Yesterday I gave you an example of how an email between two elected officials; actually Donald Trump has not been elected yet, but roll with me, and pretend that he has. As you likely surmised by now, Veronica Escobar is the elected official that has decided that she is the only judge of what is public information or not. This issue came about because I was questioning how social media was going to factor in with the Texas Public Information Act. While I was contemplating this, Ali Razavi (MaxPowers) was submitting an open records request to Veronica Escobar asking for “all correspondence sent to and from County Judge Veronica’s county and personal email, and via text on personal cellphone, concerning: Organizing of a press conference held on Friday, July 8th, 2016 about the Dallas shooting; and Responses to comments made by El Paso Police Chief Greg Allen following the press conference.”
Razavi blind copied me on a response he received from Veronica Escobar on July 18, 2016. Ali Razavi submitted his request on July 11, 2016. On July 12, 2016, before I became aware of Razavi’s open records requests to Veronica Escobar, I submitted four open records requests to the City of El Paso asking for email, Facebook and other social media communications from the personal accounts of some elected officials. As I had written before, I was curious on what kind of a response I would receive.
It occurred to me that Ali Razavi’s quest for public information from Veronica Escobar could become a litmus test to what Escobar released to him. In response to Razavi blind copying me, I wrote to him advising him that I would submit my own open records request to Veronica Escobar, I wanted to piggy back on his, and that I would write about my experience.
I was incredulous when I read Veronica Escobar’s response to Razavi. Escobar sent the following: “the County of El Paso has no records responsive” to his request. Veronica Escobar added “any information in my personal possession do not constitute ‘public information’ under the Texas Public Information Act.” Escobar then added that the information “was not written, collected, assembled, or maintained by law or ordinance or in connection with the transaction of official business by the County of El Paso or for the County of El Paso.” Escobar further added that “no public money, time or resources were used in writing, producing, collecting, assembling or maintaining the information.” Veronica Escobar then concluded; “Finally, none of the information in my personal possession pertains to the transaction of official business of the County of El Paso. Any information in my possession was written, collected, assembled, or maintained in my personal political capacity, not in my official capacity as an officer acting on behalf of the County of El Paso.”
Clearly Veronica Escobar had given this much thought because she used the appropriate legalize language to differentiate between public records subject to the Texas Public Information Act and personal records outside of the transparency laws. As Razavi continued to challenge her refusal to release her records, I submitted my own open records and decided to explore the issue further.
In one of his clarifications to the assistant county attorney that was now handling Razavi’s request to Veronica Escobar, Razavi reminded them that Escobar had told KVIA, in a press conference, that text messages were exchanged between her and others about Greg Allen’s Black Lives Matter comments that resulted in the letter attempting to get the city to repudiate Allen. The letter was created by Escobar and signed by various elected officials. Razavi also reminded the County that the Greg Allen letter was signed by Veronica Escobar in her official capacity as County Judge.
On July 25, 2016, it was revealed to Razavi, and subsequently to me that County Attorney Jo Ann Bernal had given Veronica Escobar a legal opinion, as the County Attorney, on July 9, 2016. As you might remember, on July 8, 2016, El Paso Police Chief Greg Allen made a controversial comment regarding the Black Lives Matter group.
As a response, the following day, a Saturday, Veronica Escobar organized a letter asking the city council and the city mayor to officially repudiate Greg Allen’s comments. According to what we know today, Veronica Escobar asked Jo Ann Bernal if she should use her “private gmail [sic] account to reach out to community leaders regarding the statements made by the EPPD Chief of Police.”
Bernal reminded Escobar that the County’s Ethics Code and Texas law prohibited her from using County resources for “political matters.”
Escobar had used the same language in Bernal’s response to her to keep Ali Razavi from receiving copies of the text messages that Escobar has already acknowledged sending to others about the police chief’s comments.
What was conveniently ignored was this additional language that Bernal had sent Escobar in her legal opinion; “although the Chief’s statements could become official County business”.
On July 29, 2016, I received a response from the County to my own open records request. It stated:
“On July 18, 2016, County Judge Veronica Escobar received your Public Information Act request for the following: copies of any emails, text messages or social media private communications between Veronica Escobar and any El Paso elected officials, including but not limited to Susie Byrd, EPISD Trustee, Claudia Ordaz, City Representative and/or Jim Tolbert, City Representative – sent or received on July 8 and July 9, 2016.
Based on the requested dates, I am assuming you are primarily interested in any communications related to Chief Allen’s comments following the press conference on the Dallas shooting incident, but you do not specifically say that. Thus, I did ask Judge Escobar to look for any communications she had with elected officials on the two designated days. Judge Escobar has informed me that she has no records responsive to your request which were created or maintained on County equipment, servers or email accounts.
Concerning documents in Judge Escobar’s personal possession which were created and maintained on her personal devices or sent or received by her personal email or cellular phone, there is only one document which we believe constitutes “public information” pursuant to section 552.002 (a) of the Texas Government Code. There is an email sent from County Attorney Jo Anne Bernal to Judge Escobar on July 9, 2016 memorializing Ms. Bernal’s advice to Judge Escobar. Judge Escobar has agreed to waive any attorney-client privilege concerning this email, thus allowing me to release it to you at this time (See attached).
Specifically concerning Chief Allen’s comments, Judge Escobar contacted the County Attorney, Jo Anne Bernal, on Saturday, July 9, 2016, to discuss the Judge’s desire to respond to the comments made by Chief Allen following the press conference about the shooting in Dallas. Judge Escobar informed Ms. Bernal that she wanted to respond to Chief Allen’s comments in her individual capacity, and not in an official capacity on behalf of the County of El Paso. Ms. Bernal advised Judge Escobar that if the response was to be in her individual capacity and not on behalf of the County of El Paso, the County Judge should not use any County resources (which would include County supplies, personnel, equipment, or computer/email systems) in preparing or delivering the response. As a result of this exchange, Judge Escobar did not use any County resources in any of her communications concerning the response to the comments made by Chief Allen. This is why there are no emails or texts from any county equipment or on any County computer systems or in the possession of the County of El Paso.
Concerning any other documents response to your request created or maintained by Judge Escobar on her personal devices or sent or received by her personal email or cellular phone, we do not believe the information is “public information” pursuant to section 552.002 (a) of the Texas Government Code. The information was not written, collected, assembled, or maintained by law or ordinance or in connection with the transaction of official business by the County of El Paso or for the County of El Paso. Further, no County of El Paso public money, time or resources were used in writing, producing, collecting, assembling or maintaining the information. Finally, none of the information pertained to the transaction of official business of the County of El Paso. Any responsive information in her personal possession (except for the released email from Ms. Bernal) was written, collected, assembled, or maintained in her individual capacity, not in her official capacity as an officer acting on behalf of the County of El Paso.
Since the information responsive to your request does not meet the definition of ‘public information’ under the Texas Public Information Act, the information is not subject to the requirements of that Act. Since the information is not subject to the Act, Judge Escobar is not required to seek a ruling from the Attorney General concerning any personal communications she wishes to withhold. It is completely within her discretion whether or not she chooses to release her personal information.
This does not mean to say that any communications between Judge Escobar and members of the city council would not constitute ‘public information’ for the City of El Paso. Comments made by a member of the community to a member of city council concerning the actions of the city police chief may be ‘public information’ for the city. You would need, however, to request that information from the city.”
You can clearly see that the argument that Veronica Escobar is making is that her communications were “political” in nature made as a “private individual” and therefore not subject to the open records laws.
The more I thought about her stance the more dangerous to government transparency it became for me.
In essence, Veronica Escobar has decided that she is the only one qualified to decide what is public information or not.
In tomorrow’s edition I am going to explore this further and show you that Veronica Escobar’s letter in regards to El Paso Police Chief Greg Allen was political in nature. Before I close, focus on the last sentence of the County’s response to me and notice the part where the County acknowledges that communications to city officials may be public information.