Victoria County pays $105,000 for open records advice

By Jessica Priest
Victoria Advocate
Originally published Sept. 24, 2016

Victoria County paid an outside law firm about $105,000 over four years to answer open records requests.

In 2015 alone, after several sheriff’s office employees were investigated for wrongdoing, the county paid more than $77,000.

The county made the payments to the Austin-based Allison, Bass and Magee law firm even though the elected district attorney has offered to answer the open records requests faster and for no outside cost.

The sheriff’s office wrote in a statement that it wants the DA’s office “to remain focused on fighting crime by prosecuting the criminals we apprehend to keep Victoria County safe.”

Some notable expenses the law firm has charged the county include:

  • $96 to review a text message sent to the sheriff’s office from a reporter
  • $48 to talk on the phone with Chief Deputy Roy Boyd about a reporter’s “behavior”
  • $63 to watch the Victoria Advocate’s news meeting streamed on Facebook

Other elected officials were not familiar with the expenditures.

“To be honest, I had no idea it was that much, and I am surprised by that amount,” Commissioner Gary Burns said.

When questioned about the charge to watch the Victoria Advocate’s news meeting, County Judge Ben Zeller first said he did not believe that was true.

To study whether this was an appropriate use of taxpayer money, Zeller said, one would need to consider the volume of open records requests.

Zeller described open records requests as “exploding” in recent years. He later provided data from the sheriff’s office that showed the number of open records requests it received increased from 435 in 2014 to about 1,200 so far this year.

The sheriff’s office said 84 of the 1,200 filed this year came from the Victoria Advocate.

Statewide increase

Attorney Bill Aleshire, who specializes in media law, said the number of open records requests is increasing across the state. But governmental bodies might be bringing it upon themselves by requiring reporters to submit questions in writing rather than answering their questions through an interview. When governmental bodies require reporters to submit questions in writing, they sometimes treat them like open records requests, he said.

Sheriff T. Michael O’Connor referred requests for an interview for this story to his media staff, which required all questions be put in writing.

Victoria County has no data on how many open records requests all county departments receive by year.

To better understand the high number, the Victoria Advocate filed on Sept. 20 an open records request for an itemized list of open records requests sent to the sheriff’s office in 2016, including the name of the requester, what the request was for and the date the request was made.

The Victoria Advocate did not receive responsive records by Saturday.

Legal obligation

Under the Texas Public Information Act, agencies must promptly release requested information. If they don’t believe the information is public, they have 10 business days to ask the Attorney General for an exemption.

For this story, the Victoria Advocate looked at invoices Allison, Bass and Magee sent to the county judge’s office from 2012 to February 2016, the latest available. The Advocate obtained the invoices from the county auditor’s office.

From these invoices, the newspaper tallied the number of requests filed and the amount attorneys charged to process those requests.

During the four-year period, it appears the law firm answered 67 open records requests, mostly to the sheriff’s office and from the Victoria Advocate.

The general public requested from the sheriff’s office information about bail bonds, equipment and a dog attack. Mike Henry, a former sheriff’s deputy who is now running to be sheriff, filed an open records request for his own personnel file.

Some of the Victoria Advocate’s open records requests were for use of force reports and information about a car jacking, a reported shooting and vandalism at Victoria West High School.

The newspaper also made requests for the personnel files of former sheriff’s office employees who were fired, arrested or indicted on charges of wrongdoing.

Both Burns and Zeller said they thought it best to consult a lawyer for requests for personnel files.

They thought they could be sued if they released employees’ confidential information. Open records experts agree.

Releasing confidential information also may constitute official misconduct, which is a misdemeanor punishable by no more than six months in jail and/or a $1,000 fine.

Burns and Zeller also said they did not think the district attorney’s office has the manpower or the time to answer open records requests.

Elected DA Stephen Tyler said that is not true, though.

Twelve attorneys work at the DA’s office.

Assistant DA Pink Dickens answers open records requests, handles civil asset forfeiture cases and supervises attorneys who work in the misdemeanor and justice courts, which “does not require the same amount of preparation,” Tyler said.

Assistant DA Brendan Guy, who handles appeals and some felonies, is also tapped to answer open records requests, if needed.

Tyler said he should have been more clear with the commissioners about how his attorneys can handle more open records requests.

To Tyler, answering open records requests is easy and does not necessarily require a law degree. He described some as being repetitive.

“You’re either going to give up the records or you’re going to claim one of typically five different exemptions, so once you’ve responded to one request where you are not giving up information, there’s a lot of cut and paste,” Tyler said. “You’re not reinventing the wheel every time.”

Aleshire, meanwhile, did not think hiring outside counsel to handle open records request was unusual. As legislators add exemptions to the Act and judicial decisions offer new interpretations of the Act, answering open records requests becomes more complicated, he said.

‘Adversarial’ requests

Zeller said some open records requests appeared to be “adversarial.”

Both Aleshire and Tyler said that sort of thinking is problematic.

“Statewide, lots of governmental bodies are not behaving like they truly accept the notion that the public has a right to see records,” Aleshire said.

Keeping the job of answering open records requests closer to home makes governmental bodies not only more responsive, but also more accountable, Tyler said.

“Sometimes it’s a grind, but it’s your job to ask questions,” Tyler said of journalists. “How many people get tired of me asking questions? If I got mad at y’all, that’s the pot calling the kettle black. You’re just trying to ferret out the truth the same way in a fashion that I do.”

Joe Larsen, another media law attorney, was disturbed by the county paying Allison, Bass and Magee to read the newspaper and watch its meetings.

“It is – what’s the word I’m looking for? – paranoia,” Larsen said. “They have an attorney basically working to ensure their coverage is favorable or advise them of unfavorable coverage.”

The sheriff’s office wrote in its statement that it did not ask the law firm to read the newspaper or watch its meetings, but doing so could help the law firm provide sound legal advice.

The sheriff’s office said it would continue to employ the law firm.

Victoria County also has used Allison, Bass and Magee for other legal matters here and elsewhere.

Attorneys from Allison, Bass and Magee helped draft Victoria County’s sexually-oriented business and dangerous dog ordinances.

The law firm describes itself as “dedicated to providing quality legal representation at a fair price, with particular awareness to the needs and demands of local governments,” on its website.

Ector and Caldwell counties recently retained it.

Some elected officials in those counties balked at the cost of representation while others said it was necessary and praised Allison, Bass and Magee’s work.

Ector County Commissioner Greg Simmons recently voted against retaining the law firm to answer open records requests because he thought the county could handle the task in-house and the new county judge was being overly cautious.

Simmons was out-numbered, and the firm was retained there anyway.

“We’re already seeing a lot of downturn with our budget, so to me, a lot of that funding would be useful in other areas,” Simmons said.

Victoria County’s sales tax revenue has decreased 12 percent so far this year.

Case history

Caldwell County recently retained Allison, Bass and Magee to answer an open records request from Houston-based journalist- turned-consultant Wayne Dolcefino.

County Judge Ken Schawe said the county attorney handles most open records requests, but Dolcefino’s was too voluminous for the county attorney to handle.

“If I can never use an attorney, that would be wonderful, but if I’m going to use one, I would use them,” Schawe said.

But Dolcefino said he worked with the county attorney for months, waiving deadlines to give him time to comply and agreeing to pay the cost to find and produce the records.

Dolcefino said when Allison, Bass and Magee got involved, the release of elected officials’ cell phone records he requested, which are clearly public, was delayed.

The elected officials redacted calls not related to county business, and Allison, Bass and Magee reviewed them and appealed to the AG.

Dolcefino said he also went back and forth with the law firm when trying to obtain records from the former county judge only to later find out he had destroyed them.

Dolcefino said he experienced the same problems when filing open records requests in Waller County, which also retained Allison, Bass and Magee to answer them.

The bill Allison, Bass and Magee sent to Waller County came close to $90,000, he said.

Then, Dolcefino was hired by a landowner protesting a nearby landfill. Dolcefino was trying to find out whether elected officials had secret meetings with the company opening the landfill.

Dolcefino said Allison, Bass and Magee tries to make accessing public records as expensive as possible.

“For my company, we’ll spend the money to get them. But most people in the public who ask for records aren’t going to be able to afford some big legal battle to get them,” Dolcefino said. “That’s calculated. That’s calculated attempts to obstruct public transparency. Plain and simple.”

Mug shot controversy

In June, the Victoria County Sheriff’s Office stopped releasing mug shots to the public even though other sheriff’s offices put them on online databases as people are booked into their jails.

Before the policy change, the newspaper could ask Victoria jailers for mug shots by phone. Jailers would then email them the same day. Now, mug shot requests are sent to the records administrator, who works from 9 a.m. to 5 p.m. Monday through Friday. They are handled as open records requests. Some are released a few days later; others are not. When they are not, the sheriff’s office asks the AG for an exemption.

Basic information also is sometimes being withheld.

On Jan. 14, a reporter sent an email to a sheriff’s office employee asking for information about a report of animal cruelty.

The email was treated as an open records request and sent to the AG for an opinion on whether the information should be withheld because the investigation was ongoing.

In September, the newspaper received a heavily redacted incident report.

It had only two, full sentences. They read: “On 1/14/2016, a Victoria County Sheriff’s Office deputy responded to the 400 block of Vernon Street in reference to animal cruelty. It was reported a subject was causing harm to non-livestock animals.”

It was the kind of information the reporter was seeking initially, but it was sent eight months later and presumably after the request first was reviewed by the Austin-based law firm.

The newspaper also recently started filing daily open records requests for the sheriff’s office incident reports after readers complained they were not seeing information about criminal activity in their neighborhoods. These incident reports are open by law, and many law enforcement agencies post them daily without being prompted by an open records request.

The sheriff’s office said that a clerk’s misunderstanding caused the reports to not be displayed and that they are now available.

Aleshire, a former Travis County judge and tax assessor-collector, said the solution to the cost of transparency is for governmental bodies to preemptively post the most-requested records known to be public online.

Larsen, who works with the Freedom of Information Foundation of Texas, said Zeller describing open records requests as “exploding” is self-serving.

“What’s ‘exploding’ is the number of requests for an attorney general ruling because they want to employ procedural delays and limit what gets released,” Larsen said.