Austin Court of Appeals: City-Related Email in Personal Account is Public Information



The Austin Court of Appeals recently decided Adkisson v. Abbott, a Public Information Act case. The court concluded that: (1) a county commissioner’s emails about public business that were sent and received on his private account are public information; and (2) the emails are owned by and held for the county.

The court’s conclusion that the emails are public information is consistent with the attorney general’s long-held interpretation of the Act. Thus, is not terribly surprising. Moreover, the court’s opinion is essentially a moot point because of 2013 amendments to the Act in S.B. 1368. That bill makes public all emails regarding public business, regardless of whether they are on personal or governmental email accounts.

The court’s conclusion that the emails were owned by and held for the county is of greater interest because governmental entities have struggled over: (1) whether they can force officials and employees to turn over emails in private accounts; and (2) the possible consequences for not doing so.

The court held that, under the Local Government Records Act and the county’s record retention policies, the county owns the emails. Significant to the court’s decision is the fact that the commissioner “is the officer for public information and the custodian, as defined by Section 201.003, Local Government Code, of the information created or received by” his office. Because city councilmembers do not have these same statutory obligations, the opinion may not offer much guidance as to whether a city “owns” a city councilmember’s private account emails.

Though the court dismissed arguments about the commissioner’s privacy interests, it offered some general observations that are relevant to city officials. First, the court notes that, when elected, the commissioner relinquished some of the privacy expectations of a private citizen, at least with regards to his work as a commissioner. Second, the court concludes that, while an official may have some reasonable expectation of privacy in his personal information, there is no right to privacy protecting public information just because it’s kept in a personal email account.

TML member cities may use the material herein for any purpose. No other person or entity may reproduce, duplicate, or distribute any part of this document without the written authorization of the Texas Municipal League.

 

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