Emails Saga Turns On Rarely Used Clause
February 10th, 2008 at 7:54 pm
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.
February 10th, 2008 at 9:44 pm
They received payment on 2 JAN. They requested an AG opinion on 14 JAN.
BUT, 2+10=12. So aren’t they still 2 days late considering the law requires that either the documents be turned over or the AG be notified within 10 days? Though I suppose the 12th fell on a Saturday and they could say that their 10 days didn’t end until the 15th.
Have I ever mentioned how much I hate these people?
February 13th, 2008 at 1:48 am
It is ten business days. Saturday, Sundays, and state holidays (the 5th, 6th, 12th, and 13th) don’t count.
If you accept the 10 business day clock began ticking on January 2, 2008 for the November 6, 2007 request, then the request for exemption was due on January 16, 2008.
If you accept the 15 business day clock began ticking on January 2, 2008 for the November 6, 2007 request, then the briefs supporting the request for exemption and examples of the materials claimed for exemption were due on January 24, 2008. None the less on January 25, 2008, the Office of the Governor sent a second batch of emails it claimed were exempt from disclosure to the AG. The claim is that the emails on the Governor’s email server are 1) not the property of the Governor and 2) the emails are “sensitive intelligence” that is law enforcement related.
February 13th, 2008 at 2:02 am
The Governor’s Office is of course ignoring rest of the section (e) which the AG PIA site states [empahsis mine]:
It should be noted, however, that the requirement of a deposit or bond in connection with a request does not affect the date the request is considered to have been received for purposes of a governmental body’s obligations to seek an attorney general decision under subchapter G.
January 14, 2008 is too late to ask for an exemption.
February 19th, 2008 at 5:46 pm
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