Email correspondence from public officials in Texas is public, even if they are using private email accounts or hand held devices. This is the first major ruling on private email accounts and the Texas Public Information Act and is the result of a 22-month battle led by the Dallas News.
This ruling, which applies only in Texas, may have national impact because many states have similar laws. I can see several issues:
- While this ruling is specific to Freedom of Information Act legislation, it will likely impact private companies involved in electronic discovery. This ruling clearly indicates that use of private email does not relieve the employer of his obligation to search for and release information.
- Employers will need to put in place a plan for obtaining information from private accounts.
- ISPs like Google and Yahoo! must now respond to public information release requests.
- Employees may be obligated to allow their employers to search personal accounts, unless there is some legally-binding method of stating that there is absolutely no business conducted on the private accounts. (Could employees face fines and jail if they ask a business associate to a dinner using personal mail and then claim under oath that they had no business correspondence? Watch this space.)
Back to this case. In late 2005, two News reporters requested access to emails from several Dallas officials, including City Manager Mary Suhm, former Mayor Laura Miller and housing director Jerry Killingsworth. While the city did release several boxes of documents in response to the requests, reporters found unexplained gaps of time in the correspondence. Also, according to court documents, some information was redacted, or marked out.
In most cases, when a government entity in Texas wants to withhold information, it must ask for a ruling from the attorney general. In this case, the attorney general's office said that the city of Dallas could withhold some information protected by attorney-client privilege or that was part of an ongoing FBI investigation but that it must release all other e-mail requested by the newspaper. It did not comment specifically on the private account issue.
Dallas City Attorney Tom Perkins did not provide emails from private accounts, saying that retrieving the emails was arduous and time-consuming, according to the News. It required employees to obtain emails from an external storage facility and inspect each message manually.
The newspaper filed suit. The city argued that it had released all public documents to the News, it reported. It also said, in court filings, that messages sent via Ms. Miller's BlackBerry and her personal email account were not public because the BlackBerry was not owned by the city, nor would the city even have access to the information. The News contended that Ms. Miller did use her BlackBerry and personal email for government business and that those messages should be public.
The court agreed and the emails must now be found and released.
"This is a really important decision," said Charles Davis, executive director of the National Freedom of Information Coalition, is quoted as saying in the News. "One of the arguments we're seeing emerge among public officials is that certain delivery platforms or technological devices should be, by their very nature, private because they own them, or they keep them in their pocket. The delivery platform doesn't make any difference. It's what the content of the message is. If the content of the message is about governing, then it should be public."
(Thank you Kimo for the heads-up!)
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