The Senate Select Committee on Open Government met on November 26 to hear testimony on a number of interim charges.   Of particular interest to cities were charges relating to: (1) the extent to which the Public Information Act (PIA) impacts third-party contractors (vendors) with state and local government; (2) the use of technology (e.g., Facebook, Twitter, texts, and e-mails) and its interaction with the PIA; and (3) frivolous PIA requests.

Vendors and the Public Information Act

Under current law, a business entity that contracts with a governmental body generally does not have to disclose any of its records in response to an open records request, unless that entity is holding government records on behalf of the governmental entity or has given the information to the governmental entity.

Some open government advocates want to change that.  For example, S.B. 1571 was a 2011 bill that did not pass.  The bill would have provided that the records of any business entity that contracts with a city, county, or other governmental body to provide a “function” would be subject to the PIA. The bill would have done that by expanding the definition of “public information” to include information possessed by “an individual, corporation, or other business entity” that performs a public function on behalf of the governmental entity. 

If the bill had become law, records of any business that contracted with a governmental body to perform a function that the governmental entity could otherwise have performed would be open to the general public.  For example, personnel files and e-mail correspondence among employees of a vendor would be open to the public in many instances.

While the prospect of similar legislation in 2013 is understandably worrisome to those business entities that contract with governmental bodies, it also is troubling for the cities and counties that rely on these entities to perform critical services.  The application of the PIA to contractors would create a disincentive for those businesses to continue to enter into contracts with local governments. 

Electronic Communications and the PIA

Many local officials have long disagreed with the attorney general’s office over its interpretation of the PIA as it relates to their private electronic communications.  Disregarding arguments about ownership and location, the attorney general reasons that the content of the communication makes it a public record. 

For instance, a 2001 letter ruling (OR2001-1790) involved a request for city-related e-mails on any computer used by a councilmember. Because no city funds were used to pay for her personal e-mail account or computer and the e-mails were not held by the city, the city argued that e-mails sent from the councilmember’s personal computer were not “public information” as defined by the PIA.  The AG’s office disagreed.  The lawsuit that followed was ultimately settled and thus provided little guidance.  It became the first in a string of lawsuits over the years challenging the attorney general’s position.

More recent developments in this area include the following:

  • A Bexar County commissioner is challenging an attorney general letter ruling (OR2010-08701) that e-mails from his private e-mail account relating to county business are public information.  The trial court agreed with the attorney general.  The case is on appeal at the Austin Court of Appeals.  Adkisson v. Abbott, No. 03-12-00535-CV.

  • Lubbock city councilmembers are challenging attorney general letter rulings (OR2009-01781 and OR2009-10843) that their text messages exchanged during a council meeting are public information.  The case is pending in Travis County’s 419th District Court.  City of Lubbock v. Abbott, No. D-1-GV-09-001569.

  • In 2009, the Dallas Court of Appeals issued an opinion in City of Dallas v. Dallas Morning News.  The case involved the former mayor of the City of Dallas, who argued that her Blackberry e-mails (significantly, e-mails that never went through the city’s e-mail system) are not subject to the PIA. 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.

Representatives from the attorney general’s office, testifying to the select committee on November 26, again reiterated the office’s content-based approach to analyzing requests for private electronic communications. 

Their rulings, however, do not always appear to consistently follow this standard.  For instance, a recent ruling (OR2012-14470) concluded that because the county did not provide or pay for a deputy sheriff’s cell phone, and because the county did not have a right of access to those records or text messages, the personal cell phone and text message records at issue were not public information. (This reasoning seems surprisingly similar to that rejected in the 2001 case mentioned above.)

Regardless, until the law in this area is clarified by either the Texas Supreme Court or the legislature, the League continues to urge city officials to use caution in drafting and transmitting  communications from their private electronic devices.

Frivolous Requestors and the PIA

The committee also heard testimony on the issue of frivolous requests and those made to harass governmental entities.  After hearing testimony from an assistant city attorney from the City of San Antonio (who said she sometimes spends almost half her day dealing with a single requestor who files repeated PIA requests), the Chairman of the committee told the Amarillo Globe-News that, “What I want to do is see if there is a balancing act between the public’s right to know and legitimate requests from people because they want to know what is going in the public space, and people who use the system to annoy…We ought to be able to restrict those who abuse the system, but respond to those who are doing it responsibly.”

The chairman also mentioned that he may file legislation on the issue.  League staff will, of course, monitor and provide information on any such legislation. 

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