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District continues to withhold public records


More than three weeks after sending a request to Decatur ISD for recorded phone calls between board President Thomas Houchin and former superintendent Joseph Coburn, the district has not turned over the public records.

The Messenger on July 6 asked for a recorded phone call between Houchin and Coburn on June 3, 2021. The following day, after information came to light in public forum during the July 6 school board meeting that more recorded phone calls possibly exist between the two, the Messenger sent a separate request for all recorded audio conversations between the two from May 1, 2021, to July 7, 2021.

The district acknowledged receipt of the public information request on July 7.

The Texas Public Information Act requires public entities to make requested public records available in a timely manner, and it allows the entities up to 10 days to notify requesters if they plan to seek an attorney general’s opinion if they believe the documents fall under an exception to the act and do not have to be disclosed.

On Wednesday morning, the Messenger contacted the school district to check on the status of the request, since the records had not been turned over in the 22 days since the request, and the paper had not been notified, per the law, that the district sought an AG opinion within the prescribed 10 days.

The Messenger received the following email from Sally Rodgers, director of communication and public relations, Wednesday afternoon: “We have referred your request to the DISD legal counsel today. They will respond to your request.”

Because it appears the district may have violated the Texas Public Information Act, the Messenger Thursday contacted County Attorney Thomas Aaberg. This is the second time in a month the paper asked the county attorney’s office to get involved regarding public information requests to the school district.

Aaberg contacted DISD’s legal counsel Thursday afternoon to check the status of the Messenger’s request, and after receiving an inquiry from the county attorney, the firm responded with an email.

Attorney John Wilder confirmed he just received the request from the school district Wednesday.

“We are evaluating the information on behalf of the district to ensure it is handled appropriately and as quickly as possible,” he said. “While the district acknowledges it is past the 10-day deadline, those deadlines do not apply to information that is confidential by other law. We will produce them as soon as we are able.”

The Messenger filed a formal complaint with the county attorney’s office July 7, two weeks after the paper had submitted a public information request for written communication between the Coburn and Houchin and had not received a response from the district.

The Messenger also requested and received a copy of the separation agreement between the school district and Coburn on July 12. That agreement stated it contained a joint statement between the district and Coburn, listed as an attachment, but no attachment was with the agreement given to the newspaper. The Messenger requested a copy of that joint statement, but more than two weeks later, no statement has been provided.

DISD has made a portion of the records requested June 22 available, but the district is seeking an attorney general’s opinion on the release of other information it believes falls under an exception to the Texas Public Information Act.

The district is claiming some of the documents contain communication that falls under attorney-client privilege and the entire document is exempt from disclosure.

Regarding the other documents, the district is raising privacy concern issues, saying the documents contain “highly embarrassing information, the publication of which would be highly objectionable to a reasonable person. The only purpose the release of the information in question would serve would be to hold the District official up to public scorn and ridicule.”

The Messenger has provided a response to that letter to the AG to be considered when making an opinion on the request. Both the letter from the district’s legal counsel and the Messenger’s response is published separately in this issue of the paper.

With district leaders repeatedly turning down offers to provide comments on the reasons for the actions they have taken on recent separation agreements with administrators beyond simply saying that it is privileged information, the Messenger has sought and will continue to seek a number of public records related to this issue and other issues related to transparency, fiscal responsibility and accountability of district leadership as part of a series of stories in coming weeks. The first story in that series is featured on page 1

The paper is also aware that other community members have made recent public information requests of the school district regarding recent actions by the board. Anyone who would like to share the response they have received from the school district is welcome to bring it by the Messenger office at 115 S. Trinity St. in Decatur or email bknox@wcmessenger.com, rgreene@wcmessenger.com or ktribe@wcmessenger.com.

Letters to attorney general on open records

Letter from Walsh Gallegos attorney Tony Resendez to Attorney General Ken Paxton to withhold portions of the Messenger’s information request to Decatur ISD.

Dear Honorable Paxton:

As legal counsel for Decatur Independent School District (hereinafter “Decatur ISD”), I am supplementing the District’s request for a public information determination that was timely submitted to your office on July 7, 2021, by providing Decatur ISD’s arguments and the responsive information in accordance with the Public Information Act, Texas Government Code Section 552.301.

The Request to Decatur ISD

By way of background, on June 22, 20211, Decatur ISD received a request for information from Mr. Brian Knox, Special Projects Manager, with Wise County Messenger, see attached Exhibit “A.” Mr. Knox can be reached by fax at (940) 627-1004 or e-mail at bknox@wcmessenger.com. Responsive information not considered confidential, will be provided to Mr. Knox.

Decatur ISD’s Position

Decatur ISD maintains that a portion of the documents responsive to the request, are confidential and exempt from disclosure under state law. The responsive documents being submitted to your Office for review are attached as Exhibit “B” and numbered AG-0001 through AG-0070.

A. Attorney-Client Communications

A portion of the responsive documents being submitted to your office for review constitutes written communications and text messages between Decatur ISD’s legal counsel, Paige C. Kyle, Wesley Nute and John Wilder, with Walsh Gallegos Trevino Kyle and 1 Decatur ISD was closed on the following Fridays due to their summer hours: June 25, 2021, July 2, 2021 and July

9, 2021. Therefore, this supplemental request for a determination is timely submitted this date. Robinson, P.C., and Decatur ISD officials addressing legal advice concerning an employment matter. Decatur ISD declines to waive the attorney-client privilege or other applicable exceptions under the Public Information Act.2 See documents numbered AG-0001 through AG-0070.

Section 552.107 of the Texas Government Code excepts from public disclosure “information that the attorney of a political subdivision is prohibited from disclosing because of a duty to the client” under the Texas Rules of Evidence or the Texas Disciplinary Rules of Professional Conduct. In ORD-676, this Office stated that “information that is protected under Texas Rules of Evidence 503 is excepted from disclosure under §552.107(1).” Decatur ISD also contends that Rule 503 of the Texas Rules of Evidence also protects the documents submitted for your review in conjunction with section 552.101 of the Texas Public Information Act, which excepts from disclosure information made confidential by law, either constitutional, statutory or by judicial decision. See Tex. R. Evid. 503; Tex. Gov’t Code Ann. § 552.101. In the case at hand, the attached documents constitute attorney-client communications between Decatur ISD’s legal counsel and its officials, as well as between District officials and Administrator that consists of Decatur ISD’s legal advice regarding an employment matter that are protected from disclosure. As such, the documents should not be disclosed.

Applying the test set out by the Attorney General in ORD-676, Decatur ISD first acknowledges that it is a client, who did receive professional legal services from Paige C.

Kyle, Wesley Nute, and John Wilder, attorneys with Walsh Gallegos Trevino Kyle and Robinson P.C.3 Decatur ISD retained this law firm to provide legal advice related to, among other things, legal issues concerning employment matters. Decatur ISD retained the services of this firm to analyze the relevant facts and render legal opinions regarding an employee matter. Throughout the process, Decatur ISD sought legal advice, which included written communications and text messages concerning an employment matter.

Applying the second aspect of the test explained by the Attorney General in ORD-676, Decatur ISD asserts that Tom Houchin (Board President), Joseph Coburn (Superintendent), Melonie Christian (Board Member) Jennifer Wren (Board Member), Marsha Hafer (Board Member), Chris Lowery (Board Member), Kristy Campbell (Board Secretary), and Dylan Barnes (Board Member), are representatives of Decatur ISD through their status as “upper echelon” employees or officials of Decatur ISD. As key employees and officials, these individuals had the authority to obtain professional legal services and to act on the advice rendered on behalf of Decatur ISD. In addressing the specific request concerning the subject matter of the attached documents, these individuals were charged with seeking legal advice and assistance from Paige Kyle, in order to respond appropriately 2 Decatur ISD submits these documents for in camera submission only. In doing so, it does not waive the privileges asserted herein.

3 Valerie Durocher and Triza Wakefield are staff members with the undersigned counsel’s law firm, and are representatives of this firm. As such, Decatur ISD maintains that the privilege asserted above extends to their communications with the client as well. On behalf of Decatur ISD. All communications between legal counsel and these individuals

took place for the purpose of facilitating the rendition of professional legal services concerning the matter referenced in the attached documents and was provided for Decatur ISD’s internal use only.

Applying the third aspect of the test described by the Attorney General in ORD-676, the supporting documents describe with particularity the issues discussed between Decatur ISD officials and its attorney, engaged by Decatur ISD to provide legal advice regarding issues relating to the underlying employment matter. A review of the documents as a whole reveal legal advice, strategy and options contemplated by Decatur ISD concerning the circumstances presented. The attached communications are intended to be confidential and not intended to be disclosed to third persons. Consequently, Decatur ISD maintains that the documents reveal the subject matter of the confidential communications between Decatur ISD officials and their legal counsel and is within the subject matter of Rule 1.05, of the Texas Disciplinary Rules of Professional Conduct. It is the client who owns the privilege, and it is the client who declines to waive it by releasing either the communications or the documents themselves that reveal such communications to third persons.

This Office has held that in order to withhold attorney-client privileged information from disclosure under Rule 503, a governmental body must: (1) show that the document is a communication transmitted between privileged parties or reveals a confidential communication; (2) identify the parties involved in the communication; and (3) show that the communication is confidential by explaining that it was not intended to be disclosed to third persons and that it was made in furtherance of the rendition of professional legal services to the client. Upon a demonstration of all three factors, the information is privileged and confidential under Rule 503, provided the client has not waived the privilege or the documents does not fall within the purview of the exceptions to the privilege enumerated in rule 503(d). Pittsburgh Corning Corp. v. Caldwell, 861 S.W.2d 423, 427 (Tex. App.-Houston [14th Dist.] 1993, no writ).

In short, since the requested documents contain confidential attorney-client communication as contemplated by Rule 503, the documents are exempt in their entirety from disclosure pursuant to Texas Government Code § 552.101 and 552.107. This position was reiterated in ORD-676: “We conclude that section 552.107(1) generally excepts an entire communication that is demonstrated to be protected by the attorney-client privilege as defined in Texas Rule of Evidence 503.” Based on this precedent, Decatur ISD contends that the attached documents numbered AG-0001 through AG-0070 should be withheld in their entirety. B. Section 552.101: Information Protected Under Privacy and under Other Law With regard to the requested documents numbered AG-0009 through AG-0011, the District maintains protection on other grounds. Section 552.101 excepts from disclosure “information considered to be confidential by law, either constitutional, statutory or by judicial decision.”

Responsive documents raise privacy concerns. Section 552.102(a) creates an exception to the Open Records Act to protect an employee under a common law privacy right. Under this subsection, information should be withheld if it contains highly embarrassing facts, the publication of which would be highly objectionable to a reasonable person, and if the information is not of legitimate concern to the public. Indus. Found. of the S. v. Tex. Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976). See also Texas Dep’t of Pub. Safety v. Cox Tex.

Newspapers, L.P., 343 S.W.3d 112 (Tex. 2011) (acknowledging the common law protection from public disclosure of highly intimate or embarrassing facts).

As a public entity, a public school district is required to ensure that it does not violate an individual’s liberty interest; the District must not release information that would stigmatize to the point of burdening an employee with a “badge of infamy.” Wis. v. Constantineau, 400 U.S. 433, 437 (1971); See also Wells v. Hico ISD, 736 F.2d 243, 256 (5th Cir. 1984), cert. dism’d, 437 U.S. 901 (1985) (explaining that a liberty interest is violated when the information released by a public entity might seriously damage a person’s standing and associations with their community). The only purpose the release of the information in question would serve would be to hold the District official identified in those documents up to public scorn and ridicule. The responsive documents show information alleged by a third party about an alleged incident concerning the public official, which has been reported by the official to the authorities. The information alleged by the third party is not confirmed to be true. The District official would be placed in a false light. The District would contend that the information contained in the documents numbered AG-0009 through AG-0011 constitutes highly embarrassing information, the publication of which would be highly objectionable to a reasonable person. The only purpose the release of the information in question would serve would be to hold the District official up to public scorn and ridicule. On this basis, the District believes the subject information contained in documents numbered AG-0009 through AG-0011 should be protected from disclosure.

Conclusion

In an effort to resolve the issues presented, I hereby request, on behalf of Decatur ISD, a Public Information Act determination from you regarding this request. Decatur ISD is submitting with this supplemental Request the Public Information Act request, the information requested, and this written justification pursuant to TEX. GOV’T. CODE SECTION

552.301. Decatur ISD reserves the right to supplement this request as permitted by state law, if necessary. See TEX. GOV’T CODE ANN. 552.301(e).

This supplemental request for a determination has been submitted this 15th day of July 2021. If you have any questions or need additional information, please do not hesitate to contact my office.

Letter from Messenger editorial staff to Attorney General Ken Paxton in response to attorney’s request to withhold  public records..

Dear Honorable Paxton:

The Wise County Messenger (hereinafter “The Messenger”) requests that the following information be considered when reviewing “Decatur Independent School District’s Request for Decision under the Texas Public Information Act – Governmental Body ID: 06600.056 texas.gov Request ID 66130402,” submitted to your office July 15, 2021.

Legal counsel for Decatur ISD seek to deny production of a number of public records sought by the Messenger. Decatur ISD has produced a number of public records it did not feel are protected from disclosure by exceptions in the Texas Public Meeting Act.

Since we do not know what these records Decatur ISD is seeking to keep hidden from the public are, we can only make general arguments for what we feel may be in these documents and why we believe it is in the best interest of the public to release these records.

Decatur ISD is seeking to withhold documents AG-0001 through AG-0070 by (A.) citing confidential attorney-client communication through Texas Government Code 552.101 and 552.107. We are at a disadvantage since we went to journalism school, not law school, but generally understand why certain communication between attorney and client should be kept confidential.

However, our request was simply for written communication between two parties: School Superintendent Joseph Coburn and Board President Thomas Houchin. We wouldn’t expect much of the communication would involve legal counsel, particularly not what appears to be a large number (at least 70) of these documents the district is seeking to keep from the public.

If these documents do contain elements of attorney-client privilege, we ask that you look at the extent of that communication. Were emails, for example, simply carbon copied (CC’d) with an attorney’s email, perhaps in a deliberate attempt to keep the communication private?

If your office does find that these documents are protected by attorney-client privilege, we ask that only the portion of these documents directly related to that type of communication be redacted and allow the rest of the document to be released publicly. If nothing else, we ask that certain information which we don’t believe is attorney-client privilege (such as who the email is to/from, the time and date the email was sent) should be made public, even if the entire body of the email is redacted.

Decatur ISD is also seeking to withhold documents AG-0009 through AG-0011 by (B.) citing Texas Government Code 552.102(a) which excepts from disclosure “information considered to be confidential by law, either constitutional, statutory or by judicial decision.” Specifically Decatur ISD cites an exception to the Open Records Act to protect an employee under a common law privacy right, saying information should be withheld if it “contains highly embarrassing facts, the publication of which would be highly objectionable to a reasonable person, and if the information is not of legitimate concern to the public.”

Again, since we do not know what is contained in the document, we can’t address the specific instances of what Decatur ISD believes to be “highly embarrassing.” But we would like to address how we believe the information likely is of “legitimate interest to the public.”

In similar request for this type of information in the past, previous attorneys general have noted that “To demonstrate the applicability of common-law privacy, BOTH PRONGS (emphasis added) of this test must be satisfied.” We would like to speak to the second prong, information that is of “legitimate interest to the public.”

At this point, we feel it may be helpful to provide some background on this request.

On Jan. 25, 2021, the Decatur School Board by a 7-0 vote, extended the contract of Superintendent Joseph Coburn another six months (to January of 2024) and provided Coburn with a 3 percent pay raise in an obvious vote of confidence. On March 22, 2021, the same school board voted 7-0 to extend the contract of Athletic Director Mike Fuller for another year.

Following a school board election on May 1, 2021 — in which two new board members were elected and the board was reorganized, placing Thomas Houchin as president in a 4-3 vote — numerous special meetings have been held to reconsider the employment and responsibilities of Coburn and Fuller.

On May 10 — the same meeting where the two new board members were sworn in and the board was reorganized — the board spent four hours in closed session during a special meeting to consider Coburn’s employment and the naming of an interim superintendent. Back in open session, the board did not act on anything discussed in closed session and Houchin made no public statement regarding the issue or why it was brought back up for discussion only 3 1/2 months after a contract extension.

A week later, on May 17, the school board at its regular meeting voted — 4-3, once again — to change the long-standing policy that allowed the superintendent to hire teachers during the summer without board approval. In his argument for making the policy change, Houchin cited the need for taxpayer transparency to allow the public 72 hours to express their concern over potential teacher hires, but he seemed to backtrack on that moments later when it was brought to his attention that personnel information like that can not be shared publicly. Houchin then said the change would allow him to do his own research into potential teacher hires.

On June 18, the school board held another special meeting to consider the employment and possible resignation agreement with AD Fuller, whose contract had been extended unanimously less than 3 months prior. Despite the fact that Fuller’s attorney, Derrick Boyd, requested that the personal item listed on the closed session agenda be held in public for all to hear, no such discussion was ever held publicly. Houchin later told the Messenger that the board never did discuss the personnel item concerning Fuller and instead moved directly to discussion with attorneys over the separation agreement. Because the agenda item discussing Fuller’s employment had not been on a public meeting agenda since his contract renewal, the Messenger asked when that discussion was held as a board? Houchin responded that “we had an attorney consultation regarding legal issues to his employment as posted on the agenda, and I’m not going to discuss that confidential communication the board had with our lawyer.” This answer leaves us asking the obvious question: if Fuller’s job was never discussed as part of a meeting, were board members talking privately about the issues surrounding his employment, in an apparent violation of the Texas Open Meetings Act?

The June 18 meeting featured 10 speakers in public forum, all who spoke in favor of Fuller remaining in his position. Following seven hours behind closed doors, the board voted 4-2 (with one school board member absent) to approve a separation agreement. The two board members who voted to keep Fuller were literally moved to tears expressing their support for Fuller and confusion over why the action was happening. The meeting also featured the reading of a letter written by the lone board member who could not attend — Jennifer Wren — which stated that Houchin had deliberately called the meeting when she would be out of town and said Coburn had told her Houchin had personally instructed the superintendent to reassign Fuller.

Neither Coburn nor Houchin would answer questions from the Messenger after the meeting about the reasons for forcing Fuller’s resignation.

On July 6, another special meeting was called for “discussion and possible action regarding the employment and duties of the superintendent.” This time, the board met in closed session for five hours before returning to open session where the board voted to “direct the board president and school district attorney to proceed as discussed in executive session.” The Messenger was greatly concerned with this action, and questioned its legality, since the only people who knew what that action meant were the ones who met in secret.

The vote was 4-2 with Wren once again not able to attend. Instead, a letter from Wren was once again read that said she had learned Coburn had recorded his phone conversations with Houchin during the month of June, and  “the public can determine for itself which of these recent actions brings us here today and is the reason we could not wait to discuss these matters until our regular meeting on July 19,” which seemed to be an invitation for the public to submit a public information request for those phone calls. The Messenger has indeed made a request for those phone calls, but as of the date of this writing, those phone calls had not been made available by Decatur ISD more than three weeks after the request, and the Messenger has not been notified that the district seeks an attorney general’s opinion on that request in an another apparent violation of the law.

Following that July 6 meeting, the Messenger sent an email to every board member asking them if they felt the action they had taken was legal, and if so, how was the public served by not disclosing any details of that action? The only response was from Houchin: “The board is allowed to get legal advice and to proceed with that legal advice discussed. And because it’s legal advice it’s confidential. The board recognizes the importance of transparency, however, there are situations when the board has to proceed in a manner that it believes best serves the district. Additionally, sometimes situations take time to work through. Finally, I can assure you no action was taken in closed session.”

That July 6 meeting agenda also included “consultation with attorney regarding legal issues pertaining to requests for information” in closed session. We do not know if that included the Messenger’s public information request at issue here nor not, but no corresponding item was listed in open session for possible action, which raises the question: why was the item on the agenda in the first place?

Yet another special meeting was held 8:15 p.m. Sunday night, July 11, to discuss Coburn’s employment, duties and resignation and release agreement along with the naming of an interim superintendent. After spending 90 minutes in closed session, the board approved by another 4-3 vote (with one member in the voting majority participating via Zoom) to accept the separation agreement and name an interim superintendent.

The board once again made no public comments on the reasons for Coburn’s exit, and Houchin provided the following comment: “I’ll say one thing: everybody understands I believe when it comes to employees, the reason we do what we do and why we can’t be as transparent as we want to be. I’ll leave it there.”

The Messenger requested and received a copy of the separation and release agreement which said it included a joint statement between Decatur ISD and Coburn, but as of this writing three weeks later, no joint statement has been provided to the Messenger.

So to summarize, the board has done a complete 180 on two of the highest-profile positions in a small town school district — the superintendent and athletic director — in a short time span and given little to no information publicly about why those actions were taken and has, in fact, gone out of its way to make sure no information is made public about those actions.

Why is this important? Number one, the cost of the separation agreements, and attorney fees for all of these long special meetings alone, total in the hundreds of thousands of taxpayer dollars.

But the lack of transparency is damaging in ways that go beyond dollars and cents. The damage to public trust in the school district doesn’t have a monetary value.

Throughout this whole situation, the most common question we at the Messenger get is “Why is this happening?” Most people are left wondering two important questions: Did something happen in the last few months following contract extensions that was so egregious that both the superintendent and athletic director had to be bought out of their contracts before completing the current contract year? Or are personal agendas by certain members of the board at play here?

As journalists, we must use all the tools at our disposal to answer these vital questions. The most obvious thing is to ask those involved. We have, and we have not gotten an answer.

Our other, and possibly last, tool at our disposal is to request public records, and that brings us to this moment. We feel like answers not only to our questions but that of our community at large could be found within these documents Decatur ISD is seeking to keep secret.

Again, why is this important? Taxpayers and parents need to know what their elected school board members are doing and saying, and they demand accountability, as they should. Decatur ISD is preparing to call a bond election that could ask taxpayers to spend tens of millions of dollars this fall. Voters must know if their elected officials are being good stewards of taxpayer money and making decisions that are truly being done in the best interest of students at DISD or if personal agendas are taking priority.

Time and time again, as I hope has been made clear above, school board and district leadership have used “attorney-client” privilege to keep public information hidden every time it had the option to make information public.

If some of the public information we seek happens to be “embarrassing,” we feel like it is greatly outweighed by the overwhelming legitimate concern to the public.

The Messenger thanks you for your consideration of this important public information request, and we request that any future correspondence on this matter from the attorney general’s office be mailed to Wise County Messenger, P.O. Box 149, Decatur, TX 76234.

Thank you,

Kristen Tribe

Publisher

Wise County Messenger

Richard Greene

Editor

Wise County Messenger

Brian Knox

Special Projects Manager

Wise County Messenger

One response to “District continues to withhold public records”

  1. Walt Partin says:

    Great work Brian! Wise County residents are lucky to have you demanding transparency.

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