The public’s right-to-know, government transparency and privacy concerns were front and center in a heated May 2 Leander City Council debate over whether the mayor and council members should use the city’s new email archiving system to more efficiently respond to Open Record Requests.
No action was taken, as the proposal was tabled for discussion at a later date, though not before the council meeting devolved into a series of debates over what should, and what should not, be released, and how much input city council members should be allowed to provide about flagging items for exemption from release to the public.
Most of the contentious debate could have been avoided, said Kelley Shannon, executive director of the Freedom of Information Foundation of Texas, if council members simply focused on the guidance provided by Texas open government laws.
While council members debated whether they should have a personal say over whether certain emails were released to the public, and whether or not their text messages should be subject to Open Records Requests (ORRs), Shannon had a simple answer: “It’s the people’s information. It’s not an office holder’s information. It can only be withheld in certain circumstances where there’s a legal exception. It cannot be withheld just because someone wants it withheld.”
Implemented back in September 2018, the city’s new email archive service — provided by Barracuda Networks — indexes and copies all emails sent to and from city email accounts, including accounts used by the mayor and city council members, in accordance with Texas laws on public records and open government.
Under the city’s current system, the City Secretary must determine whether the Mayor's or a council member’s emails contain information relevant to an ORR, and then ask that individual to compile all relevant emails themselves. She reviews those returned emails with the City Attorney to determine if anything meets state laws for exempt data. Finally, she submits them remaining ones to the requestor.
In a follow-up interview with the Hill Country News, Mayor Pro Tem Michelle Stephenson explained some of the challenges she faced while using the current system, noting she recently couldn’t find an email she knew existing using the email’s Outlook-style search function. She said she had to eventually go through each email, one at a time, to find it.
The agenda item being discussed by the council would allow the City Secretary, who is currently designated to respond to all ORRs, to search the archive server for the mayor’s and council members’ city government emails as a part of her work responding to those requests.
The system would relieve council members and City staff from the responsibility of searching their emails themselves. Information Technology Director Paul Preston said the new server helps by creating copies in the event of accidental deletion and provides a more sophisticated search function that ensure all necessary emails are found.
“This system protects us from ourselves because it copies everything. It journals everything. It was also designed for transparency,” Preston said.
According to the law, all email correspondence by an appointed or elected official — whether on a government email or a personal email account is considered public. A narrowly defined list of exceptions to the public records act exists, and a governmental entity must request a ‘ruling’ from the Texas Attorney General’s office before excluding information a records request.
Exemptions typically deal with overarching needs, such as private communications with an attorney and certain types of data from an open criminal investigation. The law also allows a city or county to exempt a limited amount of information about a property designated for a public purpose until after the public announcement of the project, or the formal award of contracts for the property.
Any citizen can request any email or other governmental data from the city and council members under the Texas Public Information Act, and any request must be responded to within 10 days.
Over the course of a 45-minute discussion involving City Attorney Paige Saenz, Information Technology Director Paul Preston and Public Safety Systems Administrator Stuart Smith, council members peppered the three with questions about who would have access to their email archives and what kinds of safeguards would be in place on emails that were flagged in a response to a legally-permissible open records request.
Mayor Troy Hill and Council Members Christine Sederquist and Marci Cannon repeatedly expressed concerns that the email archive server could be abused by city employees for personal gain. Sederquist stated on more than one occasion that she was concerned that information requested in an open records request might be used for someone else’s political gain.
Cannon said she has concerns that constituents email her without knowing their emails could become public record.
Outgoing council member Andrea Navarrette responded to Cannon by saying that the records were in fact public and that constituents generally are aware their correspondence with an elected official is public record.
“No, they don’t!” Cannon shouted back.
None of those concerns matter under the law, according to Chip Stewart, an attorney who teaches First Amendment law at TCU.
“That is not a concern of the Open Records Act,” said Stewart. “It’s not the government's business to tell the public what to do with the records. Elected officials can’t say ‘we don’t want to give it to you because of what you might do with it’... These are not the government’s records, they’re the public’s records.”
Shannon and Stewart both said that all elected and appointed officials are required to undergo training from the Texas Attorney General’s office on the state’s open government laws. A certificate of completion is provided to officials who complete it.
Leander Public Information Officer Mike Neu said new council members attend an orientation session and are directed to the Attorney General’s website for that training. Neu confirmed that the city has certificates of completion on file for Navarrette, Stephenson, Cannon, Sederquist and Jeff Seiler, along with newly-elected council members Kathryn Pantalion-Parker and Jason Shaw.
Neu said Hill and Shanan Shepherd both attended an in-person training event in 2015.
An open records request was submitted this week to the Texas Attorney General’s office seeking information on all local elected officials who have received the required training.
As to the question of whether or not text messages are subject to open records requests, again Stewart said the answer is clear.
“The content of the data is what determines that it is public, not where it resides or where the government or elected official sent or received the information,” Stewart said, noting that public information is public regardless of the device or technology it is on, whether it is paper, email, text message, or whether the device is a personal or government owned device.
Much of this was explained by Saenz, the city attorney, during the council’s discussion. However, some council members still had concerns and directed city staff to develop a written protocol detailing how the city will respond to ORRs.
During the meeting, the mayor and all council members affirmed a commitment transparency, but the central point of contention involved whether council members themselves have the right to know about requests for their data and provide suggestions for possible exemptions.
In a follow-up interview, Hill said he considers the issue a matter of personal responsibility about protecting exempt data.
Navarette objected to Hill, Sederquist and Cannon raising those points, saying she felt it would be inappropriate and irrelevant for a council member to demand this input because the data or email is presumed to be public record.
“You’re not even gonna be here,” Hill said, dismissing Navarrette’s comments.
“Let’s just lay it all out there! Emails that are internal have been released to people outside this dais three times in the last several months,” Sederquist interjected. “So yeah, I am concerned who’s going into my emails. I know people like painting things a certain way and it’s election season and people are ugly… I don’t need somebody in my email.”
“First off, if it’s information that’s in her public email account, or even if in private email account that deals with public business, that’s public record,” said Shannon. “It’s not her call, it’s public record. That argument doesn’t hold water.”
Preston told council members the server can only be accessed by two individuals — the City Secretary for searching the emails and the software’s designated compliance officer, Stewart Smith. Preston noted Smith cannot see the actual emails, but can view the access logs for the server.
Preston said the logs cannot be edited and Smith monitors them to identify and prevent any hacking attempts or unauthorized searches of the email server.
Hill asked whether the logs could be provided to the council on a recurring basis to ensure the server is not abused. Saenz said the logs themselves contain sensitive information that could be used to hack the system, and would become subject to public records requirements if submitted in written form to the council. Instead, she suggested, the council could discuss the number of requests for each council member’s email archives in an executive session of the council, which would protect the sensitive information from public disclosure.
“I think maybe getting lost in all this discussion is that we are legally obligated to produce everything,” Stephenson said. “We can’t pick and choose what we want to share.”
Sederquist responded, “We are sharing them! We’re just saying, ‘Hey! I want an opinion on this one. Here’s the story behind it.’ Because if you just have an email without the context, you can paint it anyway you want.”
“Clearly there’s question about what information is subject to ORR,” Cannon said, restating a request for city staff to develop a written protocol for responding to records requests.
Shannon, an expert in Texas’ open government laws, agreed that there should be a written policy in place.
However, Shannon also said, “The best practice would not be for each individual council member to be involved in that decision.”
“There needs to be somebody designated to respond and to gather the information that they see as responsive, and it’s not something that up to the individual office holder’s opinion,” Shannon said. “It needs to be a cohesive policy, there needs to be a point person, and if someone doesn’t like their information being released, that’s too bad, it’s not their call as to whether it should be released.”
In a follow-up interview, Sederquist responded that there’s nothing nefarious in wanting to provide comment about items that could be exempted, and she considers it shortsighted to not allow council members to give context.
City of Cedar Park spokesperson Jennie Huerta said Cedar Park uses the Texas Public Information Act as its guideline for determining what is and is not released in response to an ORR. Cedar Park also uses software provided by Barracuda Networks — the same company chosen by the City of Leander for email archiving.
In Cedar Park, City Secretary LeAnn Quinn is the person responsible for responding to Open Records Requests, and she has access to the mayor’s and city council members’ email accounts for ORRs. Huerta said that the process of responding to records requests in Cedar Park does not involve any input from the mayor or council members.
Georgetown has a similar system in place, and has a staff member, Crystal Saucedo, designated as the city’s Open Records Coordinator.
“Were not saying don’t release emails,” Sederquist said during the council debate. “We’re saying let’s make sure this is done properly and not for anyone’s gain, we want to have eyeballs on the emails, and we want to know when our emails are being accessed…. I think that’s incredibly reasonable. We should know there are people watching the watchers.”
The discussion also delved into the area of council members’ text messages, and whether those should or should not be subject to records requests.
“What about text messages, are those subject to open records?” Sederquist asked.
Navarrette shook her head and said, “I don’t know”
From there, the discussion explored questions about what is, and is not, city business being discussed in an email. Specifically council members debated whether emails could be excluded from a records request if there was no quorum — a majority of council members that are required to be present in order for the council to officially transact business — on an email or text message.
“There’s no quorum in an email,” Hill said, appearing to argue that if there is no quorum present, city business could not be transacted, and therefore any emails or text messages without a quorum might potentially be excluded.
Navarrette responded that cell phones “would be different,” because they’re a personal item.
However, she said that the mayor’s phone would be subject to open records requests because it is paid for by the taxpayers and provided to Hill by the city.
Again, Stewart said the law is clear: the nature of the information determines whether or not it is a matter of public record, not what device is used to transmit or store the information. Communications on a private, personal device are subject to open records requests, if the information contained in those communications involves the public's business. Whether a quorum is present or not is irrelevant.
“All records are public unless there’s an exception saying they’re not public,” Stewart said. “There are already exemptions within the law protecting certain information from release.”
The debate ultimately ended when Hill introduced a motion, which was seconded by Cannon, to take no action on the agenda item and continue the debate during the council’s summer retreat. The motion was passed 4-to-3 with Hill, Sederquist, Cannon and Jeff Seiler voting to suspend the debate.
Hill directed city staff and the City Attorney to produce a protocol of how ORRs would be handled using the new server, who would be allowed to access the server and whether council members could provide comment or make the determination of what emails should be sent to the AG for review.
Cannon also asked staff to provide a clearer explanation of who is legally responsible for ensuring ORRs are fulfilled, and whether having somebody like city staff complete the task on their behalf transferred that legal responsibility to the staff member.
“There’s nothing saying the custodian can’t tell the council members what is being pulled. The law doesn’t prevent them from being notified,” Stewart said, but added that ultimately the decision is up to the records custodian and the city’s attorney and not the individual council members.