Bulldog Open Records Lawsuit Continues
Key issue is whether it is permissible to
redact officials’ private e-mail addresses
by Ken Martin
© The Austin Bulldog 2013
Posted Friday June 7, 2013 11:25am
How could you find out if Austin City Council members participated in an illegal quorum discussion about city business using their private e-mail accounts—a violation of the Texas Open Meetings Act?
The short answer is: you can’t.
Under the Texas Public Information Act (TPIA) you may request copies of e-mails exchanged by public officials about public business and you would be entitled to get them—including e-mails sent or received on private accounts (although in the past, the private-accounts issue has been a matter of legal contention).
But the e-mails you get from the public officials’ private e-mail accounts would not include their private e-mail addresses. Those addresses would be blacked out, redacted—to the point you would not be able to determine who sent or received a given e-mail, or whether a quorum of the governing board had illegally participated.
That was what The Austin Bulldog encountered in 2011, in response to a public information request for the e-mails about government business exchanged by the mayor and council members.
The Austin Bulldog eventually obtained copies of e-mails about government business exchanged by these elected officials using their private e-mail accounts—but only after filing a lawsuit to get them.
In response to the lawsuit the elected officials eventually released 288 pages of e-mails exchanged in 2010 and January 2011 on personal e-mail accounts. (Another 276 pages of personal e-mails about city business exchanged in 2009 were furnished in response to a later public information request filed by The Austin Bulldog.)
All copies of private e-mails about city business ultimately released to The Austin Bulldog had the mayor and council members’ private e-mail addresses redacted, based on Attorney General Opinion OR2011-05507, which was issued at the city’s request.
That opinion cited Section 552.137 of the Texas Public Information Act as authority to withhold these private e-mail addresses—even though these private e-mail addresses were used to facilitate a discussion in the shadows about government business that by law should be conducted in public.
Bill Aleshire“The AG has consistently ruled that governments can redact personal e-mail addresses used by government officials when corresponding about public business,” said attorney Bill Aleshire of Riggs, Aleshire & Ray PC, who represents The Austin Bulldog in this lawsuit.
“I believe the TPIA Section 552.137 exception for email addresses of ‘members of the public’ does not apply to public officials internally communicating with each other,” Aleshire said. “No Texas court has ruled on the issue.”
Whether the City of Austin will be permitted to continue redacting the private e-mail addresses of public officials in the future will be decided by a district court hearing on The Austin Bulldog’s Motion for Summary Judgment. A hearing on that motion will be scheduled for late August.
If the Motion for Summary Judgment is granted, Aleshire said, the court would issue an order for the city manager to release unredacted copies of the e-mails exchanged by the mayor and council members.
As it now stands, such redaction is permitted. Only a prosecutor with subpoena powers would be able to obtain unredacted copies to determine if a quorum of an agency’s governing board had participated in illegal quorum discussions of government business.
David EscamillaCounty Attorney David Escamilla obtained unredacted copies of e-mails exchanged by Austin City Council members on private accounts during his 21-month investigation of the council’s violations of the Texas Open Meetings Act.
These records were an important part of the evidence assembled to show there was probable cause that the Texas Open Meetings Act was violated. Some of the private e-mail records were cited in the deferred prosecution agreements signed by the mayor and council members (except Kathie Tovo, who was not on the council when the violations occurred).
Why was the lawsuit needed?
The lawsuit against the mayor, council members, and City of Austin, The Austin Bulldog v. Lee Leffingwell, mayor, et al (Cause No. D-1-GN-11-000639) was triggered by the city’s failure to promptly and fully respond to public information requests filed January 19, 2011, and January 27, 2011.
The Austin Bulldog sought to obtain copies of e-mails, letters, memoranda, notes, or other forms of written communication exchanged by the mayor and each council member from January 1, 2010, through January 27, 2011.
The lawsuit asserted there is evidence that one or more Austin elected officials deliberately used their private e-mail accounts to try to keep substantive communications about city business from being available through the city’s computer servers in response to public information requests
In one case, a council member asked a constituent to switch over to the council member’s personal e-mail address to continue discussing the controversial topic of tax subsidies for The Domain shopping center, which amounted to anywhere from $25 million to more than $60 million, depending on whose figures you believe.
The city’s initial response to those requests included hundreds of e-mails that were captured because they went through city servers.
However, the city took the position that e-mails created or received on personal computers or cell phones were not collected, assembled or maintained by the city. Further, the city claimed it did not have legal access to these records, which were therefore not public information.
But elected officials—from whom these records were requested by The Austin Bulldog—are by law the official custodians of records in their offices. Section 201.003(2) of the Local Government Records Act defines “custodian” as the appointed or elected public officer who ... is in charge of the office that creates or receives local government records.”
The City Council members’ offices are defined by City Code Section 2-11-1(B)(1) as department directors and, as such, is responsible under City Code Section 2-11-6 for maintaining the department’s records.
The city did not explain why these elected officials who are custodians of their records would not have legal access to their own private e-mail accounts.
Further, opinions previously issued by the Attorney General indicate that e-mails created using a council member’s personal e-mail account in connection with the transaction of official business constitute “public information” and must be released to the requestor.
For example, Attorney General Opinion OR2010-10687 dated July 19, 2010 (see page 2) delivered that finding in connection with an open records request filed by The Austin Bulldog to obtain e-mails created or received by then Georgetown Council Member Pat Berryman.
Other Attorney General Opinions that hold personal e-mails about public business are public information include: Attorney General Open Records Letter OR2003-0951, Attorney General Open Records Letter OR2003-1890, Attorney General Open Records Letter OR2005-01126, and Attorney General Open Records Letter OR2005-06753.
Lawsuit triggered reforms
The city’s response to the lawsuit may have been hastened by the fact that it was filed just five weeks after County Attorney David Escamilla on January 25, 2011, launched an investigation into the City Council’s violations of the Texas Open Meetings Act—exposed by The Austin Bulldog’s investigative report published that day.
The lawsuit resulted in significant actions by city officials:
E-mails released—The mayor and council members released varying numbers of e-mails about city business created or received on private accounts, albeit with personal e-mail addresses redacted.
However, those who made statements when releasing those e-mails said the law was not settled on the question of whether those messages constituted public information and they were releasing the e-mails voluntarily.
Policies reformed—The City Council on April 7, 2011, passed a resolution to reform its own electronic communication practices and those of the five employees directly supervised by the council.
The resolution also ordered the city manager and city clerk, respectively, to reform electronic communication procedures for city employees and members of city boards and commissions.
Marc OttTo that end, on August 4, 2011, City Manager Marc Ott issued Administrative Bulletin 08-06, to establish a policy for city employees.
It wasn’t until August 23, 2012, that a policy was established for board and commission members. That’s when the City Council approved Ordinance 20120823-004, which added City Code Section 2-1-49 (Communications Using Electronic Devices) and amended Section 2-1-23 (Training).
In The Austin Bulldog’s Third Amended petition, filed May 22, 2013, the mayor and council members have been deleted as defendants in the lawsuit and the city manager has been added as a defendant.
The reason is that under the Texas Public Information Act only the governmental body can be sued for withholding records. The relief provided by the Act is for a writ of mandamus to be issued by the court to order that records be released.
Such writs could be enforced through contempt of court proceedings. However, a court has ruled that a writ of mandamus cannot be issued against a governmental body. “It has to be an individual,” Aleshire said. “The logical person is the officer for public information.”
Section 552.201(a) of the Act states that, “The chief administrative officer of a governmental body is the officer for public information.”
Including the city manager in this lawsuit would make the manager the party to be issued a writ of mandamus—and the person to be held accountable for noncompliance.
Without this distinction, “There are profound implications that you could sue a governmental body and win and not get relief,” attorney Aleshire said.
Jim CousarThe city hired attorney Jim Cousar of Thompson & Knight and others in that firm to assist in defending this lawsuit, so far authorizing expenditures of $95,000. Through February 20, 2013, the firm has billed the city for more than $81,000. (See spreadsheet, The Austin Bulldog v. Leffingwell et al Legal Fees to Represent City of Austin.)
Legislation clears the air
Any legal ambiguity about whether e-mails about government business exchanged on private e-mail accounts are, in fact, public information and may be obtained through a public information request was erased by the Texas Legislature last month.
Senate Bill 1368, signed in both the House and Senate May 27 and sent to Governor Rick Perry May 28, would add to the Texas Public Information Act’s definition of public information “any electronic communication created, transmitted, received, or maintained on any device if the communication is in connection with the transaction of official business.”
SB 1368 also adds to the list of media containing public information “e-mail, Internet posting, text message, instant message, (and) other electronic communication.”
The bill is currently on Perry’s desk for consideration, said Lucy Nashed in the governor’s press office. Because the Legislature was not in session at the time the bill was sent, Perry has 20 days—until June 16—to either sign the bill into law, let it become law without signing it, or veto it, she said.
Lawsuit records Cause No. D-1-GN-11-000639
The Austin Bulldog v. Lee Leffingwell, mayor, et al, Plaintiff’s Original petition, March 1, 2011
Plaintiff’s First Amended Petition, The Austin Bulldog v. Lee Leffingwell, et al, March 8, 2011
Defendant City of Austin’s Plea to the Jurisdiction and General Denial, April 11, 2011
Plaintiff’s First Supplemental Petition The Austin Bulldog v. Leffingwell et al, September 1, 2011
Plaintiff’s Second Amended Petitition, The Austin Bulldog v. Lee Leffingwell, et al, April 23, 2012
Plaintiff’s Request for Admissions to Defendant City of Austin, August 27, 2012
Defendant City of Austin’s Objections and Responses to Plaintiff’s Request for Admissions, September 26, 2012
Defendant City of Austin’s First Amended Plea to the Jurisdiction and General Denial, September 26, 2012
Plaintiff’s Third Amended Petition, May 22, 2013
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.
Related Bulldog coverage: This is the 42nd story covering the City of Austin’s problems and progress in deadline with open government issues.
Litigation Challenges Open Government Laws: Attorneys criticize criminal penalties and public access to elected officials private e-mail accounts, April 24, 2013
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