The Dec. 18, 2000
A Big Favor Please
My comments are in blue.
. ....... CHAIRMAN CLOWE: Very good. Moving on to item six, report, possible discussion and/or action on the Communication Department's practices relating to access to information. Keith Elkins.
MS. CLOUD: Commissioners, it's fine if Keith wants to make this report. This is based on Ms. Nettles' complaint, and I'm not sure she's in the room.
CHAIRMAN CLOWE: Is Ms. Nettles here this morning?
MS. CLOUD: And I didn't know if you wanted to take this up if she wasn't here. Mr. Elkins wasn't here last time.
CHAIRMAN CLOWE: I know he wasn't, and I know he's made a special effort to be here this morning. I think it would be appropriate for Keith to make a statement, if he's ready, concerning this, and this item can be taken up again at a later time, but I think since Keith is here, we'd like to hear from him.
MS. CLOUD: Okay.
CHAIRMAN CLOWE: Keith, before you begin your statement, on behalf of the Commission, I would like to recognize at this time the passing of Mrs. Gail Phillips who is a colleague -- was a colleague of yours, a valuable employee of this Commission and a wonderful person. We all are sorry at her loss. I know that she was a good, close personal friend and colleague of yours, and this has been a stressful time for her family and others who are her dear friends. It is noted in the Austin American paper this morning, and I understand it was on television as well, and this Commission would like, as I say, to express its regret at the loss of Ms. Phillips.
MR. ELKINS: Thank you very much, Mr. Chairman. I'm sure she would appreciate that as well. She was a ray of sunshine here. She'll be missed.
I'm sorry too. Gail was always very nice to me - I dealt with her in Steve Levines day.
CHAIRMAN CLOWE: Very good.
MR. ELKINS: For the record, my name is Keith Elkins. I'm communications director for the Texas Lottery Commission, and Commissioner Clowe, Commissioner Sadberry and Whitaker, I appreciate the pleasure to be here. This issue, as you know, was -- has been ongoing. It's been developing. I'll give you a little bit of background. I have been with the agency two tours of duty. I was here in '93 to '96 as media relations manager, the same position that Ms. Phillips had, and recently came back July of 1999 as communications director. I'm quite familiar with Ms. Nettles and the Lotto Report, having been here during both of those tours of duty, and she is probably unaware I have actually been fighting battles on her behalf during both of those times, fighting for her right to get information for the -- from this agency, fighting for her right to do with that information whatever she chooses to do, up until recently, and that was this past year, and that was when Ms. Nettles, I think, took on a different role than the role that she had claimed as a journalist and became more of an activist, more of a public relations practitioner, pushing one particular side or the other, and it started when she launched a boycott of Texas Lottery retailers against the agency that she spearheaded, named herself as the spokesperson for the retailers without ever contacting the Texas Lottery Retailer Association.
Yes, I did contact the Retailers Association but they only have 150 members of which none, to my knowledge, include my Retailers.
She has also led protest against the Lottery at both NASPL 2000 and against some of the issues before us. I want the record to reflect that she has every right to do that as an individual, and I support her right to do that.
The NASPL Conference was held AFTER you suspended my faxes. And, for the record, they provided me with a media pass to their conference too.
I've been a journalist myself for longer than I care to admit, but I have fought for everyone's right to do that, but journalists don't write press releases as a general rule.
Everything published including the newspaper is nothing more than a great BIG press release
Journalists don't advocate a position one way or the other without identifying that either as a label of a columnist or as an editorial. Ms. Nettles hasn't done that. When this started happening and then we started getting into a situation where she would request information from my division, we would get that information, we would try to answer her questions, then she would try to contact another division to ask them the same questions to get into a situation where she could play one against the other, we realized that we had a problem, that -- of information dissemination. We have three different divisions here at the agency that are responsible for providing information to the public and to the news media. My division, the communications division, is just one of those. We work specifically with non-paid media, DALLAS MORNING NEWS, WFAA TV, for example, and we have a very small staff.
"When this started happening" and "Non-paid media?" Since when did they start publishing for free? Oh, I get it. You mean those news organizations that will publish your press releases for free as is but not question your statements or dig a little deeper - Like how it was recently reported that the changes to Lotto Texas was a big success when the truth is - overall, the TLC is really in about the same financial position they were in originally. I notice ya'll haven't mentioned how happy the retailers are nor have you mentioned how much of an overall increase the schools got either. Maybe that's because there was no increase or a very small increase at best. And I'll just bet that those news organizations didn't inquire either. But I did hear on the news that "sales increased 15%." This is what you wanted news organizations to report so you could lead the people to believe things were "hunky-dory" - Incidentally, I don't see that press release on your web site either. Why not? Non-paid media? Gee, I have to pay for my newspaper too; to watch TV, I have to watch commercials; and to listen to the radio, I have to listen to more commercials.
NEW - It's been pointed out to me that state agencies aren't allowed to accept "freebies" - are those news organizations that are printing your press releases without questioning you getting special privileges in return for printing them "as is?" Sure sounds like it - you have time for them but not me?
There is also the open records division that provides information according to Texas open records laws specifically upon request located in the legal section, and we have the customer service division and marketing that does the lion's share of providing information to the public. When we realized that we had a situation last year,
"situation" - Come on Keith - tell 'em what you told me. Tell 'em that I crossed you when I sent out that press release the day before the retailers testified to the Commissioners that they thought adding those 4 balls was a terrific idea. Oh, by the way, there was one comment by Doug Waldbaum from Albertson's that was very interesting too. I've posted one of his statements at the bottom of this page - be sure and read it. Anyway, tell 'em too, how in essence, you said I put the cherry on the cake in June 2000 when I pubished the story about the camera's for the drawing studio. It took you less than 30 days to suspend my faxes from the date of that story. I fess up - you did warn me that you'd get even!
... then we -- I looked at this situation and asked myself, are we providing the information from this division to someone that is not a working member of the news media, and are there others. Maybe Ms. Nettles is not the only one. We did a review of the situation. We found that there were three entities, hers being one, another being in Florida, and the third one I'm not sure that we ever identified who it was that we were sending information to.
Yes, you identified them. They wrote you back plus I provided their names to the Commissioners in October - one recorded drawing results where they charged for the service - but it competed with your 900 number so you probably axed them for that reason - and the other did publish but ceased covering the Texas lottery so you had a rightful way out. Now, do you realize you just admitted you singled me out then went searching for others so I wouldn't stand alone?
We set up a policy. We discussed that with Ms. Kiplin, whether or not it would be fair and legal and nondiscriminatory, was assured that it was. We talked with Ms. Cloud about it. Our intent was not to prevent Ms. Nettles from getting information in any way. It was not to slow down her access to that information in any way,
YES it was - that was your sole purpose - to slow me down hoping my readers would quit reading my web site which by the way is Non-Paid Media & FREE too. And the best part is, it's 100% Texas Lottery news!
and it was not to try to influence what she would do with that information pro or negative to the agency.
One can't do anything pro or negative with winners press releases, drawing results & payout information which is what comes out of your division and is what I'm trying to get re-instated by the Commissioners.
It was simply trying to find a way to make this the most efficient use of our resources to make sure that people in my division were working with the public that they had been charged to work with, that other divisions were working with their particular constituencies, and that's why we went forth with the position. There was a three-part test, one being a member of the Texas Media Directory (of which I am listed) or being a recognized member, I believe, of either the broadcast or print associations in Texas and subscribing to a code of ethics for the Society of Professional Journalists, (of which I am a member) which basically says that you have no agenda, that you strive for accuracy, you try to remain unbiased, and you try and present the facts to your audiences, whatever they might be, so that they might make up their minds, and that you have no agenda, you have no financial interest, you have no reason to advocate a particular position one way or the other. It is my opinion that Ms. Nettles does not meet that test.
Well, it's your test and I absolutely qualify. Regarding "subscribing to the code of ethics," this is clearly a judgement call and you left one out - the one that says, "Be viligant and courageous about holding those with power accountable." You don't like what I report - kinda like Nixon didn't like reporters either. If my memory serves me correctly, reporters got him in a whole lot of trouble. Huh?
I've discussed this with Ms. Cloud and Mrs. Kiplin. The easiest thing for me to do is simply to add her back to our fax list. I could do that in about 30 seconds, and this issue could be over as far as it involves her. The real problem that I see coming down the line, however, is that -- what do we do the next time if we have a financial company or somebody else who says, well, look, add me to your list as well.
I publish The Lotto Report every other week - 100% of it covers Texas games and statistics on the numbers drawn - it's 90% PURE facts - 10% TRUE editorial - I'm not financial company. The Lotto Report is printed and has readership just like newspapers. Certainly justifyable and is the VERY reason I've received TLC faxes since 1993.
At what point do you draw the line there? And it's not so much just adding the name or a number to a fax list. In the case of Ms. Nettles and the Lotto Report, once you send out information, there was quite a bit of staff time that was involved, either myself or a member of my staff, answering the questions or debating the merits of whatever it was the agency was trying to do. We simply didn't -- I didn't feel that we had the manpower, without increasing our budget and our staff, to do that, and I felt that open records or the customer service division could better serve her particular needs.
First of all, when Linda Cloud took over, I was instructed to start dealing with Customer Service. Prior to that, I was instructed to only deal with Steve Levine & Gail Phillips. Steve told me in no uncertain terms that he did not want members of the press talking to anyone in Customer Service. I rarely communicated with you and/or your people unless Customer Service sent me to you for whatever reason. Second, the faxes that come out of your division are: (1) winners press releases, (2) drawing results (sent each evening after the drawings) and (3) payout/retailer information (each morning). Tell me, how did I debate or question this material. There is no "extra man power" needed to send them either because they are done by a faxing company. I feel your testimony is deliberately leading the Commissioners to believe there is more to this than what there is. Those of us in the media can't get this information from Customer Service or Open Records and that's why you send faxes to the media in the first place. Even your web site can't provide "official" and 100% accurate results like the faxes provide. Not to mention that it was only recently that Customer Service was even allowed to give out drawing results. You have a 900 number for that - remember? Regarding the winners press releases, you only send press releases to the media in the immediate area of the news itself - but I'm state wide and cover it all. That's why Janey Hart, Lisa Williams and Lucy Cantu, Open Records, send me press releases in my standard Open Records request too.
I will also note that since the policy was put into place, I have not noticed any decline in her Web site or in her publication as far as the information that she normally provided before. She is still obtaining the information, as best I can tell. She is still disseminating that to her readers, and that's fine.
You bet I am - if I can't provide the basic drawing information - then I'll lose my readers. Of course, I think that was the TLC's intent in the first place. Fortunately, since you cut me off, your retailers started providing me with the information.
We have no -- I have no reason to want to stop that in any way. I was just looking for a matter of efficiency. Of course, I work for this agency on an at-will basis. I would certainly do whatever is the will of this agency, but just for the record, the policy was implemented in hopes that we would have maximum efficiencies as far as a revenue standpoint and that we were also maximizing staff time efficiently in providing public information to everyone.
COMMISSIONER WHITAKER: Mr. Elkins, I take it that part of the basis of your policy or a key part of it was the desire to provide public information in an even-handed way. Is that correct?
MR. ELKINS: Yes, ma'am.
COMMISSIONER WHITAKER: Do you know why Ms. Nettles is not here today? Did she receive notice of the meeting?
No, they did NOT notify me - in fact - I have 3 messages from Keith stating that this subject matter will probably be discussed in January 2001 - "IF it is ever going to be discussed" - scroll to the bottom of this page to read his email or listen to his recorded message where he says if I want "this issue to be re-visited."
MS. CLOUD: Yes. She has it posted on her Web site.
Wrong - I posted there was a meeting to discuss a new game - not my fax suspension.
COMMISSIONER WHITAKER: But no one knows why she's not here today?
MS. CLOUD: No.
MS. WHITAKER: Nor do we know whether she would desire to comment on this?
MS. CLOUD: No, Commissioners, we don't -- we have not had a conversation with her.
COMMISSIONER WHITAKER: And I take it, Mr. Elkins, that the open records act is still being completely complied with and she has complete access to that?
Commissioner Whitaker, with all due respect, Keith knows his information is "timely" for those of us in the media - that's why they send faxes each evening. We publish this information right after the drawings - not 14 days later. Til now, I've received these faxes since 1993.
MR. ELKINS: Yes, ma'am, as far as I'm aware.
MS. WHITAKER: And is there any particular information that you know she was seeking that is involved at this point?
MR. ELKINS: No, ma'am, I don't know of any specific information.
I apologize for saying this, but Keith's gone from pulling your leg now to an out and out lie.
I will say that some of the information that she's had issues with in the past is not information that we routinely provide from the communications division. It is more specifically involving pretest drawing results and that sort of thing that we normally don't provide, except upon request.
Commissioner Whitaker, again I say, the Communications division only sends press releases, drawing results and payout information. All of which needs publishing immediately for the people - that's why they fax or email it out - I am asking to receive this information like all other news organizations receive it if they request it.
MS. WHITAKER: So, there's no current issue?
MR. ELKINS: Not that I'm aware of.
MS. WHITAKER: Thank you.
MR. ELKINS: Yes, ma'am.
MS. CLOUD: Commissioners, we also have made every attempt to update our Web site with the information Ms. Nettles is asking for so that all she has to do is go to the Web site to get the information. As far as the security checklist and pre-draw reports, we're -- in another 30 days, we're going to be automating that process, and it will be computerized. It will not be a manual process as we know it today. So, this, too -- She can still get the reports, but it will be computerized reports.
Ms. Cloud, my request is to simply receive the same information all other media's receive from the TLC and in the same time frame and manner. I publish this information in the same manner as the newspapers, radio and television. We all do this for FREE for YOUR customers which is why you provide faxes to the media. I am clearly a media. I am not asking the Commissioners to re-instate the Pretest data by fax. I obtain the "original pretest documents" from Open Records now and will continue to do so as to insure my accuracy - an invaluable lesson that I learned years ago from the Comptrollers office. As you know, the TLC started faxing the Pretest data to me years ago because of the many, many errors ya'll made and so I could quit printing retractions in the Lotto Report. Ironically, the TLC is still making errors reporting these drawing results but if you prefer to have me make an Open Records request to obtain this information, then so be it. I don't have a problem printing retractions. It's your reputation - not mine.
In fact, I suppose that is why you corrected the pretest drawing results for Sept. 6, 2000 and Dec. 22, 2000 but never told anyone you made corrections - huh? I actually feel sorry for your readers. They get erroneous information from the TLC and they never know any better. That certainly doesn't fall under the rules of professional journalism - now does it? Just ask Keith.
MS. KIPLIN: Commissioners, just from my end, Mr. Elkins mentioned that the open records section is housed in the legal department, and just to kind of give you an idea of -- It's handled by one individual, and, of course, there is support staff, and we do have an attorney assigned to consult with. For fiscal year 2000, we had 855 requests that came in for one person to handle, and for fiscal year 1999, it was 806. This year alone, the first quarter is 213. If you carry it out, it's 852, and I'm looking, in particular, to this particular individual's request to see how we're handling them because I think one of the concerns was that she wasn't receiving information timely. Under the open records act, of course, the agency has ten business days within which to respond, and in just taking a pretty quick look -- For example, I'm looking at the month of October. We had 72 open records requests for that month. 51 of those were Lottery, and of those 51, Ms. Nettles had 22, and when I look at those on breakdown, I can tell you exactly the kind of information that she was requesting. So, I can answer that question, if you'd like, more specifically, but it looks as though we're coming in pretty much about half of the time that it would actually take to respond. So, we're doing our dead level best to be as responsive to not only Ms. Nettles, but every other requestor. Now, I will tell you that to be able to manage these number of requests, we do take them in the order in which we receive them, not to say that we only work on one to the exclusion of others that are pending, but because we send them out for, obviously, responses throughout the agency where it's appropriate, but we do take them in the order we receive them. We think it's the only fair way to approach it. I've had people say, well, why can't you just handle the ones that are simple first, and that's in the eyes of the beholder, what's simple and what's not simple, and, so, somebody who -- If we were to judge one as not being simple, I can just about assure that they would disagree and would want that bumped to the front of the line. So, I do support the way in which we are responding to those open records requests, and I think we do a pretty good job considering that we've got one person that's handling this, along with the records management, and the number of requests that we have coming in, and it looks to me like we're going to be setting about the same kind of trend, over 800, if the first quarter is an indication of what the three remaining quarters will be.
Again I emphasize, the information suspended from Communications has nothing to do with Open Records. However, the information suspended by Customer Service does but Linda told me to start getting my information from Open Records - so I do.
NEW - It was also pointed out to me that 852 requests per year averages out to 3.3 requests per day. This is a lot for one person to handle?
COMMISSIONER SADBERRY: I had a question, either one of you. Probably you, Kim. Keith mentioned some interaction with legal and having received some feedback or confirmation of the propriety, if you will, in the way that his department is handling this. Is that -- Was that just general advice? Was it set in any form of formal advice or documentary advice?
MS. KIPLIN: No. It was oral advice, oral consult, and the -- My position is very clear. As long as we're treating people that are similarly situated the same, then I think that we are falling well within the law, (NEW - I am a member of the media - even NASPL qualified and recognized me as such - the IRS recognizes me as such and countless others - I even receive press passes to countless conventions each year - You are not treating me the same as you do other media) and I know Mr. Elkins referred to it as a policy, and it may be an internal policy, but, frankly, the policy of this agency is embodied in the open records rule that's been promulgated and is part of our administrative code chapters, and that is the formal policy of the agency, and that is that requestors make written requests to the agency via the open records coordinator and that we respond as we need to by law. I think what he's talking about is an internal procedure about how best to handle the information dissemination within the agency.
COMMISSIONER SADBERRY: And you do, as general counsel of this agency, stand behind his articulation of the practice, if you will, that he's carrying out concerning this information?
MS. KIPLIN: Sure. I think he is -- His decision is well reasoned. He's related it back to what he considers to be the code of ethics that's maintained by professional journalists. I will tell you that Ms. Nettles was not the only person affected by the decision internally how to handle information being disseminated from the communications division.
Yes, I was the only one affected
There were, I think, a couple others that also fell within this particular focus, and once again, information, as required by law, is distributed -- you know, what's publicly available, obviously. You know, we try to do the best we can to get it up on the Web site, and it's available just as quick as we can, but information that's provided by a governmental body is provided pursuant to the open records act.
There were 3 of us - however - the other two did not publish the information they received - but I do - nor do they publish a newsletter every other week about the Texas Lottery - but I do. Hardly a comparable situation. Shoot, they weren't even from Texas.
COMMISSIONER SADBERRY: Just for this record, does anybody happen to have access to the date of the meeting that Ms. Nettles did appear and I understand she did address some comments? I believe that Mr. Elkins is essentially responding to those now. I mean, it's okay. I just want -- I guess it's more important.
MS. KIPLIN: I believe it was the October 11th, 2000 Commission meeting.
COMMISSIONER SADBERRY: So, she has had a chance to speak. Her comments are a matter of the record, as are now Mr. Elkins'. And by the way, I appreciate the Chair having called on Mr. Elkins to make these comments even in her absence because I think, in my own perspective, now we have a complete record on this.
CHAIRMAN CLOWE: Thank you, sir.
MR. ELKINS: Commissioner Sadberry, Mr. Chairman, if I might just add, I also went one step further after I had implemented it in as procedure, not a policy, to make sure that I was not looking at this with jaded glasses or anything like that, and I proposed this hypothetical situation to an internet group made up of professional journalists asking them if, under this circumstance, someone did this, so on and so forth, should they be considered a journalist. I didn't identify Ms. Nettles. I did not identify the agency, but it was a hypothetical situation, and all of the responses that I received were pretty much along this line: In the example you cite, a person who engages in protest and boycott activity is not a journalist, but instead is an activist. And then it goes on, and I can provide that to the record if you will like.
Let's be real clear on this point - the protest was done AFTER you suspended my faxes and one purpose of the protest was to try to make the TLC tell the truth about the odds - which the TLC has now agreed to do. Secondly, I am a player as well as a publisher. As an individual, I have a right to voice my opinions but by the same token, I publish "unbiased facts" about the numbers drawn and statistics for the games of Texas in the Lotto Report. Your problem lies in that the Commission does not want the people to know the things that I tell them on my web site. I have never published anything that was not TRUE and if I did, I printed a retraction. The Commission, however, cannot say that.
CHAIRMAN CLOWE: Thank you, Keith, for your response, and, Kim, for your following comments. I appreciate the point Commissioner Sadberry made, in that, my recollection was that Ms. Nettles was here with us on October the 11th, and then this subject was passed in our November meeting, and, Keith, we did want your comments on the record and here today.
MR. ELKINS: My pleasure.
CHAIRMAN CLOWE: We'd invite you to see that Ms. Nettles knows that you made commentary to this Commission and point the transcript out to her so that she may be aware of what you've said. This Commission is interested in openness and fairness of all communication of all items, and although you have laid out a very convincing position on your part, my doubt is that Ms. Nettles is satisfied, and having said that, I want her to know by way of this transcript that this issue, although we've covered it today, can be revisited at some point in time in the future if she desires to come before the Commission and make a comment, but we have now come to a point where you responded, as was promised. So, we're going one step at a time.
Commissioner Clowe, just so that you know, they did NOT let me know this was discussed as you requested - I only found out after it was posted in mid January and YES, I do wish to respond. In fact, my comments are in blue. I sincerely hope you, Commissioner Whitaker and Commissioner Sadberry will take into consideration everything I have said and treat me like all other media's are treated - and if you like - I will be more than happy to show you other newspaper stories that were not flattering to the TLC either so we can determine if they got cut off too like I was.
MR. ELKINS: Thank you, Mr. Chairman. And for the record, I do believe that Ms. Nettles also posts the transcript of these meetings on her Web site as well.
And once again Keith, you are misleading them. I do not post all the meetings on my site.
CHAIRMAN CLOWE: Very good. Thank you, Keith.
End Discussion about Me!
This is the email I received from Keith -
Date: Mon, 27 Nov 2000 17:52:23 -0600
Sorry I missed you today via telephone, but just in case your voice mail
On Wednesday, November 29, I will not be attending the Commissioners'
As a result, I have relayed this information to Chairman Tom Clowe who
This will serve as official notification.
Keith's Phone Message
He left this message at 3:30 pm on Monday, Nov. 27, 2000. In October, I asked the Commissioners to re-instate my faxes and they were suppose to hear Keiths reasons for suspending them during the Nov. meeting. When the item came up, Ms. Cloud said to pass on it since Keith wasn't there. I've often wondered why she couldn't just tell the Commissioners why they suspended my faxes. Personally, I believe this is nothing more than a stall tatic and it's working as it's Feb. 2001 now and I've been trying to get an answer since last July 2000! Anyway, in his message, notice how Keith says, "If I want to re-visit this issue!" Of course I do, I still need those faxes Keith! To hear his message (an mp3 file), Click Here
Below is an excerpt from Albertson's testimony ... very interesting!
At the Commissioners meeting on April 13, 2000 - though not the official Comment Hearing, G-Tech arranged to have retailers present to testify about their thoughts regarding the proposed changes. I found this one comment was very interesting. Doug Waldbaum, Prevention Loss Manager for Albertsons said: "... When we get higher jackpots, we would also like to see a higher commission or some other incentive come the way of the retailers so that we pay for the amount of labor that we use, that 5 percent really doesn't meet. Certainly, we loved to have one of those one percent winners. I personally know about two of them. One here in Austin and one in Victoria. And we would certainly like to have the luck of the draw and have that happen again."
Well, Mr. Waldbaum, your testimony certainly paid off. Not only did they add 4 balls as you requested, but that "luck of the draw" got fulfilled too - didn't it? It was the Albertson's Richardson store that sold the first and only big winning Lotto Texas ticket after they added those 4 little balls - that $60 million jackpot on 9-9-00. And hasn't Albertson's also sold some winning Cash5 tickets? How wonderful! I suppose Albertson's got the much needed raise with the 1% of $60 million but all the other retailers are still waiting on their raises from those 4 new balls - they tell me they haven't seen an increase in pay yet and it's been over 6 months now! How sad.
If you want to read all the retailers testimony or Mr. Waldbaum's entire testimony, click here.
Well, this is it. Ya'll let me know what you think. Your input will be appreciated.
The Lotto Report