Open Records Expert Calls Powell's Request "Frivolous"

Updated, 9:50 p.m.: Another University of Texas regent, Alex Cranberg, has weighed in on the controversy surrounding board chairman Gene Powell's attempt to withhold requested information from lawmakers.

In an interview with the Tribune late Saturday, Cranberg demurred on the legal questions, saying they were above his pay grade. "I'll be guided by counsel and respect the legal process," he said. But he indicated he was anxious for the UT System to release as many documents as possible. "The Legislature deserves all the information we can get them as fast as we can," he said.

Cranberg said regents have had to scramble to respond to historically large records requests from lawmakers, adding that much of his week was spent combing through roughly 250,000 emails.

"The more information we can get out," he said, "I'm confident the more we can dispense with misinformation and distortions that have characterized attacks against regents and others."

Original story: University of Texas System Regents Chairman Gene Powell has asked the attorney general a pointed question: Can the system withhold records from lawmakers? One of the architects of the state’s open records laws says the answer is clearly no. 

Austin attorney Randall “Buck” Wood helped craft the state’s open records laws in the early 1970s, including a provision giving legislators privileged access to confidential materials. He also represented former state Sen. Eliot Shapleigh, D-El Paso, in a legal battle with the Texas Commission on Environmental Quality that began in 2008 when the agency tried to withhold documents requested by the senator.

The ruling? TCEQ did not have the ability to withhold the records. Wood told the Tribune that Powell’s request is "frivolous" and not substantially different from previous efforts to keep information from lawmakers.

“This is settled,” Wood said. “It was settled even before the TCEQ case.”

Amid ongoing controversy, the UT System has received multiple records requests from legislators who are wary of the board's recent decisions and behavior. Powell, in his letter to Abbott, described the requests as “expansive.”

In a statement, Powell said some of the records that are responsive to the requests “could potentially compromise attorney-client privilege, jeopardize ongoing investigations, or disrupt the power of a governing board to conduct its activities and fulfill its statutory mandates and responsibilities.”

Wood described some of the language in Powell’s letter to Abbott as “mumbo jumbo.”

“There is absolutely nothing that a legislator cannot access,” he said, adding that the only exception might be emails that are purely private business having nothing to do with the agency's duties.

He said he would be surprised if Abbott did not respond quickly and make Powell turn over the documents.

In a statement emailed to reporters late Saturday, Powell said he sought legal counsel before sending the letter to the Abbott and informed the board three vice chairmen prior to the letter being sent. Sources tell the Tribune that the vice chairmen were not universally in favor of Powell's attempt to withhold the documents. 

For observers of the ongoing higher ed conflict, one of the biggest questions is how the chairman of the board could take such action unilaterally, especially at a time when the Legislature is already wary of the regents and the way they are managing the system's flagship university. State Rep. Jim Pitts, R-Waxahachie, recently accused the regents of being on a "witch hunt" against University of Texas at Austin President Bill Powers.

On Twitter, state Sen. Kirk Watson, D-Austin, said, "Declining to provide vital information to [the Legislature] only deepens higher education suspicions."

Lawmakers have demonstrated a willingness to act on their suspicions. The day before Powell asked to withhold information from lawmakers, the Texas House had signaled its displeasure with the board by adding amendments to the budget stripping the UT regents of authority and funding.

“An action of this magnitude should be considered by the board in its entirety, not taken by a single regent or small group of regents,” state Sen. Judith Zaffirini, D-Laredo, said in a statement. If it was a group, she said, “I certainly hope that they complied with the Texas Open Meetings Act.”

UT System Regent Bobby Stillwell told the Tribune he was not consulted on the matter or aware of Powell’s plan to request an attorney general’s opinion. He said he was “shocked and surprised” that the matter was not put to a public vote by the board, as is required for most major board decisions.

Steve Hicks, a fellow regent, told the Tribune that he and three other regents are pushing for the board to meet and discuss the matter in the coming week. In his statement, Powell said he would ask the board's general counsel to post notice of a full Board meeting "as soon as possible."