Many of you have been following the saga between the City of El Paso and Stephanie Townsend Allala for some time now. As much as the city continues to insist that it has met the burden of releasing the requested public records the fact remains that the city has paid Denton, Navarro, Rocha & Bernal, an outside law firm, almost $100k to keep Townsend Allala from determining whether all of the emails have been released to her. The city continues to argue that it has complied and released all of the records to Townsend Allala.
According to the city’s argument, before the Third Court of Appeals, it would be too onerous upon the city to force it to retrieve public records held by former public officials if they refuse to cooperate. In other words, the city is arguing that any records it had access to have been released. The city insists that any records that are in private devices would be too expensive for the city to recover, or would be too difficult and thus the city should not be forced to claim the public records in Steve Ortega’s personal email accounts.
On December 16, 2013, I shared with you the case of Tommy Adkisson, a former Bexar County official that was arguing that emails in his personal accounts were not public information, regardless of the contents. You can read my blog in “Texas Public Information Act and the City of El Paso” for more details about that case.
What is important to note in the Tommy Adkisson case is that the governing body, in his case the Bexar County argued before the court that it had no right to access Adkisson’s personal emails to retrieve records requested under the Public Information Act. In addition, Adkisson argued that he had an expectation of privacy. After the Texas Attorney General had ruled that Tommy Adkisson was required to release the public information in his private emails, Adkisson sued as an individual and in his official capacity as a county commissioner.
The court ruled that Adkisson must release the records in his possession and awarded attorney’s fees to the Attorney General and the intervening newspaper that was requesting the records. Adkisson appealed the court’s ruling on four issues.
The first was that the emails in his possession were not public information because the governing body had not “collected, assembled, or maintained” the information. The second issue he argued was that the Attorney General had “improperly” concluded that his private email was subject to the open records laws. In his third argument, Adkisson argued that the Texas Attorney General “creates absurd results, confuses and expands the public-information officer’s responsibilities, and infringes on public servants’ Fourth Amendment constitutional rights”. The fourth issue that Tommy Adkisson argued was that it was improper to have him pay court costs because the court did not properly dispose of all claims before it and therefore ordering attorney’s fees was improper.
Except for the fourth issue argued by Adkisson, his filing closely resembles the arguments made by the city.
This should not be surprising because the law firm making these arguments for Tommy Adkisson is the same law firm the city is paying to keep the records away from the community. Like El Paso, Adkisson appealed to the Third Court of Appeals.
Last Friday, June 13, the Third Court of Appeals rendered its opinion in regards to Tommy Adkisson.
The Court ruled that the any document used in connection to a public official’s “official business” is a public record. The court added, “To conclude otherwise would lead to the absurd result that the Commissioner could conduct all his official County business correspondence through his personal e-mail accounts without it being subject to the PIA, even if the same correspondence would be subject to the PIA if he used his County e-mail account.”
The court also ruled, “any local government records collected, assembled, or maintained in the Commissioner’s personal e-mail accounts belong to the County, not to the Commissioner in his individual capacity”.
The court further ruled that Tommy Adkisson, as an elected official, “is the officer for public information and the custodian” of the public records in his possession. Thus, he is statutorily required to keep the records intact and make them available under the Public Information Act.
The appeals court also ordered Adkisson to pay the legal fees in litigating the case.
This latest ruling by the same court hearing the city’s appeal clearly shows that the city of El Paso’s arguments against forcing certain officials to answer questions under oath about whether they have or know of any public records that have not been released are invalid.
Denton, Navarro, Rocha & Bernal clearly wants to keep litigating the issue as it only increases the fees that they receive from the taxpayers of El Paso. The question now, in light of this ruling, is whether Oscar Leeser and the city council want to allow Sylvia Borunda Firth to continue to argue that the city has done all it can while she continues to spend the taxpayers’ monies on hiding public records.
It has always been clear that the records in Steve Ortega’s possession belong to the community. It is also clear that public officials have a duty to respond under penalty of the law whether all records in their possession have been released to the community as required by the public information laws.
Now the Third Court of Appeals has agreed as well.
The question all taxpayers should demand an answer to is whether the city will continue to pay Denton, Navarro, Rocha & Bernal for the farce of keeping public information secret. It is as simple as that, unless you have something to hide or want to continue to milk the El Paso taxpayer for more money.