A proposed city ordinance that attempts to define what information about official business should be made available to the public is drawing criticism from local residents and lawyers across the state.
The proposed ordinance would define what is considered official business, set guidelines for the city on what information could be released to the public and delineate the difference between private and public communications.
City Council members and the city attorney argue that the Texas Public Information Act and the Texas Local Government Records Act do not clearly explain the meaning of "transaction of official business." They say the ambiguity has led to confusion and the invasion of privacy, in which personal emails and other forms of communications can be sought.
The proposed ordinance was written by the City Attorney's Office at the request of the City Council.
Two lawyers who specialize in First Amendment law disagree and say the proposed ordinance crafted by the city will make obtaining information more difficult. A recent Texas attorney general's opinion also makes clear that personal documents are subject to open record if they contain city business.
El Paso is now suing the attorney general to try to block the release of some records, including possible conversations about the new Downtown ballpark that might have taken place in personal emails.
"It appears to me that the city is attempting to make information that is in the possession of public officials, that might actually be governmental records, such as emails and text messages, harder to get," said Charles Daughtry, a Houston attorney with a specialty in freedom of information. "The point of these acts are to keep these taxpayer-funded institutions honest, to create transparency. This may do the opposite."
City Rep. Susie Byrd and City Attorney Sylvia Borunda Firth said Daughtry is misreading the ordinance. The intent of the proposal is to protect city employees' privacy, both said.
"I feel it's wrong for someone to just go through all of my email," Byrd said. "So we're trying to be proactive and give guidelines so this doesn't happen."
The ordinance does instruct city employees to immediately hand over official business communications if they take place on a a personal account, which includes electronic devices. That makes the city go beyond the state code and be even more transparent, Byrd and city Rep. Steve Ortega said.
State law is already clear, said Daughtry and a fellow First Amendment attorney, Bill Aleshire,who is currently fighting the city of El Paso to release emails on the ballpark and other issues. Though privacy is a concern, city employees made the choice to co-mingle private and public records for city business, Aleshire said.
The attorney general made the same argument in an opinion to the city in November, several months before the proposed ordinance was drafted.
"This office has found that information in a public official's personal email account and home telephone records may be subject to the (Public Information) Act where the public official uses the personal email and home telephone records to conduct public business," the opinion states. "Thus, to the extent the emails originally located in personal email accounts relate to the official business of the city, they were subject to the Act."
The proposed ordinance also goes beyond privacy. It defines the "transaction of official business" and also provides examples that are not public business.
Firth calls it an attempt to clear up gray areas in state law. Aleshire argues that this is illegal because a city can't redefine state law.
"No city has authority to weaken the application or narrow the scope of the Texas Public Information Act, which essentially makes some of this void," Aleshire said.
The proposed ordinance attempts to define what would be considered official city business. It says official business would be any communication between city employees, volunteers, elected and appointed officials only when those people are performing their job for the city.
Daughtry called the definition vague at best and possibly limiting.
Aleshire questioned whether communication between employees or residents or employees and businesses would be included. The definition could exclude MountainStar Sports Group, which bought a Triple-A baseball that will play in a $50 million stadium to be built where City Hall is now located, he said. Some of the wording could provide a narrow definition that work done outside City Hall, off the clock or voluntarily might not fall under city business, Aleshire added.
"It looks to me that like this ordinance, as written, will still be used as an excuse to let city officials communicate about the public's business using private email accounts to hide that discussion from the public," Aleshire said.
The definitions of what is not official business also raise concerns, both lawyers said. Political communications, union communications and communications made on behalf of another organization are not subject to public records under the ordinance.
The law did not specify whether those communications were those transmitted using public or private accounts, but Firth clarified that it applies only to private-account communications.
Daughtry said the term "political" is unclear. Plenty of City Council action could be considered political, and this ordinance might prevent possible records from surfacing, he said.
Firth said "political" referred to campaign business, and there is a similar stipulation in the state law. But Daughtry said there's a difference and also pointed out that the business communications could present a slippery slope.
" 'Political' might be construed as an email from the city manager suggesting what to fund or how to approach a certain dissenting group," Daughtry said. "What if a city employee is spending six hours a day working on another business through his personal email. The taxpayers, who fund his paycheck, may never know."
There's also a provision in the ordinance that says if a dispute arises over what's private and public, the city may petition district court. Daughtry said that could cost thousands of dollars and delay the release of records.
Aleshire also pointed out that communications, under a strict definition, might not include calendars, receipts or notes which could contain valuable information about city business.
The city maintains it's using an ordinance similar to one passed by Austin, which has drawn praise from First Amendment lawyers, including Aleshire. There are some similarities -- including directives to use city accounts when conducting city business and forwarding city business sent to personal accounts to city emails.
But the Austin ordinance does not define the transaction of official business, which is much of the heart of the El Paso proposal.
"It's pretty outrageous," Aleshire said. "I've never seen a city do this, and quite frankly this ordinance simply negates what the Public Information Act is all about."
A public hearing on the ordinance will take place March 5.
Evan Mohl may be reached at firstname.lastname@example.org; 546-6381. Follow him on Twitter @EvanMohl.