The Public Information Act covers virtually all information possessed by governmental bodies; “the form in which a governmental body stores information does not affect its availability.” Tex. Att’y Gen. ORD-461 (1987). Electronic mail generated or received by a public entity may be but is not automatically subject to public disclosure. Op. Tex. Att’y Gen. No. JC-3828 (2001). There is no firm state policy for retention of e-mail; for example, open-government advocates urged reform when it was discovered that Gov. Rick Perry’s aides were instructed to routinely delete office e-mail after seven days.
In April 2009 a Texas appellate court reversed a trial court’s decision that a Dallas mayor’s Blackberry e-mail messages were public information, leaving the question open for further judicial interpretation. The trial court had held that because the messages were made in connection with the transaction of official business, they were public under the Texas Public Information Act, as information “collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business by . . . or for a governmental body.” The city argued against release because the messages were not “collected, assembled, or maintained by or for the city, and the city [did] not own or have the right of access to them” since they were sent from the Blackberry device and not through the office server. City of Dallas v. Dallas Morning News, LP, 2009 WL 944395 (Tex. App 2009).
A case pending in the Fifth Circuit arose out of e-mail messages exchanged between city councilors in Alpine, Tex., discussing the time and content of a council meeting in violation of the Texas Open Meetings Act. The U.S. Court of Appeals held that the First Amendment protected the councilors’ rights to communicate with one another and ordered that the open meetings law be subject to a heightened standard of constitutional review or else it would be considered invalid. Rangra v. Brown, No. 06-51587 (Apr. 27, 2009). The parties have asked the full appeals court to rehear the case. That request was pending as of publication.