Judge rules in favor of Odessa American in lawsuit

Odessa American logo.
Odessa American logo.(Odessa American)
Published: Oct. 12, 2020 at 7:47 PM CDT
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ODESSA, Texas (KOSA) - The following comes from the Odessa American.

A visiting state district judge has denied the City of Odessa’s request to dismiss a lawsuit by the Odessa American to force the city to comply with public information laws.

It took only a few days for Judge Rodney Satterwhite to review arguments and rule Monday that the OA’s lawsuit should be allowed to proceed.

Attorneys for the city wanted Satterwhite to dismiss the lawsuit, arguing in a hearing Thursday that as a matter of jurisdiction, the judge did not have the power to adjudicate the legal matter.

But attorneys representing the newspaper countered that the city’s alleged violations of the Texas Public Information Act were obvious and that the OA’s claim was a cut-and-dry legal question that the judge had every right to decide.

“We are pleased with this ruling and will proceed with prosecuting our case, because the public has a right to public information and records, and the city is legally obliged to provide it; not control and censor it,” OA Publisher Patrick Canty said. "The motion that was denied was merely a case of the city’s attorneys scattering marbles on the floor — tactics aimed at delaying this case in hopes we would tire of it and go away.

“We will never tire of fighting to uphold laws in place to ensure the free flow of public information to the citizenry and to the news media. It’s a cornerstone of a free and civil society.”

The attorneys representing the City of Odessa stated during Thursday’s court proceedings if the judge didn’t rule in their favor that they would appeal. The city has spent more than $60,000 fighting the lawsuit so far and that number doesn’t include September or October billing.

Maitreya Tomlinson, a board certified civil appellate attorney in Austin, said in a phone interview Monday an appeal could take a minimum six months before a decision was rendered and that it could cost Odessa taxpayers an additional $30,000.

“That’s in a perfect world,” Tomlinson said about the appeal process. “Most practitioners ask for extensions and chances are, especially in the pandemic, they will get them.”

The OA called the attorneys for the city and Mayor David Turner for comment, but those calls were not returned.

Kelley Shannon, the executive director of the Freedom of Information Foundation of Texas, stated in an email that citizens must watch over their government and they need information to do so. That includes access to basic crime and police records.

“It’s unfortunate the city of Odessa is spending precious taxpayer money, especially during this pandemic when resources are needed for other purposes, to fight in court against a foundation of our democracy — the public’s ability to seek and obtain government information,” Shannon wrote.

The newspaper sued the city in January, alleging the entity was violating the Texas Public Information Act (TPIA) by failing to release in a timely manner police reports and probable cause affidavits. Oftentimes the paper was forced to file a freedom of information request for routine public reports. The FOI requests and reports, frequently peppered with redactions, were usually referred to the state Attorney General’s office for review, a move that only added to the delay in basic crime information getting to the public.

The city began this practice after the 2019 Labor Day weekend mass shooting in Odessa, and some city representatives later explained they were upset that local news organizations had access to the names of the shooting victims so soon after the tragedy.

Attorneys for the city argued during Thursday’s hearing that the city implemented this new procedure to ensure sensitive or inappropriate information was not being release. They added that the newspaper was upset because they liked the old arrangement in which the reports and their content — some of it described by them as “salacious” were so easily obtained.

But the newspaper has never sought to obtain or publish information that would be inappropriate, such as the names of sexual assault victims or juveniles, and Canty noted that they are bound by ethics and never would.

“It’s as if the newspaper were a pouty adolescent throwing a tantrum because mama wouldn’t let him eat chocolate cupcakes for breakfast, lunch and dinner,” Canty said of the city’s depiction of the OA during the hearing. "That couldn’t be further from the truth.

"Essentially they wanted to ‘fix’ a system that was never broken, and it is a system — grounded in law — that has always been practiced and adhered to by governmental entities, the public and news organizations through the state. And we feel strongly that they are legally bound to provide information in police reports and other public documents that the citizenry is entitled to see.

“Instead of trying to manage and control the free flow of public information, they ought to focus on following the law,” he said.

Representing the OA is John Bussian, a national authority on 1st Amendment law, Midland attorney Randall Rouse and Houston attorney Jeff Nobles. The city is represented by William Cobb and Ann Stehling of the Austin-based firm Cobb & Counsel.

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