Travis County judge: Depositions of City officials related to ballpark emails can proceed

A Travis County judge on Monday granted an order permitting attorneys for Stephanie Townsend Allala to proceed with depositions related to her 2012 open records request connected to correspondence between City officials and proponents of the baseball stadium project.

The City of El Paso had filed a motion to stop the depositions but Judge Orlinda Naranjo denied the motion.

The depositions of City Manager Joyce Wilson, City Rep. Cortney Niland, and former City Rep. Susie Byrd will now take place in December when former City Rep. Steve Ortega is scheduled to be deposed.

Naranjo also set aside the City’s plea to the Jurisdiction which claimed it had provided all of the requested records until after the depositions are done.

Former El Paso Mayor John Cook told ABC-7 in mid-September that city attorneys never gave City Council direction as to whether the elected officials should turn over the requested documents.

Allala, who’s been critical of the process the city took to demolish city hall and build a baseball stadium, filed the open records request about a year ago. So did ABC-7 and El Diario.

The City fought not to release the emails, until August, when the new City Council voted to release the documents.

In court, media interviews and public meetings, City officials have said they did not release the emails because they contained sensitive information about the acquisition of land and bidding for the baseball stadium.

The City also argued it did not store or maintain the personal emails of city representatives, and thus could not release what it didn’t have.

But Cook said the emails were not released because it would open the door to more requests of personal information.

“They didn’t want to set a precedent. The council had told the attorneys ‘we don’t want you setting a precedent by releasing this stuff,” Cook said in mid-September. Cook said after the first request by Allala, he and Byrd turned in all of their personal emails that dealt with City business to the City attorneys and it was the City attorneys who refused to release them to the public.

City Rep. Emma Acosta told ABC-7 in mid-September she also turned in her emails. Cook said the City attorneys made the decision not to release them after an executive session, which is when council consults with the city attorneys behind closed doors.

“The city attorneys can infer from the conversations that were happening with the people that they represent, meaning the mayor and council, that the council was uncomfortable with turning that information over,” Cook said.

The former mayor said the City could have released the emails if the City representatives had turned them over to the City attorneys, like he and Byrd and Acosta did.

“Once I turned over my personal stuff to them, they had it in their possession and in my humble opinion should have turned it over,” he said.

Niland said the City has maintained the position that the emails were never public record.

“The advice we were always given is that our personal emails weren’t subject to the open records request so if we did not want to release them, they did not have to be released. During this entire process, the city attorney did not feel like our private records needed to be turned over, they were ours and protected by our first amendment right and so as we went to this process, we were not asked or required or told to turn over any of those personal emails,” Niland said in mid-September.

The City is not obligated to release any of the emails because the issue is tangled in court, according to First Amendment attorney Joe Larsen, who is also a board member of the Freedom of Information Foundation of Texas.

“They’re not legally required to turn anything over. They’ve just decided that’s what they’re going to do. If they’re going to release everything despite the fact the litigation is going on, I think the next question should be, honestly, why haven’t you dismissed the lawsuit,” he said during a phone interview.

The City sued Texas Attorney General Greg Abbott in an effort to keep the emails private after he issued an opinion, saying the City ought to release the emails because they constituted as public record.

That lawsuit is pending, which means on paper and in the eyes of a judge, the City is still opposed to releasing the documents, even though it has already released the personal emails it has gathered. At last check, the City had spent $7,000 on the lawsuit.

The City of El Paso refused an interview for a story in mid-September and sent ABC-7 this statement:
“The City of El Paso has fully complied with the Texas Public Information Act by releasing all responsive documents in the care, custody and control of the City at the time the information requests which are the subject of the litigation were received. In the interest of transparency and in bringing the matter to closure, City Council directed the City Manager to take the extra step of requesting current and former City Council members to voluntarily provide any responsive documents in their personal email accounts to her so they could be provided to the requestors. We have released all the records provided. The Texas Public Information Act does not provide a remedy when individuals refuse to allow access to their personal email. We are advising the Attorney General’s Office and the court of all actions taken and look forward to resolution of the matter.”

The City in mid-September posted the personal emails of former and current City Representatives who had turned in that responded to the open records request.

Ortega said he will not be turning over any of his personal emails about city business, because the requestor, Allala has made baseless accusations.

“This started off to prove wrongdoing. Nothing has been proven. If this was a noble cause, I’d turn them over. But it’s not. If there’s fruit to their allegations, there are legal recourses they can take to prove that,” Ortega told ABC-7 in mid-September.

He said he has about 10 emails that deal with the ballpark, from the media, other city representatives and team owners but will not turn them over. Larsen said the city can try to acquire the emails from Ortega. “They should take legal action against that council member as the City to get their documents because there are official documents. They relate to public business and the City can take the position, ‘you know, those are our documents, they relate to our business… We want them.’ “

The City maintains there’s no legal mechanism it can use to obtain Ortega’s emails.