Despite Cave's threats to send Thomas to jail--for a second time in two weeks--for contempt of court, Thomas lost control each time Dallas County Community College District lawyer Tom Brandt argued that he should be barred from contacting district employees or setting foot on any of its campuses because employees there are terrified of Thomas.
"All that's a crock of horse manure," Thomas thundered back at Brandt. "I object to this crapola that he keeps trying to bring in here."
Thomas, according to a flood of faxes he has sent the district, believes its evil, CIA-conspiring Chancellor William Wenrich is the embodiment of government waste who invests in boondoggle projects and may have associated with alien life forms.
Until October 30, when Thomas was placed under a temporary restraining order, he had been sending district officials hundreds of faxed requests for public records under the Texas Public Information Act in an attempt to prove his point. With every record Thomas reviewed, the more convinced of his theory he became and the more requests for public records he made--an obsession that grew into a daily habit that district officials say consumed their employees' time and patience.
This week, college district lawyers were in court as part of their unprecedented effort to make the temporary order permanent. They say that Thomas is making too many requests and that his only motivation is harassment. He is violating the spirit of the open-records law, they argue, and should lose his right to use it.
If the district succeeds, Thomas would become the first Texan ever to be enjoined from using the state law that guarantees all persons the right to access public records. Although district officials say they are only seeking protection from a volatile enemy, they could wind up drilling a hole through the center of the Texas Public Information Act and give government agencies a new power to withhold public records from all Texans.
Thomas has found only one ally in his fight--former Dallas Independent School District board member Don Venable. On February 1, Venable, who is not a lawyer, asked the courts for permission to intervene in the case as a member of the public, arguing that college officials are picking on a "wounded animal" and that their attempts to silence Thomas are illegal.
Thomas is aware that the district's strategy is no simple matter under the law. In a letter dated October 27 and addressed to someone at the college district named Jerry, Thomas presented his best defense in a moment of uncharacteristic clarity.
"Now, whether you like it or whether you lump it, The Texas Law says I have a right to ask these questions. And I have a right to the answers. For God's sake, Jerry, an informed public is at the very heart of Democracy, man. That's why the Texas Legislature passed the law in the first place. There is nothing personal here. I see something that does not make sense (paying for something DCCCD didn't receive) and as a good little citizen I question it. And then what happens. I GET SHIT ON! RESULT--I GET PISSED!" Thomas wrote. "Jerry, The LAW is the LAW is the LAW is the LAW! Wenrich should obey the LAW--or go to Jail. (and the Trustees, too) (and you and me, also)."
To date, Thomas is the only person in this case who has gone to jail. On January 11, Judge Cave found Thomas in contempt of court for shouting and had the 63-year-old retired engineer hauled off to the clink. The way things are going, Thomas will be back there soon. The question is, If Thomas can be silenced, who will be next?
If anyone could make a clear case for burdensome behavior by pursuing public records, it is Phil Thomas, a.k.a. the Stink Bomber.
Thomas was the subject of a story in the Dallas Observer in September 1996. At the time, Thomas was obsessed with a well-intentioned but misguided plan to help "ghetto kids" start their own business through a scholarship program he wanted to create at DISD.
Back then, Thomas aimed the majority of his "fax missiles" at DISD officials, who complained that he was forcing employees there to waste countless hours responding to his voluminous and often, according to them, frivolous requests for information. Thomas also sent faxes to various other agencies, including the Black Chamber of Commerce, on which he once threatened to drop an "atomic bomb" and wound up getting charged with a misdemeanor charge of making a terroristic threat.
Some days, Thomas truly can't help the way he acts, which at times is like a 6-foot-1-inch, 230-pound 4-year-old who resorts to tantrums when things don't go his way. As he has explained to the court, Thomas suffers from severe depression and has recently spent 17 months in and out of treatment centers in an attempt to control his mental illness. Thomas realizes that his disability makes him difficult to deal with at times, but he maintains that the college district's allegations are false.
"It is true that I have a loud, booming voice, but I am partially deaf, and that is one of my disabilities. The only threatening thing I have said is that the chancellor is going to jail because he has broken the law," Thomas says. "If they enjoin me from filing my requests, I will appeal. I intend to take this as far as it needs to go in order to ensure that the rights of the people of Texas are protected. The Legislature didn't put a limit on the number of requests you can make, so no judge can do it either."
From June until October of last year, college officials say, Thomas sent an average of three to seven faxes a day, adding up to more than 1,000 requests for public information that were often offensive and occasionally threatening. The district estimates that employees spent some 1,530 hours trying to answer the requests, as they are required to do under state law, to the tune of $55,000. The requests often involved travel expenses of district administrators, Wenrich in particular. Take, for example, one fax Thomas sent last August concerning a trip Wenrich took to California.
"Wenrich's hotel room on Monday cost $100. On Tuesday it cost $300. On Wednesday the cost went back to $100. My question is, can we assume there was something 'In The Bed' on Tuesday night that cost $200? Sounds OK to me. Can I ask 'was Monica Lewinski there, blowing?'" Thomas wrote. "Is Wenrich one of THOSE? Hey, I didn't really say anything, right? It was just a question...God I love this job. I do love it so. Too bad it doesn't pay."
Despite the tone of Thomas' requests, Thomas' claim that he is within his rights under the law is correct.
"A person can make requests for as much information as they want to, as often as they want to. That's the law," says Heather Brown, a spokeswoman for the open-records division of the Texas attorney general's office. The law also states that public officials can't ask people why they want public information or sue them for asking for it.
College district attorney Tom Brandt says he can't comment on the case except to say the district is simply asking the courts for protection from someone who is abusing the act. Instead, Brandt says, his court filings will have to speak for the district.
"The purpose of the act is so that concerned Texas citizens can take an interest in and exercise control over the instruments of government created by and for them. The act does not exist so that disgruntled citizens can obstruct government officials in the performance of their duties," Brandt argued in his request for a permanent injunction. "Thomas...is not requesting this information so that he may be informed about the workings of DCCCD. To the contrary...Thomas is making his repeated requests solely to harass DCCCD officials and Mr. Wenrich in particular."
In his own pleadings, Brandt concedes that no Texas court has ever heard a case quite like his.
To justify his attempt to have Thomas silenced, Brandt is asking the courts to rely on several federal court cases in which judges have enjoined others from filing Freedom of Information Act requests (the federal counterpart to the Texas law) because they were trying to bog down public agencies and harass their employees.
"Thomas' conduct is more extreme than that in each of the discussed cases, in that he made a greater number of requests and he has admitted his intent was to harass," Brandt argues. "Moreover, the oppressive and burdensome nature of the requests is evident in the sheer volume of requests made."
Even in Austin, Thomas is well known among the attorneys and paralegals who respond to questions from the public on the attorney general's open-records hotline.
"We've never had one like him before," one employee says of Thomas, who stands out from the crowd because of the volume and often harassing nature of his calls. The more information Thomas gets, the employee says, the more requests for information he makes. "He's like one of those mythical multi-headed monsters--you chop one head off, and many more grow."
While Thomas may have an offensive personality, Venable says the district's motion for a permanent injunction is unlawful. "They [the college district] certainly have been inundated with an awful lot of what I think is frivolous behavior. The question is, do they have a right to go to court about it? The answer is no."
By asking for a permanent injunction, Venable says, the district is forcing Thomas into a corner that the public could soon find itself in if Thomas loses the case. "If you can start with a person like Phil Thomas, it won't be long before they start with other people until the point where they start telling the media, 'Well, we don't like your motive,'" he says. "The government can't pick on some wounded animal out there and decide we're gonna use this person for target practice."
College district officials are not happy that Venable has come to Thomas' aid. On February 8, Venable made his first courtroom appearance in the case, but Judge Cave did not hear arguments on the district's attempts to have Venable removed. Instead, Cave--flanked by sheriff's deputies--was forced to repeatedly warn Thomas that unless he lowered his voice, he would find him in contempt of court again, only this time he would throw him in jail for 30 days.
"You have been mean and vicious in this court," Cave told Thomas at one point. "I warn you, and I warn you again--don't you raise your voice. I'm telling you. I mean what I say. There will be no more mean talk. You will behave."
Thomas, who can't find an attorney and has no legal right to a court-appointed one, appeared to have no clue what was happening, which makes the situation even worse, according to Venable, who can't advise him lest he be accused--as the district is arguing--that he's acting as a lawyer.
Thomas managed to avoid jail, but Cave granted the district's motion to temporarily enjoin Thomas from making any contact with district officials and ordered him not to set foot on district property. The judge is expected to rule on the district's motion to remove Venable from the case next month.
Whatever Venable's role in the case will be, Cave has a big question to answer in determining whether Thomas' use of the state's open-records law constitutes harassment. It is a question no one in Texas has ever been able to answer, says state Sen. Jeff Wentworth, a Republican from San Antonio who led the Senate Interim Committee on Public Information, which examined the issue during several community forums that took place across the state last year.
"We haven't yet tried to define in the public information act what is and what isn't harassment," says Wentworth, who adds that there are too many possible scenarios of harassment for legislators to weigh. "We can't write legislation to try to anticipate them all. The judicial branch of government is where we as a society have decided those disputes should be resolved."
That puts the issue back to Cave and leaves him without much guidance. Rob Wiley, a Houston attorney and president of the Freedom of Information Foundation, says any "strict constructionist" Texas judge would be hard-pressed to justify ruling in the district's favor under state law.
"So many of these things become judgment calls, because what may be harassment to one person is somebody else's due diligence," Wiley says. "In a contest between a difficult requester and the public's right to know, the public's right to know ought to win."
Although Wiley has spoken with Thomas about his case, the foundation has not taken a position. Although he agrees that the district's suit could set a dangerous precedent, Wiley says the foundation usually does not get involved in a case until it reaches the appellate process.
In the meantime, Thomas says he has no desire to overburden the district. The problem, he says, is not that he's asking for too much information, but that the information he's asking for is too sensitive. "I'm just an average citizen who is trying to use the open-records act and is getting screwed in the process."
Additional reporting for this story was provided by Mark Donald.
