e-Records 2012: Texts, Emails, and the Texas Public Information Act

e-records conference imageThis article is the third in a series of recaps of the 2012 e-Records Conference, a conference dedicated to electronic records management that has been co-sponsored by TSLAC and the Department of Information Resources since 2000. Presentations from the e-Records Conference are available on the e-Records 2012 website.

By Angela Ossar, Government Information Analyst

In thinking about Amanda Crawford’s Public Information Act Update session, I recalled the day, back in January 2006 during my first year of library school, when I was sitting in the first class of a required course called “Human Information Interactions.” I distinctly remember Day 1’s topic of discussion: What is “information”? What is an “interaction”?

Some people shudder at the memory of this class, rife as it was with these heavily theoretical questions. So I thought it was interesting, six years later, to be sitting in a session that essentially asked, what is public information? And does its being electronically transmitted make it any less of a record?

Crawford is the Division Chief of the Open Records Division of the Office of the Attorney General. The Open Records Division is the entity responsible for deciding what information must be disclosed under the Texas Public Information Act (PIA). Texas’ public information laws are unique: in most states, the decision to withhold/redact information is made by the governmental body, with the burden of proof of openness resting on the requester.

Texas takes an opposite approach: if a governing body wants to withhold information, they must prove why a record is exempt from disclosure to the Office of the Attorney General (OAG), and the OAG must “tilt the scale in favor of openness,” by law. All information is presumed to be open unless a specific “exception” applies.

If it’s sent from a personal email account, is it a public record?

The “hottest issue in public information law right now,” said Crawford, is Adkisson v. Abbott, regarding whether emails concerning public business but sent from a private email account are considered public information. The case arose from a PIA request for the emails of Bexar County Commissioner Tommy Atkisson, with the request limited to emails documenting public business. The Commissioner sought an opinion from the OAG (see Open Records Letter Ruling 2010-07537) as to whether the emails were exempt from disclosure on the grounds that they were sent from a private account.

Because any information “collected, assembled, or maintained by governmental bodies pursuant to law or ordinance or in connection with the transaction of official business” is considered public information under Chapter 552 of the Government Code, the OAG ruled that these emails were subject to the PIA and “must be released.”

The case was originally heard by the 200th District Court in Travis County (Case No. D-1-GN-10-002120), and the trial court agreed with the OAG’s opinion. The decision has been appealed, so the case is now awaiting trial with the 3rd Court of Appeals in Austin.

If City officials text each other about City business, are the texts subject to the Public Information Act?

Crawford also talked about another recent Open Records Letter Ruling (No. 2011-08166) that concerned text messages of the mayor and certain city representatives of the City of El Paso. In this case, said Crawford, a citizen saw City Council members texting each other during an open meeting and then submitted a PIA request for these texts. The City asserted that the text messages, which were between a city council representative and her legislative aide, were “personal in nature.” However, upon review, the OAG found that some of the text messages did “consist of communications sent to or from the city council representative in her capacity as a city official and employer and concern city business.” Some of the texts were considered confidential and did not have to be disclosed.

A similar case in Corpus Christi led to some proposed legislation from the 82nd Legislative Session to ban texting during open meetings. Crawford expected for additional exceptions to the PIA to come out of the upcoming 83rd Legislative Session, which begins on January 8.