Breckenridge Texan

By Tony Pilkington and Carla McKeown/Breckenridge Texan

The City of Breckenridge has denied the Breckenridge Texan’s request for an official copy of a citizen’s complaint filed against the City regarding the recent situation at the City’s animal shelter and has sent the request to the Texas Attorney General’s Office for an opinion on the request.

In the interest of the community’s residents’ right to know what’s going on within their governmental agencies, the Breckenridge Texan is submitting a formal response to the AG’s Office to explain our reasons for why we think the document should be released.

The complaint was filed with City Manager Erika McComis by Stephens County Humane Society President Kathy O’Shields. In the letter, O’Shields complained that on Jan. 4 the Humane Society became aware that seven dogs in the shelter were “emaciated and starving to death,” a claim that O’Shields says was confirmed by a local veterinarian.

When we became aware of the complaint, we contacted McComis and asked for a copy of the letter for a Breckenridge Texan article we were working on. She required us to submit a Freedom of Information Act request for the complaint. However, she also said that even with the request, she would not provide a copy of the complaint without the approval of the Texas Attorney General’s Office, a process that could take up to 55 business days from our initial request.

Neither an FOIA request or an opinion from the AG’s Office are required for a City official to release public documents, such as a complaint from a citizen. In fact, the Texas Public Information Act specifically states that the law itself does not prohibit an official from voluntarily making public information available to the public.

When the Breckenridge Texan was initially denied an official copy of the complaint, we obtained a copy of the letter from another source and confirmed its authenticity. That letter was included with our original story about the animal shelter problem, which was published on Jan. 21. Click here to see a copy of the complaint.

On Feb. 2, eight business days after our initial request, we received a letter from the Assistant City Attorney officially informing us of the City’s decision not to release the complaint to us, based on their belief that it falls under a couple of the few exceptions to the law. Click here to see the letter.

According to the letter the attorney submitted to the AG’s office and copied to the Breckenridge Texan, the City says that the complaint falls under the “Law Enforcement Exception,” which allows an agency to withhold certain information if its release “would interfere with the detection, investigation, or prosecution of crime.” Additionally, the letter to the AG’s Office also states that the City contends that certain information in the complaint falls under the exception granted to internal records or notations of a law enforcement agency or prosecutor that are maintained for internal use in matters relating to law enforcement or prosecution and are exempted from the law if the release of the internal record or notation would interfere with law enforcement or prosecution.

Knowing that law enforcement agencies often cannot release information during an ongoing investigation, we did not request any reports related to the investigation. We only asked for the initial complaint that was filed with the City Manager by a citizen.

After consulting with an attorney with in-depth knowledge of the FOIA, the Breckenridge Texan maintains that the complaint against the City of Breckenridge does not fall under the “Law Enforcement Exception” for several reasons, including but not limited to:

1. Since the complaint is about conditions at the animal shelter, which were already made public via media interviews, it doesn’t seem that the document would in any way interfere with the police investigation. We did not request copies of police statements or other documents from the actual investigation, just the one complaint that was filed by a citizen of the community.
2. Since the information has already been presented to the District Attorney’s Office, it seems that the local police investigation has been completed. So, even if the situation was subject to the Law Enforcement Exception, that concern should be over with now if the investigation is complete. According to District Attorney Dee Peavy, she has received copies of reports related to the case and is in the process of reviewing it.
3. The complaint was leaked to us, verified as authentic and then posted or quoted by the Breckenridge Texan and other media outlets. Therefore, since it’s already been made public, officially releasing it shouldn’t affect the investigation. Refusing to release it seems pointless, as well as waste of time and money on the part of the City of Breckenridge and the Texas Attorney General’s Office.
4. Regarding the contention that the complaint is an “internal record or notation of a law enforcement agency,” we don’t think it falls under that category. Maybe the reports based on the investigation are considered internal, but a complaint filed by a citizen who definitely thought she was filing a public document would not seem, to the average citizen, to be an “internal record.”

Why do we want an official copy of the complaint?

After we received the letter from the Assistant City Attorney, McComis emailed us to ask if we wanted to withdraw our request. We let her know that we still would like an official copy of the complaint from the City of Breckenridge.

Some people may wonder why we’re continuing to pursue the request, since we’ve already received a copy of the complaint from an outside source. It’s basically a two-part verification that journalists use to make sure they have accurate information. We’d like the City to confirm that they received the same complaint that we’ve received from another source.

Additionally, it’s an accountability issue.

The opening paragraph of the Texas Public Information Act states, in part, that the “government is the servant and not the master of the people” and that “The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”

We wholeheartedly agree with that sentiment. We also fiercely believe in the concept that the media is the watchdog for the people and in the Washington Post’s slogan, “Democracy dies in darkness.”

We like Breckenridge, and we think that it’s a community full of nice, kind-hearted people. But, we’re also realistic and know that sometimes bad things happen here. And, when those things happen, we believe that it’s in the best interest of the community members to know what’s going on. Having an informed public is much easier when there is transparency on the part of the local government agencies.

After the Breckenridge Texan’s original story on the allegations of problems at the animal shelter, at least two people shared information that their pets had been at the animal shelter in recent months and were noticeably thinner when they were finally able to get their dogs back. One person said her dog couldn’t walk after 2-3 weeks at the shelter and that it took almost two months to get her strength back.

At the time, the Breckenridge residents didn’t realize that there was a possibility that their dogs weren’t fed. They just thought that their pets were sick or depressed. Now, they think otherwise.

The Texas Freedom of Information Act

According to the Freedom of Information Foundation of Texas, the Texas Public Information Act was originally known as the Texas Open Records Act and approved by the Legislature in 1973 in a reform atmosphere following a stock fraud scandal involving state officials. The law is detailed in Chapter 552 of the Texas Government Code.

Although often used by the media, the FOIA is not limited to media usage. Anyone can request a document using an FOIA request. The request can be made through a letter or via email or fax. It does not need to contain any particular language, but it’s important to be clear, recommends the FOIFT.

The FOIFT website explains:

Covered Entities The law applies to all governmental bodies, including all boards, commissions and committees created by the executive or legislative branch. It also may apply to a body that is supported by public funds or that spends public funds. Private organizations that hold records for governmental bodies also are covered. However, private individuals and businesses are not covered even though they supply goods or services through a government contract.

Types of Information Public information refers to information collected, assembled, produced or maintained in the course of transacting public business. It may be on paper or film or in electronic communications such as emails, Internet postings, text messages or instant messages.

When someone requests public information from a government agency, the first option is for the agency to simply willingly give them the requested information. That is allowed. It’s “public information.” When the public wants the information, the government can give it to them.

Sometimes, government agencies ask or tell the person requesting the information to submit a formal request in the form of an FOIA request or letter. After receiving that request, again, the agency can simply provide the requested information. Sometimes, a request is handled this way to make sure that everyone is in agreement about what specific information is being requested. Other times, officials want proof that the information request was initiated by a member of the public and that they, the officials, aren’t just out spreading government documents around unsolicited.

Other times, the agency requires an FOIA request because they know that they are going to refuse to provide the information and they need the FOIA request to send to the Attorney General.

Once an agency receives an FOIA request, they are required by law to release the information “promptly.” If they maintain that the information is not “public,” they have 10 business days to ask the AG’s Office for a decision about the request. Once the AG’s Office receives the government agency’s request, they have 45 business days to make a decision.

Past and Future

The Breckenridge Texan has never had a contentious relationship with the City of Breckenridge. Although we have not always agreed 100 percent with everyone about everything, we have always managed to come to a cordial agreement on any issue. We hope that this situation works out that way, as well.

Throughout the Breckenridge Texan’s four-and-a-half-year history, we have often requested – formally and informally – information and documents from various government agencies, including the City, Stephens County, the Department of Public Safety, the school district and others. We’ve asked for information about wrecks, fires, deaths, arrests, indictments, commission/board votes, new rules/laws, new employees, and more.

In all of our news coverage, we are acutely aware of the fine line between news and gossip. We never release the names of victims who have died until the investigating agency lets us know that the family has been notified. We also usually don’t release the names of suspects until they have been arrested, charged and/or indicted.

Additionally, we don’t go looking for trouble. But, we’ve always let our friends and acquaintances in official positions know that, while we’re happy to cover their good news – such as employee raises, awards, new services, etc. – we’re also going to cover the news when it isn’t so good because the people have a right to know. In this case involving the animal shelter, we heard rumors from a couple of people and even had hints that there were active efforts to keep us from finding out what was going on. And, when local citizens continued to contact us, asking us to investigate, we started seriously looking in the situation, and we felt like the community deserved to know what we discovered.

Going forward, we intend to continue to cover City business and activities just as we always have. We’ll take pictures at events like National Night Out, and we’ll attend the City Commission meetings. Our COVID-19 quarantine forced us to miss the Feb. 1 meeting, but the City graciously shared their recording of the meeting with us.

We hope that level of cooperation continues, despite our differing opinions on the animal shelter complaint issue.

Make sure you don’t miss any of the Breckenridge Texan’s news…click here to sign up for our email newsletter, the Weekly News Roundup. It has links to stories, photo galleries and more! It’s free to sign up, and it comes to you on Monday mornings (sometimes on Tuesdays after a holiday).