This is a § 552.269 Cost Complaint regarding the Houston Public Library, for twelve reasons the charges are excessive, given three attached exhibits:
- my original request for documents (Dec 21, 2018),
- Administrative Determination Document, Texas Attorney General Letter Rulings, 2019 Tex. AG Ltr. Rul. LEXIS 5687 No. OR2019-06437 (Mar 07, 2019), and
- Houston Public Library’s first ($181 on Jan 10, 2019) and second ($145 on Mar 26, 2019) request for fees.
1) This is a matter where the Houston Public Library ignored its own policies and allowed a convicted sex offender to read to children. I would not even be making TPIA requests but for the Library’s poor judgment that has led to this debacle that has become international news. Now, as people investigate the matter, the Library is charging fees for that investigation. It’s galling. The Library should itself be exposing the full extent of what happened, not leave it to reporters to make TPIA requests, then charge them for that access. It is akin to the equitable doctrine of dirty hands or perhaps laches.
2) This is a matter of such considerable importance that even Governor Greg Abbott has raised the issue. On Twitter, he stated, “How much are you paying for a library where a registered sex offender participated in Drag Queen Storytime? The Fact is, Houston spends plenty of taxpayer dollars for services that are not essential. Houston, just like other cities, can handle property tax reform. #txlege” The entire State of Texas and its government, indeed the Governor himself, is interested in this matter at the Library, and it is simply unbelievable that anyone would be charged a fee for this investigation, especially given the circumstances. See: https://twitter.com/GregAbbott_TX/status/1107418383568506880
How much are you paying for a library where a registered sex offender participated in Drag Queen Storytime? The Fact is, Houston spends plenty of taxpayer dollars for services that are not essential. Houston, just like other cities, can handle property tax reform. #txlege https://t.co/wElUEuok1t— Greg Abbott (@GregAbbott_TX) March 17, 2019
3) I am one of a number of people who have filed TPIA requests. Much of the information we are requesting is duplicative. Yet we are all being charged fees for the same responses. There are three of us mentioned in Administrative Determination Document, Texas Attorney General Letter Rulings, Mar 07, 2019, 2019 Tex. AG Ltr. Rul. LEXIS 5687 No. OR2019-06437. So essentially we are being triple billed. Can you imagine if a law firm triple billed? It would become a movie based on a book by John Grisham. If there is triple billing occurring and interstate mail or email was being used, then there’s a possibility mail fraud and/or wire fraud criminal provisions could be triggered. So the Library is charging me for essentially a triple-billed fee that, since it was sent to out-of-state requestors, may violate criminal laws, depending on the circumstances.
|Graphic credit: Steve Dickey, ATF Special Agent|
Jeff Cohen ATF Associate
4) I have learned from an Open Records Request Summary, State of Texas, Library and Archives Commission, February 2019, that fees involve “[c]alculations based on salary + estimated cost of benefits. The most recent SAO total compensation percentages were used.” Charging me fees is sort of double billing. Employees are paid to work full-time. They receive benefits for working full-time. Completing TPIA requests are performed during working hours. I have no control over pay nor benefits nor who is selected to perform the work. I am not hiring that person to work for me making me subject to paying wages and benefits. I see absolutely no reason for me to be charged “based on salary + estimated cost of benefits.” That employee is not docked the wages and benefits by the Library that I am now being forced to pay him if I want a response to Texas open government laws. Isn't their government job to respond to FOIA requests? Why are they charging for labor like it's an auto repair shop? To me, that’s either double billing or unjust enrichment. And in a case where the Library is trying to stem the flow of public information about how it completely failed to protect children as required by Houston City Code 24-5 that requires the Library’s director to “promote an environment that is protective of the health and well-being of patrons and children,” yet the Library allowed a registered pedophile to read to children during a public program, that is especially unfair. I am being charged a fee for the Library failing to do its job, and I’m being double billed for it. This is completely shocking See: https://www2.texasattorneygeneral.gov/open/pia/reports/view.php?recid=30086
5) As I investigate this matter, I may have to and have already filed severals TPIA requests. I am reporting on egregious and shocking malfeasance and nonfeasance at the Houston Public Library. I need the information to provide as accurate a picture as possible. Even the Texas Governor wants to know, “How much are you paying for a library where a registered sex offender participated in Drag Queen Storytime?” The library is not forthcoming with any information. Its only response is to apologize and to promise it will provide “appropriate” “oversight,” something at which it has already failed. So I will need to file a number of TPIA requests to expose the facts. At the rate the Library is going, I could be paying a thousand dollars for this information given the above situation. That’s just shocking. The Library is completely overcharging. And it’s likely overcharging all other reporters investigating this matter. It’s literally becoming a money-making business for the Library. Is this what the Texas open government laws allow? I highly doubt it.
6) I am asking for all documentation to be delivered via electronic means. There is no charge for paper, no charge for compiling paper copies of various things, no charge for photocopying, no charge for postage, no charge for materials, nothing. Just electronic files. I should not be charged for that. That’s another reason I’m being overcharged.
7) The Houston Public Library has chosen to take the position I am not a reporter (I am), just an annoying person (not true) harassing the Library (a false ad hominem argument to avoid the issues) because I hate gays (not true, indeed I have exposed homophobia at American Library Association). I have been reporting on crimes at public libraries for almost two decades. Pulitzer Prize winning author David K. Shipler wrote about me in his book, “Freedom of Speech, Mightier Than the Sword.” The author of the Children’s Internet Protection Act called me a “trusted source” on American Library Association misdirection. My work appears in American Library Association’s “Intellectual Freedom Manual” and is written about in library schools worldwide. I am a reporter. The Library should not charge me, a reporter, anything at all for these records, especially under the egregious circumstances.
8) I am aware of some reporters who were charged fees for documentation covered under TPIA and who did not pay the fees so they did not get the documents, thereby stifling public dissemination of public documents as required by Texas law. The Library likely knows charging fees is an effective tactic to weed out requests. Worse, such dubious actions are discriminatory against people not financially able to provide three or four hundred dollars for public records. Fortunately I was only charged $181, then $145, but still. If you’re poor, you don’t get the records. I cannot believe this is even a tactic being used to suppress public information but there it is.
9) The Library is in a position to prevent much of this. Were it to provide TPIA requests and responses on a web site, being truly transparent, there might be no need for people to file TPIA requests. For example, the Orland Park Public Library, IL, has just such a web site, and click on “Public Records Archive” to see all requests and all responses: http://orlandparklibrary.mycusthelp.com/webapp/_rs/SupportHome.aspx So we are here because the Library is not transparent. Indeed, when I filed my first TPIA request, the online information at http://www.houstontx.gov/pia.html was incorrect in that it provided the wrong contact information. The library reacted by correcting the information then adding a form to allow for an online submission that contained a single line to enter text. Clearly the Library does not want TPIA requests being filed. And that same online information does not even list the Houston Public Library Foundation. It’s like they are hiding. So the Library is hiding and is opaque and the few people who get past those obstacles are then, among other delays, charged fees that some cannot pay. So let alone the Library caused the problem by allowing a pedophile to read to children, it also caused the problem by being opaque. I should not be changed fees for getting around the process obstacles the Library caused. Further, they can keep charging indefinitely for the same documents for which different people ask because people never know if someone already asked for this or that and if it’s already been produced. It’s like selling the same car to seven different people. It’s a scam on the public. That Orland Park library avoids this very problem by being transparent. I should not be charged a fee where the library could have stopped the opacity problem and become transparent.
10) This is a matter of public safety. The Library allowed a pedophile to read to children once. It is quite possible it could happen again. People need to know to protect their children and should learn about this case to help make that happen. For the public safety aspect of this matter, no fees should be charged. I have been overcharged.
11) I am overcharged and should not be charged a fee because I am doing the Library’s work and providing a valuable public service by gathering and organizing documentation related to this matter, somewhat like what Orland Park library did as shown above.
12) Lastly, the Administrative Determination Document states, “The city must release the completed report,” not that the city may release it, conditioned on payment of an unjust and unfair fee. “The city must release the entirety of the court-filed document,” says “must” not may, dependent on whether the requester pays up.
I have provided twelve different reasons why I have been overcharged and why I should not be charged at all. All of the reasons are serious and make valid points.
I respectfully request that the Houston Public Library be required to provide the records at no cost to me. The Administrative Determination Document states, “The city must release the completed report,” not that the city may release it, conditioned on payment of an unjust and unfair fee. “The city must release the entirety of the court-filed document,” says must not may, dependent on whether the requester pays up.
|Houston Public Library - "Here's What's Happening"|
What's happening? Censorship is happening.
Further, as I will have to file more TPIA requests for more information as time and my research goes on, I ask that you consider advising the library that the above overcharge concerns apply to my future TPIA requests on this malfeasance matter as well. And consider if the Library should be directed to supply all reporters working this issue with the same respect.
Dan Kleinman, Owner of SafeLibraries® brand library educational services
To: Texas Attorney General Ken Paxton
March 29, 2019
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