Voters may have trouble this election season if they want to see the applications submitted to be on the Waxahachie ISD school board.
If someone were to request to see candidate applications in full, school district officials are having to the Texas Attorney General for a ruling on whether the documents can be released, because of a change to the Public Information Act this year.
The change, which rules birth dates are considered protected under common-law privacy, is too vague and possibly causing the Texas Election Code and Texas Government Code to conflict, said Jenny Bridges, the district's spokesperson.
So far, the district has asked for a ruling from the attorney general on two requests, one of which may have the power to sway at least 28 voting households in rural Waxahachie come Election Day on May 7.
“Our response, when we get public information requests, is to thoroughly look at the information being requested and make sure there's no protected information being requested,” Bridges said, adding “protected information” means information the district has an obligation to protect. “When those forms were reviewed, we realized they include a birthday.”
Under the Public Information Act, section 552.101, part VI “Dates of birth of members of the public,”
dates of birth of members of the public are contained in a wide variety of public records. In the past, according to the document, the attorney general has ruled dates of birth for public officials are not protected under common-law privacy, but a court case with current Attorney General Ken Paxton versus the city of Dallas in the Third Court of Appeals ruled differently. The act now states the following:
In its opinion, the court of appeals looked to the supreme court's rational in the Texas Comptroller of Public Accounts versus the Attorney General of Texas, where the supreme court concluded public employees' dates of birth are private under section 552.102 of the Government Code because the employees' privacy interest substantially outweighed the negligible public interest in disclosure. Based on the Texas Comptroller [ruling], the court of appeals concluded the privacy rights of public employees apply equally to public citizens, and thus, public citizens' dates of birth are also protected by common-law privacy. Consequently, dates of birth of members of the public are generally protected under common-law privacy.
Where that change directly conflicts is in the Election Code, where potential candidates must provide a birthdate to apply for a position in Texas.
For Waxahachie resident Jr. Clayton, the confusion is preventing he and his neighborhood from possibly finding out about this year's school board candidates in a way they've done the past two years, when copies of the applications were easy to get, he said.
Clayton lives out near Old Waxahachie Road, a rural part of town sitting just before the Ennis city lines, he said, adding he's lived in Waxahachie for 16 years. For the past two years, he and his neighbors have asked for the applications to call candidates directly and learn about them. Once they've done that, he and a few others would host meals to discuss the candidates together and put together packets with information on each candidate and voter registration cards before early voting to encourage voters in those 28 homes to make educated, informed, voting decisions, he said.
“This year, 2016, was supposed to be the best of all, but I walked in five days after having dropped off my written request, and was told, 'I'm sorry, it's with the attorney general,'” Clayton said, adding if he's able to inform voters this year, his neighborhood will have helped get all seven school board members elected.
By law, once an open records request is turned in, the responding agency has to provide an answer within 10 business days, either producing the information or letting the requester know a ruling from the attorney general has been asked for. If a ruling has been asked for, the attorney general has up to 45 business days to respond. Clayton's request was turned in on March 2, and the school district is out for spring break from March 14-18.
A couple days after her submitted the request, Clayton was told phone numbers for this year's six candidates could be released, but he'd have to rescind the original open records request, and turn in a new one asking for the numbers.
“My concern is now will information be released before the vote, or are we keeping secrets until after the vote?” Clayton said, adding the wording of his request from the first two years wasn't any different this year. “But there hadn't been a question about this last year, and I was shocked and I still am. I really was troubled by, 'Yes, we can get you there names and phone numbers, but not yet their addresses. We're getting the AG to check into that, but their phone numbers, you can call them. And if they choose to give their addresses or any other information of themselves, then you can get that. But you'll need to rescind your other request of us.' ”
Befuddled by the response, Clayton was shocked to learn addresses were now being called into question as well, considering he and his neighbors would sometimes send endorsement checks to candidates.
Clayton first wondered if the lack of access to public information first had anything to do with the fact there have been three different public information officers in the district in the past three years, but said that couldn't be right. Clayton said he was told by Bridges that the one candidate who didn't want his address released fell under some of the same protection a district employee did.
“I said 'Are we talking employee here?' 'Well, no, but our trustees fall under some of the same protection and confidentiality as employees.' I said, 'OK, well, they want our vote out here, don't they? They want my vote, don't they?'” Clayton said. “I get to know a bit more about them than I would an employee because I've got to make a pretty precious decision about whose name do I darken for the ballot.”
The issue, she said, is the district has a current school board member seeking re-election.
“Employees of the district are allowed to close their public information, and we extend that our school board members,” Bridges said. “Even though they aren't employees of the district, they are working in a capacity for the district. They are able to close their information so people can't call down to the building and say, 'I would like so-and-so's home address. We're seeking the attorney general's opinion as to whether that covers the election document as well. That doesn't impact the release of the other applications. You can get the addresses on the other documents, except for that one.”
Bridges, who admits she's still familiarizing herself with the Public Information Act changes, said the district has no skin in the game and it's responsibility is that if there's a question related to an open records request, to seek the attorney general's opinion.
“There have also been some cases in which email addresses are protected, and so that was another thing we sent off to the attorney general,” Bridges said. “Our obligation, as a public entity, is to provide information to the public under the Public of Information Act. We do also have an obligation to protect the information we're entrusted with. So, if we think information requested could lead the the identification of a student or we think the information contained in the document someone would like to have is someone's personal formation, we are also obligated to protect that information. So, we send it off to the attorney general and ask their opinion. They make a ruling, and we're always happy to provide anything the attorney general says we're under obligation to provide that information, and the attorney general may very well come back and say none of the information is protected because it's on an election document.”
Because the new statute isn't 100 percent clear, WISD officials have to make sure which the attorney general believes the district is under the most obligation to follow, she said.
“If residents want information from us, we're always happy to provide it, but there is a process. If the information is protected information or confidential information, we owe that to the people who have entrusted us with that information,” Bridges said.
At this point, there are certain pieces of the candidate forms that are in question, Bridges said. If residents or voters would like to see the applications, Bridges said they can still be requested, but information may be redacted.
“People are welcome to make public information requests, and they can get copies of the forms, just with the information in question redacted,” Bridges said. “Information available, is obviously, their names, they can see where and how long they've lived in Waxahachie, in the county, in the state, phone numbers, and addresses, unless the address can't be released as in the occasion of Mr. [Floyd] Bates. The only things redacted are email addresses and dates of birth.”
She went on to say the Public Information Act is complex, and the district is lucky to have a resource in the attorney general to help balance requests and make informed decisions.
“As a public information officer, I don't want to be the one to say so-and-so's information is releasable to the public, and be wrong about it,” Bridges said. “I'm glad we have the attorney general there to say, 'Yes, that can go out' or 'No, that needs to be blocked.'”
As for Clayton, the complexity of the Public Information Act doesn't make the situation any less frustrating. All he wants to do is help others perform their civic duty in an informed manner, he said, adding he knows a single vote can make a wold of difference.
“I've gotten a little attention from some of these fellows, saying 'Well, I'd like to come out and speak to you folks.' Well, we're not yet sitting down in rows and speaking with the candidates, but we are pulling up our tractors and mowers together. We are going on front porches and making a few trips into town here,” Clayton said. “We came out here for our retirement home. We've got the pond and the barn. And we've got our grandson. We get him ready for school each morning, and then we take him in with Grandma's good breakfast and we meet the school bus at the head of the drive in the afternoon. So, we're conscious of that, and we help with homework as much as we can. We're into that sort of thing, and the cost of college and lack of jobs, and so we try to let some of our enthusiasm spill over.
“It's worth noting the general delivery of everything we know in those 28 packets we delivered last year, and we'll do it again this year. We are responsible, American voters out there who only want information and truth, and our ballots and choices will be just as truthful and informative to the administration about the way we want things to go.”
Contact Shelly Conlon at 469-517- 1456 or email firstname.lastname@example.org. Follow her on Twitter @ shellyconlonwdl.