City of Austin Dragging Its Feet on Implementing Lawful E-mail Practices
City Employees, Board and Commission Members Still Not Covered by City Policies
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:
Ott’s one-page May 17 memorandum states, “…I intend to immediately implement an Administrative Bulletin that addresses the use of personal communication devices for City business.”
Yet more than 60 days after Ott’s commitment to take immediate action, the manager has not implemented a policy.
The city refused The Austin Bulldog’s open records request for a copy of Ott’s Administrative Bulletin and instead submitted a June 28 letter to Texas Attorney General Greg Abbott seeking permission to withhold that record. The letter cites Section 552.111 of the Government Code as authority: “An interagency or intraagency memorandum or letter that would not be available by law to a party in litigation with the agency is excepted from the requirements of Section 552.021.”
The Austin Bulldog filed a lawsuit March 1 against the mayor, council members, and City ofAustin for violations of the Texas Public Information Act. (See March 2 report.) That lawsuit is still pending.
The city’s request for an attorney general’s opinion also characterized the manager’s Administrative Bulletin as a preliminary draft, not intended for public release until it takes final form.
The refusal to supply the manager’s Administrative Bulletin raises the question: Has the city manager implemented an e-mail policy for city employees?
The short answer is no, he has not.
“The matter is currently under review by the Law Department,” said Reyne Telles, the city’s media relations manager.
Until such a policy is put into practice the city’s 12,000 employees can continue to do city business on private e-mail accounts and it’s unlikely those e-mails will be discovered through an open records request.
Attorney Aleshire said, “The third, and worst, mistake the council made was permitting the city manager to stall for more than three months in implementing any policy to stop secret transaction of city business.
“The fourth mistake the city has made is in continuing to be so secretive about this that they won’t even give The Austin Bulldog a copy of the draft policy the city manager is belatedly working on.”
City clerk’s report
Shirley Gentry’s three-page, May 16 e-mail to the council outlines three options and recommends one of them that would apply to all boards and commissions—not just “sovereign” boards and commissions, which are bodies that can take an official government action, such as issuing a permit or granting a variance, even if that action can be appealed. Among the boards and commissions classified as sovereign are the Planning Commission, the Zoning and Platting Commission, the Board of Adjustment, and many others.
Gentry recommended Option B, which would require board and commission members to forward e-mails about city business that they send or receive on personal communication devices to the city liaison employee for their respective board or commission. The liaison would be designated the official custodian of records and responsible for determining what needs to be retained, for how long, and the best method of retention.
Now, nearly two months after Gentry submitted her report and asked the mayor and council to “Please let me know how you would like to proceed from here,” no action has been taken. Telles said the council will have to post this matter on a future council agenda for action and there is no indication of when that might happen. The city council is currently taking a summer hiatus and its next meeting is scheduled for July 28. No agenda for that meeting has been published.
Until the council instructs the city clerk how to proceed, the 367 people currently serving on the city’s 55 boards and commissions—like the city’s employees—can continue to do business on personal e-mail accounts with no controls in place to collect, assemble and maintain those records to be available in response to an open records request.
Making the records retention problem for board and commission members even worse is the fact that—unlike city employees—these citizen volunteers have never been issued city e-mail addresses. The city lists the personal e-mail addresses of these volunteers on the city’s web pages for each board and commission—and thus actively encourages the public to contact these appointed members for city business via their personal e-mail addresses.
Gentry’s two other options for board and commission members are to:
Cease communicating—Under this scenario, members would avoid all forms of written communication related to city business, in which case the city would stop publishing their personal e-mail addresses. “However, this policy could not be monitored for compliance and would not assist the city in responding to open records requests if a board member violated the policy. Further, it may frustrate citizens that they have no way to contact board members.”
Divide sovereigns from others:
• Sovereign bodies—This option would mirror the procedures the council adopted for its own members. The city would issue city e-mail accounts for members of sovereign boards and commissions for conducting city business; communication about city business on personal accounts would be forwarded to city servers for retention; and exceptions to disclosure available under the Texas Public Information Act would be preserved.
The city estimated the cost of this option at $1,400 per user for remote access to city servers plus $1,000 per user for help-desk support. At $2,400 for each of the 116 members of sovereign boards and commissions, the cost would total $278,000. The help-desk cost estimates were based on an industry standard, but there would be no need to hire additional staff.
• Non-sovereigns—Members of these boards and commissions would forward city-related e-mails to the city staff liaison, who would become the custodian of records. This is the same system that Gentry ultimately recommended for all boards and commissions, in lieu of issuing city e-mail accounts.
Keith Elkins, executive director of the Freedom of Information Foundation of Texas, said “Unfortunately, these continued delays and failure to enact a clear policy, or behavioral blueprint for city employees and officials to follow state public information laws, indicates a business-as-usual approach when it comes to transparency at Austin City Hall: give it lip service publicly when the cameras are running and do little, or nothing, privately when no one is looking.
“It’s the taxpayers that are being kept in the dark and being denied an opportunity to fully scrutinize how their elected representatives are conducting public business,” Elkins said. “And, until the taxpayers who are also voters send a strong message demanding change, or city officials are ordered by a judge to do something differently, this status-quo mentality is likely to continue.”
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