By Sherry Koonce
Port Arthur News
Originally published Oct. 22, 2014
In a move that Freedom of Information attorneys are calling “an obvious delay tactic,” or, worse yet, “a possible criminal act,” Port Arthur city officials are refusing to supply the names of candidates applying for the city manager job.
On Oct. 8, The News submitted an open records request under the Texas Public Information Act for the names and resumes of all applicants applying for the Port Arthur city manager job, as well as photos of the seven semi-finalists.
The Texas Public Information Act allows 10 (business) days for a response to public record requests.
On Wednesday, The News received a reply from Port Arthur’s City Secretary’s office in the form of a memorandum dated Oct. 10 from Director of Human Resources Albert Thigpen.
The response came a full 14 days from the time the request for all applicants’ names was submitted. Not only was the requested information not provided, the city’s response was a near replay of a similar open records request made two years ago during a previous city manager search.
In January 2012, The News requested the names of city manager finalist candidates. At the time, city officials said they could not supply the names because the search was conducted in a blind fashion, so they did not know the candidates’ identities.
This time around, the search is not conducted in a blind fashion, but the names of all applicants applying for the job have not been forthcoming. City Council did, on Oct. 8, release the names of seven semi-finalists in open session following a closed door session.
In both situations, the city had hired a search firm to help find a new manager, and in both cases the city stated it did not have access to the applicant’s names.
That’s not an acceptable excuse, attorneys said.
“The law is crystal clear. When there is an attorney general’s opinion directly on point, they have to follow it,” Charles Daughtry, a Houston attorney made available by the Freedom of Information Foundation of Texas, said Wednesday.
In 1991, the Texas Attorney General issued an opinion in a similar case involving a city manager search in the city of West University Place. Like Port Arthur, the city had hired a search firm to help with the hiring process.
The city of West University Place received a request for a complete list of applicants for the position of city manager. The City took the position that the list was not public information because the city did not have a right to access that information.
In the AG’s opinion, it was determined a firm may withhold information from public disclosure only if the city may do so. A governmental body cannot promise to keep information confidential if the Open Records Act requires that the information be available to the public.
The FOI act does allow exceptions. In cases of university system chancellors and presidents or school district superintendents, applicants’ names for taxpayer funded jobs can be withheld from the public. But, in all other cases — especially in high-profile jobs like a city manager — names are required to be made available.
“It seems an obvious delay tactic,” Daughtry said. “Many goverment entiteis unfortunately follow the motto if they can delay access to information, they win.”
In January 2012, according to a Jan. 31 article from The News’ archives, Port Arthur City Attorney Val Tizeno instructed The Mercer Group, the search firm at the time, to release the candidate’s names after The News made the city aware of the 1991 AG opinion.
Two years later, the city is repeating its stance that the information is not available because it is in the hands of the search firm — an action that another FOI attorney called into question, calling the city’s refusal to provide the requested information a “knowing violation.”
“If it can be proved there was knowlege that the documents are public, it could be a criminal act. It is a knowing violation. The discretion lies with the district attorney whether to prosecute,” Jim Hemphill, an FOI attorney from Austin, said Wednesday.
Jefferson County District Attorney Cory Crenshaw has requested documents associated with the two open records requests be forwarded to his office for review.
At press time, neither the city’s attorney or human resources director had returned The News calls for comment on this article.