Private E-mails About City Business

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Jim Cousar
Jim Cousar

Private E-mails About City Business May Be Pulled Into City of Austin Records Retention

City Council Votes to Consider Policy Draft at Council Meeting of April 7

The Austin City Council voted 6-0 this morning, with Council Member Bill Spelman absent, to direct city staff to draft a new policy that would require designated city officials to ensure that e-mails pertaining to city business that are created or received on personal devices would be copied to the city’s e-mail servers so these messages would be available to a requestor under the Texas Public Information Act, Chapter 552 of the Government Code.

Jim Cousar
Jim Cousar

The draft policy is to be placed on the April 7 City Council meeting agenda for discussion and possible adoption. Which city officials would be included in such a policy will be discussed at that meeting, but attorney James C. “Jim” Cousar of Thompson & Knight LLP, told the council that requiring all city employees to do so would be “difficult, expensive, and unworkable.”

Cousar suggested that guidance should be provided to anyone made subject to such a policy about what constitutes an e-mail that must be retained by the city vs. a personal e-mail that does not. He also noted that e-mails from personal devices that are forwarded to city e-mail servers would be subject to the exceptions set forth in the Texas Public Information Act that bar release of certain sensitive documents in response to an open records request.

A important question that was not addressed in today’s work session is what penalty, if any, would apply to violators of whatever new policy is adopted.

Lawsuit issues not addressed

No mention was made of the lawsuit filed March 1, The Austin Bulldog v. Mayor Lee Leffingwell et al. That lawsuit seeks, among other things, a permanent injunction to require the mayor and council members (and 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 computers or phones.

Bill Aleshire
Bill Aleshire

Attorney Bill Aleshire of Riggs Aleshire and Ray PC, who represents The Austin Bulldog in this lawsuit, reacted to the idea of not including all city employees in any policy adopted by the council by saying, “I do not believe the law permits any government official or employees to conceal government records by using their personal e-mail addresses to create or receive such government correspondence. Local Government Code, Section 201.003(8) defines a ‘local government record’ to include any record created or received by a local government or any of its officers or employees…in the transaction of public business.

“The reforms being considered by the Austin City Council suggests that they can exempt certain city employees from the requirement that all government records be maintained and subject to the Texas Public Information Act,” Aleshire said. “Why would the Austin City Council members think they can adopt policies that still violate the law?

“When the council meets to consider its new policy on transparency, they should ask themselves: “How much secret operation of city business will we permit? The answer should be none, not some,” Aleshire said.

Spelman releases UT e-mails

Bill Spelman
Bill Spelman

Early this evening Council Member Bill Spelman released three e-mails he has exchanged with other council members using his University of Texas e-mail account. On March 18 The Austin Bulldog reported that the university intended to seek an attorney general’s opinion about Spelman’s e-mails for city business that used his university account.

Spelman is the first and only council member to break ranks and voluntarily release e-mails requested by The Austin Bulldog under the Texas Public Information Act that were not retained within the city’s communication system.

The three e-mails Spelman released are as follows:

• August 12, 2010, concerning the state’s study of the effects of Formula One on the Texas economy.

• September 30, 2010, concerning outcomes pertaining to a request for proposals. It is not clear to which RFP this e-mail pertains.

• January 20, 2011, concerning assistance the city might provide to the Austin Independent School District, in connection with AISD’s budget cuts. This e-mail was originated by Susan Moffat, and states, “In what’s probably an excess of caution, I’m sending this to Bill (Spelman) and Laura (Morrison’s) personal e-mail accounts, not the city ones. Laura/Bill, I’ll let you decide how best to get it to Bobby, Barbara, Mark N and other appropriate staff.”

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