Tag Archives: PUBLIC INFORMATION ACT

Dawg Bones

The Boeing Case and Why It Matters…

During this legislative session you are likely to hear a lot about the Public Information Act.  Senator Kirk Watson (Austin) and Representative Giovanni Capriglione (Keller) have introduced legislation that would change the PIA, closing what the legislators call a giant loophole. It all goes back to the case of Boeing Company v. Paxton. 

Boeing tried to block the public disclosure of certain information that was contained in its lease of space at Kelly Air Force Base in San Antonio.  Boeing claimed that disclosure of this financial information would give an advantage to its competitors on future projects.  The Attorney General rejected Boeing’s argument and ordered the release of the information.   The district court in Austin and the Court of Appeals also ordered the disclosure of the information. But the Texas Supreme Court saw things otherwise, and ruled in favor of Boeing.

The key issue was whether or not Boeing, as a private party, could raise the issue at all.  The PIA allows information to be withheld from public disclosure if its release “would give advantage to a competitor or bidder.”  In accordance with the historical interpretation of this exception, the AG ruled that only the governmental entity could raise this issue.

Think of it this way: assume that your school district is asked to release financial information pertaining to the Acme Widget Company, which has bid on a project.  Your district is concerned that the release of the information about Acme would benefit other bidders, thus impairing the ability of your district to get the best deal.  According to the A.G., your district could cite the PIA exception, but Acme could not.  If your district chose to release the information, Acme could do nothing about it.

The Texas Supreme Court changed that in its Boeing decision. It held that the private party could also raise the exception, and if it could establish that the release of the information would give its competitors an advantage, it could seek to have the information withheld.

Senator Watson and Representative Capriglione describe this as a gigantic loophole that is keeping important information away from the public. So keep an eye on these bills as they make their way through the legislature.

The case of The Boeing Company v. Paxton was decided by the Texas Supreme Court on June 19, 2015.  We found it at 466 S.W.3d 831.

DAWG BONE: THE PIA: ONE MAN’S REASONABLE EXCEPTION IS ANOTHER MAN’S LOOPHOLE. 

 File this one under: GOVERNANCE and PUBLIC INFORMATION ACT

Tomorrow: Coming to midwinter?

Dawg Bones

Can someone get my personal email address through a Public Information Act request?

Let’s suppose that you are a member of the local school board.  You have an email address that the district has provided for you, and you are encouraged to use that account for all school-related business.  Of course you also have your personal email address.  Sometimes you use your personal account for school business. It’s just more convenient sometimes. Or perhaps you are communicating with a voter in the district who happens to have your personal email address.

Then someone files a PIA (Public Information Act) request for all school-related emails, whether on the district account or your personal account. Your lawyer has advised you that the content of your emails is “public information” and will have to be disclosed, regardless of what device or what account you used. But what about your email address? Doesn’t the PIA specifically say that an individual’s personal email address is confidential and can be redacted?

That was the issue in the recently decided case of The Austin Bulldog v. Leffingwell.  The Court of Appeals in Austin noted that the PIA does allow redaction of personal email addresses of “a member of the public.”  When the Austin Bulldog obtained email correspondence among the Austin mayor and city council members, the private email addresses of the city officials were redacted. The Bulldog went after those addresses (what…..you would expect the BULLDOG to back off?  No way!).  The Attorney General backed the city on this one. The AG construed the phrase “a member of the public” to be just as broad as it sounds. Read literally, “a member of the public” certainly would include the mayor and all of the council members.

But the city was dealing with The Bulldog! So the matter went on to court. The specific language in the PIA at issue was Section 552.137(a):

Except as otherwise provided by this section, an e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body is confidential and not subject to disclosure under this chapter.

It’s pretty obvious what the purpose of that section is.  Joe Q. Public sends an email to his elected representative.  Joe should not have to sacrifice his privacy for the privilege of communicating with a governmental official. So his address is confidential since he is “a member of the public.”

As the Third Court points out in its opinion, the term “a member of the public” is used to distinguish Joe from the elected representative that he is communicating with.  Thus the key holding of this case:

Accordingly, we hold that “member of the public” in PIA section 552.137 does not include a person who is part of the governmental body that was “communicat[ed] with” by email.

School board members sometimes say “I didn’t do that as a board member.  I took off my board hat and put on my private citizen hat.”  That can happen sometimes.  For example, suppose a school board member sends an email to Governor Abbott asking him to grant a stay of execution to someone on death row.  This has nothing to do with school business.  In that case, the board member is “a member of the public.”  But when someone files a PIA request for emails that address the business of the school district, the personal email address of the board member cannot be redacted.

The Bulldog case was decided by the Third Court of Appeals, Austin, April 8, 2016; Docket No. 03-13-00604-CV.

DAWG BONE: SCHOOL BOARD MEMBER’S PERSONAL EMAIL ADDRESS MIGHT BE DISCLOSABLE UNDER PIA.

 

TOMORROW: WHAT SHOULD WE DO IF THE BUS ROUTE TAKES US PAST THE HOME OF OUR LOCAL NUDIST????