What is the City hiding in their personal emails? A walking quorum? A narco-nexus? Jimmy Hoffa? Secret payoffs to the loosely defined local media to quell any potential dissent?
I’d say any speculation is fair game, if the City is intent on keeping it a secret.
Here’s a relevant argument from the Huffington Post:
Lawyers for local government say that email and text messages sent or received on a private account, no matter their content, are not “public records” because they are not “. . . owned, used, or retained by” a government agency, as the Public Records Act requires. Electronic communications are “owned, used, or retained by” government only if they reside on a government server, they say. Despite the superficial plausibility of this reasoning, it is, indeed, only superficially plausible.
A government agency doesn’t do anything except through people–employees, elected officials, consultants, whatever–who are the government’s agents. Without getting too deep into legalese here, the point is that the actions of the government’s agents are imputed to the government, and the government is responsible for those actions. An arrest by a police officer, a mayor’s promise to a campaign contributor, a public school teacher’s grading of a student paper–all are actions of and by the government entity that these people represent.
The same is true for written communications about government matters that these people create or receive, regardless of the technology used or the account status. The communications are “owned,” “used” and “retained” by government because they are owned, used and retained by persons in their capacity as agents of the government.
Here’s an analogy. Suppose the mayor of your town, at a private meeting in her private home, signs a written agreement with a contractor to expand the local airport. The agreement is a paper document in the mayor’s house, miles away from her office at city hall. There is no doubt that this document is a public record that belongs to the town because it is “owned,” “used” and “retained” by the mayor as the town’s agent. Nothing changes if the document sits, not on the mayor’s kitchen table, but in the digital in-box of her personal email account at msn.com. Either way, it’s indisputably a public record that belongs to the town.
Finally, the objection is made that a search through a government official’s commercial email account for requested public records is overly intrusive. But any intrusiveness is due to the official’s choice to mix his personal email messages with his emails about government business. The remedy is not to deny citizens their access rights, but for government to adopt email use and retention policies that mitigate, if not eliminate, the problem.
I can understand the City’s confusion about what is and is not subject to Open Records request. The Texas Attorney General’s position has been evolving, and you can’t expect the City to keep up with the latest rulings:
A few early decisions of the attorney general found that certain personal notes of public employees were not “information collected, assembled, or maintained by governmental bodies pursuant to law or ordinance or in connection with the transaction of official business.” Thus, such personal notes were not considered subject to the Public Information Act. More recent decisions, however, have concluded that personal notes are not necessarily excluded from the definition of “public information” and may be subject to the Act. Similarly, the attorney general has determined in several informal letter rulings that email correspondence in personal email accounts can sometimes be subject to the Act. Governmental bodies are advised to use caution in relying on early open records decisions that address “personal notes.”
The City needs to come clean. And tell us where they buried Jimmy Hoffa.