As you all likely know, last week I revealed to you how Veronica Escobar has unilaterally decided that any emails, text messages or any other communications on her private devices regarding the letter to repudiate El Paso Police Chief Greg Allen are not public information. Some of you may have seen the August 4 coverage of this issue on KVIA. In that news coverage, County Attorney Jo Anne Bernal is quoted as stating that if I am not in agreement with Escobar’s decision not to release the public records under her custody, that I can “request an enforcement action from the attorney general’s office.”
I intend to just that, but I need your help.
This is a classic example of how government officials use the legal infrastructure paid for by your tax dollars to impede you from receiving the records you deserve as taxpayers of the county. Veronica Escobar not only sought legal advice from the County Attorney’s office consisting of multiple attorneys, but Escobar also has the legal resources of the tax-payer funded county attorney’s office to litigate her refusal to release public information records.
I do not have the luxury of a tax funded job to spend unlimited hours pursuing this and much worse, I do not have a battery of attorneys at my disposal to guide me through the complex legal process to ask the Texas Attorney General’s office to intervene.
However, I have something more important than all of that, I have those of you who value open and transparent government to guide, help me and support the effort to ensure that Veronica Escobar complies with the law.
If you value open and transparent government than I ask you to help me by:
1. Sharing this call for help with all of your family, friends, coworkers and neighbors.
2. Sign the change.org petition (link) to show Veronica Escobar how seriously her constituency wants her to comply with her pledge to be open and transparent about County business.
3. Review my proposed plan below and offer suggestions.
4. Ask your lawyer friends for advice on how to best word the letter to the Texas Attorney General as well as to offer suggestions on other avenues to force the disclosure of the public records.
5. Offer any suggestions you may have on what else I should be doing or what I may have missed.
My Plan to Compel Veronica Escobar to Comply with the Open Records Law
My plan is simple, it is my belief that Veronica Escobar does not have the authority under the Texas Public Information Act to unilaterally decide what is public information records and what is not. In order to compel her to comply, I need to have the Texas Attorney General intervene.
I foresee two problems. The first is that I am not an attorney and therefore I do not fully comprehend the legal nuances on how to proceed, especially against the well-funded tax-based County Attorney’s office and their battery of attorneys. The other issue I believe may impede my pursuing this to the end is the fact that I am not a Texas resident nor do I have real property in Texas. Therefore, it is my belief that the County will argue that I have no legal standing.
Finally, as I understand it, the Texas Attorney General does not accept requests to intervene from non-governmental bodies. As I read the chapter on “civil enforcement” it seems to me that I must file a claim in District Court. That claim must be filed in El Paso County. I do not have the money nor the time to travel back and forth between Florida and Texas to pursue this matter. Maybe, one or more of you would like to use my documents to file suit on behalf of the taxpayers of the County.
Although there seems to be several impediments I am not about to give up. This is the plan I have come up with:
1. Bring attention to this matter in order to create grassroots pressure to force Veronica Escobar to comply with the law by either seeking a Texas Attorney General ruling or by releasing all of the records in her possession regarding El Paso Police Chief Greg Allen.
The first step is this call for help. The second one is asking each of you to spread the word and sign the petition asking her to comply with the law. You can access the petition at: https://www.change.org/p/martin-paredes-request-for-veronica-escobar-to-submit-public-records-for-review-by-texas-attorney-general?
2. Find a way to force the Texas Attorney General to compel her to comply.
The first step in forcing the AG to intervene is simply by sending them a letter. I have a draft letter below for you to review and make suggestions. I plan on submitting the letter on August 12, 2016. I will include the petition in the letter to the AG to show the community support behind it.
The second step is finding an attorney or law firm willing to take this on, on a pro bono basis on behalf of the County of El Paso taxpayers. I will make several calls to freedom of information advocates asking for referrals. If any of you have any suggestions, please feel free to send them my way.
3. I will keep you all updated as to the progress via my blog. Keep in mind that this is a long process and therefore there will be long pauses between updates, but rest assured that I will keep you updated.
My Proposed Enforcement Action Letter to the Texas Attorney General
August 12, 2016
Office of the Attorney General
Open Records Division
P.O. Box 12548
Austin, Texas 78711-2548
To Whom it May Concern:
Pursuant to the Texas Public Information Act, specifically Subchapter H; Civil Enforcement, I hereby request that the Texas Attorney General rule whether El Paso County Judge Veronica Escobar must release public information records requested by me on July 18, 2016.
BACKGROUND INFORMATION
On July 8, 2016, several El Paso County elected officials held a press conference at the Court House in response to the Dallas police officer deaths. Immediately after the press conference, El Paso Chief of Police Greg Allen made some controversial comments about the Black Lives Matter group.
The following day, July 9, 2016, El Paso County Judge Veronica Escobar sought and received a legal opinion from the County Attorney about Escobar’s use of her private email account to “reach out to community leaders regarding the statements made by the EPPD Chief of Police.”
On the same day, Veronica Escobar sent out a letter from her personal Gmail account to Mayor Oscar Leeser, El Paso city representatives, Texas Senator Jose Rodriguez, US Congressman, 16th District Beto O’Rourke, State Representative Mary Gonzalez, State Representative Cesar Blanco, County Commissioner David Stout and EPISD Trustee Susie Byrd.
On July 18, 2016, I filed the following request with Veronica Escobar seeking public information records as follows:
“Pursuant to the Texas Public Information Act please provide 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.
In providing the responsive documents, please include the following email accounts vgaescobar@gmail.com, susiebyrd2009@gmail.com, diegotolbert@gmail in addition to the official government email accounts for each sender/recipient and any additional personal emails accounts used to transmit any messages responsive to this request.”
On July 29, 2016, I received the following response from the County Attorney’s office to my open records request:
“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.”
REQUEST TO THE TEXAS ATTORNEY GENERAL FOR CIVIL ENFORCEMENT UNDER 552 SUBCHAPTER H
In a KVIA TV newscast posted online at KVIA.com on August 4, 2016 (Escobar defends decision not to release emails regarding EPPD Chief Allen; Villasana, Joe and Hunt, Darren), Veronica Escobar is quoted as stating:
“Many of us were talking on the phone or texting each other” in regards to the comments made by the police chief after the press conference.
The letter to city officials asking them to repudiate Police Chief Greg Allen is signed by thirteen elected officials. Veronica Escobar signed the letter as “County Judge”. A copy of the letter is hereby attached as Exhibit A.
Pursuant to the Texas Public Information Act I hereby formally request that the Texas Attorney General compel County Judge Veronica Escobar to submit, for review by the Texas Attorney General’s Office, all communications regarding El Paso Police Chief Greg Allen’s comments that led to the creation of the July 9, 2016 letter to city officials.
Furthermore, I respectfully request that the Texas Attorney General rule whether the communications held by County Judge Veronica Escobar should be released under the Texas Public Information Act.
Why am I doing this?
I routinely receive comments from readers to my blog that no one is willing to do the right thing for El Paso taxpayers. I also firmly believe that Democracy is about knowing what your government is doing and if you can’t depend on elected official transparently informing their constituency on how they arrive at public policy, then how can the constituency have any control over their government?
This is our opportunity to ensure that transparent government prevails over politics. I need your help to accomplish this.
If any of you would like to file your own suit or request of the Texas Attorney General’s office, you are more than welcome to use any of my material. Just let me know what you need and I will provide it to you.
Please share the link to the petition to all of your family and friends and please encourage them to sign their name to it. The more public support we have the more attention the AG’s office is likely to put forth towards acting upon the request.
Martin
It easy to ask the Texas attorney General for a review. Hell you can send it by e-mail but we send an e-mail and a hard copy letter. Simple say why you believe you have a right to these records. As we told you last week get the media recording of Vero on the letter about Allen to the City she was presenting herself in a official capacity in these interview which could lend weight that she wasn’t acting as a private citizen but as the County Judge speaking to the elected officials at the city. Martin it doesn’t take a lawyer to do this.
If the TAG’s opinion is in your favor write a complaint to the County Attorney to enforce the TAG’s opinion and enforcement letter. Then if Vero refuses or the County Attorney refuses than you need a lawyer until then you can do all of this your self. If the County Attorney refuses to enforce the TAG’s enforcement order you bring ethics violation charges against the County Attorney in the County ethics commission. Martin there is a lot you can do before having to pay for a lawyer. Oh you also need to point out Bernal’s taking part in the letter and she should have recused herself and her office in this matter. Bernal ethically can’t play both sides of the fence.
How do I know this because a lot of this we have done in the past.
Martin make sure everything you do on this you let the local media know. See if Vero is claiming she is acting as a private citizen then she will have to get her own lawyer on her own dime and can’t use county resources to defend herself. See Martin it’s all about painting Vero and the County Attorney into a corner to force then to act and turn the records over.
Good letter and I agree with what Thomas is suggesting, particularly with regards to her use of county legal resources. And while she maintains use of her title in the signature block, isn’t relevant, I think it is. I don’t know a single executive who uses their title in writing letters as a private citizen. The fact that the letter called for action against a city employee and included all signatories’ titles should make it a matter of public record. Additionally, the Mayor’s response was that these individuals should have contacted the Chief privately. Does that sound like the response of someone who believes these individuals were simply expressing themselves as private individuals? The idea that public sector employees can be attacked by gangs of public officials for those officials’ political gain with no open records protections is chilling, particularly given the level of corruption found in El Paso politics.
Martin
All the other government officials on the letter you need to be filing an open records request with them too for their discussion with Vero and others about the letter. If once the discussion over the letter passed through a device own by governemtn and paid for by the tax payer then that discussion is a open record. Also Martin your into computer,Etc, need to being looking at IP addresses and routing of this discussion by text or e-mail if any of it routed though a government network or device it’s open record and it is fair game to open records and freedom of information act.
Also once again can’t stress to you the need to get copies of all the interviews done by Vero on the letter before media to support the contention she was trying to use her official position in government in this matter. In fact any interviews of officials who signed the letter and gave interviews you want a copy. Once again you are going to have to build a foundation to support your contention Vero and the others where acting or trying to project that they were acting in the their official capacities as an elected official. Oh Martin the first open record request we would send in this group would be Bernal.
Disclaimer: not a lawyer, not giving legal advice but only opinion and view from personal experience. Law for all!
My one experience with the TAG was very positive. HACEP stonewalled my request to see the resumes and applications for the CEO position back in 2007. The TAG came down firmly on my side. They have a broad interpretation of what constitutes a public document under the Open Records law.
Its been a while since i left Texas, but i don’t think the Texas AG has to always respond to a citizen. I recall a citizen enforcement action in a Texas District Court can be filed upfront or at a point. And also a the DA Office is mentioned in the code.
There was a recent federal case dealing with private smartphones of Govt Actors, it may have even been a SCOTUS case that supports your cause.
Ive been there done that re TPIA and FOIA in the past but would need to refresh. Good luck with it and hope you find interest by others and can Network etc. I think standing would be a issue, any El Paso County resident would have standing for sure. If you or they find a attorney, then if the attorney needs some ad-hoc free legal research they are welcome to email me carlstarrAThotmail.com
Correction, it was a IL State case…
http://www.governing.com/topics/politics/tns-emanuel-disclosure.html
In Private Email Case, Judge Rules Against Chicago Mayor
BY TRIBUNE NEWS SERVICE | JUNE 1, 2016
By Patrick M. O’Connell
A Cook County judge ruled in favor of the Chicago Tribune on Tuesday by declaring that Mayor Rahm Emanuel’s emails, texts and other communications are not exempt from disclosure simply because they are transmitted over private devices.
The judge denied Emanuel’s motion to dismiss the Tribune’s lawsuit, which alleges the mayor violated the state’s open records laws by refusing to release private emails and text messages about city business.
The Tribune asked a judge to order the mayor’s office to comply with a state Freedom of Information request and produce the documents. The lawsuit, filed in September, also seeks to have Emanuel declared in violation of the Illinois Local Records Act if he failed to preserve emails and texts he sent or received relating to city business.