Appeals court hears Bexar open records case

By John W. Gonzalez
San Antonio Express-News
Originally published Oct. 9, 2013

AUSTIN — An appellate court heard clashing arguments Wednesday over Bexar County Commissioner Tommy Adkisson‘s long-running refusal to disclose official communications in his private email accounts.

The Precinct 4 commissioner, who in 2012 was ordered by a trial court in Austin to release transportation policy-related emails sought by the San Antonio Express-News, insisted anew that the communications were not subject to the Texas Public Information Act. State and newspaper lawyers countered that the messages must be shared because they were official business.

The three judges of the 3rd Court of Appeals are expected to render a finding in several months, and Adkisson has vowed to take the dispute to the Texas Supreme Court if he gets another adverse ruling.

Since suing Attorney General Greg Abbott in 2010 to fight the order to release the still-undisclosed documents, Adkisson said he’s spent $60,000 to defend a position backed by other government officials worried about journalists “fishing” for information.

Texas lawmakers this year updated the public information law to reflect changes in technology and communication, but Adkisson said the law in effect when the request was made did not mandate public access to his “personal” emails.

The newspaper requested emails between Adkisson and a toll road critic and an official of the Metropolitan Planning Organization. The commissioner provided only the emails from his county account and refused to share those from a private account.

After an hour of oral arguments by lawyers representing Adkisson, the attorney general and the Express-News, Adkisson insisted he’s not obliged to grant media access to his private email account.

“If you think that I’m doing something illegal, put your name on the dotted line, under oath before God and the world, then we’ll get a search warrant. But don’t come tromping into my personal emails on a fishing expedition, rifling through everything I have. I think that’s very offensive. It really threatens the viability, long term, of open government. People are not going to stand for that,” he said outside court.

Assistant Attorney General Pat Tulinski argued that the public has a right to access the commissioner’s government-related emails from the private account, likening the situation of an official who takes public documents home to work on them. Regardless of where the records are, they’re subject to public disclosure, she said.

“It’s still the government’s information,” she said.

Yet public officials from several small communities filed briefs in support of Adkisson’s position. Attorney William McKamie, representing cities including Hondo and Alvin, argued that the case could potentially apply to more than 500,000 government employees and officials in Texas.

“Public servants do not dispute the value of Texas’ sunshine laws. They were crafted to combat backroom deals, graft and corruption — a laudable and necessary goal. … Public servants do, however, ask this court to interpret the plain language of the (Public Information Act) … in a manner that does not run afoul of basic constitutional protections,” the officials’ brief said.

Abbott’s office maintained in its brief that the public has a right to know what Adkisson was saying to the other two people about government business.

“Complying with the PIA may not always be the most convenient or easy way to conduct official government business, but the Legislature clearly weighed the options and decided that the many virtues of having information accessible to the public outweighed any inconvenience,” it said.