Tuesday, February 8, 2011

Public Information - Waco City Legal Department Creates Confusion


Public Information request routed through City Attorney, but they do not have the request to process it. Button, button, who's got the button, etc.

Waco City Attorney Leah Hayes continues to stonewall a public information request for offense and arrest reports regarding a series of assaults perpetrated by a man who was jailed, released on a notice to appear in Municipal Court, jailed, then released on his personal recognizance, then jailed once again for yet another case of assault.

Officials at the Waco City Police Department, including the public information clerk and the assistant chief of police, insist that all such requests must first be cleared for release by the City Attorney and the law allows a 10-day period for this to be accomplished.

Section 552 of the Texas Govt. Code clearly holds otherwise. We have included a video of the staff at the city legal department refusing to allow an inspection of the records requeste, something that is allowed by law.

They claim they never got them, that they are unavailable, the request having been filed on Jan. 31.

Below you will find a detailed case report prepared by Mr. R.S. Gates, a certified peace officer with much experience in the preparation of such instruments.

To: Leah Hayes
City Attorney’s Office
Waco, Texas
Re: Public Information Act Request X3

On 1/31/2011, I filed three Public Information Act requests with Christina Combs who identified herself of the Open Records Clerk of the Waco Police Department.

On 2/3/2011, I returned to the Waco Police Department to follow-up on the requests filed 1/31/2011.

I attempted to resolve the issue of my requests at the lowest level possible but was advised by Assistant Chief (AC) Ryan Holt, complaints should be filed with the Attorney General. Several issues were raised.

The first issue was Texas Government Code Chapter 552 section 552.221(a)


Sec. 552.221. APPLICATION FOR PUBLIC INFORMATION; PRODUCTION OF PUBLIC INFORMATION. (a) An officer for public information of a governmental body shall promptly produce public information for inspection, duplication, or both on application by any person to the officer. In this subsection, "promptly" means as soon as possible under the circumstances, that is, within a reasonable time, without delay.

I attempted to furnish this information to Ms. Combs and Assistant Chief Holt and was told “That’s not the whole law” by Ms. Combs, and AC Holt refused to consider the document saying he had an intimate knowledge of the law.
I asked Ms. Combs to comply with Sec. 552.221(c) and furnish in writing the date and time when the information would be available but she refused stating she had 10 business days to respond and all requests went through the City of Waco’s Legal Department.

(c) If the requested information is unavailable at the time of the request to examine because it is in active use or in storage, the officer for public information shall certify this fact in writing to the requestor and set a date and hour within a reasonable time when the information will be available for inspection or duplication.

Ms. Combs said I was not complying with the law because I did not fill out the department prescribed form. I was further told by AC Holt the information would be at the City Legal Department.

Requestor notes the following:
552.221(b)
(b) An officer for public information complies with Subsection (a) by:
(1) providing the public information for inspection or duplication in the offices of the governmental body

Requestor believes the law prevents a government entity from making a citizen go to different locations to secure public information. Requestor believes the information should be made available at the same office where the information request is filed. Requestor also believes said removal of records violates:

Sec. 552.351. DESTRUCTION, REMOVAL, OR ALTERATION OF PUBLIC INFORMATION. (a) A person commits an offense if the person wilfully destroys, mutilates, removes without permission as provided by this chapter, or alters public information.
(b) An offense under this section is a misdemeanor punishable by:
(1) a fine of not less than $25 or more than $4,000;
(2) confinement in the county jail for not less than three days or more than three months; or
(3) both the fine and confinement.
(c) It is an exception to the application of Subsection (a) that the public information was transferred under Section 441.204.

Requestor attempted to file a complaint on the foregoing as a violation of:

Sec. 552.353. FAILURE OR REFUSAL OF OFFICER FOR PUBLIC INFORMATION TO PROVIDE
ACCESS TO OR COPYING OF PUBLIC INFORMATION. (a) An officer for public information, or the officer's agent, commits an offense if, with criminal negligence, the officer or the officer's agent fails or refuses to give access to, or to permit or provide copying of, public information to a requestor as provided by this chapter.

AC Holt refused to take a complaint and referred requestor to the Attorney General to file a complaint. The level of culpability “with criminal negligence” is addressed by the fact that AC Holt has been employed by the Waco Police department since 1996, and he refused to consider the print out of the statue I provided, as well as refused to look it up.

Requestor notes that while AC Holt directed requestor to contact the Office of the Attorney General. Sec 552.3215(e) clearly provides the McLennan County Criminal District Attorney has original jurisdiction.

Sec. 552.3215(e) A complainant may file a complaint alleging a violation of this chapter. The complaint must be filed with the district or county attorney of the county in which the governmental body is located unless the governmental body is the district or county attorney. If the governmental body extends into more than one county, the complaint must be filed with the district or county attorney of the county in which the administrative offices of the governmental body are located. If the governmental body is a state agency, the complaint may be filed with the Travis County district attorney. If the governmental body is the district or county attorney, the complaint must be filed with the attorney general.

While this might be a minor error and not the basis for a complaint, it definitely brings into question the intimate knowledge of AC Holt.
Ms. Combs and AC Holt both said there was no provision, other than the Attorney General for a citizen to file a criminal complaint against a public official. I am deeply concerned that a citizen alleging an offense greater than official misconduct might receive the same response.

The Office of the Attorney General and Office of the Criminal District Attorney are kind of busy at this time and as a taxpayer, I would really rather not involve them. I would like to resolve this matter at the lowest possible level. It was made clear on 1/31/2011 that resolution would not be possible with Ms. Combs. On 2/3/2011, it became equally clear that not only was AC Holt not inclined to assist requestor, but he also refused to take a criminal complaint even though Chapter 552 defines this violation as Official Misconduct.

R.S. Gates





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