City Manager Establishes Policy for Employees’ Electronic Communications
Open Government Legal Experts Say Policy Is Seriously Flawed, But It’s an Important Start
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
Larsen said the city manager’s policy “is not perfect, but I think it’s a strong effort. Timeframes probably ought to be written into this,” he said. “What happens if, for example, the city receives a Public Information Act request to which a document would be responsive and the person responsible has not forwarded it to the city for retention?”
That concern was echoed by another attorney, 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.
“If an employee is allowed to hang onto a document for weeks or a month or whenever you deem appropriate, or after the next election, until the document becomes irrelevant, that doesn’t do the public much good,” White said.
“It’s really a question of law whether a document should be retained,” White said, “and it should not be up to the discretion of a city employee.”
FOIFT hotline volunteer attorney Thomas Gregor of the Houston law firm of Ogden, Gibson, Broocks, Longoria and Hall LLP, said this policy gives employees too much latitude.
“I’ve read the Bulletin,” Gregor said in an e-mail. “Information relating to official business that is conducted on personal accounts is still public information. See OR 2005-06753,” the Texas attorney general’s open records decision of July 27, 2005.
“A policy allowing a City employee to conduct official business through a personal account, and then authorizing that same City employee to make an independent and unchecked determination on whether the communication has sufficient ‘Administrative Value’ to be disclosed to the public, is a policy ripe for potential error and abuse,” Gregor said.
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 over failures to comply with the Texas Public Information Act. (See March 2 story.) The lawsuit—which is still pending—addresses 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.
The lawsuit, which has not yet been tried, also asks the court to, among other things, “enjoin the Defendant Austin Mayor and City Council Members (their successors in office) and Austin employees from withholding local government records in the future—including those created or received by Austin officials or employees on their personal communication systems—from the Austin Records Management Officer.”
To withhold private e-mails about city business flies in the face of at least four open records opinions issued by the Texas Attorney General, which state that e-mails about government business that were created or received on personal accounts are public records (OR2003-0951, OR2003-1890, OR2005-01126, OR2005-06753) and thus are subject to release under the Texas Public Information Act.
Aleshire said, “It took the city manager four months to adopt for city staff the same policy the city council adopted—minus the requirement that e-mails on personal accounts be ‘promptly’ placed on city computers. That does not send a strong message that city management really respects the laws that guarantee access to public records.
“The policy also has no mechanism to prevent unlawful deletion of public records, instead leaving it up to each employee the unaudited choice to delete the e-mails the employee doesn’t want the public to see,” Aleshire said.
Attorney Joe Larsen echoed Aleshire’s concern, saying, “I think the city needs to set up some kind of audit regimen to make sure this policy is being followed.”
Aleshire said, “I’m glad to see Texas Municipal League admitting that public records cannot be hidden in private e-mail accounts (or, as Austin calls them ‘personal communication devices’). The energy should be devoted to the best technological way to comply with the Local Government Records Act and Texas Public Information Act, and make sure that public information is not withheld.
“The flip side of this is also important: unregulated, unaudited deletion/destruction of records with inadequate backup files to prevent the loss of public records. I’m dealing with a situation in Austin, where an employee double-deleted over 800 pages of e-mails—constituting every e-mail that she sent to individuals outside her department over the last year—with no IT backup to retrieve them. We knew there were some very controversial communications in those e-mails.
“When confronted, she said she deleted them because they were no longer needed for her to do her job; this is not a criteria in the records retention rules of the state or city. This case demonstrates how easy it is for an Austin employee to obliterate an entire year’s worth of public records.”
Is new policy enforceable?
The city manager’s policy is expressed in an Administrative Bulletin. These bulletins do not have the force of an ordinance adopted by the City Council that could include a criminal penalty for violations.
Neither is the policy included in the city’s “Personnel Policies” that are adopted by the City Council, and governed by Section 3 of Article IX of the City Charter.
What is an Administrative Bulletin?
Reyne Telles, the city’s media relations manager, said in an e-mail, “The City Manager issues Administrative Bulletins to city employees in order to clearly define policies and procedures city employees are expected to follow concerning various administrative matters.”
So, what is the penalty for an employee who violates the city manager’s new policy for electronic communications?
“There are a menu of options that can be utilized when a City employee is in violation of any policy. Examples of management’s action can include items ranging from placing the employee on a ‘Performance Improvement Plan’ to termination,” Telles said.
Council stalling on board and commission rules
The council resolution of April 7 ordered City Clerk Shirley Gentry to develop policies for electronic communications on city business conducted by city board and commission members.
As The Austin Bulldog reported July 13, City Clerk Shirley Gentry sent a May 16 e-mail to the mayor and council members that outlines three options for handling board and commission members’ communications. The e-mail recommended one of the options and stated, “Please let me know how you would like to proceed from here.”
To read Gentry’s recommendations, click here.
In the July 13 report, 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. To date, no action has been taken.
It’s been more than four four months since the council voted unanimously to pass the resolution.Until the council instructs the city clerk how to proceed, the 367 people currently serving on the city’s 55 boards and commissions 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.
On August 8, The Austin Bulldog e-mailed the mayor, every council member, and their aides to ask when the council will put this matter on the agenda for possible action.
Not one of the council members or their aides has replied.
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