November 27, 2007
They charged for a CD?

Elise Hu has a fifth entry in her series called "The Purge", on how Governor Perry's office disposes of email, possibly in conflict with Texas' open records laws. (See here, here, and here for background.) Along the way, Perry has picked up a bit of a thorn in the side, a fellow who has taken advantage of the fact that the Governor's office will retain emails for which a public information request has been made. We pick up the story from there:

Twice a week for the last three weeks, open government crusader John Washburn has sent out a TPIA request for the governor's office emails, excluding constituent mail. He received an itemized response from the Governor's Deputy General Counsel this week, with charges for FOUR DAYS worth of emails:

31.5 hours of staff time at $15/hour = $472.50 (to compile and redact emails)
Overhead at 20% of staff charge = $94.50
CD for compiled material = $1
TOTAL for four days worth of emails = $568

The letter from the Governor's office once again encourages Washburn to narrow his request to save money.

I'm not sure which surprises me more, that staff time is only billed at $15/hour (try to find that in the private sector), or that they added in a dollar to cover the cost of the CD. It's pretty clear that the Governor's office has realized it can't easily extract itself from this situation, so they're taking the approach of hoping to nickel and dime the guy until he cries uncle and goes away. Hu notes that Perry requested and then withdrew (both PDF) an opinion from AG Greg Abbott about its responsibilities, so I'd say they've conceded the point but not defeat. We may have to start a fund to ensure that this tactic doesn't work. Stay tuned.

UPDATE: The Observer blog has more.

Washburn could be looking at an open records request fee total of more than $2,000 per month -- and Perry's office also noted that a failure to receive the funds would result in automatic withdrawals of outstanding requests, along with a note that no disclosure of the records requested would begin until the governor's office receives a "deposit."

What was Washburn's reaction?

"I laughed at it, to be honest with you," he says. "It is exorbitantly high."

Washburn says he knows exactly what he asked for, and he knows that it can be easily obtained.

"How hard can email extraction be from a server?" he asked. (I must admit thinking about that for a minute. Perry's office is claiming 31.5 hours of staff time at $15 per hour, which results in the bulk of the $568 figure. What will those staff members be doing during those hours? We called Perry's office and they said they'd get back to us with more details.)

Washburn asked for the emails in their original, digital format. There is a question as to how such documents can be redacted, and for that matter, what is the logic of the redactors?

Washburn, who has a history of open records activity in Wisconsin, Florida, and now Texas, says he has never before encountered a charge for staff time, although it is standard in the Lone Star state.

He did tell me that he was surprised by what he called Perry's 'gambit.' He said he thought Perry would take the 'drag-it-out' approach to stifling records requests.

"Before, I thought it was just going to be stretched out," Washburn says. "Now, they're hoping that I won't come up with the money."

So far, Washburn has requested the governor's emails from preceding days on Nov. 6, 9, 13, 20, and 23. The objective, Washburn said, was to stop a pro-forma email destruction policy that Perry's office had in place -- and which it said it inherited from Governor George W. Bush.

Washburn does have a plan to thwart Perry's latest move, but it will take another post to assess its merits.

To answer the "how hard can it be?" question, it can be complicated and time-consuming if we're talking about restoring data from backups - the architecture of Microsoft Exchange makes it more involved than simply pulling files off of tapes. Here, we're basically talking about dumping people's Outlook Inbox to a PST file, which is a trivial task. I suppose redacting could take some time and effort, but that does seem to be a high figure budgeted for it. Anyway, I look forward to hearing what Washburn's plan to "thwart" the Governor's gambit will be.

Posted by Charles Kuffner on November 27, 2007 to Show Business for Ugly People

If it required more than dumping to a PST file or exporting from GroupWise, then I would have been charged for Programming at $28 per hour.

Charging for exemption and redaction are prohibitted under Texas Statute if the number of pages is less than 50. Since I am asking of zero pages of paper, Texas Government Code ยง 552.261(a) prohibits charging for labor.

It is up to the AG and the courts to decide if electronic records are "pages" and, if so, how many. I could find no precedents on the matter.

Posted by: John Washburn on November 27, 2007 11:49 AM

$7.50 of the $15 an hour goes into a slush fund the governor has set up which will be used at some point as his legal defense fund.

I wonder if he really ever stops to think about the fact he only got 39% of the vote.

Hopefully Guiliani hasn't and Perry will be his running mate which will basically ensure a Democrat, hopefully not Hillary, will win the White House.

The combination of Guiliani and Perry will be the political equivalent of Love Canal.

Posted by: Baby Snooks on November 27, 2007 1:59 PM