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Austin Bulldog sues city over emails, texts

Thursday, March 3, 2011 by Michael Kanin

Online publication The Austin Bulldog has filed suit against the members of the Austin City Council and the city of Austin. In his petition, editor Ken Martin asks the court to grant him access to a host of private emails, instant messages, and text messages that he believes should be considered part of the public record.


“In violation of the public’s right to these records, the City withheld local government records (emails and text messages) that Council Members created on their personal computers or phones, or messages created while transacting public business,” according to the petition filed in state district court.


With the suit, Martin raises a difficult legal question: Should communications sent from public officials’ personal accounts be considered part of their public discourse, and, if so, under what circumstances can the media gain access to those communications?


The suit suggests that the documents should be considered public. Martin’s attorneys write that “on hard evidence and good-faith belief, The Austin Bulldog asserts that the Austin Mayor, Council Members, and City employees routinely transact public business via email, text messages, and (instant) messaging using both City-provided computers and phones owned individually by city officials and employees.”


As for hard evidence, Martin alleges that “one or more Austin officials deliberately use their private email accounts to try to keep substantive communications from being available to the public.” He then details an example where “a Council Member asked a constituent to switch over to the Council Member’s personal email address to continue discussing the controversial – and obviously public business – topic of tax subsidies for The Domain shopping center.”


The Council member is not named in the petition and the email is not attached.


The Bulldog’s legal mountain could be a tough climb. In 2009, the Fifth District Court of Appeals in Dallas ruled against The Dallas Morning News in a similar case. There, two reporters filed suit against the city of Dallas after they claimed that the city hadn’t released all of the documents that they had requested. Their open records petition included “e-mails from the personal Blackberry e-mail address of (former) Mayor (Laura) Miller” and “e-mails from ‘accounts other than their city address to conduct city business.’”


The trial court ruled that the documents were public, “including but not limited to e-mail of Mayor Miller and other city officials and employees to or from Blackberry or similar devices, or to or from e-mail accounts other than those with City Hall addresses, made in connection with the transaction of official business, regardless of whether such e-mails passed through or were processed by City e-mail servers.”


But the appeals court found the evidence insufficient. “The News cannot meet its … burden of showing public information exists that the City has refused to produce by relying on unsupported conclusions and conflicting evidence,” reads the decision. “Even assuming Mayor Miller used her personal Blackberry from time to time for official business, this record does not show conclusively that public information exists here, responsive to the (reporters’) requests, which has not been produced.” The case was appealed again with the same basic result. 

The Bulldog cites as part of its evidence a July 2009 email from Randi Shade aide Glen Coleman to other Council aides. In it, Coleman offers his colleagues a suggestion about how they might use the city’s instant messaging system, called SPARK.

“In the heat of a Council Meeting you may wish to communicate sensitive constituent information with your Council Member that would not be appropriate for all of us to enjoy in the Statesman the next day,” he writes. “For these situations we use a chatting application called ‘Spark.’”

Coleman goes on to note that the system is “often used when a constituent wishes to relate information to a Council Member that might be considered private or personal and your Council Member can not leave the dais.”

He then offers a link that illustrates the procedure for disabling the history function of the program. That action would keep it from recording those conversations.

Coleman refused to comment on the matter. Shade offered a statement. “I regret Glen’s choice of words, but we don’t use SPARK to conduct official business,” she said. “We use it rarely and when we do it is typically to say things like ‘I am taking a bathroom break’ or to relay messages that are in real time such as ‘there is a reporter or constituent here who wants to talk to you.’ It is the sort of stuff that in the pre-tech era an aide would have whispered in a Council Member’s ear. The bottom line is that while not the best choice of words, Glen’s sentiment is clear – aides should not put personal matters or non-city business in an email.”


Former Travis County Judge Bill Aleshire is representing Martin.


Email fallout continues


In other developments, Mayor Pro Tem Mike Martinez held a brief, impromptu news conference just before the start of Council’s work session on Wednesday. There, he told reporters that his office would release “hundreds” of additional emails.


“I simply reviewed the materials put in front of me and realized … that (something) was missing,” he said. “I immediately came to the office Monday morning at 7am and pulled all of those emails.”


He said that the newly discovered communications contain comments “that will be salacious, that will be titillating for a news story.”

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