HOUSTON—More problems for Metro: Texas officials say the troubled transit authority has failed to follow a state records and documents preservation law.
That statute requires local government agencies to tell the state how long they will keep public records before destroying them. Officials with the Texas State Library and Archives Commission say Metro has failed to comply with state law since 1991.
This is the latest in document troubles for Metro that first started last week when the agency was accused of destroying public records that some suggest are connected to alleged misspending of public funds.
When KHOU contacted Metro a week ago about the allegations, the agency quickly called a press conference. That is where Metro President Frank Wilson admitted that some shredding had taken place.
Houston Mayor Annise Parker has called for the Harris County District Attorney to investigate the shredding and the agency. Metro announced later it would support the criminal probe.
KHOU began asking questions of state officials more than one week ago, and took our findings to attorney Rusty Hardin. Hardin represents Pauline Higgins, Metro’s former general counsel. Hardin told KHOU that Higgins was fired after she tried for more than a year to get Wilson to comply with the law.
"Frank Wilson didn’t want to comply with state law, as it applied to the retention of documents," Hardin said. "And so, they didn’t do it. And when the woman who kept pushing for it and kept pushing for it and kept delivering the message—she was ultimately terminated."
KHOU: "She tried to get this on the agenda for the board?"
HARDIN: "Oh for a long time, clearly."
KHOU: "And Frank Wilson stopped that from happening?"
HARDIN: "Frank Wilson did not allow it to be on the agenda for the board and to be discussed by the board and to be passed. They don’t have a document retention policy to this moment. Not a legal one."
METRO, like all local government agencies in Texas, is required to establish a records management program and file the details with the Texas State Library and Archives Commission. They are also required to tell that agency who their records management officer is, and to file what is called a records control schedule which provides specific details about how long the agency will preserve certain documents.
According to the state commission, this legal requirement went on the books in 1989. Local governments were given a grace period to come up with a record-saving program, but the grace period ended in 1991. A second grace period was also given to allow agencies to file their records control schedule with the state. That period ended in 1999.
Metro has never filed any of the required documents, according to state officials.
The commission did say that Metro designated an employee to be its records management office back in 1992 with no updates in 18 years. The state says it believes the employee Metro has on file with the state is no longer even employed at Metro.
However, the state does say that last October, various Metro officials did call to clarify what their records-related requirements were under state law. In response, the state says that same month it emailed the requested information to Metro.
The state commission says three Metro officials received that information.
Hardin says any calls that were made by those or other employees, were made without the knowledge of Metro’s, now former chief lawyer, Pauline Higgins, who he says continued to lobby the agency to comply with the law.
KHOU also discovered an internal training video produced by Metro, which raises further questions.
Former Metro staff attorney Jakki Hansen is seen on the video talking about how employees should handle emails from now on. The video is produced in a style where another Metro employee is interviewing Hansen. Of note, Metro also fired Hansen in the days leading up to when the shredding scandal broke. The video is dated July 29, 2009, but Hansen was not fired until February of 2010.
In the video, Hansen explains a recent policy change at Metro to start regularly destroying documents, in part, because of public records requests, which proved burdensome when employees had to keep their documents for lengthy periods of time:
FORMER METRO ATTORNEY JAKKI HANSEN: The public information requests require a lot of digging … and if we have a consistent destruction policy, if we're getting rid of documents as we should, then our response can truthfully, honestly, and legally be, that we don't have certain documents.
As for emails, the training video says Metro’s new policy will make it more difficult to recover emails once employees delete them:
METRO INTERVIEWER: Jakki once we clear out that inbox at the end of the day, what happens to our deleted email? Can we go back in there and find something?
FORMER METRO ATTORNEY JAKKI HANSEN: This will also be a change. Deleted emails are going to be deleted on a daily basis.
And if the public, or the district attorney wants to take a look later in any investigation? According to the video, under the new policy at Metro:
METRO INTERVIEWER: Jakki will it have any backup tapes available in case we delete something that should not be deleted?
FORMER METRO ATTORNEY: No, the responsibility will be with us to make sure our own records do not get deleted.
Later, KHOU followed up with Metro spokesperson George Smalley, who confirmed that each employee would decide on his or her own, under Metro’s new policy, what emails to delete without oversight from Metro’s legal department or other managers.
Wednesday evening Hanson’s attorney told KHOU his client was fired because she “was not into playing the corporate game, and insisting on ethics.”
He said in the very near future he is confident others will back that claim up.
Metro contacted us late Wednesday evening. They did not have any response to allegations that they broke state law for years, but in a written statement they did say they have a practice of aggressively maintaining public documents.
However, in a new court filing they provided to us, they are now asking the judge to remove the restraining order granted last week that stops them from destroying documents.
They also said the firing of Higgins was for “unsatisfactory performance,”
Finally, they claimed Higgins’ hiring of attorney Hardin while she was still employed at Metro resulted in her being dismissed immediately.
