Open Records Bill Would Ensure More Emails and Texts Get Disclosed

Newspaper editors, their lawyers and other transparency advocates called for a clearer, more inclusive open records law today, supporting a bill by Rep. Todd Hunter (R-Corpus Christi) that would formalize policies for disclosing electronic communication.

Witnesses in the House Government Efficiency and Reform Committee said officials in Austin, Dallas, Corpus Christi and other Texas cities have been skirting open records requests for years, in part because emails, texts and instant messages still represent a gray area in the Texas Public Information Act.

Hunter said his bill would clarify which electronic communication constitutes an open record, and allow for better government transparency. His bill adds communication from any phone or device used for official business—whether it’s personal or government-owned—to the scope of public information. It also prohibits officials from sending emails, texts or other electronic messages during a public meeting, unless it’s a personal message or an emergency.

Journalists came to support the bill, citing past problems with getting this sort of information from public officials.

Austin American-Statesman Editor Debbie Hiott recalled a 2011 lawsuit between the Austin Bulldog, a nonprofit investigative website, and the City of Austin. The Bulldog claimed City Council members withheld records that should be public, and although the city did release some of the requested information, the Bulldog alleged that the council members failed to release all the emails they should have, or any text messages or instant messages about city business.

The City of Austin ended up changing their practices as a result of the lawsuit, but Hiott said Hunter’s bill is necessary to set an even bar across the state. “There may be other elected officials out there who are doing things that keep the public’s business private,” she said.

Other witnesses said similar arguments are ongoing in San Antonio, Corpus Christi, Fort Worth, and El Paso.

Dallas attorney Paul Watler, representing the Texas Association of Broadcasters, said that he has faced a similar issue for nearly six years on behalf of the Dallas Morning News. The City of Dallas has refused to comply with rulings from the attorney general and a Dallas County judge, both of whom said  information on a personal device regarding public business is public information. Many officials throughout the state continue to believe using their own device excuses them from transparency, he said.

“If the exact same message was sent by a device owned by a governmental body through a government email server, there would be no question that that email would be public information,” Watler said. “[HB 2934] would restore the promise of government efficiency and transparency that was envisioned 40 years ago by the framers of the Texas Open Records Act.”

Committee chair Linda Harper-Brown (R-Irving) worried that the bill still isn’t clear about exactly which types of records are subject to the open records law.

The conversation led her to a reflective note at one point. “We [public officials] really really need to be very careful about anything we send out,” she said. “Because anything you send out on the Internet can wind up in the newspaper the next day whether it’s personal or it’s public. … It’s the age we live in.”