El Paso case arguments address public business on private devices

By Marty Schladen
El Paso Times
Originally published May 22, 2014

AUSTIN – The limits of Texas Public Information Act – and how El Paso city government has tested them – were the subject of arguments Thursday in an appellate court here.

Attorneys argued about what duties governmental entities have to turn over communications about government business that officials create using personal accounts and devices.

The case, argued before the Third Court of Appeals in Austin, stems from the controversy surrounding the El Paso City Council’s 2012 decision to tear down the old City Hall and build a baseball stadium in its place.

Leading a group that was suspicious that many of the deliberations were conducted in secret, attorney Stephanie Townsend Allalla filed wide-ranging requests for communications between members of the city council, the city manager and promoters of the ballpark.

The Texas attorney general said emails and other communications conducting city business had to be turned over even if they were not in the city’s immediate possession, but on personal computers and smart phones as well.

The city sued the AG, but after it gathered and released at least some of the disputed emails in October – most notably from former Rep. Steve Ortega, the city asked that the trial court dismiss the case and the attorney general did not oppose the request.

The court did not dismiss the case, however, and Allala continues to seek guarantees that she got all of the emails she asked for.

The city filed an appeal, asking that the court rule that it has turned over all the documents that it’s required to.

Allala’s attorney, Bill Aleshire, was before the appellate court on Thursday to demand that Allala be allowed to take steps to ensure she’s gotten all the records to which she’s entitled.

Aleshire said that last fall, Ortega turned over emails from City Manager Joyce Wilson that Wilson had not turned over. That shows that not all the records Allala has requested have been produced, he said.

Contacted Thursday morning, Ortega said he declined to comment until the appellate court had ruled. The court will issue a written opinion in the coming months.

On Friday, Aleshire said the city’s appeal of the case might show that it knows it hasn’t disclosed everything.

“That’s how desperate the City’s attorneys have been to keep us from getting sworn testimony about whether all the emails have been disclosed.,” he said in an email. “I was arguing yesterday that the trial court was correct in not dismissing the case, particularly since we never got the chance to conduct the depositions to look for evidence of missing emails.”

The question before the court would not have occurred to the Legislature when it passed Texas’ first open-records law in 1975, said George E. Hyde, the Austin attorney who is representing the city.

“I don’t think the law has caught up to the technology,” he said.

Both sides had compelling arguments.

Hyde maintains that Texas public-records laws have never required governmental entities to produce documents it doesn’t have. It would be impossible, he said, under the tight deadlines imposed by the law to search all of the files in its possession and to reach out to everybody who might have responsive information held outside the entity’s possession.

Aleshire said that if the court accepted that, it would “create a huge gap in the Public Information Act that would make it unenforceable.”

If that were the case, he said, there would be nothing to keep a city council or a commissioners court from setting private up email accounts to discuss all politically sensitive issues and skirt the open-records law altogether.

Chief Justice Woodfin “Woody” Jones seemed to say there have to be practical limits on a governmental entity’s responsibility to produce records it doesn’t have.

“As a practical matter, how would they do that?” he asked. “Would they send a police officer to a councilman’s house to hack into his email?”

Earlier, Jones had said, “Obviously, they can’t compel it, but what responsibility do they have to request it?”

Hyde said governmental entities have discretionary authority outside the Texas Public Information Act to force employees to turn over information from their personal devices.

He said his law practice represents many local governments. Sometimes, officials such as county judges and sheriffs leave office and take their hard drives with them, Hyde said.

It’s up to the governmental entity to decide whether to sue to get it back, he said.

“That may cost $100,000,” Hyde said, adding that some small counties can’t afford that.

In response to the El Paso email controversy, the city council has created as policy requiring council members to forward communications concerning city business to their city email accounts.

Hyde said such measures could be made mandatory, but that’s a job for the Legislature, not the courts.

Aleshire’s request of the court is more limited. He wants the trial court to allow Allala to conduct “limited discovery.”

She said that among other things, she wants sworn affidavits from El Paso officials saying they’ve turned everything over.