Conroe, October 17 – The Publisher of The Golden Hammer, Montgomery County’s leading daily newspaper, as Publisher and individually, filed suit against the San Jacinto River Authority (“SJRA”) to seek a writ of mandamus to compel SJRA to release portions of two documents SJRA has admitted are the only flood control and downstream mitigation documents it has in its possession on October 16, 2017. Even though SJRA has a mandate from the Texas Legislature “to provide flood control” and even though SJRA has an enormous amount of encumbered cash with which it could do the flood control, SJRA has chosen not to fulfill its duty, as its General Manager Jace Houston admitted during tense testimony before the Senate Agriculture, Water, and Rural Affairs Committee in New Caney yesterday.
The lawsuit seeks no monetary damages or any money at all. It merely seeks disclosure of portions of two documents which SJRA claims are excepted from the Texas Open Records Act. In a letter, dated October 11, 2017, to The Golden Hammer‘s Publisher, SJRA’s attorney, Mitchell Page of Schwartz, Page & Harding law firm in Houston, claimed that SJRA doesn’t need disclose the documents under a “homeland security” exception and under a “litigation” exception.
On September 8, SJRA released a Press Release, criticizing Kingwood officials allegedly for making misrepresentations to the public about SJRA’s actions during the Harvey storm. In response to that Press Release in which SJRA expressly referred to an engineering plan for the operation of the Lake Conroe Dam, which SJRA claims results in mitigation of downstream flooding. On September 27, Eric Yollick requested a copy of the engineering plan and “all flood control plans” SJRA has developed since August 28, 2007, exactly ten years prior to the date when SJRA released a raging torrent of 79,131 cubic feet per second of water from the Lake Conroe Dam’s gates in the middle of the night without effective warning to downstream neighborhoods.
SJRA identified only two documents responsive to Yollick’s Open Records Act request but admitted that SJRA has no “flood control plans.”
In response to SJRA’s claimed “homeland security exception,” Yollick and this newspaper have made clear that they’re not interested in the technical details for the operation, construction, or engineering of the Lake Conroe Dam. Rather they merely want the portions of those documents that analyze and attempt to mitigate downstream flooding. In response to the SJRA’s claimed “litigation exception,” it’s pretty clear that the two documents which SJRA admits it has in its possession were not created for litigation (hopefully) but instead merely operational documents for SJRA’s supposed work in this community.
The text of the full lawsuit follows:
“To the Honorable District Judge:
1. Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this State that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees. Tex. Gov’t Code Ann. § 552.001(a) (Vernon 2017). 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. Id. The people insist on remaining informed so that they may retain control over the instruments they have created. Id. Yollick intends to conduct discovery under Level 2 of Rule 190.
2. Yollick has no relationship whatsoever with Defendant other than that Yollick resides within the watershed of the San Jacinto River.
3. Yollick seeks a writ of mandamus pursuant to Section 552.321 of the Texas Government Code in order to obtain a copy of governmental records he requested and which Defendant withheld, even though the records are subject to disclosure under the Texas Open Records Act/Public Information Act (“ORA”) in Chapter 552 of the Texas Government Code.
Parties, Venue, and Jurisdiction
4. Plaintiff Eric Yollick is a natural person who resides at The Woodlands, Montgomery County, Texas.
5. Defendant San Jacinto River Authority is a governmental body of the State of Texas with its main offices at 1577 Dam Site Road, Conroe, Montgomery County, Texas 77304. An appropriate process server may serve the citation and petition by serving Defendant San Jacinto River Authority through its General Manager, Jace Houston, 1577 Dam Site Road, Conroe, Montgomery County, Texas 77304.
6. Venue and jurisdiction are mandatory in a District Court of Montgomery County, Texas, pursuant to Section 552.321 of the Texas Government Code, because Montgomery County is the County in which are Defendant’s main offices.
Background: Press Release and Yollick’s Purpose
7. On September 8, 2017, Defendant issued a press release (the “Press Release”) a true and correct copy of which Yollick has annexed hereto as Exhibit “A.”
8. In the Press Release, Defendant stated, inter alia,
“Despite the misinformation and speculation that has been circulated in the media, in the pending lawsuit, and elsewhere, the actual facts are that the Authority’s operation of the Lake Conroe dam was in accordance with both the law and a carefully prepared engineering plan that, among other things actually has the effect of reducing downstream peak flow as water passes through the lake from the San Jacinto River.”
9. Yollick is a private citizen deeply committed to reducing the expenditures of all governments in the United States in order to make them smaller and more efficient. Yollick believes that government does not have a moral right to do anything other than: (1) provide national security, (2) enforce criminal laws, (3) provide minimal infrastructure that free markets would not otherwise provide, and (4) eliminate transactional externalities that private parties cannot avoid.
10. Yollick believes, however, that so-called “conservatives” have gone about their efforts the wrong way to reduce spending, lower taxes, and make government less intrusive into private matters. Modern “conservatives” have relied on a corrupted two-party system that has little principle. Citizens have failed to remain vigilant and actively involved in the government which they created and over which they have the right to control. Most importantly, citizens have permitted expansionist propaganda to take control of national discourse and philosophical outlook.
11. In order to regain the moral authority to demand that governments reduce their size, spending, and taxation, Yollick believes that individuals must look to themselves and their local governments over which citizens should exert the greatest influence to bring the size, spending, and taxation of government under control first before seeking to bring those ideas to other jurisdictions in remote lands such as Austin or Washington, D.C. Therefore, Yollick has chosen to attempt to bring local government spending under control in a governmental jurisdiction – the Montgomery County government – of which, by career and by serendipity, Yollick has come to have the greatest understanding (meaning that while there are likely many other individuals who understand the County government better than does Yollick, of all local governmental authorities, Yollick understands the County the best).
12. In late June, 2016, Yollick began study and vigilance of the Montgomery County government. While Yollick has not succeeded in his goals to reduce County government spending by $100 million while increasing law enforcement and road and bridge infrastructure spending by $40 million in the County’s annual budget, for a net reduction of $60 million per year, Yollick has made incremental progress.
Harvey tragedy and the need for flood control in Montgomery County and vicinity
13. In late August and early September, 2017, the Montgomery County community suffered tragic flooding and related damage arising from Tropical Storm Harvey.
14. Immediately, Yollick observed many elected officials and political leaders in Montgomery County, and elsewhere, suggesting that Montgomery County required massive spending on flood control in order to prevent and mitigate flooding that has gotten worse as this community has developed. Many of those leaders have called for spending many tens of millions of dollars on flood prevention and mitigation. They’ve suggested creation of a flood control district, the County government spending millions of tax dollars on waters and waterway cleaning and desnagging, the County government spending millions of tax dollars on flood control, the state or federal government spending millions of tax dollars on flood studies and flood mitigation, and other expensive proposals which would burden taxpayers enormously.
15. In short, Yollick fears that flood control has become the latest mantra for “big government” advocates to grow the size and centralized planning of government far beyond even the current magnitude.
16. Meanwhile, however, Defendant already exists. Defendant has a statutory duty to prevent soil erosion and to provide flood control under its original Enabling Act. Rather than fulfilling those duties, Defendant has focused almost entirely on the sale of surface water for enormous profits and the operation of the Lake Conroe Dam to assist in those efforts.
17. The primary emphasis of the Lake Conroe Dam for Defendant is that it provides the means by which Defendant may engage in extraordinarily lucrative sales of surface water to the City of Conroe, The Woodlands, and other water users. The Lake Conroe Dam is not primarily a safety feature, although obviously if it were to fail would be disastrous.
18. Therefore, Yollick has discovered that Defendant is clearly the critical hub in a wheel of potentially massive burdens on other governmental entities, including the Montgomery County government to which many citizens look for leadership.
19. Why is Defendant the critical hub? First and foremost, it has a statutory duty to provide flood control within the entire San Jacinto River watershed, an area far larger than but also inclusive of the entirety of Montgomery County. Second, Defendant has more than $54 million of unburdened cash – and a net worth in excess of $169 million – which such funds are easily available for the flood control so vital and necessary to Montgomery County and the surrounding vicinity. Third, Defendant has not taken previous actions to provide flood control other than direct operation of the Lake Conroe Dam.
20. Fundamentally, Yollick’s purpose in obtaining information about Defendant’s flood control efforts and about Defendant’s engineering plans to which Defendant made reference in the Press Release is that Yollick seeks to prevent a massive financial burden on the Montgomery County government (or other governmental entities) for flood control when Defendant so clearly has the financial ability and the existing statutory duty to provide the flood control it should have provided since 1937.
21. On September 27, 2017, Yollick emailed a request pursuant to ORA to Defendant, in accordance with Defendant’s advertised public information request procedure on Defendant’s website. Yollick’s ORA request (the “Request”) follows in its entirety and is also Exhibit “B” (a true and correct copy) hereto:
“Ladies and Gentlemen of the San Jacinto River Authority:
“Pursuant to the Texas Public Information Act/Open Records Act, I request the following documents:
“1. The ‘carefully prepared engineering plan’ to which your September 8, 2017, Press Release (‘SJRA Responds to Lawsuit Regarding Hurricane Harvey Flooding’) referred;
“2. All engineering plans since October 1, 1994, SJRA has prepared or had prepared for it for the operation of the Lake Conroe dam with respect to mitigation or reduction of downstream peak flows as water has passed through Lake Conroe from the San Jacinto River.
“3. All flood control plans SJRA has developed since August 28, 2007.
“I am happy to reimburse the Authority for reasonable research and copying charges, although I prefer production electronically for convenience and to save expense.
“Eric Yollick, Private Citizen
23. Defendant did two things in the Response Letter.
24. First, in the Response Letter, Defendant claimed that “the only information that is responsive to your Request is contained in the Authority’s Emergency Action Plan for the Lake Conroe Dam and the related 2017 update to the Gate Operation Policy for the Lake Conroe Dam.” Yollick shall refer to the foregoing information as the “Responsive Information.”
25. Second, in the Response Letter, Defendant refused to release the foregoing information on two grounds: (1) “as confidential information under the Texas Homeland Security Act” and (2) “may be withheld due to pending litigation.”
27. While Defendant claimed to have gotten another opinion from the Attorney General of Texas that the requested information is confidential, Defendant failed to request an Attorney General Opinion with respect to Yollick’s Request.
Application for Writ of Mandamus
28. Yollick incorporates paragraphs 1 through 26 herein by reference as though set forth at length.
29. A requestor may file suit for a writ of mandamus compelling a governmental body to make information available for public inspection if the governmental body refuses to supply public information. Tex. Gov’t Code Ann. § 552.321(a) (Vernon 2017).
30. A suit which a requestor files must be in a District Court for the County in which the main offices of the governmental body are located. Id. § 552.321(b).
31. Seeking an attorney general’s opinion is not a prerequisite to mandamus relief under the ORA – resort to that officer is merely permissive if the public entity wishes that officer’s opinion. City of San Antonio v. Texas Atty’ Gen., 851 S.W.2d 946, 951 (Tex. App. – Austin 1993, writ den’d); Texas Dept. of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App. – Austin 1992, no writ).
32. Whether the attorney general has determined the information to be a public record or public information does not preclude a Requestor from seeking a trial court’s determination as to whether the information sough was public information within the meaning of the ORA. Gilbreath, 842 S.W.2d at 411 (“there is no requirement that the attorney general issue an open records decision before a person may seek mandamus to compel the disclosure of public information.”). Accord, Thomas v. Cornyn, 71 S.W.3d 473, 483 (Tex. App. – Austin 2002, no pet.); Okwo v. Harris Cty. Dist. Atty., 2016 WL 2974443 * 2 n. 3 (Tex. App. – Houston [14th Dist.] 2016, no pet.).
33. All conditions precedent have been performed or have occurred.
34, The Responsive Information is “public information” under Section 552.002 of ORA, because it is information that is written, produced, collected, assembled, or maintained in connection with the transaction of official business by a governmental body or for a governmental body which meets the requirements of Section 552.002(2).
35. Public information is available to the public. Tex. Gov’t Code Ann. § 552.021 (Vernon 2017).
36. Defendant has asserted two exceptions to public disclosure neither of which actually apply to Yollick’s Request or to the Responsive Information. The two narrow exceptions are the “litigation exception” of Section 552.103 of ORA and the Texas Homeland Security Act exception.
Defendant’s Claimed Disclosure Exception 1: Texas Homeland Security Act
37. Once again, it’s important to note the purpose of Yollick’s request: to determine the flood control measures for which Defendant has provided in order (a) to save other governmental entities and their taxpayers the substantial funds that may be necessary for flood control, and (b) to spur Defendant to utilize its considerable financial and engineering resources to provide the flood control under its statutory mandate.
38. Yollick has little interest, if any, in the particular design of the Lake Conroe Dam, the engineering of the Dam, or the engineering of the Dam’s gates. Interestingly, Yollick attended a Board of Directors meeting on September 26, 2017, at which Defendant’s General Manager Jace Houston presented the methodology of the Lake Conroe Dam’s Gate Operations in detail in a PowerPoint presentation which such PowerPoint presentation Defendant shared on its website (including the Gate Operation slides).
39. What piqued Yollick’s interest in the Responsive Information was Defendant’s direct reference to the Responsive Information in the September 8, 2017, Press Release to plans that have the “effect of reducing downstream peak flow as water passes through the lake from the San Jacinto River.”
40. In other words, Yollick doesn’t particularly care about the engineering or construction of the Lake Conroe Dam in his Request. Clearly, the information Yollick sought was any discussion of the effect of the Dam operations on “reducing downstream peak flow as water passes through the lake from the San Jacinto River.”
41. Defendant should make available to Yollick, as “public information” the discussion of that “effect” contained within the Responsive Information, because the “effect” has nothing whatsoever to do with protection of the “critical infrastructure” under the Texas Homeland Security Act.
42. The gravamen of the Attorney General’s April 19, 2017, letter to Defendant’s counsel, under OR2017-08347 (final 3 pages of Exhibit C hereto) was the Responsive Information “‘would reveal particular vulnerabilities of the [dam] that make it susceptible to an act of terrorism.’” The clear reason that the Attorney General came to that (questionable) conclusion, which, by the way, is not dispositive to this proceeding, is that Defendant’s request under the Texas Homeland Security Act was overbroad apparently to include engineering details about the construction and operation of the Lake Conroe Dam itself.
43. Nevertheless, Yollick has no interest in the construction, operation, or engineering of the Lake Conroe Dam, as his Request made clear. Rather, Yollick is only interested in the downstream “effect” of the Dam which Defendant mentioned in the Press Release and apparently in the Responsive Information.
44. Yollick is happy to accept a redaction of the Responsive Information so that it will include only the discussion and analysis of the “effect” as Defendant’s very public Press Release discussed.
45. Defendant has the burden to show that the Responsive Information falls under the Texas Homeland Security Act exception for “critical infrastructure” contained in Sections 418.176 to 418.182 of the Texas Government Code and Section 552.101 of ORA.
46. In order to fall under the exception, Defendant must show that the Responsive Information is “critical infrastructure” which “includes all public or private assets, systems, and functions vital to the security, governance, public health and safety, economy, or morale of the state or the nation.” Tex. Gov’t Code Ann. § 421.001(2) (Vernon 2017).
47. Under Section 418.181 of the Texas Government Code, Defendant must show that “Those documents or portions of documents in the possession of a governmental entity are confidential if they identify the technical details of particular vulnerabilities of critical infrastructure to an act of terrorism.” This element is where Defendant’s claim of falling within the Texas Homeland Security Act exception to ORA must fail. Defendant’s discussion of the “effect” downstream of its Dam operations could not possibly include technical details of particular vulnerabilities of the critical infrastructure, because, as Defendant stated to the Attorney General, the Dam is the claimed critical infrastructure, not the areas downstream from the Dam, which are Yollick’s particular interest as is clear from his Request.
48. Finally, of course, Defendant must show that the particular infrastructure whose technical details are within the Responsive Documents provide details revealing vulnerability to an act of terrorism. Tex. Gov’t Code Ann. § 418.181 (Vernon 2017). Here’s where the logical fallacy of Defendant’s claim of an exception must ultimately fail. Yollick does not seek portions of documents about the technical details of the Lake Conroe Dam. Rather, Yollick seeks the portions of documents about the “effect” of the Dam downstream. While Yollick has not seen the Responsive Information, Yollick does not believe that the Responsive Information will show “technical details of particular vulnerabilities…[of properties downstream from the Lake Conroe Dam] to an act of terrorism.”
Defendant’s Claimed Exception 2: Litigation
49. On its plain face, the Responsive Information has nothing whatsoever to do with “information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party.” Id. § 552.103(a).
50. The Responsive Information is some sort of action plan for the Lake Conroe Dam and an update for the gate operation of that Dam. It’s not a litigation report, work product, or some document created in anticipation of litigation. It’s not an attorney-client communication.
51. As the Attorney General of Texas made clear in Open Records Decision No. 361, the litigation exception is quite narrow. In this instance:
A. Yollick has no pending or threatened litigation with Defendant, other than this mandamus proceeding;
B. While Defendant has made Yollick aware of pending litigation against Defendant, and Yollick has also seen public reports about that pending litigation, it’s not at all clear that the Responsive Information is even relevant to the pending litigation;
C. The pending litigation concerns takings or inverse condemnation claims against Defendant for Defendant’s actions during Tropical Storm Harvey over the time period from approximately August 25, 2017, to September 3, 2017, while the Responsive Information came into existence long before the Harvey storm;
D. Furthermore, while the Responsive Information may have had something to do with the reason Defendant chose to release water from the Lake Conroe Dam in the manner in which it so released it, such reasoning for the release is not an element in a takings claim; rather, the elements in a takings claim are that the government “intentionally took or damaged their property for public use, or was substantially certain that would be the result,” Harris Cty. Flood Control Dist. v. Kerr, 499 S.W.3d 793, 799 (Tex. 2016). Yollick would be happy to allow Defendant to redact any information revealing that Defendant intentionally damaged homes downstream from the Lake Conroe Dam. Yollick also respectfully notes that whether Defendant was “substantially certain” that damage to properties downstream would be the result of opening the Dam floodgates could not possibly be an element in dispute in any of the pending litigation, besides this mandamus proceeding, because Defendant’s General Manager Jace Houston admitted Defendant’s substantial certainty of that during a September 1, 2017, video presentation which Defendant posted on its website and on social media.
52. The narrow litigation exception to the ORA cannot apply to the Responsive Information or it would operate as a shield to all public information of any governmental body regularly in litigation.
Conclusion and Prayer
53. It is clear, in fact, that it is “vital to the security, governance, public health and safety, economy…[and] morale of the state or the nation” for the Court to issue a writ of mandamus to require Defendant to produce the Responsive Information to Yollick as soon as possible. The public has every right to know.
Wherefore, premises considered, Eric Yollick, Individually and as Publisher of The Golden Hammer newspaper, respectfully prays that the Court:
A. Issue a writ of mandamus compelling Defendant San Jacinto River Authority to make the Responsive Information available for public inspection by Eric Yollick, or, in the alternative, to make those portions of the Responsive Information that do not fall under an exception to ORA available for public inspection by Eric Yollick; and
B. Note that Eric Yollick waives the taxing of costs against Defendant, as Eric Yollick does not believe in the acceptance of any financial benefit from governmental entities; and
C. Award Eric Yollick such other and further relief to which he may show himself justly entitled.
Eric Yollick, Individually, and as
Publisher of The Golden Hammer
Newspaper, Pro Se
State Bar Number 22160100
Post Office Box 7571
The Woodlands, Texas 77387-7571