Texas city sues to keep councilwoman's e-mail private

By The Associated Press

08.21.01

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AUSTIN, Texas — A legal fight is under way over an Arlington councilwoman's city-related e-mails from her private computer that the state attorney general's office says are public record.

City officials have filed a lawsuit claiming the e-mails aren't public records because council members conduct official business only during public meetings.

City officials also question whether the attorney general's ruling would harm any balance between the public's right to know and a right to privacy.

The city says the e-mails are not public record if they were written on a private computer and no city money was spent.

"This whole question of e-mail is evolving," said Arlington Assistant City Attorney Don King, Jr. "It's fairly new. Most of what used to go across telephone lines were voice conversations. What used to be an unofficial casual conversation is now recorded electronically."

And with the e-mails coming from a private computer, "we just thought it went too far," he said.

The issue started in January when an Arlington resident wanted Councilwoman Julia Burgen's voting record, city-related expenses and city-related e-mail. Officials handed over everything but the e-mails.

The city asked Attorney General John Cornyn's office whether the e-mails are public record.

Cornyn's office ruled last May that they are, in part because Burgen included her home e-mail address on her business card.

Cornyn's office also rejected the claim that Burgen couldn't conduct official business by herself.

If a government body were allowed to withhold records simply because they were held by an individual member, it could easily avoid the state's open-records laws, the ruling said.

In Texas, an attorney general's opinion carries the weight of state law until it is challenged or overturned by a court.

The case could have "significant impact" on how city officials discuss business with their constituents, said Monte Akers, director of legal services for the Texas Municipal League. The group plans to write briefs to support the city's lawsuit.

"Arlington is a large city with city council members who are quite sophisticated," Akers said. "Yet we have a lot of small cities where officials are volunteers or get paid very little, they don't realize how much there is to learn and how easy it is to violate the rules."

Rob Wiley, president of the Freedom of Information Foundation of Texas, said allowing the e-mails to remain private could allow city officials to operate in secret.

"To a large extent, this is about the spirit of the law," Wiley said. "There's simply no basis for not making this information public. It's the kind of thing people can use and abuse in keeping government secret."

King questions whether the e-mails should be treated differently from other private correspondence sent to a council member.

"If a citizen calls up or writes a congressman or councilman (at home), we don't think that has anything to do with an official act of office," he said.

"If you wrote your city councilman (at home) saying 'You're a jerk,' would it be public record? I don't think so."

The lawsuit will be heard in Travis County. State law requires challenges to an attorney general's ruling to be filed there.

Related

Oklahoma open-records act covers e-mails
Attorney general says law defines public record as any document 'regardless of physical form or characteristic.'  11.15.01