City of Austin

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City, council members answer lawsuit

Posted Monday, April 11, 2011 1:22pm
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

by Ken Martin
© The Austin Bulldog 2011

Separate answers were filed this morning for the City of Austin, Mayor Lee Leffingwell and each council member in response to The Austin Bulldog v. Mayor Lee Leffingwell et al.

The Austin Bulldog filed the lawsuit in state district court March 1 to sue the mayor and each council member in their official capacity, and the City of Austin, for failure to promptly and fully respond to The Austin Bulldog’s requests filed January 19 and January 27, 2011, under the Texas Public Information Act. (See March 2 report.)

Despite numerous searches, and multiple separate releases of e-mails and text messages by the mayor and council members, nearly four months have elapsed since the initial requests and the city has still not released all the records that existed on city servers—and concedes that fact in its answer to the lawsuit.

What legal action The Austin Bulldog takes in response to the defendants’ answers to the lawsuit will be determined after evaluating what the city means when it says it will “very shortly” furnish additional records responsive to The Austin Bulldog’s open records requests.

Pattern of hiding communications

Help Analyze Council E-mails

Posted Saturday April 9, 2011 5:09pm
Call for Public Help in Analyzing City Council
Members Private E-mails, Text Messages

Volunteers Needed to Review Correspondence
and Provide Feedback About Any Irregularities

by Ken Martin
© The Austin Bulldog 2009

In response to open records requests, The Austin Bulldog has obtained hundreds of pages of e-mails and some text messages in which members of the Austin City Council communicated among themselves using personal devices or personal accounts.

Your help is needed in poring over these e-mails to create a better public understanding of these communications. It’s a work party and you’re invited. Read the messages and e-mail your findings to The Austin Bulldog at [email protected].

If you decide to jump in and help, here are some questions to keep in mind:

Why private?—Help figure out why the city’s business being discussed in these messages was not conducted using city accounts. Does it appear to be a matter of convenience or does it indicate a desire to evade public scrutiny?

Walking quorum?—A walking quorum exists when four or more council members discuss the same topic of public business among themselves. That could occur when one string of e-mails circulates on that topic among four or more members of the council. A walking quorum could exist when disconnected strings of e-mails in effect establish a quorum discussing the same topic. E-mails among fewer than a quorum may make reference to discussions with other council members that when taken together indicate establishment of a walking quorum.

City e-mail addresses?—Do any of these e-mails involve one or more city e-mail addresses? Point those out so we can research them further.

Controversial topic?—Are the council members discussing something controversial and if so, what seems to be the reason for using private e-mail accounts?

Ask for confidentiality?—Do any of these messages explicitly ask for or imply that the discussion should be kept secret?

To access 115 pages of Mayor Lee Leffingwell’s private e-mails released April 8 click here.

To access 14 pages of Mayor Pro Tem Mike Martinez’ private e-mails released April 8 click here.

To access nine pages of Cole’s private e-mail and Facebook message released March 31, click here.

To access 11 pages of Council Member Laura Morrison’s private e-mails released March 30 click here.

To access 33 pages of Morrison’s private text messages released April 8 click here.

To access 104 pages of Council Member Randi Shade’s private e-mails released April 8 click here.

Council Member Bill Spelman has not released any e-mails involving a private e-mail account. He released three e-mails involving his University of Texas account on March 29. To access those 10 pages, click here.


City Council Records Retention Problems

Posted Wednesday April 6, 2011 9:03pm
City of Austin’s Records Retention Undermined
by Lack of Controls Over Deletion of E-mails

Missing Records Likely More
Important Than Gossipy Tidbits

Investigative Report by Ken Martin
© The Austin Bulldog 2011

The Austin American-Statesman and some television reports had a field day serving up e-mail exchanges among the mayor and council members that reveal the proclivity of some officeholders to hold side discussions among themselves during council meetings in which they demeaned certain citizens and showed a lack of confidence in high-level employees, including the city manager, an assistant city manager and the fire chief.

This rush to dish the dirt out of the e-mails that have been released—in response to open records requests filed under the Texas Public Information Act, first by The Austin Bulldog and later the Statesman and other media—has been entertaining, in a sense, and has triggered profuse apologies from the offending officeholders. A heaping helping of humble pie has been served up and choked down.

What has not been reported is how these elected officials, and their staff members, may be failing to properly manage e-mails and other correspondence to make sure that local government records are collected, assembled, and maintained in accordance with the Local Government Records Act.

At present, the city permits every city official and employee to conduct public business by creating or receiving local government records via e-mail and to keep them secret by using personal e-mail accounts.

The city also permits every official and employee who uses a computer to choose—without review by anyone else—when to delete local government records in the form of e-mails created or received on the city’s computers. Once e-mails are deleted, the right of access to them through the Texas Public Information Act, Government Code Chapter 552, is soon permanently lost.

The city’s failure to comply with the Texas Public information Act and the Local Government Records Act was the basis for the lawsuit, The Austin Bulldog v. Mayor Lee Leffingwell, et al, as reported March 2. The city has until April 11 to file its initial reply to the pleadings.These shortcomings are also the basis for The Austin Bulldog's complaint filed with County Attorney David Escamilla,as reported March 23.

The city’s response to The Austin Bulldog’s open records requests for deleted e-mails indicate that some e-mails that should have been retained are being deleted.

Records retention basics

Private E-mails About City Business

Posted Tuesday, March 29, 2011 8:57pm
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

by Ken Martin
© The Austin Bulldog 2011

The Austin City Council voted 6-0 this morning, with Council Member Bill Spelman absent, to direct city staff to draft a new policy that would require designated city officials to ensure that e-mails pertaining to city business that are created or received on personal devices would be copied to the city’s e-mail servers so these messages would be available to a requestor under the Texas Public Information Act, Chapter 552 of the Government Code.

Jim CousarThe draft policy is to be placed on the April 7 City Council meeting agenda for discussion and possible adoption. Which city officials would be included in such a policy will be discussed at that meeting, but attorney James C. “Jim” Cousar of Thompson & Knight LLP, told the council that requiring all city employees to do so would be “difficult, expensive, and unworkable.”

Cousar suggested that guidance should be provided to anyone made subject to such a policy about what constitutes an e-mail that must be retained by the city vs. a personal e-mail that does not. He also noted that e-mails from personal devices that are forwarded to city e-mail servers would be subject to the exceptions set forth in the Texas Public Information Act that bar release of certain sensitive documents in response to an open records request.

A important question that was not addressed in today’s work session is what penalty, if any, would apply to violators of whatever new policy is adopted.

Lawsuit issues not addressed

Council Member Laura Morrison Releases E-mails

Posted Wednesday March 30, 2011 4:56pm
Council Member Laura Morrison Releases
E-mails on City Business from Gmail Account

Morrison Second Council Member to Turn Over More
E-mails Responsive to The Austin Bulldog’s Requests

by Ken Martin
© The Austin Bulldog 2011

Laura MorrisonLate this afternoon the City of Austin’s Public information Office issued a statement by Council Member Laura Morrison along with six e-mails totaling 11 pages.

Morrison is the second council member to break ranks and voluntarily release e-mails requested by The Austin Bulldog under the Texas Public Information Act that were not retained within the city’s communication system.Council Member Bill Spelman yesterday released three e-mails from his University of Texas e-mail account about city business.

She is the first to release e-mails that she created or received from her personal e-mail account.

Morrison’s press release states, “In the interest of transparency, in the few cases when I may have conducted city business with e-mail on my personal account, my policy is to forward the e-mail to my city account. This practice is consistent with the draft policy that was discussed at the March 29 Council Work Session, which I will continue.