The Texas Observer

The fastest-growing segment of the prison industry is for-profit detention centers housing immigrants. The Bush administration - with characteristic zeal - has given the job of holding this growing detention population — fed largely by the crackdown on illegal immigration — to prison peddlers who are dependent on taxpayer dollars. Texas has been ground zero for this growth industry.

“Give us your poor, your tired, your huddled masses… and we’ll lock ‘em up” seems to be the mantra of Corrections Corporation of America, Emerald, GEO Group, MTC, and other “corrections” companies. These outfits tend to operate with minimal oversight and little direction from government agencies. In truth, outside of a few attorneys, correctional officers, and the detainees themselves, few have first-hand knowledge of detention center operations.

However, documents recently obtained by the Observer paint a dismal picture of some Texas facilities. We wrote about the documents in a March issue of the magazine. Three of six Texas facilities inspected by the Office of Federal Detention Trustee flunked federal standards: the Brooks County Correctional Facility in Falfurrias, operated by LCS Corrections Services Inc. of Lafayette, Louisiana; the Willacy County Regional Detention Center in Raymondville, operated by Utah-based Management & Training Corp; and the East Hidalgo Detention Center in La Villa, also operated by LCS.

Brooks and Willacy both passed more limited inspections conducted by the Texas Commission on Jail Standards.

The facilities had numerous security, sanitation, management, record-keeping, and health care problems. In the case of East Hidalgo, the Federal Detention Trustee deemed the detention center “at risk” and ordered immediate federal intervention.

From the March issue of the Observer:

At East Hidalgo, the inspectors found dozens of violations of federal standards. Medical, dental, and mental health care is virtually nonexistent. Initial medical screenings are performed by unqualified nurses and do not include a physical examination, or an appraisal for chemical dependency, mental retardation, and suicide risk, according to the report. Moreover, the jail has no dentist or mental health professional on-site.

A hallway is used as an examination room. Staff are not trained to deal with suicidal detainees despite eight suicide attempts in the year prior to the report.Security is poor. At the time of the inspection, visitors didn’t even pass through a metal detector when entering the building. The jail has no “specific instructions” on when firearms may be used; no procedures for maintaining weapons or for controlling keys, kitchen tools, and medical equipment; no effective plan for a mass evacuation; and no training program on the use of force.

Sanitation is lacking. Employees are not tested for blood-borne pathogens, increasing the risk of disease to both guards and inmates. Detainees are issued “sporks,” but the utensils are not sanitized, nor are barbering tools.Two juveniles were discovered by the inspectors at the adult-only detention center and immediately removed.In addition, the report reveals that 19 inmate-on-inmate assaults had occurred in the previous year.

After six inmates escaped in 2006, the state jail commission cited the facility for employing too few guards, for the third time.

Richard Harbison, vice president of LCS, told the Observer last month that the company had corrected the problems and expected to pass an upcoming inspection. (We’ll update once we find out if the inspection has occurred and how the facility did.)

Because it’s so rare to get a glimpse of how bad some of these private lockups can be, we’ve taken the time to scan most of the pages from the East Hidalgo inspection report.

In addition to the deficiencies of the prisons, the documents also inadvertently reveal the pettiness of the secretive Bush administration. Whole pages of the inspection reports were redacted… sort of. The feds need to invest in some better Sharpies. Much of what they tried to hide could be read with the aid of a light table and a magnifying glass. While the redactions did obscure some sensitive security problems, other portions of the inspection reports hardly seemed worthy of a black marker.

For example, in the report on the East Hidalgo Detention Center, the Federal Detention Trustee redacted a section on spork protocol. “Sporks are not returned to food service for proper cleaning,” the redacted part reads. “All utensils should be properly washed.” A blacked-out section in the report on the LCS Brooks County Correctional Facility says, “Chicken was thawing in a sink for over two hours on Nov. [ ], 2007 and a turkey product was thawing at room temperature for over 7 1/2 hours on Nov. 7, 2007.”

The agency even redacted areas of the inspection where the prisons received passing marks.

As a legal basis for the secrecy, the agency cited a provision in the Freedom of Information Act that allows an agency to withhold information that “could reasonably be expected to endanger the life or physical safety of any individual.” But doesn’t the real danger to human safety come from the sorry state of the detention centers, not the disclosure thereof?

We’ve avidly followed the work of software tester John Washburn of Milwaukee, Wisconsin, who programmed his computer to start asking for all emails to and from staffers in Gov. Rick Perry’s office in early November of last year. Washburn’s efforts have yielded some juicy tidbits.

It’s also revealed a troubling loophole in Texas’ open records law.

Here’s a little background: Perry’s office sent Washburn a bill of $568 for staff time and compliance costs for each three-to-four-day batch of emails. Washburn has managed to pay for only one batch so far. He quickly posted them on the Internet.

Washburn said he received an estimated 1,900 documents out of a total of 5-6,000 — meaning that Perry’s office has asked that roughly 4,000 documents/emails be ruled exempt from open records requirements. The AG’s office now has 45 business days to rule.

Problem is, the governor’s office seemingly contacted the AG’s office too late. According to Texas’ open records law, state agencies have 10 business days after they receive a request for documents to ask the AG for a ruling.

Section 552.301(b) reads:

(b) The governmental body must ask for the attorney general’s decision and state the exceptions that apply within a reasonable time but not later than the 10th business day after the date of receiving the written request.

Washburn made his request on Nov. 6, 2007. But the governor’s office didn’t contact the AG’s office to withhold documents until Jan. 14, 2008, according to letters from the governor’s office obtained by the Observer.

Our admittedly simple math says that’s a lot more than the 10-day limit. That would certainly suggest that Perry’s office waited too long to ask the attorney general for an opinion on whether the emails should be deemed exempt to Washburn’s request.

However, Perry ’s office is taking advantage of another, little-used section of open records law that monkeys with the definition of “received.”

Under a rarely used provision, Perry’s office asserts that it can consider the request “received” upon receipt of payment.

Perry’s office received payment for the first batch on Jan. 2.

A spokesperson for Perry explains:

As for the time between Nov. 6 and Jan. 14, our office was waiting for payment from Washburn. Under §552.263(e), we may consider the request “received” upon payment. We sent Washburn an estimate of charges, explaining this procedure on November 20, 2007. Once payment was received, documents were provided within 10 business days. We of course preserved documents during this time.

The Texas Attorney General said Friday that the invoking of §552.263(e) is rare, but is used in certain cases, particularly when the open records request is very large.

A reference to the clause is even on the Texas AG’s web site:

For purposes of the governmental body’s obligations under subchapter E of the Act to make requested public information timely available to the requestor, a request for which a deposit or bond has been required under section 552.263 is considered to have been received by the governmental body on the date the governmental body receives the deposit or bond.

It seems peculiar, even to open records veterans, chiefly because this caveat guts the 10-business-day rule. What governs the governor’s initial response? It appears, at least in cases where fees are assessed, the clock can be stopped indefinitely.

Washburn puts it this way:

In the make-it-up-as-you-go-along world of the Governor, The Governor’s office is under no obligation to provide an itemization of charges in 10 days, 11 days, one month, one year. There is no time limit as long as the Governor thinks the response is “Prompt”.

Perry’s spokesperson responded:

Our internal policy is to provide a requestor with those documents not believed to be confidential within at least 10 days – even though statute simply requires our office to be “prompt.” (Government Code § 552.221)

We expect a more detailed explanation from the attorney general early next week on just how often Section 552.263(e) is invoked and exactly what its ramifications are for open records requests in Texas.

At this moment, though, it appears Perry’s office has opened a severe loophole in one of Texas’ most important open government laws.

Ever wanted to read the governor’s email? Now’s your chance.

Milwaukee open records activist John Washburn has posted the first received batch of Gov. Rick Perry’s staff emails — minus the correspondence which the governor’s people are appealing to the state attorney general’s office.

The emails were sent or received by Perry’s office (according to Washburn’s request): “on or after 12:00 am (midnight) Friday, November 2, 2007 and received before 12:00 am (midnight) Tuesday, November 6, 2007.”

The emails are in .pdf format and as I understand it, there are some 1,900 of them. We are calling on readers to dive in. If you find something find that you want to share with your fellow citizens post it as a comment to this blog post.

Washburn paid $568 for these babies, so they are certainly valuable in that sense. What’s more, Washburn’s requests have single-handedly stopped (for a while, anyway) the governor’s policy of shredding the emails every seven days — which is of value to all Texans and to the open records policy of our great state.

So click through. Let us know what’s in there. We will also be reading through them and trying to determine what’s news and what’s not. But we need your help.

Happy hunting!

The Lake Travis Independent School District and a local couple are waging an all-out, take-no-prisoners, opens records war. The theaters of this war have ranged from district court to the Third Court of Appeals to the Texas Legislature, and the impact of this fight could further change Texas’ open records law, and possibly not for the better.

As the Lake Travis Cavaliers were enjoying a championship season in 2007, their school board and Superintendent Dr. Rocky Kirk were appealing a decision by a Travis County district court to dismiss the district’s lawsuit against David and Melissa Lovelace.

The Lovelaces have requested thousands of documents from the district in accordance with Texas open records law, starting with documents related to their child, and continuing with documents relating to the entire district (like the entire pay schedule for all teachers and administrators — just an inkling of the data sought and published and maintained on the Lovelaces’ blog, ltisd.info).

There’s more data on this site, lots and lots and lots more data.

LTISD says the 3,000-plus requests filed by the Lovelaces in the last few years amount to an “attack” on the school system. LTISD says it has spent $700,000 fighting requests from the Lovelaces.

Dr. Kirk’s statement, published on the LTISD web site just after the decision, gives the school district’s perspective:

Specifically, the Court stated, “The District pled facts [sic] sufficient to show that the Lovelaces’ conduct unreasonably interfered with the public right of District taxpayers to a public education for their children and that the excessive drains on District staff times and resources had affected all or a considerable part of the District community.”

Lovelace says it’s the other way around. He says it’s his own government that launched an attack on his family.

“Wait a minute,” Lovelace told me. “I got sued by my own government — without doing anything wrong — and I don’t have any redress.”

The decision from Texas’ Third Court of Appeals came down Nov. 29. The court’s decision ruled the district’s lawsuit out of bounds — while LTISD continued to assert that the Lovelaces’ open records requests were an attempt to “attack, harass, and besiege” the district — an attack worthy of governmental intervention, according to the school district — in fact, worthy of intervention from Texas judges on behalf of LTISD and against David and Melissa Lovelace, who have a child in the Lake Travis school system.

Former Travis County Judge Bill Aleshire, is representing Lovelace along with Jennifer Riggs and Jason Ray.

Aleshire said this week that LTISD’s lawsuit should never have been filed.

“There is no such cause of action,” says Aleshire. “What this all amounted to was an attack by the government on parents who were just trying to get information,” he said. “Just because somebody wants a lot of information doesn’t mean they’re wrong.”

Aleshire says he understands that some may view the Lovelaces’ requests as asking for “just deliberately voluminous information… David got accused of that, and it’s absolutely false.” He says the Lovelaces took it upon themselves to demand information from an inefficient bureaucracy.

“They resist handling open records requests in a reasonable and efficient manner, attack any taxpayer (like the Lovelaces) who stands up to them, and innovate new ways to make it harder for the constituents to see what’s going on,” Aleshire said.

“I go way back,” Aleshire told me. “And I’m outraged by what the school district has done.”

The Lovelaces have spent $20-30,000 fighting LTISD. The district’s people point to the fact that the Third Court refused to force the district to pay the Lovelaces’ attorney’s fees and court costs as partial evidence of the court’s sympathy.

LTISD Communications Director Mario Alvarado says the district has complied and is complying with Texas’ public information law.

“We get many requests, and we try to comply,” Alvarado told me. “We’ve done all that we can do.” He said the Lovelaces’ requests have included everything but the district’s kitchen sink, including “financial information, personnel items, construction information, bond information…”

I asked David Lovelace why he didn’t just move — you know, Central Texas is a big place, and if it was a matter of getting the best education for your child, why not just move? He answered calmly, with a hint of outrage.

“Why should I move?” he said. “I’m not the one with the problem… I couldn’t have just given up.”

I asked Dr. Kirk to talk about the case, but he said he had nothing to add to the district’s public position. LTISD says they have accepted the Third Court’s direction to find legislative relief, and all parties expect to see Kirk and the district’s lawyers and lobbyists arguing on LTISD’s behalf to further constrict the state’s open records rules.

Lovelace points out that 35 percent of the traffic on his site comes from IP addresses associated with LTISD schools. Yep. That’s right. Who’s reading these public documents? Lake Travis teachers, students, and parents — all hungry for data they can’t get from the school district.

The Carnival of Open Records has recognized John Washburn, ‘that guy from Milwaukee’ as the ‘Sunshine Troublemaker of the Week’ after he received confirmation postmarked Jan. 8 that staffers are compiling the emails he paid for from Gov. Rick Perry’s office and will send them within 10 business days. That revises my earlier projected receipt/publish date — expect them to be available around Jan. 22 (my naive estimate earlier was Jan. 13).

If only Perry had not been regularly deleting his emails, he might not have such a tenacious open records notable on his trail right now. It should be a lesson to officeholders and bureaucracies everywhere. Look around. This government email thing is all the rage.

Look at Houston’s embattled district attorney (who has already taken his name off the ballot). The saga of Charles A Rosenthal Jr. is one long government email hemmorhage — complete with campaigning from a government perch, making horrible jokes, forwarding absolute crap, and hurling slurs. Ralph Blumenthal reports:

On Aug. 14, Mr. Rosenthal forwarded to friends a message attacking the record of Senator Hillary Rodham Clinton of New York, and calling her “a disaster for all Americans.” His name appeared on messages comparing her to Karl Marx…

The emails also contain racist, sexist, and profane elements. The list of exactly what is contained in Rosenthal’s email just isn’t publishable. It’s crap. And it’s amazing that it coursed through a major government agency’s email system without anyone calling somebody. To me, anyway, it boggles the mind.

On top of these, Rosenthal apparently deleted 2,500 government emails. Just, poof! They’re gone. I wonder why.

The White House is having its own government email party, too.

In a case arising out of the investigation into who dropped the name of Valerie Plame, on Jan. 8 federal magistrate John Facciola ordered the White House to determine whether missing emails from 2003-2005 were among computer backup files. The White House was given five business days to respond. The order grew out of a lawsuit seeking the missing emails by two private groups — the National Security Archive and Citizens for Responsibility and Ethics in Washington.

In a rather revealing paragraph, the Associated Press story related another one of those astounding claims of imperial untouchableness asserted so often by the Bush White House:

Two federal laws require the White House to preserve all records, including email; but in asking that the two lawsuits be dismissed, the White House asserts that the president’s record-keeping practices under the Presidential Records Act are not subject to review by the courts.

Taken together, these three sets of inquiries certainly make the case that officeholders really should be keeping their government email, and it’s a reminder to all of us that asking for those electronic documents is key.

Thanks to that wonderful quality of the Internet that facilitates charitable donations and political contributions, Milwaukee Software Tester John Washburn raised the funds to pay most of the bill for a week’s worth of office emails from Governor Rick Perry’s staff (which he had been destroying every seven days up until they were requested).

Washburn says he raised $530 of the $611 price tag for the first batch of emails (the payment was for two of nine requests — for email sent and received from Nov. 2-5 and for headers and subject lines from emails sent and received from Nov. 20-22). Perry insists on charging $568 for staff time and overhead needed to comply with each request (a stance affirmed by Texas Attorney General Greg Abbott) — but because a response regarding the Nov. 20-22 request was sent late, the charge was less by law (or at least by Perry’s interpretation the law, according to Washburn):

Washburn writes: The reason for the difference in costs is that the Governor’s office failed to respond to the November 23, 2007 within ten business days as required by law. Under the Governor’s own interpretation of the Texas Public Information Act, this failure to respond means the Governor’s office has forfeited the option of presenting a itemization of charges which exceeds $40. I believe this is a misreading of the Texas PIA, but for this request I will stipulate the Governor’s construction of the statute is correct. It saves me $528 after all.

I spoke again with Washburn after he reported having sent the first payment. His attorney in Texas, Houston’s Joe Larsen, has also sent a tenth open records request after learning that Perry has a written policy for dealing with email requests. Washburn notes in his blog that Perry’s office has not responded to this last request:

The Office of the Governor claims it has a written policy which is used to review emails prior to their destruction by the electronic shredders. This tenth PIA request asked for a copy of this written policy. To date there has been no response at all to this tenth PIA request; not even a late one response [sic] as was the case for the November 23, 2007 requests.

The upshot of all this is that — unless Perry goes back to the attorney general or decides to take Washburn to court — we all may be reading Perry’s emails on Washburn’s site as of Jan. 13 (or thereabouts). The correspondence will have been composed before Washburn ever asked for it, so the emails may be worthwhile, though they will certainly be redacted.

As you may have read on Elise Hu’s excellent politics blog, Political Junkie, or in the hard-nosed reporting by Jay Root in the Fort Worth Star Telegram (or here for that matter), Washburn is a software testing engineer that once ran for Congress from Milwaukee as a Libertarian who has a healthy interest in ‘Liberty’ and an avid interest in open records. Washburn came up with the idea after reading Hu’s series, the Purge (which started out as a Texas email records retention scavenger hunt of sorts but has morphed into a Perry vs. Washburn soap opera).

The fact is, Perry’s policy of email deletion had to stop after somebody asked for the records. Washburn’s requests may have stopped many other offices from regular email deletion as officeholders and interested activists watch the Washburn/Perry fight unfold.

Washburn is encountering the abrasive attacks of Perry fans and sometimes-anonymous readers from Texas who slam him for “wasting taxpayers’ money” and being an ego-driven “loser.” He deserves a lot of credit for sticking to his principles on this, I think. Here are a couple of examples of what he has to put up with:

Good citizen activists are hard to come by, misguided losers are a dime a dozen and it is up to us to call them on it. Keep up the vigil against stupidity…

Please send me a copy of “How to be an Obnoxious Citizen.” I’m sure you have a copy or two along with “How to Waste the Countries Time and Taxes” with a forward on “How to Raise taxes”…

Who is donating toward Washburn’s efforts? After a look around the Internet, I found at least one blogger who is proud that he donated $100. You know, there are worse ways to spend your money. If you want to help get more of these emails into the sunshine, Washburn has a link for donations here.

In any case, stay tuned. We may yet get a glimpse of these ‘public’ records.

We reported earlier this month on Milwaukee’s John Washburn’s automatically generated open records requests for the emails sent to and received by Gov. Rick Perry’s office. Yesterday, we noted that Perry has sent Washburn a bill (actually an estimate) for $568.

That covers the first half-a-week’s worth of emails. The emails for a whole month will cost Washburn a whopping $2,300 or more. We also promised to relay what exactly Perry’s spokesman says will cost so much.

Robert Black told me, as the “itemization” of the estimate details, staff time is indeed the chief cost element. The office’s letter to Washburn states that $472.50 of the cost will be incurred by 31.5 hours of staff time (at $15 per hour) required to comply with the request. Another $94.50 is listed as “Overhead at 20% of staff charge.” Then there’s the $1 cost for the CD.

Black says every staff member will have to spend time printing, preparing the emails for clearance through office counsel, and getting the emails ready eventually for copying to CD.

“Every staff member has to stop what they’re doing, and save it, and print those off, and send it over to general counsel,” Black said. “We haven’t gotten to the copying part yet.”

Black said it was the governor’s intent to abide by Texas’ open government laws, and despite my goading, he could not be made to even grumble about the nature of the request, or the fact that it was being made by someone out of state who was apparently doing it simply because he was offended by the fact that the emails were being regularly deleted.

“It’s the law,” Black said. “We are all for open government and government in the sunshine.”

Black added that the governor’s records retention policy has been approved by the Texas State Library and Archives Commission and that the former policy of deleting emails after seven days was not resulting in the destruction of pertinent records.

“It’s important for people to understand that email is not a filing system,” Black said. “Information that is required to be saved is being saved. It’s like saying we’re not saving every post-it note.”

He said, for now, the governor’s office will be working on getting Washburn the information he has requested.

“It certainly takes up a lot of their time,” Black said. “But it’s the law, and we’re going to comply with the law.”

Black said Washburn has a few options, including paying the $568 and awaiting the next bill and the emails on CD. Or he can narrow his request, which has been suggested several times by the governor’s office, and he has so far refused. Or Washburn can complain about the cost estimate to the Texas attorney general.

An email from Washburn early Tuesday indicated he has sent a complaint to AG Greg Abbott’s office about the staff time and overhead charges. He also sent Perry a check for $2.