Texas AG blocks release of ‘burn in hell’ audio

By Kenric Ward
Watchdog.org
Originally published March 23, 2016

The Texas Education Agency and state Attorney General Ken Paxton are blocking Watchdog.org from obtaining an audio recording of a teleconference during which a school board member told the TEA commissioner to “burn in hell.”

Watchdog independently confirmed that an unidentified school board trustee told then-Commissioner Michael Williams that Williams should “die and burn in hell.”

The remark was made as the state ordered La Marque ISD to shut down over failing academic and financial performance.

Neither a recording nor a transcript of the contentious teleconference was released. TEA asserted that the contents of the meeting between local and state public officials were exempt from the Texas Public Information Act and off limits to the media.

The Texas Attorney General’s Office agreed.

TEA used Section 552.116 of the Government Code to block release of the audio record. The section applies to “an audit working paper of an audit of the state auditor of a state agency … [including] a school district.”

“‘Audit working paper’ includes all information, documentary or otherwise, prepared or maintained in conducting an audit, including intraagency and interagency communications.”

The TEA also cited Sections 39.051 and 39.052 of the Education Code. Those sections authorize the TEA commissioner to determine the status of school accreditation, warnings, probation and revocation.

“Upon review, we agree Section 552.116 is applicable in this instance,” Assistant Attorney General Britni Ramirez wrote in a March 14 opinion.

Chris Tritico, an attorney retained by La Marque ISD, assailed the Texas law that authorizes TEA to close low-performing districts.

“The standards are a year behind,” he told Watchdog. “La Marque had a $46,000 fund balance two years ago – now they have $5 million and are on the way to $8 million.”

La Marque fought the TEA-ordered closure in district court and lost. Tritico said the district will appeal in state circuit court.

As for the state blocking the release of the audio, Tritico said, “I don’t see how it fits under the ‘audit working paper’ exemption.”

“If that record isn’t available, there’s no open records law at all,” Tritico said.

Joe Larsen, an attorney with the Freedom of Information Foundation of Texas, questioned the basis of the AG’s opinion.

“Only if the conversation was in context of an audit — not as a follow-up or preparatory to an audit, but actually part of the audit — could this be considered a ‘working paper,’” Larsen told Watchdog.

Larsen said the attorney general’s office “was not in a good position to judge the factual accuracy” of the matter. “The [TEA] submitted the information and the AG doesn’t look beyond that.”

TEA spokeswoman DeEtta Culbertson said, “Documents, including the meeting, collected and used in the determination of [La Marque’s] accreditation can be excepted” from open-records requirements.

Bill Aleshire, another FOI Foundation attorney, said, “The most dangerous part of the AG ruling is the expansive meaning given to the word ‘audit’ as used in section 552.116.”

“The ruling does not define ‘audit’ and there are no published cases interpreting 552.116. … This ruling could be used to conceal the basis on which all kinds of decisions to grant status of persons or entities or virtually anything where a governmental body or officer collects information in order to arrive at a decision,” Aleshire said in an email.

“Imagine how many ways in which decisions are made by government officials after a careful examination of information — and how, armed with this AG opinion, they may now claim that they were conducting an ‘audit’ to make that decision, and all of the information on which their decision was based is a confidential ‘audit working paper.’”

Deferring to the TEA, La Marque officials declined to release the audio.

Williams, who announced his intention to leave the TEA last fall, resigned at the end of 2015.