(UPDATE 02.22.10: See follow-up post at CLUBS RULE.)
NOTE: Before you read this article, please read REMEMBER the ALAMO, which sets up the campaign to obtain from the Texas Democratic Party (“TDP”) any records that were the basis for the Certification by TDP Chair, Attorney Boyd Richie: Barack Obama is Constitutionally qualified for the job of POTUS. Because in TX, it was this Certification, submitted to TX state election officials, which persuaded those officials to place Mr. Obama’s name next to the “D” on that state’s general election ballot, a ballot only open to candidates who are eligible for the job.
Here is the introduction to the TX Open Government law under which citizens of TX are trying to obtain records from Boyd Richie, Chair, Texas Democratic Party (“TDP”). (All emphasis is mine.) Keep these words in mind as you read the update to those citizen efforts, following.
TITLE 5. OPEN GOVERNMENT; ETHICS
SUBTITLE A. OPEN GOVERNMENT
CHAPTER 552. PUBLIC INFORMATION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 552.001. POLICY; CONSTRUCTION. (a) Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. The provisions of this chapter shall be liberally construed to implement this policy.
(b) This chapter shall be liberally construed in favor of granting a request for information.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.
There is much to report. I have now received 2 (two) proofs of transmission of the Open Records Request to Mr. Richie. (This one shows the confirmation AND the page sent.)
Under the TX open records law, Mr. Richie was obligated to respond to such requests within 10 (ten) business days. (Technically, even assuming he felt he was not obligated under that law to produce the requested records, he still had only 10 days to request, in writing, an opinion from the AG as to whether for reasons listed in the law, he was exempted from producing the requested records. And he had only up to 5 (five) days after that to present any additional arguments to the AG, to inform the decision issuing from that office. For example, Mr. Richie could assert he is not a “public official” under the law; or that, the documents requested are not “public records”; or that the TDP is not a “political subdivision.”) Before those 10 days expire, Requestors are entitled to either the records requested or, written notice from the Holder of the Records – in this case, this would be Mr. Richie – as to the status of the request for Records, usually in the form of copies of the Request for AG Opinion. Even in a case where Mr. Richie might assert he does not have to present these records because they implicate some rights of a 3rd party, notice of a request for an AG opinion as to whether these records must be produced, must still be copied to the Requestor, appropriately redacted to preserve in advance of such AG decision, the rights, if any, of that 3rd party.
Based on the prior refusal of the TDP to produce such records after an informal request, http://jbjd.wordpress.com/2009/08/28/never-less-than-a-treason-2-of-2/#comment-979 I anticipated they would similarly refuse to produce any records after this formal request pursuant to TX open records law. So, I tried to elicit help for ‘my’ Texans, both in writing and by phone, from an organization expressing dedication to the nature of this mission; and located much closer to home.
The Freedom of Information Foundation of Texas (“FOIFT”) – “Protecting the Public’s Right to Know Since 1978” – is an organization purportedly dedicated to the proposition that citizens are entitled to an “open government.” http://www.foift.org/index.php Recently, they moved their offices to Austin, the capital city, “to assume a more active and more visible role in advocating for, and preserving, open government.” http://www.foift.org/index.php?page_id=16 For example, they are holding an “Open Government Seminar,” attendance at the afternoon session of which costs $50, covering “handbooks,” “handouts,” and access to “[o]ne or more of Texas’ leading attorneys on these laws will be on hand to answer your questions.” http://www.foift.org/index.php?page_id=98 And they post videos featuring the Executive Director, Keith Elkins, explaining various provision of the Texas open records law. http://www.foift.org/index.php?p=144
First, I tried to get their attention. On Thursday, February 4, 2010, I submitted this comment to the FOIFT blog site, and awaited a response.
In every other state and the District of Columbia, Certifications of Nomination signed by The Honorable Nancy Pelosi, Speaker of the U.S. House of Representatives, acting in the non-governmental role of Chair of the 2008 DNC Services Corporation Convention, were forwarded to election officials to get them to print the name of Barack Obama next to the “D” on the 2008 general election ballot.* But not in TX. Nope; in TX, only Mr. Richie signed those Certifications. And for all of the citizens in those states where only the names of qualified candidates may be printed on the ballot, who filed charges of election fraud with their state A’sG charging members of the D party swore to state election officials BO was Constitutionally eligible for the job to get them to print his name on the ballot but failed to ascertain beforehand whether he is a NBC; the fact that NP did not sign the TX Certification but BR did, makes all the difference in the world.
Citizens of TX also asked BR to identify these documents that were the basis of his eligibility determination. And he also refused to say. But turns out, in TX, when it comes to defining the meaning of public documents; and avoiding having to disclose such documents, this same ‘get out of jail free’ card that applied to the DNC Corporation, does not apply to Chairman Richie and the state D party. On the contrary, under TX law, in certain circumstances, documents in the custody of political parties can be ‘discoverable’ as public records. (Not only that but, the court can compel officers of these parties to hand over these records under a cause of action called ‘mandamus,’ a process which is usually reserved to get government officials to do their jobs.)
Know what this means?
For the rest of the story and documents requests for download, see, “REMEMBER the ALAMO?” at http://jbjd.wordpress.com/2010/01/26/remember-the-alamo/
Not unexpectedly, this comment from a newcomer to the blog, was placed in moderation. But when I checked the next day, Friday, February 5, it had disappeared. (This is virtually the same comment I submitted to the Boston Globe, which was posted (without moderation) and then ‘disappeared.’ See, for example, “jbjd” BANNED in BOSTON.) So, on Friday, February 5, I called the FOIFT, and spoke for some time with Pamela Mayo Clark, Director of Education and Special Projects. As for the ‘disappeared’ comment, well, she referenced the comment while we were on the phone, even accessing my web page through the link provided in that comment. In other words, somehow, my comment, while no longer visible to me on the FOIFT web site, was visible to her. She attributed its disappearance on the web site to the fact, the blog had recently undergone dramatic re-design (this is true); and the missing comment was probably just a glitch (this proved to be untrue). Here is an email I sent afterward, summarizing that conversation. (Pay special attention to the “P.S.”)
Thank you again for devoting time on Friday to understanding the details of my request for assistance from the Freedom of Information Foundation of Texas (“FOIFT”), which request I extended on behalf of the several citizens of Texas who had filed formal complaints of election fraud with Attorney General Abbott in conjunction with requests for records under the Texas open records law, with Boyd Richie, Chair of the Texas Democratic Party. You confirmed you had read the comment I submitted to the FOIFT web site on Thursday, and had accessed the link to an accompanying article posted on my blog, http://jbjd.wordpress.com/2010/01/26/remember-the-alamo/ which provide the background for these current actions. You also assured me, you took “copious notes” of my narrative, promising to pass on to your Executive Director, Keith Elkins, the information I provided, along with my request on behalf of your fellow Texans, for assistance from your organization. For your convenience, I have summarized the salient points of our lengthy conversation.
This groundswell of citizen activism began with an examination of Texas election law, which only allows the names of eligible candidates to appear on the state ballot. In August 2008, Mr. Richie Certified the Nomination of Barack Obama as the Constitutionally eligible candidate for President of the D party in papers he submitted to Texas election officials to cause them to print Mr. Obama’s name next to the D on the general election ballot. Subsequently, citizens asked Mr. Richie, on what documentary basis he had ascertained such eligibility for the job. (I was informed in September 2009 such requests had been made.) He did not respond. Resulting in part on this refusal to identify the basis for his Certification, Texans suspected he had sworn the candidate was eligible without determining beforehand this was true. Consequently, in September 2009, they began filing formal complaints of election fraud with Attorney General Abbott, which complaints detailed the overwhelming circumstantial case that supports their allegations, referencing these unsuccessful efforts to obtain relevant records on their own.
The AG still has issued no official ruling on these complaints of election fraud. Meanwhile, citizens became aware they may be entitled to access to any such eligibility documentation under the Texas open records law. Last week – specifically, on January 27, at 6:52 PM – citizens began submitting new requests for records to Mr. Richie, under this law. (As I pointed out to you, both the citizen complaints of election fraud to AG Abbott; and the requests for records to Mr. Richie can be easily downloaded from my blog. Citizens need only fill in their names and addresses.)
Given the stated mission of your organization – “Protecting the Public’s Right to Know” – and your geographic proximity to the petitioners – I am in New England – I hoped that you could provide guidance to your fellow Texans, and that I could send them to you for help. You indicated you would pass on this request to Mr. Elkins.
As I said, the time for Mr. Richie’s response is tolling. The 10 (ten) days allowed in the statute for an initial response expire in a few days. I trust your response to my request for help will issue before that time.
I hope this summary aids your recollection. Thanks again for all your help.
P.S. During our conversation, you asked whether I was saying, Barack Obama was (Constitutionally) ineligible to be President. I replied, his eligibility was outside of the scope of the concerns held by the citizens of Texas engaged in these activities to preserve the sanctity of their ballots. However, I failed to mention, this disclaimer appears in the introduction to the citizen complaints of election fraud. Note: This Complaint takes no position on whether Mr. Obama is a NBC. I also want to point out that, having viewed the FOIFT video in which Mr. Elkins instructs would be seekers of public records, the holder of these records is prohibited by law from asking you why you want these records, or what you intend to do with them ( http://www.foift.org/index.php?p=144 ); I was surprised that you seemed to question my motives for wanting to access these particular records from Mr. Richie. I must tell you, I could easily imagine circumstances under which being hit with that kind of question might have a “chilling” effect on the pursuit of records to which citizens would otherwise be entitled access, under the law.
I forwarded a copy of this email to Brian Collister, an Emmy award winning investigative reporter from WOAI TV, San Antonio, who is on FOIFT’s Board of Directors; and left a voicemail message for him at the t.v. station.
I never heard from Keith Elkins, Brian Collister, Pamela, or anyone else affiliated with FOIFT. The original comment I had submitted to the FOIFT web site never re-appeared.
Using a liberal count of the timetable prescribed by law, by the end of business on Thursday, February 11, 2010, the TDP was required either to produce the records sought by Requestors or to seek an opinion from the AG as to whether these were required to be released. Plus, Requestors should have been notified in writing by the TDP (the Holder of Records) as to the status of these requests . As the deadline approached, we had more work to do.
I asked Erica Thunderpaws and redhank to email to me evidence that the fax to Boyd Richie had been sent. Then, on the 10th day, I asked them to telephone the TDP, to ask whether the requested records would be forthcoming. Both redhank and Erica Thunderpaws called the TDP and were referred to Mark Corcoran, Special Assistant to the Chair (Boyd Richie). A summary of those exchanges can be found in the Comments section to REMEMBER the ALAMO. But I want to emphasize a couple of points from those exchanges.
First, Mr. Corcoran repeatedly pressed redhank to identify the name of her attorney. And he insisted to Erica Thunderpaws, ‘Our legal counsel advised us, we don’t have to respond (to your request for records), even with a letter informing you, we believe, we don’t have to.’ As I stated in REMEMBER the ALAMO, the web site of the TX AG contains a primer on how citizens can obtain public records under the TX open records law. http://www.oag.state.tx.us/open/requestors.shtml Any citizen could access this information and compose an appropriate request for records. Indeed, any citizen SHOULD be able to access such information. After all, we are talking about legislation passed by state senators and representatives elected by the citizens; signed into law by their elected Governor; and published on a web site paid for by their tax dollars, under the auspices of the person they chose as the chief law enforcement officer of the state. What good is a law ostensibly intended to keep government open to the people, if the only way people can access its provisions is to have the means to hire an attorney! But judging by the tone he used when pressing the one caller to identify her lawyer; and insisting to the other caller that TDP counsel said they don’t have to respond, I suspect Mr. Corcoran was trying to intimidate both callers into backing off of their request for records. Just like Ms. Mayo Clark from the FOIFT, had tried with me.
If that was the goal, neither of them was successful.
Second, Mr. Corcoran was essentially saying, ‘The TDP has determined we need not comply with that aspect of the law which requires us to obtain waivers from its provision, through the Office of the AG. No; we will consult with our attorneys to determine whether to obey the law.’ It is this hubris which adds insult to the injury of not being able to obtain those records to which citizens have a good faith belief they are legally entitled access in the first place.
Even assuming for the sake of argument the TDP can lawfully substitute its legal opinion for that of the AG, determining it is not compelled by law to produce the requested records, the question remains. If BR had ascertained that BO is Constitutionally eligible for POTUS before submitting to TX state election officials his signed Certification of Nomination, in order to cause these officials to print his name next to the D on the general election ballot; then why does he refuse to disclose voluntarily the documentary basis for that Certification? To my 9th graders, the answer was self-evident. OUT of the MOUTHS of BABES
Now, to get AG Abbott to ask that question.
And several options remain to get AG Abbott to ask that question, in the context of investigating the citizen complaints of election fraud against Boyd Richie already filed with his office. But my recommendation as to best ‘next steps’ depends in part on how many people have requested (or intend to request) these documents; and how many have filed the complaints of election fraud. So, I need you to let me know who of you have already filed these requests for records to BR and, the citizen complaints. (I cannot get even a ‘ballpark’ count based on downloads because not everyone who downloaded sent these documents; and some people copied the documents they downloaded to distribute to others.) Also, where possible, please send along redacted proofs of transmission. (That is, make sure your identifying information is blocked out before sending.) (Don’t send confirmations that do not in some way attach themselves to the document sent, for example, that copy the first paragraph of text in the fax transmittal confirmation.)
Finally, I want you to know, creating this post, which includes doing the leg work documented herein – research, emails; phone calls; file conversions; and layout and design, for example – has taken over 24 hours. I am compelled to offer my services because I have solutions to some of the unresolved problems that arose during the 2008 election cycle. While I appreciate your many words of thanks, psychic benefits do not pay the rent; and sleep is not the only valuable commodity I have sacrificed in order to resolve these problems. There is no such thing as a ‘free lunch.’ Please, take the work; feed the kitty.