The more time you spend studying City of Dallas v. Dallas Morning News, the more I.Q. points you lose. This case may be more important for what it doesn’t answer than for what you hope it will answer.
The primary issue in this appeal is whether e-mails that are sent to and from private e-mail addresses of the Mayor and other city officials and which involve matters of official public business, are public information and subject to the Texas Open Records Act.
Under the Texas Open Records Act, public information includes information collected, assembled, or maintained in connection with the transaction of official business by or for a governmental body and the governmental body has a right of access to it. The governmental body bears the burden of proving that an exception to disclosure applies.
As pertinent to this appeal, the Dallas Morning News (DMN) sought e-mails of the Mayor and other city officials in which the e-mail never passed through the City’s e-mail servers and was only sent to or from a personal e-mail account. DMN argued that if the e-mail involved official City business, the e-mail was public information. The City argued that such e-mails were not "public information" as a matter of law. Cross-motions for summary judgment were filed raising these arguments and the trial court granted DMN’s motion.
The trial court ruled that e-mails of the mayor that never go through the City’s e-mail server are public information that must be produced if they were made in connection with the transaction of official business. The court of appeals, however, concluded that fact issues prevented summary judgment for either party.
The court of appeals holds that the mayor and city employees are not “governmental bodies” under the Open Records Act. Thus, DMN had the burden to show that the e-mails in question were owned by the City or that the City had a right of access. The City had the burden to show it had produced all such e-mails. In review of the City’s affidavits, the court concluded that the City had not conclusively established that it had no right of access to the mayor’s personal e-mail. An affidavit stating that the City does not have “direct access” did not establish that it had no “right of access” to the e-mail. In the words of the court: “The Act does not qualify or narrow the definition of ‘access’ to direct, or easy, access only. The issue is ‘right of access’.” Similarly, the court rejected affidavit testimony that the City did not have access to “most of this information” because it did not conclusively establish lack of access to all of the information. Likewise, although the City asserted it did not have access to personal e-mail accounts, the record showed it had produced some e-mails from personal e-mail accounts.
With respect to DMN’s motion for summary judgment, the court of appeals could not uphold the summary judgment because the record did not show who had rights of access to the Mayor’s Blackberry device or account, what type of access, who pays for the account, whether the City has any policies or contracts relating to personal e-mail or accounts, whether any e-mails exist that are responsive, or other relevant information to the inquiries. Perhaps on remand and with the taking of further discovery DMN might be able to shed light on these issues and upon the access issue raised by the City’s affidavits.
The court’s opinion may be found at this link.