Fifteen months after City Council ordered changes, board and commission members to be assigned city e-mail accounts
It took the City of Austin 15 months to establish a formal procedure but, finally, the 368 members of the city’s 51 boards and commissions are going to be brought into the city’s e-mail system.
The action is needed to bring the city into compliance with the Texas Public Information Act by enabling the city to collect, assemble, and maintain e-mails about city business that board and commission members send or receive. This will allow the city to search the city’s server to find information responsive to public information requests and produce those records for inspection.
For many years the city’s website for each board and commission listed each member’s personal e-mail address.
“This is easily the most well thought-out policy addressing this issue, both from the private device/account and city server side, that I have seen,” said Joseph Larsen, special counsel to Sedgwick LLP. Larsen is an expert on open government laws and a volunteer attorney for the Freedom of Information Foundation of Texas. “… overall I think this could serve as a template for policies for other City officers and employees and for other governmental bodies.”
This is the third and final phase of improving the city’s handling of electronic communications in response to our lawsuit, The Austin Bulldog v. Mayor Lee Leffingwell et al filed March 1, 2012, and the county attorney’s ongoing investigation of the City Council’s violations of the Texas Open Meetings Act that The Austin Bulldog exposed January 25, 2011.
The first phase of improvements was to establish a policy for the electronic communications of the mayor, council members, and the five employees who work directly for the council. An April 7, 2011, City Council resolution established that policy, as The Austin Bulldog reported April 15, 2011.
The second phase of improvements was for City Manager Marc Ott to establish a similar policy for the city’s 12,000 employees, as ordered by the April 7, 2011, resolution. In response Ott issued Administrative Bulletin 08-06 August 4, 2011. Open government legal experts said that policy is deeply flawed, asThe Austin Bulldog reported August 10, 2011, and September 13, 2011.
“But for The Austin Bulldog, the public would not know about, let alone put a stop to, this ‘alternate universe’ in which government communications have been occurring for many years,” said Attorney Bill Aleshire of Riggs Aleshire & Ray PC. Aleshire represents The Austin Bulldog in the March 1, 2011, lawsuit and another open records lawsuit filed against the City of Austin September 1, 2011.
“Because of government officials’ and employees’ use of personal e-mail accounts for official business, lots of public business has been secret. Anyone who has submitted an open records request and been surprised to get a response that there were ‘no responsive records’ has probably been a victim of this scheme for government in the shadows,” said Aleshire, who is also a volunteer attorney with the Freedom of Information Foundation of Texas.
Board and commission requirements
Today the City Council approved Ordinance 20120823-004 to establish the new system for board and commission members by adding Austin City Code Section 2-1-49 (Communications Using Electronic Devices) and amending Section 2-1-23 (Training). The online version of the City Code does not yet reflect these changes.
The ordinance directs that within 90 days of the ordinance’s passage, i.e., November 21, each board and commission member will be issued a city e-mail address—but only after completing training in the use of a city e-mail account and signing a user agreement.
A member who does not comply with the training requirement or does not sign the user agreement will be barred access to a city e-mail account and may not use electronic devices for communications related to their city board or commission business. A member who uses electronic devices in violation of this rule without prompt remedy automatically vacates the member’s position, subject to the hold over provision in City Code Section 2-1-27.
The user agreement contains 11 rules that govern the member’s city e-mail account. The rules restrict use of the city e-mail account to city business, prohibit political use, and bar subscriptions to news feeds, distribution lists, and other automated e-mail distributions. The agreement warns users against expectations of privacy and states that messages will be subject to the Texas Public Information Act.
Messages related to the member’s board or commission service received on personal e-mail accounts—or by any other electronic messaging technology—are to be sent to the member’s city account; senders are to be reminded to use the member’s city account for future correspondence concerning city board and commission business.
Members must cooperate in looking for messages that may be responsive to a public information request and may not delete content from the server.
Training will be provided through an online module that will be added to the seven other online training modules that all board and commission members must complete within 90 days of appointment or reappointment.
City Clerk Shirley Gentry said the new training module should be in place Monday.
“We are still planning on going live on Monday with the new system,” she said in an e-mail. “If it gets delayed, it should only be for a minute or two. I think we are almost there.”
New system long time coming
The City Council’s April 7, 2011, resolution directing the city clerk to establish a new policy that if strictly followed would have restricted the system only to members of boards and commissions with sovereign authority—not all boards and commissions.
While most of the 51 boards and commissions are only advisory and perform due diligence to assist the City Council’s decision-making, 15 of them are “sovereign” bodies that can take an official government action, such as issuing a permit or granting a variance.
Some sovereign boards have the power to issue subpoenas and compel testimony. Decisions made by many of the sovereign bodies can be appealed to the City Council, while decisions made by some sovereign boards and commissions may only be appealed through the courts, according to City Code Chapter 2-1.
City Clerk Gentry and Teri Pennington, deputy chief information officer for the Communications and Technology Management Department, presented a broad overview of their proposal for handling board and commission e-mails to the City Council’s Audit and Finance Commission October 25. They said the new system was targeted for implementation in the first quarter of 2012.
The City Council’s January 12, 2012, Resolution 20120112-062 directed the city clerk and city manager to bring forward a City Code amendment and training module to implement the October 25 proposal.
Although the project first-quarter 2012 completion date slipped by many months, the good news for advocates of strong public information practices is that the new policy applies to members of all city boards and commissions—not just those with sovereign powers.
This report was made possible by contributions to The Austin Bulldog, which operates as a 501(c)(3) nonprofit to provide investigative reporting in the public interest. You can help to sustain The Austin Bulldog’s reporting by making a tax-deductible contribution.
Related Bulldog coverage: This is the 20th in a series of articles focusing on the City of Austin’s problems in complying with the Texas Public Information Act. Related articles are listed here:
City of Austin Moving, Slowly, Toward Greater Transparency in Electronic Communication: New System for Board and Commission Members Targeted for First Quarter 2012, October 27, 2011
Employee E-Communication Policy Drafts Show Each Revision Weakened Rules: Policy That Was Near Fully Compliant on First Draft Crippled by Changes, September 13, 2011
City Manager Establishes Policy for Employees’ Electronic Communications: Open Government Legal Experts Say Policy is Seriously Flawed, August 10, 2011
City of Austin Dragging Its Feet on Implementing Lawful E-mail Practices: City Employees, Board and Commission Members Still Not Covered by City Policies, July 13, 2011
E-mails Exchanged by Council Members Expose Private Deliberations and Political Maneuvering: More than 2,400 Pages of 2009 E-mails Published Here in a Searchable Format, July 6, 2011
Taxpayers Footing Big Bills to Correct City of Austin’s Open Government Issues: $200,000 Spent on Attorneys So Far and No End in Sight, June 24, 2011
Treasure Trove of Public Documents Made Available in Searchable Format: E-mails, Text Messages, Meeting Notes Obtained Through Open Records, Lawsuit, May 12, 2011
County Attorney’s Office “Cannot Determine” City of Austin Committed Alleged Violations: Bulldog’s Complaint Was First Submitted for Violation of Texas Public Information Act, April 22, 2011
Council Staff Training Lapsed From 2007 Until Lawsuit Filed: Only One Current Staff Member Had Taken Training, City Records Show, April 20, 2011
Austin City Council Adopts Policy to Improve Compliance with Texas Public Information Act: Policy Does Not Cover All City Employees or All City Board and Commission Members, April 15, 2011
City of Austin and Council Members File Answer to The Austin Bulldog’s Lawsuit: Answer Challenges Standing and Claims Requests for Open Records Fulfilled, Mostly, April 11, 2011
City of Austin’s Records Retention Undermined by Lack of Controls Over Deletion of E-mails: Missing Records Likely More Important Than Gossipy Tidbits, April 6, 2011
Council Member Laura Morrison Releases E-mails on City Business from Gmail Account: Morrison Second to Turn Over More E-mails Responsive to The Austin Bulldog’s Requests, March 30, 2011
Private E-mails About City Business May be Pulled Into City of Austin Records Retention: City Council Votes to Consider Policy Draft at Council Meeting of April 7, March 29, 2011
The Austin Bulldog Files Civil Complaint Against City of Austin and Council Members: Travis County Attorney David Escamilla Has Legal Authority to Force Compliance, March 23, 2011
Expired: The Austin Bulldog’s Offer to Settle Its Lawsuit with City, Mayor and Council Members: Does This Mean That Elected Officials Want to Continue to Violate State Laws?, March 18, 2011
Council Member Spelman’s City E-mails on UT Account Will Not Be Provided: University of Texas Will Seek Opinion From Texas Attorney General to Withhold, March 18, 2011
The Austin Bulldog Files Lawsuit to Compel Compliance with the Law: Mayor and City Council Members Not in Compliance With Statutes for Public Information, Records Retention, March 2, 2011
Smoking Gun E-mail Shows Council Aide Advocated Evasion of Public Information Act: Provided Detailed Guide to Allow Chats With Council Members on Dais But Leave No Trace, March 1, 2011