No more hiding identities of the public officials who do government business on private e-mails
Updated Tuesday April 12, 2016 10:54am (to add link to Corpus Christi Caller-Times coverage)
Updated Wednesday April 13, 2016 1:28pm (to add link to Watchdog.org Texas Bureau coverage)
Updated Thursday April 14, 2016 1:46pm (to add link to FierceGovernmentIT coverage)
Updated Wednesday April 20, 2016 3:07pm (to add link to FindLaw publication of opinion)
More than five years after The Austin Bulldog filed a lawsuit against Mayor Lee Leffingwell, the other six council members, and the City of Austin, the Austin-based Third Court of Appeals on April 8, 2016, handed down a landmark legal decision. The court ruled that government officials are not “members of the public” and when they use private e-mail accounts to conduct public business they will forfeit the right to keep their e-mail addresses concealed from the public.
The Third Court’s ruling advances the public’s interest in holding government officials accountable. The decision is of vital interest in government and legal circles, and it triggered a front-page story in the Austin American-Statesman as well as articles in both the Texas Tribune and Law360.com, a national publication covering the legal industry.
The decision serves notice to elected officials and others in government service that they ought to do the public’s business through their government-issued e-mail addresses—and not hide public information by using personal accounts.
“Any time a public official uses a private e-mail account for public business—that’s highly suspect,” said Attorney Joseph Larsen, special counsel to Sedgwick Law in Houston (who subsequently moved to Gregor Cassidy PLLC) and a board member of the Freedom of Information Foundation of Texas.
Decision will have wide impact
The Appeal Court’s decision not only applies to the City of Austin, a defendant in The Austin Bulldog’s lawsuit, but to all governmental agencies within the 24-county jurisdiction of the Third Court of Appeals. State agencies based in Austin should take heed. So should Texas Governor Greg Abbott. The governor roundly criticized presidential candidate Hillary Clinton’s e-mail imbroglio stemming from her use of a private e-mail server while Secretary of State. Last year the Texas Tribune reported that Abbott, too, has shielded his private e-mail accounts using the “member of the public” exception.
Attorney Bill Aleshire of Austin-based Aleshire Law PC, who represented The Austin Bulldog in the lawsuit, said, “Technically the opinion only applies to the Third Court’s district, but it should serve as a precedent elsewhere. And from now on, the Attorney General should follow it when issuing opinions.
“To the best of my knowledge, the Attorney General has held directly opposite of this opinion every time the issue of shielding public officials’ e-mail addresses came up in an open records request. That will stop,” Aleshire said.
“The decision will also apply to any public information requests made from now on—even if the e-mails were written previously.”
Lawsuit part of open meetings investigation
The Austin Bulldog’s investigative report of January 25, 2011, exposed the illegal, institutionalized practice of holding regularly scheduled round-robin meetings to discuss council meeting agendas behind closed doors in the days preceding public council meetings.
In legal terms, that practice constituted a conspiracy to circumvent compliance with the Texas Public Information Act, as defined in Government Code Chapter 551.143(a):
“A member or group of members of a governmental body commits an offense if the member or group of members knowingly conspires to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter.”
Uncovering the City Council’s closed-door deliberations led to the question of whether these elected officials might also be violating the Act through quorum discussions of City business via e-mail. To find out, The Austin Bulldog in January 2011 filed two public information requests for e-mails exchanged by the mayor and council members over a 13-month period.
In responding to these requests, the City charged The Austin Bulldog $1,039 to provide some 2,000 pages of messages sent and received on their city e-mail accounts. But the City refused to provide messages about city business exchanged through the elected officials’ private e-mail accounts. As a result The Austin Bulldog filed a lawsuit March 1, 2011, to get those messages.
After being sued, one-by-one the elected officials released batches of e-mails from their private accounts, some just a few pages and others hundreds.
But in all the private-account e-mails released, the sender and receiver’s addresses were blacked out. That made it difficult, if not impossible, to identify which officials were involved in the communications. These redactions prevented determining whether these officials had violated the Texas Open Meetings Act by holding a quorum discussion about city business outside a properly posted public meeting.
County attorney investigates
The investigative report published by The Austin Bulldog, and a formal complaint filed by civic activist Brian Rodgers, resulted in a criminal investigation conducted by County Attorney David Escamilla—announced later the same day the Bulldog report was published. Over the next 20 months, investigators gathered more than 30,000 pages of documents, including subpoenaed telephone records, text messages, and unredacted copies of the private e-mails.
At the investigation’s conclusion in October 2012 Escamilla issued a written statement: “In addition to the systematic one-on-one meetings that were the subject of the original complaint, we found that council members regularly deliberated outside of the public’s purview by use of almost every modern communication medium that exists. As a result of our investigation, we found probable cause to believe that multiple violations of the Texas Open Meetings Act had occurred.”
Prosecutions of such violations, however serious, are complex and seldom pursued. Instead of being charged, prosecuted and, if convicted, fined and sentenced to from one to six months in jail, as the law requires, each of the elected officials, and their individual criminal defense attorneys, signed deferred prosecution agreements. The agreements put the council members on probation for two years. The agreements also waived the statute of limitations on the collected evidence. Thus any new violation of the Act would enable prosecution not only for the new crime but also for the previous offenses.
Litigation challenged authority for redactions
Confidentiality of private e-mail addresses had been granted to “members of the public” through amendment of the Texas Public Information Act in 2001. Since then, the Texas Attorney General has issued various opinions that granted the same exception to disclosure for officials and employees who conducted government business using their private e-mail accounts.
Although the private e-mails about City business were busted loose by the lawsuit, The Austin Bulldog continued the litigation to challenge the Attorney General’s policy—a policy that is not enshrined in the Texas Public Information Act.
Open Records Letter Ruling OR2011-05507 was issued by Attorney General Greg Abbott in response to the City of Austin’s request regarding the private e-mails at issue in The Austin Bulldog’s public information requests. That ruling authorized the council member’s private e-mail addresses to be redacted.
The Texas Public Information Act is silent on whether government officials are “members of the public” and thus entitled to the same confidentiality. The Appeals Court’s decision went into that issue at great length to remove all doubt, concluding:
“The City is correct that we generally give due consideration to Attorney General decisions, although they are not binding, because the Legislature has directed the Attorney General to determine whether records must be disclosed under the (Public Information Act). However, we only defer to agency interpretations that do not contradict the plain language of the statute in question and … the interpretation offered here contradicts the exception’s plain language.”
The decision also states:
“…this interpretation satisfies the (Public Information Act’s) mandate that the public have ‘complete information about the affairs of government and the official acts of public officials and employees,’ even where, as here, those officials chose to conduct official government business using private e-mail addresses.”
Attorney Aleshire said, “There is no excuse for any public official or employee to be using their personal e-mail account to conduct official government business. It ought to be strictly outlawed. Public officials should no more comingle personal and official e-mails than they would comingle personal and public money.”
Attorney Larsen said of the appeals court findings, “It’s the right decision. It goes to show the lengths to which government officials will go to conceal their activities. No one wants to know their private affairs, but when using their private e-mail accounts for public business, that’s public information.”
Aleshire added, “What the new Austin Bulldog opinion says is that when public officials do choose to use their personal e-mail account for official business, they can’t keep their personal email address secret. That will discourage use of personal e-mail accounts a little more.”
Lawsuit jumpstarted new city policies
Five years before the Appeals Court ruling—less than six weeks after The Austin Bulldog sued—on April 7, 2011, the Austin City Council enacted a new policy by passing Resolution No. 20110407-14, which states:
“City accounts shall be used to conduct city business. If circumstances require a City official or employee … to conduct city business on a non-city account, the official or employee shall promptly forward the associated electronic communications to a city account. Once forwarded to a city account, the communication will be public information as set out in the Texas Public Information Act.”
The new policy immediately applied only to the council members and the five employees they directly supervise. But the resolution ordered the city manager to enact a similar policy for all city employees. It also directed the city clerk to implement a like policy for the volunteer members of the city’s boards and commissions.
Big win for public, small change for plaintiff
The Austin Bulldog’s lawsuit forced release of the private e-mails exchanged by the elected officials and even overturned the longstanding policy of the Attorney General that permitted government officials and employees to hide private e-mail addresses in public correspondence.
The bad news is that because the City eventually provided all the records requested, The Austin Bulldog is not entitled to attorney’s fees.
The good news is the Third Court’s decision included a Judgment that requires the City of Austin to pay all costs related to both the appeal and the lower court case. Aleshire estimates that will be about $1,400 to cover out-of-pocket expenses for such things as citations, e-filing, and transcripts.
The Texas Public Information Act imposes no penalty for government officials or government agencies that withhold public information, even if forced to release that information through litigation.
“The Legislature needs to change the law to require the governmental body to pay the requestor’s attorney fees even if, after getting sued, the governmental body coughs up the records,” Aleshire said.
“Otherwise, governmental bodies have an incentive to force requestors to go to the expense of filing suit and, then and only then, finally produce the records before a final judgment in favor of the requestor can be entered.”
Case No. 03-13-00604-CV, Texas Court of Appeals, Third District, at Austin (16 pages)
Open Records Letter Ruling OR2011-05507 (3 pages)
What other publications said about the decision:
Court: Austin must ID private emails used for public business, Austin American-Statesman April 8, 2016 (non-subscribers may encounter paywall)
Officials’ Personal Email Addresses Open to Public, Court Says, Texas Tribune April 8, 2016.
Officials’ Personal Email Addresses Open to Public, Court Says, El Paso Herald-Post April 9, 2016 (republication of Texas Tribune article)
Texas News Site Wins Appeal, Release of City Emails, law.360.com, April 8, 2016 (may have to sign up for free 7-day trial for access).
Will Bulldog ruling spur state transparency reform? Watchdog.org Texas Bureau, April 13, 2016. (This link is no longer functional.)
Texas appeals court: Private e-mail addresses aren’t private if used to conduct official business, FierceGovernmentIT, April 13, 2016
Related Bulldog coverage: This is The Austin Bulldog’s seventy-third article about local government agencies’ problems and progress in dealing with open government issues. Here are the links to our previously published articles, listed in reverse chronological order:
Georgetown City Attorney Sues to Keep Performance Reviews Secret, August 19, 2010