Is The City Playing Games with Open Records?

As you all know, last week I encountered a problem with the city not accepting my money order for payment on an open records request I filed recently. As I shared with you in “Money Orders and the City of El Paso” the city’s Public Records Coordinator sent me an email on Thursday, October 3, 2013 advising me that they could not accept a money order as payment for an open records request I had filed on September 9, 2013.

It is important to note that the city has ten business days in which to respond to open records requests and because the city is closed on Friday’s the actual time limit is extended to sixteen days from the time I file a request.

I have also gotten the distinct impression that the city takes every possible day it can before releasing the information, however I just assumed that the city was receiving many open records requests and not delaying on purpose.

From a researcher’s point of view, a half-month to receive a response to an open records request creates issues with delivering relevant and important information to an audience. However I am glad for the open records laws and therefore I plan and work around their limitations.

When David Karlsruher challenged me with the notion that my analysis of his parent’s business was flawed because I had not included all of the businesses’ company names I conducted additional research and reviewed what I had based my analysis on. I did this because as a critic of the local media’s lack of professionalism and pointing out Karlsruher’s failings as a blogger I felt that I needed to hold myself to the standard I demanded of others.

If David was right I needed to acknowledge my mistakes.

In following up on my research and as a result of the money order issue I started to get an uneasy feeling that something was amiss with the city’s processing of my open records requests.

When I submitted my original open records requests for the Karlsruher’s business I asked for a breakdown of all business by the city with Karlsruher from 2001 to 2012. In my request I asked for the following business names; CSA Engineers & Constructors, CSA Design Group, CSA Design Group, Inc., and or Karlsruher Inc. dba CSA Constructors.

In preparation for my open request I had researched the different variations under which the Karlsruhers could be operating their business under. Because doing-business-as, or sole-proprietors is handled at the County level and more formal companies are handled at the State level I consulted for the different name variations at both entities. I also consulted business listings and other databases.

I believe my search was inclusive considering the limitations of looking for information that a party may not be willing to give up easily. Nonetheless David Karlsruher alleged that my analysis was incomplete and I needed to find out if he is correct or not.

Coincidently, as I further researched into this another two contracts with the city that included Karlsruher came to my attention. In yesterday’s city council meeting there was an item up for discussion that included a bid that was supposed to be awarded to Karlsruher, however the city council unanimously voted to reject all bids.

The issue of “mobilization costs” that led to this rejection is something I will be writing about in a future post. For the purposes of today’s post the attachment of Item 9A, the possible award to Karlsruher, included something that caught my attention in the addendum.

Under the section “Contractor Experience Reference FormCSA Engineers & Constructors is listed as completing a project on July 15, 2010 for $2,226,508. The project was labeled “Upper Valley Rd. St. & Drainage Improvements Phase I – Traffic Circle, City of El Paso”.

All indications are that Karlsruher was awarded a contract sometime in the middle of 2010 and they completed it satisfactorily.

However there was a problem with this information.

Either the city provided me with incomplete, or erroneous information when I filed my open records request asking for all business between the City of El Paso and Karlsruher, or the information on yesterday’s council action item was wrong.

According to the report that was given to me in response to the open records request I had submitted, CSA Design Group was issued only one check in 2010 in the amount of $31,300. Yet, yesterday’s city council agenda stated that they had worked on a project in 2010 that generated at least $2 million for Karlsruher.

Keep in mind that my original request included “CSA Engineers & Constructors” as one of the company names I had requested information on.

The city’s response to me only listed CSA Design Group. Remember I had submitted a list asking for information on four companies. The response I received listed only one company name. It really didn’t bother me that the response only listed one company name as companies routinely operate under different names and receive checks in another.

There is nothing wrong with this and there are many reasons why companies do this. Therefore I had no reason to question the city’s response about the Karlsruher’s companies. After David challenged my analysis I looked for more companies under which they may be operating and I came up with the same list I had originally.

Then yesterday’s agenda item stated that CSA Engineers & Constructors received a contract for about $2 million in 2010. The two things didn’t reconcile properly.

Who is to blame? Is someone lying?

I’m going to be filing new open records requests in the next few days specifically asking for information on that specific project in 2010 to see exactly how checks were disbursed for that project.

If the response shows that the Karlsruhers received a check in one of the company names I originally submitted then the city either did not accurately respond to my original open records request, or something is wrong with the attachment in yesterday’s city agenda.

Either of those two scenarios are of concern to those seeking transparency in government.

In addition to this issue, the apparent resistance by the city to release the DVD’s they have indicated they have collected for me in one of my recent open records requests is forcing me to question the integrity and intent of the city.

I assumed that I could count on the accuracy of each open records request that I file as I conduct my research. I assumed that the legalities attached to open records requests means that the city would be honest and forthcoming.

In regards to the pending cache of DVDs for one of my open records requests, on October 3, 2013 I was informed that although the city does not accept money orders, the Public Records Coordinator had written that she had explained the situation to the Comptroller and that they were going to ask the treasurer “to find a way to take the money order as payment”.

Understanding that the city is closed on Friday’s I did not follow up on the status of my request, until yesterday, October 8, 2013. I sent the Public Records Coordinator an email asking for the status of my request. This is five days later after I was informed that they were going to find a way to accept my payment. As of 7:00 pm last night, El Paso time, I had not received a response. Keep in mind that I submitted my original open records request on September 9, 2013. I have been waiting for this information for a month today.

When I file my follow up open records request not only will I have to wait weeks before I can get a response, but the quality of the response is now suspect.

At this point I cannot trust the integrity of the process.

I am going to research how to address the various issues raised herein including the issue of using money orders. I am also going to file additional open records requests in search of more specific information to see if I can determine where the disconnect is between the information I’m receiving and what other sources of information are showing. I have been specific in my requests and therefore there shouldn’t be any disconnect between the public records.

That is unless someone is playing games or being dishonest, or its nothing more than plain old incompetence. I will update you as I move through this process. I really do hope it all turns out to be simple incompetence because for it to be anything else means that there are some serious issues at the city with government transparency.

9 thoughts on “Is The City Playing Games with Open Records?

  1. Good work but I have never had much luck with open record requests either. However there is a tool better and that is Texas Rule of Civil Procedure 202. What one needs to do is INVESTIGATE the Government and that is exactly what TRCP 202 allows via depositions. Open records requests come under the TPIA but what few realize is one can actually bring a lawsuit under the authority of the TPIA re one open records request under some instances. And that also besides the AG our local DA and CA can at times enforce the TPIA.

    The problem with open records requests is one can not ask questions but under TRCP 202 you can.

  2. TRCP 202 is a tool used to investigate potential litigation, prior to the filing of an actual lawsuit. One of its intended purposes, is to determine whether a legitimate cause of action even exists, to file a lawsuit. The rule contains several requirements and certain conditions must be met in order to take a presuit deposition which also requires a Court Order. Attempting to use 202 to obtain information based on a personal vendetta against a blogger and his family, would be fruitless and unattainable.

  3. Don’t worry – the more Martin finds out the sillier his conspiracy theory is going to sound. He doesn’t really know how to line up timelines, does he? What was I blogging about in 2006 when there was no ballpark?

  4. yes I ve used TRCP 202 2 or 3 times….not always successfully but helps push issue for a out of court settlement…202 is good for taxpayer standing issues, a standing which any property taxpayer has, when investigating the improper use of taxes.

    I am not saying Martin should or should not use a 202….I am saying 202 is there and not known by many…and while maybe not for the faint of heart…a 202 is a lot ‘safer’ and ‘easier’ than a regular lawsuit.

  5. Mr. Starr, I assume you had a legitimate claim that you were investigating for potential litigation that had some merit. You must also have the skills to maneuver through the proceedings. Using Rule 202 to obtain information from persons or entities, etc, when no suit is anticipated would be abuse of discovery. It is sanctionable and subject to appeal. It is a tricky process not routinely used by trial lawyers and if you are going after an entity like the City, you better be careful. Best advice to everyone else, talk to a competent trial lawyer.

  6. I have cites that most 202’s are granted…the prong I pick is simple, as there is two prongs to 202 and yes one is anticipated suit BUT the other is 202.2: “that the likely benefit of the depositions outweighs the burden of the procedure” ….so contrary to your post my 202’s say a suit is not anticipated and that without depositions ie INVESTIGATION petitioner does not know if a suit should be pursued or against who, the second prong of 202 as one must declare which prong one is filing is simply a hunt for information. And yes I have checked attorney form books and even found 202.2 templates on open net….i’ve done roughly 20 civil actions all pro se [however 2 were taken over by attorneys] and have never been sanctioned or found frivolous.

    I have nothing against attorneys but I am not a insider etc and work mostly alone from the ground in the spirit of law for all…I don’t have 200 divorce cases to worry about or research just my one case at a time and online legal databases.

  7. Mr. Starr, with all due respect, I am not trying to discredit or embarass. I am chosing to end this conversation.

  8. thats fine…

    TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
    NO. 03-11-00538-CV

    Standard of review and applicable law
    Rule 202 permits pre-suit depositions in certain limited circumstances. Specifically,
    rule 202.1 provides that a person may petition the court for an order authorizing “the taking of a
    deposition on oral examination or written questions” for one of two reasons:
    (a)
    to perpetuate or obtain the person’s own testimony or that of any other person
    for use in an anticipated suit; or
    (b)
    to investigate a potential claim or suit.
    Id. R. 202.1(a), (b).
    When, as in this case, the petition for pre-suit depositions is brought pursuant to
    subsection (b), the trial court must grant the petition if, but only if, it finds that the likely benefit
    of allowing the requested depositions outweighs the burden and expense of the procedure.”

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