The old city council sued the attorney general of Texas in an effort to avoid disclosing certain communications between city representatives, and between city representatives and city staff, that were sent or received on an individual’s personal electronic device.
The attorney general has ruled that those communications are subject to disclosure if they pertain to city business.
Our new city council has instructed the city attorney to bring the lawsuit to closure. They fell just short of telling the city attorney to drop the lawsuit. It is certainly reasonable to believe that the litigation will be settled shortly and that the city will stop objecting to the release of the communications.
That leaves a question about what the former city council members will be compelled to do. It is possible that one or more former city representatives will refuse to turn over the documents.
Regardless of who owns the communication device, Texas law says that elected officials are the official custodians of records in their offices. Section 201.003(2) of the Local Government Records Act defines “custodian” as the appointed or elected public officer who … is in charge of the office that creates or receives local government records.” The city representative operates an office — the office of city representative.
The Texas Public Information Act then makes the chief administrative officer (in El Paso that is the city manager) also responsible for complying with the act.
The city representatives that are no longer on city council may think that they are off the hook. One or more may initiate a lawsuit against the attorney general, but that is unlikely since they would have to use their own money.
The public can take civil action if the former city representatives refuse to turn over the documents. That may happen given that there are local activists that do not want to give up on this. Or a member of the public could bring a complaint to the local district attorney or county attorney with the hope that one of those two elected officials would pursue the issue on behalf of the public (using public money). The prosecutor would then have 31 days to either decide to pursue the issue or drop it. That would be an interesting dynamic given our recent 74% vote. These prosecutors have been noticeably reluctant to take action against government officials in the past but may fear the wrath of the voters in this case.
A civil case would be complicated by the fact that the city representatives are no longer in office. They may get away with not turning over their side of the communications. However any communication with a sitting city representative or a city staff member would still have to be disclosed by the city itself.
There are also criminal penalties for violating the law, including penalties for destroying information.
Putting the legal arguments aside, refusing to comply could get expensive for the former city representatives. My guess is that they may start by ignoring the requests. Someone will have to file a civil or criminal complaint or file a civil lawsuit. At that point I would imagine that the former city representatives will give up and turn over some of the emails. They will face considerable risk if they forget to turn over other emails and those emails are disclosed by a third party.
We would all be better served if the documents were released without any of this drama. These documents may lead to ugly disclosures but I don’t see how or why anyone would prevent this.
We deserve better
Brutus
Posted by Brutus 
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