Dallas: City must provide messages from officials’ personal accounts

08:59 AM CDT on Tuesday, October 30, 2007

By JENNIFER LaFLEUR / The Dallas Morning News
jlafleur@dallasnews.com

State District Judge Gena Slaughter has ruled that the city of Dallas must release e-mails requested more than 22 months ago by The Dallas Morning News, including messages from city officials’ personal accounts or hand-held devices used to conduct city business.

In late 2005, two News reporters submitted separate Texas Public Information Act requests for access to e-mails from several Dallas officials, including City Manager Mary Suhm, former Mayor Laura Miller and housing director Jerry Killingsworth.

The News filed the lawsuit in July 2006 after exhausting other efforts to obtain the information, said David Starr, vice president and deputy general counsel of Belo Corp. Belo is the parent company of The News.

“This case is very significant,” Mr. Starr said. “It’s the first Texas court decision addressing whether e-mails relating to city business that are sent or received on a personal e-mail account are subject to disclosure under the Texas Public Information Act.”

“The News took the position that government business is government business, no matter where or how transacted. E-mails sent or received on personal computers should not be treated differently than e-mails on city computers, as long as they deal with city business,” he said.

Dallas City Attorney Tom Perkins did not respond to requests for comments on the ruling, which was handed down Friday. The city can appeal the decision.

Under Texas law, government correspondence, including e-mail, is public, unless it is protected under an exemption in the act, such as the exemption protecting legal correspondence between attorneys and their clients.

Requested in 2005

In November 2005, City Hall reporter Dave Levinthal requested e-mails sent and received by Ms. Suhm, Ms. Miller and several economic development officials shortly after the City Council passed a $6.3 million tax abatement for a new downtown corporate headquarters for Hunt Consolidated.

In December 2005, reporter Reese Dunklin asked to review e-mails sent and received by Ms. Miller, city Housing Director Jerry Killingsworth and their staffs following an FBI investigation into possible corruption at City Hall.

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, that The News argues should not have been.

Mr. Perkins asked for rulings from the Texas attorney general’s office on both News requests because he wanted to withhold several categories of e-mail, including correspondence involving the city attorney, which he deemed exempt under the law’s attorney-client privilege exemption. He also asked to withhold information that was part of the FBI investigation.

In most cases, when a government entity in Texas wants to withhold information, it must ask for a ruling from the attorney general. Requests must explain why it wishes to withhold the information.

In separate rulings issued in February and March 2006, 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, which had paid a $3,500 deposit for the records.

The attorney general’s office did not rule on whether personal e-mail in The News’ requests should be public, but it has ruled previously that personal e-mail of officials in other cities around the state used to conduct city business must be disclosed under the state’s open records law.

“Information is generally ‘public information’ within the scope of the Act when it relates to the official business of a governmental body or is maintained by a public official or employee in the performance of official duties, even though it may be in the possession of one person,” it ruled in a 2005 request from the city of Kingsville, Texas.

After the attorney general ruled in the case of The News’ requests, the newspaper still did not receive all requested documents, according to court records.

Arduous task

In late March 2006, News attorney Paul Watler asked Mr. Perkins to intervene because the reporters had not received all the information they sought.

Mr. Perkins responded, saying that retrieving the e-mails was arduous and time-consuming. It required employees to obtain e-mails from an external storage facility and inspect each message manually while continuing to do production work to keep important city services, such as 311 and 911 systems, running.

In July 2006, The News filed a lawsuit claiming that the e-mails had not been released, as required by law.

The city argued that it had released all public documents to The News . It also said, in court filings, that messages sent via Ms. Miller’s BlackBerry and her personal e-mail 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 e-mail for government business and that those messages should be public.

“This is a really important decision,” said Charles Davis, executive director of the National Freedom of Information Coalition. “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.”

This issue is not unique to Texas.

An Ohio attorney general’s office policy now requires that employees “copy their e-mails that relate to public business to their business e-mail accounts and retain them in accordance with applicable records retention schedules.”

In The News’ case, the judge also ordered the city to pay the newspaper’s legal expenses.

“Attorney’s fees are usually awarded when judges feel the government agency acted in an arbitrary and capricious manner,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, a media law advocacy group in Washington, D.C.

In Texas, awarding of legal fees is mandatory in public records cases in which the court orders the release of information that a governmental body should not have withheld.

Staff writer Michael Grabell contributed to this report.

I got lucky on this one, but if there is a hometown nerd who wishes to take over let me know.

Is it feasible to set up a mail server and run the same procedure with the White House? Yes, but the federal FOIA act is not something I am very familar with. I have dealt mostly with state open records (Wisconsin, Florida, and now Texas) These all seem to have more case law to support the records disclosure.

But, to the first point, perhaps there is a hometown nerd who would like to do the same on the federal level?

I used a perl script to merge an email header with a PIA request template to create the particular PIA request for that day. The last step of the perl script is to send the resulting formatted email file to sendmail for delivery. I scheduled a cron job to execute the perl script on Tuesdays and Fridays.

I you understood the previous techno-babble, have access to: cron, perl, sendmail and an SMTP server, then you too can ask for emails or other records on an ongoing basis.