City of East Mountain faces lawsuit claiming Texas Public Information Act violation

By Christina Lane
Longview News-Journal
Originally published Dec. 2, 2016

A new lawsuit filed against the city of East Mountain claims it violated the Texas Public Information Act.

The lawsuit was filed Thursday in the Upshur County Clerk’s Office by Lester Glover, an East Mountain resident who has lived in the city since April 2012. In the lawsuit, Glover is seeking for a court to order the city to deliver complete public information per Glover’s open records request as well as costs for litigation and attorney fees.

The city of East Mountain and its attorney’s office declined to comment on the lawsuit, citing that neither office had yet received a copy of it.

This is the second lawsuit filed against the city in the past month. In November, a resident filed a lawsuit with the city because Betty Davis serves as police chief and city administrator, which according to the lawsuit is a violation of the Texas Constitution.

According to the new lawsuit filed Thursday, Glover filed a public information request in February with the city. In the request, which was included as an addendum to the lawsuit, Glover requested a list of registered voters in the city; a list of people who had applied to run for election; a copy of requirements for running for office; a copy of the city’s budget for 2012, 2013, 2014 and 2015; a copy of the city’s audit for 2012, 2013, 2014 and 2015; and a copy of the city’s financial statement, including monthly bank balances at the end of each month for all city accounts for 2012, 2013, 2014 and 2015.

When a request is made under the Texas Public Information Act, an entity has one of two options: it can either comply with the request or seek an attorney general’s decision on whether information can be withheld.

East Mountain did neither, according to the lawsuit.

On March 4, a law firm representing the city sent Glover a letter stating the city does not maintain a voter list but that perhaps Upshur County does, and adding that certain information, such as copies of the city budgets and audits, would be available for review at City Hall.

The letter from attorney Lance Vincent stated that the city is unsure of whether there was an audit for the 2012 fiscal year and that “the city is not in possession of a financial statement, or document, containing a list of monthly bank balances held by the city for the years 2012, 2013, 2014 and 2015. However, all attempts will be made to locate documents which contain information regarding the bank balance for each respective month for inspection.”

Vincent went on to write that many records that Glover requested are maintained in bound volumes, “which are stored and maintained in offsite storage facilities.”

“In order to make these documents available for your inspection and possible duplication, the city will first need to locate, retrieve, review and assemble the documents,” he wrote.

Vincent wrote that he thought all documents could be made available by March 17 and that the city also could provide a cost estimate for making copies of the documents at that time.

On March 14, Glover sent a letter back to the city stating he had requested copies of the information and was re-requesting copies of the information. He also further requested to know the scope of employment for the law firm Ritcheson, Lauffer and Vincent and its rate schedule.

On March 29, the law firm mailed Glover a statement of charges, showing that he owed $240.78 for the copies. A receipt from the city shows Glover paid for the charges March 31. The city did not mail documents until April 8.

“The city’s delay in producing the information is inexcusable. If the city’s record keeping was so incompetent that retrieving its bank statements for the most recent four years was now a difficult undertaking, the information is available online. Or the bank could have made copies for the city,” attorney Andrew Korn wrote in the lawsuit for Glover. Korn also is the attorney representing Gari Bellis, who filed the November lawsuit against the city.

When the city provided the information, Korn wrote that the paper copies from Spring Hill State Bank were “illegal in at least four material ways.”

“First, the city improperly limited its production to documents in the city’s ‘possession.’ Second, the city failed to include copies of checks that are referenced by number on the statements of account and are attachments to the statements. Therefore, copies of the checks had to be produced. … Third, the city redacted a portion of every page produced. And pages were missing from the statements of account that were produced.”

And fourth, Korn wrote, the city failed to produce copies of the statements of account for several accounts, including the general fund, reserve fund, police department seizure funds, special water deposits, municipal court and other accounts, for various months during the years Glover had requested.

“The city had no basis for redacting any of the information. The city had no basis for removing pages from bank statements and failing to include copies for the checks that are attached to bank statements. The attorney general did not authorize the city to withhold any information, nor did the attorney general allow the city any exemption from disclosure,” Korn wrote. “The city’s redactions and incomplete production violates the Public Information Act.”

In copies of bank statements attached to the lawsuit, various lines of expenses are shown to be redacted throughout the bank statements.

In the lawsuit, Korn wrote that many of those items are “light redactions attempted to conceal expenditures on meals.” For example, one bank statement redaction is shown to be for a purchase at Cotton Patch CafĂ©, another is for a meal at Tumbleweed Steakhouse in Gladewater, another is for a meal at Pietro’s in Longview and another is for Golden Chick in Longview.

The city also redacted the names of people, businesses or organizations to whom large amounts of money was transferred. A bank statement from June 30, 2015, through July 31, 2015, shows the city transferred $50,000 and $10,000 to someone, but the name of the person, business or organization was redacted from the bank statement.

Korn wrote that those redactions were heavy and that the names are well concealed from being able to be read beneath the marker.

According to the lawsuit, the city charged Glover “twice the reasonable hourly rate for city personnel to prepare the incomplete production of bank statements.” Attachments are then included to the lawsuit that showed East Mountain charged $30 per hour, while Gilmer charged $15 per hour to complete a public information request.

The lawsuit seeks a writ of mandamus compelling the city to deliver complete and un-redacted copies of the public information to Glove, costs for litigation and attorney fees incurred by Glover, post-judgment interest and other relief.