The University of Texas School of Law Presented: The University of Texas School Law 2012 School Law Conference March 1-2, 2012 Austin, Texas Emails, Text Messages and Social Media: Open Records, Open Meetings and Privacy Andrew Weber Andrew Weber Kelly Hart & Hallman 301 Congress, Ste. 2000 Austin, TX 78701 [email protected] 512-495-6451 TABLE OF CONTENTS Page I. History................................................................................................................................. 1 II. Scenarios ............................................................................................................................. 2 A. Records ..................................................................................................................... 2 B. Meetings ..................................................................................................................... 2 III. Basic Law and Issues ......................................................................................................... 3 A. Open Government—Gov’t Code Chapter 551— a/k/a Open Meetings Act .......... 3 1. Issues ........................................................................................................... 3 a. Walking Quorum/Email .................................................................. 3 b. Free Speech ..................................................................................... 3 c. New Issues ...................................................................................... 4 B. Open Records .......................................................................................................... 4 1. Issues ........................................................................................................... 4 a. Emails on personal phones.............................................................. 4 b. Time to provide documents or request AG opinion ........................ 4 c. Legislative exception and non-disclosure agreement ..................... 4 2. New Issues .................................................................................................. 4 a. Interim Charges to Senate Committee on Open Government..................................................................................... 4 b. Third Party records ......................................................................... 4 c. New technologies such as personal cell phones and emails ........... 5 d. Record retention issues ................................................................... 5 e. SB 701 ............................................................................................. 5 f. May refuse to disclose documents that subject government employee to imminent physical harm. ............................................ 5 g. Be wary of record retention issues on emails, postings on social media—have you created a document? ................................ 5 3. Miscellaneous ............................................................................................. 5 a. Logistics, etc. .................................................................................. 5 I. History 1969. The Sharpstown Scandal. According to Wikipedia, the scandal revolved around Houston banker and insurance company manager Frank Sharp and his companies, the Sharpstown State Bank and the National Bankers Life Insurance Corporation. Sharp granted $600,000 in loans from his bank to state officials who would, in turn, purchase stock in National Bankers Life, to be resold later at a huge profit, after Sharp artificially inflated the company's value. One of the victims of the scandal, Strake Jesuit College Preparatory, lost $6,000,000 following the advice of Sharp. The school bought the resold stock at $20–26 a share.[1] Using the stock as encouragement, Sharp pushed for legislation that would benefit National Bankers Life, increasing the value of the company to its investors; the very people who would push the legislation through. The scheme succeeded in generating profits for the investors on the order of a quarter of a million dollars, but the U.S. Securities and Exchange Commission (SEC) stepped in early in 1971, filing criminal and civil charges against former state attorney general Waggoner Carr, former state insurance commissioner John Osorio, Frank Sharp, and a number of others. By the middle of 1971, anyone in the state government who might be connected to Sharp was heavily pressured politically. Allegations of bribery to push the favorable bills through the government spread to House Speaker Gus Mutscher, Jr., State Representative Tommy Shannon, state Democratic chairman, state banking board member Elmer Baum, Lieutenant Governor Ben Barnes and even Governor Preston Smith. 1971. The Sharpstown Scandal came to light. Speaker of the House and other elected officials were implicated. 1973. Public Information Act, Government Code Chapter 552: “Under the fundamental philosophy of American constitutional representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all time to complete information about the affairs of government and the official acts of public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so they retain control over the instruments they have created. The provisions of this chapter shall be liberally construed to implement this policy.” Tex. Gov’t Code § 552..001(a). So there’s your fundamental policy. Keep in mind that last sentence about how to call toss ups. This 40-year old law, amended periodically, and interpreted by courts and the Attorney General, is enforced by District Attorneys. Think back: Before email, before internet, before cell phones. Before Face Book and You Tube. 1 II. Scenarios A. Records A school board member, on occasion, texts, emails, and makes and received phone calls about district business on her personal cell phone. A former, now disgruntled former employee believes he was discussed in some of those communications, and requests phone records and all emails and texts in which he was discussed over the last 2 years. A second board member, same scenario, but district provides an allowance each month to offset cost of personal cell phone. Third board member, same, but district reimburses data plan and texting fees. Board counsel prepares legal memo regarding whether hiring superintendant’s niece violates district nepotism policy. Citizen asks for all documents related to the niece’s employment. Does citizen get the memo? State senator asks for same. Does Senator Doe get the legal memo? Your board receives a request for documents and, 7 business days later, asks for clarification, or if the requestor will narrow the request, maybe as to time frame. When the requestor answers, how long do you have to produce the documents? B. Meetings One board member emails one other member of a board of 7. Discusses district business. Open meetings violation? Receiving member flips email to another of the 7. OK? Principal of a high school sends an email, discussing district business, to all school board members. OK? One member forwards and discusses with one other member. OK? One member hits “reply all.” OK? Citizen Doe opines about school business on a social media page (like Face Book). A school board member chimes in. Any problem? School board member opines on school business on her social media page. Over the course of the next 24 hours, 4 other board members chime in on the topic. Superintendant briefs one board member about a personnel issue on the agenda for the next board meeting. Independently briefs 3 other board members so they know what super thinks before they get into the meeting 2 Find the full text of this and thousands of other resources from leading experts in dozens of legal practice areas in the UT Law CLE eLibrary (utcle.org/elibrary) Title search: Emails, Text Messages and Social Media: Open Records, Open Meetings and Privacy Also available as part of the eCourse Electronic Issues on Campus: 2012 Case Law Update; Intellectual Property Conundrums in Schools; plus Open Records, Open Meetings and Privacy First appeared as part of the conference materials for the 27th Annual School Law Conference session "Emails, Text Messages and Social Media: Open Records, Open Meetings and Privacy".