El Paso council item to limit open records access criticized

By Elida S. Perez
El Paso Times
Originally published March 5, 2016

The City Council will have what an expert said is a pointless discussion about trying to restrict a class of individuals from requesting city records through the Texas Public Information Act.

“They can’t just take it upon themselves to cut off whole classes of people from requesting records,” said Freedom of Information Foundation of Texas Executive Director Kelley Shannon. “They have to treat everyone equally under the law.”

An item on Tuesday’s agenda, requested by city Rep. Emma Acosta, calls for “discussion and action regarding open records requests released to person(s) and/or petitioner(s) convicted of a felony and/or misdemeanor of a crime of moral turpitude.”

The Texas Public information Act states in several provisions that public information is available to “the people,” “the public” and “any person.” Only individuals who are incarcerated in a prison or correctional facility face certain restrictions, according to the law.

Shannon said even that provision is not a complete exclusion.

“It’s not even a logical discussion,” Shannon said. “They can’t make their own rules; they have to follow the law.”

Acosta said she has concerns about releasing documents to people convicted of felonies, misdemeanors or crimes of moral turpitude, explaining that she fears the information might be used for criminal activity.

“It causes concern to release information to hackers,” Acosta said as an example.

According to Texas law, a crime of moral turpitude may involve dishonesty, fraud, deceit, misrepresentation or deliberate violence, among other descriptions.

Acosta also said her concern is that email addresses or phone numbers released in records could fall into the wrong hands through the released documents.

Texas law allows for the redaction of personal email addresses or phone numbers before the information is released. Official email addresses and the numbers to government-issued phones of City Council members generally are public record.

The item was placed on the agenda about one week after El Paso blogger Jaime Abeytia submitted open records requests with the city for records pertaining to Acosta and her assistant, Dora Oaxaca, as well as city Rep. Dr. Michiel Noe and his assistant, Camilo Jimenez.

Abeytia requested communications, text messages and electronic communications pertaining to all city business to include the Metropolitan Planning Organization and subcommittee work from Feb. 25, 2015, to Feb. 25 of this year. He submitted the request Feb. 25.

In October 2014, Abeytia pleaded guilty to a Class B misdemeanor charge of breach of computer security.

“To me it’s fairly clear that this is an effort to intimidate a member of the public from requesting information from the government,” Abeytia said. “The fact that they legally can’t do this, but it showed up on an agenda — I feel this was purely meant as an intimidation factor to shame or embarrass me in public.”

The circumstances that led to Abeytia pleading guilty stemmed from an arrest in 2013 and a subsequent divorce and child-custody dispute. A felony charge was dropped. Abeytia said he pleaded guilty to prevent his daughter from having to testify in court.

Acosta asserts she did not place the item on the agenda because of Abeytia’s request.

“Whether it’s Jaime or not Jaime, we know we have individuals with moral turpitude charges,” she said.

Shannon said the attempt to restrict an entire class of individuals from requesting information through the established Texas Public Information Act shows that city leaders need open records training.

“You can’t just set up your own rules,” Shannon said. “It certainly seems odd and it seems like the city leaders need to really read and understand the Public Information Act.”