Key issue is whether it is permissible to redact officials’ private e-mail addresses
How could you find out if Austin City Council members participated in an illegal quorum discussion about city business using their private e-mail accounts—a violation of the Texas Open Meetings Act?
The short answer is: you can’t.
Under the Texas Public Information Act (TPIA) you may request copies of e-mails exchanged by public officials about public business and you would be entitled to get them—including e-mails sent or received on private accounts (although in the past, the private-accounts issue has been a matter of legal contention).
But the e-mails you get from the public officials’ private e-mail accounts would not include their private e-mail addresses. Those addresses would be blacked out, redacted—to the point you would not be able to determine who sent or received a given e-mail, or whether a quorum of the governing board had illegally participated.
That was what The Austin Bulldog encountered in 2011, in response to a public information request for the e-mails about government business exchanged by the mayor and council members.
The Austin Bulldog eventually obtained copies of e-mails about government business exchanged by these elected officials using their private e-mail accounts—but only after filing a lawsuit to get them.
In response to the lawsuit the elected officials eventually released 288 pages of e-mails exchanged in 2010 and January 2011 on personal e-mail accounts. (Another 276 pages of personal e-mails about city business exchanged in 2009 were furnished in response to a later public information request filed by The Austin Bulldog.)
All copies of private e-mails about city business ultimately released to The Austin Bulldog had the mayor and council members’ private e-mail addresses redacted, based on Attorney General Opinion OR2011-05507, which was issued at the city’s request.
That opinion cited Section 552.137 of the Texas Public Information Act as authority to withhold these private e-mail addresses—even though these private e-mail addresses were used to facilitate a discussion in the shadows about government business that by law should be conducted in public.
“The AG has consistently ruled that governments can redact personal e-mail addresses used by government officials when corresponding about public business,” said attorney Bill Aleshire of Riggs, Aleshire & Ray PC, who represents The Austin Bulldog in this lawsuit.
“I believe the TPIA Section 552.137 exception for email addresses of ‘members of the public’ does not apply to public officials internally communicating with each other,” Aleshire said. “No Texas court has ruled on the issue.”
Whether the City of Austin will be permitted to continue redacting the private e-mail addresses of public officials in the future will be decided by a district court hearing on The Austin Bulldog’s Motion for Summary Judgment. A hearing on that motion will be scheduled for late August.
If the Motion for Summary Judgment is granted, Aleshire said, the court would issue an order for the city manager to release unredacted copies of the e-mails exchanged by the mayor and council members.
As it now stands, such redaction is permitted. Only a prosecutor with subpoena powers would be able to obtain unredacted copies to determine if a quorum of an agency’s governing board had participated in illegal quorum discussions of government business.
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.
These records were an important part of the evidence assembled to show there was probable cause that the Texas Open Meetings Act was violated. Some of the private e-mail records were cited in the deferred prosecution agreements signed by the mayor and council members (except Kathie Tovo, who was not on the council when the violations occurred).
Why was the lawsuit needed?
The lawsuit against the mayor, council members, and City of Austin, The Austin Bulldog v. Lee Leffingwell, mayor, et al (Cause No. D-1-GN-11-000639) was triggered by the city’s failure to promptly and fully respond to public information requests filed January 19, 2011, and January 27, 2011.
The Austin Bulldog sought to obtain copies of e-mails, letters, memoranda, notes, or other forms of written communication exchanged by the mayor and each council member from January 1, 2010, through January 27, 2011.
The lawsuit asserted there is evidence that one or more Austin elected officials deliberately used their private e-mail accounts to try to keep substantive communications about city business from being available through the city’s computer servers in response to public information requests
In one case, a council member asked a constituent to switch over to the council member’s personal e-mail address to continue discussing the controversial topic of tax subsidies for The Domain shopping center, which amounted to anywhere from $25 million to more than $60 million, depending on whose figures you believe.
The city’s initial response to those requests included hundreds of e-mails that were captured because they went through city servers.
However, the city took the position that e-mails created or received on personal computers or cell phones were not collected, assembled or maintained by the city. Further, the city claimed it did not have legal access to these records, which were therefore not public information.
But elected officials—from whom these records were requested by The Austin Bulldog—are by law the official custodians of records in their offices. Section 201.003(2) of the Local Government Records Act defines “custodian” as the appointed or elected public officer who … is in charge of the office that creates or receives local government records.”
The City Council members’ offices are defined by City Code Section 2-11-1(B)(1) as department directors and, as such, is responsible under City Code Section 2-11-6 for maintaining the department’s records.
The city did not explain why these elected officials who are custodians of their records would not have legal access to their own private e-mail accounts.
Further, opinions previously issued by the Attorney General indicate that e-mails created using a council member’s personal e-mail account in connection with the transaction of official business constitute “public information” and must be released to the requestor.
For example, Attorney General Opinion OR2010-10687 dated July 19, 2010 (see page 2) delivered that finding in connection with an open records request filed by The Austin Bulldog to obtain e-mails created or received by then Georgetown Council Member Pat Berryman.
Other Attorney General Opinions that hold personal e-mails about public business are public information include: Attorney General Open Records Letter OR2003-0951, Attorney General Open Records Letter OR2003-1890, Attorney General Open Records Letter OR2005-01126, and Attorney General Open Records Letter OR2005-06753.
Lawsuit triggered reforms
The city’s response to the lawsuit may have been hastened by the fact that it was filed just five weeks after County Attorney David Escamilla on January 25, 2011, launched an investigation into the City Council’s violations of the Texas Open Meetings Act—exposed by The Austin Bulldog’s investigative report published that day.
The lawsuit resulted in significant actions by city officials:
E-mails released—The mayor and council members released varying numbers of e-mails about city business created or received on private accounts, albeit with personal e-mail addresses redacted.
However, those who made statements when releasing those e-mails said the law was not settled on the question of whether those messages constituted public information and they were releasing the e-mails voluntarily.
Policies reformed—The City Council on April 7, 2011, passed a resolution to reform its own electronic communication practices and those of the five employees directly supervised by the council.
The resolution also ordered the city manager and city clerk, respectively, to reform electronic communication procedures for city employees and members of city boards and commissions.
To that end, on August 4, 2011, City Manager Marc Ott issued Administrative Bulletin 08-06, to establish a policy for city employees.
It wasn’t until August 23, 2012, that a policy was established for board and commission members. That’s when the City Council approved Ordinance 20120823-004, which added City Code Section 2-1-49 (Communications Using Electronic Devices) and amended Section 2-1-23 (Training).
In The Austin Bulldog’s Third Amended petition, filed May 22, 2013, the mayor and council members have been deleted as defendants in the lawsuit and the city manager has been added as a defendant.
The reason is that under the Texas Public Information Act only the governmental body can be sued for withholding records. The relief provided by the Act is for a writ of mandamus to be issued by the court to order that records be released.
Such writs could be enforced through contempt of court proceedings. However, a court has ruled that a writ of mandamus cannot be issued against a governmental body. “It has to be an individual,” Aleshire said. “The logical person is the officer for public information.”
Section 552.201(a) of the Act states that, “The chief administrative officer of a governmental body is the officer for public information.”
Including the city manager in this lawsuit would make the manager the party to be issued a writ of mandamus—and the person to be held accountable for noncompliance.
Without this distinction, “There are profound implications that you could sue a governmental body and win and not get relief,” attorney Aleshire said.
The city hired attorney Jim Cousar of Thompson & Knight and others in that firm to assist in defending this lawsuit, so far authorizing expenditures of $95,000. Through February 20, 2013, the firm has billed the city for more than $81,000. (See spreadsheet, The Austin Bulldog v. Leffingwell et al Legal Fees to Represent City of Austin.)
Legislation clears the air
Any legal ambiguity about whether e-mails about government business exchanged on private e-mail accounts are, in fact, public information and may be obtained through a public information request was erased by the Texas Legislature last month.
Senate Bill 1368, signed in both the House and Senate May 27 and sent to Governor Rick Perry May 28, would add to the Texas Public Information Act’s definition of public information “any electronic communication created, transmitted, received, or maintained on any device if the communication is in connection with the transaction of official business.”
SB 1368 also adds to the list of media containing public information “e-mail, Internet posting, text message, instant message, (and) other electronic communication.”
The bill is currently on Perry’s desk for consideration, said Lucy Nashed in the governor’s press office. Because the Legislature was not in session at the time the bill was sent, Perry has 20 days—until June 16—to either sign the bill into law, let it become law without signing it, or veto it, she said.
Lawsuit records Cause No. D-1-GN-11-000639
The Austin Bulldog v. Lee Leffingwell, mayor, et al, Plaintiff’s Original petition, March 1, 2011
Plaintiff’s Request for Admissions to Defendant City of Austin, August 27, 2012
Plaintiff’s Third Amended Petition, May 22, 2013
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Related Bulldog coverage: This is the 42nd story covering the City of Austin’s problems and progress in deadline with open government issues.