“The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.” That line is taken from the opening section of Texas Public Information Act. The Act allows the public to access records from any governmental body in the state of Texas. But, some governments have found a way to keep information secret. Since 2015, the City of Hutto’s used the courts to block the release of public records more times than any other city in Texas — except for the City of Dallas.
HUTTO, Texas (KXAN) — If you’ve ever sat in on a City of Hutto council meeting, seeing council members throwing a verbal jab or two is just a part of the way they do business. But, the public comment section of those meetings is where the knockouts are delivered.
“Get off the pot because what you guys are doing right now is buls—-,” one taxpayer told council during a Dec. 5 council meeting.
“It’s time to clean house,” Robin Sutton — a long-time Hutto taxpayer — told council as she spoke from a lone table in the middle of the room that faces the dais.
Sutton’s main complaint about the city is what she sees as a lack of transparency with city records, the city’s attraction to litigation and how the city’s dealt with complaints concerning outgoing city manager Odis Jones.
What Sutton — and many others in town — didn’t know when KXAN showed up at that Dec. 5 council meeting: Hutto, Texas, is in the litigation big leagues when it comes to the city wanting to keep public information locked inside city hall.
Since Jan. 1, 2015, the city’s filed 17 lawsuits against the Texas Attorney General’s Office to keep the public from accessing city records.
Those lawsuits came after a taxpayer filed a request for public records under the Texas Public Information Act. The city then asked the attorney general for a ruling on whether the city had to release the requested records.
By comparison, the City of Austin has filed two open records lawsuits in the same time frame. The City of Dallas leads the state with 20 open records lawsuits filed since Jan. 1, 2015.
“Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. The provisions of this chapter shall be liberally construed to implement this policy.”TX Public Information Act
The rulings typically take around 45 days, which means a request for information is further delayed while the attorney general’s limited staff reviews a sample of records submitted by the city to determine whether the city can withhold all the records.
In 17 different rulings — which are essentially legal opinions — the attorney general’s Open Records Division told the city it had to release some part of the requested information. The city disagreed with the rulings and filed lawsuits against the attorney general, asking a judge to allow the city to continue keeping those records from the public.
“We’re paying to get the records and we’re paying the law firm to keep them from us,” Sutton told KXAN investigator Jody Barr.
“Does that make much sense to you?” Barr asked Sutton.
“It makes no sense,” Sutton said. “It means they’re hiding something.”
Hutto’s legal bills
Hutto’s lawsuit have come at a cost to taxpayers, but we can’t tell you what that total is.
That’s because the city won’t turn over records KXAN requested in a July records request asking to see billing and contracts between the city and its law firm, McGinnis Lochridge — unless KXAN pays the city $840 to see the billing records, which were all sent to the city over email.
In the city’s cost estimate, Senior Assistant City Secretary, Lynn Trumbul, claimed it would take the city 40 hours to gather the records and to make 1,200 copies. The city tacked on another $120 in “Overhead charges,” according to Trubmul’s Aug. 13 cost estimate.
The city wanted $420 before it begins the work to gather the emails.
Through a confidential source, KXAN obtained the first bill McGinnis Lochridge sent the city for the first month of work performed in March 2017.
That bill totaled $65,401.
Half of that bill, $34,788, was marked as “Public Information Act” and shows McGinnis Lochridge staff logging hours working on requests from citizens groups, KXAN and a newspaper, and writing legal arguments to the Attorney General’s Office.
The attorney billing, which started in February 2017, was to pay for at least two attorneys, Bill Bingham and Michael Shaunessy, plus McGinnis Lochridge paralegals to solely work “to provide advice in connection with economic development,” according to a Feb. 15, 2017 “Engagement Letter” between the city and McGinnis Lochridge.
The billing we obtained shows one of the law firm’s first documented tasks was a March 13, 2017 job Shaunessy performed to open an investigation into a council member’s “interference with work of City Manager” Odis Jones and other “personnel” matters.
The invoice we obtained shows the city paid $490 an hour for Bingham’s services, $415 an hour for Shaunessy, $455 for attorney Robert Reetz and another $160 an hour for paralegal Julie Doss.
By May, 25, 2017, the city and the law firm expanded the agreement to pay the firm a $240,000 retainer each year, paying Bingham to provide “City Attorney Services,” according to the May 2017 agreement. The agreement also paid the firm $176,400 for 30 hours of “additional attorney time per month,” the engagement letter shows.
On Oct. 1, 2018, the city and the firm agreed to raise the retainer to $350,000 per year and extended their agreement through Sept. 30, 2019. The new contract committed the law firm as the city’s sole legal services provider handling general lawyer services, including attorneys to handle personnel issues, development and bond matters and legal services to handle Public Information Act requests.
The city and McGinnis Lochridge re-signed their agreement on Oct. 7, 2019 to run through Sept. 30, 2019.
Shaunessy defends the lawsuits
Each of Hutto’s 17 lawsuits filed against the Texas Attorney General’s Office are filed in the Travis County District Clerk’s Office, which is where lawsuits against the attorney general are filed. Shaunessy and his firm went to work in February 2017 as Hutto’s legal team.
Within four months, Shaunessy filed the first lawsuit Hutto has ever filed against the attorney general’s office to block the release of public records.
The lawsuit shows the city was working to block the release of records related to an internal investigation of City Manager Odis Jones.
The request sought, “any and all memos, letters and correspondence prepared by Brionne McDonald, Jill Cloud and Odis Jones,” according to the lawsuit.
“The city determined that portions of the responsive information were confidential by law and requested a ruling from the Attorney General,” Shaunessy wrote in the filing.
The Attorney General wrote the city in May 23, 2017 that it must release some of the information the city wanted to keep secret. For example, the city redacted emails and sent those emails to the Attorney General. However, the AG’s office could not “discern the nature of the redacted information,” and found “the city has failed to comply” with the law to allow the office to render a ruling.
“This information is presumed public,” the AG’s office wrote in the ruling.
The AG’s office also found the city “failed to demonstrate” its claim it anticipated “litigation” in the case involving Jones. The city asked to block the records out of fear a claim against Jones and the city would be filed, which is allowed under Texas law.
“The city may not withhold any of the remaining information,” the AG wrote in the May 2017 ruling.
The lawsuit was filed on June 26, 2017.
The records have never been released and the lawsuit is still pending in the Travis County Courthouse — 1,020 days after the request for that information was filed with the city.
“The AG’s office takes a very expansive view of the Public Information Act and I understand that is their view. We disagree with that,” Shaunessy told KXAN in an interview at his Austin law firm.
Shaunessy’s name is on each of the 17 City of Hutto lawsuits. None of those lawsuits has been resolved.
“In every instance where we can, we produce all of the documents that are unprotected, and we produce those without waiting for an AG’s office ruling and we withhold only that information we contend is protected,” Shaunessy said.
“The AG’s office has looked at what you submitted and still ruled in many cases that you’ve got to release this, but you all contend, it still should be kept from the public,” Barr asked Shaunessy during a Dec. 10 interview.
“We contend the AG’s office got it wrong, OK,” Shaunessy replied.
Shaunessy said the city is simply using the legal options the Texas legislature provides government agencies when they believe information should be protected.
“Remember that the Public Information Act says: if you disagree with a decision of the Attorney General’s Office, you have the absolute right to sue,” Shaunessy explained.
“The only times we have sought to withhold information is where something is clearly protected by law or where there is some legitimate reason for withholding it,” Shaunessy said.
Hutto mayor: ‘Something we need to address’
Hutto Mayor Doug Gaul agreed to answer questions about the work the law firm the city hired has performed over the past three years. But Gaul didn’t seem to know much about what the attorneys were up to when it comes to the open records lawsuits.
“To be honest, I don’t know how many we’ve done. That all goes through the city secretary’s office and handled legally, follows the legal laws of the state of Texas,” Gaul told KXAN following the Dec. 5 council meeting.
We read off a list of what the 17 lawsuits were filed to protect — which included Gaul’s own emails and text messages.
“You look at what the city is trying to keep from the public — is it hard to understand why the public may look at this and say ‘This does not look transparent?'” Barr asked the mayor.
“I can understand their concerns and I think it is something — I mean — you brought that up, I think it’s something we take a look at and see what some of those are and as a council look at our procedures and see what our policies are. And, I think that’s kind of what we’re going to be looking at going forward,” Gaul said.
The mayor indicated city council is now interested in making some sort of changes in how the city does business now that City Manager Odis Jones is leaving.
Between June 2017 and May 2019, the city filed five separate lawsuits blocking the release of information seeking records related to complaints and investigations involving Jones. Those lawsuits are still pending.
On Nov. 22, the city and Jones agreed to terminate his contract early.
In the termination agreement, Jones agreed to give up his city manager job on Dec. 31 if the city continued to pay him his $275,000 base salary through 2020. Jones will not have to work to earn that money, according to his separation agreement. The city also agreed to pay Jones $15,000 each month through July 2020 for “consulting” work on a development project the city’s working to build.
The consulting agreement does not spell out Jones’ job duties or how frequently he has to report to work nor detail his obligations to earn the $105,000 in consulting services.
During the Dec. 5 city council meeting, council voted to open an investigation into new allegations concerning Jones. Council did not detail what the new allegations are. The vote allowed the mayor to hire an outside law firm to perform the investigation.
That investigation started Dec. 10, according to Hutto spokeswoman Stacy Schmitt. Schmitt did not provide an answer to questions of who the city hired to perform the Jones investigation.
A city source confirmed to KXAN the attorney leading the investigation is Sheila Gladstone, an Austin employment and labor attorney. Gladstone is expected to finish her investigation by Dec. 19, according to the city.
KXAN has three open records requests pending at Hutto’s city hall seeking records related to the latest complaint filed against Jones. The city has not responded to those requests as of this report.