Image: On Friday, September 1, 2017, San Jacinto River Authority General Manager Jace Houston stood on the Lake Conroe Dam with other officials to try to justify why the Authority had flooded thousands of homes downstream during Tropical Storm Harvey without failing to give any warning to the homeowners. On Monday, February 25, 2019, 284th District Judge Kristin Bays of Conroe ordered the Authority to release its Emergency Action Plan to Eric Yollick, Publisher of The Golden Hammer, after the Authority balked for a year-and-a-half at making the document public.
Conroe, February 26 – 284th District Judge Kristin Bays of Conroe ordered the San Jacinto River Authority (SJRA) to release to Eric Yollick, Publisher of The Golden Hammer, its Lake Conroe Dam Emergency Action Plan and its Lake Conroe Dam Operation Policy (EAP) with certain redactions, which Yollick had requested, by Tuesday, March 5, 2019, at 12 noon. Bays issued the Final Judgment, Writ of Mandamus, and Order in a lawsuit styled Eric Yollick, Individually and as Publisher of the Golden Hammer versus San Jacinto River Authority, Cause Number 17-10-12505.
As Judge Bays recited in the Final Judgment, the Court called the case to trial on February 8. Yollick sued SJRA and asked for a writ of mandamus to turn any documents modeling or planning for downstream flooding impacts from the Lake Conroe Dam as well as any flood control plans. Yollick explained his purpose in asking for the documents:
“My focus with The Golden Hammer and in the political work I’m doing in Montgomery County and elsewhere has always been to try to reduce government spending. After Tropical Storm Harvey, SJRA has attempted to get the Montgomery County government, the City of Conroe, and other governmental entities to pay for the ‘flood control’ work which is SJRA’s statutory duty, since 1937, in its enabling statute. SJRA has many tens of millions of dollars of unencumbered cash, which it has made from the lucrative sale of surface water at very high prices. SJRA should be using that cash to ‘provide flood control’ rather than trying to force the Montgomery County government and its taxpayers, the City of Conroe and its taxpayers, or any other taxpayers to assume the responsibility, which has always been that of the SJRA.”
Judge Bays made the following factual findings and conclusions of law, which summarize the Court’s findings in the trial:
- On September 8, 2017, SJRA issued a press release describing “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.”
- At a public meeting on September 26, 2017, SJRA’s General Manager Jace Houston spoke about that same engineering plan.
- On September 27, 2017, Yollick made a request from SJRA under the Texas Public Information Act for the “carefully prepared engineering plan” and for “all flood control plans SJRA has developed since August 28, 2007.”
- SJRA responded to Yollick by saying only its EAP was responsive to the Public Information request, but SJRA declined to provide the EAP to Yollick, because SJRA claimed confidentiality as a result of:
- Pending litigation related to flooding during Hurricane Harvey (the “Litigation Privilege”); and
- The Texas Homeland Security Act (the “Security Privilege”).
- SJRA neither sought nor obtained an Attorney General opinion related to Yollick’s request or SJRA’s assertion of privileges to Yollick’s request for public information.
- Instead, in order to claim confidentiality, SJRA relied upon a prior Attorney General opinion from April, 2017, related to a different request from a different requestor not specifically mentioning the EAP and a different earlier request from a Houston attorney named Bradford T. Laney for which the Attorney General’s Office had not yet issued an opinion.
- Although SJRA is the defendant in lawsuits for its release of water during Hurricane Harvey, Yollick is not involved in any such lawsuit in any capacity.
- The requested information is not “information relating to litigation of a civil or criminal nature,” because the flooding lawsuits don’t concern the EPA nor could it insofar as both parts of the EAP were created before Hurricane Harvey occurred.
- Yollick’s only litigation with SJRA is this lawsuit.
- The Security Privilege permits a claim of confidentiality for information held by a governmental unit which prevents, detects, or investigates terrorism or crimes and which documents reveal areas of risk or vulnerability to terrorism or crimes or documents if they identify the technical details of particular vulnerabilities of critical infrastructure to an act of terrorism.
- After Judge Bays ordered SJRA to produce the EAP to her for her review, Judge Bays found that no part of the documents SJRA provided involve preventing, detecting or investigating terrorism or crimes, or even identifying areas of the Lake Conroe Dam which would be susceptible to terrorism or crimes.
- SJRA is a government entity and the Lake Conroe Dam is critical infrastructure.
- Portions of the EAP do identify technical details as to critical infrastructure and are confidential under the Texas Homeland Security Act.
- The EAP contains many technical details but most of them are unrelated to the critical infrastructure but are instead items such as the description of the maximum rainfall in the area, the size of basins which collect water from the Lake Conroe Dam, water impacts comparing a breach versus no breach, and the like, or which are public knowledge, such as the number of gates, the location of an access road to the Lake Conroe Dam, and the amount of water contained in Lake Conroe.
- At trial, Yollick made clear he excluded from his request any information which identifies the technical details of the Lake Conroe Dam.
At trial, Yollick represented himself and testified as a fact witness and an expert witness on litigation matters. Yollick also called former full-time Department of Homeland Security employee James Napolitano, who testified as an expert witness on homeland security matters. SJRA chose not to present any witnesses.
Judge Bays offered SJRA the opportunity to submit the EAP for her review. The SJRA declined to provide the EAP to the Judge. Judge Bays later ordered SJRA to submit the EAP to her for her review. The SJRA complied – partially – with the Court’s Order but did not submit the entire document to Judge Bays for review.
Yollick explained, “This ruling moves Montgomery County citizens one important step closer to examining, in reality, the entirety of all of the actions SJRA has taken and planning it has done ‘to provide flood control’ which was one of the Authority’s primary duties since the Legislature created it in 1937. I fear that when SJRA finally comes clean and produces this public information, the citizens of Montgomery County and of the areas downstream of the San Jacinto River’s watershed will come to learn that SJRA has done absolutely nothing ‘to provide flood control’ in the 82 years of its existence as a flood control agency.”
The Golden Hammer‘s Publisher added, “Citizens of Montgomery County should appreciate the fact that Judge Bays followed the law, even though the Court’s ruling has apparently upset SJRA.”
SJRA filed an appeal to the Beaumont Court of Appeals late in the afternoon on Monday, February 25, 2019.