The leading question is exactly why did the library go all the way to Texas Attorney General Ken Paxton to try to delay and quash three separate requests for public documents relating to drag queens reading to children? I do not know yet, but it seems apparent they have something to hide. We are talking about a public library that supposedly supports freedom of speech and intellectual freedom, yet this library suppressed just that, spending who knows how much money in legal fees, even though sunshine laws compel production of such documents, at least in my case.
[Note added 15 March 2019: It appears I was spot on. The library admitted to allowing a registered sex offender to read to children at Drag Queen Story Time. This may be related to why the library acted as it did. The library is quoted on KHOU to have said, "“WE DEEPLY REGRET THIS OVERSIGHT AND THE CONCERN THIS MAY CAUSE OUR CUSTOMERS. WE REALIZE THIS IS A SERIOUS MATTER.” Just an "oversight." I see. More Drag Queen Story Times are scheduled.]
I have not seen the other two FOIA requests on that library (called TPIA in Texas), but mine was directed toward whether the library was following the law and its own policy. I cannot yet say much else because I have yet to receive the documents the Attorney General ordered to be released to me and others. And I may have to file additional FOIA requests.
- "Shut Up!: The Bizarre War that One Public Library Waged Against the First Amendment," by Megan Fox and Kevin DuJan, 26 May 2016. Full disclosure: I'm Chapter 30.
Here's what I wrote in the past on this issue:
- "FOIA Request of Houston Public Library by SafeLibraries - 01," by Dan Kleinman, SafeLibraries, 27 December 2018.
- "Houston MassResistance Activists Have a 'Drag Queen Story Hour' Victory Against Huge Odds; Up Against Aggressive Pro-LGBT Politicians and Deranged LGBT Activists; After Months of Battling: In the City Council Chambers, in the Streets Outside of Public Library, and Beyond," by Brian Camenker, MassResistance, 24 February 2019.
- "Houston MassResistance Parents Confront the Library – On the Way to 'Drag Queen Story Hour' Victory; Fearlessly Turning Up the Heat!; Rabid LGBT Activists, Corrupt Library Officials, and Even Police Try to Stop Parents," by Brian Camenker, MassResistance, 27 February 2019.
- "Derailing the 'Drag Queen Story Hour': How the Houston City Council and Library Officials Finally Caved In to MassResistance Parents; … And What Comes Next; Pounding Them with the Horrors and Corruption Surrounding This Depraved Event; See Powerful VIDEO of Parents Confronting City Officials!," by Brian Camenker, MassResistance, 4 March 2019.
- "Drag Queen Story Time; An Exposé by Houston MassResistance," — "163 pages, including 18 exhibits. CAUTION: several graphic images and descriptions," by Houston MassResistance, Houston MassResistance, undated.
CITY OF HOUSTON
Legal Department
Sylvester Turner
Mayor
March 13, 2019
Sent via electronic mail to:
Dan Kleinman
safelibraries@gmail.com
Re: Your Texas Public Information Act request received on December 26, 2018, for various information regarding the City of Houston Public Library and Drag Queen Story Hour; Attorney General Informal Letter Ruling OR2019-06437. GC No. 25685
Dear Mr. Kleinman:
As you are aware from your copy of Attorney General Informal Letter Ruling 2019-06437, the City has received a response to our request for an opinion from the Attorney General. Because the Attorney General has determined that we must withhold portions of the information you requested, may withhold other portions, and must release the remainder of the responsive documents to you, we are closing our file on this matter.
By copy of this letter, we are requesting that the Houston Public Library provide the responsive documents to you in accordance with the Attorney General's ruling. If you have a question about your public information request, please contact Marjorie Gonzalez at (832) 393-1340.
Sincerely,
/s/
Jill Bradford
Senior Paralegal
Enclosure
cc: Marjorie Gonzalez, HPL
Z:\GENERAL\JMB\WH-19\Kleinman 25685.docx /ORF/
KEN PAXTON
ATTORNEY GENERAL OF TEXAS
March 7, 2019
[[RECEIVED - MAR 11 2019 - GENERAL COUNSEL]]
Ms. Danielle R. Folsom, Mr. Rahat Huq, & Ms. Nneku Kan
Assistant City Attorneys
City of Houston
P.O. Box 368
Houston, Texas 77001-0368
OR2019-06437
Dear Ms. Folsom, Mr. Huq, and Ms. Kanu:
You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Yourrequest was assigned ID# 753435 (GC Nos. 25665, 25685, 25693).
The City of Houston and the Houston Public Library (collectively, the "city") received three requests from different requestors for information pertaining to specified policies of Houston Public Library (the "library") and the Drag Queen Story Hour during specified periods.[1] You state the city does not have information responsive to portions of the requests.[2] You claim the requested information is excepted from disclosure under section 552.103 of the GovernmentCode. We have considered the exception you claim and reviewed the submitted
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[1] We note you sent the first requestor an estimate of charges pursuant to section 552.2615 of the Government Code. See Gov't Code § 552.2615. The estimate of charges required the requestor to provide a deposit for payment of anticipated costs under section 552.263 of the Government Code. See id. § 552.263(a). You inform us the city received the required payment on December 6, 2019. See id. § 552.263(e) (if governmental body requires deposit or bond for anticipated costs pursuant to section 552.263, request for information is considered to have been received on date governmental body receives bond or deposit).
[2] We note the Act does not require a governmental body to disclose information that did not exist at the time the request was received. Econ. Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.-San Antonio 1978, writ dism'd); Attorney General Opinion H-90 (1973); Open Records Decision Nos. 452 at 2-3 (1986), 342 at 3 (1982), 87 (1975); see also Open Records Decision Nos. 572 at 1 (1990), 555 at 1-2 (1990), 416 at 5 (1984).
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Ms. Danielle R. Folsom, Mr. Rahat Huq, Ms. Nneku Kanu- Page 2
representative sample of information.[3] We have also received and considered comments from the third requestor. See Gov't Code § 552.304 (interested party may submit comments stating why information should or should not be released).
Initially, we note the first requestor asks the city to answer questions. The Act does not require a governmental body to answer factual questions, conduct legal research, or create new information in responding to a request. See Open Records Decision Nos. 563 at 8 (1990), 555 at 1-2 (1 990). However, a governmental body must make a good-faith effort to relate a request to any responsive information that is within its possession or control. Open Records Decision Nos. 561 at 8-9 (1990), 555 at 1-2. We assume the city has made a good-faith effort to do so.
Next, we note the third requestor asserts the city failed to comply with the procedural obligations under the Act with respect to his request. Pursuant to section 552.301(b), a governmental body must ask for a decision and state the exceptions that apply within ten business days of receiving the written request. See Gov't Code § 552.301(b). The request at issue was sent to the city after business hours on December 21, 2018, and you state the city was closed on December 24, 2018, and December 25, 2018. Therefore, for purposes of section 552.301, the city received the request for information on December 26, 2018. This office does not count the date the request was received or days a governmental body is closed for the purpose of calculating a governmental body's deadlines under the Act. The city also states it was closed on January 1, 2019. The envelope in which the city submitted to this office the information required by section 552.301(b) bears a meter-mark of January 10, 2019. See id. § 552.308(a) (prescribing rules for calculating submission dates of documents sent via first class United States mail, common or contract carrier, or interagency mail). Thus, we conclude the city's correspondence to this office was timely mailed. Consequently, we find the city complied with the procedural requirements mandated by section 552.301 of the Government Code with respect to the third request.
We note the city seeks to withhold, among other things, fliers, library event calendars, and library policies that may have been released to the public. The Act does not permit selective disclosure of information to the public. See id. §§ 552.007(b), .021; Open Records Decision No. 463 at 1-2 (1987). Informationthat has been voluntarily released to a member of the public may not subsequently be withheldfrom another member of the public, unless public disclosure of the information is expressly prohibited by law or the information is confidential under law. See Gov't Code § 552.007(a); Open Records Decision Nos. 518 at 3 (1989), 490 at 2 (1988). Although you raise section 552.103 ofthe Government Code for the information at issue, this section does not prohibit the release of information or make information confidential. See Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469, 475-76 (Tex. App.-Dallas 1999, no pet.); Open Records Decision Nos. 665 at 2 n.5 (2000)
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[3] We assume the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.
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Ms. Danielle R. Folsom, Mr. Rahat Huq, Ms. Nneku Kanu- Page 3
(discretionary exceptions generally), 663 at 5 (1999) (waiver of discretionary exceptions). Thus, to the extent the city voluntarily released any of the submitted information to the public, the city may not now withhold such information under sections 552.103 but must instead release it. However, to the extent the city has not voluntarilyreleased any of the submitted information to the public, we will consider your argument under section 552.103 of the Government Code.
We also note some of the submitted information is subject to section 552.022 of the Government Code. Section 552.022(a) provides, in relevant part:
(a) [T]he following categories of information are public information and not excepted from required disclosure unless made confidential under this chapter or other law:
(1) a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by Section 552.108; [and]
...
(17) information that is also contained in a public court record[.]
Gov't Code § 552.022(a)(l), (17). The submitted information includes a completed report that is subject to section 552.022(a)(l), and a court-filed document subject to section 552.022(a)(17). The city must release the completed report pursuant to section 552.022(a)(1) unless it is excepted from disclosure under section 552.108 ofthe Government Code or made confidential under the Act or other law. See id. § 552.022(a)(l). The city must release the information subject to section 552.022(a)(17) unless it is made confidential under the Act or other law. See id. § 552.022(a)(17). You seek to withhold the information subject to section 552.022 under section 552.103 ofthe Government Code. However, section 552.103 is discretionary in nature and does not make information confidential under the Act. See Dallas Area Rapid Transit v. Dallas Morning News, 475-76; see also ORD 665 at 2 n.5 (2000) (discretionary exceptions generally), 663 at 5 (1999) (waiver of discretionary exceptions). Therefore, the city may not withhold the information subject to section 552.022 under section 552.103 of the Government Code. As you raise no further exceptions for the completed report, which we have marked, the city must release this infornation pursuant to section 552.022(a)(l). However, because section 552.101 of the Government Code makes information confidential for purposes of section 552.022, we will consider the applicability of this exceptions to the information subject to section 552.022(a)(17).[4] Further, we will consider your argument under section 552.103 for the information not subject to section 552.022.
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[4] The Office of the Attorney General will raise a mandatory exception on behalf of a governmental body, but ordinarily will not raise other exceptions. See Open Records Decision Nos. 48 1 (1987), 480 (1987), 470 (1987).
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Ms. Danielle R. Folsom, Mr. Rahat Huq, Ms. Nneku Kanu- Page 4
Section 552.101 of the Government Code excepts from disclosure "informationconsidered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. Section 552.101 encompasses section 560.003 of the Government Code. Section 560.003 provides that "[a] biometric identifier in the possession of a governmental body is exempt from disclosure under [the Act]." Id. § 560.003; see also id. §§ 560.001(1) (defining "biometric identifier" to include fingerprints), .002(1)(A) (governmentalbody may not sell, lease, or otherwise disclose individual's biometric identifier to another person unless individual consents to disclosure), .003 (biometric identifiers in possession of governmental body exempt from disclosure under the Act). Section 560.002 of the Government Code provides, in part, however, "[a] governmental body that possesses a biometric identifier of an individual . . .may not sell, lease, or otherwise disclose the biometric identifier to another person unless . . . the individual consents to the disclosure[.]" Id. § 560.002(1)(A). We have marked a fingerprint. In this instance, the first requestor is the individual whose fingerprint is at issue. Accordingly, the marked fingerprint information must be released to the first requestor pursuant to section 560.002(1)(A). Therefore, the city must release the entirety of the court-filed document to the first requestor pursuant to section 552.022(a)(17). However, there is no indication section 560.002 permits the disclosure of the marked fingerprint information to the second and third requestors. Therefore, the city must withhold the information we have marked from the second and third requestors under section 552.101 in conjunction with section 560.003 of the Government Code. The city must release the remaining information in the court-filed document to the second and third requestors pursuant to section 552.022(a)(17) of the Government Code.
We will now address your argument under section 552.103 of the Government Code for the remaining information. Section 552.103 of the Government Code provides as follows:
(a) Information is excepted from [required public disclosure] 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 a 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 requestor applies to the officer for public information for access to or duplication of the information.
Gov't Code § 552.103(a), (c). A governmental body has the burden of providing relevant facts and documents to show the section 552.103(a) exception is applicable in a particular situation. The test for meeting this burden is a showing (1) litigation was pending or reasonably anticipated on the date the governmental body received the request for information, and (2) the information at issue is related to that litigation. Univ. of Tex. Law
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Ms. Danielle R. Folsom, Mr. Rahat Huq, Ms. Nneku Kanu- Page 5
Sch. v. Tex. Legal Found., 958 S.W.2d 479, 481 (Tex. App.-Austin 1997, orig. proceeding); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.-Houston[lst Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). A governmental body must meet both prongs of this test for information to be excepted under section 552.103(a).
You state, and provide documentation showing that at the time the city received the first and second requests, the city was a party to pending litigation styled Christopher, et. al v. Lawson, et. al, Case No. 18 CV3943, in the United States District Court for the Southern District of Texas, Houston Division. You also inform us the city's motion for summary judgment was granted and the claims against it were dismissed before the third request was received. However, you also state the deadline for filing an appeal had not passed as of the date the city received the third request. Based on your representations and our review, we find the city was a party to pending litigation at the time it received the instant requests. You also state the information at issue pertains to the substance of the lawsuit claims. Based on your representations and our review, we find the information at issue is related to the pending litigation. Therefore, we conclude the city may withhold the remaining information under section 552.103 of the Government Code.
Generally, however, once information has been obtained by all parties to the litigation though discovery or otherwise, no section 552.103(a) interest exists with respect to that information. See Open Records Decision Nos. 349 (1982), 320 (1982). Thus, information that has either been obtained from or provided to all parties to the pending litigation is not excepted from disclosure under section 552.103(a) and must be disclosed. Further, the applicability of section 552.103(a) ends once the litigation has concluded. See Attorney General Opinion MW-575 (1982); see also Open Records Decision No. 350 (1982).
In summary, to the extent to the extent the city voluntarilyreleased any of the submitted information to the public, the city must release it. The city must release the completed report, which we have marked, pursuant to section 552.022(a)(l) of the Government Code. The city must release the entirety of the court-filed document to the first requestor pursuant to section 552.022(a)(17) ofthe Government Code. The city must withholdthe information we have marked inthe court-filed document under section 552.101 ofthe Government Code in conjunction with section 560.003 of the Government Code and release the remaining information in the court-filed document to the second and third requestors pursuant to section 552.022(a)(17) of the Government Code. The city may withhold the remaining information under section 552.103 of the Government Code.
This letter ruling is limited to the particular information at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other information or any other circumstances.
This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For more information concerning those rights and responsibilities, please visit our website at http://www.texasattorneygeneral.gov/open/
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Ms. Danielle R. Folsom, Mr. Rahat Huq, Ms. Nneku Kanu- Page 6
orl_ruling_info.shtml, or call the Office of the Attorney General's Open Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for providing public information under the Act may be directed to the Office of the Attorney General, toll free, at (888) 672-6787.
Sincerely,
/s/
Matthew Taylor
Assistant Attorney General
Open Records Division
MHT/gw
Ref: ID#753435
Enc. Submitted documents
c: 3 Requestors
(w/o enclosures)
NOTE ADDED 14 MARCH 2019:
My secure email (that only I get and that no company like Google, Facebook, Twitter can read) is SafeLibraries@pm.me, should anyone wish to contact me via that means. LIBRARIANS WORKING AT HOUSTON PUBLIC LIBRARY are welcome to contact me there or to send documents to me there. I'm weaving this paragraph into my reporting above.
NOTE ADDED 15 MARCH 2019:
BREAKING @KHOU @HoustonTX: @houstonlibrary ADMITS REGISTERED SEX OFFENDER READ TO KIDS AT DRAG QUEEN STORY HOUR!!
“WE DEEPLY REGRET THIS OVERSIGHT AND THE CONCERN THIS MAY CAUSE OUR CUSTOMERS. WE REALIZE THIS IS A SERIOUS MATTER.”
BREAKING @KHOU @HoustonTX: @houstonlibrary ADMITS REGISTERED SEX OFFENDER READ TO KIDS AT DRAG QUEEN STORY HOUR!!— Dan Kleinman (@SafeLibraries) March 16, 2019
“WE DEEPLY REGRET THIS OVERSIGHT AND THE CONCERN THIS MAY CAUSE OUR CUSTOMERS. WE REALIZE THIS IS A SERIOUS MATTER.”https://t.co/dWO9t9JX1m #alaac19 #moms #dads pic.twitter.com/ioOJINrrLl
NOTE ADDED 28 MARCH 2019:
I found the opinion I published above has a citation having been officially reported:
- Texas Attorney General Letter Rulings; Administrative Determination Document, 2019 Tex. AG Ltr. Rul. LEXIS 5687 No. OR2019-06437 (March 7, 2019)
—
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safelibraries.blogspot.com/2019/03/houston-library-forced-foia.html
On Twitter:
@HoustonLibrary @HoustonTX @KenPaxtonTX
@MassResistance @SunshineWeek @TXAG
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