TxDOT, Cintra Zachry sue Attorney General to keep records in dark
Some say lawsuits a tactic to delay negative news
March 16, 2006
Under Texas open records laws, state and local governments cannot withhold information that has been requested unless the attorney general's office agrees that the records can legally remain secret. If the attorney general disagrees, the government or agency has two choices: release the documents or sue the state.
Most governments give in. A few choose to fight. Some get dragged into court anyway by third parties, typically businesses hoping to protect financial information in bids or contracts.
Last year, 76 such lawsuits were filed to keep information hidden from public view, up from 64 the previous year.
Some lawsuits argue weighty matters such as security. But if a decade's worth of trends continue, most will be dismissed or settled in the attorney general's favor, prompting complaints that many of the lawsuits are delaying tactics designed to kill or postpone negative news.
"I can't say everyone who sues the attorney general doesn't have a legitimate argument, (but) obviously, sometimes it's done as a stalling tactic," said lawyer Joel White, president of the nonprofit Freedom of Information Foundation of Texas.
"Very frequently, if a story can be delayed for instance past an election or past a primary — or just delayed until it's no longer newsworthy — that's all the government agency is trying to accomplish," White said.
Brenda Loudermilk, chief of Attorney General Greg Abbott's open records litigation section, said most of the case law is well established, allowing her to dispose of most lawsuits by negotiating with the filer or asking a judge to dismiss the lawsuit.
"I've been doing this at least 10 years, and I decided early on that most governmental bodies that sue the attorney general as plaintiffs are not going to push their case. Most time they file suit and sit back and wait because (then) they don't have to release the information," Loudermilk said.
About one in four lawsuits go to trial, such as a Houston firefighter's attempt to suppress phone conversations, taped by an undercover police officer in 2003, in which he tried to buy "untraceable" poison to kill his wife, court records show.
Abbott's office had ruled that the tapes, minus personal details about the wife, should be released. Former firefighter Richard Frank Thomas, joined by his forgiving wife, Jackie, disagreed.
"I thought this one can be disposed of easily," Loudermilk said. "There's nothing private about a man wanting to kill his wife, particularly when he was a public employee."
The judge agreed to dismiss the lawsuit but wanted to redact additional information. Loudermilk's department disagreed, so the case went to trial anyway, ending with a compromise and eventual release of the tapes.
Loudermilk estimates that since 2000, her section has won 35 court judgments and lost 12.
Two pending cases, though less flamboyant, could provide key legal decisions:
•The Department of Public Safety has sued to block the release of security camera videos taken at the Capitol.
The Texas Observer newspaper is seeking to verify reports that Dr. James Leininger, a leading Republican donor, met House members in a Capitol hallway to urge passage of a school vouchers bill. The DPS argues that releasing the videos would reveal camera placement and other security details.
•The Texas Department of Transportation, with developer Cintra Zachry, has sued Abbott to prevent release of conceptual plans for the Trans-Texas Corridor, a 600-mile swath of roads, rail and pipelines planned to run from Oklahoma to Mexico.
Cintra Zachry was awarded a $3.5 million planning contract, most of which was made public, minus the conceptual development and financial information. The company, which still must compete for the construction contract, claims the information could help competitors.
But Loudermilk said the contract could result in Cintra Zachry gaining work without competitive bidding. "A project this big, that's 50 years in the making and billions of dollars — shouldn't the public have a right to know how it's being developed and financed?" she said.
Incidently, because another state agency is involved, the attorney general's office is working both sides of the Cintra Zachry lawsuit. While Loudermilk's open records litigation section, comprising two lawyers and one part-time lawyer, represents Abbott, the agency's financial litigation division represents the highway department.
Open records litigation in Texas
Governments and businesses that disagree with Texas attorney general rulings to release documents may sue to keep the information from the public.
To date, 265 lawsuits have been concluded, with 123 dismissed by a judge, 80 settled with the attorney general and 62 decided after a hearing.
Source: Texas attorney general's office
The Austin American-Statesman continues a series of stories examining public access to government records and meetings as part of Sunshine Week, an annual effort by newspapers and other media to focus on the health of open government.
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