County's Manipulation Of Open Records Act Deflects Accountability

Opinion

By Charles O'Dell, Phd

Being dishonest in public office is a lot like being pregnant…you either are or you aren’t. No one is a little pregnant, or a little dishonest.

And like a pregnancy, you can hide dishonesty for a while, but sooner or later it becomes apparent to even the most casual observer. Secrecy and manipulation are the antitheses of accountability and public service.

The Public Information Act (open records) is a powerful tool for democracy because it gives ordinary citizens access to how the public business is being conducted, and with whom. Experienced government watchdog organizations know what to ask for in a PIA request. Attempts by public officials to thwart open records requests send a strong signal there is something to hide.

Here is a recent real life example.

On February 29, 2008, we filed an open records request with Hays County seeking to review nine months of telephone records of four public officials. These were County Commissioners Jeff Barton and Will Conley, Special Counsel Mark Kennedy and Environmental Health Department Director Jerry Borcherding.

Based on the telephone records provided to us, it was clear that the EHD personnel are on their phones a lot. Records for Commissioner Conley and Counsel Mark Kennedy were scant, suggesting to us that we may not have received all of their telephone records. If so, that would be a violation of the open records Act.

There was worse to come. Commissioner Barton claimed that he used his personal cell phone to conduct official county business and would not release those phone records to us. He had, however, requested reimbursement from the County for use of a cell phone listed under his wife’s name, Cyndy Slovak.

We filed an open records violation complaint with the State Attorney General office, and in a telephone conversation Special Counsel Mark Kennedy represented to an Assistant Attorney General that Commissioner Barton’s cell phone records were not subject to the Public Information Act because “the cellular telephone bills at issue are not collected, assembled, or maintained by or for the County.”

This is another Kennedy legal opinion wherein he relies on only a portion of the statute to reach a desired conclusion. Govn’t Code § 552.002 clearly states that “public information” means information in connection with the transaction of official business, and that a governmental body has a right of access to it.

We are challenging the absurd and dangerous claim that a public official can hide his conduct of public business from public scrutiny. Such a claim is absurd because the open records ACT is intended to give citizens access to the public documents they need to hold public officials accountable, and dangerous because loss of access to public documents leads to official corruption, excessive public spending, and higher taxes.

What motive could any public official have to hide his official telephone calls from the public?

I believe we have public officials in Hays County who are appearing to be pregnant.

As co-founder of Hays Community Action Network (HaysCAN) in 2003, Mr. O’Dell strives to carry out the mission of ensuring open, accessible and accountable government. He is a long time and close observer of the workings of the Hays County Commissioners Court. He earned a degree in Agricultural Education and a Masters in Ag Economics at Texas Tech, and, later, a Ph.D. at The University of Maryland while employed as a Research Economist with the U.S. Department of Agriculture (USDA) in Washington, D.C. Texas born and raised on a family farm, O’Dell is a Hays County Master Naturalist and a board member of the Ethical Society of Austin.