As is the modus operandi of those trying to hide in darkness, the truth about the open records request has been distorted in the public consciousness by useful idiots and a complicit news media. It is obvious that the distortion is designed to silence those trying to shine transparency on government. As much as the useful idiots would have you believe the issue is not about the police going down to Steve Ortega’s or Susie Byrd’s houses to knock down their doors and take away their computers.
No, the issue is actually more nefarious for them; it is about transparency in government.
My attempt at comedy aside, getting to the real story behind what it is that the open records advocates really want is as easy as making a simple telephone call to either Bill Aleshire or Stephanie Townsend Allala. But alas, the news media would rather let you believe that what we are asking for is to get personal passwords and actually go into email accounts to view all of the emails.
That is not the case.
Let’s breakdown the misinformation piece by piece:
First the city ordinance passed by city council last week. It is actually very simple:
On August 20, 2013 a motion was made, seconded and carrier that:
1. The City’s Public Information Officer will: exercise the authority granted to the governing body to request the voluntary submittal of any email in the possession of any current or immediately preceding council member and the City Manager that would be responsive to the requests for public information currently pending resolution in Travis County District Court.
2. Prepare for and publicly disclose consistent with the Texas Public Information Act and applicable attorney general rulings:
a. The fifteen previously undisclosed pages of information accessible to the City and responsive to Aleshire’s September 5, 2012 and October 5, 2012 requests;
b. The 168 previously undisclosed pages of information accessible to the City and responsive to Rojas’ February 7, 2013 request; and,
c. Any responsive email voluntarily made accessible by current and former City Council members and the City Manager since the requests were received or in response to the Public Information Officer’s request as described above.
Authorize the City Attorney in consultation with outside Counsel to offer this unilateral action by the City as an amicable resolution of the lawsuit City of El Paso, Texas vs. Greg Abbott, Attorney General, Cause No. D-1-GN-12-003879, our file number 12-1001-034.
APPROVED this 20th day of August 2013
Notice how it starts out by acknowledging that the city has the authority to request the emails. There is nothing ambiguous here, except for “voluntarily” but I’ll get to that later in the next paragraph. The city council action also acknowledges that the Texas Attorney General was correct and that the request is a valid request for public information. Again, no ambiguity here.
Now we get to the crux of the word “voluntarily”. The city, for whatever reason, but speculation has it that it has to do with protecting existing and former city officials, put in the word “voluntarily”.
This is a red herring because as you can see the law is very clear about officials holding on to public/government records.
Sec. 201.005. DECLARATION OF RECORDS AS PUBLIC PROPERTY; ACCESS. (a) Local government records created or received in the transaction of official business or the creation or maintenance of which were paid for by public funds are declared to be public property and are subject to the provisions of this subtitle and Subchapter J, Chapter 441, Government Code.
(b) A local government officer or employee does not have, by virtue of the officer’s or employee’s position, any personal or property right to a local government record even though the officer or employee developed or compiled it.
Sec. 202.005. RIGHT OF RECOVERY. (a) The governing body may demand and receive from any person any local government record in private possession created or received by the local government the removal of which was not authorized by law.
(b) If the person in possession of a local government record refuses to deliver the record on demand, the governing body may petition the district court of the county in which the person resides for the return of the record. If the court finds that the record is a local government record, the court shall order the return of the record.
(c) As part of the petition to the district court or at any time after its filing, the governing body may petition to have the record seized pending the determination of the court if the governing body finds the record is in danger of being destroyed, mutilated, altered, secreted, or removed from the state.
(e) If the person in possession of the local government record of permanent value refuses to deliver the record on demand, the director and librarian may ask the attorney general to petition for the recovery of the record as provided by this section. As part of the petition or at any time after its filing, the attorney general may petition to have the record seized pending the determination of the court if the governing body finds the record is in danger of being destroyed, mutilated, altered, secreted, or removed from the state.
We can clearly see that any records, wherever they may be and however they are stored is the property of the citizens of the city. Again, no ambiguity.
Cindy Ramirez, of the El Paso Times, quoted Steve Ortega on August 27, 2013 as stating that “he will not release his private emails unless he is ordered to by a judge”.
It is funny how Steve Ortega, reportedly a lawyer, doesn’t understand the concept herein. Ramirez goes on to quote Ortega as stating that he “has numerous emails from constituents but none that are illegal or related to city transactions“. Notice how he not only admits to having numerous constituent emails but he goes on to attempt to obfuscate the truth.
Again, this is an attempt to hide behind smoke-and-mirrors. If, in fact, Steve Ortega has no emails that have any public content on them, then all he simply has to do is submit an affidavit, under oath, stating that he, in fact, has no government property to provide.
You see, it is easy to state anything because you can conveniently hide behind “I was misconstrued”, or “I was misunderstood” but it is entirely much more difficult to state, under oath, “that I do not have responsive documents”. You see, if this statement is proven to be false then Steve Ortega would be going to jail.
Likewise, Cindy Ramirez quoted Susie Byrd as stating that “she has turned over the documents that were requested of her and has nothing else to provide”. If that is the case, then simply sign the affidavit stating those exact words and be done with it.
No one, who is seeking transparency in government, has proposed or demanded that people go into “personal email accounts” to search for records.
Therefore, now that the city has acknowledged that any records that involve city business is rightfully the property of the people, how is the city supposed to proceed?
Unlike the grandstanding by the city attorney, the answer is again, simple.
Suppose that a former city official is accused of having a city cellphone in their possession? It is assumed that the cell phone is at their house. What does the city do? Does it ask the official to “voluntarily” return it, unlikely but let’s play along and pretend that they do. The city official says “no, I don’t have it”. Does the city just accept that and move along, or does it launch an investigation?
In this scenario, the city would ask the police department to investigate. And, if the police are able to gather enough evidence to suggest that the phone is at the house then they would present their case to a judge who, if the evidence is compelling, would issue a search warrant. You all know what happens next if the cell phone is found at the former official’s house.
Therefore, I ask you, there is a request to provide documents that belong to the public from officials. Susie Byrd has stated that she has turned over all of the documents that meet the criteria in her possession. Why, would she then refuse to state, under oath, that in fact she has complied?
Could she be hiding something?
As for Steve Ortega, he acknowledges that he was “numerous emails from constituents” but none are “city business”. Steve Ortega purports to be a lawyer and therefore we assume he clearly understands what it is to make an affirmation under oath. If he is being honest then he should have nothing to fear.
Steve Ortega had no problem taking the oath of office. So, how come he is suddenly fearful of signing an oath attesting to his truthfulness? Could it be because there are more “Hookers”?