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Council considers legal options in Open Meetings controversy

Wednesday, March 9, 2011 by Elizabeth Pagano

As requests for Council members’ public records continue to pile up and County Attorney David Escamilla pursues his inquiry into possible violations of the Open Meetings Act, Council members began to publicly examine their legal options at yesterday’s work session.


Earlier this year, activist Brian Rodgers alleged that City Council had violated the Open Meetings Act by meeting with one another outside of chambers. The resulting fracas led to work sessions, which are designed to replace these non-public conversations; an examination of current policies and procedures; as well as requests for Council members’ emails under the Open Records Act.


More recently, The Austin Bulldog filed suit against the city of Austin and members of the Council in order to gain access to private emails, instant messages, and text messages, which editor Ken Martin believes to be part of the public record.


Outside legal counsel Jim Cousar, with the law firm of Thompson and Knight, briefed City Council on two of the open government cases pending that address some of the issues facing Austin.


Cousar explained that in 2005 The Dallas Morning News filed suit against the city of Dallas, claiming that they were denied access to public documents, including then-Mayor Laura Miller’s private Blackberry emails. Though the case remains in court after six years, it has cleared a few things up.


“What the Court of Appeals did say is that the mayor and other individuals at the city of Dallas are not governmental bodies, and so you can’t just send an Open Records Act request to the mayor or a City Council member,” explained Cousar. “What the court was less clear on is whether a request to the city means that the city must go to the mayor or an elected official and get the information.”


As of now, Cousar is looking at whether the city can require officials to hand over information from their personal accounts.


“Right now that’s an open question,” said Cousar. “It’s not that city attorneys and outside counsel are trying to in any way slow down the workings of open government, but in this case, as long as there are legitimate open questions out there and very legitimate other issues, we’re not comfortable advising the city attorney that, yes, just all personal accounts of an elected official or city employee or another city official are public information.”


Cousar also referenced the case of Ranga v. Brown, an ongoing seven-year battle from Alpine centering on the Open Meetings Act and the assertion that certain applications of the act could violate officials’ First Amendment rights.


Cousar summarized one of the more relevant points of the case when asked by Council Member Sheryl Cole for clarification. “It’s essentially a decision by the Fifth Circuit that you cannot disregard speech rights of an elected official doing his duties any more than you would those of a private citizen coming to address the governmental body,” said Cousar.


“We’re dealing with issues on both the Public Information Act side and the Open Meetings Act side that just are not black and white,” Cousar continued. “These acts have always been developed through a process of litigation, and it takes time.”


Mayor Lee Leffingwell said, “I want and expect us to be diligent in trying to resolve those questions, but at the same time we have to do the best job we can to try to balance the public’s right to know with each person’s right to privacy and the need to conduct the affairs of government efficiently and transparently.”

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