When are Texas Government Officials' Personal Email Addresses Public Records?
In 2011, The Austin Bulldog, an online news site, filed a number of open records requests pursuant to the Texas Public Information Act to gain access to email communications among a host of Austin city officials. The City ultimately complied with these requests, but for those communications that were transmitted using personal email addresses, the City redacted those email addresses. The City cited the “email address of a member of the public” exception to disclosure found in Tex. Gov’t Code § 552.137 (a), in essence arguing that the city officials were members of the public for whom email addresses cannot be disclosed unless that “member” consents. Consequently, the Bulldog sued the city and its officials, seeking a declaration that the personal email addresses of city officials conducting government business using those addresses are public information and an order requiring production of the addresses. After a state trial court granted the city’s motion for summary judgment, the Bulldog appealed.
In a case it termed a matter of first impression, the Texas Court of Appeals for the Third District (Austin) reversed the ruling of the trial court and rendered a judgment in favor of the Bulldog, holding that the personal email addresses of Texas government officials who use these addresses to conduct public business are not exempt from disclosure under the “member of the public” exception to the Texas Public Information Act. Essentially, this exception shields from disclosure the personal email address of a member of the public when that member is communicating with the governmental unit, unless the member of the public consents to its disclosure. In its analysis, the state appellate court examined the plain meaning of the phrase, finding it to mean “a person who belongs to the community or people as a whole” (internal citation omitted). However, the court also noted that “context matters,” and in this context found that “[w]hen ‘member of the public is used in conjunction with an identified or identifiable group (or groups)—as it is here with ‘governmental body’—its meaning is contextually modified to mean a person who does not belong to the identified group.’” Thus, citing many examples from case law, statutes, and even print media, the court found that the city officials in this context are not members of the public; rather, those who communicate with city (or other government officials) are members of the public to whom the exemption applies. Finding that the exemption does not apply to governmental officials, the appellate court ordered that the City disclose the personal email addresses contained on the email communication of the city officials.
The Austin Bulldog v. Leffingwell, 2016 Tex. App. LEXIS 3652 (Tex. App.—Austin 2016)