Updated Thursday, July 12, 2012 at 2:23 p.m. CDT
It is, and continues to be, the City’s position that the requested petitions are open and are subject to disclosure. The City’s initial concern was that some information, such as the home addresses of peace officers, or the home addresses of City employees that have signed a confidentiality form, might be confidential under State law. In addition, the petitions contain the individual Voter Registration Numbers of citizens. When it appears that information might be confidential under State law, the Public Information Act provides a specific procedure for seeking an Attorney General Opinion, which the City of Tyler has done.
After following the standard process for seeking an Attorney General Opinion, the City of Tyler has contacted other entities to get their input regarding the information contained in the alcohol petitions. The City has learned that other jurisdictions have received similar requests, and have released petitions without redactions. Similarly, it has been learned that the City of Dallas received a public information request when it went through the alcohol petition process, and Dallas released the alcohol petitions without redacting any information.
State law provides that when information cannot be released within 10 business days after receipt, the City must give the requestor a reasonable date when the information will be available. The City initially provided a release date of on or before August 13, 2012, based upon the ongoing verification process and the possible need to redact potentially confidential information. However, after contacting other cities and the Secretary of State’s Office, the City of Tyler has determined that it will be able to release the requested information, without any redactions, by close of business on July 13, 2012. The City is taking a calculated risk in releasing the requested information prior to receipt of an Attorney General Opinion, but the City is also balancing the public’s right to obtain information contained in the petitions with the individual privacy interests and has concluded that the information can be released earlier than the August 13, 2012 deadline.
The City received payment today for the associated costs of producing the records, so the City of Tyler can now proceed with copying and releasing the documents.
“Stand Strong for Tyler,” a local political action committee formed to oppose proposed local option elections for beer and wine sales, is questioning city officials' inability to comply with a public information request and turn over more than 9,000 voter signatures.
The request for the petitions to allow a November election for the sale of beer and wine was made June 26. By law the city had 10 days to comply.
The Smith County Election Department has already turned over more than 7,800 signatures for voters in Justice of the Peace Precinct 2. Karen Nelson said the county is still in the process of verifying signatures.
“We're being sandbagged by the city. The city sent us a letter with mundane excuses, all of which aren't legit,” said Mike Daniels, pastor at Landmark Baptist Church and group member. “It makes me suspicious that there is pressure over there to not give (the signatures) to us.”
City spokeswoman Susan Guthrie said the city is working as quickly as possible to accurately verify the signatures. She said the city clerk's No.1 priority is verifying the signatures by the July 23 deadline, which is required by law.
While the request is a priority, it represents an additional burden on city staff and possible confidentiality questions regarding law enforcement and city personnel whose information appears on the petitions, she said.
City attorney Gary Landers said in certain circumstances public information requests can be returned within “reasonable time.” He offered Aug. 13 as a possible date. The city council is expected to call the election on July 25.
Landers said the group can file a lawsuit to halt the election if it finds irregularities.
Daniels said if there were confidentiality concerns, the people should not have signed the petition. He said the group has no agenda other than to confirm the signatures and make sure each name belongs to a registered voter in the appropriate jurisdiction. He said the group will file a complaint with the state and will possibly take legal action.
“We're prepared to do that, but it costs us money and it costs the city money,” he said. “We want to be fair but we want to be treated fairly.”
The City of Tyler released a statement this morning, prior to the press conference. Here is the full text of the city news release:
“The City has received two public records requests for copies of the petition sheets that contain 9,000 plus names,” said City Attorney Gary Landers. “We certainly believe these documents are public; however, we do have questions about whether certain pieces of information on the petitions are public and have asked the Attorney General for an opinion.”
The City of Tyler is a governmental entity governed by the Texas Public Information Act at Texas Government Code Chapter 552. When a public information request is received, the City must follow specific procedures and guidelines established in the Act. These procedures are separate and apart from the regulations governing an election. Under the Public Information Act, information is generally construed to be open, unless there is a specific exception established by law.
When a public information request is received, Texas Government Code Section 552.221(a) generally provides that any open information must be produced within a reasonable time. However, the State law also recognizes that there may be some situations where it is not possible to produce documents quickly. In that event, Texas Gov't Code Section 552.221(d) provides that if the requested information cannot be provided within 10 business days after the date of receipt, the City shall certify that fact in writing and set a date and hour within a reasonable time when the open information will be available.
In this particular situation, the City is currently in the process of trying to meet a State law deadline for certifying signatures in the Petitions to determine whether or not the City Council should call an election. The City received a written request on June 26, 2012. Accordingly, the City has properly and timely complied with Texas Government Code Section 552.221(d) by confirming in writing that the expected date for release of the open information will be August 13, 2012.
Generally speaking, the City is not opposed to release of the requested petitions. Also, the Act generally allows for inspection of records. However, in this particular instance, it appears that the individual petitions may contain at least some confidential information. Accordingly, individual inspection of the records is not an option.
Texas Government Code Sections 552.024/552.117/552.1175 protect the home addresses of current and former City employees, and peace officers, in certain circumstances. Therefore, the home addresses of City employees/peace officers contained in the Petitions could possibly be confidential under the State law. In addition, it is unclear whether the Voter Registration Numbers of individual citizens, including City employees/peace officers, are open or confidential.
The Public Information Act, at Texas Government Code Section 552.353, establishes criminal penalties for both the release of confidential information and the withholding of open information. When a governmental body believes that requested information might fall under one of the listed exceptions for confidentiality in the Act, Texas Government Code Section 552.301 expressly authorizes a governmental body to request an opinion from the Texas Attorney General. The law requires written notice to the requestor when an opinion is sought from the Attorney General, as well as the specific reasons why the governmental entity believes that information may be confidential. Such notice was provided to the requestors in this instance.
While the City agrees that some of the requested information is open, the City could also be subject to criminal sanctions under Texas Government Code Section 552.353, if it were to release information that is otherwise confidential under the Act. While the City wants to ensure strict and prompt compliance with the requirement to release “open” information, it also wishes to protect any applicable privacy rights of citizens and to ensure that no “confidential” information is released in violation of the Act.
The City of Tyler received a written public information request on June 26, 2012, and sought an opinion from the Texas Attorney General in writing on July 9, 2012. Accordingly, the City has properly and timely met the State law requirements by timely seeking an opinion from the Texas Attorney General pursuant to Texas Government Code Section 552.301.
In addition to the ability to seek an Attorney General Opinion regarding possibly confidential information, governmental bodies also have the ability to seek pre-payment for expenses and costs associated with producing records in response to a request. Costs for producing records, including labor and overhead costs, are generally set forth in Texas Administrative Code Section 70.10. The Act, at Texas Government Code Section 552.2615, provides that if a request for copies of public information will result in the expenditure that exceeds $40.00, the governmental body shall provide the requestor with an itemized statement of the estimated charges, including allowable charges for labor and personnel costs. Section 552.2615(b) states that a request is considered to be withdrawn if the requestor does not respond in writing within 10 business days after the statement is sent that the requestor will accept the charges, modify the request, or send a complaint to the Attorney General regarding alleged overcharging. In addition, Texas Government Code Section 552.263 authorizes the City to require a bond for payment of costs or cash prepayment for preparation of copies of requested information, when the overall charge is estimated to exceed $100.00. Due to number of pages of petitions and the estimated length of time to review, an itemized statement was sent by the City to the requestor on July 5, 2012, indicating that the estimated cost for producing the records will be $330.30. Accordingly, the City has properly and timely complied with the cost/charges provisions in the Texas Government Code when seeking pre-payment from the requestor.
The Public Information Act governs how a governmental body responds to a Public Information Request. Texas Government Code Sections 552.005 and 552.0055 recognize that the Public Information Act does not affect discovery rules, discovery requests or subpoenas issued under the rules of civil or criminal procedure. Accordingly, any information needed or ordered by a judge for trial or court proceedings would not be governed by the Public Information Act.
In any case, the City will provide information as soon as reasonable clarification regarding concerns is obtained.
Updated Thursday, July 12, 2012 at 10:58 a.m. CDT