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601 Houston, TX 77007 June 23, 2009 Office of the Texas Attorney General Open Records Division P.O. Box 12548 Austin, Texas 78711-2548 Re: AG ID#351739, Texas Public Information Act request dated May 26, 2009 from Jennifer Peebles for information pertaining to the Houston Airport System and the Houston Airport System Development Corporation. Dear General Abbott: I am writing you today to ask that you require the Houston Airport System (HAS) to make public all the records to which I have requested access under the Texas Public Information Act. I. List of employees of the Houston Airport System and their 2008 pay data A. The airport system objects to the release of airport employee names, not their pay data. I am a journalist for an online newspaper in Houston. In an interview I conducted last week (a printout of my story is enclosed as EXHIBIT A), Houston Assistant City Attorney Evelyn Njuguna said that the city does not object to the release of the salary information I had requested. It does, however, object to the release of the names of the airport workers that would accompany the requested salary data:
The airport system’s concern isn’t so much releasing the salary numbers, Njuguna said in a telephone interview Tuesday. “It’s not the amount that they make, it’s more so the names of the people,” she said. “Because TSA has said giving out information about employees who work in the airport or who have access to secured locations could” put airports at risk.
The airport and the city would be willing to release a list of numbers of how much the workers are paid, she said — but Texas Watchdog countered that a list of dollar amounts without names attached to them would be of little use to the public.
B. The airport system has already published the names and job titles of at least 98 of its workers on the airport system's own Web site. The Houston city attorney wants the attorney general's office to believe that the Houston airports and their travelers could be vulnerable to a terrorist attack if the city were to release the names of the people who work at the airports. If that's true, then the Houston Airport System is -- at this very moment -- aiding and abetting terrorists. That's because the Airport System has made the names and job descriptions of at least 98 Airport System employees -- from the man in the front office to maintenance workers for the airports' buildings and automobile fleets -- publicly available on the Houston Airport System's own Web site. A random sampling of the people whom the airport system mentions by name in its own promotional materials on its Web site:
Manual Martinez and Charlie Herrera, who are airport system physical plant maintenance employees; Roshonda Passmore, an HAS airport security officer; T.J. Jennings, who helps maintain the motor vehicle fleet for HAS; Willie Bingaman, director of cargo operations for HAS; Dawn Hoffman, airport operations supervisor for Hobby Airport; and Brian Rinehart, manager of Ellington Airport for HAS.
In all, the number of employee names I found on the airport system's Web site totalled 98. I am including a complete list of those names with this letter as EXHIBIT B, complete with Web addresses, so that the attorney general's office may verify my claim. I am enclosing with this letter printouts of 10 of the Web pages in question as they appear as of this moment, on June 22, 2009. These are marked EXHIBIT C. Just to be clear: I didn't obtain these airport system employees' names by hacking into some password-protected area of the airport's Web site. I didn't bribe anyone with special security clearance to retrieve these names. No, these airport employees' names and job descriptions -- and in some cases, even their photographs -- are all sitting right there on the airport system's public Web site in the Houston Airport System's monthly newsletters, which are written and compiled by the airport system's own communications and public relations staffers. These public-relations-type materials were produced by the Airport System, with public funds, for the benefit of the public.
Also, the names, photographs and short biographies of nearly a dozen of the Airport System's very top officials are on a special page of their own on the Airport System's Web site. Indeed, the name and photograph of the man who was the head of the Houston Airport System in 2008, Richard M. Vacar, appears so many times on the airports' Web site that I lost count. In short, the Houston Airport System wants the public -- indeed the world, and anyone, anywhere with Internet access -- to be able to access the names of these employees who have access to the restricted areas of Houston's airports. It willingly published this information and made it available to you, me and Osama bin Laden himself (assuming he has Internet access). The city of Houston and the Houston Airport System cannot on one hand publicize the names and job descriptions of 98 of its own employees and then, on the other hand, claim that releasing employees' names would somehow make the airport system vulnerable. This defies common sense. If the airport's argument is to be believed, then the leadership of the Houston Airport System is compromising their own airports' security. Aside from defying common sense, it also violates Texas law. State law prohibits selective disclosure of public records. If a government body releases the information to one person, it must release that information to others who request it. In Open Records Decision No. 400, penned in 1982, then-Texas Attorney General Jim Mattox said that the city of Dallas had to grant a Dallas resident access to requested information because the city had previously made that information public to other people: We conclude that when [the city of Dallas] permitted members of the public to examine this report, [it] waived any claim that [it] might have had [to withhold the information] ... Once such voluntary disclosure has occurred, as it has in this instance, the information in question "shall then be available to any person." The Houston Airport System has already released the identities of its employees on its own Web site. In doing so, it has waived its right to claim that this information can be kept confidential. The horse is already out of the barn, so to speak. In a similar vein, Mattox wrote in attorney general's opinion JM-590, written in 1986, that no one who requests records has any more right to access than any other requestor. In other words, everyone who requests records is equal in the eyes of the law. Under this principle, the Houston Airport System cannot turn down my request for access to records when it is making these same records public to everyone else in the entire world who has Internet access. Doing so would put me in a special class, by myself, with less rights to access to that information than anyone else. B. The Houston Airport System has failed to prevent its employees from voluntarily disclosing the requested information via the Internet.
If release of the identities of HAS employees really would make the airports unsafe, then Doug Frankhouser is compromising airport security. So is Albert Asberry. And Ivory Davis. They're all Houston Airport System employees -- Frankhouser is head of HAS' security, data and wireless systems; Asberry is an operations coordinator; and Davis is an electrical supervisor. And they all have voluntarily identified themselves, and described their jobs for HAS, on the Internet via the free social-networking service LinkedIn.com. Aside from the 98 HAS employees whose identities I culled from HAS's own Web site, I found a total of 42 other HAS employees who are voluntarily broadcasting their identities to the world on LinkedIn. Using nothing more than a Google search, I was able to find these 42 other people who identified themselves by name as current HAS employees, and all but one of them listed a job title or job description. A complete list of these employees, and their job titles, is enclosed as EXHIBIT D. Printouts of some of these Web pages are enclosed as EXHIBIT E. This is simply another way in which the Houston Airport System has already allowed the requested information to be released to the public via the Internet. If the release and publication of the names and job descriptions of HAS employees would really compromise airport security, as the Houston city attorney's office argues, then why has the Houston Airport System not prohibited its employees from disclosing their identities and job descriptions via the Internet and social-networking sites such as LinkedIn? While we all enjoy First Amendment rights that guarantee us freedom of speech, courts around the country have held that employers have some legal rights -- not an absolute right, but some rights -- to limit certain employee activities outside the workplace. One example: As a journalist who is expected to remain objective, my boss has the right to forbid me from putting campaign signs in my yard supporting political candidates. And the Internet is littered with stories of people who were fired from their jobs because of indiscreet postings on MySpace, Facebook, personal blogs and the like. If the Houston Airport System really wanted to prevent HAS employees from identifying themselves on the Internet, it could have forbidden such activity on security grounds. Clearly, it has not done so. Therefore, as I said earlier, the Houston Airport System has already allowed the information I requested to become public via the Internet. Thus, it should be released to me as I requested under the Texas Public Information Act. To summarize: The Houston Airport System has approximately 1,600 employees,
according to its most recent comprehensive annual financial report. Using the Internet, I was able to compile a list of 140 employees' names -- and job titles or descriptions for all but one of them -- using information published by the airport system itself or by the employees themselves. That group -- 140 of 1,600 -- constitutes nearly 9 percent of the total workforce of the Houston Airport System whose IDs are already on the Internet. The information I requested is already out there in the public eye. I ask the attorney general's office to require the airport system to release the records I requested. C. The Houston Airport System has not shown why this matter must be handled by the federal Transportation Security Administration; therefore, the Texas Attorney General must decide whether the requested information is public under the Texas Public Information Act. The Houston city attorney's office claims that the attorney general should step out of the way and allow the Under Secretary of Transportation for Security to decide whether the airport system can withhold a salary list for Houston Airport System employees. The city cites 49 USC Section 40119(b)(1), which gives the Under Secretary the authority to close off otherwise-public information "obtained or developed in carrying out security or research or development activities." At no point in its letter does the city attorney's office ever explain how a list of identifying all the janitors, typists and computer operators at an airport, and how much they make a year, is somehow "obtained or developed in carrying out security or research or development activities." Government agencies must create payroll lists -- and the accompanying payroll spreadsheets and databases -- as part of the basic functions of their existence. Workers must be paid -- or else they'll go work somewhere else. Therefore, government agencies must have some method of calculating how much each employee is owed, getting those checks written to the right people, and maintaining basic accounting records to ensure the proper taxes are levied on those workers. Government agencies do not obtain or develop payroll lists in carrying out security activities. They do not obtain or develop payroll lists in carrying out research activities. They do not obtain or develop payroll lists in carrying out development activities. They develop and maintain payroll lists as part of the everyday administrative activity of performing their governmental functions. I ask this question: When the state comptroller's office processes the paychecks for the employees of the Texas attorney general's office, does it do so as a "security, research or development" activity? No. It's just paying people what they're owed. The city attorney's office goes on to cite a federal regulation, 49 CFR Section 1520.3(a), which prohibits the release of "[a]ny information that the TSA has determined may reveal a systemic vulnerability of the aviation system, or a vulnerability of aviation facilities, to attack." This includes, but is not limited to "details of inspections, investigations, and
alleged violations and findings of violations." Again, at no point does the city attorney's office ever explain how the release of names of airport workers somehow "reveal[s] a systemic vulnerability of the aviation system, or a vulnerability of aviation facilities to attack." (If it did reveal a systemic vulnerability, then the Houston Airport System would be guilty of revealing that systemic vulnerability on its own by publishing employee names, job titles and photographs on its own Web site.) Consider this: The names and salary information for employees of the Los Angeles airport system are public, have been released to the media there and are available for the entire world to see via the Web site of the Los Angeles Daily News newspaper (an attached printout of the Web site is EXHIBIT F). Ditto for employees of the Chicago airports, O'Hare and Midway, whose names and salary information are available via the Chicago Sun-Times (EXHIBIT G). Both Los Angeles International and O'Hare are considerably larger -- in terms of passenger traffic -- than Houston's Bush Intercontinental. Is the Houston city attorney's office suggesting that the management of LAX and O'Hare have revealed systemic vulnerabilities to their facilities? A great deal of government information, on the federal and state levels, has been made confidential in the wake of the Sept. 11 terrorist attacks. But nowhere in any law, state or federal, have the American people given all government employees the authority to shout "homeland security!" and keep confidential any information that could make them look bad. We're not talking about the codes to the nation's nuclear arsenal here. We're talking about the name of the guy who patches the potholes in the runways at Hobby Airport and who probably makes $20,000 a year. The city and the airport system have not shown one iota of evidence that the release of airport workers' names would make the airports vulnerable to terrorist attacks. Therefore, the issue of the release of the requested records is not one to be handled by the federal Transportation Security Administration. It is entirely within the purview of the Texas attorney general's office to decide whether the requested records should be made public. II. List of employees of the Houston Airport System Development Corp. (HASDC) and their 2008 pay data, and items described by the Houston city attorney as "third party" information pertaining to HASDC In its letter to the attorney general, the Houston city attorney's office says that the Houston Airport System has no documents responsive to my request regarding payroll information for the Houston Airport System Development Corp. (HASDC). It also has informed the attorney for HASDC that he may object to the release of requested HAS records pertaining to HASDC. As for the list of HASDC employees and pay records, I will redirect that portion of my request to the custodian of records for HASDC. However, I ask that all other requested information be released to me. I object in the
strongest terms to the withholding of any of the requested HAS records merely because they mention or somehow pertain to HASDC. If HASDC objects to the release of the requested records, I wish to be notified and to be given the chance to rebut any arguments it makes to the attorney general's office. In closing, I ask the attorney general's office to require that all the requested information be released to me. If your office has any questions, please don't hesitate to contact me. My e-mail is email@example.com and my cellphone is 615-406-8835. I appreciate your time and consideration. Sincerely,
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