By Patrick Canty
The Odessa American continues its legal battle to force the City of Odessa to comply with the law in Texas, and specifically with state open records laws.
Sure, a visiting state district judge recently granted the City’s motion to dismiss our lawsuit against them. And various city officials have been loudly crowing victory ever since. But the Odessa American has appealed the ruling to the 11th Court of Appeals in Eastland. And I think it’s important for you, the reader, to understand why as well as all the City’s antics that have led to this point.
Simply put, the City has been violating the Texas Freedom of Information Act by stymieing timely access to public police crime reports. And they have been censoring these public reports, redacting basic information the public has a right to know.
We are pursuing our lawsuit because we believe the City continues to break the law and has no intention of changing its ways. What leads us to believe this? They essentially have said so and here’s how.
Following the judge’s ruling last month, we approached the City with a proposed agreement, and it was a simple one. The proposal stated that the City would agree to follow Texas open records laws in making available in a timely manner basic information contained in police reports and probable cause affidavits. In the proposed agreement, we even cited the specific sections of the law.
Furthermore, it is important to note that in exchange for their commitment to simply follow the law, the OA agreed to drop any appeal in the case and cease our attempts to have the City reimburse us for our legal expenses incurred in the lengthy lawsuit.
The City refused the agreement. And by this rejection, we believe they sent a message to us and the rest of the public that they fully intend to continue their illegal ways.
They left us no other choice than to press the issue to a higher authority.
Quite frankly, we’re not surprised by this. The City has shown a pattern of violating Texas open meetings and open records laws.
They still resent the fact that they are under a court judgement they signed with us in 2017 to settle a lawsuit we lodged against them for holding an illegal City Council executive session. That agreement was an unprecedented one in that they agreed to abide by Texas open meeting laws and to audio record all future City Council executive sessions, so the public would have some way of ensuring they comply with the law.
The City of Odessa is the only city in Texas required to audio record executive sessions. And it’s because they brought that on themselves. I think it’s interesting to note that the current city attorney was on the legal team representing the City that signed off on the 2017 agreed judgement.
In our latest case, the City’s attorneys argued that because the City ultimately turned over the information we had requested – albeit it after lengthy delays – it made our accusations moot; essentially, they never violated the law in the first place.
We find that logic scary. How many different laws could someone break and get off scott free simply by employing that gaming strategy?
Now city officials, most notably Mayor Javier Joven, would have you believe the OA’s latest legal battle is an attack on you, the public. They claim we want to get our hands on confidential, salacious details of crimes in order to sell more newspapers.
“The truth to all of this is that in past years the city was turning over the information in crime reports that are protected under the law and shouldn’t be released to the newspaper, and the newspaper was recklessly publishing them,” Joven recently wrote. “The city took corrective action to ensure sensitive information that protects the identity of crime victims and other types of protected information is protected, and the law correctly provides that the city has an opportunity to do just that.”
That’s a lie.
The names of crime victims, as well as the names of those arrested, witnesses, the time, date, location of the offense and a general description of the offense are all deemed basic information which, by Texas law, must be released to any member of the public – not just this newspaper – as soon as reasonably possible.
In fact, there was at least one case in which the City sent a report we requested to the Texas Attorney General’s office for review, something that delays timely release of the information. The AG responded that while certain redacted sections of the report should remain confidential, they pointed out to the City that other basic information in the report should have already been released to us. They essentially told the City, “Quit sending us this basic information for review. We’ve told you that you can’t withhold this material from the public.” But in a response to that letter, the City essentially said, “We know this is basic information that we should be releasing, but we are still going to send it to you for review.”
Who, what, when, where? Every time a reporter writes a news story, he or she answers those questions, so the reader knows what happened. Crime stories have never been any different. And reporters rely on police reports and probable cause affidavits to obtain these basic, important facts. They have done so for decades and for decades these reports have been readily available to their perusal.
Nothing has changed in the way we or any other legitimate news organization report these stories.
The only thing that has changed is the imposition of roadblocks and in some cases censorship by the City to prevent news organizations and the general public from obtaining this basic information. And these measures began after the 2019 Odessa mass shooting. It has been reported that councilmembers did not believe the news media should have published the names of the shooting victims. And this is precisely when the roadblocks started coming up.
The problem is public records laws consider the names of victims to be basic information and therefore public information. If the City doesn’t like that then they should work to change the law in Texas. Otherwise, they are bound to comply with it.
Joven likes to describe what the City did as “corrective action.” We call it actively thwarting the public’s right to know.
And then there was the case in which a private citizen approached us because he read about our legal fight. The man had filed a police report and when he went to obtain a copy, he was required to file a Freedom of Information request with the City. After not receiving any response from the City for about three months, he asked us what he should do. We inquired about the report and the fact that the man was left to feel like a penny waiting for change. And guess what? The City turned over the report to him.
And then he later received a bill from the City for $65.
If you, the average citizen, wanted a copy of a police report and knew you were going to have to jump through so many hoops, you might think twice about asking for the document. That’s a big issue: these measures by the City discourage the public from seeking information that belongs to them and should be freely accessible. The City squelches the free flow of public information.
Joven wants you, the public, to think the newspaper is out to get you, and he and the City are protecting you from us. But it’s not about our access to this information. It’s about everyone’s access to public information to which they are entitled under the law in the State of Texas.
So, Joven is essentially protecting the public from itself. How authoritarian.
The mayor and others have also attempted to shame the OA, claiming we have cost taxpayers a lot of money. The City has had to spend a lot on legal fees, and they are adamant they should not reimburse us for the fees we have incurred in this two-year legal fight.
Truth be told, the massive legal expenses incurred by both sides have been part of the City’s defense strategy from the outset of the lawsuit. They have filed motions that have prompted what seemed like endless delays in achieving a resolution. At one point, they even filed a motion asking the judge to move the case to Travis County (Austin) and to have the AG’s office named as the defendant in the matter. They essentially tried to throw the AG’s office under the bus, claiming it was the state’s top attorney who was breaking the law, when in reality that office was the one telling the City they needed to provide the OA basic crime information in a timely manner, not weeks and months later.
Obviously, the legal stunt did not sit well with the AG’s office. And second set of outside attorneys hired on to the case by the City ultimately withdrew those motions, realizing the ploy was not going to go anywhere.
You see, the City thought that by dragging out the lawsuit, the newspaper would eventually crumple under the massive legal expenses we had to pay our attorneys. We’d tuck tail and run. The City would wait us out because they had an endless source of cash to fuel their defense, an ATM machine that never runs out of money: you, the taxpayer.
The bottom line to all of this, folks, is this case is not about this newspaper demanding access to information to which we are not legally entitled. It is about this newspaper fighting the City’s attempts to restrict access by you, the public, to information that has always belonged to you. The law in the State of Texas states so.
And in our opinion, that is a fight worth continuing.
Patrick Canty is the publisher of the Odessa American.
