County says Flournoy could have received records he's suing for through FOIA
Local attorney Bob Flournoy and Angelina County Judge Keith Wright agree the lawyer’s latest lawsuit against the county should not be necessary. But that’s where the agreement ends.
Flournoy, who filed his third lawsuit against the county in December, could have received the records he is suing for without filing another lawsuit, Wright said. The county should have released the documents without another suit or another Texas Freedom of Information Act request, Flournoy said.
On Dec. 13, Flournoy filed the suit to force the county to release documents he requested in July 2022. He asked for correspondence between county officials, employees and the U.S. Army Corps of Engineers regarding a boat ramp on Oak Hill Road, as well as 11 other items related to the ramp, Tanksley Road and work completed using funds from a $6 million tax note county officials took out in 2020, according to county and Texas Attorney General records.
The records Flournoy requested were related to a lawsuit he filed in 2022 to have Commissioner Terry Pitts removed from office. In the suit, he said Pitts illegally worked on Tanksley Road and a boat ramp on U.S. Army Corps of Engineers property and used tax note funds improperly.
Those records were open to him as the plaintiff through the discovery process, not the Freedom of Information Act, Wright said.
“You can’t use the FOIA system to avoid discovery in a lawsuit,” Wright said. “He was trying to get information from us related to his lawsuit, which is not allowed. He has to go through the normal process — discovery.”
The discovery process is relatively lengthy in duration. The requester must submit questions to the other party, and the attorneys debate back and forth about what can and cannot be released, Wright said. The process costs more time and money than an open records request, but the county wasn’t willing to “do the work for him,” Wright said.
Flournoy said he didn’t know why he needed to go through the discovery process. “I guess I could have. But at that time, I assumed that they would give me the stuff and it would be quicker.”
But Flournoy also said the law prohibited him from requesting discovery as he was not the attorney on the case, and that in those particular cases, plaintiffs cannot file anything. The case is different from other civil cases in which plaintiffs can take depositions or engage in discovery, he said.
Petitions for the removal of a public officer are represented by the county attorney or the district attorney. This case was represented by Kent Richardson, an assistant attorney general of Texas, who filled in as an assistant county attorney at County Attorney Cary Kirby’s request.
Richardson would not file for discovery or anything else in the case, Flournoy said.
“He controlled it,” Flournoy said. “I couldn’t do anything but file the petition.”
The law, however, does not say plaintiffs are prohibited from filing for discovery. Flournoy said he could not recall the specific statute within the law that said he could not file for discovery, adding it would be nice to have it, but The Lufkin Daily News should take his word for it.
“You can quote me as probably the biggest, the best, the person with the most experience in that kind of a lawsuit to remove somebody (from office) there is anywhere around,” he said.
Pitts released records to Richardson. Flournoy used them during an Aug. 16, 2022, public meeting he scheduled to attempt to calculate how money from the county’s $6 million tax note was used.
County court records still show Flournoy as the attorney on record on the suit against Pitts. But Richardson’s notice of nonsuit he filed Aug. 24, indicating he had no wish to pursue that lawsuit further, was accepted by the court. Flournoy filed an objection to the nonsuit, but it was not accepted.
The county requested a Texas attorney general’s opinion on the release of the requested documents in two instances in August prior to the motion of nonsuit, both related to identical requests sent to Wright, Pitts and Kennedy. The county argued certain documents could not be released because they were related to an ongoing lawsuit.
On Oct. 11, 2022, the attorney general determined some of the information requested was directly related to Flournoy v. Pitts and could not be released through an open records request, although other parts could. Flournoy said he has not received any records.
The attorney general’s office later notified the county’s representative that the opinion issued Oct. 11 was withdrawn, according to the response filed against Flournoy’s latest lawsuit.
Flournoy, who was notified of the original opinion, said nobody notified him the opinion was withdrawn.
“If he would have just turned around and gave us a new open records request, we would have given him the information,” Wright said.
Flournoy said he could have turned around and immediately filed another request but is not trying to harass the county.
“I just want our county officials to act like that they’re for us and that they’re willing to do what is right,” he said. “And why would they keep us, try to keep us from getting information? But if you ask for it, you ought to get it.”
He should not have to file another request — the county should release public information, he said.
Angelina County provided Flournoy with 2,826 pages of records responsive to 14 requests submitted to Wright, Pitts and Kennedy over the course of two years.
Some of the requests asked for copies of records the county had already provided to Flournoy, and some sent to Wright requested information from commissioners. Wright doesn’t have access to commissioners’ records, he said in his responses to Flournoy.
“There’s this argument out there that the county judge is responsible for it all, but that’s not the case,” Wright said. “Each elected official is responsible for their own records. I don’t have access to their records.”
Wright believes the documents are available for an open records request.
“We don’t have anything to hide, so we don’t mind providing it other than it takes us away from our jobs, the other things we have to do,” Wright said. “I mean, it’s not an issue. We’re glad to provide it to somebody.”
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