Attorney general: Austin city manager candidates not a competitive secret

By Elizabeth Findell
Austin American-Statesman
Originally published Jan. 11, 2018

The city of Austin cannot withhold records showing who applied for its city manager position by claiming the information would harm the city competitively in a search for qualified applicants, the Texas attorney general’s office says.

Nor is the information a trade secret, a matter that would harm the search firm competitively or “highly intimate and embarrassing,” Matthew Taylor, an assistant attorney general in the open records division, wrote in his opinion.

The opinion says that the city and its executive search firm, Russell Reynolds, must turn over the bulk of the information the American-Statesman requested related to the search for a new city manager, including candidate applications. Austin may withhold only attorney-client privileged emails and some personal email addresses and cellphone numbers.

The opinion comes after Austin refused to release information the Statesman requested under the Texas Public Information Act. The city requested permission to deny the request to the attorney general, claiming its release would hurt Austin competitively. It also comes a month after the City Council voted to hire Minneapolis City Coordinator Spencer Cronk.

The opinion could provide some parameters to Boeing v. Paxton, the 2015 Texas Supreme Court ruling that Austin relied on in its arguments, which found that lease provisions between Boeing and the San Antonio Port Authority could be kept confidential because they could hurt the aerospace giant competitively. Texas cities since then have used the ruling to block release of everything from taxpayer spending on entertainment to contracts to feed schoolchildren.

Capital Metro also cited similar arguments last month in denying the Statesman’s records requests for information about applicants for the transit agency’s top job.

But the attorney general’s office rejected Austin’s claim that it was competing with even tiny cities such as Watauga and Sachse for qualified candidates and said competition for public employees is not a “competitive situation” under the law.

The Statesman sued the city for not releasing the information and, later, for leaving the location of a posted public meeting to try to avoid reporters while interviewing city manager candidates.

It’s unclear how the city will respond. Austin city spokesman David Green said only, “We are aware of the ruling and are evaluating next steps.” If the city still refuses to comply with the public information requests, it will have to sue the attorney general.

Statesman Executive Editor Debbie Hiott said it was encouraging that the attorney general’s office would not go along with the city’s “overly broad interpretation of competitive concerns” in releasing public information.

“Hopefully given this ruling the city staff will recognize the need for greater transparency going forward, and won’t allow themselves to be led by consultants into making decisions contrary to the public interest,” Hiott said.

The City Council last year voted unanimously to keep information about the city manager candidates secret until picking a finalist, upon the recommendation of search firm Russell Reynolds. The private-sector firm had never conducted a search for a city manager. The council later reversed itself and released six finalists’ names, after a bizarre episode in which council members raced away in vans to an airport terminal to try to stop Statesman reporters from staking out interviews.

In addition to rejecting Austin’s Boeing argument, this week’s attorney general opinion also rejected arguments that application information was a Russell Reynolds trade secret or an intimate nonpublic matter.

Even some portions of information that might have been confidential will have to be released after the city included redactions in the information it sent to the attorney general for his opinion. The office said it couldn’t tell what the redactions had blacked out, thus, whatever it was is now presumed public.

The attorney general gave Austin permission to withhold information related to a U.S. Drug Enforcement Administration agent, but it’s unclear whether that person was a candidate for city manager or had some other relevance.