Cary,

            This is final notice that we are prepared to file suit to obtain the records our client South Beecave Woods Neighborhood Association requested five months ago.  In case the City considers filing suit now to be unjustified, let me provide this perspective:

On September 29, 2011, SBWNA asked for records about the City’s 2011 purchase of 611 acres in Hays County with funds obtained from the controversial, and unlawful, Tarlton 360 development approval.  This is special situation because it was the first development approved under the City’s Barton Zone Mitigation Fund, a type of “cap & trade” system to permit development in the Barton Creek watershed.  First, the City delayed until October 13, 2011 to seek “clarification” of the request, so we narrowed the request with the intent to make it as easy and least costly for the City to locate these distinct records.  The City then delayed access to the records by unlawfully demanding payment of $1,710 just to see the records, which we successfully protested to the Attorney General.  The City claims it would cost an exorbitant  $1,997.40 to provide copies of these records, although we have yet to receive a clue about how many pages of documents there are to be copied.

            In related requests for records, SBWNA made a request for records related to the Tarlton 360 development on September 5, 2011 (specifically asking for records the City had withheld from its response to our client’s May 20, 2011 request (without requesting an AG ruling).  The City did not provide those records until I notified the City on November 23, 2011 that we were prepared to file suit to obtain the records.  These records included correspondence from the City Attorney’s office (Kathleen Buchanan) confirming that the Tarlton 360 development was not legally qualified to be approved. 

Since, in response to SBWNA’s May 20, 2011 request (for internal correspondence regarding the development approval), the City had not provided any correspondence between City Council members and city staff regarding this development, we submitted another request, on November 4, 2011, specifically for such Council correspondence, even though we believe such correspondence was within the scope of the May request.  The City delayed until November 30^th to tell us it would cost $874.50 (due to it taking 36 hours of computer processing time and 3.6 full days by IT personnel just to search for the records).  Alternatively, we were told that if our client just wanted to see the records, we would have to pay $120 (allegedly for redaction of email addresses of internal City correspondence).  We paid the $120 promptly but protested the over-charge for copies to the Attorney General.  After we made the $120 payment, I thought the PIO was kidding when the City notified us that the records we requested on November 4^th would not be available for review until the first week of February 2012; but the PIO was not kidding.

               As you know, TPIA section 552.221 requires an officer for public information to provide public information “promptly” which is defined as “as soon as possible, under the circumstances, that is, in a reasonable time, without delay.”  TPIA section 552.268 (EFFICIENT USE OF PUBLIC RESOURCES) says, “A governmental body shall make reasonably efficient use of supplies and other resources to avoid excessive reproduction costs.”

We believe the City is violating the TPIA by overcharging for access to and copies of public information thru a cumbersome, slow, and overly costly system that fails to comply with TPIA section 552.268 (efficient use of resources to avoid excessive reproduction costs) and section 552.221(requirement to make public information available promptly).  I don’t know if the City Manager has established this system with the intent to delay or effectively deny access to public information, but I know that is the effect of the system the City Manager created and applied in this case.  In other cases, the City has unreasonably delayed providing obviously public information until the requestor (e.g., Austin Bulldog) files suit, and only then does the City provide the public information, thereby avoiding paying the requestor/plaintiff attorney fees under the TPIA by claiming the lawsuit was moot.  Of course, such a tactic become obvious, the more the City uses it.  We are also left to wonder if the City’s records system even ensure preservation of requested public information, e.g., the case last year where Animal Shelter employee, Amber Rowland, deleted over 800 pages of emails, apparently after I requested them, and the City had no system to backup such records and prevent having a single employee be able to delete the City’s only copy of these public records.

In this modern day of technology, when someone asks for the records regarding such a distinct topic/purchase by the City, one would think the information would either be available directly online or, at least, the City would have an efficient records management system to locate and disclose the records.  Were this the 1950’s, a paper file would have been established to collect all the records regarding this 611-acre purchase to be kept in a file cabinet.  So, if the records were requested, the file would be found and handed to the requestor.  The City Manager’s record management and retrieval system is slower and more costly—to both the City and the requestors of public information—than an old-fashioned 1950’s filing system.

Ironically, on February 3, 2012, the City issued a press release quoting the City Manager in an article in the Public Sector Digest (described as “an international publication focusing on in-depth analysis of government-related issues”) telling the world:  “We [Austin] will be leaders in green technology, government transparency and accountability,” Ott said.  Considering the timing of this quote and the way the City has treated the records requests by the South Beecave Woods Neighborhood Association, such hypocrisy and PR bull is real hard to take.