We still don’t know for sure.

Last week, the Dallas Court of Appeals released an opinion in the case of City of Dallas v. Dallas Morning News. The question before the court was whether former City of Dallas Mayor Laura Miller's Blackberry e-mails (significantly, e-mails that never went through the city’s e-mail system) are subject to the Texas Public Information Act (the Act).

The dispute arose when reporters from the Dallas Morning News (DMN) submitted open records requests seeking copies of e-mail messages sent and received by the mayor and various city employees. One of the requests sought e-mails from “accounts other than their city address to conduct city business,” including the mayor’s personal Blackberry account.

The trial court ruled that such e-mails, made in connection with the transaction of official business, are public information. The trial court agreed with the DMN’s argument that when a mayor engages in communication by personal e-mail relating to her authority as mayor, the e-mail becomes “information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business by . . . or for a governmental body.” (The quoted language is from the definition of “public information” in the Act.)

The city argued that the e-mails do not meet the statutory definition of “public information,” regardless of whether the e-mails relate to the transaction of official business, because they are not collected, assembled, or maintained by or for the city, and the city does not own or have the right of access to them. (Those terms are additional elements of the definition of “public information” under the Act.)

After addressing various procedural issues, the court of appeals essentially concluded that neither the city nor the DMN had presented enough evidence for the trial court to have ordered the e-mails released. The court of appeals then remanded the issue back to the trial court for further proceedings.

Concluding that none of the testimony clearly stated whether the city had the right of access to the mayor’s e-mails, the court of appeals stated that:

We do not know what the terms of the personal account are; who has a right of access to the device or account; what type of access, if any, exists; who pays for the account; whether the City has any policies or contracts relating to personal e-mails or accounts; whether any e-mails exist falling within the News's requests; or other information relevant to the inquiries explored in addressing the public's open records rights.

The issue of public access to a city official’s personal e-mail is not new. As far back as 2001, other cities and the League argued that personal e-mails do not meet the definition of “public information.” League staff will continue to monitor the case and will report on the ultimate outcome.

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