Appeals court panels rules El Paso did all it could to retrieve officials’ emails

By Marty Schladen
El Paso Times
Originally published Aug. 4, 2014

A panel of appellate judges sitting in Austin has thrown out a lawsuit claiming that the city of El Paso has refused to release public records related to the controversial ballpark project.

The activist bringing the suit, El Paso lawyer Stephanie Townsend Allala, now is deciding whether to appeal the ruling to the entire Third Court of Appeals, her attorney Bill Aleshire said in an email.

The ruling, dated Friday, said that the city did all it could to retrieve emails by city officials related to the ballpark project in 2012. But it is unlikely to satisfy those who worry that some officials hope to evade the Texas Public Information Act by hiding communications about public business on private devices.

City Attorney Sylvia Borunda Firth said the city plans to seek to force Allala to pay its legal fees, which most recently were estimated at $94,000.

In September and October 2012, Allala requested emails by city representatives and high-ranking employees regarding plans for the ballpark. Initially, the city contended that it only had to turn over emails that were in its immediate possession.

The city changed its position, however, after a change in city administration, a ruling by the Texas Attorney General that a public record is a public record regardless of what device it’s on and a law passed last year codifying the AG’s position.

City officials last year asked current and former city representatives to submit any ballpark emails they had and the city turned them over. It published them on the internet and so far, none have been found that might indicate malfeasance as part of the ballpark project.

The City Council also passed a resolution saying any communications about public business should immediately be transferred to official city email accounts.

In court in October, the city asked that the case be dismissed in light of its email release the previous month. The attorney general’s office did not object.

Allala intervened in the case and Judge Orlinda Naranjo granted her motion that her lawyer be allowed to sit down with former City Manager Joyce Wilson, city Rep. Cortney Niland and former Reps. Steve Ortega and Susie Byrd and ask them under oath what they’d done to comply with Allala’s request.

The city appealed that motion.

Both sides said important principles were at stake.

Allala and her attorney, Aleshire, wanted to prevent what Aleshire called a “Mack Truck-sized loophole” in the Public Information Act by allowing officials to hide personal information on their personal devices.

George Hyde, an Austin attorney representing the city, said he wanted to keep the city from having to participate in depositions and other costly legal proceedings at the behest of people who suspected that certain officials were hiding public records on their smartphones and computers.

“It has nothing to do with Allala,” he told the Times in June. “It has to do with the next request and the next request because technology is going faster than the law.”

The appellate panel that ruled Friday sided with Hyde and the city.

“The city’s jurisdictional evidence conclusively shows that it searched extensively for the requested information, officially requested responsive documents from the targeted and relevant individuals on at least two occasions, and produced to Allala every responsive document that it found or received,” the ruling said.

It also seemed to indicate that while the Legislature might have attempted last year to bring the Public Information Act into the Digital Age, work remains to be done.

“Our review of the PIA reveals no methods by which the city could compel the disclosure of public-information emails located on private email accounts, other than what the city did here — i.e., request the documents from the targeted individuals and change the City’s policy regarding public business on private emails,” the ruling said. “In fact, other than requiring that the governmental body ‘promptly produce public information for inspection, duplication, or both,’ the PIA provides no guidance regarding the efforts a governmental body must take to locate, secure, or make available the public information requested.”

The panel ordered Allala to pay the cost of the appeal.

Aleshire said he and his client will now assess what to do next.

“We are reviewing the decision and will decide whether to ask the entire court, not just this panel, to reconsider the conclusion that a case can be dismissed even before a party has had an opportunity to conduct discovery,” he said “It is not fair to a requestor of public information who has been forced to sue in order to get the information to be denied an opportunity to conduct discovery about whether all of the information has been turned over.”