(BELOW IS THE ENTIRE TEXT OF THE THREE-PAGE OFFICIAL LEGAL LETTER SIGNED BY ASSISTANT ATTORNEY GENERAL JAHNNA WARD FOR WHICH A COURTESY CARBON-COPY WAS MAILED TO ME AS THE CITED CURRENT COMPLAINANT AGAINST THE TRAVIS COUNTY DISTRICT ATTORNEY's OFFICE IN AUSTIN, TEXAS. I RECEIVED MY COPY OF THIS THREE-PAGE RULING FROM U.S. POSTAL SERVICE MAIL DELIVERY TO MY APARTMENT UNIT MAILBOX AT VILLAGE OAKS APARTMENTS ON APRIL 11, 2019. MY PUBLIC-INFORMATION COMPLAINT AGAINST TRAVIS COUNTY DISTRICT ATTORNEY MARGARET MOORE's GOVERNMENT AGENCY IN AUSTIN HAS BEEN ASSIGNED THE OFFICIAL IDENTIFICATION NUMBER OF 753295 BY THE ATTORNEY GENERAL'S OFFICE IN AUSTIN. --- jkm)
KEN PAXTON
ATTORNEY GENERAL OF TEXAS
Post Office Box 12548,
Austin, Texas 78711-2548
(512) 463-2100
www.texasattorneygeneral.gov
April 10, 2019
Ms. Ann-Marie Sheely
Assistant County Attorney
Travis County Attorney's Office
P.O. Box 1748
Austin, Texas 78767
Dear Ms. Sheely:
We issued a determination regarding the above referenced cost complaint on February 28, 2019. Since that time, Mr. McMillan has made this office aware of a clerical error in the initial letter. Accordingly, we hereby withdraw the determination issued on February 28, 2019. This letter is substituted for the previous letter and serves as the correct determination.
This office has received a complaint from Mr. John (Kevin) McMillan alleging the Travis County District Attorney's Office (the "district attorney's office") is overcharging for copies of public information (directly referring to himself) under the Public Information Act (the "Act"), chapter 552 of the Government Code. The complaint was assigned ID# 753295.
The district attorney's office received a (November 28, 2018-dated written) request for e-mail communications between named individuals (six respective high-ranking officials at the DA's Office in Austin) referencing the requestor (John Kevin McMillan of Austin District 10) during a defined (most recent approximately two-year) period of time.
The district attorney's office provided the requestor (John Kevin McMillan of northwest Austin) an estimate in the amount of $103.50.
The requestor filed a complaint because he believes the charges are excessive. After receiving the complaint, this office asked the district attorney's office to respond to a series of questions in order to determine if the charges were appropriate. The district attorney's office has provided a response to those questions.
Initially, we address any information that will be redacted. When confidential information is mixed with public information in the same page, a labor charge may be recovered for time spent to redact the confidential information, but not to redact information that falls with a discretionary exception. See 1 T.A.C. 70.3(d)(4); see also Open Records Decision Nos. 665 at 2 n.5 (2000) (discretionary exceptions in general).
The district attorney's office states it may need to redact information subject to sections 552.101, 552.108, 552.111, and 552.137 of the Government Code. We note information subject to section 552.137 of the Government Code may be withheld without requesting a ruling from this office((footnote)1). ((1) Open Records Decision No. 684 is a previous determination to all governmental bodies authorizing them to withhold certain information, including e-mail addresses of members of the public subject to section 552.137 of the Government Code, without the necessity of requesting an attorney general decision.)
However, in order to withhold information subject to sections 552.101, 552.108, and 552.111 of the Government Code, the district attorney's office must request a ruling from this office or rely upon a previous determination from this office. See Gov't Code 552.301; Open Records Decision No. 673 (2001) (listing elements of previous determinations under section 552.301(a) of the Government Code).
Upon receiving a ruling from this office or determining information is subject to a previous determination, the district attorney's office may include the time spent redacting confidential information in its cost estimate for labor. See 1 T.A.C. 70.3(d)(4). However, the district attorney's office may not charge for time required to redact information subject to only discretionary exceptions found under the Act, including sections 552.108 and 552.111 of the Government Code. See 1 T.A.C. 70.3(d)(4); see also Open Records Decision Nos. 665 at 2 n.5 (2000) (discretionary exceptions in general).
Next, we address the tasks performed in order to provide the requested information to the requestor (John Kevin McMillan of Austin District 10). The cost rules promulgated by this office allow a governmental body to charge $28.50 per hour for time spent programming. See 1 T.A.C. 70.3(c); see also Gov't Code 552.003(4) (defining programming); 552.262(a) (governmental body may charge up to twenty-five percent more than amount established in cost rules). Programming is defined as "the process of producing a sequence of coded instructions that can be executed by a computer.(") See Gov't Code 552.003(4). The district attorney's office states its Information Technology Services ("ITS") personnel created a "new search in GUI and command line format, to manipulate and reorder the request into a Boolean format of key terms and phrases that the system can recognize, and to program a sequence of the coded instructions to be executed." The district attorney's office also states these tasks do not include the time required for the computer to run the programmed search. Upon review, we agree the tasks described meet the definition for programming. Accordingly, the district attorney's office may generally charge $35.63 an hour for the time necessary to complete these tasks.
We note labor may be charged at $15.00 per hour for time spent locating, compiling, reproducing, and manipulating data. See 1 T.A.C. 70.3(d). We understand the district attorney's office based its estimate on prior experience. The district attorney's office estimates it will require one hour to "gather and sort the information from the [ITS search], organize and compile the emails, prepare the emails in a format that can be released to the requestor[,] and electronically redact any information that would be protected under [the Act]."
The district attorney's office states it may be necessary to convert e-mails to PDF to redact confidential information. Upon review, we find the tasks of gathering, compiling, preparing the e-mails for release, and redacting confidential information qualify as labor.
Accordingly, we find the district attorney's office may generally charge $15.00 per hour to complete these tasks.
However, the district attorney's office has failed to explain why it is necessary to organize the e-mails before providing them to the requestor (John Kevin McMillan of Austin District 10). Accordingly, we find this task does not meet the definition of labor, and the district attorney's office may not charge labor for the time necessary to complete this task. Further, the district attorney's office may not charge for labor or programming if no responsive information is found.
In addition, the district attorney's office may assess an overhead charge of twenty percent of the total allowable labor and programming associated with providing responsive information to the request. See id. 70.3(e)(3). However, if there is no appropriate labor or programming charge, the district attorney's office may not charge any overhead. See id.
In summary, the district attorney's office may generally charge $35.63 per hour for the programming required to produce the requested information. The district attorney's office may also generally charge $15.00 per hour for gathering, compiling, preparing the e-mails for release, and redacting confidential information. The district attorney's office may assess an overhead charge of twenty percent of the total allowable labor and programming associated with providing responsive information to the request.
However, if the district attorney's office does not locate any responsive information, the district attorney's office may not charge the requestor (John Kevin McMillan of Austin District 10) for labor, programming, or overhead.
Within five business days of receiving this letter, the district attorney's office is required to notify the requestor (Mr. McMillan) in writing of the amended charges, if any, to receive copies of the requested information in a statement that complies with 552.2615 of the Government Code. The district attorney's office is also required to provide this office a copy of that communication. We will consider this file closed.
If you have any questions or need further assistance, please contact us at (888) 672-6787.
Sincerely,
Jahnna Ward
Assistant Attorney General
Education and Enforcement Section
Open Records Division
JW/vd
Ref: ID #753295
c: Mr. John Kevin McMillan
10926 Jollyville Road, #1609
Austin. Texas 78759
___________
(THE FOLLOWING IS THE EXACT VERBATIM TEXT OF MY NOVEMBER 28, 2018-DATED E-MAIL OPEN RECORDS REQUEST TO THE TRAVIS COUNTY DISTRICT ATTORNEY's OFFICE THAT PROMPTED THE TRAVIS COUNTY ATTORNEY's OFFICE IN AUSTIN, TEXAS, TO REQUEST A RULING FROM THE ATTORNEY GENERAL OF TEXAS IN AUSTIN:)
From: John McMillan
To: DAOpenRecordsRequests@traviscountytx.gov
Sent: Wednesday, November 28, 2018, 10:53:54 PM CST
Subject: 11-28-18 PIR re: six high-ranking TC DA's Office reps and me
To: Open Records Coordinator,
Travis County District Attorney's Office,
Travis County Government,
Street address:
509 West 11th Street,
Suite 1.700,
Austin, TX 78701
Mailing address:
P.O. BOX 1748,
Austin, TX 78767
Office FAX: 512-854-9534
Main phone number of the Travis County District Attorney's Office:
(512) 854-9400.
November 28, 2018
Dear Travis County District Attorney's Office Open Records Requests Administrator in Austin, Texas,
This is a Texas Open Records request in which I seek to obtain from you a copy of any and all e-mail communications that respective high-ranking officials Don Clemmer, Gregg Cox, Dayna Blazey, Mike Lummus, Beverly Matthews, and Dexter Gilford of your Travis County District Attorney's Office in Austin, Texas, have each written or received at any time since January 3, 2017, and that, in each and every such case, referred at least once in any manner to myself, John Kevin McMillan of northwest Austin.
EXCLUDED from the scope of this public-information request are any and all written communications that were exclusively and solely written by myself, John Kevin McMillan of northwest Austin.
I am a gainfully-employed, permanently-drinking-alcohol-free, lifelong-tobacco-free, single adult Anglo male resident of the same county government precinct---precinct 3---in which Travis County Commissioner Gerald Daugherty resides. Mr. Daugherty, a Republican, reportedly is the primary county commissioner who officially represents me on the Travis County Commissioners Court.
On September 14, 2018, I received a surprising E-mail letter from Travis County Assistant County Attorney Ann-Marie Sheely. That letter directly stated to me in writing for the first time ever that County Commissioner Daugherty's office in recent years sought and obtained legal advice from attorneys of the Travis County Attorney's Office in regard to myself.
That disclosure to me was offered in the context of an official September 14, 2018, signed legal letter submitted by Ms. Sheely to the Attorney General of Texas on behalf of Commissioner Daugherty, a copy of which was provided to me by Ms. Sheely. Her legal letter sought official permission from that state agency for County Commissioner Daugherty to withhold from me records of those legal consultations his office had had with the county attorney's office in regard to myself.
On April 27, 2015, a birthday for me, I was interviewed in person at your Travis County District Attorney's Office by two DA's Office "Critical Incident Unit" investigators, Lt. Roger Dean and Sergeant Jose Ballesteros.
On September 26, 2014, I signed for and received inside the Balcones Post Office along Jollyville Road in northwest Austin a certified-delivery official September 23, 2014-dated, signed legal letter on official Travis County District Attorney's Office letterhead that was directly addressed to me.
That letter was written and signed by Travis County Assistant District Attorney Rob Drummond. That official DA's Office letter addressed to me directly cited "your complaint of December 18, 2013, regarding the conduct of the Austin Police Department."
That same certified-delivery legal letter to me from your DA's Office in Austin also stated, among other things, that "Our inquiry revealed that APD continues to maintain the evidence gathered on December 22, 2011. In addition, they have noted that the Travis County District Attorney's Office has requested the said evidence continue to be maintained. This resolves our inquiry. As we explained to you, the decision as to how to utilize investigative resources in a sexual assault allegation falls within the purview of the Austin Police Department. Therefore, we believe our involvement in this matter is concluded and our office will take no further action.
"Sincerely,
"Rob Drummond
"Assistant District Attorney
"Travis County".
My legal name is John Kevin McMillan. I was born on April 27, 1957, at Lincoln, Nebraska.
I have resided in Austin proper on a continuous and uninterrupted basis ever since mid-March 1997.
I am a former full-time employee here in Austin of the "Texas Department of Public Safety" state law-enforcement agency. I am also a former full-time employee here in Austin for the "Texas Board of Pardons and Paroles" and the "Texas Department of Criminal Justice" state agencies, respectively.
I am also the founder and only current approved member of a new and non-Christian and implicitly-deistic "Honor Society" religion --- a religion publicized on local community-access television throughout the greater Austin area around the turn of the century. Several persons in the Austin area have told me they either dislike my religion intensely or do not regard it as comprising an actual or true religion.
That religion of mine is anti-drinking-alcohol and anti-tobacco and anti-marijuana, anti-medical-marijuana, anti-facial-hair-minded, anti-tattoos-minded, opposed to anonymous communications that are inflicted on someone against his wishes, opposed to deliberately fraudulent communications, anti-noise-pollution-minded, anti-thought-control-projects-minded, and anti-stalking, and also adamantly opposed to sexual assaults.
My religion, the "Progressive Prohibitionist Religion", has very stringent membership-eligibility guidelines.
During the time period applicable to this public information request, I myself resided as an official rent-paying tenant or official rent-paying occupant at the following apartment units:
---Village Oaks Apartments, 10926 Jollyville Road, Building 9, Apt. 902, Austin, Texas, 78759, the home address for me from late September 2015 until early September 2017.
---Village Oaks Apartments, 10926 Jollyville Road, Building 16, Apartment 1609, Austin, Texas, 78759, the home address for me ever since early September 2017, including at present.
I hope to hear from you soon in response to this public-information request from myself.
Please let me know as soon as possible if you sense that you might have to charge me more than $20 in administrative fees you expect to incur from processing this public-information request from myself.
Sincerely and Best Wishes,
John Kevin McMillan, a former resident of the Boston area of Massachusetts who is myself a certified direct descendant of the Rev. William Brewster---the great Puritan religious leader who served as Head Chaplain on the Mayflower and as an adviser to Plymouth Colony Governor William Bradford in what is now the U.S. Commonwealth or state of Massachusetts.
My current home address: Village Oaks Apts. (a NW Austin apartment complex reportedly owned by a highly-regarded for-profit corporation that's headquartered in Newton, Mass.), 10926 Jollyville Rd., Bldg. 16, Apt. 1609, Austin, Texas, 78759.
Home phone: (512) 342-2295.
My Blog: http://www.johnkevinmcmillan.blogspot.com
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