The Odessa American is continuing its fight to force the City of Odessa to comply with laws designed to protect the public’s right to free access to public records.
Late Wednesday, attorneys for the Odessa American filed notice that they intend to appeal to the 11th Court of Appeals in Eastland a recent lower court ruling in the newspaper’s two-year-long legal battle that seeks to force the City of Odessa to produce public crime information in a timely fashion as required under Texas law.
And the decision is being met by wholehearted support from organizations that champion freedom of information and government transparency.
“The Odessa American is standing up for its readers and all Texans by pushing forward with its lawsuit to ensure government officials comply with the state’s Public Information Act,” said Kelley Shannon, executive director of the Freedom of Information Foundation of Texas. “Public records should be provided to requestors promptly and without delay. That’s what the law requires.”
The City of Odessa has a history of abuse of open meetings and open records laws. A 2017 landmark settlement between the OA and the City forced the City of Odessa to acknowledge violating open meetings laws and requires the municipality to keep audio recordings of all City Council executive sessions. Those recordings could then be reviewed by a judge if a member of the public suspects the City Council held an illegal closed door executive session.
The City of Odessa is the only municipality in Texas required to record executive sessions. Other municipalities in Texas may either record executive sessions or simply take notes, but the Odessa City Council lost that option in 2017. OA Publisher Patrick Canty noted that the current city attorney was part of the municipality’s legal team that signed the 2017 judgement.
“I think the City has resented that condition placed upon them ever since,” Canty said. “But they brought that on themselves. They got what they deserved because they violated the law so flagrantly. And we, the public, had no other way to hold them accountable other than requiring them to record these closed sessions.
“It is all about ways of enforcing our laws. And this latest case is no different. They have shown they violated the law, and now we need a judgement that provides a greater degree of forcing the City to obey the law.”
The most recent lawsuit between the City and the OA could have ended more than a week ago if the City would have agreed to sign a consent judgment in this case, simply obligating the City to comply with the law they claim they are following.
That agreement, proposed by the OA, simply stated that the City would agree to abide by Texas open records laws, and it even cited the specific portions of the law. In exchange, the newspaper agreed to not pursue either an appeal of the costly lawsuit or reimbursement of its legal fees.
The City of Odessa has spent more than $164,000 in attorney fees since the lawsuit was filed. The agreement would have ended the city spending tax dollars on outside attorneys to help defend the municipality in the lawsuit.
“This refusal tells the public all it needs to know about the City’s intentions going forward and shows why the City brought this lawsuit on itself,” said John Bussian, the OA ‘s attorney and a nationally recognized expert in First Amendment and open records/open meetings laws.
The OA’s appeal comes after visiting state District Court Judge Rodney Satterwhite dismissed the OA’s lawsuit last month, siding with the City, which argued that since they ultimately turned over disputed documents, the matter was moot.
But Canty asserted that argument by the City is off-base. The City still violated the law, he said, and legal steps must be taken to ensure they do not do so again.
“Their logic makes no sense,” Canty said. “It’s like if someone were to rob a bank, and then return the money a month later. I don’t think the authorities would agree if the robber were to say, ‘Well, I returned the money, so the robbery never happened.’”
The Odessa American filed its open records lawsuit in June 2020, arguing the City has violated the Texas Freedom of Information Act by delaying and/or redacting police reports and other documents related to criminal justice matters, documents that have always been readily available to the public throughout the state.
Canty said regardless of the latest ruling he believes the case law is firmly on the side of the newspaper and the public.
“If this ruling stands, it makes a critical part of Texas open record laws worthless to not just the news media but every citizen in the state of Texas,” he said. “It would mean any governmental agency could stonewall and censor information that has always been public to everyone.”
Shannon agreed.
“All citizens have a right to ask questions and know how their government is operating,” she said. “Timely access to public information goes hand-in-hand with exercising First Amendment rights and participating in our democracy. That’s true for journalists and every member of the community who is keeping a watch on public officials.”
On Jan. 31, attorneys on both sides spent two hours in the 161st State District Court in Odessa arguing over the matter, with both sides asking for the judge to render a summary judgment rather than allowing the case to proceed to a jury trial in the future.
The newspaper’s attorneys, including Bussian and Jeff Nobles, told Satterwhite that under Texas law the city has a duty to immediately make available to the public basic crime information, such as the names of suspects and witnesses, crime locations and the nature of the crime. They said the City only had the right to delay information if they were seeking advice from the Texas Attorney General’s Office and that information was beyond basic.
Nobles noted the city has delayed releasing basic information on numerous occasions. Following the 2019 Odessa mass shooting, the city waited 116 days to release basic information, and it waited 92 days to release basic information in another unrelated case involving a double homicide.
The second case is particularly of note, because it happened at a local car wash just months after the mass shooting. Rumor-mongering on social media exploded the day of the double homicide, with speculation flying that the incident was another mass shooting.
“In that case, a level of public hysteria erupted that a local news organization could have headed off had we been given basic information about the incident in a timely manner so we could share it with the public,” Canty said. “It was a perfect example of how when public officials stand in the way of the public’s right to know it can have very negative consequences.”
During the Jan. 31 hearing, Hal Brockett Jr., who represents the City of Odessa, told the judge the city did not violate the law because the city simply has an obligation to reply “as soon as possible, under the circumstances.” He and attorney Keith Stretcher further argued all the information requested by the newspaper had been turned over, rendering the entire case “moot.”
Satterwhite agreed with the City’s attorneys and he also ruled the City of Odessa does not have to pay the newspaper’s attorney fees.
Some elected officials have touted this as victory for the City and have even gone so far as to indicate it proves “the city did nothing wrong.”
However, Canty was quick to point out the judge never said anything of the sort. Again, Satterwhite dismissed the lawsuit because he felt the issue was moot. He did not address whether the city was wrong for having initially delayed release of the public information, which was heavily redacted of basic information to which the public is entitled, Canty said.
And Nobles maintains that it doesn’t matter that the city eventually provided the information. He believes the judge needed to legally recognize the difference between “basic” information that must be released immediately and other sorts of information that can be released at a later time. Without that ruling, he said, the City of Odessa can and will continue to provide information on their timeline.
The city has also cast itself in the role of protector throughout the lawsuit, claiming the OA wanted to publish the names of sexual assault victims and child victims. Like most news organizations, the OA does not print that information.
“Their PR campaign to attempt to twist the reality of the dispute is absurd,” Canty said. “They are claiming to be the protector of the very people to whom they are denying ready access to public information; not just the news media. This affects everyone. What they don’t understand is that public records belong to all of us. The governmental agency is merely the custodian of that information. But it is our information and only in very specific circumstances do they have the right to withhold certain types of information.
“This is a classic case of the tail wagging the dog. And the public needs to bear in mind that the OA has been fighting to get the City to abide by Texas public transparency laws through two lawsuits during the past five years.”
OA lawsuit timeline
- 2017: To remedy violations of Texas open government law, a landmark judgment against the City was entered — with the City’s consent — in a lawsuit filed by the OA. The consent judgment requires Odessa’s City Council to record every executive session. They are the only municipality in Texas required to do so.
- 2020: The OA filed a petition for mandamus, as specified by the Texas Public Information Act (TPIA) in early 2020, over the City’s withholding of basic public crime records following the mass shooting in Odessa a few months earlier, delaying release of basic crime information until the City delivered the basic information requested by the OA to the Texas Attorney General’s office and received a formal opinion from the AG on the information withheld.
- The City initially engaged outside counsel from Austin (Bill Cobb) to oppose the OA’s TPIA suit by filing a Plea to the Jurisdiction, a motion to join State of Texas as a third party defendant, a motion to transfer the case to Travis County, and a wave of discovery requests to the OA; all designed to delay disposition of the OA’s suit.
- October 2020: After Covid-driven delays in scheduling a hearing on the pending motions, a hearing was finally held before visiting state District Judge Rodney Satterwhite at which time he denied the City’s Plea to the Jurisdiction. That triggered an appeal by the City to the intermediate 11th Court of Appeals in Eastland and automatically stayed the litigation pending review by the Eastland court.
- May 2021: A unanimous Eastland Court of Appeals affirmed Judge Satterwhite’s denial of the City’s Plea to the Jurisdiction, reciting the TPIA correctly as applied to the undisputable facts pled by the OA.
- On the return of the case to Judge Rodney Satterwhite’s court, the City hired new outside counsel and promptly filed another Plea to the Jurisdiction and 400-plus pages of record material that shows the TPIA violations alleged by the OA. The City argued essentially that while there were chronic delays in releasing the records — while repeatedly having the AG vet requests for even basic crime information — the City eventually produced the records and rendered “moot” the OA’s suit for violation of the TPIA and its claim for recovery of legal expenses under the Act.
- January 2022: The OA added record evidence in support of its summary judgment motion and in opposition to the City’s motions showing that TPIA violations continue and occurred as recently as June, 2021.
- February 2022: Judge Satterwhite denied the OA’s request to have the Court find the City in violation of Texas open government law. After Judge Satterwhite ruled against the OA, in an attempt to resolve the lawsuit without further expense to the taxpayers and the OA, the OA presented the City with a judgment — like the 2017 judgment to which the City consented — that would simply obligate the City to comply with the Texas Public Information Act (open government law) in the future.
- March 2022: The City refused to consent to entry of the judgment, forcing the OA to appeal Judge Satterwhite’s ruling to the intermediate state court of appeals in Eastland.
- March 9, 2022: OA files an appeal with the Eastland court of appeals.
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