Police officer can’t get records he wants despite Texas open records law

For the Fourth of July, 2010, I decided to play watchdog by sharing the story of the man with the noble idea that he can ask for and receive public information from a city government? It’s a true symbol of our freedom, our liberty, our right to know how we are governed, right?

Only when it isn’t.

Meet Dan St. Clair, who is one little piece in the puzzle that is the part of Fort Worth government that doesn’t seem to be working for a lot of people. He asked for public information 16 months ago. He never got it. The city admits it mishandled his request. It wasn’t until this week, with prodding from The Watchdog, that the city even told him that what he wanted is no longer available. (The reason it’s not available is something we’ll discover — and you may not like it.)

Recently, my colleague, Star-Telegram reporter Gene Trainor, reported that Fort Worth is one of the toughest cities from which to retrieve public records. It filed more requests for attorney general rulings than other cities its size. Critics call that a delaying tactic. “I can go to Euless and request the same information; they turn it over. Fort Worth — no,” a defense attorney told Trainor.

St. Clair is quick to agree. The 38-year-old retired Air Force captain has gung-ho ideas about what it means when you say government of the people, by the people, for the people. For the last three years, he has worked as a Fort Worth police officer. And in a move that seems to be from a TV detective show, he began investigating the behavior of a police sergeant who he fears may have railroaded a colleague off the force unfairly.

It takes guts to request records from your own employer. Here, in words worthy of the Fourth of July, is St. Clair’s reason:

“I don’t see it as a fight with the entire department. I see it as a fight with what I’ve seen is a very corrupt element of the department. If I’m trying to uphold the law and the lawyers for us are blatantly breaking the law, to me, there’s no place for that.

“When I was in the military, I didn’t let things like that slide. If someone was doing something wrong, I did what I could to take care of it. I want to take ownership of the job I have, which I believe is a public service. If I see something like this, I have to do something.”

In February 2009, St. Clair asked for e-mails and other computer terminal messages sent by a police sergeant while she was on duty. He believes that the sergeant sent messages stating her intention to remove the other officer from the force.

After St. Clair filed his request, the city missed deadlines for informing him about the status of the records. After agreeing to pay $71 for the records, he didn’t hear from the city for seven months.

The city told him that parts of the records had to be edited to delete confidential information. Eventually, he received three sets of squad car messages, the kind police send from computers in their cars, but they were almost all police-related checks of license plates and other data. There were few personal e-mails.

St. Clair knows that there were many more because he received some of them originally, he says.

Now the matter is before the Texas attorney general. The city acknowledges the screw-up. Assistant City Attorney Patrick Phillips wrote to the attorney general last week that “the city acknowledges that it has failed to comply with the time periods prescribed … in seeking a ruling from your office and recognizes that this failure results in the presumption that the information is public.”

But.

But the city has another argument to make. Phillips told me the city doesn’t have the information anymore. Why? E-mails and squad car messages are kept on the city’s computer servers for “not that long.”

Once e-mails are deleted from the system and removed from the servers, “we are not required to go to backup systems and backup tapes. … The attorney general’s office considers anything on a backup tape, that it’s no longer public information. … That’s a distinction made at the attorney general’s office, and we’re bound to follow.”

He may be right. In two open-records rulings for other government bodies, released in April, the attorney general’s office says that because e-mails are sometimes deleted from computers, “the data may be overwritten and permanently removed.”

To use backup tapes to retrieve old information, the attorney general’s office says, “the city would be required to restore data from the city’s back-up tapes onto a separate server. … Therefore, we find that any of the requested information that existed only in back-up tapes at the time of the request was no longer being ‘maintained’ by the city at the time of the request, and is not public information subject to disclosure.”

Read the two April 2010 opinions here and here.

Ouch. The Watchdog doesn’t like that. Did the city miss deadlines so that the information would be gone? The Library of Congress can accept an archive of every public tweet on Twitter since 2006, so electronic storage of records by governments should not be a problem.

St. Clair wants copies of messages that he believes he is entitled to have. He will apparently never see them, but until now, nobody bothered to tell him why.

“It’s not our ideal,” Phillips said. “We know the process is ugly. … We would like it to be better.”

Happy Fourth.

# # #

Dave Lieber, The Watchdog columnist for The Fort Worth Star-Telegram, is the founder of Watchdog Nation. The new 2010 edition of his book, Dave Lieber’s Watchdog Nation: Bite Back When Businesses and Scammers Do You Wrong, is out. Revised and expanded, the book won two national book awards in 2009 for social change. Twitter @DaveLieber

Dave Lieber book that won two national awards for social change.

At Texas Legislature, clouds roll in during Sunshine Week

A Colleyville man didn’t have a great Sunshine Week, which was created to promote open government. Louis Womack recently read in the Star-Telegram about an internal investigation at the Colleyville Police Department, and he sent city officials written questions.

Is the investigation complete? What was the outcome? How much did it cost?

Good questions from a taxpayer watchdogging his city.

But the answer he received perplexed him: “Please be advised that the Public Information Act does not obligate the city to respond to questions,” Assistant City Manager Kelly Cooper wrote, adding that Womack could refine his open-records request to seek documents.

Only Womack didn’t file an open-records request; he just asked questions. He didn’t know that officials don’t have to provide answers, just documents.

City spokeswoman Mona Gandy explains: “Typically, we would have gone to some effort to explain how you make a public information request. That’s not what happened in this case. We’re going to consider this a lesson learned.”

This week, the city added language to its Web site to explain open-records procedures.

The Sunshine state?

When it comes to making public records available, Texans do have something to celebrate this Sunshine Week, which ends Saturday. A recent survey by several journalism organizations examined how good a job all 50 states do of making records available on the Internet. Texas received a perfect score, the only state to do so.

Cue The Watchdog’s applause!

But The Watchdog can’t celebrate after examining some bills filed at the Legislature.

“A lot of bills scale back the availability of public information,” says Fred Hartman, chairman of the Texas Daily Newspaper Association/Texas Press Association Legislative Advisory Committee.

Here’s one: House Bill 3641 by freshman Rep. Doug Miller, R-New Braunfels. It would allow a government entity to determine whether someone requesting open records is an “abusive requestor” who submits requests “to harass, abuse, or waste public funds and/or time of public officials or employees.”

The bill allows a government entity to sue to stop the requestor and halt the release of information for up to 90 days.

Miller did not return a call. But Comal County Judge Danny Scheel told The Watchdog that he asked Miller to file the bill to stop Central Texas newspaper publisher Doug Kirk from filing what Scheel considers harassing requests.

Some people, he said, “purposely clog up our systems with open-records requests to be able to get off our backs. These are the kind of people we want.”

Scheel said 90 percent of the requests to the county come from Kirk, who runs weeklies in Bulverde and Canyon Lake and who unsuccessfully ran against Scheel. Kirk doesn’t always pick up and pay for information he requests, Scheel said.

“We’ve been dealing with this monkey for years,” the judge added.

Kirk told me that the county stalls and so he gets what he needs elsewhere. “They dodge the questions I ask,” he said.

Hartman, a newspaper executive based outside Houston, said that the bill would punish a number of people for the actions of one.

Here are other open-government bills on The Watchdog worry list:

Senate Bill 280 (Jane Nelson, R-Flower Mound, and Wendy Davis, D-Fort Worth) would make public employees’ home addresses, home telephone numbers, dates of birth and Social Security numbers confidential. Open-records advocates say they have no desire to know a Social Security number. A home address and date of birth, however, are important identifiers that allow watchdogs to search government databases and find, for example, whether a person is double dipping with two public jobs.

The public would face greater difficulty learning about government nepotism and the background of public employees, including any criminal records, too. “We strongly oppose this,” Hartman says.

House Bill 649 (Yvonne Davis, D-Dallas) would allow property owners to remove their names from appraisal district public records posted online.

“There’s no compelling reason to do this,” Hartman says. “There are no problems” with the information in the public domain.

If the bill passes, the public would not be able to find out, for example, if political cronies got sweetheart appraisals from crooked assessors.

Elected officials and others could disguise bribes through property transfers that nobody would ever know about.

Senate Bill 375 (John Carona, R-Dallas) would allow the Transportation Department to keep specific vehicle accident records confidential.

Texans could not learn about the most dangerous bridges, intersections and roadways, which was the intent of the original request for the data, says Brian Collister, a San Antonio TV reporter and board member of the Freedom of Information Foundation of Texas.

“This huge, great resource on motor-vehicle accidents would be sealed off from the public,” he says.

Hartman says the number of bills cutting off information is alarming because “the more people know what our government does, the more effective and responsive it can be.”

Other worrisome bills Here are other bills that could hinder public oversight:

  • Senate Bill 253 (Craig Estes, R-Wichita Falls) would allow county and municipal governments to award contracts worth up to $50,000 without public bids. The limit is now $25,000.
  • Senate Bill 624 (Royce West, D-Dallas) would allow changes of $50,000 or less to school district contracts without school board approval — and public notice.
  • Senate Bill 460 (Mario Gallegos Jr., D-Galena Park) would keep secret some information pertaining to personnel hearings for police and firefighters.
  • Senate Bill 1127 (Leticia Van de Putte, D-San Antonio) would keep secret some information about components used in creating customized drugs and medical devices at pharmacies.

Track bills Follow bills through the Texas Legislature by tracking them at www.legis.state.tx.us. Sign up for e-mail alerts.

Find out who your legislator is at votesmart.org.