Publisher’s note: This is an email written to the city attorney. I attempted to gather information under the rights guaranteed to all of us under the Texas Public Information Act. A central quality of our form of government is openness and transparency. My opinion is that both openness and transparency were missing so I made this request to the West University Place city attorney.
City Attorney Alan Petrov:
I apologize for the casual tone and likely typos but I am writing this extemporaneously and as a result of my frustration.
You know about the open records request I made on February 2 requesting a copy of a document a West University Place city council member had written at a West U public meeting and was used as a closing presentation before a West U-city board. Basically, the city council member was a speechwriter. And I wanted a copy of the speech. I requested this document pursuant to my rights under the Texas Open Government Act.
Instead, the requested document disappeared.
Here is the council member’s reasoning for not producing the document. This is an excerpt of an email from the city council member written to the city secretary and forwarded to me:
“I have discussed this matter with Alan Petrov. I did not create any written records in my capacity as a City Council member. I attended the ZBA meeting as a private citizen. I was not introduced as a City Council member and did not speak as a City Council member. The City Council has no official role in the ZBA hearing or in reviewing the ZBA’s decision. Because I did not create any records as a City Council member, I did not keep any written records in electronic or other form, and do not have any documents or records responsive to your request.”
The council member’s cloudy explanation troubles me on a jillion levels.
His second sentence is an acknowledgement that he created written records but, in his determination, did not create them in his capacity as a city council member.
I questioned the council member immediately after the meeting and asked him about the document I saw him write during the course of the meeting. He first denied he had written a document, then he said he would not answer my questions. Documents don’t erase themselves. If the council member knowingly erased the document in expectation I was going to ask for under my rights derived from the Texas Open Government Act, he would be guilty of a crime.
But his reasoning for his personal exemption from the law is offensively torturous – The council member says he was not a council member when he attended a meeting at city hall (really?). He was at city hall not as an elected official, but as a private citizen – appearing as an obvious, if not registered, advocate on an issue before a city board whose board members he had recently appointed to their positions?
In summary – In this city council member’s determination, he was not at city hall acting in his capacity as a city council member so he was not subject to the provisions of the Texas Open Government Act that require the retention of, and the release of, documents discussing matters about West University Place by a West University Place elected official.
Councilmember Brennan Reilly’s interpretation of the Texas Open Government Act defies logic and runs contrary to statute and case-law. Uncle Logic asks this question: How can a city council member be at city hall and not be a city council member?
Alan, I don’t care about going backwards on this – my worry is about tomorrow, or next month. I will not be so gracious if next month Reilly destroys a document he is legally required to produce.
The law is clear – If a West University Place city council member writes a letter to their pen-pal in New Zealand and says that they went to a meeting of the West University Place Recycling Board (and nothing more) – that is absolutely an open record under the Texas Open Government Act. There is no discussion or correspondence a West U elected city council member can have during their term of office that discusses a matter involving the operation and the administration of West U government that is not an open record under the Texas Open Government Act.
The city council needs clear legal direction that Reilly’s conduct violated the law and will not be repeated down the road.
Do you agree? We should clear this up now. If we need to ask the Texas Attorney General – OK. But I think we both know what his answer will be.