A consortium of Texas news outlets have joined the Freedom of Information Foundation of Texas in a Texas Supreme Court case that tests what constitutes a delay when government bodies refuse to release public information.
Hartman Newspapers, owner of a chain of small papers based outside Houston, in 2015 requested the names of complainants in a bribery case involving Lamar Consolidated ISD.
The Fort Bend County Sheriff’s office initially refused to release the information to the Fort Bend Herald, a Hartman paper, referring the matter to the state Attorney General’s office. Hartman filed a lawsuit three weeks after the request, seeking a court order to obtain the information.
The sheriff’s office did not ask the newspaper for a clarification of the information sought, but after the lawsuit was filed, released the information and claimed that Hartman’s legal complaint “clarified and narrowed” the request.
“There is no dispute as to what happened,” said Joe Larsen, who wrote a brief for the Freedom of Information Foundation of Texas in support of Hartman.
He contends that the failure to initially produce the document requested was a de facto refusal. The AG’s office doesn’t rule on appeals for up to 45 working days, diluting the news value of any information gleaned from what was determined to be a public record, he said.
“Hartman was under no obligation to wait for an AG’s opinion,” Larsen said. “It is ridiculous to withhold a document like that, that is clearly a public record. It’s obvious it was public, but it’s also common for government bodies to raise these procedural challenges to delay release.”
Fort Bend Assistant County Attorney Matthew Grove, who is part of the team representing the county, did not return a call or email seeking comment. In case filings, the county contends that the questions before the court need to be addressed by the state Legislature, which can clarify the law.
Further, “once the scope of the Newspaper’s PIA request was clarified and narrowed — by its lawsuit allegations — the County voluntarily produced the “requested information” within six days after Hartman filed suit. Hartman’s PIA claim became moot.”
Fort Bend won the case in an appellate court ruling, which found that it had fulfilled its duty to provide the records, and that no law exists regarding the payment of legal fees in a case in which records have been given to the requestor.
In cases where a government agency is unclear on what is being requested, it’s common for the agency to contact the requestor to ensure the correct information is provided.
In this case, Hartman claims the refusal to provide was a stalling tactic. Texas law requires an agency provide releasable information “as soon as reasonably possible under the circumstances.”
If that material is not released in a reasonable time, requestors often have to file a court action to force the release, incurring legal fees. In most circumstances, that money is part of any court ruling, provided the requestor prevails.
“That the Sheriff made a request for ruling to withhold “basic information” is both a delay and a refusal, and there is no substantive difference between these terms in regard to the PIA,” Larsen wrote in a plea to the Supreme Court. “Delay is refusal.”
Therefore, he said, the agency is on the hook for the legal fees incurred by Hartman, which is also part of the newspaper chain’s argument. Larsen said that in this case, the fees are likely to be between $10,000 and $20,000.
At issue was an alleged bribery case involving a Lamar CISD trustee and a Houston businessman who was hoping to get some district business.
“We conducted a very thorough investigation,” Fort Bend County Sheriff Troy Nehls said in a statement in March 2016, when the indictments were handed down.
The Fort Bend Sheriff’s office was the lead agency in the investigation. The case fell apart almost immediately, and in July, 2016, a district judge dismissed the felony charges.
Steve Miller can be reached at [email protected]