The Texas Civil Rights Project has filed a motion for summary judgment asking a judge to rule that the city of Progreso violated the Texas Public Information Act.
The TCRP filed four written requests to the city of Progreso in the early days of the COVID-19 pandemic after Hidalgo County issued a stay-at-home order.
The police department there arrested multiple people during the month of April 2020 for violations of Hidalgo County Judge Richard Cortez’s emergency order.
While some people faced other charges, like drug possession or evading arrest, multiple individuals were only charged with violating the emergency order, according to documents obtained by the TCRP through the Hidalgo County Sheriff’s Office.
April of that year is when the Hidalgo County Detention Center experienced its first case of an inmate testing positive for coronavirus in the jail.
The TCRP also requested those same records from the Progreso Police Department, which did not produce the identical records obtained through the sheriff’s office, according to the nonprofit legal advocacy group.
The TCRP, which filed the lawsuit last September, also sought multiple other records regarding traffic stops, vehicle impoundments, bond information, dash and body cam for traffic stops and police department policies from police and the city.
The requests to police for information regarding traffic stops was only for documents, audio and video generated from traffic stops between March 1, and May 12, 2020.
In an answer to the lawsuit, the city generally denies all of the allegations.
To date, the city has only produced a fraction of the documents requested and has admitted to not seeking an Attorney General’s opinion on whether it could withhold the information, according to TCRP.
The nonprofit says the lawsuit and judge’s decision is not complex.
“The lawsuit involves one simple question of law: did the City of Progreso violate the Texas Public Information Act (‘PIA’) when it failed to comply with the statutory procedures required by the Act, and when it withheld without justification information requested by Plaintiff? The answer is an unequivocal yes,” TCRP stated in its March 31 motion for summary judgment.
The nonprofit filed the four written requests to the city of Progreso on May 12, 2020.
“In the course of responding to these requests, the City of Progreso failed to follow the procedures mandated by the PIA, and unlawfully withheld information that is presumptively public. Both courses of conduct violate the PIA,” the motion stated.
A main tenet of the Texas Public Information Act is that when a governmental body believes that it can withhold information from the public it must request an opinion from the Attorney General on whether it can keep the information private and it must do so within 10 business days of receiving the request.
“Despite this clear command, Defendant continued — and continues — to unlawfully withhold records subject to public disclosure. It has no compelling reason for doing so,” the motion stated.
The organization says the lawsuit was a last resort after it found no recourse during negotiations with the city that took place in the four months after it filed the public information request with the municipality.
TCRP now seeks a court order compelling the city of Progreso to release all of the records pertinent to the open record request that remains in the city’s possession.
“Plaintiff believes that this suit is necessary to ensure that inattention to and ignorance of the requirements of the PIA is not abused by governmental bodies to prevent public records from seeing the light of day. Indeed, ‘[t]he people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know,'” the motion stated.
The TCRP alleges that Javeir Villalobos, Progreso’s attorney, asked a TCRP attorney on May 21, 2020 to clarify or narrow the requests, but did not specify what needed clarifying and claimed that some of the requests are exempt and require no response “as AG opinions are on point.”
On June 5, the TCRP attorney, Erin Thorn Vela, wrote to Villalobos telling him she would prefer to consider a cost estimate prior to narrowing, which comports with the Texas Public Information Act.
“Ms. Vela further asked counsel for Defendant to produce any Attorney General decisions Defendant was relying on to withhold the requested records. Defendant admits it never provided this information to Plaintiff, and cannot produce the Attorney General opinions to which it was referring,” the motion stated.
Vela also pointed out the Villalobos needed to seek an opinion and that the city’s deadline to do so had lapsed.
“On June 16, 2020, Defendant produced a mere three pages of information — what Plaintiff understands to be handwritten vehicle towing logs — which are responsive to only one of the numerous requests for information TCRP submitted,” TCRP stated.
Villalobos then disclosed that the city of Progreso had additional responsive information that it would not provide, asserting that it involved “active cases” and was not subject to disclosure.
“Despite this assertion, Defendant admits it never sought an opinion of the Attorney General seeking to withhold the information in its possession on those grounds, or any other ground,” the motion stated.
However, after the lawsuit, the city of Progreso did release for the first time several records through discovery that should have been covered by the initial open records request, including 21 pages of citations, bond receipts, plea forms and related documents; the Progreso PD’s policy manual; and the same three pages of towing logs it previously released.
“In other words, Defendant only acted to disclose records that should have been released in the ordinary course of the public records process once a lawsuit made Plaintiff’s requests impossible to ignore. Meanwhile, most of Plaintiff’s requests have still gone completely unanswered,” the TCRP says.
For instance, the organization still doesn’t have the dash cam and body cam and audio related to a traffic stop or encounter that resulted in a vehicle impoundments.
The organization is still seeking all orders, policies and procedures requested from the city of Progreso Police Department relating to vehicle impoundments, as well as all municipal ordinances, policies or procedures regarding vehicle impoundments, impoundments fees and storage fees.
TCRP still doesn’t have the city’s budget report for fiscal years 2017, 2018 and 2019.
And the nonprofit is missing records related to the requests for proposals, bids, bidding, grading, scoring and awarding contracts for vehicle storage or impounding contract and towing or wrecking service contract from Jan. 1, 2018, to May 12, 2020.
“What’s more, information obtained by Plaintiff from other sources demonstrates that the City of Progreso only partially disclosed responsive records in its possession. For example, TCRP separately obtained images of additional citations for two individuals whose records were not included in the citations produced by Defendant on October 16, 2020, the only time Plaintiff received any citation records from Defendant,” the motion stated.
Later, TCRP says it identified additional people arrested during the time period of the open record requests that should have been disclosed by Progreso but was not.
“Plaintiff obtained records from the Hidalgo County Sheriff’s Office (‘HCSO’) by way of a separate PIA request, which sought the booking records, booking numbers, and related documents for these individuals. None of these individuals are among the people whose records were disclosed by Defendant on October 16, 2020.”
The TCRP says the alleged conduct is antithetical to both the letter and spirit of the Texas Public Information Act, ” which is intended to ensure the government remains directly answerable to the public by establishing simple, unambiguous procedures for both disclosing and withholding information. Defendant ignored this process at every step of the way. There are real consequences that flow from this conduct.”
Perhaps most concerning, the TCRP says, is the city of Progreso’s sworn admissions give the organization reason to question whether it will ever receive the information it seeks.
“Despite admitting that at one time it possessed records that it never disclosed to Plaintiff, Defendant avers that those records were no longer in its possession as of October 27, 2020, the official service date of Plaintiff’s lawsuit. The Local Government Code imposes an obligation on municipalities such as the city of Progreso to maintain all records known to be the subject of litigation or a public records request,” the motion stated.
TCRP says there are penalties for when those records are destroyed in violation of TPIA and Local Government Code.
“Since TCRP filed its initial requests on May 12, 2020, the records responsive to its requests have either been the subject of an active records request or active litigation. That those records may not longer exist is troubling, and underscores how mere ignorance of the PIA’s procedures can lead to more substantial public harms,” the nonprofit says.
TCRP cites multiple reasons for it being entitled to summary judgment, including that the city of Progreso is a governmental body that is subject to the Texas Public Information Act and has failed to request an AG opinion.
“Defendant has no evidence that it relied on specific AG opinions authorizing the withholding of the responsive records sought by Plaintiff when Defendant declined to disclose those particular records. Defendant can offer no compelling reason to withhold the requested information. Therefore, Defendant by law must release all remaining information in its possession that is responsive to Plaintiff’s requests,” according to the motion.
Furthermore, TCRP points out that the city of Progreso admits to not seeking an Attorney General opinion or generating a cost estimate.
The nonprofit also points to how the city of Progreso said an AG opinion allowed it to withhold the information but, despite a request from TCRP to produce the opinion, the city did not.
“Second, when Plaintiff sought those specific AG opinions through discovery, Defendant again balked. Though Defendant denies it was not aware of any applicable AG opinions, when asked by Plaintiff to produce the specific AG opinions to which it was referring in its May 21, 2020, email, Defendant responded that no documents were responsive,” the motion stated.
As of end of business day Friday, the city of Progreso had not yet filed a response to the motion for summary judgment.
