Thursday, December 27, 2018

FOIA Request of Houston Public Library by SafeLibraries - 01

John Middleton, Assistant Director
Houston Public Library
500 McKinney St
Houston TX 77002

     Re:  FOIA Request of Houston Public Library by SafeLibraries - 01

Dear Assistant Director Middleton:

The Texas Public Information Act [TPIA] gives the public the right to request access to government information. The same applies to the Houston Public Library pursuant to https://www.houstontx.gov/pia.html that specifically names you as the TPIA contact for the library. Therefore, please respond to the below noncommercial TPIA request in accordance with the law. In return for your prompt attention, I will try my best to make the request within the boundaries of the law so as to minimize everyone’s efforts and even try to avoid your need for expensive legal counsel. To help you avoid legal counsel, feel free to err on the side of nondisclosure just so long as you tell me what you did and give me a chance to discuss it with you. I will be asking for public information under the law and fully expect redactions to be made in accordance with the law.

I am a reporter on library matters where I publish on both SafeLibraries and on Sexual Harassment of Librarians. As such I may publish anything you send me, and I ask that all fees for the production of TPIA responses be waived. Indeed I have written about your library before: “Boy Sexually Assaulted in Library Bathroom by Child P0rn Viewer,” by Dan Kleinman, SafeLibraries, 23 November 2010, https://safelibraries.blogspot.com/2010/11/boy-sexually-assaulted-in-library.html.

As to the reduction in fees, “If a governmental body determines that producing the information requested is in the ‘public interest’ because it will primarily benefit the general public, the governmental body shall waive or reduce the charges.” Source: https://www.texasattorneygeneral.gov/sites/default/files/2018-06/PIA_handbook_2018_0.pdf 194; 194 Gov’t Code § 552.267(a).  That this is a matter of public interest is evident by the international media attention the library has received as a result of the matter my TPIA/FOIA request addresses. So please waive all fees as I may not only report on this matter but also provide insight from my almost two decades of experience in library-related matters, thereby making my reporting unique.

I ask that you send the requested documents in PDF format so they may be easily attached to an email, with the exception of photographs (that should be JPEG), audio files (that should be MP3), and video (that should be MP4 or MOV video files). If the document files are too large to transmit in one single email, I authorize you to transmit them to me either via a free file sharing service such as DropBox or via multiple emails (as many as required to send all of the documents requested). To the extent any document is available to the public on the Internet, simply providing the URL to the published document will be sufficient to stand in the stead of attaching a PDF version (else attach the PDF if you will not provide the URL, I’m just trying to make things easier for you). I am attempting to make this as easy for you and me as possible and I am willing to work with you should you have any concerns, just use my contact information above.

Where emails are involved, also provide the BCC as well as the CC and the TO. As you know, BCC is for the convenience of the sender, not for circumventing public information laws. If senders/recipients include distribution lists the library created, then please provide the document that lists the individual recipient email addresses in any distribution list; again, distribution lists are for the convenience of the sender, not for circumventing the law. Further, if library business has been conducted via the use of personal emails, then please provide those emails as well. Conducting library business on personal emails is not a valid means for circumventing TPIA.

Any document written or recorded is included as well. That includes voice mails, audio recordings, transcripts or minutes of any public meeting. Library board executive session recordings or minutes are not included in my request if they have not already been made public.

Written or recorded documents also include those made in any telephonic, electronic, or physical meeting with anyone acting on behalf of any library association such as the American Library Association [ALA]. ALA trains librarians that written or recorded documents from ALA-provided trainings, meetings, conferences, etc., are ALA proprietary and may not be released publicly. That ALA claim is false. TPIA controls, not ALA. If a public employee attended anything at public expense, then anything learned/recorded at such an event or as a result thereof has been made public and is discoverable under TPIA no matter what ALA claims. The public has a right to know what business has been conducted at public expense.

Be clear ALA top leadership uses personal email to direct librarians to destroy public documents precisely to prevent production under state sunshine laws like TPIA. Example from the private email of the current Acting Director Deborah Caldwell-Stone, Esq., of the ALA Office for Intellectual Freedom: “Subject: URGENT -­ must delete all documents related to 17 Dec crisis communications workshop .… Remove these from your servers today and destroy hard copies. This is an attempt by two individuals to obtain privileged information …. we cannot allow anything from 17 Dec to be produced in response to FOIA.” Source published here: “Librarians Ordered to Destroy Public Documents Revealing Homophobia at American Library Association and Crime in Libraries,” by Dan Kleinman, SafeLibraries, 26 April 2018, https://safelibraries.blogspot.com/2018/04/librarians-ordered-to-destroy.html.

I am limiting this TPIA request to a particular subject that has been in the news of late, namely, the various Drag Queen Story Hours. I am also limiting the time frame with regard to email to only 2018.

Given the above, I hereby request under TPIA the following, and responses need only be provided once if they have already been answered/provided in a previous request response:

1) Any current library trustee training provided by any employee or member of any library association, state library, professional library trainer, or internal trainer. Exclude any training required by TPIA itself.

2) Any documentation, including any current policy, and any discussion of any policy in board meetings, librarian/trustee/director/employee trainings, etc., that pertains to allowing the use of public meetings rooms for public meetings that the library allows but does not necessarily endorse. Include any related incident reports, patron complaints, reports made to the police, etc., made in 2018.

3) Any documentation, including any current policy, and any discussion of any policy in board meetings, librarian/trustee/director/employee trainings, etc., that pertains to allowing the showing of library or library foundation events that the library makes available to the public in any room. Include any related incident reports, patron complaints, reports made to the police, etc., made in 2018.

4) Anything in 2018 evidencing requests for public meetings rooms and whether such requests were denied and why.

5) Anything in 2018 evidencing requests for presenting library or library foundation events and whether such requests were denied and why.

6) Any documentation, including any current policy, and any discussion of any policy in board meetings, librarian/trustee/director/employee trainings, etc., that pertains to how the library determines whether an event occurs in a public meeting room per public meeting room policy or whether instead it occurs anywhere in the library without the need for compliance with the public meeting room policy.

7) Any documentation, including any current policy, and any discussion of any policy in board meetings, librarian/trustee/director/employee trainings, etc., that pertains to how the library determines whether an event is to be sponsored by the library or the library foundation.

8) Any documentation, including any current policy, and any discussion of any policy in board meetings, librarian/trustee/director/employee trainings, etc., that pertains to how the library determines whether any drag queen event occurs per public meeting room policy or is instead made a library or library foundation event.

9) Any documentation, including any current policy, and any discussion of any policy in board meetings, librarian/trustee/director/employee trainings, etc., that pertains to how the library determines whether any library or library foundation event allows or disallows free speech or equal time for those with different/dissenting opinions to present at the same event, akin to the fairness doctrine.

10) Any documentation, including any current policy, and any discussion of any policy in board meetings, librarian/trustee/director/employee trainings, etc., that pertains to allowing the public to raise a challenge or request for reconsideration for any meeting held per public meeting room policy. Anything in 2018 evidencing such requests and whether such requests were granted/denied and why.

11) Any documentation, including any current policy, and any discussion of any policy in board meetings, librarian/trustee/director/employee trainings, etc., that pertains to allowing the public to raise a challenge or request for reconsideration for any library or library foundation event. Anything in 2018 evidencing such requests and whether such requests were granted/denied and why.

12) Any documentation, including any current policy, and any discussion of any policy in board meetings, librarian/trustee/director/employee trainings, etc., that pertains to how the library determines whether religious events occur in the library, how, and how are the various religions enumerated, including atheists, secularists, humanists, secular humanists, and others having no deity.

13) Any documentation, including any current policy, and any discussion of any policy in board meetings, librarian/trustee/director/employee trainings, etc., that pertains to how the library displays religious or secular objects such as Christmas trees or holiday trees, respectively, in the library.

14) Any documentation, including any current policy, and any discussion of any policy in board meetings, librarian/trustee/director/employee trainings, etc., that pertains to how the library addresses proselytizing in the library, outside the library, or immediately adjacent to library property. Include any related incident reports, patron complaints, reports made to the police, etc., made in 2018.

15) Any documentation, including any current policy, and any discussion of any policy in board meetings, librarian/trustee/director/employee trainings, etc., that pertains to how the library addresses leafleteering in the library, outside the library, or immediately adjacent to library property. Include any related incident reports, patron complaints, reports made to the police, etc., made in 2018.

16) Any documentation, including any current policy, and any discussion of any policy in board meetings, librarian/trustee/director/employee trainings, etc., that pertains to how the library determines what is “anti-gay” and who is “anti-gay.”

17) Anything in 2018 pertaining to Drag Queen Story Hour specifically or anything involving drag queens generically, including media attention, advertising, expenses/fees incurred, and legal bills/fees.

18) Lists of users on various social media such as Facebook and Twitter that have been muted, blocked, or banned by the respective social media owned or operated by the library.

Thank you very much for your attention to this matter.

--
----------
Dan Kleinman, Owner of SafeLibraries® brand library educational services
....

Dated: 21 December 2018



For your interest, National Freedom of Information Coalition has sample state FOI request letters.

"NFOIC promotes press freedom, litigation and legislative and administrative reforms that ensure open, transparent and accessible state and local governments and public institutions."

See also:
Of interest:


NOTE ADDED 30 DECEMBER 2018:

Thank you to @HoustonLibrary for updating the email address.  Still, it's a delaying tactic.  TPIA requires they "promptly produce" requested records or otherwise respond within ten business days.  I followed the legally prescribed means for filing the TPIA request, yet seven days later I'm told to contact a different email address—via Twitter, no less:

So I sent the following email to the new email address graciously offering to restart the 10 day count—I'm including this for the open government hawks interested in the various means governments use to keep the public in the dark.  This attempt to reset the clock via Twitter just might be novel.  Here's my new email:


Safe Libraries
Fri, Dec 28, 1:16 PM [ET] (2 days ago)
to HPL.communications
cc john.middleton

Greetings HPL Communications,

I am forwarding the below previously submitted TPIA/FOIA request dated 21 Dec 2018 to you for further consideration in accordance with @HoustonLibrary response to me currently viewable at:
@houstonlibrary
Replying to @SafeLibraries @TXLA and 4 others
Mr Kielman
If you wish to submit an official TPIA request, please send directly to HPL.communications@houstontx.gov. Thank you.
12:11 PM [ET]- 28 Dec 2018
For your convenience, the TPIA/FOIA request may also be viewed here:
I note sending an email to john.middleton@houstontx.gov was the correct email address per https://www.houstontx.gov/pia.html, as I stated in my original request.  Now, through the goodness of @HoustonLibrary responding to a @SafeLibraries tweet of mine, I learn of another email address, hpl.communications@houstontx.gov, via Twitter.  I respectfully suggest corrections may be needed somewhere, and it may be worthwhile providing a page on the library's web site that advises people how best to file public information requests--I couldn't find one and I'm wondering if it may be a legal requirement as it is in some states.  My original request was properly filed on the 21st at 7:52 PM ET, so the TPIA clock starts there, not today.  Nevertheless, I offer to voluntarily restart the timeline to now for responding to the below request to make things easier for everyone.  Had @HoustonLibrary not intervened and had john.middleton@houstontx.gov not responded, there may have been escalating concerns.  I hope this email of mine leads to an improvement of communications for Houston and its library generally with respect to the very important public information laws and compliance therewith.

Thank you.






NOTE ADDED 10 JANUARY 2019:

Today I received these two responses below.  I'll leave it up to you to see the multiple FOIA failures, the escalations that drive up costs to make FOIA requestors look bad for driving up costs, and how the "we link people to the world" tag line is obviously just for show since I am being asked to pay $181 to be linked to the world under the TPIA/FOIA law:

============================

January 10, 2019

Good morning Mr. Kleinman

We received your request for open records on the Houston Public Library’s Drag Queen Storytime program. We apologize that we initially responded via twitter. Your original email was blocked as spam through the servers.

The City of Houston charges and collects fees for requested information based upon the cost rules promulgated by the Texas Attorney General. The costs associated with your request have not been waived. Therefore, attached is a cost estimate and letter with an explanation on payment.

Marjorie D. Gonzalez
Marketing & PR Manager
Houston Public Library | Communications Division
O: 832-393-1381 | C: 281-967-9360

/HPL logo/

We link people to the world

=========ENCLOSURE=========

January 9, 2019

Dan Kleinman, Owner of SafeLibraries® brand library educational services
641 Shunpike Rd #123 Chatham, NJ 07928

          Re: Your Texas Public Information Act request, December 26, 2019, for
                 Drag Queen Storytime

Dear Mr. Kleinman:

In response to your above-referenced request, which was received by the City of Houston’s Houston Public Library on Drag Queen Storytime the custodian of records has determined that complying with your request will result in the imposition of a charge that exceeds $40. Therefore, we are providing you with this cost estimate as required by section 552.2615 of the Texas Government Code. The itemized list of charges is enclosed with this letter.

The estimated charges exceed $100.00; therefore, as allowed by section 552.263(a) of the Government Code, we require a deposit of 50% ($90.50) before starting work on your request. You may send your check payable to the City of Houston to my attention at 500 McKinney St., Houston, TX 77002 and referencing PIA #25685. Once the deposit is received within 10 business days of this letter, it will take the City 5 to 10 business days to provide the responsive information to you.

There is a less expensive way for you to obtain this information. You may narrow or clarify your request. You may view the information in person at our offices. If you choose to view the information in person, please provide me with three dates and times when it will be convenient for you to come. These charges may be reduced if you narrow or clarify the scope of your request.

Please note: this request will be considered automatically withdrawn if you do not respond in writing within ten business days of the date of this letter that you either: 1) accept the charges and agree to pay them, 2) modify your request in response to the cost estimate provided herein, or 3) have sent, or are sending, a complaint regarding the charges to the Texas Attorney General.

Please note: The release of any documents may be dependent upon a determination from the Office of the Texas Attorney General (OAG). If the OAG determines that the City may or must withhold a portion or all of the requested information, a revised cost estimate may be necessary and your deposit may be returned to you, as applicable.

You may respond to this statement by mail at 500 McKinney St., Houston, TX 77002], in person at Communications Division, or at or hpl.communications@houstontx.gov.

If you have any questions regarding this matter, please contact me at 832-393-1340.

Sincerely,

Marjorie D. Gonzalez
Marketing & PR Manager
Houston Public Library

Enclosure ["CITY OF HOUSTON PUBLIC RECORDS CHARGES" basically states I must pay $180 for labor (12hrs*$15/hr) and $1 for a diskette that I did not request and for which I have no reader, as most people don't nowadays.]


============================
============================

Subject: Your Texas Public Information Act Received on December 26, 2018-GC No. 25685

January 10, 2019

Dear Mr. Kleinman:

Please see the attached letter pertaining to your request.

Sincerely,

General Counsel Section
City of Houston Legal Department

=========ENCLOSURE=========

January 10, 2019

The Honorable Ken Paxton
Texas Attorney General
P. O. Box 12548
Austin, Texas 78711-2548

Attention: Open Records Division

           Re: Public Information Act request received December 26, 2018, from Dan
                 Kleinman for various information regarding the City of Houston Public Library
                 and Drag Queen Story Hour. GC No. 25685

Dear General Paxton:

The City of Houston ("City") received the above referenced request on December 26, 2018 (Exhibit 1). The City notes that Monday, December 24, 2018, Tuesday, December 25, 2018 and Tuesday, January 1, 2019 were observed as City holidays. By copy of this letter, the City is informing the requestor that the City is seeking a decision from your office because the responsive information may be excepted from public disclosure pursuant to sections 552.101 through 552.151 of the Government Code. We will forward the responsive information and our legal arguments under separate cover shortly. Please include GC No. 25685 in any future correspondence concerning this request.

Sincerely,
/s/
Danielle R. Folsom
Assistant City Attorney

DRF/jmb

Enclosure(s)

cc:   Sent via electronic mail to:
       Dan Kleinman
       safelibraries@gmail.com
       (w/o Exhibit)

       Marjorie Gonzalez, HPL
       (wlo Exhibits)

Z:\GENERAL\DRF\TPIA 2019\Kleinman10 25685.docx



NOTE ADDED 18 JANUARY 2019:



January 17, 2019


The Honorable Ken Paxton
Texas Attorney General
P. O. Box 12548
Austin, Texas 78711-2548

Attention:     Open Records Division

           Re:     Public Information Act request received December 26, 2018, from Dan Kleinman for
                     various information regarding the City of Houston Public Library and Drag Queen Story
                     Hour. GC No. 25685 

Dear General Paxton:

This is a follow-up to my letter dated January 10, 2019 (Exhibit 1A). The City of Houston ("City") initially received the above referenced request on December 26, 2018 (Exhibit 1). The City notes that Monday, December 24, 2018, Tuesday, December 25, 2018 and Tuesday, January 1, 2019 were observed as City holidays. By copy of this letter, the City is informing the requestor that the City believes the responsive information (Exhibit 2) is excepted from public disclosure under section 552.103 of the Government Code. The City has included a representative sample of the responsive information for your review.

Section 552.103 of the Government Code 

Section 552.103 of the Government Code provides, in pertinent part, that:
(a) Information is excepted from the requirements of Section 552.021 if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or political subdivision, as a consequence of the person's office or employment, is or may be a party.
* * * 
(c) Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requester applies to the officer for public information for access to or duplication of the information. 
Gov't Code § 552.103(a), (c). The City seeks to protect Exhibit 2 from public disclosure under section 552.103(a). The test for meeting this burden has two prongs. In order to satisfy the burden of proving section 552.103 is applicable to the present case, the City has provided you with the relevant facts set out below and in the attached exhibits. The City must prove that (1) litigation is either pending or is reasonably anticipated, and (2) the information requested is related to that litigation. See University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 481 (Tex. App.-Austin1997, no pet.); Tex. Att'y Gen. OR99-1840 (1999) at 1. In other words, the City must provide concrete evidence proving its claim that litigation may ensue is more than mere conjecture. See Tex. Att'y Gen. ORD-452 at 4 (1986).

The responsive materials (Exhibit 2) consist of documents and communications pertaining to Drag Queen Story Hour. Exhibit 2 is related to a lawsuit styled: Tex Christopher, Tracy Shannon, Pastor Calvin Miller and Mark Chrisopher Sevier v. Rhea Lawson, Ph.D. and Mayor Sylvestor Turner, in his official capacity, Case No. 4:18- cv-03943. The complaint was filed on October 19, 2018 in the United States District Court, Southern District of Texas, Houston Division. See Exhibit 3, which is not a part of the responsive information. The complaint was dismissed on January 3, 2019. See Exhibit 3A, which is not a part of the responsive information. The deadline for filing an appeal from the order of dismissal has not yet lapsed. See Fed. R. App. P. 4. A complainant in that suit has also stated publicly they are filing an appeal to the dismissal. See Exhibit 4. The first of the two prongs is fulfilled, as there is pending litigation for which a judgment has not been finalized.

Additionally, the responsive information (Exhibit 2) fulfills the second prong of section 552.103 because it directly relates to the subject matter of the pending litigation. See Exhibit 3 and Exhibit 4, which are not a part of the responsive information. The responsive information consists of documents that contain details that pertain to the pending lawsuit. The information contained in Exhibit 2 will likely be used in litigation by the opposing party. As such, release of the responsive information would hurt the City's ability to protect its position in the pending litigation. Because litigation against the City was pending at the time the request was receíved and the responsive information directly pertains to that litigation, the City asserts that it may withhold Exhibit 2 from public disclosure pursuant to section 552.103 of the Government Code.

The City respectfully requests a ruling on this matter. Please do not hesitate to contact me at 832-393-6491 if you need additional information. Please include GC No. 25685 in any future correspondence concerning this request.

Sincerely,

/s/

Danielle R. Folsom
Assistant City Attorney

DRF/tas

Enclosure(s)

cc:      Sent via electronic mail to:
           safelibraries@gmail.com
           Dan Kleinman
           (w/o Exhibits)

           Marjorie Gonzalez, HPL
           (w/o Exhibits)

Z:\GENERAL\DRF\TPIA 2019\Kleinman 25685 AG.docx



NOTE ADDED 20 JANUARY 2019:

I have written to the Texas Attorney General.  In summary, I caught the library lying to the attorney general, wasting taxpayer resources by responding too late to obtain relief but by using a subterfuge to do so, and now the library is required to turn over all documentation I originally requested.  But we shall see how the Attorney General responds.  Here is what I wrote:

The Honorable Ken Paxton
Texas Attorney General
P. O. Box 12548
Austin, Texas 78711-2548
20 January 2019

Attention: Open Records Division

Re: Texas Public Information Act request received December 21, 2018, from Dan Kleinman for Houston Public Library records. GC No. 25685

Dear Attorney General Paxton:

I, Dan Kleinman, have exercised my TPIA right to request certain public records, for ultimate publication, from the Houston Public Library.  This was on 21 December 2018. On 10 January 2019, after the ten business days allowed by law, the City of Houston acting on behalf of the library sought your opinion to quash some of the requests, but on the eleventh business day—too late.  Now I request your help in obtaining all the records per § 552.302. I provide below a timeline to help visualize this matter.

Some information has been misrepresented by the city/library, principally, the filing date of my request.  They say I filed on 26 December 2018, five days after the actual filing. This whole matter turns on that filing date since the earlier date means any relief under § 552.103 is waived under § 552.301.  I wish to correct the record so the rights afforded to the public by TPIA for accessing public records are fully protected and provided in accordance with the law based on reality, not based on misrepresentations by commission and omission.

There is strong evidence that the misrepresentations are part of an intentional effort to deceive the Texas Attorney General so as to defy public rights and ultimately protect possibly inappropriate or illegal actions by the library.  In other words, this is no mistake. The deception is so significant, so self evident once pointed out, that it may violate portions of the Texas Disciplinary Rules of Professional Conduct.

While it is partially true that the “City of Houston ... initially received the above referenced request on December 26, 2018,” that is irrelevant.  The relevant filing of this TPIA request is December 21, 2018, five days earlier. On that date I looked at the TPIA law and, following the law and the guidance provided at that time at https://www.houstontx.gov/pia.html—it has since changed—emailed the designated contact.

On the date of my filing, the designated contact for TPIA requests was John Middleton, Assistant Director, Library Administration, 500 McKinney, Houston, TX 77002, 832.393.1681, john.middleton@houstontx.gov.  I recorded the appearance of that page on December 30, 2018, and it matched my previous reading of the page, and I published it here: https://twitter.com/SafeLibraries/status/1079280943049916416

The page has since changed the designated contact to Marjorie D. Gonzalez at hpl.communications@houstontx.gov. Further, it added a link for filing an official TPIA request only with the library: https://app.smartsheet.com/b/form/e4f97bf51781493f95e194eff12084b8

So I was looking at the correct page for filing requests since the page has since been updated to add the correct contact and to add a means for filing an official request—without indicating any change was made.  That change and that new addition was obviously made as a direct result of my TPIA request. It’s an implicit admission I followed the correct process the first time around, namely, on December 21, 2018. And to the extent the changes I caused help advance the interests of the public in obtaining public records under the law, I am very happy to have helped.

But the deception lies in changing that page without advising the Texas Attorney General that it had done so, which would have revealed I had initially followed the correct procedure.  They would have had to admit their request to the Attorney General was too late or simply not file in the first place—now they are intentionally wasting legal resources, and of course the public will pay for this blunder.  The procedure was changed as a result of my contact. A new form was added as a result of my contact. I had initially contacted the library as directed by https://www.houstontx.gov/pia.html on December 21, 2018.  The reason why my properly filed request was ignored was that my “original email was blocked as spam through the servers,” according to an email I received on January 10, 2019, from Marjorie D. Gonzalez.  Yes, my emailed request was sitting ignored in a spam folder. Yet the city/library still advised the filing date was December 26, 2018, not five days previously.

Emails addressed to the prescribed means for obtaining TPIA requests do not enjoy the luxury of pushing forward the initial filing date simply by being sent to spam and no one was even looking for them, even though it was clearly labeled, “FOIA Request of Houston Public Library by SafeLibraries - 01,” and even though it was in the email box designated by law.

Further, it would have stayed in spam unnoticed had I not used my Twitter account to notify the library at the library’s Twitter account.  As Marjorie D. Gonzalez put it in the same letter, “We apologize that we initially responded via twitter.” The TPIA law does not require the public to follow up to ensure email in spam is not being ignored.  To the extent the matter was eventually addressed, that was only because of my Twitter communications with the library, not the library’s own due diligence in the first place to monitor the intake of the designated contact for TPIA requests.  They failed to provide due diligence and ignored their TPIA obligations.

Further evidence the library knows this to be a problem is the change made after my request to add a form to file requests.  That form is likely intended to get around the problem of emails going to spam. Still, the online form shows the haphazard rush to try to cover up the tacit admission of the library’s malfeasance (since I and the public would be injured if the public records where not released to me). There’s no proper discussion of the issue before the library board in a public meeting.  It’s just quickly slapped together. An examination of the form shows the “Details” portion where the body of the TPIA request is submitted comprises a single line. One line. One places all his or her “details” on a single line. It’s almost laughable in its disregard for public sunshine laws were it not part of a deception upon the Attorney General by omitting to mention anything about this and its effect on this case.

It must be embarrassing to see how little a library cares about open records and press freedom to not only fail to use due diligence and ignore TPIA obligations and make misrepresentations and omissions to the state attorney general but also force people to use a single line to submit TPIA requests.  Especially a library claiming to be so interested in free speech and intellectual freedom as to allow unfiltered access to inappropriate material for children, the potential for which is part of the very reason for filing my TPIA request. But if a patron seeks to file a TPIA request, he gets a single line to complete his request, besides a long list of other means used to discourage access to public information, as we shall see.

So the library failed to follow the law, made subsequent changes to try to prevent future failures, yet failed to advise the Texas Attorney General of any of this and instead claimed the filing date was December 26, 2018.  This prejudices the public’s ability to obtain rights afforded under TPIA. The library does this knowingly and continues to act as if the request was filed almost a week after its true filing date. This is why I raised previously the issue of the Texas Disciplinary Rules of Professional Conduct.  It’s deceptive to mislead the Texas Attorney General in a manner that may prejudice the public’s right to know under the law.

As to other issues, the information I requested is related to library policy involving public displays and public meeting rooms and who decides what to allow or not and why, how such policy is created and maintained, and whether it is in compliance with relevant law.  All my requests for public information pertain to that and not any litigation. I am not a party to any litigation anywhere, neither do I plan to sue the library for any reason, nor do I have any reason to bring suit. The public should not be foreclosed from getting public information simply because an ongoing lawsuit provides a convenient excuse to deny the request.  

I am a long time reporter on matters relating to public libraries.  I have even been called a “trusted source” on misdirection by libraries by the author of the Children’s Internet Protection Act (http://tinyurl.com/ErnestIstookInterview).  I have been referred a case by the Brooklyn (NY) District Attorney regarding inappropriate activity in the Brooklyn Public Library.  I am the subject of Chapter 30 in "Shut Up!: The Bizarre War that One Public Library Waged Against the First Amendment," by Megan Fox and Kevin DuJan, a book about how libraries game freedom of information acts and drive up legal fees to protect illegal activity (https://amzn.to/2C4ZXfw).  I was sued in federal court for reporting on homophobia by the public relations employee and by a library board member at a public library that covered up a serious crime (https://safelibraries.blogspot.com/2014/07/gay-hate-at-your-library.html). I prepare my reports by informing myself with public record requests and other reliable sources, as well as anonymous reports from librarians to me at a secure email address SafeLibraries@pm.me.  

Charging fees to the media only discourages accurate reporting or perhaps even any reporting in the first place.  TPIA allows for fee waivers in such cases but the library will not grant me a waiver.


I am not a litigant seeking to obtain information via TPIA that I should instead obtain under discovery rules.  I am not avoiding rules of discovery used in litigation. The 552.103(a) exception the library seeks to use against me simply does not apply in my case.  “Section 552.103 is a discretionary exception to disclosure and does not make information confidential under the Act.” Source: https://www.texasattorneygeneral.gov/sites/default/files/2018-06/PIA_handbook_2018_0.pdf


And here’s the kicker. “Further, a governmental body waives section 552.103 by failing to comply with the procedural requirements of section 552.301.”  Ibid.  Recall the deception discussed above?  That whole deception was to try to get around the part of 552.301 that states a “governmental body must ask for the attorney general’s decision and state the exceptions that apply within a reasonable time but not later than the tenth business day after the date of receiving the written request.”  The date of the request, January 10, 2019, is beyond the tenth business day past December 21, 2018. It’s the eleventh business day. And it would have been later had I not tweeted as and when I did. Hence the library is not entitled to its requested relief not to provide public records. That is the very reason it misrepresents the clock as starting on December 26, 2018.  It knew better, did not act in time, and did not advise the state attorney general. Email being in spam is no excuse for failure to comply with the law. Deceiving the Texas Attorney General and wasting resources makes the whole thing way worse. This could be another Texas Disciplinary Rules of Professional Conduct concern. Someone should file a TPIA request for the attorney fees that have been consumed in this fashion, but I may leave that to local media.

In summary, I filed the TPIA request on December 21, 2018, and the library sought on January 10, 2019 to deny the public records by falsely asserting § 552.103 based on a false filing date of December 26, 2018.  I properly filed my request and being directed to another email address does not reset the time of the initial filing. The ten days for requesting the attorney general’s involvement have been exceeded. The library is too late. Even its efforts to mislead and misrepresent the truth do not cure the lateness.

So now I wish to assert § 552.302.  It is entitled, “Failure to Make Timely Request for Attorney General Decision; Presumption that Information Is Public.”  The library has failed to make a timely request for an Attorney General decision. It is presumed the information I requested is now public information.  And since I’m requesting relatively innocuous information relating to the regular workings of a public library, there should be no “compelling reason” for withholding information.
  • “the section 552.302 presumption of openness is triggered as soon as the governmental body fails to meet any of the requisite deadlines for submissions or notification set out in section 552.301.” Page 41.
  • “Section 552.302 provides that if the governmental body does not make a timely request for a decision, ..., the requested information will be presumed to be open to the public, and only the demonstration of a ‘compelling reason’ for withholding the information can overcome that presumption.” Pages 40-41.
  • “A failure to comply with the requirements of section 552.301 can result in the information being presumed public under section 552.302 of the Government Code.” Page 37.
  • “If a governmental body fails to comply with subsection (d), the requested information is presumed public pursuant to section 552.302.” Page 36.  “Section 552.301(d) reads: (d) A governmental body that requests an attorney general decision under Subsection (a) must provide to the requestor within a reasonable time but not later than the 10th business day after the date of receiving the requestor’s written request….” Page 36.
  • Source:  “2018 Public Information Act Handbook,” by Office of Attorney General, Texas Attorney General, 2018.

Lastly, the library refused to recognize the matter as being in the public interest and/or that I am a reporter entitled to the elimination of fees.  The library also refused to provide the records as requested in electronic format attached to response emails. Instead it offered to provide the records on CD technology that modern computer systems no longer use.  I do not have a CD reader and haven’t used CDs in years.

When you add it all up, it looks like the library is intentionally hiding information from the public by using any and all means available to discourage or preclude disclosure under the law, including deception of the Texas Attorney General and changing web pages after the fact.

And as to the public interest in this manner, the topic is of such importance that the American Library Association has just published about it yet again, repeatedly pointing out its pervasiveness:
  • “If you aren’t familiar with Drag Queen Story Hour, you might be one of the very few people who hasn’t been talking about it.”
  • “This program is creating a lot of conversations about intellectual freedom in our communities, and I am incredibly grateful to DQSH for this.  From the conversations, protests, and even lawsuits going on in communities, it is clear that there are still conversations to be had around what it means to have freedom of expression.”
  • “If you open up your favorite internet search engine and do a search for ‘Drag Queen Story Hour’ there will be a bevy of news stories, and depending on when you are reading this, some of those stories could be from today or yesterday.  City council members, parents, drag queens, and even the ACLU are discussing what it means that public libraries allow the freedom of expression via the First Amendment to the Constitution of the United States of America.”
  • “Similar events and conversations are happening across many communities….”
  • Source:  “Drag Queens Have Rights, Too,” by ALSC Intellectual Freedom Committee, American Library Association, January 19, 2019.
So the topic is clearly in the public interest.  

Given the one-sided nature of American Library Association’s reporting (“many aspects of Drag Queen Story Hour ... can be praised and celebrated” Ibid.), and given ALA is now promoting Drag Queen Story Hour in public libraries nationwide (https://safelibraries.blogspot.com/2018/07/laura-ingalls-wilder-out-drag-queens-in.html), it is critical to have an independent review based on solid FOIA research.  I am that independent reporter and likely the only one, so I should not be charged a fee for the records, especially when the library likely gathers the same records for the ALA free just for the asking—you never see ALA file FOIA requests with libraries.

For your convenience, here is a timeline of events:

TIMELINE OF EVENTS

==2018==
21 Dec: TPIA request properly submitted per then-existing www.houstontx.gov/pia.html starting ten business day clock to seek support of Texas Attorney General.

22 Dec: SATURDAY - not a business day
23 Dec: SUNDAY - not a business day
24 Dec: CHRISTMAS EVE - not a business day
25 Dec: CHRISTMAS - not a business day

26 Dec: Business Day 1 since I filed my TPIA request

27 Dec: Business Day 2 since I filed my TPIA request

ALSO: Via Twitter, I advise my readers, and the library, of my publication about my TPIA request: “FOIA Request of Houston Public Library by SafeLibraries - 01 http://safelibraries.blogspot.com/2018/12/foia-request-of-houston-public-library.html … @houstonlibrary ….” Source: https://twitter.com/SafeLibraries/status/1078329269779161089

28 Dec: Business Day 3 since I filed my TPIA request

ALSO: Library advises via Twitter, “Mr Kielman [sic] If you wish to submit an official TPIA request, please send directly to HPL.communications@houstontx.gov. Thank you.” Source: https://twitter.com/houstonlibrary/status/1078699868812689408

ALSO: I forward my original TPIA to the second email address.  My TPIA request properly submitted on 21 Dec now gets redirected by me to the contact provided in the library’s tweet of earlier today 28 Dec.  I did offer the courtesy of extending the date for sending the documents, but not for filing to deny parts of my request.

29 Dec: SATURDAY - not a business day
30 Dec: SUNDAY - not a business day

31 Dec: Business Day 4 since I filed my TPIA request

==2019==
01 Jan: NEW YEARS - not a business day

02 Jan: Business Day 5 since I filed my TPIA request

03 Jan: Business Day 6 since I filed my TPIA request

04 Jan: Business Day 7 since I filed my TPIA request

05 Jan: SATURDAY - not a business day
06 Jan: SUNDAY - not a business day

07 Jan: Business Day 8 since I filed my TPIA request

08 Jan: Business Day 9 since I filed my TPIA request

09 Jan: Business Day 10 since I filed my TPIA request, last day to file under § 552.301

10 Jan: Business Day 11 since I filed my TPIA request, § 552.302 now applies

ALSO: Library emails me officially acknowledging receipt of TPIA request, apologizes to me for its Twitter response, and reveals my TPIA request was ignored because it was “spam.”  Email includes an apparent letter sent to me the day before on 9 Jan. Email states, “Good morning Mr. Kleinman; We received your request for open records on the Houston Public Library’s Drag Queen Storytime program. We apologize that we initially responded via twitter. Your original email was blocked as spam through the servers. The City of Houston charges and collects fees for requested information based upon the cost rules promulgated by the Texas Attorney General. The costs associated with your request have not been waived. Therefore, attached is a cost estimate and letter with an explanation on payment.  Marjorie D. Gonzalez….” The attachment states I must respond within ten business days.

ALSO: City of Houston files with Texas Attorney General seeking an opinion about my TPIA request. City emails me to send me this.  City falsely claims, “The City of Houston (‘City’) received the above referenced request on December 26, 2018 (Exhibit 1).” In reality, the library received the request on 21 Dec then ignored it as “spam” until my fortuitous Twitter message alerted them on 27 Dec.  Hence, per § 552.302, the City’s filing is too late and I am to receive all documents as requested barring any “compelling reason” otherwise, and of course there can be none.

11 Jan:  Some time between 30 Dec (when I made a graphical record that I tweeted) and 11 Jan (the last back up made at archive.org), www.houstontx.gov/pia.html was changed from John Middleton (listed at least since Feb 5, 2018) to Marjorie D. Gonzalez.  At no time was the Texas Attorney General advised of this change in this matter, although it is completely relevant given the claimed false filing date of 26 Dec. This is another deception by the city/library, which is maintained or repeated a second time in the the city/library’s subsequent letter of 17 Jan.

12 Jan: SATURDAY - not a business day
13 Jan: SUNDAY - not a business day

14 Jan:
15 Jan:
16 Jan:

17 Jan: City sends follow up letter to the Texas Attorney General denying my access (the public’s access since I will be reporting this) to certain records.  City reiterates the filing date of my TPIA request was 26 Dec, but by this time it should know or should have known that 21 Dec was the true filing date, so to me this is deceptive.  City asserts § 552.103, but that has already be obviated by its own lateness per § 552.302.

18 Jan:

19 Jan: SATURDAY - not a business day
20 Jan: SUNDAY - not a business day

ALSO: I submit my response to the library (this email to you) per its ten business day response requirement hereby met today.

END OF TIMELINE

I hope that timeline helps in the visualization of when I submitted my TPIA request, why the city/library is late in challenging the request and is misrepresenting and omitting information, and why all records must now be released to me (for the public’s ultimate benefit) per the law.

Please, if it is within your power, direct the library to provide all records as originally requested per § 552.302, in the format as originally requested, and without the need for a $181 fee that is just another hurdle to sidestep TPIA; I helped them correct/update their FOIA process, after all, yet they still went on to mislead the Attorney General with a false filing date and with withholding contradictory information.  I’m an independent reporter and cannot afford the fee. For the library’s convenience, over a half a gig of files may also be uploaded to me here: https://www.dropbox.com/request/xK9Nbjsk6NakObs5neAj

For fact checking purposes where not already cited, the letters I have quoted above, including the admission that my request landed in spam, can be viewed on my existing reporting on this issue that I hereby incorporate by reference for best viewing of the graphics:

Thank you for your consideration in this matter.

Please acknowledge receipt of this email and advise if this letter should be submitted by other means.

Respectfully submitted,

....


NOTE ADDED 22 JANUARY 2019:

I snail mailed my response to the Attorney General today. Here's why (and also I couldn't figure out the electronic submission means from the information provided below):

publicrecords

8:04 AM (14 hours ago)
to me

However, your submission does not comply with the Public Information Act.


• Common or Contract Carrier
• Interagency Mail
• Hand Delivery during normal business hours
• Electronic Submission through the OAG’s Designated Electronic Filing System at www.texasattorneygeneral.gov

Because your submission does not comply with the Public Information Act, you must resubmit it through one of the methods listed above.

Questions? Please call 877-OPEN-TEX.


From: Safe Libraries [mailto:safelibraries@gmail.com]
Sent: Sunday, January 20, 2019 9:56 PM
To: publicrecords
Cc: Gonzalez, Marjorie - HPL gov>; HPL Marketing Team gov>; John.Middleton@houstontx.gov; Legal.Publicinfo@houstontx.gov
Subject: Re: Dan Kleinman: Your Texas Public Information Request received December 26, 2018 - GC 25685

LGL Public Info

2:20 PM (8 hours ago)
to MarjorieHPLJohnpublicrecords@oag.texas.govme
Mr. Kleinman,

Please be aware that the Attorney General’s Office does not consider open records requests sent after 5pm to be received by the governmental body until the next business day. Your request was sent on December 21, 2018 after 5 pm, so it was not considered received until the next business day, which fell on December 26, 2018, due to the weekend and Christmas holidays. If you have questions about how the Attorney General’s Office calculates deadlines, you may contact the Open Government hotline at (877) 673-6839.

General Counsel Section
City of Houston Legal Department

From: Safe Libraries
Sent: Sunday, January 20, 2019 9:56 PMTo: publicrecords@oag.texas.gov
Cc: Gonzalez, Marjorie - HPL gov>; HPL Communications gov>; Middleton, John - HPL ; LGL Public Info gov>
Subject: Re: Dan Kleinman: Your Texas Public Information Request received December 26, 2018 - GC 25685

The Honorable Ken Paxton

publicrecords

2:23 PM (8 hours ago)
to LGLmeMarjorieHPLJohn
This e-mail box is for members of the public to submit requests for records maintained by the Office of the Attorney General (“OAG”).  A member of the public should refrain from sending general correspondence to this e-mail address.  If you seek to contact the OAG, please follow the process that is explained on the agency’s website:  www.texasattorneygeneral.gov.  Thank you.


From: LGL Public Info [mailto:Legal.Publicinfo@houstontx.gov]
Sent: Tuesday, January 22, 2019 1:20 PM
To: Safe Libraries
Cc: Gonzalez, Marjorie - HPL gov>; HPL Communications gov>; Middleton, John - HPL ; publicrecords
Subject: RE: Dan Kleinman: Your Texas Public Information Request received December 26, 2018 - GC 25685





URL of this page: 
safelibraries.blogspot.com/2018/12/foia-request-of-houston-public-library.html

On Twitter: 
@ALAlibrary @HoustonLibrary @nfoic