in Houston, Texas
Texas windstorm agency must release billing records, correspondence, says Attorney General
Wednesday, Jan 11, 2012, 03:21PM CST
By Steve Miller

The Texas Windstorm Insurance Association must surrender a number of documents it has battled for months to withhold, the state Attorney General’s office has ruled.

Texas Watchdog requested on Oct. 5 details of travel for interim general manager John Polak, legal bills from Austin lawyer Burnie Burner, a list of employees terminated by TWIA between specified dates, and certain letters and other communication between TWIA and the Texas Department of Insurance, which took over the association in February.

The information received did not fully comply with the request; the detailed legal invoices sought were not provided, which would tell the public exactly what Burner, who was retained under murky circumstances, was doing.

“We’re not mind readers,” TWIA counsel Susan Banowsky replied when questioned about the omission of these records.

In an effort to lend clarity, Watchdog submitted a second request Oct. 19 for some of the same information, this time asking also for records regarding Banowsky’s work: How much was TWIA, and by extension the insured property owners, shelling out to contest the public’s inquiries into its dealings?

The records that were provided told this story. Banowsky is paid $545 an hour for her work processing open records requests and frequently writing legal appeals seeking to withhold documents.

The association appealed the disclosure of a number of other records asked for in both requests. This back-and-forth is what's known as a request for an open records letter ruling.

TWIA sought to withhold information under the basic of state government legal passages, including the catch-all confidential statute and one relating to litigation, 552.101 and 552.103.

It also cited 552.111 relating to interagency memos, which, given the upheaval and, hopefully, repair being done at the agency, would certainly be of compelling public interest. For parts of the other information sought, TWIA cited lawyer-client privilege and attorney work product privilege.

The AG's office rebuffed most of those arguments.

At numerous points in the letter ruling, the AG's office notes that TWIA counsel has “failed to demonstrate” assertions made regarding records.

“Some of the information you have marked does not indicate it was actually communicated,” the ruling says, regarding some documents that were claimed to be exempt because they were between the association and the association's outside legal counsel.

“You have failed to identify some of the parties to the communications in the submitted attorney fee bills,” the ruling also states.

At one point, the association sought to withhold communications with TDI and information shared with TDI regardings its examination and oversight of TWIA under chapter 401 of the state insurance code.

“The present request is for information held by the association, not the department,” the ruling states. "The association has not explained how or why section 401.058 would be applicable to information in its possession.”

The association was allowed to withhold some information relating to a pending lawsuit against a former TWIA employee, Bill Tassin, who left in July after working there for 10 months.

“We note, however, once the information at issue has been obtained by all parties to the anticipated litigation through discovery or otherwise, no … interest exists with respect to the information," the AG writes. "Thus, any information at issue that has either been obtained from or provided to all opposing parties in the anticipated litigation is not excepted from (disclosure).”

TWIA has demonstrated a tenuous relationship with the state’s transparency laws, both the open meetings and open records provisions.

Much of the trouble that led to the state takeover began with an e-mail regarding the firing of two employees, Reggie Warren and Bill Knarr. "Resigned" is how TWIA put it. We knew otherwise, and the situation was much more involved as it turned out. Read our story about that by clicking here.

We look forward to receiving the records that the AG has deemed public and relaying them to readers here.
Contact Steve Miller at 832-303-9420 or

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Photo of Hurricane Ike from NASA.
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