Sunday, July 1, 2012

Texas cities exact high fees for "serial" requestors

Texas city officials say ‘serial requestors’ must be deterred, activists worry about government transparency

Two more local governments in Texas have passed laws designed to deter “serial requestors” of public records.
Corsicana and Kemah city councils earlier this month each passed ordinances that allow public officials to bill citizens for staff time that meets or exceeds 36 hours responding to public information requests during a 12-month period.
Those decisions revive a debate about the 2007 state law that enabled local government agencies to pass on such costs: Is the effect one of government efficiency or reduced government transparency?
Corsicana and Kemah city officials contend the new policies are necessary to prevent government employees from wasting valuable time rummaging for files when they should be attending to city business. But open government advocates argue that providing citizens with public information is central to a government agency’s business.
Kemah City Attorney Dick Gregg Jr. said the law passed on June 7 by the city council will thwart the two or three “serial requestors” of open records from requesting “giant volumes of things that ties up city hall in a small city.”
Those people’s actions are “costing us dough,” Gregg said. “It’s a tremendous burden. A large portion of the staff becomes responsible for finding documents instead of taking care of running the city. So taxpayers end up paying for that work rather than the cost of city governance.”
That’s a misguided concept of democracy, said Paul Watler, a partner at the Dallas law firm Jackson Walker.
“Keeping the public informed about the business of government isn’t just ancillary to public agencies,” said Watler, past president and current member of the board at the Freedom of Information Foundation of Texas.
“Open record requests shouldn’t be looked at as something that distracts from the real work of government employees,” Watler said. “Transparency is the essence of public institutions in a democracy.”
That may be so, but the fact of the matter is that many broad requests do take a lot of time during the workday of Corsicana city employees, said Mayor Chuck McClanahanCorsicana city council members passed its ordinance on June 5.
“Some of the information requests were really starting to slow down the process here,” said McClanahan, who said he believes in transparency and pointed to awards the city has won for financial transparency from the state Comptroller. “We want to be more efficient. We’re trying to be responsible with taxpayers’ money.”
Connie Standridge, the Corsicana city manager, said six people across three departments — finance, engineering and parks — typically handle public records requests. The city has 279 full-time employees, according to its website.
Corsicana employees spent an estimated 113 hours handling requests last year, the first year the city tracked that statistic, Standridge said. Staff has spent an estimate of 60 hours for the year to date, she said.
Local government agencies would be less burdened by requests if they would adopt technology such as document management and retrieval software, Watler said.
The new laws worry some residents, who fear they’ll be targeted as the so-called “serial requestors.”
“Now, as soon as we file requests, they’re just going to use multiple employees to use up as much time as they can” to reach the 36-hour threshold, said Blu Shields, 59, a commercial and residential builder from Texas City who does a lot work in Kemah. “Now, they can pick and choose who they charge and who they don’t.”
The ordinance enables city officials to “impede us even before we ask for records,” said Donna Holcomb, 47, a stay-at-home mom of Bacliff who used to live in Kemah. Holcomb recently asked for eight years’ worth of email records for 16 city officials and was told she could have them, but it would cost $412,000.
She said the new law gives even more power to officials such as Gregg to “give us a ludicrous estimate for the amount of time and money our record requests will cost.”
“This law is going to close up government for the people of Kemah,” she said.
That chilling effect is an unintended consequence of the 2007 law, said Watler, the Dallas lawyer and FOI Foundation board member who specializes in First Amendment and media law.
“It deters legitimate requestors from seeking public records,” Watler said.
The 2007 law was authored by Texas state Sen. Jeff Wentworth, R-San Antonio, who put forward the proposal after parents flooded the Austin-based Lake Travis Independent School District and the Eanes Independent School District with thousands of open records requests, according to stories in the Austin American-Statesman and the Houston Chronicle.
Neither Wentworth nor officials with the two districts responded to multiple requests for comment.
Several local governments since have enacted policies based on the law, including Comal Countyin 2008 and Fort Bend County in 2010.
Comal County Judge Sherman Krause said he hasn’t heard anyone talk about the county’s toughened policy, “so I’m not sure how we would quantify” whether the law has made county governance more efficient.
But in Fort Bend County, the 36-hour-limit has not been triggered since the law was passed two years ago, Michelle Rangel, an assistant county attorney, said.
The Texas Legislature in passing the law exempted public officials and journalists, as well as tax-exempt legal services organizations. The exemption does not cover activists like Tom “Smitty” Smithstate director of Public Citizen, the national consumer advocacy organization founded by activist Ralph Nader.
Smith said the 2007 law “hinders people from finding out what’s really going in government,” because unraveling scandals often takes many public records requests over a long period of time.
“On a number of occasions we, or our allies, have been told that data we are seeking would be prohibitively expensive,” Smith said. “And we would have to trim back our data request or abandon it because we couldn’t afford to go forward.”
Texas city officials say ‘serial requestors’ must be deterred, activists worry about government transparency
Mike Cronin
June 18, 2012
Texas Watchdog

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