Open Government Austin

On privacy and practicality: Must emails go online?

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.

A commenter points out the crux of the confusion about Austin's Open Government Online charter amendment, and it's good to get the issue out on the table, because it's exactly the City's misleading argument: Many are pretending that the sentence above must be interpreted to say the City has no choice but to put every conceivable scrap of information in city government available online immediately, including citizen emails to city council.

At that point, of course, the sky would fall, Austin would have no choice but to raise taxes, litigation would bankrupt the city, blah, blah, etc. ... anyone who was around during the SOS campaign in 1992 or the developer-environmental feud since then has heard all the arguments before. But is it true that sentence leaves the City no discretion?

Our commenter describes exactly how city legal staff got to the conclusion that email must go online in real time. Plucking liberally from different sections of the charter amendment - while ignoring the one, specific section about email - the anonymous commenter finds:

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:

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.

Thus, says our critic, "This clearly requires e-mails to or from a city official to be posted on-line in real time."

But does it?

Let's review. First, the writer ignores the specific section on email in the charter amendment; for the record it only requires additional archiving. Taken together, the section defining email as public information and the section requiring it to be archived ensure that no one deletes their email--the purpose of that language. But to the point, if the amendment passed would the sentence quoted above require publishing email online?

Under current open records law, emails to and from city officials about city business are public information already subject to personal privacy restrictions and various public information act exceptions. I've probably looked at thousands of emails about government business over the years, certainly I can say hundreds without thinking twice, in response to public information act requests to various agencies. So whether emails are public information isn't anything this amendment can change: it's already true. The council could choose to post them online right now if they wanted, but because it's technically impossible (or at least $36 million-type expensive) and also impractical, and potentially privacy invasive, and for a variety of other reasons, they choose not to do it.

So what would be different? The charter amendment REQUIRES council to put certain information either online or in the case of email, to be archived, then it tells city council to put other public information online to the greatest extent "possible" and "practical," and where it wouldn't violate personal privacy. But council gets to decide how to define possible and practical, just like state law gets to define whether emails are public information and the courts have defined personal privacy.

The Open Government Online charter amendment tells the city to presume information should be online if it's possible and practical to do so and if it doesn't violate anyone's privacy. Practical, meaning cost-effective, practical meaning it doesn't violate anyone's rights or give unfair advantages, practical meaning it's reasonable from a management perspective. Practical gives the city council all the leeway it needs to decide that certain public information needn't be online. Practical lets them decide to publish information in two weeks instead of "real" time when there's procedural or structural reasons to do it that way. And the amendment specifically tells the City to protect people's privacy and never to construe the amendment in a way that doesn't.

To concoct impractical, privacy-invading scenarios then claim they're required ignores the intent and plain language of the charter amendment. There will be a lot of public information besides email the council will decide is impractical to post, in real time or otherwise, and the amendment gives them complete discretion to make that judgement.

They're putting a pricetag on a decision they haven't made yet, assuming the grandest, most expensive possible vision for what could be a much smaller, less privacy-invasive project if they approached it with the seriousness that would be required after passage.

The whole line of argument is a distraction, a temporary way to avoid talking about the things in the amendment the Mayor and Brewster McCracken are really unhappy about - like making more information public about lobbyist influence and tax giveaways, or information about police misconduct at APD that's already public at the Travis County Sheriff and more than 2,000 other Texas law enforcement agencies. And yes, their meetings with lobbyists.

For most city information, though, with the exception of a few, specifically mandated items, the city council will still control exactly what goes online. Yes there are several things in the amendment specifically required to be published online or archived, and some of those will cost money. But they're pretty specific, in most cases making public information the city already maintains for insider use, anyway. Email would fall into the category of public information the city must post only if it's "possible" and "practical" to do so. Because this is only a charter amendment to be implemented through city council-approved ordinances over which they'll excercise complete control, the city council will get to define those terms, what's practical and impractical.

In theory they could choose to put email online in real time - just as they could choose to do so now if they wanted - if they decided it were "possible" and "practical," but in reality I doubt they ever would. And I doubt from their recent rhetoric that any of them think $36 million would be practical, either. This whole public debate has devolved into silliness.

There are some legitimate critiques of the things that ARE in the Open Government Online amendment - for example, the Mayor thinks that if the public knew the details of city tax giveaways it would reduce his ability to cut back room deals. That may well be true. But the issue is getting drowned out by the council's and opponents' opportunistically broad claims about the amendment's scope.

If we're going to vote on the amendment, we should debate what's actually in it.

posted by Gritsforbreakfast @ Sunday, March 12, 2006