Court: Austin must ID private email addresses used for public business

By Nolan Hicks
Austin American-Statesman
Originally published April 8, 2016

Public officials won’t be able to shield their personal email addresses from the public if they use the accounts for government business, a state appellate court ruled Friday.

Government watchdogs hailed the decision as a win for government transparency and the state’s public records laws. The litigation stems from the “walking quorum” controversy that roiled Austin City Hall five years ago, involving accusations that City Council members violated the state’s transparency laws by conducting government business out of public view. None of the current City Council members were in office then.

“This is a huge victory for transparency, and it reinforces the public’s right to hold government officials accountable for compliance with the state’s open government laws,” said Ken Martin, publisher of the Austin Bulldog, the investigative reporting website that sued the city over the redactions.

The city’s Law Department wouldn’t comment on a potential appeal and said the city had redacted the email addresses in accordance with past Texas attorney general opinions.

“The city has always followed the prior AG rulings on this issue, which had been very clear. … We will advise our clients of this new interpretation,” the Law Department said in a prepared release.

The Bulldog and the American-Statesman requested council members’ emails and other documents in 2011, under the state’s open records laws, after revelations that then-Mayor Lee Leffingwell and council members were discussing public business via email and in private, in apparent violation of the state’s open government laws.

The city initially provided emails from official city accounts. The Bulldog sued to obtain additional records, including emails sent from council members’ private email accounts. The city eventually provided those, too, but with the private email addresses redacted.

Without those addresses, Martin said, it was impossible to tell in some cases whether the discussions involved a quorum, which was then at least four council members. The Bulldog continued its legal challenge to obtain those email addresses.

A decision by Travis County state District Judge Tim Sulak supported the city’s contention that a provision of the state’s open records law — blocking the release of “an email address of a member of the public” — also shielded council members’ private email addresses, even when used for government business.

The 3rd Court of Appeals on Friday overturned that ruling, finding that defining government officials as members of the general public would “render these provisions meaningless, absurd or both. We must avoid such constructions if possible.”

Watchdog groups and those promoting open government celebrated the ruling.

“Our public officials often do business on their private devices and their private emails, so we should have a right to scrutinize them,” said Kelley Shannon, executive director of the Freedom of Information Foundation of Texas, which wasn’t involved in the suit. “This ruling might deter some officials from using private accounts for public business.”

“It’s good to hear the appellate court affirmed the public’s right to know what its government is doing and how it’s doing it,” added Craig McDonald, director of Texans for Public Justice.