Litigation Challenges Open Government Laws
Attorneys criticize criminal penalties and public
access to elected officials’ private e-mail accounts
Part 3 of a 3-Part Series
by Ken Martin
© 2013 The Austin Bulldog
Posted Wednesday, April 24, 2013 2:00am
The audience was indeed sparse but two lawyers were nonetheless passionate in addressing what they perceived to be improper actions by the Texas Attorney General in how his office enforces the Texas Public Information Act and how prosecutors enforce the Texas Open Meetings Act. Both attorneys have fought what so far have been losing battles in court over these issues.
A third attorney on the panel titled “Open Government: Litigation Developments” (click the link to watch the video) provided an analysis of the inconsistencies in decisions rendered by Texas courts with respect to how the Texas Public Information Act applies to the ability of requestors to obtain records involving public-private partnerships.
Jacqueline CullomAfter being introduced by Assistant City Attorney Jacqueline Cullom at the City of Austin’s Open Government Symposium held April 17 at City Hall, these attorneys individually provided their interpretations of how the Act plays out in actual practice.
Criminal penalties unnecessary, McKamie argues
Mick McKamieAttorney Mick McKamie of the San Antonio-based firm McKamie Krueger LLP (with offices in Austin, Dallas, and Laredo) led off the discussion. He was co-lead counsel in the plaintiff’s appeal in Asgeirsson el at v. Abbott (No. 11-50441) that was recently denied a hearing by the U.S. Supreme Court.
That case involved 15 elected officials who contend the Texas Open Meetings Act’s criminal penalties established in Government Code Section 551.144 (for knowingly participating in a closed meeting that is not permitted) violate the officials’ First Amendment rights. The possible punishment includes a fine of $100 to $500, confinement in the county jail for not less than one month or more than six months, or both the fine and confinement.
(Although the case did not involve Government Code Section 551.143, that section prescribes the same criminal penalties for knowingly engaging in a conspiracy to circumvent the Texas Open Meetings Act by meeting in numbers less than a quorum for secret deliberations. This is the section of the Act under which Travis County Attorney David Escamilla investigated the Austin City Council, resulting in the mayor and council members signing deferred prosecution agreements to avoid being charged and tried for the offenses. Ultimately the city paid more than $157,000 in attorney fees to defend the mayor and council members.)
McKamie said that “municipal practitioners have universally felt” that the criminal penalties for violating the Texas Public Information Act “violates the First Amendment to the U.S. Constitution.”
To override the First Amendment rights of a public official, he said, the law must involve a compelling public interest and be the least restrictive means of achieving that interest.”
“Every state and the District of Puerto Rico have open meetings acts. Most are similar to Texas. Only 12 have criminal penalties. Few have the possibility of six months in jail,” McKamie said. “Our belief is the Texas Public Information Act cannot survive because (its penalty of possible jail time) is not least restrictive means of achieving the interest.”
“The Supreme Court denied our petition,” McKamie said, adding, “That doesn’t mean we’re not right.”
Hyde argues against release of e-mails on private accounts
George HydeNext up was Austin-based attorney George Hyde of Denton Navarro Rocha & Bernal PC, who represents Bexar County Commissioner Tommy Adkisson.
The lawsuit, Adkisson v. Abbott, No. 03-00535-CV, “challenges an attorney general letter ruling (OR-2010-08701) that e-mails from his private e-mail account relating to county business are public information. The trial court agreed (with the attorney general). The case in on appeal at the Austin Court of Appeals,” according to information published on the Texas Municipal League website.
Hyde said that no other state requires an attorney general to review information before it is released in response to a public information request; instead, government agencies are allowed to respond directly to requestors.
“In Texas you have to ask permission (from the attorney general) before you can give out records that are questionable,” Hyde said.
Bexar County’s response to the request for e-mails from Adkisson’s private account was that the agency had no legal access to those records, Hyde said. The attorney general’s opinion, however, said Adkission’s e-mails about public business on private accounts must be released. Adkisson sued and lost in the trial court’s decision.
Hyde argued there are other means of obtaining records from a public official.
He noted that Local Government Code Section 201.005 states that government officers or employees do not have a personal property right to a local government record even if they developed or compiled it.
Further, Local Government Code Section 202.005 allows a governing body to demand and receive any local government record in private possession and file a petition in district court if the record is not forthcoming.
Thus, Hyde argued, “The Legislature has already provided tools to local government. If a journalist knows there’s a record, he can disclose that information to the public agency and that agency can demand the record be turned over.”
“It’s not the attorney general’s position to make these decisions. That’s what’s missing from these cases,” Hyde said. “If you’re on a fishing expedition, don’s invade my privacy.”
Hyde concluded by saying that the attorney general is wrong in determining whether a record is public based on its content. He argues the sole determinant should be whether the record is collected, assembled or maintained by the government agency.
The fact remains, however, that courts have consistently upheld the Texas Public Information Act and the method by which it has been enforced by the Texas Attorney General.
The Austin Bulldog v. Mayor Lee Leffingwell et al filed March 1, 2011, involved the same issue: the mayor and council members, through the city’s Law Department, refused to turn over e-mails about city business exchanged on private accounts, and did so without seeking an opinion from the Attorney General.
In response to the lawsuit these officials turned over varying numbers of e-mails about city business from their private accounts. In addition, the City Council passed City of Austin Resolution For Use of Personal Communication Devices to require the use of city e-mail accounts for government business and when that is not possible to require e-mails about city business created or received on private accounts to be promptly forwarded to city accounts where those messages can be collected, assembled and maintained as required by the Texas Public Information Act.
Numerous Attorney General’s opinions—including the one issued concerning Commissioner Adkission’s private e-mails about Bexar County business—state that e-mails about government business exchanged on private accounts constitute public information, which must be released in response to a public information request, subject to the exceptions in the Act that permit information to be withheld.
As The Austin Bulldog’s lawsuit stated, to allow public officials to conduct government business on private accounts without disclosing those messages would be to gut the Texas Public Information Act and create an easy avenue for public officials to conduct public business in the shadows, and not in the sunshine.
No ‘bright line’ on public-private records
Bill ChristianThe law practice of attorney Bill Christian of Austin-based Graves Dougherty Hearon & Moody includes media, First Amendment, and public access. One of his clients is the Austin American-Statesman.
Christian also gets involved in public-private partnerships, subsidies to private businesses, and new ways that private and for-profit businesses interact with government bodies. This was the focus of his presentation.
The Texas Public Information Act extends to some of these public-private entities, he said.
The Act, specifically Government Code Section 552.003(1)(A)(xii), defines “governmental body” as “the part, section or portion of an organization, corporation, commission, committee, institution or agency that spends or that is supported in whole or in part by public funds.”
Can someone use the Texas Public Information Act to obtain records from entities that receive public funding?
Christian said the legal answer to that question lies in the relationship between the funding government agency and the entity receiving public funds. A decision by the Fifth Circuit Court of Appeals in the case of Kneeland v. NCAA [850 F. 2d 224 (1988)] created a test that’s being applied in other cases to make the determination.
The appeals court ruling states, “The essential question posited on this appeal is whether the National Collegiate Athletic Association (NCAA) and the Southwest Athletic Conference (SWC) are subject to the Texas Open Records Act, Tex.Rev.Civ.Stat.Ann. art. 6252-17a (Vernon Supp. 1988). The district court found that the NCAA and SWC received public funds and were governmental bodies within the meaning of the Act. It further found no validity to constitutional claims, asserted statutory exemptions, and a claimed tort-law bar to application of the Act. We agree with the district court that the funds involved are public funds, but disagree that the NCAA and SWC are governmental bodies. So concluding, we reverse.”
In CareFlite v. Rural Hill Emergency Medical Services Inc. [No. 11-10-00306-CV (2012)] CareFlite, a nonprofit competitor, sought to compel Rural Hill to produce information requested under the Texas Public Information Act. Rural Hill, also a nonprofit, is funded by two cities and through fees paid by its patients in Hill County. The trial court ruled that Rural Hill is not a governmental body and did not have to provide the records. That decision was upheld by the 11th District Court of Appeals.
In Texas Association of Appraisal Districts v. Hart [382 W.W. 3d 587 (2012)] Coach Dan Hart sought financial records for the years 2007 through 2010 from the Texas Association of Appraisal Districts (TAAD) and the Property Tax Education Coalition (PTEC). Both refused to produce the records, asserting they were not governmental bodies subject to the Act. The Third Court of Appeals determined that neither TAAD or PTEC are governmental bodies under the Act.
Christian, who defended TAAD in this case, said while TAAD is funded through dues paid by its member appraisal districts, which derive their funding from government agencies, it is not a governmental body because its member organizations receive benefits.
In Greater Houston Partnership v. Abbott [No. 03-11-00130-CV (2013)] Jim Jenkins requested that GHP disclose its 2007 and 2008 check registers. GHP, a Texas nonprofit corporation that describes itself as a chamber of commerce for a 10-county area around Houston, has a contract with the City of Houston and the requestor argued that made it a governmental body. The district court’s final judgment found that GHP’s contract with the City of Houston makes it a governmental body under the Act and ordered GHP to disclose its check registers for 2007 and 2008 to Jenkins. The Third Court of Appeals affirmed the district court’s judgment.
Christian said “there are no bright-line rules” for deciding these cases. It’s expensive to litigate the answer in a given case and these issues are likely to be argued for some time.
“Being subject to the Texas Public Information Act is something organizations would like to avoid if they can. There’s a lot of uncertainty that needs to be addressed about who is subject to the Act and who isn’t.”
Christian closed his presentation by noting that there is new trend developing: none of these three cases involved traditional media organizations.
“Newspapers and television stations played an important role (in shaping public information rulings) and still do, but they will pick and choose their battles,” he 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 coverage by making a tax-deductible contribution.
Related Bulldog coverage: This is the 41st story covering the City of Austin’s problems and progress in dealing with open government issues.
Social Media’s Impact on Open Government: Few government organizations have dealt with how Facebook, Twitter use affects compliance, April 23, 2013
City Hosts Open Government Symposium: Lawyers attending for education credits abound, much of the day had little to do with city practices, April 22, 2013
City Spent $157,636 to Defend Council Violations: Payments for private lawyers for mayor, council members in criminal investigation, April 8, 2013
City Hosting Open Government Symposium: Follows county attorney’s investigation of City Council open meetings violations, March 19, 2013
Deferred Prosecution Ends Open Meetings Investigation: Mayor and five current council members sign agreements waiving the statute of limitations and requiring major reforms, October 24, 2012
Austin Board and Commissions Get E-mail Policy: Fifteen months after City Council ordered changes, board and commission members to be assigned city e-mail accounts, August 23, 2012
Open Meetings Investigation a Year Old Today: County attorney says investigation of whether City Council violated Open Meetings Act is still ongoing, January 25, 2012
City of Austin Moving, Slowly, Toward Greater Transparency in Electronic Communication: New system for board and commission members targeted for first quarter 2012, October 27, 2011
Employee E-Communication Policy Drafts Show Each Revision Weakened Rules: Policy that was near fully compliant on first draft crippled by changes, September 13, 2011
The Austin Bulldog Files Second Lawsuit Against City of Austin for Withholding Records: City not responsive to open records request concerning water treatment plant construction, September 1, 2011
City Manager Establishes Policy for Employees’ Electronic Communications: Open government legal experts say policy is seriously flawed, but it’s an important start, August 10, 2011
City of Austin Dragging Its Feet on Implementing Lawful E-mail Practices: City employees, board and commission members still not covered by city policies, July 13, 2011
E-mails Exchanged by Council Members Expose Private Deliberations and Political Maneuvering: More than 2,400 pages of e-mails published here in searchable format, July 6, 2011
Taxpayers Footing Big Bills to Correct City of Austin’s Open Government Issues: $200,000 spent on attorneys so far and no end in sight, June 24, 2011
Treasure Trove of Public Documents Made Available in Searchable Format: E-mails, text messages, meeting notes obtained through open records, lawsuit, May 12, 2011
County Attorney’s Office ‘Cannot Determine’ City of Office Committed Alleged Violations: Bulldog’s complaint was the first presented for violation of the Texas Public Information Act, April 22, 2011
Council Staff Training Lapsed from 2007 Until Lawsuit Filed: Only one current staff member had taken training, city records show, April 20, 2011
Austin City Council Adopts Policy to Improve Compliance with Texas Public Information Act: Policy does not cover all city employees or all city board and commission members, April 15, 2011
City of Austin and Council Members File Answer to The Austin Bulldog’s Lawsuit: Answer challenges standing and claims requests for open records fulfilled, mostly, April 11, 2011
Call for Public Help in Analyzing City Council Members Private E-mails, Text Messages: Volunteers needed to review correspondence and provide feedback on any irregularities, April 9, 2011
City of Austin’s Records Retention Undermined by Lack of Controls Over Deletion of E-mails: Missing records likely more important than gossipy tidbits, April 6, 2011
Council Member Laura Morrison Releases E-mail on City Business from Gmail Account: Morrison second council member to turn over more e-mails responsive to The Austin Bulldog’s requests, March 30, 2011
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, March 29, 2011
The Austin Bulldog Files Civil Complaint Against City of Austin and Council Members: Travis County Attorney David Escamilla has legal authority to force compliance, March 23, 2011
Expired: The Austin Bulldog’s Offer to Settle Its Lawsuit with City, Mayor and Council Members: Does this mean these elected officials want to continue to violate state laws?, March 18, 2011
Council Member Spelman’s City E-mails on UT Account Will Not Be Provided: University of Texas will seek opinion from Texas attorney general to withhold, March 18, 2011
The Austin Bulldog Files Lawsuit to Compel Compliance with the Law: Mayor and city council members not in compliance with statutes for public information, records retention, March 2, 2011
Smoking Gun E-mail Shows Council Aide Advocated Evasion of Open Meetings Act: Provided detailed guide to allow chats with council members on dais but leave no trace, March 1, 2011
Council Member Bill Spelman Goes On the Record About Private Meetings, Fifth in a series of recorded question and answer interviews, February 20, 2011
Council Work Sessions Stir Concern Over Tying Up Staff for Two Meetings: City manager presents summary of options for council consideration, February 15, 2011
Mayor Claims Lawyers Okayed Private Meetings But City Won’t Release Proof: City pledges cooperation with county attorney’s inquiry but is withholding these key documents, February 13, 2011
County Attorney Asks City of Austin for Records Related to Open Meetings Complaint: Former Mayor Wynn and Former Council Member McCracken included, February 9, 2011
Council Member Randi Shade Goes On the Record About Private Meetings: Fourth in a Series of recorded question-and-answer interviews, February 9, 2011
City of Austin Commits $159,000 for Advice in County Attorney’s Open Meetings Act Inquiry: Three attorneys hired for $53,000 each, February 7, 2011
Council Member Chris Riley Goes On the Record About Private Meetings: Third in a Series of recorded question-and-answer interviews, February 6, 2011
Council Member Sheryl Cole Goes On the Record About Private Meetings: Second in a Series of recorded question-and-answer interviews, February 3, 2011
Mayor Pro Tem Mike Martinez Goes On the Record About Private Meetings: First in a series of recorded question-and-answer interviews, February 2, 2011
Will I Said Come On Over Baby, Whole Lot of Meetin’ Goin’ On: Council Member Chris Riley tops the chart with 256 private meetings, January 30, 2011
County Attorney Reviewing Complaint, Brian Rodgers Will Not Run for Council, January 25, 2011
Open Meetings, Closed Minds: Private meetings to discuss public business shows Austin City Council may be violating Open Meetings Act, January 25, 2011