For someone who is an active political player in the crusade to build a controversial toll road in southwest Austin, Travis County Commissioner Gerald Daugherty has nonetheless managed to maintain a very small and insignificant paper trail tracking his role in the project.
At least that's what the commissioner and the county attorney's office would have us believe. But the Save Our Springs Alliance isn't buying it, and the enviro group has mounted a legal challenge seeking to reverse what they argue was a very selective release of information relating to Daugherty's involvement in State Highway 45, one of Austin's longest delayed and most contentious road plans – chiefly because of its route across the sensitive recharge zone of the Edwards Aquifer and its potential to spawn additional sprawl, made possible by a subsidized tollway.
SOS's lawsuit seeks wider access to the Precinct 3 commissioner's emails and other documents than what was initially provided in response to the group's public information request filed with Daugherty's office in May. Since taking office in January, Daugherty has made SH 45 his No. 1 priority, and he's made no bones about his objective as a member of the Capital Area Metropolitan Planning Organization Transportation Policy Board and as chair of the CAMPO subcommittee on SH 45.
Aided by an opinion from the state attorney general's open records division, Daugherty is withholding some of his correspondence on the project. The county attorney's office initially argued that much of the commissioner's documentation was exempt from disclosure on a number of points, including attorney-client privilege, classified information on policymaking decisions, and certain details that fall under the common-law privacy doctrine because of "highly intimate or embarrassing" details. The AG issued a ruling that mostly favored the county (and by extension, CAMPO), while rejecting other arguments. It did agree with the county that the embarrassing details Daugherty asked to withhold were of no public concern.
In its lawsuit, SOS contests each of the county's arguments. "Simply because a communication involves or includes an attorney for the county does not mean the privilege applies," the lawsuit states. Concerning the county's argument of "intimate or embarrassing" facts contained in the information, the group countered that both the courts and the AG's office have repeatedly made clear that the privacy exemption under the law applies only to such matters as sexual assault, pregnancy, psychiatric treatment, abuse, and similar sensitive information.
"We don't believe that there is any personal privacy privilege in documents concerning a publicly funded toll road," SOS attorney Adam Abrams said in a statement. "It might be embarrassing to the Commission, but it's public information concerning a matter of great public interest."
According to SOS Executive Director Bill Bunch, who filed the records request, one of the emails released to the group suggests that Daugherty used his personal email account to conduct SH 45 business. Yet the emails provided to SOS did not include any from Daugherty's personal account. Bunch believes that the county attorney didn't lean on Daugherty to turn over all of his emails – much in contrast to the manner in which County Attorney David Escamilla pursued a 2011 email investigation to determine whether City Council members were violating open meetings laws. Moreover, many of the Council emails did contain embarrassing details – mostly snarky comments – for which the mayor and some council members later apologized. But the limited number of emails released from Daugherty's office largely include exchanges about setting up meetings to discuss SH 45. "I think it was sort of a situation of 'don't ask, don't tell,'" Bunch said of what he believes was the county attorney's less-than-vigorous pursuit of Daugherty's correspondence. (Escamilla declined to comment on the pending litigation, and Daugherty did not return a phone message left with his office Monday.)
Clearly, the lawsuit against Daugherty won't be the last volley fired over SH 45, a four-lane tollway that, if it ever gets built, would be a 3.6-mile stretch from South MoPac to FM 1626 in Hays County. The road plan has been on and off the fast track for at least 16 years, and when a road bond proposal to finance right-of-way purchases for the project went before voters in 1997, the Chronicle urged voters to reject "the return of the living boondoggle." Alas, the proposition prevailed, and thus began the on-again, off-again romance with SH 45. Even after the county completed its right-of-way purchases, SH 45 stalled out due to local environmental opposition and financial shortfalls plaguing the Texas Department of Transportation. Plus, other, alternative regional transportation proposals began to emerge. It wasn't until Daugherty recaptured his seat on the county commission that SH 45 regained steam.
Last month, in a largely symbolic move, commissioners voted 4-0 (with Ron Davis absent) to support the construction of the roadway, reversing their previous opposition. That support might be short-lived. After the 2014 election it's just as likely the commission will swing in the opposite direction, given the two open seats, including the county judge's post, and a third seat that incumbent Margaret Gomez hopes to retain – in spite of her "yes" vote for SH 45.
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