El Paso City Council deletes proposed open records restriction

By Elida S. Perez
El Paso Times
Originally published March 8, 2016

The El Paso City Council voted unanimously on Tuesday to delete a controversial item that would have restricted an entire class of people from requesting city documents through the Texas Public Information Act.

City Rep. Emma Acosta, who placed the open records item on the agenda, initially asked City Council to approve an item that called 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.”

“This is about the issue of technology not keeping up with the law,” Acosta said as her reasoning for placing the item on the agenda.

Mayor Oscar Leeser said several constituents contacted him expressing concerns about the city trying to limit open records requests.

State Rep. Joe Moody, D-El Paso, was among them. He sent a letter to Leeser and City Council that said he was very concerned about the item.

“A city can’t roll back state law,” Moody said.

Moody cited the portion of the law that states, “Each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees.”

Moody also said the type of individual Acosta was attempting to restrict was of concern.

“Criminal justice issues are very important to me, and I can tell you that wrongfully convicted people have won their freedom based in part on information received through open records requests,” Moody said in the letter. “All El Pasoans deserve transparent, accountable government, and the public information act is one of the pillars of that commitment.”

Moody told the mayor and council that he did not think the intent of the city was to interfere with that process, but approving the item would do just that.

City Attorney Sylvia Borunda Firth and Assistant City Attorney Don Minton explained the rules to council and some of the consequences of interfering with restricting public information records which may include hefty fines and criminal charges.

“The act requires we presume everything is public, we operate under that assumption, every bit of information in our repository is public information,” Minton said.

Minton also said that the identity of the individual requesting city documents or records is irrelevant.

“It’s important to note that we can’t ask (about the requestor),” Minton said. “It’s a very limited inquiry. We can’t ask ‘what are you going to do with that information?’”

Minton also said everyone that makes a request must be treated equally.

“That’s the spirit of the legislation on the front end,” Minton said.

As the discussion between council, the mayor and city attorneys progressed, Acosta said what she actually wanted was for the city to approach Texas lawmakers to inquire about redacting telephone numbers. She said her concern was that computer hackers – for instance — would use phone numbers to access personal information from smart phones.

She said smart phones now carry technology similar to that of computers. She also said she was concerned that releasing cell phone numbers of non-city staff was of concern.

Acosta posted a listing in her public presentation of individuals and their cell phone numbers that had been released as part of open records requests.

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 bait and switch that we have seen here today is quite remarkable,” said local politics blogger Jaime Abeytia during the public comment portion of the discussion. “The language that was used by Representative Acosta’s original item doesn’t look anything like what we’ve been talking about today and I would hope the community would take note of that.”

Abeytia, who pleaded guilty to a Class B misdemeanor charge of breach of computer security stemming from a divorce and child-custody dispute, requested records from Acosta about a week before the item was placed on Tuesday’s agenda.

“Your language has now changed so drastically than what was on the agenda. It underscores that belief — this is not about the law,” Abeytia said. “’This is about technology’ those are cover words for an effort to try to embarrass and intimidate me from what I rightfully and lawfully should have access to.”

Acosta said she did not place the item on the agenda because of his request.

“This has nothing to do with you,” Acosta said in response to his public comment. “I understand that there’s been individuals that said that I am targeting a certain specific person. I have never targeted anyone in my life.”

Council unanimously voted to delete the item. Borunda Firth said staff will rephrase the item and bring it back to a future agenda with the language directed at having state legislators review the possibility of having telephone numbers and dates of birth redacted from information requests.

Until further notice, it will be “business as usual,” Borunda Firth said.

City Council on Tuesday also amended its wage theft ordinance to make it more difficult for companies that do not pay their employees to conduct business in El Paso.

The amendments will extend to businesses that apply for permits and licenses for restaurants, laundries, second-hand goods dealers, vendors and solicitors, flea market operators and contractors and licensing businesses.

Before it was amended Tuesday, the ordinance only impacted companies seeking contracts with city government.

The city will also create a database of companies that have been found through existing legal processes to have committed wage theft. Those companies will have an appeal process that protects their rights.

A company entered into the database will have 30 days to pay the owed wages or attack the finality or validity of the judgment.

Ideally, an employer will pay the employees what is owed, and keep city permits or licenses.

The amendments were proposed by the Lift Up El Paso Alliance, a coalition of groups interested in workers’ rights.

“The reason why this is so necessary is because it’s filling in a legal gap we have elsewhere that the state and federal enforcement agencies to enforce judgements,” said Christopher Benoit, a representative for Uplift. “These are businesses that have already gone through the appellate process and they are still not paying their employee — we just don’t want you to do business in the city of El Paso.”

The item was approved 5 to 1 with city Rep. Dr. Michiel Noe voting against the motion. City Rep. Cortney Niland was excused from the meeting. City Rep. Larry Romero, who resigned, was not at the meeting.

Noe said he voted against it because he was concerned that businesses struggling to pay employees would face further hardships and may close.

Officials said the ordinance may also be amended in the future.