Back in February of 2013, Schutze shook loose a secret memo showing that City Manager Mary Suhm had struck a secret deal with Trinity East Energy to allow gas drilling on city parkland while, at the same time, promising the City Council that there would be no gas drilling on city parkland. The memo offered a rare glimpse behind the curtain at City Hall, a place where an unelected bureaucrat can and often does flout the will of the people.
One can almost imagine Suhm and Trinity East execs huddled in a dimly lit back room somewhere, a dense cloud of cigar smoke hanging about their heads, their knowing chuckle building to sinister peals of laughter as they imagine playgrounds being replaced by drilling rigs.
Plant that image in your mind, because that could be as close as Dallas gets to actually discovering what transpired between city officials and Trinity East.
Trinity East, recall, sued the city of Dallas in February claiming that the City Council's refusal to let the company drill on the sites Suhm had promised in her secret deal amounted to breach of contract. That was potentially bad news for taxpayers, who could find themselves on the hook for tens of millions of dollars in damages if Trinity East prevailed, but it was a possible boon for citizens and open-government types who hoped to discover how and why the secret deal between Suhm and Trinity East was signed. The discovery process promised to churn up all types of documents and information that would shed a bit more sunlight on what transpired.
Not so fast. The city has allied with Trinity East to keep secret as much information from the case as possible. In a proposed order currently being considered by Dallas County District Judge Craig Smith, the city and Trinity East agree to keep most documents and information churned up as the lawsuit moves forward from being released to the public.
These types of agreements are common in disputes between private parties, and few would dispute that Trinity East has a legitimate interest in protecting from public disclosure trade secrets and certain information about its business model.
The city of Dallas, though, isn't another private company; it's a government entity that is, hypothetically at least, supposed to be reasonably transparent and accountable to its citizens. And the language seems sufficiently broad that it would shield from disclosure not only Trinity East's trade secrets but also information about City Hall that it would be in the public's interest to know.
The proposed order (see below) nods to this expectation of openness in city government by promising to subvert it:
The restrictions on disclosure of Protected Discovery Material in this Order extend to any disclosure pursuant to any request under any open records statute, rule, ordinance, or policy, including without limitation the Texas Public Information Act (the "PIA") or the federal Freedom of Information Act ("FOIA") (collectively, an "Open Records Request"), each of which includes an exception for information that is related to pending litigation and information that may be considered confidential or proprietary. To the extent a Party receives an Open Records Request, the Party must advise the producing Party whose Protected Discovery Material is potentially covered by the Open Records Request of the receipt and terms of the Open Records Request within five (5) days of its receipt and must use all reasonable means available to assert any applicable exception to disclosure, up to and including requesting an opinion from the Office of the Attorney General of Texas as to the applicability of the exceptions to the Protected Discovery Material.
This isn't something that would expire with the conclusion of legal proceedings either. The proposed order also includes a provision calling for the destruction of any documents from the discovery process that either the city of Dallas or Trinity East want destroyed:
Within 90 days of the conclusion of this Lawsuit, including all appeals or the running of all time to appeal, a producing Party may request the return or destruction of any Protected Discovery Material it produced. In response to such a request, all such Discovery Material, including all originals and copies, shall be either returned or destroyed within 45 days; and, if destroyed, an affidavit to that effect shall be provided by the receiving Party's attorney to the producing Party within 15 days.
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There's always a chance that, even if Smith signs the order (a clerk says he has not yet reviewed it), a lot of the publicly relevant information will come out during trial. It's also possible -- even likely -- that the city and Trinity East will enter into a settlement, meaning that it would all remain hidden.
Send your story tips to the author, Eric Nicholson.