the staff members from cities pestered by what they refer to as frivolous open records requests. Camila Kunau, an assistant city attorney for San Antonio, asked that state law be changed to allow the city to charge more for those kinds of requests.

Kunau did not offer at the hearing to help lawmakers define what, exactly, would be a frivolous open records request, although we are relatively sure she would be glad to.

And, speaking of frivolous, there is the reflexive response of some local officials to being asked to abide by the Public Information Act and its companion, the Texas Open Meetings Act: going to court on the taxpayer’s cuff.

Crawford told the committee the city of Lubbock and a commissioner in Bexar County are currently fighting to keep e-mails about public business private because they were sent on a private account.

City officials we have come to call Furtive Fifteen have taken their challenge to the Open Meetings Act to the Supreme Court, after having lost in every Texas court that would have them.

And taxpayers in Austin are still watching the legal meter run after Travis County attorneys ran up a legal bill of nearly $350,000 trying to determine whether Austin city officials violated the Open Meetings Act nearly two years ago.

Terri Burke and Russell Coleman, speaking on behalf of the Freedom of Information Foundation of Texas, reminded the committee the reason the public information laws in Texas exist is not to make life less burdensome for elected officials but to give the public information.

If the laws need to be changed, Burke told the committee, they need to be made clearer to those officials who are currently unsure. More information is always better than less.

***
Contact Mark Lisheron at 512-299-2318 or mark@texaswatchdog.org or on Twitter at @marktxwatchdog.

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State Bar of Texas sues Attorney General Greg Abbott over records in investigation into misused funds
Monday, Jul 16, 2012, 09:53AM CST
By Steve Miller
Lady Justice

The State Bar of Texas is suing the office of Attorney General Greg Abbott over an open records decision earlier this month that gives a legal trade magazine access to records detailing an internal investigation by the state bar.

A reporter from Texas Lawyer magazine in April requested the records from the state bar, which is an administrative arm of the state’s judicial department, with regard to fiscal misappropriation of funds by a bar employee who is also a deputy clerk for the Texas Supreme Court.

The bar appealed the request, and the AG’s office ruled in favor of the reporter, telling the state bar to hand over most of what was requested with the exception of some information that was asked to be withheld by the Austin Police Department as it is part of an ongoing investigation.

In its suit against the AG’s office, the bar argues that while one provision of the state’s open records law permits the withholding of a completed audit or investigation of misappropriated funds under section 552.108 by a law enforcement agency, “it makes no sense” to permit the release of information just because it is related to the expenditure of public or other funds by a government body, “particularly when the investigation is not yet complete.”

It also argues that the AG’s ruling claimed that to be withheld, information must fall under the dictates of a mandatory exception to the open records law rather than discretionary. “There are, however, no distinctions drawn with respect to [open records law] exceptions,” the bar’s petition states.

It is rare for the AG’s office to permit the release of information relating to an open investigation. But the AG’s letter ruling is based heavily on legitimate public interest.

The state bar last year sued Abbott over a different ruling that granted access to records to a lawyer accountability group.

In that case, the ruling granted access to a number of records dealing with lawyer sanctions. The bar, in its legal action, claimed the AG’s office also made public “sensitive State Bar personnel memorandums.”

The state bar and Abbott also tangled in a 2007 case before the state Supreme Court that centered on the public nature of the home address and phone number and date of birth of members of the state bar. Abbott ruled that they were subject to disclosure. An appellate court ruled the information is not subject to open records requests.

The Austin attorney Jennifer Riggs of Riggs, Aleshire & Ray, represents the state bar in all three cases.

Riggs worked in the AG’s office from 1984 to 1992, and served for two years as chief of the office’s Open Government Section.

One of her law partners is Bill Aleshire, an oft-cited advocate of transparency and a hotline volunteer for the Freedom of Information Foundation of Texas.

***
Contact Steve Miller at 832-303-9420 or stevemiller@texaswatchdog.org.

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A&M can withhold consultant’s report under competitive bidding exception, AG rules
Monday, Jun 18, 2012, 04:26PM CST
By Mike Cronin
Texas A&M logo

Texas A&M University officials may withhold a consultant’s report on its food services operations, the state Attorney General’s office has ruled.

The ruling is the latest development in the tug of war between Texas A&M officials and The (Bryan-College Station) Eagle over the release of documents that would shed light on the school’s push to privatize dining services.

The report does not have to be released until after a contract is finalized, the AG’s office wrote in the open records letter ruling. The AG agreed with Texas A&M officials that providing the report would put the university at a disadvantage in negotiating the particulars of the deal.

The school has consistently rebuffed the Eagle’s efforts to provide a glimpse of the privatization efforts:

Administrators are requesting an attorney general’s ruling on virtually all public records requests filed for information regarding the much-criticized privatization effort, arguing that release of the information would constitute a competitive disadvantage.

The Eagle has filed several records requests, including for the bids from the companies and emails from key players such as A&M System Chancellor John Sharp, the chief proponent of the plan.

University officials declined to even release a list of the names of the people on the committees that are evaluating the proposals.

University administrators are considering privatizing four service areas: dining, landscaping, custodial services and building maintenance.

***
Contact Mike Cronin at mike@texaswatchdog.org or 713-228-2850. Follow him on Twitter at @michaelccronin or @texaswatchdog.

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Texas city officials say ‘serial requestors’ must be deterred, activists worry about government transparency
Monday, Jun 18, 2012, 09:40AM CST
By Mike Cronin
keepout

Two more local governments in Texas have passed laws designed to deter "serial requestors" of public records.

Corsicana and Kemah city councils earlier this month each passed ordinances that allow public officials to bill citizens for staff time that meets or exceeds 36 hours responding to public information requests during a 12-month period.

Those decisions revive a debate about the 2007 state law that enabled local government agencies to pass on such costs: Is the effect one of government efficiency or reduced government transparency?

Corsicana and Kemah city officials contend the new policies are necessary to prevent government employees from wasting valuable time rummaging for files when they should be attending to city business. But open government advocates argue that providing citizens with public information is central to a government agency’s business.

Kemah City Attorney Dick Gregg Jr. said the law passed on June 7 by the city council will thwart the two or three “serial requestors” of open records from requesting “giant volumes of things that ties up city hall in a small city.”

Those people’s actions are “costing us dough,” Gregg said. “It’s a tremendous burden. A large portion of the staff becomes responsible for finding documents instead of taking care of running the city. So taxpayers end up paying for that work rather than the cost of city governance.”

That’s a misguided concept of democracy, said Paul Watler, a partner at the Dallas law firm Jackson Walker.

“Keeping the public informed about the business of government isn’t just ancillary to public agencies,” said Watler, past president and current member of the board at the Freedom of Information Foundation of Texas.

“Open record requests shouldn’t be looked at as something that distracts from the real work of government employees,” Watler said. “Transparency is the essence of public institutions in a democracy.”

Chuck McClanahanChuck McClanahan

That may be so, but the fact of the matter is that many broad requests do take a lot of time during the workday of Corsicana city employees, said Mayor Chuck McClanahan. Corsicana city council members passed its ordinance on June 5.

“Some of the information requests were really starting to slow down the process here,” said McClanahan, who said he believes in transparency and pointed to awards the city has won for financial transparency from the state Comptroller. “We want to be more efficient. We’re trying to be responsible with taxpayers’ money.”

Connie Standridge, the Corsicana city manager, said six people across three departments -- finance, engineering and parks -- typically handle public records requests. The city has 279 full-time employees, according to its website.

Corsicana employees spent an estimated 113 hours handling requests last year, the first year the city tracked that statistic, Standridge said. Staff has spent an estimate of 60 hours for the year to date, she said.

Local government agencies would be less burdened by requests if they would adopt technology such as document management and retrieval software, Watler said.

The new laws worry some residents, who fear they’ll be targeted as the so-called “serial requestors.”

“Now, as soon as we file requests, they’re just going to use multiple employees to use up as much time as they can” to reach the 36-hour threshold, said Blu Shields, 59, a commercial and residential builder from Texas City who does a lot work in Kemah. “Now, they can pick and choose who they charge and who they don’t.”

The ordinance enables city officials to “impede us even before we ask for records,” said Donna Holcomb, 47, a stay-at-home mom of Bacliff who used to live in Kemah. Holcomb recently asked for eight years’ worth of email records for 16 city officials and was told she could have them, but it would cost $412,000.

She said the new law gives even more power to officials such as Gregg to “give us a ludicrous estimate for the amount of time and money our record requests will cost.”

“This law is going to close up government for the people of Kemah,” she said.

Paul WatlerPaul Watler

That chilling effect is an unintended consequence of the 2007 law, said Watler, the Dallas lawyer and FOI Foundation board member who specializes in First Amendment and media law.

“It deters legitimate requestors from seeking public records,” Watler said.

The 2007 law was authored by Texas state Sen. Jeff Wentworth, R-San Antonio, who put forward the proposal after parents flooded the Austin-based Lake Travis Independent School District  and the Eanes Independent School District with thousands of open records requests, according to stories in the Austin American-Statesman and the Houston Chronicle.

Neither Wentworth nor officials with the two districts responded to multiple requests for comment.

Several local governments since have enacted policies based on the law, including Comal County in 2008 and Fort Bend County in 2010.

Comal County Judge Sherman Krause said he hasn’t heard anyone talk about the county’s toughened policy, “so I’m not sure how we would quantify” whether the law has made county governance more efficient.

But in Fort Bend County, the 36-hour-limit has not been triggered since the law was passed two years ago, Michelle Rangel, an assistant county attorney, said.

The Texas Legislature in passing the law exempted public officials and journalists, as well as tax-exempt legal services organizations. The exemption does not cover activists like Tom "Smitty" Smith, state director of Public Citizen, the national consumer advocacy organization founded by activist Ralph Nader.

Smith said the 2007 law “hinders people from finding out what’s really going in government,” because unraveling scandals often takes many public records requests over a long period of time.

“On a number of occasions we, or our allies, have been told that data we are seeking would be prohibitively expensive,” Smith said. “And we would have to trim back our data request or abandon it because we couldn’t afford to go forward.”

***
Contact Mike Cronin at mike@texaswatchdog.org or 713-228-2850. Follow him on Twitter at @michaelccronin or @texaswatchdog.

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Corsicana approves new charges for public information
Friday, Jun 08, 2012, 09:19AM CST
By Mike Cronin
cash register

Time is money – especially in Corsicana, a municipality of about 26,000 roughly an hour southeast of Dallas by car.

The city council voted unanimously earlier this week to begin charging people whose open-records requests tally at least 36 hours a year in public employees’ time, reports Janet Jacobs of the Corsicana Daily Sun.

“There are two or three people who’ve already gone past 36 hours this year,” Corsicana City Attorney Terry Jacobson said. “It does happen in the real world.”

State law allows Corsicana to put in place such a policy.

A governmental body may establish a reasonable limit on the amount of time that personnel of the governmental body are required to spend producing public information for inspection or duplication by a requestor, or providing copies of public information to a requestor, without recovering its costs attributable to that personnel time.
(b)  A time limit established under Subsection (a) may not be less than 36 hours for a requestor during the 12-month period that corresponds to the fiscal year of the governmental body.

But government agencies are still bound by the usual requirement to provide detailed estimates of charges. The attorney general has more resources on the limits on charges for public information here.

***
Contact Mike Cronin at mike@texaswatchdog.org or 713-228-2850. Follow him on Twitter at @michaelccronin or @texaswatchdog.

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Houston ISD trustees talk budget while withholding budget materials
Friday, May 18, 2012, 10:19AM CST
By Mike Cronin
budget

Houston schools trustees and administrators discussed next year’s $1.5 billion budget Thursday morning that would determine how many teachers could lose their jobs and how much of a raise teachers who remain employed might receive.

But that public conversation was all but impossible to understand for others present.

That’s because Houston Independent School District officials did not provide copies of the materials – which are public records under the Texas Public Information Act – during the meeting. The practice is legal, an open government attorney said.

But “from a citizen’s point of view that is pretty ridiculous,” said Tom Gregor, a Houston lawyer who answers questions on open government from the public through a hotline provided by the Freedom of Information Foundation of Texas in Austin.

State law does not obligate HISD, or any government entity, to distribute public records during an open meeting.

“But providing public information so people can follow the meeting would be in the spirit of open government,” Gregor said. “Withholding that information seems to serve no other purpose than preventing the public from understanding the information.”

Texas Watchdog requested, during and after the meeting, copies of the same materials that HISD trustees and staff members possessed and referred to throughout the two-and-a-half hour budget workshop. District officials supplied them more than 90 minutes after the meeting’s close.

Board President Mike Lunceford said in an e-mail that it would “probably make it easier for everyone else to understand” if HISD administrators supplied the public with the same documents the board has during open
meetings.

HISD spokesman Jason Spencer said in an e-mail that he and district Chief Financial Officer Melinda Garrett intended “to make sure (reporters) have what you need to follow the conversation. If it's any consolation, I didn't have the documents either.”

Spencer did not reply to an e-mail asking if members of the public would be able to obtain such materials upon request at open HISD meetings.

Garrett apologized for the unavailability of the budget documents.

Normally we have them,” Garrett said via email Thursday night. “But I was out of town (Wednesday), and apparently wires got crossed between staff members. I think you know that we always provide copies to the public.”

In an interview with Texas Watchdog following yesterday’s workshop, Garrett said the district’s projected budget deficit is $53.1 million for 2012-13. Garrett said part of the deficit has been offset by $18.4 million in one-time federal stimulus funds approved by the board in August to balance the budget.

The district received a total of $33 million under President Obama’s 2009 American Recovery and Reinvestment Act, Garrett said.

Trustees are considering a range of scenarios, including a 4-cent property-tax increase in 2013-14 that would put HISD in the black by about $160,000. Without that increase, HISD projects it would run a $41 million deficit that year.

“The tax increase is what would happen next budget cycle if the state does not change the funding,” Lunceford said.

HISD officials have discussed a tax hike up to 4 cents since at least last year, when trustees chose not to raise taxes.

A 4-cent tax rate increase would increase the bill for a home valued at $197,408 by about $57 per year.

District residents currently pay the lowest property taxes of all 21 Harris County school districts, HISD officials say. District officials charge residents a tax rate of $1.1567 per $100 of taxable value.

Trustees are weighing whether to give teachers with 10 or fewer years of experience a raise of 2.25 percent and those with more than 10 years a raise of 1.75 percent. HISD officials granted some teachers a raise during the 2010-11 academic year.

Garrett said a final budget proposal from HISD staff would be complete within days.

Board members are scheduled to adopt the 2012-13 budget on June 14 during their regular monthly meeting.

Whatever the board decides, next year’s budget is projected to be tens of millions of dollars lower than this year’s $1.58 billion budget.

***
Contact Mike Cronin at mike@texaswatchdog.org or 713-228-2850. Follow him on Twitter at @michaelccronin or @texaswatchdog.

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Houston ISD plans changes to make contracting more open; trustees to vote Thursday on hiring ethics consultants
Tuesday, May 08, 2012, 06:19PM CST
By Mike Cronin
cash register

Two recent audits of the ways Houston public schools officials do business will lay the groundwork for sweeping revisions to the Houston Independent School District’s methods of buying goods and services.

For example, HISD trustees and the public will be able to view documents that district officials use when they evaluate and grade contractors who bid on jobs with the district, Melinda Garrett, HISD’s chief financial officer, told the Houston school board during a meeting on Monday. That would underscore the requirement already in the state Public Information Act to make records available promptly.

That’s just one of the approaches to improve HISD governmental transparency that Garrett and her team plan to suggest in a report to the board within a few weeks, she told Texas Watchdog after yesterday’s meeting.

“We are working on our recommendations which we will cover with the superintendent soon,” Garrett said. “We will be addressing all items in the reports.”

Other reforms the chief financial officer mentioned include archiving HISD procurement department documents and standardizing the forms HISD officials use to solicit competitive bids for projects, Garrett said.

Precedent exists for the scale of change district officials currently contemplate. A 2010 audit of the HISD capital facilities program caused board members and administrators to merge departments, hiring a pool of on-call custodians and the re-establishment of a preventive-maintenance program.

The proposals come as district leaders consider whether to put a bond referendum to the voters for new school construction and renovations. Superintendent Terry Grier floated that idea earlier this year.

Null-Lairson PC, a Houston accounting firm, conducted a four-month, $87,500 audit of district procurement practices and issued its report in March. Null-Lairson merged with a Dallas-based accounting and consulting firm, Whitley Penn LLP, earlier this month.

The Council of the Great City Schools, a nonprofit based in Washington, D.C., completed a weeks-long audit in October. It cost $16,000.

Both audits criticized HISD’s lack of transparency.

Null-Lairson auditors said questions arose in how district officials disseminated information about bids for work with the district among the public, board members and its own staff. They also found that “defined procedures” didn’t exist that outlined when and how board members and vendors may contact one another.



Particularly disturbing was Null-Lairson’s finding that documents went missing during its audit of HISD. Trustee Juliet Stipeche immediately called for an investigation. She told Texas Watchdog in March that a document’s chain of custody is critical to ensuring no one is tampering with public information.

HISD Inspector General Robert Moore said last month that the investigation was complete and a report would be completed by the end of April. But Stipeche said she has yet to receive the report.

The council’s review stated that HISD business practices “lead to a perception of manipulation of and distrust in the procurement process.”

Board Vice President Anna Eastman called for an independent audit in August.

Both reviews came after Texas Watchdog reported on seven cases where HISD trustees were accused of unethical or improper behavior.

District trustees are scheduled to vote Thursday night on whether to pay up to $35,000 to consultants to rewrite procurement and ethics policies.

Those consultants are from Whitley Penn and two other companies that assisted Null-Lairson with its audit – the Florida-based MGT of America and Houston certified public accountant Susanne Mariga.

HISD officials told Eastman yesterday that consultants would take between 45 and 60 days researching best practices at school districts around the country before rewriting existing policies.

Stipeche, who also is a member of the board audit committee, said yesterday that the committee recommends the board approve the hiring of the three firms.

***
Contact Mike Cronin at mike@texaswatchdog.org or 713-228-2850. Follow him on Twitter at @michaelccronin or @texaswatchdog.

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Legal bills mount for taxpayers in contractor's suit against Houston ISD Trustee Larry Marshall
Tuesday, May 08, 2012, 10:00AM CST
By Mike Cronin
bills

A civil lawsuit accusing Trustee Larry Marshall of bribery, money laundering, wire fraud and racketeering filed a year-and-a-half ago has cost taxpayers of the Houston Independent School District at least $242,000 in legal fees.

HISD officials provided that dollar amount to Texas Watchdog late Friday afternoon.

Texas Watchdog had been asking since August for the public records that show how much taxpayer money the district has paid lawyers for Marshall and HISD to fight the allegations.

The Gil Ramirez Group LLC, a contractor for Houston’s public schools, sued Marshall and HISD in December 2010 for improper actions they say Marshall took during his 2009 term as school board president. Marshall has repeatedly called the suit baseless.

At nearly a quarter-million dollars, the legal bills so far could pay the salaries of five teachers, then some, at the starting rung of HISD’s pay scale, or about $45,000.

HISD is the nation’s seventh-largest school district, with about a $1.6 billion annual budget and roughly 203,000 students.

HISD officials could not provide the law firms’ bills for months because, they said, no records existed that matched the way Texas Watchdog requested the information. Texas Watchdog asked for those bills five different ways from August through March.

District officials confirmed in March that Texas Watchdog’s wording in the public records request matched existing documents. They could not explain why HISD did not release the documents to Texas Watchdog until Friday -- nine days after Texas Watchdog filed a complaint with Texas Attorney General Greg Abbott arguing that HISD was in violation of the Texas Public Information Act. Texas Watchdog withdrew the complaint after receiving the information.

A government agency must “make a good faith effort to relate a request to information that it holds,” the attorney general’s office advises in a handbook on the public records law.

Pamela Kaiser, HISD’s public information officer, declined to comment for this story.

In court papers filed during the past 17 months, Gil Ramirez Jr. and his Houston-based lawyer, Chad Dunn, have accused Marshall of accepting money under the table from major HISD vendors.

Some of that money was funneled from the consulting firm of Marshall’s campaign treasurer to Marshall's own consulting firm, Ramirez and Dunn claim.

Ramirez and Dunn said in court documents filed in October that a $25,000 check Marshall received from David “Pete” Medford, who runs Fort Bend Mechanical, in 2009 was a bribe.

Marshall did not report the donation as a contribution in his campaign finance forms, which is illegal. At least $45,500 in checks from Medford to Marshall exist, according to court documents.

Michael McGann, a Houston lawyer who is representing Fort Bend Mechanical, has said any assertion that Medford bribed Marshall is “absolutely not true.”

Fort Bend Mechanical Ltd., an HVAC service and installation company that competes with The Gil Ramirez Group for HISD work, has done millions of dollars of business with the school district.

Larry MarshallLarry Marshall

Marshall's current term on the school board runs through the end of next year. He has not said whether he plans to run for re-election. Marshall is HISD’s longest-serving trustee. He has sat on the board since 1997 and would be 80 on Election Day, 2013. A trial for this suit – which HISD lawyers have requested – could begin by February, Dunn has said.

Until November, Thompson & Horton LLC, the firm that has served as the HISD board's legal counsel for two decades, had represented Marshall and HISD.

But Marshall then chose to be represented by Jarvis Hollingsworth, a lawyer with the Houston office of the firm Bracewell & Giuliani. Marshall said he made the decision to switch because the two have known each other for decades.



Bracewell & Giuliani have billed HISD at least $139,542.62, according to public records provided by HISD to Texas Watchdog under the Texas Public Information Act. The tab includes a charge of $80.09 for meals on Feb. 22 at the Post Oak Grill, where patrons can enjoy a center cut beef medallion with cognac truffle sauce or seared red spice Asian tuna.

District officials supplied the bills from the months of December 2011 through March 2012, inclusive.

Five Bracewell & Giuliani lawyers HISD paid to defend Marshall in the case charged the district a rate of $350 per hour. One lawyer charged $235 an hour. And one paralegal’s time is billed at $260 an hour.

Former Houston city attorney Arturo Michel, now of Thompson & Horton, is leading HISD’s defense in the case.

Thompson & Horton has billed HISD at least $102,791.45, according to public records. District officials supplied the bills from the months of February 2011 through April 2012, inclusive.

Michel charges HISD $175 an hour for his services, according to those bills. Another Thompson & Horton lawyer who has worked on the case, John Hopkins, has charged as high as $225 per hour.

U.S. District Judge Kenneth M. Hoyt is scheduled to rule no later than today whether Marshall will have to appear for a deposition on May 29.

***
Contact Mike Cronin at mike@texaswatchdog.org or 713-228-2850. Follow him on Twitter at @michaelccronin or @texaswatchdog.

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Attorney General's ruling suggests trick for Texas agencies wanting to keep records closed: Just move them.
Wednesday, Apr 25, 2012, 01:19PM CST
By Steve Miller
lucy

Buried deep in this excellent narrative of a pursuit of a public record - in this case, the resume of a psychiatrist found guilty of having sexual relations with patients in another state - is a scary notion: Government agencies that want to hide records can stash them inside a file that is considered in previous rulings to be confidential.

The Austin American-Statesman did a series of stories on the state hospital system last year and among other things found that some doctors continue working while their cases are investigated, as well as discovering that doctors with shady records in one state can simply move on and practice in another.

We wrote about a similar case in which a Texas doctor complained to the cops that aliens were invading his head, yet he continued to practice in Florida. At the time, we were told that states often rely on news accounts to keep tabs on errants doctors. You can do some of your own reporting when it comes to doctors: For $10, you can get some kind of doctor history here.

Case in point for the Austin newspaper’s story was Gary Paul Kula, an Oklahoma shrink with a dubious past hired to work at a state mental hospital in Rusk. The reporters filed an open records request to gain access to Kula’s administrative personnel file, which includes work history. Unlikely to be released, as the story points out. But what is almost always fair game is the resume of a publicly-employed individual, be they doctor or electrician.

In a ruling last month, the story reports, the state AG’s office claimed the resume was in the larger personnel file and could not be released.  

The ruling was a rare misstep for the AG’s office, which is generally seen as friendly to the Sunshine cause. As the story points out, “the decision appears to violate several state Supreme Court rulings that make ‘clear that a routine business record such as the requested resume is not privileged simply because it is located in a medical committee’s file.'"

***
Contact Steve Miller at 832-303-9420 or stevemiller@texaswatchdog.org.

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Photo of Lucy from the Pacific University College of Education.

Houston Airport System overlooks high-ranking employee's blocking of public records request, lies to cover it up
Monday, Apr 23, 2012, 06:53AM CST
By Steve Miller
IAH Bush Intercontinental

A Houston Airport System official who withheld public records against the advice of city lawyers and then lied to cover up her misdeed was never sanctioned or disciplined, public records show.

Maria Fink, assistant director of human resources at HAS, prevented the release of certain personnel records for an airport employee as required by state law and violated other city policies in her dealings with a subordinate, a 2010 investigation by the city's Office of Inspector General found. According to correspondence from the city on a public information request earlier this year, "there are no records of disciplinary actions" following that investigation.

It's hard to tell if Fink's case is an isolated one. No one at the city contacted by Texas Watchdog was willing to address if there are any penalties for violating those policies.

Annise ParkerAnnise Parker

Airport Director Mario Diaz and Eric Potts, who was interim director at the time, declined to comment.

Mayor Annise Parker, who once claimed that her administration was “trying to be much more accommodating” to open records requests, also declined to comment.

Fink, a human resources manager at Enron in the late '90s, was paid $111,000 last year, according to records. She, too, declined to comment.

On Oct. 27, 2009, Texas Watchdog reporter Jennifer Peebles submitted an open records request for “any and all personnel records” for two airport system employees, Aleks Mraovic and Kelly Hu.

Beverly Roach, the point person for public records at the airport, emailed Fink as the records requested were in her custody. Fink provided some documents but not all, and on Nov. 5 Roach emailed her supervisor, Nancy Yue.

“This is to bring to your attention a misinterpretation of HAS’ requirement to fulfill an open records request for 'personnel files,'” Roach wrote. “Maria Fink has determined that the personnel file as it exist[s] is not what is being asked for in this request. …This action is not encouraged by our Legal Department.”

Roach included in her email the penalties for refusing access to public records.

“Ms. Peebles is scheduled to come in at 10 a.m. today. I have concerns about our handling of the request. …” Roach added that she had contacted the city attorney's office regarding the issue.

On Nov. 17, Peebles emailed HAS, accusing the airport of withholding documents in violation of the law and threatening action with the state Attorney General’s office. The AG in Texas has strong powers in policing open records violations, and has shown a proclivity to take such matters seriously.

“Several days ago I visited you at your office, and you granted me access to a few sheets of paper – mainly the internal City of Houston forms indicating an employee has been promoted, reassigned or had a change in pay,” Peebles wrote. “While the paperwork you allowed me to view is indeed responsive to my request, I need to make it clear that it does not fulfill my request to HAS for all of Mr. Mraovic’s personnel file.”

Roach forwarded the email to Evelyn Njuguna in the city attorney's office, asking for advice. She copied Fink on the message.

Njuguna was clear: “If the entire file has not been released, it should be released.” She later told investigators that the request was for specific information “and was not vague in what was asked for.”

Three hours later, Fink emailed Roach and advised that "as official custodian of personnel records of HAS, I will handle this request."

Listen here

The OIG report shows that Fink continued to block the release of the records and discouraged her staff, and Roach in particular, from seeking legal advice in complying with public records requests. (Hear an excerpt of an OIG interview with Fink in the player at left.)

“The advice legal gives us is just that – advice," Fink told her staff in a Nov. 30 email. "We, as a division, weigh the risks of that advice and we (HAS management) will make the final decision on the issue. Legal does not make the decision. … We should first utilize our internal resources before we seek external help on HR and open records policies.”

On Dec. 2, over five weeks after the initial request, Peebles sent a last ditch effort email to gain access to the public records. State law requires government agencies to release records promptly and gives them a window of 10 business days to challenge the request to the AG. Peebles again asserted that the matter would be referred to the AG’s office if the records were not released.

The next day, several city officials had a conference call that included Potts, HAS employee Ian Wadsworth, Fink and assistant city attorney Don Cheatham.

In a taped interview with OIG investigator Don Williams, Cheatham said that during the meeting, a woman whom he presumed to be Fink “kind of got in my face, and I got back in hers over the phone. She just didn’t think they ought to do so-and-so and so-and-so, and I told her, ‘That’s fine, but she wasn’t a lawyer for the city, and I wasn’t taking legal advice from her.'

"She wanted to argue about it, and I said, ‘It’s not up for debate.’ You know, she acted like I was offending her.”

The files were eventually released to Texas Watchdog.

Peebles, who is no longer with Texas Watchdog, was part of a team uncovering a number of problems at the Houston Airport System the previous summer, including the creation of a nonprofit offshoot that was entangled in international development of airports using the Houston name without permission, as well as using HAS employees to do its work. At one point, the nonprofit refused to hand its records over to the city, which wanted to review the processes and work of the operation.

The wrangling over the personnel files spurred a lengthy inquiry by the city, one that investigator Williams portrayed during taped interviews as one that “keeps coming back like a bad penny,” and claiming that it was “one of my thicker case files.”

Williams compiled two-and-a-half hours of taped interviews for the Fink case, which also included some personnel issues. Six of 12 sustained complaints against Fink pertained to the open records case, three of which were violations of a mayoral directive that city employees be truthful during city investigations.

Maria FinkMaria Fink

In one interview, Fink told Williams that she had contacted the city attorney’s office on her own regarding the Texas Watchdog request. She said she spoke to Don Fleming, an assistant city attorney.

“We went to another area of the legal department…” Fink said. She said she was told that her “interpretation” was correct.

“…There were now two different interpretations,” Fink said.

Fleming, questioned by the investigator, said that he was never contacted by Fink and that his colleague Cheatham handles open records questions.

Wadsworth, a deputy director at HAS, told Williams that at one point he had a call with Potts and Cheatham, and that there was consensus that Fink’s read on the request was correct, and they would not release the whole file.

But the legal office had told them that the request was for the whole file, which should be released.

Wadsworth then directed Roach to obey Fink and release only the few pages to Texas Watchdog, according to tapes and documents of the investigation.

Listen here

Wadsworth, who was found to have lied to an OIG agent during the inquiry, spoke to the investigator three times in just over five weeks in sometimes combative tones and at several points talked over Williams, interrupting him. (Hear an excerpt of an interview with Wadsworth in the player at right.)

Wadsworth misleadingly told Williams that the Texas Watchdog request “asked for all and any items in the personnel file relating to a number of things.” He initially said the request was read to him by Fink, then said he read the request.

Wadsworth called the request for the personnel records “somebody on the outside doing a fishing expedition presumably for the purpose of discrediting a city employee.”

“We have got to clearly comply with all laws and regulations from a [public records] perspective,” Wadsworth told Williams. “But I believe we also have an obligation to make sure we do what we can to protect our city employees, and therefore if as long as we’re compliant with the [open records] we don’t need to be loose in our interpretation, provide any more than necessary if that’s just going to hurt a city employee.”

Roxanne Butler, communications chief at HAS, told Williams that Fink was to blame for the entire episode. (Hear an excerpt of an OIG interview with Butler in the player below.)

Butler said, in a disjointed use of an old phrase, that having Fink handle a public records request for an HAS employee file ”would be like the fox watching the chicken hen, and when the farmer comes out the fox is now doing damage control. She needed to separate herself. … My feeling is, if one of my staff members is being investigated, I don’t get out front and try to be explaining it and showing it to the person who is looking it over. ... It’s Beverly’s job.”

Butler said she had to answer questions that were coming from Mayor Bill White’s office through spokesman Patrick Trahan after the threat to go to the AG’s office.

“His concern was, ‘Let’s get her the records.’ He wasn’t looking at the back end. He was looking at where we are now, and can we move forward."

Listen here

Butler said at one point she, Trahan and Roach had a conference call.

During the call, “I wanted to make clear that Beverly is not the reason were in this position," she said. "The reason we are here is that someone else involved themselves in the process. [Fink] completely micromanaged the situation and messed it up. Maria caused the situation - I don’t know why. This FOIA stuff you can’t play with. If you hand the reporter five to seven pieces of paper, any reporter is going to look at you and say, ‘You’re full of shit.’ Then I became offended, and I said, ‘What are you hiding?’"

The OIG was clear in its findings: “The investigation revealed that Ms. Fink placed Ms. Roach in an untenable position by failing and/or refusing to comply with the request. The investigation revealed that between November 17, 2009 and December 1, 2009, Ms. Fink failed to comply with the Texas Watchdog Open Records request.”

The inquiry also determined that Fink misled investigators by claiming that Peebles’ Nov. 17 email was a clarification.

“The investigation revealed that the October 27 and November 17 requests both requested any and all personnel files and documentation concerning Mr. Aleks Mraovic," the report states. "Ms Fink was untruthful in her response when she indicated that Ms. Peebles modified her request."

There were other violations of city policy and mayoral directives by Fink, including several infringements of Roach’s rights as an employee. Wadsworth was found to be guilty of one violation, lying to the investigator regarding the city attorney read on the request.

***
Contact Steve Miller at 832-303-9420 or stevemiller@texaswatchdog.org.

Keep up with all the latest news from Texas Watchdog. Fan our page on Facebook, follow us on Twitter and Scribd, and fan us on YouTube. Join our network on de.licio.us, and put our RSS feeds in your newsreader. We're also on MySpace, Digg, FriendFeed, and tumblr.

Photo of "Lights Spikes" - the sculpture by Jay Baker outside Bush Intercontinental Airport - by flickr user eschipul, used via a Creative Commons license.

Creative Commons License
Like this story? Then steal it. This report by Texas Watchdog is licensed under a Creative Commons Attribution 3.0 United States License. That means bloggers, citizen-journalists, and journalists may republish the story on their sites with attribution and a link to Texas Watchdog. If you do re-use the story, e-mail news@texaswatchdog.org.

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