On January 29, 2014, the city filed an appeal at the Court of Appeals. For an update on what had transpired prior to the city’s appeal filing you can read my article; “Texas Public Information Act and the City of El Paso”. As a quick update, shortly after Oscar Leeser took office with much fanfare the city and the media pronounced that the city had capitulated and that it had released all of the records. However the caveat that the city wishes no one would notice is that the city argues that it has released all of the records that it has in its possession ignoring what many, including me, are arguing that the city has a fiduciary responsibility to recover assets that belong to it. As an analogy, if someone steals a computer from the city, doesn’t the city have the obligation and the responsibility to the taxpayers to recover the computer?
More importantly is that the city is still spending taxpayer money in court filings to avoid meeting its obligations to the community.
In its latest filing the court is basically arguing that Judge Orlinda Naranjo’s court no longer has jurisdiction and therefore her last order is invalid. The city’s arguments are based on three legal points. The first is that the city has complied with the Texas Attorney General’s opinion that the city should release the public records in its possession. According to the city, it has fully complied because it has released all of the records that the city “has access to at the time the request was made”. The emphasis is part of the original court filing. Basically the city is arguing that it has asked Steve Ortega to voluntarily turn over the emails in his possession. According to the city’s argument, since Steve Ortega is no longer an elected official the city has no authority to compel him to comply.
The second argument made by the city is that sovereign immunity deprives the court of authority over the city because the city “it has complied, to the extent of its ability” with the Attorney General’s determination. This argument follows up on the notion that Steve Ortega is beyond the reach of the city’s ability to force him to comply.
The third and final argument made by the city in this appeal is that the government laws authorizing a suit to be filed for the demand of public records and a request to withhold the records are now moot because the evidence “that the circumstances” under which lawsuits may be filed “do not exist”.
Through all of the legal maneuvering being argued by the city, the bottom line is that the city is arguing that the court has no jurisdiction because there is nothing more the city can do. The city is arguing that it has no authority to force Steve Ortega to turn over his emails.
Although the city alludes to either the county or district attorneys having authority to prosecute for the release of the records the city also conveniently ignores that either prosecutor routinely argues that it will not prosecute unless a complaint is filed with the authorities. Of course, the party who owns the public records, under the law, would be the city and therefore it would have to be the one to file a complaint.
Think about that for a moment. The city argues in court that it has done all it could to recover the documents it must have to comply and since it has exhausted all means of forcing compliance it cannot be forced to do so by the court. Yet, in the same argument, the city argues that only the county or district attorney can enforce the recovery of documents in Steve Ortega’s possession yet the city has yet to file a complaint against Steve Ortega with either prosecutor.
Also, the city, in its filing, acknowledges that had the request for public records and had Steve Ortega being in office after the updated Texas Open Meetings laws had taken affect any emails in Steve Ortega’s personal email account pertaining to city business would have to be disclosed under the law. However the city goes to great pains to argue that the emails in Ortega’s possession are not subject to the updated legislation conveniently forgetting that the updated legislation did not create a new class of public records; it just clarified what constituted public records as per the law.
Bottom line, the city is arguing out of both sides of its mouth, on one-hand stating it has done everything it can so it should be left alone while arguing that it should not be forced to recover the property that it needs to comply because the property venue to do that are the prosecutors. Yet, the city has yet to file a complaint with the prosecutors. More importantly, contrary to Oscar Leeser’s pontifications that all of the records have been released he is still presiding over a city that continues to spend taxpayer money keeping Steve Ortega from having to comply with government transparency.
You can read the city’s court filing here.