Austin Court of Appeals: City-Related Emails in Personal Accounts
As discussed in another, recent Legislative Update article, both case law and the current language of the Public Information Act (PIA) provide that emails about city business that are sent and received on a private account of a city official are public information.
Cities have, as a result, puzzled over whether they can force officials to turn over emails in private accounts, and the possible consequences for not doing so.
The Austin Court of Appeals recently addressed some of those questions in El Paso v. Abbott. The case is essentially about a city councilmember refusing to give the city emails from a private account, and the court concludes that:
- the PIA does not authorize a requestor to file suit for a writ of mandamus compelling a governmental body to make information available when the city has made reasonable efforts (i.e., is not refusing or unwilling) to comply with the PIA;
- other than requiring that information be produced promptly for inspection, duplication, or both, the PIA provides no guidance regarding the efforts a governmental body must take to locate, secure, or make available the public information requested; and
- a city doesn’t have to resort to suing an individual in district court under the Local Government Records Act when it is believed that the person holds, but has not provided, a responsive document.
What do those points mean in plain English? They mean that, absent some local policy, all a city can do is ask an official to turn over responsive documents from his or her private email account. If the official refuses, the PIA provides no real “teeth” to force the issue.
As a policy matter, it probably makes sense for an official to turn over private account emails that are subject to the PIA. It is almost a certainty that legislation will be filed in the upcoming session to “correct” the opinion.