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Some council members refuse to release open records

By Melissa Crowe
June 7, 2013 at 1:07 a.m.
Updated June 8, 2013 at 1:08 a.m.

Josephine Soliz

WHAT IS PUBLIC?

• Information that is collected, assembled or maintained under a law or ordinance or in connection with the transaction of official business by a governmental body or for a governmental body and the governmental body owns the information or has a right of access to it.

• The media on which public information is recorded include: paper; film; a magnetic, optical or solid state device that can store an electronic signal; tape; Mylar; linen; silk and vellum.

•  General forms of records include books, papers, letters, documents, printouts, photographs, films, tapes, microfiches, microfilms, photostats, sound recordings, maps, drawing and voice, data or video representation held in computer memory.

Source: Texas Public Information Act

WHAT THE LAW SAYS

Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees.

The 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 people insist on remaining informed so that they may retain control over the instruments they have created. The provisions of this chapter shall be liberally construed to implement this policy.

•  This chapter shall be liberally construed in favor of granting a request for information.

Source: Texas Public Information Act

Council members' stances on open records requestS

Will Armstrong: Plans to fully comply to both record requests, willing to make entire computer accessible

Emett Alvarez: Refuses to directly respond to questions about the request

David Hagan: Seeking outside attorney's opinion before releasing emails or phone records

Tom Halepaska: Plans to fully comply to both record requests

Mayor Paul Polasek: Plans to full comply to both record requests, waiting for phone bill to be sent from AT&T

Josephine Soliz: Not intending to release records; believes all personal emails and phone calls are private

Joe Truman: Plans to fully comply with both requests, separating his calls from company phone bill

Some Victoria City Council members are refusing to hand over public records that could shed light on allegations of a Texas Open Meetings Act violation.

Mayor Paul Polasek, councilmen Tom Halepaska and Joe Truman and former mayor Will Armstrong were the only four who said they would comply with both open records requests made by the Victoria Advocate. However, the city has not made those records available as of Friday.

City Attorney Thomas Gwosdz said Friday that he hopes to have a response ready by Monday.

He would not specify which council members are refusing to comply, but the Advocate has talked individually with each member.

"If they've told me that they're not going to release something to me, I'm making a mental checkmark that I won't wait on them any more, even if I received nothing," Gwosdz said.

The Advocate submitted a letter Friday to the city attorney and mayor outlining its objections to the delay. If the records are not made available in full by Tuesday, the Advocate will make formal complaints to the district attorney and attorney general.

By statute, Victoria County Criminal District Attorney Stephen Tyler would be the one to prosecute if there is reason to believe there was an open meetings violation. The attorney general could prosecute but only at Tyler's request.

"I won't hesitate to charge a City Council member or a mayor if I think they've done wrong," Tyler said. "I think you're a lot better off saying, 'Look, I screwed up,' than to drag your feet and do all this and make everybody have to jump through hoops."

Council members David Hagan, Josephine Soliz and Emett Alvarez have refused to comply with one or both requests.

Polasek said the city cannot compel individual council members to comply with open records requests, but he plans to comply. He is waiting on AT&T to mail a copy of his phone bill, which he said he would make available for review.

"It is my hope that each council member will be as transparent as possible," Polasek said. "It is important to the public."

In two separate requests, the Advocate asked for all communication between all council members and a handful of area politicos leading up to the first postelection City Council meeting. Some have accused Hagan, Truman, Soliz and Alvarez of illegally deciding before the meeting how they would vote on the canvass of the election.

"We need to be as transparent as possible," Polasek said. "If it appears that there's been wrongdoing, then it needs to be addressed by whatever authority is responsible for that."

The city's response to the first records request contained only three emails from Polasek and Armstrong.

Gwosdz refused to say whether he was able to access council members' city-issued iPads as requested by the Advocate. Without access to the iPads' passwords, the city attorney cannot retrieve any information contained there. The city provided the iPads at taxpayer expense for council communication.

The city has not responded to the second request by the 10-day deadline outlined by the Texas Public Information Act. The request is for emails from personal accounts involving public business and records of phone calls in which public business was discussed.

Joel White, an attorney with the Freedom of Information Foundation of Texas, said there is more than one way to get the information from elected officials, including formal complaints to the attorney general and lawsuits.

"If I had violated the Open Meetings Act and was potentially looking at a very serious criminal prosecution that could put me in jail six months and keep me from having a public office for the rest of my life - they're not going to turn over the evidence against them to a reporter and face wearing orange pajamas for the next six months," White said.

Personal emails, even those from a web server such as Yahoo! or Gmail, become public information when they involve public business, according to the Texas Attorney General's Office. By refusing to make those accessible, some city council members could be in violation of the law.

According to state law, "The 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."

Alvarez refused to answer any direct question about whether he provided the information related to the requests.

He said he turned in his iPad but did not say whether he provided access to password-secure records.

"I responded to the city attorney," he said. "That's all I have to say."

He repeated that answer when asked about whether he used his city-owned iPad to conduct public or personal business, whether he ever used a personal email account to conduct public business and whether he planned to make those records available.

Gwosdz acknowledged that the first request did not have much information turned into the city.

"Some chose to release their personal information, which is not required by law, but chose to do so in the interest" of the public, he said.

He said he cannot compel council members to hand over their password-protected, personal email accounts.

According to a 2005 attorney general letter to the city of Cedar Park, information in a public official's personal email account may be subject to the act if he or she uses a personal email account to conduct public business.

While Hagan and Soliz both turned over their city-issued iPads for review in May, both said they did not give access to personal emails or phone calls that involved the public's business.

Hagan said he wants to comply to "whatever is required by the law" and is seeking outside legal advice before releasing any emails he sent or received on his personal email account involving public business.

Soliz said, "I wasn't going to turn in anything."

Art Alvarado, a Victoria resident, filed the first complaint against the City Council on Friday at the city legal department.

Alvarado said he wants the city to conduct a full and thorough investigation of Alvarez, Hagan, Soliz and Truman for a possible violation of the Texas Open Meetings Act.

As former mayor, Armstrong said he wants to see the city comply in every respect of any information request involving the open meetings law.

"I was presiding at the meeting when the illegal motion was made, and I can see why there would be some desire from the public to know if there was an Open Meeting Act violation," he said. "Sooner or later, I think all the facts will be known. It's just a matter of time."

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