IS A CITY OFFICIALS PRIVATE E-MAIL ACCOUNT PUBLIC?
An important case affecting the private e-mail accounts of city officials is making its way through the courts.
In 2010, the San Antonio Express-News asked Bexar County for copies of certain correspondence between a county commissioner and others, including e-mails on his home computer. The office of the attorney general, in letter ruling OR2010-08701, concluded that e-mails from a private e-mail 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 e-mail, 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.
The Bexar County commissioner ultimately refused to release the e-mails and sued the attorney general’s office. This month, a Travis County District Court agreed with the attorney general, holding that the commissioner must release e-mail messages about public business from his private e-mail account. The commissioner has vowed to appeal the trial court ruling.
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 e-mails 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.
In addition, the Dallas Court of Appeals issued an opinion on a similar issue in 2009. In that case, City of Dallas v. Dallas Morning News, the former mayor of the City of Dallas argued that her Blackberry e-mails (significantly, e-mails that never went through the city’s e-mail system) are not subject to the Act. 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 case was sent back to the trial court, but no activity has occurred since. Until the courts or the legislature conclude otherwise, the League continues to urge city officials to use caution in drafting and transmitting emails.
Information about this and other pitfalls a city official may encounter under the Act is available at https://www.tml.org/legal_topics/legal_opengov.asp.