Judge rules mostly in favor of county commissioner in open records dispute

By Ken Martin
The Austin Bulldog
Originally published July 27, 2015

In the public information lawsuit the Save Our Springs Alliance initiated against Travis County Precinct 3 Commissioner Gerald Daugherty, which was argued in court July 13, District Judge Stephen Yelonosky denied most of what the plaintiff sought.

But the judge left the door open as to whether the SOS Alliance could persuade the court to order Commissioner Daugherty or Travis County, or both, to change recently enacted policies regarding retention of and access to public records.

“There remains a question of the court’s jurisdiction, as a pure question of law, over a Declaratory Judgment Action seeking to enforce the Public Information Act. The parties have not adequately briefed this, so the court must defer a ruling on the plea to the jurisdiction in this regard until they have,” the ruling states.

Although the lawsuit is technically about whether Daugherty has properly complied with the Texas Public Information Act by providing all records requested by the SOS Alliance May 31, 2013, the larger issue is whether SOS can find ammunition in those records for slowing or halting plans to build State Highway 45 Southwest over the sensitive Barton Springs portion of the Edwards Aquifer.

SOS may seek to settle out of court

Lauren Ice, Kelly Davis, and Bill BunchLauren Ice, Kelly Davis, and Bill BunchKelly Davis, a staff attorney with the SOS Alliance, today told The Austin Bulldog that is too soon to know whether the organization will appeal Yelonosky’s decision.

Tony Nelson and Gerald DaughertyTony Nelson and Gerald DaughertyAlthough neither SOS nor Tony Nelson, the assistant county attorney representing Daugherty, have contacted each other in the wake of the July 23 ruling, she said, SOS will try to “work out a policy for Precinct 3 to comply with the Texas Public Information Act, which seems to be the remaining issue in the case. We will at least try to resolve that out of court.”

Nelson told The Austin Bulldog, “Obviously we are pleased with Judge Yelonosky’s rulings, which we believe are correct under the facts and laws that govern this case.”

“As for the SOS attorney’s desire to settle, it’s not our practice to negotiate our cases in the press. We will review the ruling and determine what steps to take next in representing Travis County and Commissioner Daugherty,” Nelson said.

SOS Alliance Executive Director Bill Bunch also filed a criminal complaint against Daugherty over the same public information request. That case was referred to an appointed county attorney pro tem for investigation and assigned to the court of a retired judge. The criminal case has been held in abeyance until the civil lawsuit is resolved.

If not successful, more action possible

Failing an out-of-court settlement, Davis said, she anticipates that SOS Alliance will file further briefings.

“We have common sense and fairness on our side,” she said, but her research has not yet found judicial precedent for ordering policy changes to ensure compliance with the Texas Public Information Act governing citizen access to government records or retention of those records under the Local Government Records Act.

If further legal action is needed, Davis said, SOS may seek an “affirmative order from the court that Daugherty’s Precinct 3 and/or Travis County need to adopt a more comprehensive, specific document retention and retrieval policy.” She said these current policies talk about document retention but not retrieval.

Retrieval of records was one of the big issues in Daugherty’s initial response to the SOS Alliance’s public information request, Davis said.

“His staff didn’t search what they were supposed to search,” she said. “We need procedures regarding retrieval of information.”