Open records laws are supposed to be about unhindered access to government records. They are supposed to empower the citizenry to hold their elected officials accountable to them. Accessing government records should not require anyone to look for a needle in a haystack without a magnet. My experience with the City of El Paso has been that the laws to access public information is a nuisance to them. I routinely have to carefully craft the wording of my requests hoping against all odds that I get lucky and actually get the document I am looking for. On the rare occasion that I receive a document from the City of El Paso I am often left wondering if that is the entire body of work or was the document selectively released to me. More often than not, I receive a “responsive documents not found” letter, or an email. Almost every time I get the feeling that a document does exist but someone at the City has decided that I should not see it. A feeling is not proof so I continue looking for the elusive needle in the haystack that is the City of El Paso.
I am not the only one. Bob Moore at the El Paso Times has written editorials decrying the state of affairs at the City and open records requests.
The “Whataburger Incident” involving Claudia Ordaz and Vince Perez has left me with the undeniable proof that the Texas Public Information Act is not something that the City of El Paso follows, or cares about. Today, I am going to prove to you that unless someone at the City wants to ensure a public document enters the public realm, it will never see the day of light when it comes to the City of El Paso.
There are two caveats you need to understand before I detail my continuing odyssey in search of the documentation for the “Whataburger Incident”. The first is that, although, the letters and notices everyone receives are signed by city officials, it is my firm belief that the individuals signing the letters or notices are not the ones making the decisions to keep secrets at the city. They are the scapegoats. You will notice that I as lay out my recent experiences that I do not include the names of the individuals signing the notices to me. That is because they are just doing what they are told to or know to be a fact.
They are not making the decisions.
This is important to keep in mind, especially after Juli Lozano was publicly castigated for something that is very unlikely her fault. I firmly believe that the decisions to ignore the spirit, if not the actual law, of the Texas Public Information Act is being made at the highest levels of the City of El Paso bureaucracy. I do not know by whom, but I do believe that keeping the “Whataburger Incident” secret was purposely decided by someone. That is the second caveat, I believe that the documents I was seeking were illegally and purposely kept from me.
In today’s blog, I am going to layout the process that I followed to attain the proof of the incident. Because some of you complain about the length of my posts, I am dividing this post into two versions, the one you can read here and a downloadable PDF version that includes copies of the documents that I reference and much more detail.
The reason for the detail is that it has been my experience that when attorneys become involve, it becomes more about the usage of the words making the context very important. This requires that the posts become very lengthy. If you like detail, then skip the rest of this post and jump down to the end to open up the PDF version of the article.
I am going to lay out my experience in a timeline fashion and reference the documents as exhibits. The PDF version includes all of the document exhibits. For the online version, I will limit my explanations of why I did what I did to the absolute minimum. However, from a contextual point of view, it is important to note why I used the wording I did in my open records requests and so I encourage you to read the PDF version to get a clearer understanding of the process that I followed.
After the timeline narrative I am going to share with you why I am not going to file a complaint for violations of the Texas Public Information Act. However, I encourage any El Paso resident to take my material and file a complaint on behalf of the taxpayers of El Paso. I do not believe that the entrenched mentality that exists within the City of El Paso bureaucracy to keep public records secret will ever change, unless someone files a criminal complaint.
Like all news media outlets and bloggers alike, I routinely receive rumors about incidents involving government officials. David Karlsruher admitted to knowing about the Whataburger Incident on his blog on May 12 ,2016. Like all of the them, I had also heard the rumors about an incident involving Claudia Ordaz and the police. As a result, I started digging for information.
On April 12, 2016, I received information from a reliable source that a police document existed that detailed the “Whataburger Incident”. At this point, I knew that the general time frame of the incident was around September 6, 2015, either the day before or the day after. I also knew that two El Paso Police officers were involved and that it involved Claudia Ordaz and Vince Perez. The informant suggested that I look for internal affairs documents.
I also knew from my previous experiences, that a special police unit existed that responded to VIP-type calls. I knew it as the Public Integrity Unit. Through my research, I found that a new software program was enacted in 2013 by the police department. It is called the “Blue Team”. Ostensibly it is used to document police misconduct by internal affairs. My personal belief, which I have not substantiated, is that the “Blue Team” has replaced the previous “Public Integrity Unit” to deal with government officials and police encounters. To be clear, I have no proof of this.
On April 13, 2016, I filed open records request number: W040785-041316. In it I requested;
“a copy of any policies or procedures for notifying the City of El Paso City Attorney’s office, the City Manager’s office, the Mayor’s office or City Representative offices of any ‘Blue Team’ administrative incident documentation generated by any department of the El Paso Police Department that involves any elected official.”
That same day, I also filed open records request number: W040786-041316. In this request, I asked for
“a copy of any El Paso Police Department Internal Affairs reports or a summary reports of any investigations created between August 1, 2015 and October 31, 2015 involving any of the following named individuals: Emma Acosta, Oscar Leeser, Lily Limon, Cortney Niland, Michiel Noe, Claudia Ordaz, Carl Robinson, Larry Romero and Peter Svarzbein”.
On the same I also received a request from the City asking me to clarify my request number: W040786-041316. As a reminder, in this request I was asking for copies of “El Paso Police Department Internal Affairs reports or a summary reports of any investigations created between August 1, 2015 and October 31, 2015” involving any city representative. I named Claudia Ordaz by name in that request.
The City wanted me to clarify whether it was ok for them to redact birthdates and other information without getting an opinion from the Texas Attorney General first.
I responded to the City as follows on the same day;
“Please accept this email as my authorization to redact dates of birth and medical information from the responsive records as required.”
On April 26, 2016, the City released about 200 pages of responsive documents to me for open records request reference number W040786-041316. The responsive documents contained no information about the Whataburger Incident, although there were various references to Claudia Ordaz, Taylor Cortinas, Jeremy Jordan and Cortney Niland.
On May 3, 2016, I filed an additional open records request. This one generated reference number W041127-050316. In this request, I requested;
“a copy of any police reports generated on September 5, 2015, September 6, 2015 or September 7, 2015 for any incidents involving on-duty and/or off-duty El Paso Police Department officers at the Whataburger located at 12140 Montwood, El Paso, Texas 79936.”
On the same date, I also filed an additional request. This request was assigned open records reference number W041128-050316 by the City. In it, I requested;
“provide any copies of El Paso Police Department ‘Blue Team’ documents, or reports provided to the El Paso City Attorney’s office between the dates of August 1, 2015 and October 1, 2015 to include the description of the incident and the individuals involved in the incident.”
On May 4, 2016, the City responded to open records request number W041127-050316 by writing that “Please be advised no responsive records pertaining to your request have been located and this matter is now considered closed.” The response indicated that it was generated by an individual in the El Police Department Records Division.
On May 10, 2016, the City responded to my open records request reference number W041128-050316 as follows: “Please be advised that I have been informed that there are no responsive documents pertaining to your request. As no responsive documents have been located, there is no charge associated with this response and your request is now considered closed.”
This is where things get very interesting. If you go into the City’s open records portal today, you will find that open records request number W041128-050316 is listed as “in progress,” yet on May 10 it was listed as closed.
Shortly after my May 4, 2016 blog post detailing what I knew about the “Whataburger Incident,” I was contacted by a city official that has asked me to keep them anonymous. The individual and I had, had a few previous conversations but had not had any contact in recent months. The individual confirmed for me that a document existed documenting the incident. They also confirmed that I was on the right track. The individual also insinuated that they knew about my open records requests and that I should be receiving the document I was looking for. The individual added that in the event that I did not receive the document that they would provide it to me.
After the City initially closed my request without providing me any documents, I contacted the individual who provided me a copy of the “Blue Team Field Support Services” document that is at the center of this controversy.
On May 11, 2016, I sent copies of the “Blue Team” report to various news media outlets.
I also submitted nine additional open records requests to the City asking for documents and logs that were identified in the “Blue Team” report. One of my requests is for an unrelated issue. Because of the report, I now had the names of the two El Paso police officers involved in the incident, as well as the detective that responded to their call.
In the afternoon, after I had submitted the additional requests and after I had shared my copy of the “Blue Team” document with the news media, I received the following email from the City in regards to open records request reference number: W041128-050316. This is the request that had already been closed, but now it was reopened by the City. The City wrote;
“Please be advised that we are currently working on this request and will get back to you as soon as possible regarding the possibility of any responsive documents. Sorry for the inconvenience.”
According to my email inbox, I received the update letter at 4:30 pm, Eastern time, 2:30, El Paso time. This was hours after I had sent copies to the news outlets in El Paso.
On May 12, 2016, I published the “Blue Team” report on my blog and the El Paso Times ran an article based on the copy of the report I had provided them. That afternoon, I received a letter from the Office of the City Attorney via email. It references “Request for Records # W041128-050316” and is dated the same day.
The letter states in part;
“We are writing to request clarification of your Open Records Request. We are still in the process of evaluating your request to insure that we are properly responding.”
“Our earlier communication was premature. When our Open Records Coordinator responded that we had no responsive documents, she was acting on the fact that we were unable to locate any documents delivered during the relevant time frame which were labeled ‘Blue Team.’”
The letter than goes on to ask that I clarify the “second part” of my request.
To be honest, I am completely confused as to exactly what the City is asking me to clarify about my request.
The City’s letter goes on to explain to me how many interactions the City Attorney’s office has with the El Paso Police Department and how a search for responsive documents may be expensive. The letter also explains how the “Blue Team” system works and how paper logs are different from the electronic ones.
The letter than adds the following;
“After drafting this letter, but prior to mailing it to you, the City received eight new Open Records Requests from you. We are not sure if those new requests may serve as the clarification we week or if the new requests are separate and apart from what the you are seeking in your request that is the subject of this letter.”
I believe that any reasonable person reading this will reach the same conclusion that I have reached. I believe that the City of El Paso purposely tried to hide the document that details the encounter between three El Paso police officers and two of the city’s elected officials; Claudia Ordaz and Vince Perez. To what end, I can only speculate.
However, whatever the reasons, it is my belief that a serious violation of the Texas Public Information Act has occurred. Whether it is the result of endemic incompetence at the City or an outright attempt to cover-up the incident is something, you the reader, will have to decide on your own.
After consulting with an attorney, it turns out that I have no standing to file a complaint. I am not a resident of the State of Texas.
However, this is a serious problem and I encourage any resident of the State of Texas reading this to file a complaint based on the information that I have shared with you today. The PDF contains all of the relevant detail and documents.
You can file the complaint with the El Paso City Ethics Commission, the El Paso District Attorney and the Texas Ethics Commission. Remember that a complaint needs to be filed as quickly as possible.
I am also calling out the El Paso news media outlets. News media outlets depend on the Texas Public Information Act. It is imperative that the City of El Paso understands that it must adhere to both the spirit of government transparency and the public documents law. You, the news media, should be at the forefront of filing the complaint.
In the meantime, I will continue to file open records requests and write about them in the hopes that I get lucky and another courageous individual, or the same one, decides to step forward and provide the documents that the taxpayers deserve access to.