Secrecy surrounding public business conducted on private devices has been a hot-button issue on the national level, but what about the state level? A 2013 law (SB 1368) ensured public access to information about official government business conducted through private emails and other accounts, but one loophole in the Texas Public Information Act has undermined this law.
The PIA Private Communications Custodian Loophole’s Impact of Open Government
The Texas Legislature passed SB 1368 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 or text messaging, the resulting communication is still subject to the Texas Public Information Act (PIA).
In the years since the law’s passage, some government agencies have claimed they could not release documents in which public officials conducted government business in private accounts because the agency does not have custody and control of the electronic device.
- 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.
- An El Paso attorney and activist, Stephanie Townsend Allala, filed a lawsuit in 2012 seeking city officials’ emails related to a controversial ballpark project. The city initially contended it only had to turn over emails that were in its immediate possession, not those on private devices. City officials changed their position, though, after a change in city administration and after the Texas Attorney General’s Office ruled that a public record is a public record regardless of what device it’s on and after the Legislature passed the 2013 law codifying the attorney general ruling. El Paso officials asked current and former city council members to submit any ballpark emails. None of those submitted emails showed any apparent malfeasance. Allala wanted depositions of city officials to find further emails, but an appeals court ruled the city did all it could do to retrieve the emails in question.
- In 2015, a public information request was submitted to the Travis Central Appraisal District seeking communications between Appraisal Review Board members, appraisal district board members and staff. Review board members and appraisal district 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 appraisal district staff finally notify the review board and appraisal district board members of the request.