Bryan councilman files complaint with AG over nearly $1,000 open records charge

The Eagle
Originally published April 17, 2016

In his ongoing effort to learn how much the Traditions Club development has cost the city, Bryan city councilman Mike Southerland filed an open records request earlier this month asking for a spreadsheet of expenditures and revenues from multiple fund accounts related to the project.

For staff to fill such a request, the city said, it would cost him $998.

City officials estimate at least 40 hours of labor at $15 an hour, $228 in programming minutes, $165 in overhead charges and $5 for paper will be needed to complete the request, which Southerland filed April 5 under the Texas Public Information act. A day after receiving the cost estimate, Southerland filed a complaint with the Texas Attorney General’s office asking if he should have to pay, and if so, how much.

If the attorney general’s office doesn’t rule the fee for the open records request should be reduced or waived, Southerland said the next step will be to sue the city for the information.

Southerland argues he should not have to pay for the request because he has an inherent right to the information as an elected official, and he is requesting the information in his official capacity. Bryan City Secretary Mary Lynne Stratta, who handles open records requests for the city, said he’s right in that sense — a council member never has to file a formal open records request under the public information act for access to city records.

The problem, Stratta said, is that once an open records request is filed, an elected official will be charged just like any other citizen, as it’s the city’s policy not to waive any fees over $1.

Stratta said she explained this to Southerland multiple times before and after he filed the request.

Southerland, though, feels a formal open records request is the only way he’ll be able to obtain the information.

“We’ve asked for this since February through the city manager, and he wouldn’t give it to us for whatever reason,” Southerland said of his and councilman Rafael Pena’s pursuit of the Traditions expenditures. “So I thought if we did it through open records they would be compelled to do it.”

Southerland and Pena have led a charge to find out how much the city has spent on the Traditions development, even requesting to end, suspend or audit the city’s agreements with Traditions Acquisition Partnership. In January, it was decided City Manager Kean Register would obtain quotes from several outside auditors before the City Council is asked to vote on whether to pursue an audit.

Southerland’s open records requests asks for a spreadsheet of all expenditures and revenues from fiscal year 1998 to the present by date, vendor name, expenditure or revenue account, project number and amount. Southerland believes adding up the amount spent in the tax increment reinvestment zone for the development, how much each city department has spent on the TIRZ out of their respective funds and associated land transactions will paint an accurate picture of how much has been spent.

“There’s some decisions I think need to be made, because it’s way beyond any normal economic development operation,” Southerland said. “The only thing I can conclude after all of this stuff we’ve been through is that something’s wrong and they’re trying to keep it from us.”

Southerland said he normally only has to ask staff to receive information or documents, and this is the first time he’s had to file an open records request. The Eagle has filed an open records request under the Texas Public Information Act for copies of all formal requests filed by city council members in 2015 and 2016.

Jim Hemphill, an Austin attorney with experience in open government law and a board member of the Texas Freedom of Information Foundation, said one issue in this case is that a governmental body is not required to create a new document in response to a public information request. Still, Hemphill said “it’s kind of a weird position” for the city to charge a member of its government body for access to its own information.

“Unless the request is hugely overboard and burdensome, it certainly should be in the spirit of the public information act that there shouldn’t be an excessive charge,” Hemphill said.

Assistant Finance Director Will Smith, though, said there’s a reason why Southerland’s request will take so long and cost so much to fill.

The information Southerland requested is stored in a database that’s about 20 years old and isn’t designed for creating a new, custom report. Plus, staff will have to write custom queries to pull out each transaction and vendor and an additional code to tie them together. Then, Smith said, staff will have to reconcile thousands of lines of data that spans an 18-year period to general ledger reports to make sure all of the data has been collected and that each transaction matches up.

It would take two to three staff members to accomplish the task, Smith said.

Southerland points out it’s the City Council’s duty to “see that all other officers of the city faithfully and efficiently discharge their duties,” and that he’s been told several times that he doesn’t need the information he’s requesting.

“When a citizen says, ‘Mike, why are they spending so much money out there?’ what am I supposed to say?” Southerland said. “‘I don’t know’?”