By Cindy Ramirez
El Paso Times
Originally published Feb. 24, 2016
An outside investigator found it “problematic” that the city’s public information officer determined which documents should have been released to the El Paso Times under an open records request the newspaper filed last year.
The public information officer, Juli Lozano, withheld two documents that other city officials had said were responsive to a Times request for records related to projects that were requested by City Council members, according to a report from Austin attorney Ross Fischer that was made public Wednesday.
One of the documents that was withheld seems to contradict City Manager Tommy Gonzalez’s longstanding contention that he was not aware of changes made to a list of streets to be resurfaced in former city Rep. Larry Romero’s district.
Fischer was hired by the City Council last year to, among other things, investigate whether city employees broke any laws in the handling of numerous open records requests from the El Paso Times last fall. He was hired primarily to investigate the roles Gonzalez and Romero played in the attempt to replace the city’s financial advisers, as well as what caused the delay in the bond sale to fund the Downtown ballpark in 2013.
Romero resigned earlier this month, citing health issues after having a stroke in December.
The Times last year sought documents related to changes made to the streets plan approved by the council in 2012, as well as documents related to an attempt to terminate a contract with the city’s financial advisers and replace them with a firm for which Romero once worked.
Fischer said it appears an “inadvertent mistake” led the city to initially fail to disclose numerous emails related to the city’s attempts to replace its financial adviser.
The city also withheld two documents related to the Times’ request for information on projects submitted for consideration by individual council members, which included resurfacing of streets in Romero’s City Council district. Fischer said withholding those documents was “more problematic.”
Lozano, the city’s longtime public information officer, was questioned by Fischer about her role in reviewing documents related to the request. Lozano is part of the city manager’s executive leadership team. She didn’t return calls for comment Wednesday.
In her responses to Fischer, Lozano said that she and Monica Lombraña, then interim director of the Capital Improvement Department, determined which documents provided by other city employees were responsive to the Times’ request. The two then decided which documents to forward to the city attorney’s office to review.
That office in turn would determine whether the documents were responsive to the request or could be redacted under any legal exemption under the Texas Public Information Act.
One of the documents in question was titled “Capital Improvement Program — Priority Projects by District.” It was provided by Fred Lopez of the Capital Improvement Department to Martin Bartlett of the in the city manager’s office. Lopez was among numerous city employees asked by city officials to turn over documents responsive to the Times’ request.
The second item on the priorities list, dated May 4, 2015, was “District 2 resurfacing plan,” a list of changes to a plan approved by the City Council in 2012.
Romero requested a number of changes to the plan, including resurfacing the street in front of a home he owned at the time and subsequently sold.
Gonzalez has said he was not aware of any changes to the 2012 plan, and asked only that Lopez seek input from council members on possible changes.
But the document withheld by the city indicates that “city manager review” of the resurfacing plan was “complete.”
El Paso Times Editor Robert Moore said the city clearly violated the Texas Public Information Act by withholding the requested documents.
“One of the withheld documents shows that the city manager had reviewed the District 2 resurfacing plan, something the city manager had denied,” Moore said. “It’s hard to escape any conclusion other than that city officials attempted to cover up a document that contradicted the city manager’s public statements.”
In her response to Fischer, Lozano denied withholding the document because it might be seen as contradicting Gonzalez’s statements. She said the document in question did not reflect projects “submitted by individual council members” and instead were part of the capital plan.
“Her conclusion is questionable,” Fischer states.
“The concern is that the documents … were (1) responsive and (2) withheld because they did not comport with the city manager’s public statements that he gave only ‘general direction’ with regard to street resurfacing priorities.”
Fischer’s report says that improperly withholding information is a misdemeanor punishable by up to six months in jail and a $1,000 fine.
The incidents don’t appear to reflect systematic problems with the way the city handles public information requests, according to the preliminary findings by Fischer.
Fischer recommended that the city prohibit the public information officer or her designee from determining which documents are responsive. Instead, he recommended that all documents initially compiled in response to a request be provided to the city attorney for review.