County Commissioner Adkisson emails on personal account “public” under PIA says Austin Court of Appeals

Tommy Adkisson v. Greg Abbott, Attorney General of Texas, 03-12-00535-CV (Tex. App. – Austin, June 13, 2014).

This is a Public Information Act (“PIA”) case where Bexar County Commissioner Adkisson sought to withhold County emails sent to him on his personal email account.  This PIA request and suit was brought prior to the 2013 amendments to the PIA making public all emails regarding public business, regardless of whether they are on personal or entity email accounts.

Hearst Newspapers, LLC, sought correspondence from Commissioner Adkisson’s personal e-mail accounts related to his official capacity as a county commissioner or as chairman of the San Antonio-Bexar County Metropolitan Planning Organization, or both. The Texas Attorney General opined the emails were public and must be released. Adkisson filed suit in district court to withhold the emails, but the trial court granted the Newspaper’s and AG’s summary judgment motions holding the emails were public. Adkisson appealed.

Adkisson argued the emails in his personal e-mail accounts, regardless of thier content, are not public information as defined by the PIA because they were not either collected, assembled, or maintained by the governmental body or prepared on behalf of the governmental body and the governmental body did not have a right of access to the correspondence [old statutory definition prior to amendment]. Adkisson further argued that the County could not search his personal email accounts as he had an expectation of privacy and a constitutional right not to be subject to a search without probable cause [mainly because the AG is also the enforcement arm for various violations]. The court went through the former language of the PIA and determined the “official-capacity emails” were emails created in Adkisson’s role with the County and Metro Planning Organization and the emails were part of his transactions for the entities. The court then examined the records management laws and County retention policies, noting that no employee has a right privacy in any public document. Further, the Bexar County policy specifically stated that all documents created or received by the office or any of its officers or employees in the transaction of public business were to be retained as public records.

Most significantly, though, the court held that the Commissioner, as an elected Bexar County officer, “is the officer for public information and the custodian, as defined by Section 201.003, Local Government Code, of the information created or received by that county officer’s office.”  This provision applies to county commissioners, but not to other forms of governmental officials like city council members. However, as the County Commissioner, Adkisson is statutorily charged with the duty of acting for the County as the custodian of records for the County for his precinct. “In other words, as Commissioner, he is responsible for maintaining public information created or received by him or by his employees or his office—no matter where that information is physically created or received—for the County.” As a result, the emails in his personal account are owned by the County under his statutory obligation and subject to the PIA.  The court was careful to qualify that the emails were owned by the County only under these specific circumstances. The court then examined Adkisson’s privacy interests but dismissed the arguments stating the Commissioner never articulated the scope of privacy interest at issue. When elected, he relinquished some, but not all, of his privacy interests, at least with regards to his work as a Commissioner. Finally, the trial court did not abuse its discretion in awarding attorney’s fees. [Comment: some of the court’s holdings can be used in PIA arguments in the future for other officials, but most of them are not going to be applicable given the statutory amendments in 2013].

If you would like to read this opinion click here. Panel: Justice Puryear, Justice Rose and Justice Goodwin. Opinion by Justice Puryear. The attorney listed for the AG is Ms. Pat Tulinski.  The attorneys listed for Adkinsson are Ms. Erin A. Higginbotham, Mr. George E. Hyde and Ms. Jennafer G. Tallant. The attorneys listed for the newspaper are Mr. Ravi Sitwala and Mr. Jonathan Donnellan.