Further thoughts on the new ballot language for Prop 1...

The Austin City Council has released the final ballot language for the upcoming propositions including the citizen-initiated Prop 1 and 2. For the first time in Texas history, a municipal council was directed by a court to rewrite ballot language as it was found that the language did not "present a fair measure of the proposed measures [and] chief features" and gave the City Council a deadline to change the language. Since I covered the last, and now found illegal, ballot language, I'll do the same for this final version. But first, the standard disclaimer:

Although I currently work for the City of Austin, I am in no way representing or advocating *any* official position of the City in this matter. I am writing this as a concerned citizen of Austin who would like to see our government as transparent and efficient as possible and I am using information that is publicly available elsewhere to make my points.

At this time, I am neither for nor against the proposed Charter amendment. My focus with this post is to try and bring a non-biased look at the proposed amendment and the ramifications it would bring if enacted. This opinion is put forward in the hopes it will facilitate discussion and will bring other concerned citizens into the issue. So please, do not read anything into this post that is not explicitly stated.

The City Council's final language appears thusly:

Proposition 1:
Shall the City Charter be amended:

1. to provide online access to public information, which for the most part is already available, by creating an online electronic data system for most City communications and documents at taxpayer expense;
2. to require that private citizens' emails to public officials be placed on the City website in "real time," including emails or electronic communications between private citizens and public officials in all City departments, and limit the ability of citizens to keep private the details of these communications, unless legal exceptions apply;
3. to require that the heads of all City departments, all city manager's staff and all city council members and their staff post online in "real time" information about meetings and phone calls with private citizens; and
4. to prohibit the city from exercising state law protection for information that could expose the City and taxpayers to greater financial and legal liability and risk?

So let's again breakdown each section.

1. to provide online access to public information, which for the most part is already available, by creating an online electronic data system for most City communications and documents at taxpayer expense;

This is more representative than the last ballot language which included sections on certain departments possibly releasing private information (Library, Health clinics, Police Department, etc) which Proposition 1 did not call for. "For the most part," this statement is accurate and correct but it does miss a crucial goal of the amendment: efficient access to public information. While it's true that most of this information is available, the Open Records request mechanisms employed by the different departments throughout the city are not efficient. The request can take as much as 10 days before the requestor even knows if the information can be retrieved. The amendment seeks to clarify and accelerate the public's access to this public information by putting online as much public information as possible (and, most importantly, where approved by City Council) to let the public find what it needs without using valuable employee time first. As mentioned elsewhere, APD alone will have to fill 2500+ Open Records requests this year and countless hours of employee time will be used in fulfilling those requests. The amendment's core argument is that it is more efficient for the public to search these records first and then be able to put in specific requests for particular information than the current system.

2. to require that private citizens' emails to public officials be placed on the City website in "real time," including emails or electronic communications between private citizens and public officials in all City departments, and limit the ability of citizens to keep private the details of these communications, unless legal exceptions apply;

This statement is still misleading. First, the premise that email will be placed on the City website in "real time" is not required by the amendment. The ballot language premise is a very broad interpretation of the clause "expeditiously as possible and to the greatest extent practical" and does not mention to the voters the circumstances that would have had to happen for that situation to become realistic. The City Council is the determining body on the practicalness of any measure that is not explicitly stated within the amendment so this situation would have to be:

1. Sponsored by some department, citizen's initiative, etc., to be placed on the Council's agenda.
2. At that meeting, Council would have to deem that situation practical.
3. If found practical, Council would have to draw up ordinances and resolutions to meet and enforce the requirements of the situation.
4. Council would have to pass the ordinances and resolutions.

So, if "real time" posting of email on the City's website ever does happen, you can lay the blame squarely on the City Council as they would have been the ones who found the situation to be for the public's benefit. Just for argument's sake, other scenarios that could have been used by the Council on the ballot that would have been just as misleading could be the amendment calls for all private citizen's Social Security numbers to be placed on the City website in "real time," or that all victim's records at APD will be placed online in "real time" (I've actually heard people mention that one). The amendment simply does not call for these scenarios nor would the amendment supercede any current state or federal laws in place to do so.

Council Member Brewster McCracken has stated that the email issue had been "[...] litigated and you all lost. ... [T]his language has been upheld as being accurate." At the time, he was talking to the amendment supporters in the Council chambers who rewarded this false statement with an appropriate response (boos and catcalls). As explained in this post, from the judge's own ruling, speaking specifically about the email issue, he stated "I don’t know that there are any city departments that would be excluded but certainly private citizens emails to any public official because there are exceptions that apply." As mentioned by myself and others, and which is validated by the state judge, private citizen's email has exemptions and, for various reasons, may not be put online. The City Council and their supporters *really* need to drop this red herring...

I'm still having a hard time finding the section that the Council is referring to when talking about "limit[ing] the ability of citizens to keep private the details of these communications,". There is nothing in the amendment that limits the citizen's right to privacy when dealing with their government. There is language that makes it harder for the City Council, City Managers, Division heads and their staff to keep their calendars and non-public meetings about City business with others secret. There is language that makes it harder if you are seeking economic benefits from the City to keep those negotiations secret. There is further language that makes it harder to keep the misconduct of police officers secret. But if you are a private citizen, all of the federal, state and local privacy laws on the books are not superceded by this amendment and will remain so. I can't stress this enough.

Finally, I would like to give some credit where it's due. Council Member Jennifer Kim tried to add more descriptive language to the ballot on this point. Specifically, she tried to have the words "consistent with state and federal privacy protection laws" substituted for the phrase "unless legal exceptions apply." Council Member Kim, I commend your attempt and agree that your phrase is much closer to what the judge ruled in his decision and thank you for your attempt at clarification.

When I first read this clause in the original language, I withheld my personal comments through the litigation that followed in the hopes that the Council would change the language and drop this fallacious clause. I'll go out on a limb here... If Proposition 1 is defeated, it will be challenged in court and it will appear on a later ballot because of this clause. Council Members McCracken, Dunkerly, Leffingwell and Mayor Wynn, your steadfastness to this particular language will cost the city more future litigation, the costs associated with it and another dubious legal distinction for this City Council.

3. to require that the heads of all City departments, all city manager's staff and all city council members and their staff post online in "real time" information about meetings and phone calls with private citizens; and

This is another misleading statement about what the amendment calls for. The relevant section from the amendment follows:

(B)OPEN ACCESS TO CITY CALENDARS

1. For all matters involving City business, the following people must maintain calendars of all meetings and maintain logs of all telephone calls:
   1. City Councilmembers and their staff;
   2. City Manager and his or her staff;
   3. Assistant City Managers and their staff; and
   4. all department heads.
2. These calendars and logs must contain the time, date, subject matter, and persons involved in all meetings and telephone calls involving City business. These calendars must be used to schedule and record all past and future meetings that occur after the implementation date of this section.
3. Calendars and logs must be posted online in real time and be accessible to the public.
4. “Meetings” includes all informal and formal meetings including but not limited to telephone conferences, videoconferences, happy hours, and luncheons.
5. This provision must be implemented within six months of approval of this amendment.

I highlighted the relevant sections in that clause. If you are a private citizen and you are speaking to a public official through one of the listed means about City business, then, according to the amendment, that must be noted in the appropriate log. The federal government, proposed by none other than one of the most conservative members of Congress, Newt Gingrich, follows much the same system. It is a way the public can see who their elected officials are talking to and about what subjects. If you are going to call Mayor Wynn and tell him how great or not great he is, there is no need to record the call as that is not City business. Further, if a Council Member calls their doctor, that call is not subject to the documentation clause. Only City business is required to have the notation. Another branch on that limb... This clause will also be seen by a later court to be misrepresentative and misleading and will help to overturn a defeat of the proposition.

4. to prohibit the city from exercising state law protection for information that could expose the City and taxpayers to greater financial and legal liability and risk?

This section must be referring to the requirement of the amendment that pertains to public information. Here is that section from the amendment.

SECTION 4: Public Information.

The term “public information” means information that is required to be produced under Texas Government Code § 552.021. Public information also includes the following categories that must be produced in response to a public information request:

1. INFORMATION RELATING TO CIVIL LITIGATION. That the City is a party to litigation does not render information relating to that litigation less important; rather it often means the information is a matter of heightened public interest. Therefore, the City must not withhold information relating to civil litigation under Texas Government Code § 552.103, but it may withhold under other Public Information Act exceptions.

First, the amendment states that the City cannot withhold information under the following Texas Government Code section:

§ 552.103. EXCEPTION: LITIGATION OR SETTLEMENT NEGOTIATIONS INVOLVING THE STATE OR A POLITICAL SUBDIVISION.

1. Information is excepted from the requirements of Section 552.021 if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party.
2. For purposes of this section, the state or a political subdivision is considered to be a party to litigation of a criminal nature until the applicable statute of limitations has expired or until the defendant has exhausted all appellate and postconviction remedies in state and federal court.
3. Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information.

Added by Acts 1993, 73rd Leg., ch. 268, § 1, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. 1319, § 6, eff. Sept. 1, 1999.

From this summary, under the “litigation exception,” a governmental body can withhold information about pending or reasonably anticipated civil or criminal litigation. This exception allows the government to hold back otherwise releasable public information because it feels there is or may be some sort of litigation that might include that information. This is an important concept to grasp. The information being sought by the public does not have to be actually involved in litigation; it just has to be deemed by someone in government that it might, at some point in the future, be part of a litigation claim. Further, the entity can keep this information secret until the statute of limitations expires for the whatever the phantom offense this information may be involved in.

As these examples show, this section of the Public Information Act has been abused by government entities in the past. Historically, this exemption in the Texas Public Information Act has been used in 2 ways:

1. a shelter to keep clearly public documents secret that otherwise would not be exempt and
2. as a delay tactic to allow further court motions and "grandfathering" claims to be filed on a dubious ordinance or law.

Proposition 1 still allows the broad and correct exemptions for attorney work product and attorney client privilege that will protect all information related to any litigation the City may be party to. The City does not need this exemption and it's prohibition will not expose the "City and taxpayers to greater financial and legal liability and risk." The City can still use the other numerous, broad and generous Public Information exemptions that protect Public Information through any litigation process. The prohibition in using this one exemption will make it easier for private citizens and watchdog groups to get the public information they already own even if it might cause embarassment or legal problems for some in the government.

So, in summary, I still feel the language on the ballot is misleading. I also feel that even though the City Council has tried their best to stack the deck against this initiative, it will still be a close vote come election day. I guess we'll see how things shake out.

Revision history:

• 4/28/06 - I was mistaken that it was a federal court the city was sued in. It was actually the 345th Judicial District State court and I removed the reference to a federal court from the post.