Attorney General Can Help, but You May
Have to File the Mandamus Suit Yourself
The Attorney General's Office offers the open records hot line as a direct route to quick answers for both government officials and the public. But even the hot line staff can't force recalcitrant officials to provide public information. Consumers Union followed up several complaints filed with the AG's hot line, and discovered that many of the individuals were still waiting for their public documents long after the AG closed its complaint file. According to Sandra Coaxum, chief of the AG's Open Records Division, the AG does not have the resources to investigate such cases and pursue mandamus suits as outlined in the Act.1
Ms. Ladell Wiggins of Poteet filed a complaint in July 1998 because the City of Jourdanton never responded to her June request for tapes of public meetings and the city attorney's contract.2 According to the complaint, the city secretary said that "she didn't have the time" to comply with Ms. Wiggins' request. "I told her that the time limit had elapsed and she replied that she could get an extension," Ms. Wiggins wrote in her complaint to the AG. This was not the first such incident, according to the complaint. "I would like to hear from you as soon as possible as to why we cannot get our Open Records Requests from the City of Jourdanton in a timely manner," Ms. Wiggins wrote. "I have been requesting items for over a year, and have been very patient."
Unfortunately, Ms. Wiggins' effort to enlist the AG's assistance stalled when the hot line staff asked her to forward a copy of her June request letter to Jourdanton. 3 Unaware that she might need to create a legal paper trail, Ms. Wiggins had not kept a copy of the letter. A hot line investigator said he couldn't act on the complaint until she forwarded the letter, so she filed a new open records request with the city to obtain her initial open records request letter. "I never got an answer," she told CU. "First they promised the information three weeks later, on a Friday. I went but no records. Then they said Monday, so I went back, and no records." 4 At the time of publication, Ms. Wiggins has yet to get the records she originally asked for, or the request letter needed by the hot line staff to pursue her case.
Even when the hot line staff has all necessary information and sends out a sharply worded reprimand, government officials can simply ignore both the requester and the AG. League City resident Linda Isbell, a former City Council member, sent the city a letter dated April 15, 1998, requesting information on sidewalks and property liens. According to Ms. Isbell, many businesses and individuals now owe the city sidewalks. "Over the last decade or so, whenever a business or person came to the Planning Commission and/or City Council and requested a waiver of a sidewalk, and that waiver was granted, it was done so under the condition that once the surrounding lots were developed that sidewalk would have to be built," Ms. Isbell noted in her open records request letter. "In addition, there were many 'liens' to be filed on properties by the City where businesses/persons did not build sidewalks. It was the job of the City Attorney to perfect those liens."5
Ms. Isbell knew the information was available in the city archives because she had asked staff to compile it while she was on the City Council. More than two months after her initial request she had not received a response, so she filed a complaint with the Attorney General.6 The AG urged the city in a July 14 letter to release the information immediately: "This office urges you to avoid what appears to be, based on the facts presented to us, a potential violation of the Open Records Act and immediately release the requested information, as it is now presumed to be public information." 7 Despite the strong warning, officials still had not released the records to Ms. Isbell by mid-October.
"I was on the Council for five years, and so I know the information exists," she told CU. "It's been very frustrating that they have refused to give it to me. They are intentionally doing this. [The Attorney General] was very responsive when I first sent them all the information. They sent a strong letter. But then the city sent me a certified letter saying 'how dare I send this to the AG.' I have two more requests out now, and have not heard a single word." 8
Ms. Isbell is not the only citizen who has complained to the AG about League City officials. Gary Mead, owner of a local auto repair shop, has tried for more than a year to gather documents relating to a lease agreement between the city and a "Section 4B" industrial development corporation 9 for development of a sports complex, as well as information relating to the costs of building and operating the complex. (4B corporations are public entities.) "This thing went in the hole a million bucks," Mead told CU. "They're going to have to tell me where the money went."10
Mead repeatedly asked the city for documents, including the lease agreement, the earnest money contracts for the land acquisition, and documentation of payments for city services. The city told him there were no documents responsive to his requests.11 In one case, the city informed Mr. Mead it had no documents regarding a city request (apparently initiated by a council member) for an AG opinion on the use of sales tax funds for maintenance of the sports complex. The city later reversed this position after Mr. Mead obtained the opinion from the Attorney General and sent it to city officials, proving that the city had in fact requested it.12
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Enforcement
Consumers Union requested from the Attorney General all summary documents describing writ of mandamus actions filed by the AG against governmental bodies to enforce the Public Information Act since 1990. According to this information, the AG filed only 5 actions:
- one direct mandamus suit in response to a complaint from a requestor (Morales v. Dallas Independent School District, 1/2/95);
- one request for writ of mandamus in response to a governmental body's suit (Petition for Declaratory Judgment seeking relief from AG letter ruling, Morales v. Klein Independent School District, Cause No. 94-02155);
- one counterclaim in response to a suit by an agency, asking for declaratory judgment and a writ of mandamus (Arlington Chamber of Commerce v. Morales, Cause No. 93-14883);
- one petition, as defendant in a suit, to enforce the Act through a declaratory judgment (City of San Antonio v. Morales, 851 S.W. 2d 946); and
- one petition for writ of mandamus, as intervenor, in a district court case where a former city employee sued a requestor over a PIA request (Morales v. Ellen, 840 S.W. 2d (Tex.App. - El Paso, 1992).
The AG has filed no writs of mandamus since early 1995. In late 1995, the agency shifted more of its resources toward issuing open records letters to overcome an opinions backlog that had built up during the early 1990s (see main story, p. 9).
Legal action taken by the Attorney General has been primarily defensive. The AG enforces the Act as a defendant in suits by governmental bodies challenging AG opinions. From 1993 to the present, the AG defended open records decisions in 46 separate cases. |
Furthermore, Mr. Mead contends the 4B corporation charges outrageous research fees for providing public information and then fails to apply the fees even-handedly. For instance, a reporter for the Galveston Daily News requested the 4B corporation's original budget. The corporation charged the reporter $100 to prepare the information, but city officials picked up the tab, allowing the reporter to obtain the information free-of-charge, according to Mr. Mead. He said he has received no such special treatment. Instead, the city repeatedly tells him that the information he seeks is maintained "by the accountant of the League City Section 4B Industrial Development Corporation who charges the City $100 per hour to research requests for information. Please note this charge is passed on to the requester of the documents."13 In one case, the city even claimed it would have to charge an additional $15 per hour since the request was complicated.14 Neither the city nor 4B revised these fees even after Mr. Mead complained to the General Services Commission, which responded with a letter questioning the charges.15
In an unusual move, the League City Council put some of its outstanding open records requests to a vote on Sept. 8, 1998. In a 6-1 vote, members approved the release of information to one citizen, but decided to await an Attorney General opinion on Mr. Mead's requests. "As a citizen, it is not my right to question elected officials," Mead told reporters after the vote, "it is my responsibility." 16 The city claimed to anticipate litigation. But, on November 5, the AG issued its opinion that there is no evidence of litigation relating to the information Mr. Mead requested.
Although the Attorney General has substantial information on the various open records disputes with League City, and the Public Information Act does not provide for city councils to vote on whether to disclose public information, the AG has not initiated a mandamus suit to force city officials to comply with the law. According to Mead, the Attorney General staff suggested that he take the open records issues to his local prosecutor under the Act's criminal penalties provision.
In an interview with CU, Sandra Coaxum of the Office of the Attorney General noted that the Open Records Division does not generally have all the information or the investigators needed to develop an affirmative case against government officials. "The AG has the authority to take that entity to court," she said. "Now, having the authority to do something and being able to do something is different." The AG doesn't usually file a writ of mandamus for a variety of reasons. "Again, there's no official policy that we don't enforce, that we don't file writs of mandamus, it just hasn't happened, and it's a combination of reasons. But I can assure you that with my current hot line staff, I don't see how it's going to happen, because if somebody's in [a far away] county, that means they are not answering hot line calls. And they're not trained to do those kinds of investigations."
Before filing a writ of mandamus, the Attorney General would need to send an investigator to the scene to independently assess the facts of the case, which often are in dispute. "The person requested information, [but the] entity says, 'That information doesn't exist.' And we say, 'But of course you have an appointment calendar.' 'We don't.' 'But so-and-so says that you do. They say you keep it in the bottom drawer.' 'Well we don't.' Well, that would require me sending somebody out to check the bottom drawer. It's not likely to happen," said Coaxum.17
The Open Records Division does what it can with limited resources, Coaxum suggests. "The only thing we can do is make our best efforts in convincing the governmental body to release the information," she said. "Until there are more resources allocated to enforcement, that's pretty much what it's going to be. . . . In most cases, we believe just the letter from the Attorney General's Office makes a difference." 18
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Enforcement Endnotes
1 Interview with Sandra Coaxum, Open Records Division chief, Texas Attorney General's Office, 10/6/98.
2 Wiggins, Ladell, 7/15/98 letter to Craig Levers, Texas Attorney General's Office, received 7/21/98.
3 Texas Attorney General's Office, hotline investigator's notes of phone message to Ladell Wiggins, 7/28/98.
4 Interview with Ladell Wiggins,10/5/98.
5 Isbell, Linda, 4/15/98 letter to mayor and City Council members of League City.
6 Isbell, Linda, 7/2/98 letter to David Short, Texas Attorney General's Office, received 7/7/98.
7 Short, David, 7/14/98 letter to Barbara Nugent, city secretary, City of League City.
8 Interview with Linda Isbell,10/5/98.
9 V.T.C.S. art. 5190.6, Sec. 4B.
10 Interview with Gary Mead, 10/5/98.
11 Nugent, Barbara, 8/25/98 letter to Gary Mead, stating that "the City has no documentation responsive to your requests" for signed agreements between the 4B corporation and the city referred to by the mayor at a joint Council/4B meeting. Nugent, Barbara, 1/16/98 letter to Gary Mead, stating that "we have no information available responsive to your requests" for several items, including documents of payments from the 4B corporation to the city for staff services. Nugent, Barbara, 4/14/98 letter to Gary Mead, stating that "we have no documents that respond to this request" for certain notarized signatures. Ultimately Mr. Mead acquired from other sources an agreement between the city and the 4B corporation and certain audit information.
12 Nugent, Barbara, 9/2/98 letter to Gary Mead, stating that "the City has no documents which respond to your requests" for a copy of the request for an Attorney General opinion as to whether sales tax dollars can be used for maintenance of the sports complex. Contrast with Nugent, Barbara, 10/6/98 letter to Gary Mead: "Please find enclosed a copy of the letter from the City Attorney, Mr. Bill Pilat, to Senator Patterson requesting an Attorney General's opinion. You provided us with a copy of that opinion."
13 This language is found in Nugent, Barbara, 8/11/98 letter to Gary Mead, and Nugent, Barbara, 8/25/98 letter to Gary Mead.
14 Nugent, Barbara, 8/11/98 letter to Gary Mead.
15 Schloss, Hadassah, 8/14/98 letter to Barbara Nugent, city secretary, City of League City. Interview with Gary Mead,10/13/98.
16 Hayes, Erin, "League City will release info," The Citizen, 9/16/98.
17 Interview with Sandra Coaxum, Open Records Division chief, Texas Attorney General's Office, 10/6/98.
18 Ibid.
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