Thursday, March 09, 2006

City's claim that emails go on line ridiculous, fiction

OH. MY. GOD.

The Austin City Council must literally think nobody's watching them. After hearing the language they placed on the ballot to describe the Open Government Online charter amendment - hell, I might vote against it if any of it were true.

Most angering was the absurd and patently false claim that under the amendment all the public's email--including individual communications to health clinics or police--must be put online in real time. As though anybody wants to look at that many more ads for Valium and Rolex on somebody else's email in real time!!

That's absurd. The amendment only requires that email be archived. That's it. Records retention. The amendment explicitly requires the city to abide by laws related to personal privacy while it generally increases the availability of information online. It does not require posting of emails on line. Here's the entire section of the charter amendment regarding email correspondence:
(C)OPEN ACCESS TO CITY ELECTRONIC COMMUNICATIONS

(1)In order to better preserve written electronic communication for public disclosure, the City must establish a system that automatically archives all incoming and outgoing electronic communication that deals with City business to and from the following people in their official capacity: (a) City Councilmembers and their staff; (b) City Manager and his or her staff; (c) Assistant City Managers and their staff; and (d) all department heads.

(2)The above people are prohibited from discussing City business via any form of written electronic communication, such as a private email account, that is outside of the City’s automatic archiving system.
That's the whole section. Would somebody tell me where that says email goes online?

The City is making ridiculous interpretations of language elsewhere that describes the larger intent of the amendment--to make Austin a leader in open, transparent and online government--but ignoring the specific language on the topic, not to mention state law that makes correspondence about allegations of crime to the police, for example, or personal health information confidential by law.

I'm too angry now to write more, but future blog items, I'm sure, will further dissect the piece of fiction that voters will see representing this amendment on the ballot.

UPDATE
: The Statesman has placed the City's misleading ballot language online (pdf), along with their initial coverage. Even though their editorial page opposed the measure, I hope the newspaper will show more integrity than the city council did and explain to the public how biased and misleading this ballot language really is.

6 Comments:

At 6:16 AM, Anonymous Anonymous said...

When I read that "In order to better preserve written electronic communication for public disclosure, the City must establish a system that automatically archives all incoming and outgoing electronic communication that deals with City business to and from the following people in their official capacity: (a) City Councilmembers and their staff; (b) City Manager and his or her staff; (c) Assistant City Managers and their staff; and (d) all department heads.", I envision an "automatic" system that archives electronic communication. Such a system is then by assumption an information system in the sense that it must be automatic. Automatic then inturn could logically be construed as being in real time. And since such a system is intended to be for the purpose of public disclosure it is certainly possible to infer that the system will automatically make the communications available for public viewing.

Or are you meaning to say that the City must create a process that automatically saves all incoming and outgoing e-mail and then just places them on a hard drive with no indexing with the only "public disclosure" being under an open records request requiring hours and hours of clerk time to search through the e-mails?

Either way, the City has to build the IT system to save the information and then quickly and efficiently access it for public disclosure. Whether or not they create a public portal for such disclosure via the web or maintain a staff of clerks to provide for disclosure when asked is the only thing up for debate. Either way, the archival and indexing system must be built and maintained, it will cost a good deal of money, and the e-mailed information will be available under the charter change. To say otherwise, is to be just as disingenuous as the City.

You can argue if you like that a web access portal was not intended. You can argue that the language does not specifically call for such a web access portal in this particular section. However, you cannot reasonably claim that the e-mails would not have to be archived, indexed, and retrieved upon request as the language is written.

 
At 7:13 AM, Blogger Gritsforbreakfast said...

Definitely the emails must be archived, and as is the case right now if someone requests them under the Public Information Act they're public records. That doesn't change from current law.

But the City is claiming that the amendment would force them to put council, city managagers and department heads' email online literally in "real time" as they came in, and it just doesn't do that.

The phrase "real time" is only specifically used in requiring certain development information and officials' meeting calendars. For all other categories of information in the amendment, real time is only a goal, not a requirement. The complete sentence reads: "The City must, as expeditiously as possible and to the greatest extent practical, make all public information available online in real time and accessible to the public." The qualifiers as to what's "possible" and "practical" give council an enormous amount of wiggle room to not have to implement real time components when it's not possible or not practical. Remember, this is a charter amendment - the city implements the actual policies later through ordinance and can use all the leeway and discretion implied there.

 
At 7:39 AM, Blogger Gritsforbreakfast said...

One more thing, nobody said the amendment wouldnt' cost ANY money, just that the assumptions the city's estimate is based on are wildly out of whack. I don't deny at all the City would have to pay for a more extensive archiving system. But much of the staff costs the City envisioned for "real time" publishing of email were for people to vet every single email for privacy, HIPPA compliance, etc. before it goes online, and those costs clearly are unnecessary and fraudulently assigned. There's no reason to believe the city would get more open records requests than now under the amendment, and with more information publicly available they'll likely get far less.

 
At 10:27 AM, Blogger JS Hatcher said...

As to this archiving meaning "hours and hours of clerk time", how much do you think they spend now on all the other open records requests? How much less time will be spent with the majority of that information online?

 
At 10:31 AM, Anonymous Anonymous said...

"Would somebody tell me where that says email goes online?"

Scott,
Here is the section you seem to be missing:

SECTION 3: Open Government Online. The City must, as expeditiously as possible and to the greatest extent practical, make all public information available online in real time and accessible to the public.

then "public information" is defined in a later section:

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:
...
(E)EMAILS RELATED TO CITY BUSINESS. Email or other written electronic communication to or from a public official concerning City business is public information, including communications to or from privately owned email accounts or computers.

This clearly requires e-mails to or from a city official to be posted on-line in real time. Yes, there is the caveat "as expeditiously as possible and to the greatest extent practical" but that's very different from what you claim, which is that they only must be archived.

This makes the claim not "ridiculous," "fiction" or "absurd" and most certainly not "patently false."

It seems there is much confusion of what this amendment does or does not do, even among the authors.

 
At 1:23 PM, Anonymous Anonymous said...

From my reading of the amendment, my understanding is exactly what Scott states. What's in the amendment with specificity should override any interpretations that can be gleaned elsewhere. While the structure of the amendment does lead to a logical argument that email *could* be put online in real time, that is an interpretation of the key clause ("expiditiously as possible... greatest extent practical") and not the specific section that deals with email. In a way, both of you are right but the moderator of both arguments is the word "practical." This gives the council the authority to place or not place "real time" email into the interpreted logical argument outside of the specific section required by the amendment.

In fact, I can see where city legal staff could bypass anything that's not specifically written into the amendment just because of the "practical" word (practical is entirely subjective and doesn't hold a concrete, legally-defining baseline that the amendment could hold against future situations). Legal staff could interpret the amendment to say that only what's in the amendment with specificity is legally binding and anything not stated (like real-time, online emails) could fall outside the scope of the legally-binding language and could be deferred to the city council for a practical definition. An "insert-interpretation-here" situation may never be defined as "practical" because the clause moves definition of the situation to the very members of government that the amendment seeks to hold accountable and their motivations. Only the council can define the "practicalness" of the situation and ulitmately, the overall effectiveness of the amendment. IANAL but I think even I could make that argument float in court.

 

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