City Denies Open Records Request re Town Lake Park Bond Covenants

Now the City Attorney is attempting non-compliance with an Open Records request regarding the Town Lake Park Venue Project.

The bond covenants for the Palmer Events Center (PEC), which I cited in
and which are linked through that document, were formulated in secret by City staff and bond counsel and departed significantly from the what the voters authorized in 1998 Proposition 11. They were carefully structured to give priority funding from the car rental tax to underwriting PEC operations and maintenance, a use of the tax that the voters had not authorized and which had never been publicly discussed, over funding for park construction, which voters specifically directed.

This undermining of the direction of Proposition 11 in the bond covenants was an elaborate scheme and required thoughtful construction of the covenants by Convention Center staff, the Law Department, and bond counsel. It would not have been quickly conceived and drafted.

In an attempt to discover how the formulation occurred, I placed an Open Records request for the correspondence between the City, its bond counsel Fulbright and Jaworski, and the Attorney General (who had to approve certain limited aspects of the project) with regard to the venue project. A written record of the formulation of the bond covenants should have made clear the process by which the authorized construction funding was redirected to O&M, and the individuals who directed it.

The Law Department refused to honor any part of the request, citing attorney-client privilege. But one of the criteria the City must meet to claim attorney-client privilege is, “because the client may elect to waive privilege at any time, a governmental body must explain that the confidentiality of a communication has been maintained.” Furthermore, “Section 552.107(1) generally excepts an entire communication that is demonstrated to be protected by the attorney-client privilege unless otherwise waived by the governmental body.”

In this case, the City has not maintained the confidentiality of the communication. A portion of the communication, a memo from Fulbright and Jaworski, was provided to me and to another private citizen by the Mayor’s Office in the summer of 2009. I appealed the Law Department’s refusal to comply with my request, arguing that by releasing this document, the City breached confidentiality and thereby waived its attorney-client privilege to the subject documents. I demanded the release of the rest of the communications among the named parties, a part of which has already been made public.

The Law Department responded that by release of that memo, the City waived confidentiality of that memo only. (“Waived” seems hardly the proper word, if applied only to the document I was given.) They refused to release the rest of the communications.

My appeal of this second refusal is awaiting a decision from the Attorney General’s office.

Whether the Law Department’s refusal to make the requested communciations available is a principled defense of attorney-client privilege or an attempt to hide the illegal subversion of a public bond vote is a matter for debate that might be resolved only by the release of the documents. But it throws a long shadow over the City Manager’s well-publicized rhetoric about the virtue of transparency in City government and his efforts to tirelessly provide it. It also suggests that the City is willing to vaccinate itself from Open Records requests by merely including legal counsel in any sensitive communications.

Larry Akers
Friends of the Parks of Austin Stakeholder Representative
Town Lake Park Community Project

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