Employee E-Communication Policy Drafts Show Each Revision Weakened Rules
Policy That Was Near Fully Compliant on First Draft Crippled by Changes
A policy to ensure the City of Austin’s 12,000 employees comply with state law for retention of public records went from being a fully compliant initial proposal to an implemented policy that falls woefully short of compliance, say experts in the state’s open government laws.
The Austin Bulldog reported August 10 on the new policy established by Austin City Manager Marc Ott to guide city employees in how to handle electronic communications about city business. The policy states if circumstances require communicating about city business on a personal communication device or account, that correspondence should be forwarded to a city account.
Flaws in the policy include not stating that the correspondence should be forwarded promptly and leaving it to the discretion of each employee to decide whether the correspondence needs to be forwarded for retention. The policy lacks any means of preventing unlawful deletion of public records or auditing compliance.
Through an open records request The Austin Bulldog obtained two draft versions of the Administrative Bulletin that was ultimately issued August 4 by the city manager. The drafts, dated June 1 and June 15, when compared to each other and the bulletin issued, show how the proposed policy was gutted.
Four experts in the state’s open government laws who are volunteer hotline attorneys with the Freedom of Information Foundation of Texas reviewed the two drafts and the Administrative Bulletin provided by The Austin Bulldog.
“This is a drastic watering down of a policy that was originally intended to comply with the law and provide transparency in government,” said Joel White of the Austin law firm Joel R. White and Associates. He is a past president of the Freedom of Information Foundation of Texas and has represented a wide range of media clients for more than two decades.
Thomas Gregor of the Houston law firm of Ogden, Gibson, Broocks, Longoria and Hall LLP, said in an e-mail, “As originally drafted, the policy better adheres to the tenets and the spirit of open government. Unfortunately, the policy that was ultimately issued was diminished to the point that, while paying lip service to open government, does not ensure or verify the retention of any public information that is generated on a personal device.
“The end result is that there remains a significant gap in the City’s compliance with the open government laws,” Gregor said.
Joe Larsen, special counsel to the Houston-based international law firm of Sedgwick, Detert, Moran and Arnold LLP, said in an e-mail, “I think the policy has been significantly weakened by giving department directors complete latitude to determine how the policy is communicated and not requiring documentation that each employee has received and has access to the information in the bulletin. This will have two likely results:
“First, instead of a formal meeting where the importance of the policy is explained and underscored, any manner of delivery is envisioned. Without a formal setting, the importance of the policy will not be conveyed.
“Second, without a roster or verification, there will be no incentive to insure that the policy is timely communicated and no way of verifying if it has. An employee is very likely to state that he/she was unaware of the policy.
“It is this very issue—claims of lack of knowledge of proper policy—that led to the implementation of required training for public information officers of governmental bodies on the Public Information Act. These officers must have a certificate indicating that they took the required training.
“By requiring employees to forward their administrative value communications to a City account, the City has effectively made each employee the public information officer for his/her personal communication device accounts, and the communication of this policy should also be in a formal setting and it should be documented.”
From must forward—The June 1 draft states “If circumstances require employees to use personal communication device accounts to communicate regarding City business, the communications, which include but are not limited to e-mail messages, text messages, images and attachments, must be forwarded to city accounts.” (Emphasis added.)
To should forward, unless—The August 4 Bulletin substitutes, “…should be forwarded to City accounts, unless there is no administrative value in retaining the communication.” (Emphasis added.) The direct order plainly stated in the June 1 draft became a matter left to the discretion of the individual employee.
From create a training record—The June 1 draft states, “Each department director should ensure that all staff are trained on this bulletin and retain the applicable roster associated with this training session.” (Emphasis added.) The June 1 draft also provided a form to record the roster of employees who attended each training session on city electronic communication.
To pass the word—The August 4 Bulletin substitutes, “Department Directors should ensure that this administrative policy is communicated to all department employees and have latitude to decide how the communication should occur (department meeting, training, supervisor meetings, etc.).” The August 4 Bulletin deleted that form.
Bill Aleshire of the Austin law firm Riggs Aleshire and Ray PC, is The Austin Bulldog’s attorney in its lawsuit filed March 1 against the mayor, city council members and City of Austin, and a second lawsuit against the City of Austin filed September 1. Both lawsuits involve lack of compliance with the Texas Public Information Act. (See The Austin Bulldog stories of March 2 and September 1.)
“They moved from a mandatory (“must”) personnel standard for which employees who violate it could be disciplined, to a standard that is merely advisory (“should”) standard, leaving some doubt as to what, if any, discipline would be imposed on an employee who violates the standards,” Aleshire said in an e-mail.
“In the meantime, the revised final standard increases the odds that ‘public records’ will be concealed from public disclosure,” Aleshire said.
This report was made possible by contributions to The Austin Bulldog, which operates as a 501(c)(3) nonprofit to provide investigative reporting in the public interest. You can help to sustain The Austin Bulldog’s reporting by making a tax-deductible contribution.