The secrecy surrounding private devices has been a hot-button issue in the current political climate on a national level, but what about on the state level? A 2013 law (SB 1368) was passed to give the public access to information about official government business conducted through private emails, but one loophole has delegitimized this law.
The PIA Private Communications Custodian Loophole’s Impact of Open Government
SB 1368 was passed in 2013 in response to a series of incidents in which government officials sought to skirt public information laws by conducting official business through private emails. That law codified existing Attorney General opinions, expressly providing that the content of a communication governed whether a communication was subject to the Public Information Act, not the device on which it was sent or received. Under SB 1368, if a government official is conducting official business through personal email, the resulting communication is still subject to the Public Information Act (PIA).
In the years since SB 1368 was passed, some government agencies have responded to the new law by claiming that they could not release documents in which government officials conducted government business on private emails because the agency does not have custody and control of the computing device on which the emails are accessed.
- In 2015, a PIA request was submitted to the Travis Central Appraisal District (TCAD) seeking communications between Appraisal Review Board (ARB) members, TCAD board members, and staff. ARB members and CAD board members are not provided TCAD email addresses, and although the request clearly included emails exchanged on personal email accounts, the TCAD’s initial response did not include relevant communications conducted through personal email. Only upon being threatened with a lawsuit did the TCAD staff finally notify the ARB and CAD board members of the request.
- Former Bexar County Commissioner Tommy Adkisson fought a request by the San Antonio Express-News for emails related to public business, arguing that the request submitted to him in his official capacity did not reach the emails on his personal email account because his office did not maintain custody over his personal communications. After years of litigation, Adkisson settled with the newspaper and released over a thousand pages of emails, some of which detailed special influence and access that a local activist had on a controversial proposal to create toll roads.
- In response to a request by the Victoria Advocate seeking information related to potential Open Meetings Act violations by members of the Victoria City Council, the Victoria city attorney argued that he could not coerce councilmembers to provide the records and claimed that he had fulfilled his obligations by providing everything in the city’s possession—namely, emails sent on the city’s servers. The Victoria Advocate was required to rely on other sources of information, such as telephone records, suggesting the existence of a walking quorum.