Third Court of Appeals decision once again requires e-mails on private account or devices to be released
Updated Tuesday March 10, 2015 2:43pm
Updated Tuesday March 10, 2015 3:58pm
One can only imagine what’s in the e-mails that a San Antonio mayoral candidate wants to keep secret, but Tommy Adkisson lost another round in his ongoing legal battle to keep from releasing e-mails about official Bexar County business that he conducted using private e-mail accounts or devices as a county commissioner during his recently ended term of office. This legal warfare has been going on for three years.
The Austin-based Third Court of Appeals on Friday upheld the trial court’s decision that these e-mails sent or received by then-Bexar County Commissioner Adkisson are public records and must be released to the requestor.
Attorney George Hyde of Austin-based Denton Navarro Rocha & Bernal PC has and still represents both Adkisson and Bexar County.
“I have only recently informed my clients of the decision issued Friday and await instructions at this point,” Hyde said in an e-mail Monday in reply to questions posed by The Austin Bulldog. “Based on the decision upon first read, it appears it creates more questions than it answers for local government.”
Houston-based attorney Joseph Larsen, special counsel to Sedgwick LLP, and a longtime volunteer with the Freedom of Information Foundation of Texas, has a far different analysis of the Third Court’s opinion.
“I think this is an excellent and well-reasoned opinion, and is spot-on correct,” Larsen told The Austin Bulldog. But he added, “I think we still need a legislative solution because the opinion only applies to county officers, and does not yet have statewide reach.”
Larsen said, “It’s possible that this decision—the logic of the analysis—applies to non-county governmental bodies and governmental officers, but it does not bind them. Therefore we need to propose legislation establishing custodianship statewide and through all governmental bodies.”
This is an important case. In 2011 The Austin Bulldog sued the mayor, council members and City of Austin to get e-mails about city business these elected officials exchanged on private accounts, forcing them to release communications that were not only embarrassing but indicative of orchestrated efforts to evade the Texas Open Meetings Act by debating high-profile issues such as building a half-billion-dollar water treatment plant and a controversial lawsuit settlement involving the shooting death of a young African-American man.
The 33-page opinion of the Third Court of Appeals (linked at the bottom of this story) states the e-mails about official business are public records.
“To conclude otherwise would lead to the absurd result that the Commissioner could conduct all his official County business through his personal e-mail accounts without it being subject to the PIA (Texas Public Information Act), even if the same correspondence would be subject to the PIA if he used his County e-mail account.”
Adkisson had contended that he had a right of privacy in his e-mail communications, an argument soundly rejected by the Third Court.
“When the Commissioner voluntarily took on his elected office, including his role as the public-information officer for his office, he relinquished some of the privacy expectations of a private citizen, at least in connection with his work as a County Commissioner. As an elected County official and the public-information officer for his County office, the Commissioner would or should have known that documents created or received by him, his employees, or his office in the transaction of public business were records potentially subject to review under the PIA or for any variety of other reasons, regardless of where they are physically located.”
Public information request triggered lawsuit
The San Antonio Express-News sought communications between Adkisson, chairman of the Alamo Area Metropolitan Planning Organization, and two others: Terri Hall, founder of the San Antonio Toll Party, and Isidro “Sid” Martinez, director of the AAMPO, according to the newspaper’s article published March 29, 2012.
In an effort to withhold those messages, an opinion was requested from the Texas Attorney General, as required by the Texas Public Information Act.
The Attorney General ordered release of the records and in response Adkisson, individually and on behalf of Bexar County as Precinct 4 county commissioner, filed a lawsuit against Attorney General Greg Abbott.
Hearst Newspapers LLC, owner of the Express-News, intervened.
Travis County District Court Judge Gisela Triana on August 7, 2012, issued a final judgment that denied plaintiff Adkisson’s motion for summary judgment and reconsideration and granted the attorney general and Hearst’s motion for summary judgment.
The attorney general was awarded attorney’s fees of $10,150 and Hearst was awarded $17,500 in attorney’s fees in a final judgment filed August 7, 2012. All costs, the amount of which was not specified in the judgment, were to be borne by plaintiffs as well. The Appeals Court affirmed the trial court’s judgment but made clear that Bexar County and not Adkisson is responsible for the attorney’s fees and costs.
A notice of appeal on Triana’s ruling was filed with the Third Court August 10, 2012.
Legislative action
In 2013 the Texas Legislature passed Senate Bill 1368 and the governor signed it into law in June. The law became effective September 1, 2013.
The bill requires that in responding to public information requests, public officials must provide e-mails about government business that are sent or received on private devices unless the subject matter otherwise qualifies to be withheld. In other words, electronic communications relating to official business will be accessible by law to the public, even if sent from a private e-mail account or mobile device.
Long political career
Adkisson, a Democrat, was first elected to county commissioner in 1998. In 2014 he ran for Bexar County Judge, capping 15 years on the court while losing to Nelson Wolfe in the Democratic Primary, according to the San Antonio Current.
Adkission left office following the November 2014 election of his Precinct 4 successor.
He declared himself a candidate for San Antonio mayor in a December 28, 2014, article published by the San Antonio Express-News.
SB1368 was not in effect in 2012 when the Express-News requested the e-mails that triggered Adkisson’s refusal and the ensuing litigation, although numerous opinions rendered by the attorney general all required the same disclosures the law codified.
Attorney Hyde did not respond to The Austin Bulldog’s question about whether the law that took effect in 2013 would have any effect on the decision to appeal the Third Court’s ruling to the Texas Supreme Court.
Same issue as ‘Bulldog’ lawsuit
The Austin Bulldog sued the mayor, city council members and City of Austin March 1, 2011, over the same circumstances as the Adkisson case.
In response to the Bulldog’s public information request for e-mails about city business exchanged by the mayor and council members over a 13-month period, the city released thousands of pages of messages involving the elected officials’ city e-mail accounts.
The city stated in a letter that it did not collect, assemble or maintain e-mails exchanged on their private e-mail accounts, nor did it have legal access to those messages—an absurd response given that the information request was addressed individually to the mayor and each council member, who by law are the official custodians of the records for their offices.
As a result of the lawsuit the elected officials individually and at different times released varying numbers of e-mails from their private accounts and on April 7, 2011, passed a resolution that ordered sweeping reforms in city policies for electronic communications.
The new policy required government business to be conducted via government e-mail accounts. In circumstances requiring use of private e-mail accounts the messages were to be forwarded to city accounts so that the communications would be available for response to public information requests.
The City of Austin’s new policy also required similar rules to be observed by all city employees and members of all city boards and commissions.
Historic footnote
The City of Austin claimed the Bulldog’s lawsuit was mooted by release of private e-mails about city business exchanged by the mayor and council members. Nevertheless the Bulldog pursued the lawsuit because the e-mails released from private accounts redacted the elected official’s private e-mail addresses. That was permitted by Attorney General Opinion OR2011-05507, which was issued at the city’s request.
Without those e-mail addresses it is not possible to determine the identity of all parties involved in the discussions about city business, and thereby determine if an illegal quorum discussion was conducted via these back-channel e-mails.
Bill Aleshire of Aleshire Law PC, who represents the Bulldog in this lawsuit, said at the time that no Texas court had ruled on the issue of whether such redactions are permissible when public officials communicate with each other via private e-mails.
The Bulldog lost the lawsuit at the District Court level and appealed more than a year ago to the Third Court to address the redaction issue. That appeal is still pending a decision by the court.
Travis County Attorney David Escamilla obtained unredacted copies of e-mails exchanged by Austin City Council Members on private accounts during his 21-month investigation of the council’s violations of the Texas Open Meetings Act. The investigation was triggered by the Bulldog exposé that revealed an institutionalized practice of elected officials holding round-robin meetings that established walking quorums in violation of the Texas Open Meetings Act.
These unredacted private e-mails were an important part of the evidence assembled by the county attorney to show there was probable cause that Texas Open Meetings Act was violated. Some of the private e-mails were cited as evidence in the deferred prosecution agreements signed by the mayor and council members.
Links:
Case No. 03-12-00535-CV Tommy Adkisson, Individually, and Officially on Behalf of Bexar County, Texas, as County Commissioner Precinct 4
Trial Court Final Judgment Adkisson et al v. Greg Abbott filed August 7, 2012
Third Court of Appeals Opinion Adkisson et al v. Ken Paxton filed March 6, 2015
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