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Lawsuit tests use of private e-mail for public business

NEW YORK, March 4 (Reuters Legal) - A lawsuit filed against the mayor and city council of Austin will test whether public officials in Texas can use their private e-mail accounts to hide communication about government affairs from public scrutiny.

Rulings in similar cases in other states have generally found in favor of public disclosure.

The suit, filed on Tuesday in state District Court in Travis County by the Austin Bulldog, a local news website, alleges that members of the Austin City Council broke open-records laws by failing to release private e-mails, text and instant messages that relate to city business.

The plaintiffs argued that Texas law requires city employees and officials to turn over local government records even when they're written on personal devices. "We believe that technologies like e-mails, instant messaging have been misused, and record retention laws haven't been enforced," said Bill Aleshire, an attorney for the plaintiff and a partner at Riggs, Aleshire & Ray in Austin. "City employees and officials have been transacting government in the shadows by using their own personal equipment."

Austin city spokesman Doug Matthews declined to respond to specific allegations in the case, but said that Texas law is unclear on which electronic communications are subject to disclosure laws. He pointed to three related cases currently pending in the state. "We're not alone in this," said Matthews. "In fact, statewide it remains an open question because the state law doesn't address private text and e-mail messages."

The Austin Bulldog filed a public information request in January for copies of all written communication between Austin City Council members and the mayor in 2010. The city delivered some e-mails last week, but the Bulldog said the city did not release all communications, including those relating to city business from council members' personal phones and e-mail addresses.

The suit said city officials have used private e-mail and phone accounts to "keep substantive communications" away from public view. In one example cited in the suit, a council member asked a constituent to switch to the councillor's personal e-mail address to continue discussing tax subsidies for a shopping center.

It further alleged that the city's internal instant-messaging platform is a "secret messaging system… established to avoid retention of certain public records." The complaint was based on the Texas Public Information Act and the Local Government Records Act, which prohibits destroying or intentionally withholding communications of public record. Most states have some form of open-record legislation that defines retention requirements and access procedures for public records.

In recent years, courts have ruled in favor of public disclosure, said Benjamin Wright, a Dallas-based attorney who specializes in data security law. He cited a 2007 case in which a Kentucky judge required the state government to turn over copies of e-mails between two state employees, and an Arizona case the same year in which that state's Supreme Court held that a trial judge must decide whether a county official's e-mails were private. He also pointed to a 2008 decision by the Ohio Supreme Court that deleted e-mails of county commissioners must be recovered.

(Reporting by Moira Herbst of Reuters Legal)

This article first appeared on Westlaw News & Insight (http://www.westlawnews.com)

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