Thursday, April 06, 2006

Brewster, you lost, not us

Brewster McCracken made a sound bite/statement that was nothing more than misinformation aimed at persuading the other council members to follow his lead on quashing Proposition 1 at Monday’s special session to fix the City's illegal ballot language. This incorrect statement has been caught up by several media outlets around town, and so some context and accuracy needs to be brought up in order to stop this misstatement from spreading.

The Chronicle described the events thusly:
Describing the e-mail clause, he [McCracken] virtually blew raspberries at the audience. "That was litigated and you all lost. ... [T]his language has been upheld as being accurate," he said, generating chamber-rattling boos and catcalls of "Liar!" and "Shame!"
This is referring to his, and other council members', insistence that emails will go online. This mistaken interpretation remained in the new ballot language under section (b):
(b) to require that private citizens' emails to public officials be placed on the City website in "real time," including emails or electronic communications between private citizens and public officials in all City departments, and limit the ability of citizens to keep private the details of these communications, unless legal exceptions apply;
The truth about this interpretation and the fact that the amendment does not require emails to go online has been blogged extensively on Open Government Austin, and is available here, here, and here. But I digress; this post is about the court ruling and its interpretation.

McCracken adds error upon error and somehow thinks that the Court ruled that emails must go online. Nothing could be further from the truth—that is why he generated such a harsh reaction that day. He repeatedly referred the audience and the rest of Council to page 10 of the hearing transcript (not the written ruling), where the court discusses the “any” and “all” issue. He took out this quote:
“all private emails to any public official in all city departments, and the last, to all city departments, may very well be correct.”
But the whole paragraph actually reads:
The only instance [using “any” and “all”] I had in mind was with respect to the [first] ballot measure, was all private emails to any public official in all city departments, and the last, to all city departments, may very well be correct. I don’t know that there are any city departments that would be excluded but certainly private citizens emails to any public official because there are exceptions that apply.
The exceptions the judge is referring to in the last sentence are all of the privacy laws that protect private information from being disclosed, online or off. We won on that one – though the ballot language still does not accurately reflect these protections in the amendment.

But Brewster is off on a different tangent. Brewster wants to turn “may very well be correct” into a pronouncement that the amendment requires all email to go online. I don’t know about you, but my dictionary refers to the word “may” as a “contingency or liability; possibility or probability.”

The judge simply did not express an opinion as to whether emails were required to go online.

What was important to his ruling was that the Council had grossly overstepped their bounds by portraying the amendment as somehow overriding all of the privacy protections that the law grants us, and that the amendment preserves. This is a simple matter of the pecking order of city government, which is explained here. We won on that issue. The court just didn't rule on the interpretation of the amendment.

So no, Brewster, we didn’t lose.

3 Comments:

At 8:50 PM, Anonymous Anonymous said...

JS,
Here are the sections that you, as an author of this, 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 from a private citizen to a city official (or vice versa) 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 claiming that they only have to be archived.

It increasingly seems the proponents, and maybe even the authors, don't understand their own amendment...

 
At 10:04 PM, Anonymous Anonymous said...

who wrote this stuff? I think prop 1 is even worse. didn't anyone vet these for real-world consequences?

 
At 9:34 AM, Blogger JS Hatcher said...

I thought I had responded to this one, but in looking back over the site, I see that I hadn't.

Anonymous repeats an argument, word-for-word, seen elsewhere in this blog and addressed there. This comment was not relevant to this post, "Brewster, you lost, not us" because this was about privacy and not whether emails go online.

One of the relevant posts to this discussion is here

 

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