Q: The superintendent of a school district I cover sends out a weekly e-mail to school board members. First, do you know where I could find, either in statute or in an attorney general’s decision, whether that e-mail is considered public record? Second, I would like to be included on the list for receiving those e-mails. Do you know of any statute or AG decision that would require the superintendent to include me on the list?
A: E-mail generated by a public official is public information. I don’t know of a Texas attorney general opinion that says a governmental body, like a school district, is required to include a newspaper reporter or private citizen on such a list.
Have you asked the superintendent to include you as an addressee? If the answer is negative, you could submit a public information request. You should be able to submit your request each week via e-mail, as the Texas Public Information Act allows requests to be submitted that way. Odd as it may seem, it could end up saving time by printing the request on letterhead stationery and hand delivering it. Ask the school district secretary or clerk for your request to be time stamped and get a copy for your files.
Next, let’s turn to pp. 14-15 of the Texas Attorney General’s 2016 Texas Public Information Handbook, where you will find the header “Public Information Is Contained in Records of All Forms” under the title “Information Subject to the Public Information Act.” There, it says: “Section 552.002(b) of the Government Code states the Public Information Act applies to recorded information in practically any medium … and the general forms in which the media containing public information exist include a book, paper, letter, document, e-mail, Internet posting, text message, instant message, other electronic communication,” etc.
Now, let’s turn to page 293 of the Texas Attorney General’s 2016 Texas Public Information Handbook. See paragraph (4), Procedures to Obtain Information, and under that, (A) Submit a request by mail, fax, email or in person, according to a governmental body’s reasonable procedures; (B) Include enough description and detail about the information requested to enable the governmental body to accurately identify and locate the information requested; (C) Cooperate with the governmental body’s reasonable efforts to clarify the type or amount of information requested.
Q: I follow Texas Press legislative issues closely, so I know we’re working on legislation to solve the so-called “custodial loophole” that some elected officials use to dodge our public information requests when we ask for the content of text messages they send and receive while on the dais during open meetings and public hearings. So, for the time being, I need official sources to cite in my next public information request, and in my next editorial on the topic. Whatcha got?
A: Text messages, as you read earlier in this month’s Hotline column, are included in the definition of public information, so here is another item, an excerpt from pp. 21-22 of the Texas AG’s Open Meetings Handbook:
“F. New Technologies and Social Media
“In response to its charge to consider how advances in technology and increased use of social media affect the communications of governmental bodies, the Senate Committee on State Affairs prepared an Interim Report to the Eighty-second Legislature.
The Interim Report acknowledged the challenge that new technologies present in complying with the Act. It said:
‘The walking quorum concept combined with newer technologies such as microblogs (e.g., Twitter), social media websites (e.g., Facebook), text messaging and instant messaging, raise new issues for consideration by the Attorney General, the courts and the Legislature. Neither the courts nor the Attorney General have determined the applicability of the [Act] to these new technologies, however, under the current interpretations of the Act, a quorum would exist if a majority of the governmental body discusses public business on a Facebook wall. The Facebook wall could be closed to the public, or open; however, absent prior notice of the “meeting” the [members of the governmental body] could be in violation of the [Act]. A similar situation could arise with Twitter where members can have public or private accounts.
“The Eighty-second Legislature considered various bills that would amend chapter 551 regarding such new technologies and social media, but enacted none. The Eighty-third Legislature did not enact any new provision expressly related to social media, although it authorized governmental bodies to communicate through an online message board under section 551.006. The Eighty-fourth Legislature did not enact any provisions allowing open meetings on social media, but it did expressly provide, in amending section 551.128, that archived copies of recordings of meetings can be kept on publicly accessible video-sharing or social networking sites.’
Q: We’re the newspaper of record for our local governmental bodies. We’ve had to write and publish stories recently that could be interpreted as tough on the city council. Now, for the first time in the long history of this newspaper, we are being asked to give a “quote” for the cost of a public notice. We are a Type A general law city. This is a notice of a proposed rate change for city services. Is public notice required for this proposed rate change?
A: Attorney Don Richards of the Lubbock, Texas, law firm of Richards, Elder & Green, responded: “A city is indeed required to give public notice when utility rates are raised to its customers who live outside the city limits.”
For emphasis, Richards forwarded a May 2009 Texas Municipal League Q&A by its legal counsel Lauren Ford Crawford, in which she responds to the question, “Is notice to customers required when a city water or sewer utility raises rates?”
“Only for customers outside the city limits,” Crawford wrote. “Under Texas Water Code §13.043, the governing body of a municipally owned utility, within 30 days after the date of a final decision on a rate change, shall provide individual written notice to each ratepayer eligible to appeal who resides outside the boundaries of the city. The notice must include, at a minimum, the effective date of the new rates, the new rates, and the location where additional information on rates may be obtained. The purpose of the notice is to give those customers the opportunity to appeal the rate change to the Texas Commission on Environmental Quality (TCEQ) within 90 days after notice of the rate change by the city. If the TCEQ determines that the rates imposed upon the out-of-city customers is unreasonable, it may fix new rates in its final order and include reasonable expenses.”