United States: Privacy In A Public Office? How The PIA Addresses Texts, Tweets & Posts

In the new world of greater digital communications and the ever-present, always-active smart phones, the traditional boundaries between personal and professional communication are blurring, and – in some cases – disappearing. Today, we're going to address some of the new compliance challenges this new reality creates for governmental entities responding to requests for public information under Texas Government Code Public Information Act.

Consider these scenarios:

• A county government receives a request for the disclosure of e-mails written from a county commissioner's private e-mail account. The requestor claims the emails relate to county business. The county neither pays for nor maintains the computer, the network, or the e-mail account on which the e-mails were created, exchanged, and stored. Must the county conduct a search of the commissioner's private e-mail account and produce e-mails it deems to constitute public information that are within the scope of the specific request?
• A school board official and her staff member are observed during a school board meeting appearing to send text messages, perhaps between one another. The district receives a request for all text messages relating to school board matters exchanged on the official's and employee's privately-owned smart phones. What obligation does the district have to determine which text messages relate to official matters, to protect private information from disclosure, and to produce any responsive text messages? Is the district subject to a risk of liability if the individual's private information is inadvertently disclosed?

In these scenarios, the governmental entity and the governmental employees or officials are faced with two compelling but competing interests: the public's right to information about the workings of its government, versus the individual privacy interests of elected officials and governmental employees.

How do e-mails, texts, and other digital communications among elected officials, private citizens, and staff members affect the public's right to observe the workings of the governmental body? Does it matter whether the hardware, software, and modes of transmission of such communications are under the actual or financial control of the governmental entity? How should the governmental entity respond to requests for such information?

Governmental entities and their employees and officials in Texas are subject to the Texas Public Information Act (now "PIA," formerly, and still sometimes affectionately, referred to as the Open Records Act).

The PIA creates the presumption that all records made, kept or maintained by a governmental entity are public unless a specific exception to disclosure applies. The policy underlying the PIA is to promote the citizenry's right to be informed of the workings of government. In fact, both civil and criminal penalties exist for noncompliance with the PIA.

The PIA has always, and, hopefully, will always exempt personal communications from disclosure. Nevertheless, when documents, including emails and texts are made using governmental email or phone systems, the governmental entity may have "responsive" documents that contain private information that it will have to timely submit in-camera to the Texas Attorney General.

If you lose that argument, even purely personal communications, and sometimes quite embarrassing ones, might have to be disclosed. So, in that regard, you may wish to always use a private computer and private account for purely personal communications. However, don't – I repeat, don't – use that private device or private email for governmental business hoping to avoid PIA. That can get you in a ton of trouble.

Will you be obliged to search through personal accounts and devices to find public information?

Yes.

Recent Texas Attorney General open record rulings require access to information that public officials and employees may have thought were protected. The crux of the rulings is that it doesn't matter who owns the device or the medium, it is the content of the communication that makes it a public record; ownership and control of the medium of communication are irrelevant.

Governmental entities and their supervisors need to immediately advise elected officials and governmental employees that public matters, regardless of how the information is transmitted (through work or personal accounts and devices), may be subject to document retention rules and may have to be disclosed in response to open records requests.

In one opinion, the Texas Attorney General concluded that e-mails sent to and from school board members' personal email accounts and maintained on the board members' personal home computers is public information subject to the PIA if it relates to school district business.¹

In a similar case, a county received a request for e-mails between several named individuals, including a county commissioner. The county argued that, because the county did not own or have access rights to the information, the e-mails were not public information under the PIA. The county also argued that its search for information on an individual's private account would violate privacy rights granted by the Texas and U.S. Constitutions. Rejecting the county's arguments, the Attorney General concluded that the county commissioner was required to release "public information" maintained in his personal email account.²

What about Text Messages?

Although several rulings have been appealed to the courts, we have few published legal opinions from Texas courts to guide governmental entities on what parameters should be developed for digital media that doesn't have a repository like emails do. Also missing is any guidance on how a governmental entity is supposed to obtain data from private accounts and devices. Anyone who has tried to subpoena text messages knows there are numerous obstacles to obtaining text messages from carriers, even when the person requesting is the author of those messages!

At this point, governmental entities, officials, and employees should be aware of the concerns raised by use of all forms of digital communications, especially text messages, even if the communications are created on personally-owned and -maintained devices. Until further guidance exists, governmental entities, officials, and employees should not assume that personal digital communications will not be subject to claims that they be disclosed to the public.

Governmental officials and employees must exercise caution and a high dose of common sense in writing and sending texts, posts, tweets, emails and any other communications from their personal electronic devices. While difficult to enforce, one suggestion is to require governmental employees to use only governmental property and accounts with automated document retention policies in place when communicating about governmental business.

Remember: Technology can create a more connected society, but it does blur the lines between personal and professional communication. While the laws governing compliance in this brave new world continue to develop, it is best to consult your legal counsel to gain insight regarding how the most current decisions and rulings apply to your governmental entity.

Footnotes

1 Tex. Atty. Gen. Op. No. OR-0951 (2003).

2 Tex. Atty. Gen. Op. No. OR2010, affirmed by Adkisson v. Abbott, No. D-1-GN-10-002120 (200th Dist. Ct. Travis County, Tex., Aug. 7, 2012, pet. filed).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.