By Dane Anderson, Staff Writer

Criticism of the Eanes school district’s response to an open records request turned into a criminal complaint being filed with the Travis County Attorney’s Office last week. If County Attorney David Escamilla decides to move forward in prosecuting the complaint, Class A misdemeanor charges could result against the district and superintendent Nola Wellman. 

Leonard Smith, an attorney with the Brown McCarroll law firm in Austin, filed the complaint Dec. 1, alleging the district and Wellman violated the Texas Public Information Act and Local Government Code in responding to a request for information Smith filed Oct. 9 on behalf of clients Jimmy and Gretchen Evans. The information relates to disciplinary action the district took against a student. 

Smith claims the district did not provide the information he requested through a written open records request within the legal time limit and that Wellman destroyed voice mails and audio recordings he requested. Audio recordings sent to the district board of trustees the day before Smith’s open records request are part of the records Smith says were destroyed.

In a statement she released on behalf of the district, communications director Dale Whitaker said the district supports the principles of Open Government and complies fully with the Texas Public Information Act. She said administrators did not destroy audio recordings and that the district did eventually provide Smith with the information he requested.

“The district firmly disagrees with allegations Mr. Smith makes regarding his Public Information request to Eanes ISD,” she said in the statement. “All responsive information was provided, including the information Mr. Smith asserts was intentionally withheld. Some of the information he asserts should have been produced did not exist. No information was intentionally withheld at any time; no deliberate or intentional destruction of information occurred, nor was any attempt made to hide information.”

The district’s Web site documents Smith’s records request on Oct. 9 and shows a deadline for response of Oct. 23. Smith said he did not begin receiving information he requested until Oct. 24 and that the material he did receive was incomplete. 

Key to the complaint are voice recordings Wellman made to board members on Oct. 8 and an additional voice recording made by her to board member Clint Sayers on Oct. 9. Smith said no documentation of those voice recordings was initially given to him. He said the district only produced the audio recordings when challenged with proof of their existence.

“Until challenged, EISD had made no effort to secure or produce the requested e-mails, voice mails or audio recordings, apparently in an attempt to conceal their existence,” Smith alleged in an earlier complaint he filed with the Texas Attorney General’s Office on Nov. 19.

Smith said that Wellman is obligated by state law to protect public information from loss or unlawful removal and promptly produce it upon request. In the complaint to the County Attorney’s Office, Smith said Wellman violated that obligation. He said the failure of the district to turn over audio recordings appeared to be “willful and intentional.”

“We have absolutely nothing to hide in this case,” said Christopher Gunter, an Austin independent attorney, one of several representing the district. “What we are talking about is the superintendent making a phone call to board members and leaving a voice message. We had no idea one board member still had a voice message. When that was brought to our attention, we turned it over immediately. Mr. Smith already had the voice message. It is a totally insignificant voice message.”

Daniel Bradford on staff at the Travis County Attorney’s Office said the office is looking into Smith’s complaint against the district and Wellman. He said that his office has through the time period set by the statute of limitations to prosecute the matter, generally two years. A Class A misdemeanor conviction involving a PIA violation carries a penalty of up to a $4,000 fine and three days in jail.

In addition to the filing at the County Attorney’s Office, Smith filed a complaint on behalf of the Evanses with the Eanes school board on Dec. 3 under the provisions of the district’s board policy. Smith requested that the board hear his complaint in open session at its next regularly scheduled board meeting on Dec. 17. Instead, John Aldridge, an attorney with Walsh, Anderson, Brown, Schulze and Aldridge, a separate law firm representing the district, notified Smith that the grievance would be heard by Wellman this afternoon. 

“It is not in keeping with traditional notions of fundamental fairness for superintendent Wellman, the subject of the FNG complaint, to investigate and judge its merits,” responded in an email Friday. “”In more than 20 years of law practice, I have never seen an accused serve as her own judge and jury.”