Electronic Communication

Austin Board and Commissions Get E-mail Policy

Austin Board and Commissions Get E-mail Policy

Fifteen months after City Council ordered changes, board
and commission members to be assigned city e-mail accounts

by Ken Martin
© The Austin Bulldog 2012
Posted Thursday, August 23, 2012 7:50pm

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.

Joseph Larsen“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.

E-communication policy established for city employees

Posted Wednesday, August 10, 2011 7:04pm
City Manager Establishes Policy for
Employees’ Electronic Communications

Open Government Legal Experts Say Policy
Is Seriously Flawed, But It’s an Important Start

by Ken Martin
© The Austin Bulldog

Marc OttCity Manager Marc Ott approved a policy August 4 that establishes city accounts as the primary means for the city’s 12,000 employees to electronically communicate about city business. The policy was transmitted to employees through an Administrative Bulletin drafted by the Human Resources Department.

The City Council ordered the city manager to devise a policy for employees’ electronic communications in a resolution unanimously adopted April 7. (See The Austin Bulldog’s April 15 report.) The resolution also directed the City Clerk to devise a policy for board and commission members’ electronic communications. (More about that later.)

If circumstances require communicating about city business on a personal communication device or account, that correspondence should be forwarded to a city account, the policy states.

However, the policy grants employees permission not to forward communications if they personally determine that “there is no administrative value in retaining the communication.” This determination is supposed to be made by employees after consulting the “applicable records retention schedule.”

The “Administrative Value retention period” is defined in the Bulletin as “generally associated with routine or administrative business documents. The retention period is tied to the usefulness of the records for the conduct of current or future administrative business.”

The employee communication policy applies to, but is not limited to, e-mail messages, text messages, images, and attachments.

Joe LarsenJoe Larsen, a volunteer hotline attorney with the Freedom of Information Foundation of Texas and last year’s recipient of the foundation’s prestigious James Madison Award, is an expert in the state’s open government laws. Larsen praised the city manager’s policy and pointed out some improvements that could be made.

“I’ve never seen any other city in Texas with a policy that would require a city employee to forward electronic communication from a personal account,” said Larsen, special counsel to the Houston-based international law firm of Sedgwick, Detert, Moran and Arnold LLP. “I would have to go on the record in saying I think it’s a good-faith effort to address a complicated problem.”

Is the City of Austin unique in adopting such a policy? The Austin Bulldog sought a comment from Bennett Sandlin, executive director of the Texas Municipal League. The TML website states the organization has more than 1,100 member municipalities, including 34 with a population of 100,000 or more.

Sandlin replied via e-mail, stating, “I’m not going to comment on a specific member city issue.”

Sandlin has, however, previously commented for publication concerning the issue at hand. An e-mail attributed to Sandlin was quoted in a January 12 Texas Watchdog article. Sandlin’s e-mail acknowledged that “...public business e-mails on private accounts are indeed public information.”

Larsen and three other attorneys who are experts in the state’s open government laws say the city manager’s policy for employee communication is flawed and raises serious issues about whether the policy will bring the City of Austin into compliance with the Texas Public Information Act.

Flaws in Ott’s policy

City E-mail Policies Still Not Implemented

Posted Wednesday, July 13, 2011 4:30pm
City of Austin Dragging Its Feet on
Implementing Lawful E-mail Practices

City Employees, Board and Commission
Members Still Not Covered by City Policies

by Ken Martin
© The Austin Bulldog 2011

Nobody knows how many e-mails that constitute public records are escaping collection and retention for public disclosure while the City of Austin delays implementing policies ordered by the city council in its April 7 resolution. (See The Austin Bulldog’s April 15 report.)

It’s possible that thousands of e-mails that are public records may have been exchanged without copies being retained as required by the Texas Public Information Act and the Local Government Records Act.

Today, more than three months after the council voted unanimously to pass the resolution, no policies have been enacted to require retention of e-mails about city business that the city’s 12,000 employees and 365 board and commission members send or receive on their personal e-mail accounts.

As a result, government in the shadows continues unabated.

Bill AleshireAttorney Bill Aleshire of the Austin law firm Riggs Aleshire and Ray PC, who is The Austin Bulldog’s attorney in its lawsuit concerning the city’s violations of the Texas Public Information Act, said of this lack of progress, “The first mistake the council made was being suckered by the city attorney into believing the council cannot make policy that applies to all city employees.

“The second mistake was not recognizing that any record made or received in the transaction of city business should have been included in the city’s record and be subject to disclosure under the Texas Public Information Act,” he said.

The lack of e-mail policies to address communication about city business on personal devices has persisted for many years—even for the mayor and council members. The council resolution established a new policy for the mayor and council members, and the handful of employees that the council directly hires: the city manager, city clerk, city auditor, chief judge of the municipal court, and municipal court clerk.

The city council resolution also tasked City Manager Marc Ott with developing a policy that applies to city employees, and City Clerk Shirley Gentry with developing a policy for members of sovereign boards and commissions. The council asked for progress reports within 30 days.

In response to three separate open records request for copies of the city manager and city clerk’s progress reports, and an interview, The Austin Bulldog obtained the following information:

City manager’s report

2009 Austin City Council E-mails

Posted Wednesday, July 6, 2011 7:03pm
Updated July 6, 2011 10pm
Updated July 7, 2011 at 11:05am to correct for Chris Riley
Updated 12 noon July 7, 2011 to correct for Randi Shade

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

Investigative Report by Ken Martin
© The Austin Bulldog 2011

Randi ShadeKathie TovoThe schisms within the Austin City Council that surfaced during the runoff election between incumbent Council Member Randi Shade and challenger Kathie Tovo were a revelation, as the other incumbents split evenly in lining up to support Shade or Tovo.

Such passionate and public election advocacy among sitting council members is rare, if not unprecedented. The election outcome created deep political wounds in need of healing, not only for personal relations among council members but also for making good public policy when the council’s summer hiatus is over in three weeks.

The thousands of e-mails written in 2010 and January 2011 obtained through open records requests and The Austin Bulldog’s lawsuit, published May 12, foreshadowed some of the differences that surfaced in this runoff election. But the e-mails exchanged by council members in 2009, published here, show the roots of dissent among council members goes back much further.

The latest batch of more than 2,400 e-mails obtained through an open records request raise new issues—not only for what these e-mails reveal, but also because of what was withheld.

Some of these records show council members communicated among themselves about city business in numbers equaling or exceeding a quorum, a possible violation of the Texas Open Meetings Act.

Some of the council members also deliberated through their private e-mail accounts about a $250 million city project that was under consideration.

As for what was withheld, two (not four, as first reported) council members failed to provide copies of e-mails about city business conducted on their personal e-mail accounts during calendar year 2009: Sheryl Cole and Mike Martinez. (Deleted Chris Riley and Randi Shade.)

To withhold private e-mails about city business flies in the face of at least four open records opinions issued by the Texas Attorney General, which state that e-mails about government business that were created or received on personal accounts are public records (OR2003-0951, OR2003-1890, OR2005-01126, OR2005-06753) and thus are subject to release under the Texas Public Information Act.

As reported March 2, The Austin Bulldog filed a lawsuit against the mayor, council members, and City of Austin because of the failure to release copies of personal e-mails about city business exchanged by the city council during calendar year 2010 and January 2011. As a result, the mayor and council members eventually relented and released at least some of those e-mails.

For e-mails sent or received in 2009, Mayor Lee Leffingwell and Council Members Laura Morrison, Chris Riley, and Randi Shade released personal e-mails about city business and Council Member Bill Spelman released city business e-mails from his University of Texas account. As in the earlier releases forced by the lawsuit, the city characterized these actions as being voluntary. (Update July 7, 2011: Click here to see the cover letter provided by the City of Austin that accompanied the 2009 e-mails released by the city.)

The bottom line is the other city council members continue to take the position that they need not turn over e-mails about city business conducted on personal accounts. This position is inconsistent with the e-mail policy the city council adopted in an April 7 resolution that applies going forward. (See The Austin Bulldog report of April 15.)

Personal politics trump public policy

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.

Bulldog Files Civil Complaint Against City

Posted Wednesday March 23, 2011 4:54pm
The Austin Bulldog Files Civil Complaint
Against City of Austin and Council Members

Travis County Attorney David Escamilla
Has Legal Authority to Force Compliance

by Ken Martin
© The Austin Bulldog 2011

David EscamillaThe Austin Bulldog today filed a formal complaint with Travis County Attorney David Escamilla against the City of Austin and Austin City Council members pursuant to Section 552.3215 of the Texas Public Information Act (TPIA), Chapter 552 of the Government Code.

This complaint, which is civil in nature, not criminal, requests that Escamilla use his authority to determine if the City of Austin and its officials have violated the TPIA as alleged in the complaint.

If Escamilla finds that violations have occurred, the complaint asks that he seek a court order requiring the city, council members and staff to comply with the Act. He has the authority to bring a lawsuit in the name of the State of Texas for declaratory judgment and injunctive relief that is in addition to any other civil, administrative, or criminal action.

Escamilla declined to comment about the complaint.

Filing the complaint initiated a statutory process, detailed in Section 552.3215(g) of the TPIA, that by law requires Escamilla before the 31st day after the complaint is filed (in this case before April 23) to determine whether the violation alleged in the complaint was committed and whether an action will be brought against the governmental body, and to notify the complainant in writing of his determination.

Complaint separate from lawsuit

Spelman’s City E-mails on UT Account Will Not Be Provided

Posted Friday, March 18, 2011 11:21am
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

by Ken Martin
© The Austin Bulldog 2010

Bill SpelmanProfessor William “Bill” Spelman of the LBJ School of the University of Texas at Austin, today told The Austin Bulldog that he “occasionally” uses his university e-mail account for sending and receiving messages that involve his duties as an Austin City Council member.

The Austin Bulldog filed an open records request with UT Austin yesterday to obtain copies of Spelman’s e-mails from his university account that involve his work as a city council member.

Those records will not be made available. The university will instead seek an opinion from the Texas Attorney General, said open records coordinator Annela Lopez, who works in the office of Kevin Hegarty, vice president and chief financial officer of UT, who is the university’s custodian of records. Based on previous requests for e-mails created or received by faculty members that do not involve their duties as university employees, it’s unlikely that the attorney general will order Spelman’s e-mails involving city business to be released.

“We need to let this play out through the attorney general,” Lopez said.

The City of Austin previously declined to provide copies of e-mails the mayor and council members sent or received about city business on their personal computers or cell phones. UT’s policy adds to the problem of obtaining records under the Texas Public Information Act that are created or received on other than City of Austin accounts.

What we have here is not a “failure to communicate,” as the Captain tells Luke and other road-gang prisoners in the 1967 movie Cool Hand Luke, but a failure by the City of Austin to ensure that communication created or received by city officials—which by definition are “local government records”—are stored and maintained in accordance with the Local Government Records Act so those records will be available upon request under the Texas Public Information Act, Chapter 552 of the Texas Government Code. That's the law that gives everyone—not just journalists—the right to find out about the workings of government.