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.
“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.
Employees’ Electronic Communications
Open Government Legal Experts Say Policy
by Ken Martin
© The Austin Bulldog
City 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 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
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.
Attorney 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:
Open Record Requests for E-mails
In Sharp Contrast to Resistance
by the City of Austin, Capital Metro
by Ken Martin
© The Austin Bulldog 2011
The clear leader in local government transparency at the moment is the Travis County Commissioners Court, whose members have unanimously said they would provide e-mails involving public business requested by the Austin American-Statesman and other news organizations—including those sent or received on personal e-mail accounts.
Not so with the City of Austin and Capital Metro. These agencies are using the public treasury to commit to spending as much as $250,000 for the purpose of getting advice about how to deal with violations of the Texas Open Meetings Act and resisting disclosure of records that should be available upon request under the Texas Public Information Act.
On March 1, The Austin Bulldog sued the mayor, each council member and the city over the refusal to turn over e-mails concerning city business that were generated on personal computers or cell phones, as requested under the Texas Public Information Act. That lawsuit, which also seeks a permanent injunction to require all communications involving city business be retained and made available upon request under the Texas Public Information Act, is pending. The city has until April 4 to file a response.
Capital Metro is following the city’s example by announcing last Friday it would release some of the e-mails requested by the Austin American-Statesman and other media, and not saying whether it would release board members’ e-mails about Capital Metro that were created or received on private accounts.
Commissioners proactive responses
Compel Compliance with the Law
Mayor and City Council Members Not in Compliance
with Statutes for Public Information, Records Retention
by Ken Martin
© The Austin Bulldog 2010
The Austin Bulldog electronically filed a lawsuit in state district court last night to sue the mayor and each council member in their individual capacity, and the City of Austin, for failure to promptly and fully respond to The Austin Bulldog’s requests filed under the Texas Public Information Act (TPIA), Chapter 552 of the Government Code.
The city’s decision to withhold certain government records—including records involving public business that were created or received on the mayor and council members’ cell phones or personal computers—lays bare a major problem preventing citizens from obtaining complete information about the affairs of government: To withhold records created or received on officeholders personal computers and cell phones is to effectively gut the Texas Public Information Act. To allow this to stand would amount to an open invitation for city officials and employees to conduct business in the shadows.
Withholding these public records from disclosure as requested by The Austin Bulldog on January 19, 2011, and January 27, 2011—and doing so without seeking an Attorney General’s opinion—only adds to the city’s previously reported problems in governmental transparency, evidenced by The Austin Bulldog’s story published January 25, which exposed the ongoing violations of the Texas Open Meetings Act, Chapter 551 of the Government Code.
Further, The Austin Bulldog’s lawsuit asserts there is evidence that one or more Austin officials deliberately use their private e-mail accounts to try to keep substantive communications about city business from being available through the city’s computer servers.
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. This e-mail discussion obviously concerns important public business, as those subsidies amounted to anywhere from $25 million to more than $60 million, depending on whose figures you believe.
Records retention paramount