An open government advocate said this week that if Texas legislators are one day successful in closing a loophole in the state’s public information act, municipalities such as Rio Grande City would no longer be able to work around certain requirements — such as responding to requests.
The handling of a recent request for public information from Rio Grande City became the latest example of such a loophole in the Texas Public Information Act.
“Some governments are just using the public information act however they like these days,” Kelley Shannon, executive director of the Freedom of Information Foundation of Texas, said Wednesday. “We feel like it needs to be reined in, and there needs to be some loopholes that are being exploited, closed so it works for everybody.”
The Monitor requested the applications for the city manager position from Rio Grande City on Oct. 19 but didn’t receive a response from that municipality.
After repeated attempts to reach the city attorney, Calixtro Villarreal, it was only after a story published about the delayed city manager search last Sunday that he finally reached The Monitor to clarify the city’s position about that request.
Citing a Texas Attorney General opinion, Villarreal said that since the city did not receive any applications, it did not have to respond to the request.
Shannon says the solution was simple: communicate.
“If they had done a better job of communication, all this confusion wouldn’t be taking place,” she said.
TIMELINE OF EVENTS
On Oct. 19, The Monitor requested copies of all applications sent to the city for the position of city manager starting from the date of the former manager’s termination to present.
A response was expected 10 business days later, on Nov. 2, according to the Texas Public Information Act typical guidelines.
Nine business days after the email was sent, The Monitor asked the city for a status update on Nov. 1 and again received no response. Another status update was emailed Nov. 4 but was similarly left without reply.
Several calls were placed to the city’s public information officer, Melissa Garza. Garza was available and answered on Nov. 5.
She informed The Monitor that the request was sent to the legal department, which is under Villarreal’s direction. Garza said she had reminded the office of the pending request the previous day, Nov. 4, and was told a response would be forthcoming.
Garza also said the request would likely not yield any responsive records, since the city had not advertised for the job or received applications for it.
The Monitor did not receive any replies or calls from the legal department; and, so, on Nov. 12, a formal complaint against the city was filed with the Texas Attorney General’s Office.
Before the story published on Nov. 21, The Monitor sent Villarreal a request on Nov. 18 asking for a statement and mentioned the pending public information request. No response was provided, yet again.
The following Monday, Villarreal sent The Monitor a letter defending their handling of the request and suggesting the timeline was not well presented.
“The article refers to November 5th (Friday) being the date of clarification from Garza (only three days after the 10th business day),” Villarreal wrote.
Villarreal also provided a legal interpretation of the Texas Public Information Act suggesting that governmental bodies are not required to respond within 10 business days.
“There are Attorney General Opinions confirming the same,” he wrote.
The Monitor provided a response to the concerns raised by Villarreal on Nov. 24, seeking a good faith response from the city moving forward, and in a timely fashion.
Later that same day, Villarreal replied, and fluctuated between a logos and pathos argument.
Villarreal stressed he believes there is no 10-day deadline to respond made explicit in the law, then he moved to an impassioned argument.
“This office was exceptionally surprised by the article, since past writers for the Monitor have been more appreciative of the City’s diligent efforts in searching for documents, even if it took some extra time,” Villarreal wrote. “Unfortunately, the manner in which this was handled has fractured what was previously a candid relationship of mutual professional respect and courtesy.”
The Monitor provided a response later that evening.
“We appreciate the effort to respond to our requests in the past. We attempted to do that this time through multiple emails and calls to the city,” the response read. “In the past, governmental bodies have advised us of a delay in their response and we have waited for the records, past the ten business days. Again, we did not hear from your office, even though I provided my personal number in all the emails I sent.”
The matter of the deadline was also addressed in The Monitor’s response.
“Although you cite an Attorney General’s decision and Texas Gov. Code 552.221 (a) requiring a prompt response without delay, you overlook Texas Attorney General No. ORD-664 (2000) which instructs governmental bodies that cannot produce requested information within ten business days of receipt of the request for the information to certify that fact in writing to the requestor and set a date and hour within a reasonable time when the information will be available.”
Asked for comment on this story, Villarreal provided a response on Saturday that stated the office’s commitment to comply with the Texas Public Information Act.
FLAWS PERSIST
Some governmental entities that receive public information requests producing no responsive records may interpret the Texas Public Information Act in a way that does not compel them to provide a response.
“Many of us in the open government world always felt that they did,” Shannon said, siding with those that believe a response is in order. “But it’s up for debate, and that’s why we wanted it clarified in the law.”
The loophole can lead to confusion. Open government advocates recently attempted to change the law through House Bill 3015, which was introduced to the Texas Legislature in March.
“Our point was how will a member of the public know if the case is closed or if it’s just hanging there and being ignored?” Shannon stressed.
The bill sought to include clear language that stated: “If the governmental body determines it has no information responsive to a request for information, the officer for public information shall notify the requestor in writing not later than the 10th business day after the date the request is received.”
The bill only cleared the House but did not get through the Senate.
Shannon opined that even though it may not be the law, governmental entities can make independent efforts to increase transparency.
“Even if it’s not the letter of the law, they owe it to the public with the spirit of the public information act to communicate with the requestor and make it clear if there are no records,” Shannon said.
