Public Information

As reported March 2, The Austin Bulldog filed a lawsuit against the mayor, each city council member, and the City of Austin over the city’s decision to withhold certain government records—including records involving public business that were created or received on the mayor or council members’ cell phones or personal computers or the city’s Spark chat system.

The lawsuit claims that council members have violated records management laws by not turning these records over to the city so that the city can comply with the Texas Public Information Act.

On March 4, The Austin Bulldog’s attorney, Bill Aleshire of Riggs Aleshire & Ray PC, submitted a settlement offer to the attorney handling the lawsuit for the city, James E. “Jim” Cousar of Thompson & Knight LLP.

“The Austin Bulldog seeks to help the City of Austin become the shining beacon of open government in Texas,” the settlement offer states. “An important first step in that process is for Austin officials to stop communicating about city business in ways that avoid application of the Texas Public Information Act to such correspondence.”

The settlement offer expired at 5pm today. No defendant accepted the proposed terms. Fifteen minutes before the offer expired, Cousar spoke with Aleshire on the telephone.

“He (Cousar) told me that six of the seven members of the council and the City of Austin respectfully decline the offer to settle,” Aleshire said. “I told him we would respectfully proceed with the lawsuit.”

Settlement offer conditions

Professor 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.

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.

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