Only on ABC-7: City’s scarce response to open records request raises questions about transparency

Only one piece of written communication between city leaders exists during the weeks leading up to and following the approval of City Manager Tommy Gonzalez’s controversial raise that bumped his salary from about $250,000 to an even $300,000, city records show.

ABC-7 requested any communication between the city officials referencing the pay raise, a mayoral veto, votes or anything else related to the topic from July 20, 2015 to Sept. 1, 2015 from both the officials’ personal accounts and devices and city-issued accounts and devices. This included text messages and emails from both their official, city email accounts and phones and their personal ones.

The city of El Paso said it found only one responsive document, which was a text message from City Rep. Lily Limon to Mayor Oscar Leeser sent the weekend after the raise was approved Aug. 4. The text message read, “Time is almost up. No Veto?”

“I find that a little surprising, that that text message was the only communication going on for all those weeks,” City Rep. Claudia Ordaz said in an interview this week.

The city manager’s raise made headlines in both print and television media for weeks, caused a public uproar and was the topic of several public letters in the local newspaper and scathing editorials. Ordaz also reignited the issue again weeks after the vote had been approved in a tense and packed city council meeting where she said she regretted approving the raise.

When told it’s hard to believe the one text message was the only communication between city officials for a month and a half about such an important decision, city leaders said they either didn’t text or email about the issue.

“I can’t speak for the rest of council but I restricted my conversations to here to what we do in open session,” City Rep. Emma Acosta said.

City Rep. Peter Svarzbein said, “I had no relevant documents from my personal things. If I did I would have given them to you.”

When asked if it’s possible city representatives could be withholding relevant documents, City Rep. Michiel Noe said that’s unlikely.

“Maybe they are not doing it on their personal devices. (And as for their city accounts), then people weren’t emailing back and forth about this. It was on the dais as it should be,” Noe said.

Ordaz is more skeptical. She recently used data retrieving software to access her deleted text messages about city business when another open records request asked for them. Ordaz had hundreds of pages worth of documents, saying it’s very common for city officials to text each other about upcoming issues.

“That’s a way that we communicate. Not only through emails but also through text message. That’s why I had hundreds of pages to release,” she said.

Though Ordaz said city officials had stopped texting her after she released the text messages in response to that open records request.

In its open records request, ABC-7 also asked city officials use data retrieving software to obtain any relevant deleted text messages. City Attorney Sylvia Borunda Firth has said Ordaz set a precedent for other city representatives when she used data retrieving software to access deleted content on her personal phone.

If city reps conduct city business on their personal phones, they’re supposed to forward that to the city server, per city policy. But that has not been happening, according to city officials. So when there’s an open records request, it’s up to the city rep. to look through their own records and be honest.

“If you are talking about anything related to city business then by law you have to turn that over but then there’s this loophole where cities can’t go through your phone,” Ordaz said.

Ordaz said it was possible other city reps did not bother using data retrieving software.

“It’s not surprising that you didn’t get anything back because city attorneys can’t force you to hand over your phone,” she said.

Noe said he did not find anything in the first scan of the data retrieving software but upon speaking to ABC-7 about the issue again, he said he purchased another software and found a text message between him and City Rep. Cortney Niland in which he asked Niland what Gonzalez made in his last job. According to Noe, Niland responded to his text message by saying she had no idea.

ABC-7 did not receive that same conversation from Niland which raises questions about what else was not turned in by her.

After attempting to reach her for two days regarding this issue, Niland responded to ABC-7 Thursday afternoon. She said she looked through her records and found nothing relevant to ABC-7’s request. She said she did not use the data retrieving software because she has not been instructed to do use it by the city’s legal department and is not required to.

“I’ve never been told that was the process,” Niland said over the phone Thursday. An email obtained by ABC-7 shows Firth on September 28th, forwarded three links with data retrieving software options to all city representatives. The email in part said: “If you want to protect your non-City communications from potential disclosure, select one of the programs listed below and retrieve all the messages on a non-City owned PC. Forward only those which pertain to City business to IT for archiving. IT will work to find a way to readily retrieve them like they do your emails when we receive ORR’s. If you need assistance with the mechanics of the transfer of documents to the City server, please contact IT for further instruction. While this process is far from perfect, it will at least serve as a good faith effort to comply with the spirit of the Texas Public Information Act.”

When asked about the email in which Firth provided links to the data retrieving software, Niland said she did not use it. “All I did is everything I did in the past.”

“I searched all of my files and I didn’t have that the time that you requested it,” she said.