Private Emails Public?

Amicus Counsel Seeks City Officials to Sign On

Adkisson v. Abbott is an important case affecting the private email accounts of city officials.  The case is making its way through the courts, and a group of city councilmembers has filed an amicus brief in the case.  (The League, in conjunction with the Texas City Attorneys Association and the Association of Mayors, Councilmembers and Commissioners, also filed an amicus brief.)  The essential issues are: (1) whether a county commissioner’s personal emails sent and received on his private account are public information when they relate to public business; and (2) if so, does the county even have “access” to them.  The decision will affect city officials the same as it does county officials. 

How did the lawsuit come about?  In 2010, the San Antonio Express-News asked Bexar County for copies of certain correspondence between a county commissioner and others, including emails on his home computer.  The office of the attorney general, in letter ruling OR2010-08701, concluded that emails from a private email account maintained by the commissioner and relating to the official business of the county are subject to the Public Information Act (Act) and must be released.  The attorney general’s analysis focused on the content of the email, ignoring important legal details such as the fact that an independent communication by a single official is not the “transaction of official business” by the governing body and that the county did not collect or maintain the private emails of county officials or employees.

The Bexar County commissioner ultimately refused to release the emails and, along with the county, sued the attorney general’s office.  A Travis County District Court agreed with the attorney general, holding that the commissioner must release email messages about public business from his private email account.  The commissioner and the county have appealed the ruling.

The case is now before the Austin Court of Appeals.  The county commissioner and the amici argue that emails sent or received on personal devices using non-government email accounts are not “public information” as defined by the Act. They argue that this is true, regardless of whether the emails relate to government business because: (1) they do not meet the definition of “public information;” (2) the governmental body has no access to the email account and no power to compel their production; (3) public officials have a reasonable expectation of privacy in their personal email communications; and (4) requiring their disclosure in most cases violates the federal Stored Communications Act of 1986. (Note:  the first argument is relevant in the case because of the date when it was filed.  New legislation, S.B. 1368 – effective September 1, 2013 – may moot that argument for future cases.)

This is not a new issue.  City officials have been grappling with the attorney general’s interpretation of the Act for well over a decade.  For example, a 2001 letter ruling (OR2001-1790) involved a request for city-related emails on any computer used by a City of Arlington city councilmember.  The councilmember sued the attorney general’s office, but the case was settled, and thus provided little guidance. 

Click here to read the city officials’ amicus brief.  Cities or city officials interested in signing on as a party to the brief should contact amicus counsel Mick McKamie (mick@mckamiekrueger.com) or Bradford Bullock (bradford@mckamiekrueger.com) by email or phone at 210.546.2122.  (Attorneys who wish to sign on as co-counsel should contract Mick or Bradford as well.)

 

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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