In Sharp Contrast to Resistance by the City of Austin, Capital Metro
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.
Commissioners proactive responses
The Austin Bulldog canvassed all five members of the Travis County Commissioners Court via e-mail, asking two questions:
Private e-mails—“Will you follow the City of Austin’s lead by refusing to provide e-mails that deal with county business generated on your private e-mail accounts and personal computer, or will you release those records to the press?”
Timely release—The City of Austin took 33 days to respond to The Austin Bulldog’s open records requests for e-mails sent to other council members or received by other council members. How long do you anticipate it will take you to respond to the Statesman’s request for those records?”
Here are the responses:
County Judge Sam Biscoe—“I understand that business public business e-mail on a private account is still public and should be made available in response to an open records request,” Biscoe replied March 10. “I do not use a personal computer and have no e-mail—neither public nor private—on one. However, if I had a personal computer with county related e-mail on it, I would turn all of it over.”
Precinct 1 Commissioner Ron Davis—“I believe that public e-mails sent from private e-mail accounts are public open records. However, I do not use a private e-mail account for any purpose related to public business and so have no information that would be responsive from any such account,” Davis replied March 11.
Precinct 2 Commissioner Sarah Eckhardt—“As a general rule, I forward to my work account all gmail e-mails I receive that are relevant to county business. To the extent that I have deviated from that rule (due to oversight), I will certainly provide them as well,” Eckhardt replied March 11.
Precinct 3 Commissioner Karen Huber—“As I interpret the Texas Public Information Act, and based on my state-provided training, I understand that it is my responsibility to search for any responsive public e-mails sent from my private e-mail account and provide them to the requestor, to the extent there are any,” Huber replied March 11.
Precinct 4 Commissioner Margaret Gomez—“It is the position of the County Attorney’s office that public business on private computers and phones is open to the public,” Gomez replied March 10. “I have also learned this from attending conferences that address ethics issues….”
All five commissioners court members stated they were working to meet the March 17 deadline for providing their e-mails within the time limits required by law.
Former Travis County Judge Bill Aleshire—an attorney with Austin-based Riggs, Aleshire and Ray P.C. who is representing The Austin Bulldog in its lawsuit against the City of Austin—noted that the Commissioners Court has the advantage of getting its legal advice on the Texas Open Meetings Act and Texas Public Information Act from the County Attorney’s office—the same office that prosecutes violations of those laws.
“All members of the commissioners court understand that public business on personal e-mail accounts is public information—and they aren’t going to take 33 days and charge more than $1,000 dollars for it,” Aleshire said, referring to the time it took the city to respond to The Austin Bulldog’s request, and the charge made for it. “Maybe the City Council members ought to hang out more with county officials so they understand the duty of open government.”
The story about the city council’s violations of the Open Meetings Act was broken by The Austin Bulldog on January 25. Travis County Attorney David Escamilla issued a statement that day to say he was making an inquiry into the matter.
As reported by The Austin Bulldog February 7, the City of Austin hired three private attorneys at a cost of up to $53,000 each for advice on how to respond to the county attorney’s inquiry into violations of the Texas Open Meetings Act. Those attorneys are James E. “Jim” Cousar of Thompson & Knight LLP, C. Robert “Bob” Heath of Bickerstaff Heath Delgado Acosta LLP, and Randy T. Leavitt of the Law Office of Randy T. Leavitt.
One of those attorneys, Jim Cousar, is also representing the city in The Austin Bulldog v. Lee Leffingwell, et al.
Capital Metro has hired Heath and Leavitt to provide advice about the pending open records requests and met with them for two hours last Friday, the Statesman reported Saturday.
Cousar and Acting City Attorney Karen Kennard briefed the City Council on open government issues in a public work session last Tuesday. (To watch the video of that briefing click here.)
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