CITY CLAMS UP ON FOI REQUEST ON FLY FRONTERA

By Juan Montoya

The Texas Attorney General has issued an opinion on whether the city has to provide Public Air Charters with the city record on the deliberations and meetings leading to the negative decision on funding for Fly Frontera – a regional airline seeking to link northern Mexico with Brownsville.

Public Charters, of Avoca, Penn., filed the request for records of open and closed meetings and of information that apparently did not exist at the time of the request.

While concluding that the city may withhold information that did not exist when it received the request, the AG's opinion issued June 28 by Assistant AG Sean Nottingham, of the Open Records Division, castigated the city for letting the deadline on its response lapse past the 10 days required under law.

"The city need not release nonresponsive information because it was created after the date of the request," Nottingham states.

However, he said the city received the request from Public Charters on April 7 and did not object to the questions "until after the ten-business day deadline had passed...Thus, the city failed to comply with the requirements..."

That resulted in the "legal presumption that the information is public and must be released to the unless the governmental body demonstrates compelling reason to withhold the information to overcome this presumption," Nottingham's opinion states.

The opinion also denied the city's claims tat it could withhold information including minutes of an open meeting of the Airport Advisory Board, noting that the "minutes and tape recordings of an open meeting are public records and shall be available for public inspection and copying on request to the governmental body's chief administrative officer of the officer's designee."

Therefore, Nottingham concluded, "the city must release the submitted open meeting minutes we have marked pursuant to the...Government Code."

The city fared a little better when Nottingham agreed that the city claimed that the certified agenda or tapes of a closed meeting could be withheld from Public Charters. He stated that information from a "closed meeting of the city...must be withheld" and Public Charters could only obtain "the certified agenda or tape of a closed meeting is available for public inspection and copying only under a court order..."

Nottingham's opinion sided with the city in its objection to disclose information it claimed "if released, would give advantage to a competitor or bidder."

"A general allegation of a remote possibility of harm is not sufficient," he stated.

The city contended that it had specific marketplace interests in the remaining information because the city's airport is a competitor in the marketplace with regard to passenger air service to various destinations in Mexico. Assistant City Attorney Allison Bastain argued in her request for the opinion that such information related "to contract negotiations between the city, Pubic Charters and Fly Frontera, Inc., to provide passenger service to various destinations in Mexico."

Releasing the information requested would, Bastian argued, "could provide a competitive advantage to other competing airports who are attempting to obtain a new airline with direct service to cities in Mexico by revealing information which would enable competitors to offer higher subsidies or an otherwise more attractive proposal than the one currently being negotiated ."

"Based on these representations and our review, we find that you have demonstrated the city has a specific marketplace interests and may be considered a 'competitor' for purposes...Accordingly, the city may withhold the remaining..information."

That, in a nutshell, shows that the city has decided not to make public the process by which it reached a decision on a public issue that was discussed and deliberated in open meetings and in executive sessions unless it is forced to do so by a court.

Will Public Charters now move in that direction?

And, still lurking on the side, is the open records request by Accion Americas' Carlos Quintanilla requesting communications between the city and the various players – including AeroMexico and City Commissioner Melissa Zamora and the ad agency where she is employed, Elite Promotions.

The request came after Mayor Tony Martinez and Zamora announced that talks with the Mexican airline had been ongoing for "months," even as the negotiations with Fly Frontera were ongoing.

During a public meeting, Martinez announced that Zamora would head the promotional effort that the city would launch to promote the airline. A caller to Elite Promotions was informed that Zamora, a marketing consultant with the firm, was in "charge of the AeoroMexico" account.

So far, the AeroMexico issue has not been part of any official public agenda or has been before the city commission for their action.

"We'll see whether the city will comply with my request or whether it will also ask the AG's for another opinion to gain time," Quintanilla said when asked about Nottingham's response to the request by Public Charters.

"All this just indicates to me that the city is trying to hide something from the public. Things are getting interesting now," he said.