Open Records Dilemma – A Three-part Investigation
As many of you know, I have been having an ongoing issue with the City of El Paso and how they handle open records requests. I am not the only one, as other bloggers and even the El Paso Times has documented instances where the city has failed in its obligations towards transparency. I have written before that I do not trust that the information released to me via open records requests is both complete and accurate. I also recently started looking into the issue of access to government records that reside on social media channels. All of my doubts about government transparency ultimately falls into the issue of trust.
Many of us, and I am not the only one, do not trust that government officials are releasing public information records as required under the law.
Recently an issue arose where one government official has started to challenge the idea that communications between two elected officials are not subject to the open records laws. There are two issues we need to deal with.
The first is that a communication between two elected officials, either within the same jurisdiction or in two different jurisdictions can be either a non-official, or even political communication between two individuals or it could be public policy discussions that are subject to public disclosure.
As an example, consider the two following scenarios:
Texas Governor Greg Abbott sends an email to Donald Trump from his personal email account. (This is a fictional example) In the email, Abbott writes that Donald Trump should start building the wall in Texas on the first day of office. If Trump agrees, Abbott adds in his email, that he will drum up support for Trump with his associates and friends. Trump receives Abbott’s email in his personal account and responds with a thumbs up emoji.
This example requires that two sets of Texas laws be examined. The first is that elected officials are prohibited from using public computers, email accounts and Internet connections for political purposes. In my fictional example, Abbot correctly used his personal account for political purposes.
This brings us to the Texas Public Information Act.
In my fictional example, Greg Abbott is clearly engaged in a political exercise that does not involve public resources and thus his email is not an official email from the governor’s office, but rather an email from Abbott, acting unofficially outside of the office of the governor of Texas. His email is not public information because he is not acting in an official capacity.
But let us change my fictional account a little by adding one more sentence to the fictional email that Greg Abbot sent. Let us add the following; “Donald, if you agree to start building the wall in Texas I will ask the Texas legislature to enact legislation allowing the federal government to ignore Texas eminent domain laws for the wall project under an emergency eminent threat measure.”
As you can see, the fictional email from Abbott to Trump has now entered the realm of public policy that would clearly fall under the Texas Public Information Act. At that point, my fictional example would make the Abbott email subject to open records requests.
One sentence made the difference.
The second issue we need to address is who determines whether a communication is public information or not? Is it the government entity that oversees the elected official, or the elected official themselves? Currently, if I disagree with the City of El Paso, theoretically, I can ask the Texas Attorney General to opine whether a document is a public record or not. As a matter of fact, the City routinely sends a copy of a document that they want to withhold to the Texas Attorney General asking for their opinion on whether they can withhold it. In my personal experience, the Texas Attorney General has ruled that a record must be released to me and other times it has agreed with the city. The key is that a third-party has reviewed the document and made a determination.
Not so under the current scheme that one El Paso elected official has embarked upon. In tomorrow’s edition I am going to reveal how one elected official has embarked on a scheme of being the sole determiner of whether their communications are subject to the Texas Public Information Act.