Some years back my better half did an open records request asking for the phone records of then-superintendent of Glen Rose ISD Wayne Rotan. He had, at the time, as part of his contract, had his phone bill, or part of it, paid by his contract. GRISD contested giving out the phone record, as it came back from the phone company, to him, but the Texas Attorney General ruled that GRISD had to give it to him. The information that was personal was redacted, but he did get it. In fact, I was speaking to Wade Busch recently about this, and he remembered redacting the records, as he was on the GRISD School Board at the time.

What I wanted to see was Cyndi Gray‘s phone records and have done open records requests twice to see them. The first time I was under the impression that she had a Somervell County supplied cell phone where the billing records as they come from the telecom company (like AT&T) would have gone to Nikki Weedon, the auditor. Found out then that Gray was using her own personal cell phone, so the open records request did not have information. However, because that was similar to the older Rotan record, I wondered if it was still possible to get the record.

Here was my request

New Open Records Request. Since Cindy/Cyndi Gray does not have a Somervell County issued cell phone, and assuming she does county business, then, on her own personal cell phone,IF compensated in any way by Somervell County specifically for her phone usage, I believe the records for this would be subject to this, below.

I am asking for the cell phone records of Cindy/Cyndi Gray for the months of January 2024 through today from her cell phone if used at all for government business . This would be the billing record coming directly from the telephone company that includes each calls, text messages, detailed out along with date for each month. See the http://www.somervell.co/wp-content/uploads/2022/12/Personnel_Policies_November_2022_Signed.pdf” Even if this is a reimbursement, the auditor’s office should have the billing record to verify.

Would like these records sent back in digital format to my email

For reference, see the Somervell County Personnel Policies p 36 http://www.somervell.co/wp-content/uploads/2021/05/Employee-Handbook-05-14-2021.pdf

Effective September 1, 2019, Senate Bill 944 requires public information on private devices to be archived to a government server. Any means of electronic communication used for the purpose of official county business is subject to the Act. This encompasses text messaging, chat services, social media accounts, and personal email accounts from your personal phone.

It is understood that electronic communications (i.e. texting, etc.) has become an integral part of the communication process in conducting County business; however, archiving communications under the above conditions has been deemed unfeasible; and therefore, Somervell County has determined that these types of communications are strictly forbidden on personal devices or personal accounts such Instagram, Twitter, Text Messaging, Chat Rooms, etc.

Personal telephone use must be kept to a minimum; this includes County and personal cell phones. You may not charge personal long distance calls to the County. Individual departments may have more restrictive rules concerning phone use.

Thank you

Nikki and Trey Brown were cc’d and he replied

Nikki asked me to look into the legality of your requested information.  Most of the information you have requested does not exist in the records of the County or the Auditor’s Office.  As I know you are aware, per the PIA a public entity is only required to turn over information/documentation in its possession and is under no duty to create documentation to fulfill a request.  Therefore, there is no reason to request an AG’s opinion on these matters.  Per the County policy there has not been a need for the Auditor to request any documentation from Cyndi to verify that she currently has a cell phone plan so the County is not in possession of any cell phone bills pertaining to your request.  Per SB 944 and 552.003 of the PIA, if Cyndi has conducted any County business on her personal cell phone she is responsible for preserving the messages on her personal device, since the Court has deemed we do not have an official government account to record them.  Nikki has requested Cyndi to produce any messages dealing with County business and that they be turned over to Nikki by July 16th per the PIA.  Nikki will then forward any existing messages over to you per your request.  The County is not in possession of any of the other information you have requested.  There is no requirement under either SB 944 or the PIA to keep any additional information in regards to your request.  Thanks.  Have a great weekend!

Because I knew that the Attorney General had agreed in the past that the billing record had to be supplied, I believed (and still do) that Trey Brown is incorrect. I went to talk to him personally about this in his office and expressed this. He told me he thought the AG had made a mistake when they did that with Rotan. I told him, in turn, that I have seen nothing to indicate that there is a different view of this. I considered contesting this to the Attorney General’s office but since he had told Cyndi to produce the messages by July 16, I decided to wait. (In fact, I think I misread the reply as I was not asking for messages dealing with county business but rather was asking for phone records as they come from the phone company)

Got past July 16 and I realized that Nikki had not fulfilled my request. Within 10 business days, if an entity being asked does not supply the information or contact the requester because it might take more time, he or she has to justify this to the AG. She had not. So, on July 19, 2024, I sent her a message

The message below indicates that you would have Cyndi Gray supply phone records for the open records request (dated July 5)  to you by July 16th. Unless I missed it, and happy to be corrected, I have not received this.

Nikki wrote back

Cindy does not have any work-related text/emails on her personal phone.

That was a head scratcher. I had not asked for text or emails from her phone, but rather for the billing records as they come from the phone company, so I wrote her again

The open records request asked for calls, which would be the phone records. Are you saying that she does not use her personal cell phone for any business calls? I did not ask for emails from her personal phone in this particular request. I asked for

I am asking for the cell phone records of Cindy/Cyndi Gray for the months of January 2024 through today from her cell phone if used at all for government business . This would be the billing record coming directly from the telephone company that includes each calls, text messages, detailed out along with date for each month.

Adding. I asked for her phone records as they came from the phone company. She could certainly redact all personal calls, etc that were on it but her just saying she doesn[t have anything when I specifically asked for the “billing record coming directly from the phone company” is not the same thing.

So.. this is not only past the date that the record should have been supplied, according to Trey Brown, but it does not fulfil the open records request as it is not what I asked for.

So, I am going go to the Attorney General’s office about this as a complaint. It might be that the AG will agree with Trey Brown, but there’s no way to know this without asking.

Let me repeat this. I might be wrong, but it is up to the Attorney General to tell me that. Trey Brown at no time asked the AG for an opinion within the dates he needed to, and in fact exercised his own opinion about whether he had to, despite the fact that I told him I had done this type of request before in the past, and had gotten billing records (Wade Busch, when he was on the school board, remembers going through the records and redacting information). If he was not going to ask for records because he believed they were outside of Somervell County’s control, then why did he ask Weedon to get them from Gray? When Weedon replied with what HE HAD REQUESTED, it was not the information I asked for on my open records request and was past the deadline HE SET for a reply.

Repeating here that this particular public information request is a comedy of errors, one is mine. I asked for the billing records from Gray’s phone. Brown replied telling Weedon to ask Gray to supply messages dealing with work. This was already changing my request from billing phone records to messages, with Gray being able to curate this personally. I did not ask for this, but I did not catch at the time that Brown had changed what I was asking for as I was more focused on the AG’s reaction. When Weedon, AFTER THE DEADLINE TO REPLY, answered me she said Cindy didn’t have work-related text or emails on her personal phone but that is NOT what I asked for. Weedon did not reply to me when I told her that this response to the open records request was not right.

The last time I did an open records request, a different one, asking for Gray’s personnel file, it took about 3 months to get it AFTER Somervell County contested giving it to me. So this might not be any different OR it may be that the AG will immediately let me know that this can’t be done. I’m happy and cannot expect that every time I ask for something that I will receive it, but I have the right to ask,while following the law regarding the public information act.

As the preamble to the Texas Public Information Act says

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 provision of this chapter shall be liberally construed to implement this policy.

Update 7/23/2024: Called the AG’s office yesterday and got a reply back today. My first question shot out of the box was whether it is a valid public information request to ask for billing records directly from the phone company for a cell phone used for both personal and govt business. It is, according to the attorney on the hotline (who, incidentally, is the same person I have spoken with for years). He asked me if the County Attorney had contested sending these records via a request for a ruling and I told him he had not. I further said that there should be a way for me to complain directly since my open records request was not fulfilled and he said, yes, got my email and is sending it to the AG public information complaints officer. I expect, given how busy the AG’s office is, that it might take a bit to work on it, but I plan to forward all the emails regarding this and the hotline attorney indicated that Somervell County will be contacted regarding this records request. So I am, at this moment, satisfied.

Update 7/25/2024- Pleasantly surprised to find I got an email from the Assistance department late yesterday with an assigned number, so I have printed out the information and sending it today via mail to the AG’s office.

The AG’s office sent this to Trey Brown.

He then responded to the AG with this. Note that shade about me; was he trying to put his thumb on the scale instead of dealing directly with the request? Apparently so. And again, had he just ASKED the AG in the first place if this was an appropriate request, it would have avoided this lengthy back and forth.

One of the questions above, is about whether, since the taxpayers pay the bill for cell phones used for business, even if they are not in the auditor’s office, it is appropriate to ask for the billing records from the person who has the cell phone. I believe the AG’s office has said this is a valid request, and if Brown absolutely did not believe this, why did he ask Weedon to fulfill the request from Gray (even where the records asked for by him were erroneous).

I wrote again to the AG on that ORD number with this as I do not agree that Brown fulfilled the request.

No reply yet has come from the AG’s office. I will post it here when I get it, whether the ruling goes my way or no.

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