NEWS MEDIA UPDATE · TEXAS · Secret Courts · March 1, 2006
Committee orders judges to release e-mail with lawyer
March 1, 2006 · Four Texas judges must turn over to a newspaper e-mail between themselves and a lawyer under a rule that is the judicial equivalent of the state open records law.
A special panel of judges assigned to the case by the state Office of Court Administration ordered the judges to produce the e-mail messages last week because they deal with a matter of legitimate public concern.
The release of some e-mail messages uncovered a “fairly substantial problem in the Brazos County judiciary,” said Joel White, an attorney representing The (Bryan-College Station) Eagle, which originally requested the records under the Texas Public Information Act. “Some of the e-mails were frankly pretty shocking in terms of how lawyers could be treated in this particular judge’s court.”
Judge Randy Michel, one of the five judges whose e-mail was requested, resigned in December after the District Attorney’s Office learned about messages discussing a case in his courtroom with the attorney.
The Eagle filed a Texas Public Information Act request in November for e-mail messages between Michel, Judges Rick Davis, J.D. Langley, Jim Locke and Steve Smith and attorney Patricia Bonilla Harrison. The judges comprise the Brazos County Juvenile Board, which sets guidelines for assessment of juvenile offenders and voted Harrison in as the county’s juvenile referee, a judgeship dealing with juvenile cases. Harrison turned down the position later that month.
The paper first filed its request under the Texas Public Information Act, then refiled under Rule 12 of the Texas Rules of Judicial Administration.
The request specifically said the paper “would be willing to forgo messages in which the subject matter is limited only to specific cases in a judge’s courtroom. In other words, the paper is primarily seeking subject matters that are non-work related, ” White said. Only e-mail from the judges’ county e-mail accounts were requested.
Davis was the only judge to comply. The other judges denied the request, and the attorney representing them argued that the records were “not made or maintained in the regular course of business of these courts” and were not subject to release. Some of the e-mail messages were “of a sensitive nature and disclosure of their contents would constitute an unwarranted invasion of the subject judge’s privacy,” Don Tomlinson, an attorney representing the four judges, said in a letter to the Texas Attorney General.
In an appeal to the Office of Court of Administration, White argued that “the judges’ correspondence to an attorney acting under their supervision as both a court appointed attorney and as a nominee for the judicial post of juvenile referee is clearly a matter of legitimate public concern.”
Michel was convicted of a misdemeanor after the Brazos County District Attorney’s office obtained e-mail messages between himself and Harrison. The messages concerned cases in Michel’s courtroom and also revealed a relationship between the two. Michel pleaded guilty and stepped down from the bench.
The paper filed the request under Rule 12 after the Attorney General’s office upheld the first records request denial under the public records law.
Using Rule 12 is unusual, White said. “I think it’s an important precedent that work-related e-mail on government servers should be public documents,” said White, the immediate past president of the Freedom of Information Foundation of Texas.
The decision clarifies the meaning of Rule 12 to some extent, White said. “It makes it clear that you can’t just claim that your e-mails are not work-related and expect that determination made solely by yourself is going to stick.”
(Requester’s counsel: Joel White, Houston) — KV