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Council considers best practices for open government compliance

Thursday, March 24, 2011 by Josh Rosenblatt

During this week’s work session, City Council sat down with representatives from the Law Department and outside counsel to get a better sense of what they can do to improve compliance with the state’s open records laws. And with complaints, lawsuits, and open-records requests piling up, their timing couldn’t have been better.


First, on Tuesday, city officials announced they will be bringing in technology experts to make sure Council members and city staff are complying with state law. And yesterday, The Austin Bulldog, the publication that filed the initial lawsuit to get Council emails and text messages, announced that the paper had filed a civil complaint against the city and Council members with County Attorney David Escamilla. The complaint is an attempt to get Escamilla to “use his authority to determine if the City of Austin and its officials have violated the (Texas Public Information Act) as alleged in the (initial) complaint.” 


According to the Bulldog, if Escamilla determines that violations have occurred, he “has the authority to bring a lawsuit in the name of the State of Texas for declaratory judgment and injunctive relief that is in addition to any other civil, administrative, or criminal action.”


Jim Cousar, the attorney representing the city, told In Fact Daily last night that the Bulldog’s action is an example of a “little-known codicil to the Open Records Act.”


“If you don’t get the response you think you’re entitled to, you can go to the county attorney or the district attorney,” Cousar explained. “It’s like any other complaint process. There’s no merit assumed. (Bulldog editor Ken) Martin is inviting reinforcement (of his lawsuit). … I’ve never seen it used before. Normally people just rely on the district court. He’s inviting the county attorney to say, ‘We don’t want to wait on information on your personal email accounts.’”  


At Tuesday’s work session, attorney C. Robert Heath of the law firm of Bickerstaff Heath Delgado Acosta LLP told Council members that his firm had contacted several cities recently – including Houston, San Antonio, Fort Worth, and El Paso – to learn what steps their municipal governments have taken to ensure compliance with state open government laws. What they found, he said, is that budgetary restraints and the rapid and constant growth of technologies – email, social media, text messaging, etc. – makes it difficult to settle on viable approaches.


“Technology is moving faster than the response,” Heath said. “At least two cities, including Houston, are working on a system to automatically retain and archive emails but that has not been implemented yet, largely for budgetary reasons. And their policies don’t expressly address text messages or instant messages.”


In addition, Heath said, none of the cities have settled on procedures for dealing with the tricky question of walking quorums, beyond having lawyers advise city officials “to be careful of them.”


Heath did present Council with several practices to consider that he and his staff think could increase municipal compliance.


Those practices include:


— Regularly scheduled open-government training for Council members and staff. These would be quarterly or yearly “refresher courses,” Heath said, conducted by someone from the city attorney’s office.


— Including proper methods of record retention in these courses.


— Automatic retention of emails, thereby taking the decision of whether or not to retain particular electronic records out of human hands.


— Continue work sessions.


Council members came out in support of Heath’s suggestions, with Mayor Lee Leffingwell stressing the importance of open government training in particular.


“I think probably the most important (suggestion) is recurrent training on open meetings and open records because it can be a very long time between initial training and where you are now,” he said. “Things change. The law is always evolving; there are new court decisions, new laws, new opinions. And if you go five or six years without training, you may not be aware of these things.”


Upon learning that recurrent training is performed in Houston but is not mandatory, Leffingwell said that here in Austin it should be, “because people are very busy and it’s something they can put off … and there needs to be certification of that recurrent training.”


Both Council members Laura Morrison and Sheryl Cole expressed particular concern about the role of social media in open government compliance. Morrison wondered at what point communication between Council members over Twitter, for example, would “turn into a deliberation” and therefore might violate open meetings statutes. Cole said that when Council members send messages by email or text or on social media, “the issue becomes not just about deliberation but open records.”


But it was Mayor Pro Tem Mike Martinez who perhaps best summed up the confusion and frustration Council members have been feeling since the open records and open meetings issue broke back in January.


“I remember instances where we all get an email and many of us act individually — not collectively — to respond to that, up to and including generating a resolution or an ordinance or an item from Council,” Martinez said. “And then we find out another office is working on it, and — guess what — they have some really good ideas, too, so let’s combine them together and let’s put it on the agenda and let’s vote on this.


“We have to communicate in that regard to get the best policy outcome. I certainly don’t see it as deliberation but we certainly do sit down and say, ‘Here’s what I’ve learned, what we’ve talked about. What have you talked about?’ That’s the kind of thing I really want to focus our training on, to understand where this blurred line actually exists. Because I find it very difficult for us to get the best policy outcomes without being able to communicate.”

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