City Refuses my Open Records Request for Waterpark and Sends It to Attorney General

orr-txatty-nov14For many months now, there has been backscatter discussions about a potential water park for northeast El Paso. It has been stated that it is to be built next to Cohen Stadium. I have previously written about the waterpark and the involvement of Wet ‘n’ Wild and an outside vendor, Hawaiian Falls. You can read my September 10, 2014 post titled “The Politics of a Waterpark for the Northeast” to be caught up on the issue.

In a nutshell, there were rumors about a possible waterpark coming to the Northeast going back to 2012. The sources of monies to build a park have been rumored to come from the Quality of Life Bonds. It wasn’t until July 1, 2014 that the city officially issued a Request for Proposals (2014-475R). The RFP closed on September 9. The city is looking for a public/private partnership whereby the city wants a share of the park revenues and lease payments from the developer.

On my October 8 post titled “Anatomy of a Public Perception Manipulation Campaign” I shared with you how there has been an active whisper campaign against Hawaiian Falls being involved with the potential water park. The most recent public manipulation activity being the “mysterious flyers” reported by KVIA on October 3, 2014, that appeared on the Eastside of town.

It is important to note that at this point all we know is that the city accepted proposals for a public/private partnership but we do not know the details involved. Therefore, we do not know whether the proposed deal is good for the city and especially for the taxpayers of the community.

All we know is that the city is entertaining a waterpark that likely involves taxpayer-owned land and possibly taxpayer monies. Because there was an open request for proposals, I decided it was time to get some concrete details so that we can start having some community discussions about the viability of such an endeavor.

Therefore, I filed an open records request with the city on October 20, 2014. Last Wednesday, November 5, 2014, the city responded by letting me know that they are asking the Texas Attorney General for a ruling that my request is “excerpted from disclosure” because releasing the records to me “would give advantage to a competitive bidder” presumably because a competitor may see the information.

What I asked for in my open records request was for “copies of the proposals for the water park (RFP2014-475R “Request for Proposals for Northeast Water/Aquatic Adventure Park”) that were received by the city as of the closing date” of the RFP.

The city argues in its letter to the attorney general “the city has yet to award the contract” for the waterpark. The city adds that it “contemplates providing economic incentives to effectuate the building of the water park, should such incentives prove to be necessary” and that it reserves the right to “reject” the proposals.

According to the copy of the letter the city sent me, the city received two bids for the project.

Although on the surface this rejection of releasing the bid information to me seems reasonable, it is important to note two important things.

First, the city has acknowledged that it is looking for a public/private partnership to build a waterpark. Second, and most important, the city held an open and competitive bidding process where presumably any company wanting to compete for a waterpark in the city would have submitted a bid to do so.

To argue that a competitor may see information that would give an advantage to a competitor seems disingenuous at best because presumably anyone capable and wanting to compete for the waterpark would have already submitted a bid to do so.

My feeling is that typically the city wants to forgo public community discussion on the expenditures of public monies until a “deal” has been cemented between the city and a potential suitor. The city, itself argues that releasing the information would “adversely affect the City’s ability in negotiating the best deal” for the potential award.

Either the city will accept one of the bids and negotiate the best possible outcome or it will reject the two bids. If the city rejects both bids then it is assumed that the deal was not beneficial to the city. Even if they go out to bid again, any information in the bids would be stale and presumably unpalatable to the city because they were rejected.

When I receive the response from the Texas Attorney General, I will update you on it. For now, keep an eye out for backscatter discussions about a waterpark for the Northeast and expenditures of taxpayers’ monies on different projects.

2 thoughts on “City Refuses my Open Records Request for Waterpark and Sends It to Attorney General

  1. Martin,

    This is the sort of post that makes me think that you tend to take the information that you have an post disingenuous blogs about it.

    In this case it seems worthwhile to note that he city ALWAYS wants “to forgo public community discussion on the expenditures of public monies until a “deal” has been cemented between the city and a potential suitor.” This is true of EVERY single project that goes out for bid regardless of size of complexity. Once bids are opened, the city will not release any information about a deal until a decision has been made and the result has been posted to the city council agenda. In fact the unsuccessful bidders have to check the agendas to see who a project or purchase was awarded to because they aren’t notified.

    Every single item found here: http://www.elpasotexas.gov/purchasing/ep-invitations.asp is subject to the same “cone of silence” (the term the city uses for not allowing staff to discuss ongoing bids). As I understand it, the reason for operating this way is to try to prevent granting any bidder an unfair advantage by giving them inside information that other bidders don’t have (e.g. for example any question asked by one potential bidder is shared with all of the interested bidders if the city chooses to answer it). I believe the AG has previously ruled that information related to negotiations is exempt from public disclosure until after the negotiations are concluded and while it is perfectly fair to discuss whether this is how the city should operate, your article is written as if the ONLY project the city had done this on is the possible Waterpark and that is not even remotely the case.

    Give it a shot. Anything on the purchasing list (from the smallest to the largest) that shows up with a status of “evaluation” will meet with a similar response until that item is posted to the city council agenda. The instant that the agenda goes live (usually on a Thursday) you should be able to do an ORR on any purchasing item. That should include getting all the correspondences related to it, all the bids, etc…

    So the question then is why make such a big fuss about this aspect of this deal in particular? Did you honestly not know that every bid is treated the same way? Does this change your thoughts on the Waterpark in any way?

  2. Martin,

    This is pretty standard with bids and proposals everywhere in Texas. They won’t give you squat until they’ve made the decision – i.e. Posted it on the agenda.

    The idea here is that they don’t want some blogger taking the proposals and starting a public campaign to support the one they like thus pressuring city decision makers. It wouldn’t be fair.

    I suspect you’ll get them the day they decide and post to council agenda.

Don't hold back, you know you want to comment, go for it!

This site uses Akismet to reduce spam. Learn how your comment data is processed.