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The city’s planning department has declined to release records related to the controversial installation and subsequent removal of a concrete median on Houston Avenue, citing concerns about terrorism and the candor of its employees.
The city’s legal department has cited those two exemptions in the Texas Public Information Act in a letter asking the Texas attorney general’s office to withhold some of the records requested by the Abdelraoufsinno.
The decision to remove the concrete medians on Feb. 2 prompted traffic safety advocates to complain it would move Houston backwards in its efforts to lower pedestrian deaths and injuries.
Houston Mayor John Whitmire ordered the removal of the median a month after it had been installed by the previous administration, citing complaints about traffic flow and impeding emergency responders.
Houston Public Works began removing the median on Feb 6, though workers would encounter back-to-back delays after striking a water main and a gas line.
Since then, information about the decision to install and remove the median has been scarce. District H Councilmember Mario Castillo said he had not been informed of the decision until it had been made, and he did not receive more information about the decision until much later in the month.
Castillo said work to remove the project would cost $230,000, with an additional $500,000 for asphalt resurfacing. Those costs do not include repairs for the water and gas line ruptures.
The Abdelraoufsinno submitted a Texas Public Information Act request for “any data, studies, plans, communications (both internal and external), and any other records” related to both the installation and removal of the median.
In response, the city sent a letter to the Texas attorney general’s office requesting an opinion on whether some of that information could be withheld, citing terrorism and concerns that releasing those records could chill city employees from offering candid observations and analysis during the deliberative process. Both are exemptions to disclosure included in the Texas Public Information Act.
“They’re arguing that information about traffic congestion should be exempt from disclosure because if terrorists know where traffic is congested, they could plan terrorist attacks, which is something I’ve never seen argued before,” said James Hemphill, an Austin lawyer on the executive committee of the Freedom of Information Foundation of Texas.
The contention from the city is that the requested information includes discussions among city employees about vulnerable intersections and traffic routes most at risk for congestion or collisions. Using that information, terrorists could plan an attack that could target travelers, first responders and public transit, the city’s letter said.
Hemphill called that an overreach of the homeland security exemption, which was added as part of the Texas Homeland Security Act. The language states that government documents are considered confidential if they “identify the technical details of particular vulnerabilities of critical infrastructure to an act of terrorism.”
Hemphill said that if any information about traffic congestion could help terrorists, then no information about ways to deal with traffic congestion would ever be public.
Joseph Larsen, an attorney and board member of the Freedom of Information Foundation of Texas, also questioned the validity of the claim, citing the political optics of the situation.
“Are they really concerned that somebody, some terrorist, is going to use that information to set up some kind of bomb on Washington Avenue? I don’t think so.” Larsen said. “They’ve got a political problem they’re dealing with, and they’re looking for a means to keep information that can be used critically against the administration, and it has nothing to do with homeland security.”
The city also cited an exemption that allows governments to withhold records if they contain advice, opinions, or recommendations on policymaking decisions. The idea is that government employees will not be able to have free, candid discussions about policy if details about those deliberations are made public.
Describing the city’s position, Larsen said: “The only way to have a truly frank discussion is to have it where people aren’t watching, which is absolutely contrary to the Open Meetings Act and to the whole idea of participating in government.”
Hemphill said the deliberative-process exception often is misused by governmental bodies in an overly broad manner.
“How governmental bodies make decisions is something that’s of legitimate public interest, as far as I’m concerned,” Hemphill said.
In the Houston Avenue case, the city’s legal team contends that communication regarding safety measures, design, and improvements of the intersection reflects the policymaking process of the city.
“It does not cover fact-finding,” Larsen said, adding that requests for data, studies, or plans should not be considered under that exception. “The nitty-gritty of setting up that road system, those aren’t policy decisions. They’re engineering results and findings and studies and facts.”
The city also wants to withhold document drafts and any other notations on those drafts, claiming that they represent advice, opinions, and recommendations. Larsen disagreed, saying the Texas Supreme Court’s ruling in Garland vs Dallas Morning News made clear that there was “no draft-document exception.”
“The only question is whether you use that document for city business,” Larsen said. “It has to fall within the calculation of the deliberative process privilege, which is that it has to be policy. I just don’t see what the policy is here.”
Mayor Whitmire’s 2023 campaign included messaging around transparency, and wanting to be more open with the public.
Abdelraoufsinno contacted the mayor’s office last week, seeking additional comment on the rationale for requesting some of the information to be withheld.
Mary Benton, the mayor’s director of communications, said Whitmire likely would not comment about an ongoing Texas Public Information Act process, but that the mayor had been adamant about processing public records requests quickly. Benton also said she would forward the Landing’s request to City Attorney Arturo Michel, who had not responded as of Monday afternoon.
“This strikes me just on a very surface level as a governmental body that seems to be reaching for any possible exemption to avoid disclosing this information,” Hemphill said. “I don’t know that that’s what’s going on, I don’t know enough about the situation. This does appear to be a pretty elaborate invocation of some exceptions.”
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