County’s attorney wants limit on access to information without compensation

McLennan County’s attorney hopes leaders adopt a policy aimed at deterring “intentionally abusive” open records requests, while others say the move could be construed as having a chilling effect on access to public information.

Attorney Mike Dixon, who represents McLennan County and its officeholders, said county staff is trying to process burdensome active requests before looking into a provision in the Texas Public Information Act that allows counties to charge high-volume requesters for staff time.

“There’s an inherent flaw where government assumes that people are going to use the act responsibly and for proper purposes,” Dixon said. “All too often people use it as a means to inflict cost, inflict a lot of burden on governmental entities.”

The Public Information Act guarantees the right of any person to access government records. Governmental bodies must promptly release requested information that is not confidential by law, and the requester cannot be asked why the information is being sought.

The government can charge for the cost of materials needed to make copies of records but generally not for staff time required to process requests.

Dixon said a few people abuse the system by overloading staff with submissions and refusing to clarify broad information requests. Dixon said the county receives some requests that read as if the individual is seeking information from the beginning of time, and when they are asked to clarify, the requester says, “No.”

Dixon would like the county to take advantage of a provision that allows a governmental body to establish a reasonable limit, not less than 36 hours in a 12-month period, on the amount of time personnel are required to spend producing public information for an individual. If requests go beyond a formally adopted limit, the requester can be required to pay for the costs to produce the public information, including staff time.

The limit does not apply to elected officials, nonprofit groups or most governmental bodies, political subdivisions or news publications.

The governmental body would also be required to provide the requester with a statement detailing the time spent on the requests and the time accrued toward the established limit.

Jim Hemphill, who serves on the board of directors of the Freedom of Information Foundation of Texas, said there have been arguments on both sides of the provision.

Legislators’ concerns

State legislators have raised concerns during the past several sessions about requesters abusing the system and filing public information requests in bad faith, Hemphill said. They have argued those requests are filed not with the goal of obtaining information but to harass and impose costs on governmental bodies, he said.

Whether that’s true or not, it’s a frequently voiced concern, Hemphill said.

But he said the counter concern is that this provision could have a chilling effect on the easy access to public information the law provides for.

“There’s significant pushback that either intent or the effect of any limitations would be to chill or discourage or prevent legitimate access and thus undermine the ultimate goal of the Public Information Act, which is to ensure the public has access to public information,” Hemphill said.

Dixon said staff can spend up to six hours a week answering open records requests.

“The act is flawed in a lot of ways in that it doesn’t provide any protections against abuse really,” Dixon said. “It’s taking so much time that it’s crazy.”

County Administrator Dustin Chapman said Wednesday afternoon he had already dedicated three hours that day to answering requests.

Moody resident Randall Scott Gates said he’s probably the only person who files requests with the county.

“I believe that all McLennan County government has taken a very antagonistic approach to transparency and open government,” Gates said.

The county received at least 25 open records requests from Gates between March 14 and April 18, according to the county.

Gates, a retired law enforcement officer, said it should only take about 15 minutes to comply, but county staff spends “200 hours trying to figure out how to keep from giving the information.”

Gates said he files specific requests that are not so broad that they would cause an issue.

Control of information

“They are desperate to control that information and control the flow of information,” he said.

Gates filed a request April 18 with the county for all information during the past six months related to the sheriff’s office drug dog Ace. In his original request, Gates pre-empted a request for clarification from the county he expected to receive.

He ended the request stating no clarification was needed. He wanted all the information.

“If you have no staff capable of complying with the statutory duties of your office, please advise it is your opinion you do not have to comply with the Act due to incompetence, and the AG can address that,” he wrote.

As he expected, the county sought clarification, saying his request “is very broad, vague and undefined. The request is not sufficiently defined in scope or the actual records sought. We are requesting that you clarify and narrow your request to assist us in determining what information is responsive. It would be more cost-effective for you and this office for you to clarify and narrow your request. We would hope that you would work with us in trying to minimize the diversion from other work county employees have to perform.”

In October, the Texas Attorney General’s Office notified the county that District Attorney Abel Reyna had violated the Texas Public Information Act after failing to provide text messages related to the DA’s response to the May 17 Twin Peaks shootout. Gates had filed the request and at the time said the DA’s office finally gave him a portion of the information, but not until after two attorney general’s opinions, a complaint and a ruling that the office violated the Texas Public Information Act.

Gates said he also has been overcharged by the county for filing requests. In March 2015, he said, he received a $60 refund check from the county for an overcharge for a public information request. Gates said it could have been a misinterpretation, but the added fees could have been meant to discourage access to public information.

In an open records request filed with the county April 15, Gates again included in his letter that there was no need for the county to respond with a letter for clarification, as his request was not vague and was “intended to be comprehensive. The response to your demand for clarification will only receive a reply that I want all responsive information that I have not already received.”

County Judge Scott Felton said an “unbelievable amount” of open records requests come to his office and to the sheriff’s office.

“Most of them are from the same requester,” Felton said. “It’s something we’re supposed to do but it’s real taxing on our office.”

Dixon said he plans on checking with other agencies that have implemented the provision to see what has worked and what hasn’t. He said he is looking to adopt a reasonable limit allowed by law without reinventing the wheel.

“The best thing we could do is adopt a policy to try to at least control costs,” Dixon said.