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
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
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—laid 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.
As reported April 9, six of the seven council members recently turned over e-mails and/or text messages about city business that were created or received on personal communication devices, and Council Member Bill Spelman turned over a few e-mails about city business that were channeled through his University of Texas account (but no e-mails or text messages from personal accounts).
The release of 266 pages of e-mails and text messages for communication among the mayor and council members released last Friday, April 8, exposed an ongoing pattern and practice in which these elected officials deliberately communicated through private accounts to escape public scrutiny—particularly about matters that were deemed sensitive.
These sensitive matters include deliberations about the KeyPoint Report and proposed settlement for the death of Nathaniel Sanders II; keeping Council Member Sheryl Cole in line to vote for Water Treatment Plant 4; a possible new tax that could help with the Austin Independent School District’s budget problems; evaluating the performance of City Manager Marc Ott; cutting funding for economic growth programs; and a City Charter change to have the city attorney work for the council instead of the city manager.
The release of these communications was characterized in various press releases as purely voluntary. The answers to the lawsuit, written by attorney James E. “Jim” Cousar of Thompson & Knight LLP, state, “As a result of City of Dallas (lawsuit) the law in Texas on whether e-mails related to public business on personal electronic devices is or is not ‘public information’ remains unsettled.”
Attorney Bill Aleshire of Riggs Aleshire and Ray PC, who represents The Austin Bulldog in this lawsuit, said, “As an attorney who practices in this area of law, I disagree that the laws is as unsettled as the city officials claim. The Attorney General has consistently ruled for years that public records—including those hidden on personal e-mail accounts, exactly like The Austin Bulldog requested—must be turned over to a requestor. The Dallas Morning News case did not consider the issued raised by The Austin Bulldog’s lawsuit: that the city owns these ‘local government records’ created by council members and city staff, and therefore they are subject to disclosure under the Texas Public Information Act.”
New policy adopted
Hiding the city’s local government records that ought to be available under the Texas Public Information Act from public scrutiny is a problem that extends beyond these elected officials and includes all city employees who create or receive communications about city business on personal devices.
To address that loophole, last Thursday the city council voted 7-0 to adopt a resolution to establish a policy that requires city e-mail accounts to be the primary means of communicating about city business. If circumstances require a city official or employee to conduct business on a non-city account they are to promptly forward that communication to a city account, so that it will be available upon request under the Texas Public Information Act.
Initially the new policy applies only to the mayor, city council members and the city employees directly appointed by the city council: the city manager, city clerk, city auditor, chief judge of the municipal court, and municipal court clerk. The city manager and city clerk, respectively, must develop policies for the city employees and members of sovereign boards and commissions.
Legal technicalities in play
The answers to the lawsuit state, “Plaintiff has not alleged a personal stake in the city’s administration of its records management policies sufficient to establish standing for the relief requested under LGRA (Local Government Records Act).”
“The Austin Bulldog has a personal stake,” Aleshire replies, because The Austin Bulldog requested records exercising its statutory rights under the Texas Public Information Act.
“The city also mischaracterizes The Austin Bulldog’s claim by saying The Austin Bulldog wants to tell the city how to keep its records,” Aleshire said.
“This is not what the lawsuit seeks; the lawsuit merely asks for an order that requires the city to exercise its ownership rights over these public records and turn them over to be available under the Texas Public Information Act.
“Section 552.002 of the Act defines ‘public information’ to include information collected, assembled or maintained ‘for a governmental body, and the governmental body owns the information or has a right of access to it.’ The Local Government Records Act says the government owns the records—not the employee who created them.”
The other responses
The responses of the other city council members to this lawsuit are essentially the same as the mayor’s response, and may be accessed by clicking on their names, as follows:
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