in Houston, Texas
Bexar County official banks on First Amendment over open records case; Bexar Commissioner: Issue of private emails as public record "not settled"
Monday, Jul 19, 2010, 06:28PM CST
By Steve Miller

Bexar County Commissioner Tommy Adkisson is a fighting man as well as a betting one. The former state representative is embroiled in a public records battle that will determine if he has to hand over contested emails between himself and a San Antonio activist to the San Antonio Express-News, which filed an open records request Feb. 17.

He’s banking his legal fight himself, contesting the state Attorney General’s office, the newspaper and no doubt the entire community of open records advocates. If he wins, Adkisson could be part of open records case law. If he loses, he could be out thousands of dollars for nothing.

The newspaper says it seeks the emails to get a look at Adkisson’s management style as head of the San Antonio-Bexar County Metropolitan Planning Organization, a transportation planning group.

Adkisson says it is because the newspaper believes he is taking talking points – and even marching orders - from Terri Hall, a local activist who has made her opposition to turning existing roads into toll roads her public mission.

The newspaper wants emails from Adkisson’s private email accounts to and from Hall.

“They hope that they speak to some kind of self-incriminating information on my management style, which includes everything I say to Terri Hall,” Adkisson said in an interview with Texas Watchdog. “They think I am asking for direction from her in my role as head of the Metropolitan Planning Organization. Asking her permission, which is not the case.”

The county appealed the request for Adkisson’s private emails, citing case law that the commissioner had a reasonable expectation of privacy in their homes and in their private computers.

“If any...communications sought pursuant to the request exist, they were made without use of Bexar County resources and solely from the privacy of the commissioner’s private home residence,” a March 10 letter from the Bexart County District Attorney’s office to the AG’s office reads.

The AG’s ruling in May stated that the private emails are subject to the Texas Open Records Act.

Adkisson, as a member of the county commissioner’s court, asked for some further legal help from the district attorney’s office, which begged off, stating that if the commissioner ultimately failed to deliver the docs under legal dictate, it might have to prosecute him.

Now, he’s a man alone, raising money to contest the AG via his website, where he also spells out his contention that private emails, even done in the context of public business, are not public record. Adkisson answered a number of questions and outlined his stance on the issue in the conversation this week.

Tommy AdkissonADKISSON


Texas Watchdog: Do you believe that public business conducted via personal email accounts are public record?

Adkisson: No I do not. We all need mentors. We all need people who can sharpen us up about different things. I’d like to have the benefit of a person with whom I am not transacting official business with to tell me, ‘Tommy, if you do that and you are the stupidest son of a gun I’ve ever seen.’ I’d like to have some flexibility to say, ‘what do you think about this?’ I can’t do that if every time I turn around someone can ask for all my emails. If they are going to strip away the ability of public officials to have candid conversations with selected [people] who are not public officials, then the caliber and quality of the work product is going to go down. Lots of business does not get done over the Internet, but it helps me to write things down. Anyone who says this business of private emails is settled law has not been looking at national case law. It’s in varying states, and it is anything but settled.

TW: What is it about the AG’s opinion that you contest?

Adkisson: The Open Records Act is the black letter of the law, not the AG clamoring to satisfy people as the attorney general. When you read the actual act, it stresses ‘the transaction of official business.’ There is no transaction going on between myself and [Terri Hall]. There’s no way they can say the information I am sharing with her, you know, about different thoughts and kind of thinking-out-loud stuff, is in connection with official business because she has no official business to transact with me. And I don’t transact with people over my computer, you know, I talk to them in person like everybody else does. ...
I am not a governmental body, me as a commissioner (and therefore not subject to the Texas Public Information Act, which covers governmental bodies.)
[The AG opinion] is a wholesale revision of the legislature’s definition, so we feel that a district court or court of appeals or the Texas Supreme Court needs to rule on this. I’m willing to fight to ensure that the intrusion of the Express-News is not allowed to go unchecked.”

TW: This issue seems to be more with the Express-News rather than something dealing with public records. Is it the requestor here?

Adkisson: You mean if the New York Times asked me for this would I give it to them? I might. Let’s face it, we’re all pretty relational. When I see cheap shots thrown at me over and over again, and then here they come with an Exocet missile up my backside, uh, I have a reason to say, ‘Excuse me, not so close.’ But the bottom line is we can all insist on the letter of the law if the spirit of the law fails, and to me the abusive nature of this thing, I can tell you surely plays a role in it. But the bottom line is that the law is the law and the AG is not the law, he is an interpreter of the law. Ultimately -- and the courts will decide this thing -- I just think it’s a bad idea for us to be subject to nonstop rapid-fire machine gun requests for everything that we do on our personal computer if it relates to the public sector.
For the last year, since I took my oath of office [as chairman of the road planning group]… that signaled the descent of my relationship with the Express-News because I am against toll roads on existing highways, and they’re for them.

They need the highway lobby to buy their ads, and I don’t. I am not beholden to them to make or break my campaign contributions.

I gave them 150 or so of my public emails, and they are pretty much like everything I have on my private computer. I just figured these guys think that can coerce me into submission, and I am just not available for that. My constituents don’t come up to me and say, ‘My gosh, why don’t you respond to this?’ The Express-News has had seven or eight articles and editorials slicing and dicing me, and it hasn’t affected my effectiveness at all. I think maybe they’d like to render me useless for future public service, but you know frankly, I’ll probably outlive them.

TW: You quote Thomas Jefferson frequently in your talks. One of his utterances going around today is this: “We might hope to see the finances of the Union as clear and intelligible as a merchant's books, so that every member of Congress and every man of any mind in the Union should be able to comprehend them, to investigate abuses, and consequently to control them."

What do you make of that?

Adkisson: I don’t think Thomas Jefferson had any clue that there would be such incredible transparency going on in our government. I don’t think we could hold them responsible for completely counting on all the factors it takes to ferret out the skunks in all the ways that we can through the aspects of government records. But to think that…everything goes to the public from A to Z, that’s just not the law.

Contact Steve Miller at 832-303-9420 or stevemiller@texaswatchdog.org.

Comments
CenTex Watchdog
Wednesday, 07/21/2010 - 09:52PM

The law is clear that all requests should be treated equally. One of the big problems in local government is failure to treat requests equally. It is difficult to prove. The commissioner appears to demonstrate his ignorance of that provision of the law. If he "might" give them to the NY Times, it is illegal to treat the Express-News differently.

Thunder1
Friday, 07/23/2010 - 11:11PM

It is astounding how some that have been elected become so far removed from the people that they were elected to serve. They forget that they are the servants......

The greater the arrogance and ignorance the harder that they will fall. It is now time to take cases to the local DA; if they don't act on illegal activities, then it's time for a change.... we did it in Montgomery County in 2008, and it can be repeated.... like I say the greater the arrogance and ignorance... the harder the fall!

hide and seek
Tuesday, 07/27/2010 - 06:00PM

What's to hide? Public officials are subject to the Texas Public Information Act. Fighting transparency in governmental dealings is a huge red flag and the Commissioner's staunch refusal to honor both the Act and the Office of the Attorney General's ruling should cost him his position. Where is the District Attorney?

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