Municipalities & The Internet: A Few Legal Issues

North Central Texas
Council of Governments
e-Government
2000 Fall Forum
MUNICIPALITIES
& THE INTERNET:
A FEW LEGAL ISSUES
Shawn E. Tuma Donohoe, Jameson & Carroll
Telephone: 214-747-5700 3400 Renaissance Tower
E-mail: STuma@djcpc.com Dallas, Texas 75270-2120
Copyright ©2000
All Rights Reserved

The Author’s Biography
Shawn E. Tuma is an attorney practicing with DONOHOE, JAMESON & CARROLL, P.C. in
Dallas, Texas. His practice focuses on the developing law of the Internet and litigation
of commercial disputes involving contract, technology, intellectual property, deceptive
trade practices, insurance, and employment issues.
Mr. Tuma received his B.A., with honors, from Northwestern State University and his
J.D., magna cum laude, from Regent University School of Law, where he was selected
as the Outstanding Graduate in the School of Law, served as Editor-in-Chief of the
Regent University Law Review, received the Corpus Juris Secundum Award for
Contracts and Civil Procedure, and was chosen as a member of Who’s Who Among
Students in American Universities & Colleges and Who’s Who Among American Law
Students.
Mr. Tuma is licensed in all State and Federal Courts in Texas and the Fifth Circuit
Court of Appeals, is a member of the American Bar Association, and Dallas Bar
Association. Mr. Tuma has recently participated in the following professional activities:
PRESENTATIONS
" Contracting Over the Internet in Texas, Presentation to the
Dallas Bar Association, February 2000
" Shifting Paradigms: Practicing Law in the Information Age,
a symposium at Texas Tech School of Law, March 2000
" Contracting Over the Internet, B2B and B2C E Commerce Seminar,
forthcoming February 2001
PUBLICATIONS
" Contracting Over the Internet in Texas, Baylor Law Review,
Volume 51
" It Ain’t Over ‘Till . . . A Post Y-2K Analysis of Y2K Litigation
& Legislation, Texas Tech Law Review, Volume 31, Book IV
" Preserving Liberty: United States v. Printz and the Vigilant
Defense of Federalism, Regent University Law Review,
Volume 10, Number 1
Mr. Tuma is married to Stacy Tuma and they currently have three children, Katherine
who is five, Seth who is four, and Andrew who is two. They are expecting another child
in December. Their family resides in The Colony, Texas.

1
Associate Attorney, Donohoe, Jameson & Carroll, P.C., Dallas, Texas. B.A., Northwestern
State University; J.D., magna cum laude, Regent University School of Law.
MUNICIPALITIES & THE INTERNET: A FEW LEGAL ISSUES
Shawn E. Tuma1
I. INTRODUCTION
The benefits to using the Internet in the day to day operation of municipal
governments are many. Among those, are the dramatic increase in public accessability
to information and governmental efficiency in conducting day-to-day affairs.
Unfortunately, using the Internet poses just as many potential problems as it does
benefits. Unless a municipal government is careful to understand the many pitfalls of
the Internet and prepare itself in advance for those problems, all of the benefits it brings
forth can be lost through disputes and litigation. Thus, it is important for you all to
know where you, your colleagues, and employees stand with a few basic legal issues that
are likely to be encountered with regard to Internet usage. There number of issues that
use of the Internet can raise is incalculable and it would be impossible to address them
all in this article. Accordingly, this article will focus on three issues: first, personal use
of the Internet by officials and employees; second, public access to open government; and
third, entering transactions over the Internet.
II. PERSONAL USE OF THE INTERNET
Personal use of the Internet from the municipality’s office, or using the
municipality’s Internet service by “logging on” from a remote location such as an
employee’s own home, can present several problems for the municipality. Though there
are numerous issues that arise in this area this section will focus on two main problems

Shawn E. Tuma MUNICIPALITIES & THE INTERNET: A FEW LEGAL ISSUES Page -2-
(stuma@djcpc.com) Copyright © 2000
2
See Paul Sperry, Web-porn scandal rocks White House, WORLDNETDAILY, Aug. 9, 2000
(visited Sept. 29, 2000)
<http://www.worldnetdaily.com/readerservice.../20000809_xnspy_webporn_sc.shtm>; Paul Sperry,
Porn Downloaders ‘ought to be fired’, WORLDNETDAILY, Aug. 11, 2000 (visited Sept. 29, 2000)
<http://www.worldnetdaily.com/readerservice.../20000811_xnspy_porn_downl.shtm>; Lisa Napoli,
White House staff nailed for cyberporn, MSNBC, Aug. 10, 2000 (visited Sept. 29, 2000)
<http://www.zdnet.com/zdnn/stories/news/0,4586,2614219,00.html>.
3
See Paul Sperry, Bush to Gore: No more smut, WORLDNETDAILY, Aug. 12, 2000 (visited
Sept. 29, 2000) <http://www.worldnetdaily.com/readerservice.../20000812_bush_to_go.shtm>; White
House Porn Update: Bush campaign Challenges Gore over Smut, Reports WorldNetDaily.com,
YAHOO!, Aug. 12, 2000 (visited Sept. 29, 2000)
<http://biz.yahoo.com/prnews/000812/dc_worldne.html>.
that are foreseeable, using an example from recent national headlines for illustrative
purposes.
In early August of 2000, WorldNetDaily.com broke a story detailing how a
contractor hired last year to replace the White House Internet “fire wall” as part of Y2K
security upgrades had discovered that numerous White House officials and staffers in
the West Wing had been viewing and downloading hardcore pornographic pictures and
movies (consisting of, among other things, “teen . . . gay and bestiality stuff too. . . .”)
over computers in the White House. This was discovered because the pornography
accounted for “the majority of traffic going through the firewall” and with such frequency
and volume that it jammed the bandwith and slowed down the White House network for
legitimate business.2
This discovery was later dubbed “Porngate” and even became a
talking point in the presidential campaign.3
But the purpose of this article is not to
discuss presidential politics. Rather, it is to discuss what impact such activity would
have if it were occurring in your own municipality — and, believe it or not, it probably
is occurring already, though perhaps to a lesser degree.
This kind of activity raises two serious implications, aside from the obvious

4
42 U.S.C. § 20003-2(a)(1).
5
Faragher v. City of Boca Raton, 118 S. Ct. 2275, 2282-83 (1998) (quoting Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 20003-2(a)(1)).
6
Faragher, 118 S. Ct. at 2283 (citations omitted).
7
See Wyerick v. Bayou Steel Corp., 887 F.2d 1271 (5th
Cir. 1989).
8
Oncale v. Sundowner Offshore Services, Inc., 118 S. Ct. 998, 1002-03 (1998) (citations
omitted).
9
See id. at 1003.
problem that you have someone sitting in their cubicle or office and viewing pornography
while they are being paid to work.
A. Harassing & Discriminatory Conduct
1. Sexual Harassment
As a local government, municipalities are subject to federal sexual harassment
laws which are enforced pursuant to Title VII of the Civil Rights Act of 19644
making it
“‘an unlawful employment practice for an employer . . . to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s . . . sex.’”5
Title VII is violated when the sexual harassment is pervasive enough to “‘”alter
the conditions of [the victim’s] employment and create an abusive working
environment.”’”6
A common way that such harassment claims are made is by the
employee claiming he or she worked in a “sexually hostile environment,” which is
present when there is a “sexually charged” atmosphere.7
Courts look to circumstantial evidence to see if a work environment is sexually
charged.8
Where it is found that circumstances created an environment that a
reasonable person would find hostile, the employer can be found liable for sexual
harassment in violation of Title VII.9
While the mere hidden presence of sexually

10
See Urofsky v. Allen, 995 F. Supp. 634, 640-41 (E.D. Va. 1998) (citations omitted), rev’d on
other grounds, Urofsky v. Gilmore, 167 F.3d 191 (4th
Cir. 1999).
11
See Amy Rogers, You Got Mail But Your Employer Does Too: Electronic Communication
and Privacy in the 21st
Century Workplace, 5.1 J. TECH. L.& POL’Y 1 (visited Sept. 29, 2000)
<http://grove.ufl.edu/~techlaw/vol5/emailfinal.htm> (2000) (citing Susan E. Gindin, Guide to E-Mail
and the Internet in the Workplace, The Bureau of National Affairs, 1999
<http://www.info.law.com/guide/html>). See also Farpella-Crosby v. Horizon Health Care, 97 F.3d
803, 806 (5th
Cir. 1996) (Evidence of pervasive comments and questions pertaining to sex may be
sufficient to constitute a hostile working environment).
oriented materials in the workplace alone is insufficient to constitute a sexually hostile
environment,10
it has recently been suggested that even one glimpse of a sexually
explicit picture on a co-worker’s monitor could constitute sexual harassment.11
Imagine that your office was the one described in the “Porngate” discussion in
which numerous employees were viewing pornographic pictures and movies while at
their desks. Moreover, imagine that you have an employee who is unhappy (for any
reason whatsoever) and that her co-worker—or worse yet, supervisor—is sitting a few
feet away from her watching hardcore sex movies at his desk.
You already know the result, should she decide to leave her employment (or be
terminated): an enterprising attorney will ask her whether there was any sexually
oriented activity in the workplace and, upon hearing of the previously mentioned
activities in her presence, will have a solid basis for bringing a sexual harassment
lawsuit against the local government. Accordingly, all of the savings in time and
resources that were brought about through the benefits of using the Internet will be lost
in fighting the lawsuit, also brought on by the Internet.
Other Potential Discriminatory Problems Created by the Internet. In addition to
viewing inappropriate sexual materials in the workplace, a workplace can be found as

12
See Laura Pincus Hartman, The Rights and Wrongs of Workplace Snooping, (visited Sept.
29, 2000) <http://www.depaul.edu/ethics/monitor.html>.
13
See Amy Rogers, You Got Mail But Your Employer Does Too: Electronic Communication
and Privacy in the 21st
Century Workplace, 5.1 J. TECH. L.& POL’Y 1 (visited Sept. 29, 2000)
<http://grove.ufl.edu/~techlaw/vol5/emailfinal.htm> (2000).
14
See id.
sexually hostile through the use of the e-mail system. For example, if a supervisor or
employee sends e-mails containing inappropriate sexually related jokes, innuendo, or
derogatory references, such conduct can, and likely would, be considered as contributing
to a hostile work environment. In fact, the Chevron Corporation was recently required
to pay over $2 million to sexual harassment plaintiffs in a somewhat analogous
situation. The “smoking gun” in the case was actually jokes derogatory to women (“why
beer is better than women”) were found on the company’s e-mail server that had been
sent around by several people within Chevron.12
2. Racial / Ethnic Harassment
The Internet has practically been defined by sex and sex-related activities.
Nonetheless, though not as prevalent as sexually related activities, the Internet serves
as host to racial and ethnically demeaning materials as well. Should an officer or
employee of a municipality view racially or ethnically demeaning materials on the
Internet and a co-worker or subordinate learn of those activities, such activities could
certainly be used in a discrimination or harassment lawsuit against the municipality.13
The distribution of such messages doesn’t have to be intentional; it can often occur
inadvertently by typing in the wrong e-mail address.14
Moreover, if an officer or employee of a municipality used their official e-mail
account to send or forward racially or ethnically demeaning messages, the messages

15
See id.
16
See Burlington v. Ellerth, 118 S. Ct. 2257 (1998).
17
See Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257, 2261 (1998); Faragher v. City of
Boca Raton, 118 S. Ct. 2275, 2292-93 (1998); Walker v. Thompson, 214 F.3d 615, 626-27 (5th
Cir.
2000) (“The Supreme Court explained that although it is not necessary as a matter of law for an
employer to have ‘promulgated an antiharassment policy with complaint procedure,’ the need for
such an expressed policy may be raised when litigating the first element [of the employer’s
affirmative] defense.” (quoting Faragher, 118 S. Ct. at 2293)).
18
Op. Tex. Att’y Gen. No. H-1165 (1978).
would contain a reference to your municipality in them that would be associated with
the message and broadcast to all recipients for as long as the message continues to be
forwarded.15
Such messages could later provide evidence of a discriminatory
environment in a lawsuit against the municipality.
3. Municipality’s Defense
In the event that an employee or former employee chooses to file a discrimination
or harassment lawsuit against a municipality, the municipality can be held liable for the
discriminatory or harassing acts of its officers and employees.16
One of its only defenses
is to show that it took all reasonable steps necessary to prevent such conduct from
occurring in the workplace. One of the key things a municipality can do to further this
is to have a written policy prohibiting such conduct and a clear grievance procedure that
enables an employee to report such conduct should it occur.17
B. Theft
Perhaps the most imposing problem on persons using the Internet for non-public
purposes is that they could be charged with theft. On May 10, 1978, John L. Hill, the
Texas Attorney General, issued an opinion which speaks directly to this subject.18
The
Texas House Judiciary Committee asked General Hill the following questions, which is

19
Id.
20
Id.
21
Id. (emphasis added).
22
See id.
23
The relevant portion of section 31.03 provides, "A person commits an offense if he
unlawfully appropriates property with intent to deprive the owner of property.” TEX. PEN. CODE
ANN. §§ 31.03(a). The relevant portion of section 31.04 provides, “A person commits theft of service
if, with intent to avoid payment for service that he knows is provided only for compensation . . .
having control over the disposition of services of another to which he is not entitled, he intentionally
or knowingly diverts the other’s services to his own benefit or another not entitled to them . . . .”
TEX. PEN. CODE ANN. §§ 31.04(a)(2).
24
See id.
relevant to this issue; whether “an elected official, employee, or appointee of the State,
County or Municipal Government can use for private profit or benefit to himself, any
property, supplies, equipment, or other things of value belonging to the State, County
or Municipalities, . . . .”19
General Hill responded as follows: “The misconduct about which you inquire is
clearly prohibited by current law and . . . [codified] under Penal Code chapter 31, which
concerns theft.”20
In summarizing his opinion, General Hill stated: “Use of public
property . . . or services by a public official or employee for private benefit constitutes the
offense of theft.”21
The Attorney General’s opinion clearly indicates that officers or
employees of municipalities are forbidden from using property or services belonging to
the municipality when the use is for private benefit.22
While the Attorney General’s opinion is not binding legal authority, it is the
Attorney General’s interpretation of section 31.03 and 31.04 of the Texas Penal Code23
and the Attorney General has the authority to prosecute violations of that law.
Punishment for violations of those laws can range from a Class C misdemeanor up to a
felony punishable by jail.24

25
See Op. Tex. Att’y Gen. No. H-1165 (1978).
26
3 S.W.3d 218 (Tex. App.--Dallas 1999, no pet.).
Therefore, the question that must be addressed is, does one’s use of the
municipality’s computer to send a personal e-mail or to search the Internet for personal
reasons, such as the current price of your stocks, the best air fare for your upcoming
vacation, or the latest presidential polls, fall within the class of prohibited activities?
Under a strict interpretation of the opinion, such activities appear to be prohibited as
they constitute the “[u]se of public property [the computer] . . . [and] services [the
Internet service] by a public official or employee for private benefit [which] constitutes
the offense of theft.”25
However, the more important question is, perhaps, whether the Opinion should
be interpreted so strictly. Consider the following example, underthe strict interpretation
just explained: A city employee is at work and receives a telephone call from her
daughter who is at school but is suffering from an illness and needs to be taken home.
Did the employee violate the strict interpretation of the Attorney General’s opinion? Yes.
She is a public employee who used the city’s telephone (public property) to take a
telephone call for a personal reason (private benefit).
In Garth v. State,26
the Dallas Court of Appeals upheld the conviction of an
undercover police detective for improperly using her employee fuel card to pump
gasoline into her personal vehicle. Admittedly, this case is distinguishable from my
example in that the use of the fuel card actually deprived the public of the amount of
gasoline taken where the use of a public telephone does not deplete the public resource.

27
See id. at 221.
28
See id.
29
See Garth, 3 S.W.3d at 222.
30
See id.
Nonetheless, the Garth Court focused on the use of the improper use of the card, not just
the depravation of the fuel.27
The court stated that the employee had a right to possess
the card and control the use of the card but once she decided to use the card for her own
benefit, her possession ceased to be consensual and at that point, her use of the card was
improper.28
The court’s focus on the use of the card as opposed to merely the
misappropriation of the fuel is consistent with the Attorney General’s Opinion stating
that public property should not be used for personal reasons.
Surely there are very few people that would construe the Attorney General’s
opinion so strictly and prosecute our hypothetical mother for theft. Likewise, there are
few who would prosecute someone for using the Internet to check the local weather
before they leave work. But, as extreme as these examples may seem, I use them to
emphasize the importance of making and promulgating a written policy that resolves
these kind of questions.
In the Garth case, the court upheld the defendant’s conviction because it found
the defendant used the city’s property beyond the city’s consent. The court considered
the shift supervisor of the facility upon which the fuel pumps were located as the
owner.29
The court found that because the defendant did not have the supervisor’s
consent to take the fuel, the taking was improper, implying that the supervisor could
have consented to the use.30

31
Amy Rogers, supra note 11.
32
See Erik C. Garcia, E-Mail and Privacy Rights, Computers and the Law, Fall 1996 (visited
Sept. 29, 2000) <http://wings.buffalo.edu/law/Complaw/CompLawPapers/garcia.html>.
In following with the Garth court’s reasoning, a municipality could establish an
unambiguous policy allowing its officials and employees to use its computers and
Internet service within certain limits, for example, employees could be allowed to send
and check personal e-mails that do not contain sexually oriented, discriminatory, or
harassing content during non-business hours only. As long as the person’s use is
consistent with the stated policy, it is acting with the municipality’s consent and not
violating the law. Providing a clear written policy that states the municipality’s position
on the use of its computers and the Internet is the best way to insure that its officials
and employees use them properly.
C. Monitoring Internet Usage
The first thing that should come to mind with the mention of monitoring the use
of the Internet is privacy. This is the paramount concern because if done improperly,
what you do to protect yourself from your employee’s actions could actually be used by
your employee against you. In fact, “[t]he issue most often litigated between employers
and employees regarding e-mail and Internet privacy is employee’s expectations of
privacy versus the monitoring practices of the company.”31
Fortunately, however, in reality employees have little or no privacy rights in the
things they access or view over the Internet.32
There are laws that attempt to limit the
unauthorized monitoring of e-mails but, at best, those laws provide only minimal
protection.

33
914 F. Supp. 97 (E.D. Penn. 1996).
34
See Rogers, supra note 11,
35
See Jenna Wischmeyer, E-Mail and the Workplace, (visited Sept. 29, 2000)
<http://raven.cc.ukans.edu/~cybermom/CLJ/wisch.html> (citing Pillsbury, 914 F. Supp. at 101).
36
See Rogers, supra note 11.
37
18 U.S.C. §§ 2510 et seq. (1994), <http://www.law.cornell.edu/uscode/18/ch119.html>. See
Wischmeyer, supra note 35.
38
See id.
1. General Privacy Rights
In Smyth v. Pillsbury Co.,33
one of the few cases that has examined the issue of
employees’ privacy rights vis-a-vis employers’ monitoring employees’e-mail andInternet
usage found that employees have very little expectation of privacy in the workplace
setting.34
In this case the court held that even though the employer had assured the
employee that all e-mail communications would remain confidential and would not be
used against him, the employer did not violate his privacy rights by subsequently
intercepting and using his e-mail communications as grounds for terminating his
employment.35
In this case, the court used a balancing test in which it weighed the
employer’s interest in ensuring its e-mail was being used appropriately against the
employee’s privacy interest in sending confidential messages, ultimately finding for the
employer.36
2. The Electronic Communications Privacy Act of 1986
With regards to e-mail communications, employees’ communications are
theoretically protected by The Electronic Communications Privacy Act of 1986 (ECPA),37
which prohibits an anyone, including employers, from intentionally intercepting or
attempting to intercept electronic communications.38

39
See Wischmeyer, supra note 35 (citing Steve Jackson Games, Inc. v. United States Secret
Service, 36 F.3d 457 (5th
Cir. 1994); Bohac v. City of Reno, 932 F. Supp. 1232 (D. Nev. 1996)).
40
See id. (citing Jarrod J. White, E-mail@Work.Com: Employer Monitoring of Employee E-
mail, 48 ALA. L. REV.1079, 1082-83 (1997), <http://boots.law.ua.edu/lawreview/whitfull.htm>).
41
See id.
42
See Wischmeyer, supra note 35 (citing 18 U.S.C. § 2511(2)(d) (1994)).
43
704 F.2d 577 (11th
Cir. 1983).
44
See Wischmeyer, supra note 35 (citing Watkins, 704 F.2d at 581-82).
45
Id. (quoting Watkins, 704 F.2d at 581-82).
However, courts have interpreted the interception language strictly and held that
accessing a recordofstoredcommunications is not intercepting a communication.39
Thus,
because there is such a narrow window during which an e-mail communication can be
intercepted(usually only mili-seconds), it would be rare for an employer to violate this
law.40
In fact, probably the only way an employer could violate this law is if it used a
form of automatic routing software to instantaneously send duplicate messages to the
persons monitoring the system.41
The ECPA also has provides an exception that allows an the interception of
electronic communications when one of the parties to the communication has previously
given consent.42
Consent can be given either expressly or implicitly. However, inWatkins
v. L.M. Berry & Co.,43
the court found that an employee did not give implicit consent to
having her telephone conversations monitored simply because she accepted the job with
the knowledge that the employer monitored telephone calls as a part of training.44
As the
court stated, “‘mere knowledge of monitoring capability cannot be considered implied
consent to employer monitoring of all calls.’”45
The court’s reasoning with regard to
telephone calls should apply equally well to e-mail communications. Thus, if an
employer intends to monitor employees’ e-mail messages in a manner that would

46
See id. (citations omitted).
47
See id. (quoting 18 U.S.C. § 2511(2)(a)(I) 1994)). Specifically, this provision allows for
interception where an
officer, employee, or agent of a provider of wire or electronic communication service,
whose facilities are used in the transmission of a wire or electronic communication,
intercept[s], disclose[s], or use[s] that communication in the normal course of his
employment while engaged in any activity which is necessarily incident to the
rendition of his service or to the protection of the rights or property of the provider
of that service.
Id.
48
See id.
49
See id.
50
See id. (citing Watkins, 704 F.2d at 582-84).
“intercept” them, it should ensure that it has an unambiguous written policy clearly
stating that it will engage in such practices and also state the degree to which it will
examine the communications.46
The ECPA contains a second exception called the business use exception.47
As the
courts have interpreted this exception, employers who provide the e-mail service may
intercept e-mail communications in the ordinary course of business.48
Most employers
that provide the e-mail service should be considered a “provider of wire or electronic
communication service” even thoughsome believe that was not Congress’ intent.49
Under
this exception, the employer may intercept all business messages and intercept personal
messages only to the extent that it could determine the nature of the message but not
its content.50
At first, Title II of the ECPA seems to provide employees with the most
substantive protection against e-mail monitoring. It makes it “illegal to ‘intentionally
access[] without authorization a facility through which an electronic communication

51
See id. (quoting 18 U.S.C. § 2701(a) (1994)).
52
See Rogers, supra note 11 (citing 18 U.S.C. § 2511).
53
See U.S. CONST. Amend. IV.
54
See Rogers, supra note 11 (citing Vega-Rodriguez v. Puerto Rico Tel. Co., 110 F.3d 174, 178
(1st
Cir. 1997)).
service is provided’ or to ‘intentionally exceed [] an authorization to access [a] facility.’”51
However, there is one exception: it does not apply “if ‘the person or entity providing a
wire or electronic communications service’ authorizes the access”52
—the employer.
It is relatively clear that municipalities, as employers, can monitor employees’ use
of the municipalities’ Internet service. Moreover, most of the current laws and court
decisions do very little to limit the employer’s right to monitor e-mail usage.
Nonetheless, a municipality should be prudent in establishing and promulgating an
unambiguous policy that addresses each of these concerns and states the manner in
which they will be addressed. In doing so, the municipality’s employees will have a
better understanding of that is expected of them as well as what they should expect with
regard to privacy. In addition to that, and perhaps most important, such guidelines will
deter employees from challenging the municipality’s monitoring of their Internet usage
and e-mail communications in court.
3. The Fourth Amendment
The Fourth Amendment to the United States Constitution protects people against
unreasonable searches and seizures.53
While this provisions does not apply to private
employers, it does apply to municipal governments. However, it is largely
inconsequential. Courtswill typically uphold a municipality’s right to monitor workplace
communications when there are legitimate business reasons54
as determined by

55
See Rogers, supra note 11 (citing Connick v. Meyers, 461 U.S. 138, 152-53 (1983)).
56
See id. (referencing the Freedom of Information Act, 5 U.S.C. § 552 (1988)).
57
See Jeffrey Norgle, Revising the Freedom of Information Act for the Information Age: The
Electronic Freedom of Information Act, 14 J. MARSHALL J. COMPUTER & INFO. L. 817, 821-22 (1996).
58
5 U.S.C. § 552 (Supp. II 1996).
59
Stephen M. Johnson, The Internet Changes Everything: Revolutionizing Public
Participation and Access to Government Information Through the Internet, 50 ADMIN. L. REV. 277,
291 (1998).
60
See Norgle, supra note 57 (citing Dismukes v. Dep’t of the Interior, 603 F. Supp. 760, 763
(D.D.C. 1984)). See also id. (citing Armstrong v. Bush, 721 F. Supp. 343 (D.D.C. 1989)).
balancing the importance of the municipality’s maintaining control of the work
environment against the rights of the employee and public.55
III. THE PUBLIC’S RIGHT TO INFORMATION
A. Federal Law
The Freedom of Information Act (FOIA),56
enacted in 1966, gave the press and
public access to information held by the federal government and its agencies.57
Thirty-
years later, in 1996, Congress amended the Freedom of Information Act with the
Electronic Freedom of Information Act Amendments (EFOIA)58
for the purpose of
encouraging the federal government and its “agencies to use new technology to
disseminate and ensure access to government information collected through new
technology.59
Under the pre-amendment FOIA, one of the major problems was that the
government was allowed to chose what form of media it would provide when disclosing
information as long as the form the agency chose neither unreasonably hampered the
requester nor reduced the usefulness of the information.60
For example, where an agency
kept records on both microfiche and computer tapes, the agency could chose to disclose
the information on microfiche even the person requested the information on computer

61
See Norgle, supra note 57 (citing Dismukes, 603 F. Supp. at 762).
62
See Johnson, supra note 59 (citing 5 U.S.C. § 552(a)(3)(B)).
63
See id.
64
See id. (citing 5 U.S.C. § 552(a)(2)(E)).
65
See id.
66
See id. (citing 5 U.S.C. § 552(a)(3)).
67
Cf. 5. U.S.C. § 551(1) (“‘agency’ means each authority of the Government of the United
States, whether or not it is within or subject to review by another agency, . . . .”).
68
See also Op. Tex. Att’y Gen. No. 654 (1997).
69
TEX. GOV’T CODE ANN. § 551.001 et. seq.
tape.61
Under the EFOIA, if the request is made for “records in electronic format, and the
records are readily reproducible in that format, the agency must provide them in that
format.”62
The EFOIA further requires agencies to make an effort to maintain records in
electronic format,63
create a computer accessible index of frequently requested files
available to the public,64
and make records that it creates pursuant to the FOIA
“accessible to the public by computer or other electronic means.”65
Finally, it requires
agencies to make annual reports of their compliance with these requirements.66
Of course, being in Texas, we are aware that the Freedom of Information Act and
the Electronic Freedom of Information Act Amendments are limited to the federal
government and neither apply to state or local governments.67
Nonetheless, it is
important to consider them as the Texas Attorney General has looked to the provisions
of the EFOIA in interpreting the relevant Texas laws.68
B. Texas Law
1. Open Meetings Act
The Open Meetings Act (OMA)69
requires that “[e]very regular, special, or called
meeting of a governmental body shall be open to the public, except as provided” within

70
TEX. GOV’T CODE ANN. § 551.002.
71
TEX. GOV’T CODE ANN. § 551.001(4)(A)-(B). Specifically, section the OMA defines a meeting
as being
(A) a deliberation between a quorum of a governmental body, or between a quorum
of a governmental body and another person, during which public business or public policy
over which the governmental body has supervision or control is discussed or considered or
during which the governmental body takes formal action; or
(B) except as otherwise provided by this subdivision, a gathering:
(i) that is conducted by the governmental body or for which the
governmental body is responsible;
(ii) at which a quorum of members of the governmental body is present;
(iii) that has been called by the governmental body; and
(iv) at which the members receive information from, give information to, ask
questions of, or receive questions from any third person, including an employee of the
governmental body, about the public business or public policy over which the governmental
has supervision or control. The term does not include a gathering of a quorum of a
governmental body as a social function unrelated to the public business that is conducted by
the body, or the attendance by a quorum of a governmental body at a regional, state, or
national convention or workshop, if formal action is not taken and any discussion of public
business is incidental to the social function, convention, or workshop. The term includes a
session of a governmental body.
Id.
72
See id.
73
See Alan J. Bojorquez, Wide Open Government (visited Oct. 30, 2000)
<http://www.bickerstaff.com/articles/wideopen7.htm> (citing Op. Tex. Att’y Gen. Nos. JC-0060
(1999), JM-1072 (1989), and H-238 (1974)).
74
See id. (citing Op. Tex. Att’y Gen. No. JM-1072 (1989)).
the Act.70
The use of the Internet by municipalities raises two questions concerning this
mandate: First, what is a “meeting”? Second, what is considered to be “open to the
public”?
The OMA provides a fairly elaborate definition of meeting.71
In essence, there is
a “meeting” when there is deliberation of official governmental business by a quorum
of a governmental body, even if others are present.72
The Attorney General has even
applied the Open Meetings Act to meetings where a quorum was not present.73
One of
the few situations the OMA doesn’t apply is in social gatherings or seminars where any
discussion of official business is purely incidental.74
As a general rule, it would be safe

75
See TEX. GOV’T CODE ANN. § 551.128.
76
Id.
77
See Op. Tex. Att’y Gen. No. DM-480 (1998) (Where technical difficulties are experienced
during the broadcast of a video-conference call, the meeting must be recessed.).
78
“‘Quorum’ means a majority of a governmental body, unless defined differently by
applicable law or rule of the charter of the governmental body.” TEX. GOV’T CODE ANN. 551.001(6).
79
See Acker v. Tex. Water Comm’n, 790 S.W.2d 299, 300-01 (Tex. 1990); Bexar Medina
Atascosa Water Dist. v. Bexar Medina Atascosa Landowners’ Ass’n, 2 S.W.3d 459, 461 (Tex.
to assume that if a quorum of a governmental body is physically present and official
business is discussed, it will be considered a meeting.
The real issue for our purposes, however, is how Internet communications
between government officials will be treated for purposes of the OMA. In 1999 a new
section was added to the Open Meetings Act that specifically allows meetings to be
broadcast over the Internet, subject to certain requirements.75
Specifically, this section
provides that “a governmental body may broadcast an open meeting over the Internet.
. . . [provided that it] shall establish an Internet site and provide access to the broadcast
from that site. . . . [and] provide the same notice of the meeting that the governmental
body is required to [ordinarily] post.”76
However, if a technical problem arises that
disrupts the Internet broadcast, the meeting must be recessed.77
Neither the Legislature nor the Attorney General has specifically addressed
whether communications between governmental officers made by e-mail of over the
Internet by other means are considered meetings. However, a brief analysis of some of
the basics of what constitutes meetings and deliberations should provide an accurate
prediction of what will constitute a meeting.
The key inquiry with regard to this issue is whether a quorum (majority)78
participates in the deliberation.79
In Acker v. Texas Water Comm’n,80
the Supreme Court

App.–San Antonio 1999, pet. denied).
80
790 S.W.2d 299 (Tex. 1990).
81
Id. at 300.
82
See id. at 301 (The Open Meetings Act forbids ex parte deliberations between a majority of
government decisionmakers.).
83
See id. at 302.
84
See Faulder v. Texas Bd. of Pardons and Paroles, 990 S.W.2d 944, 946 (Tex. App.–Austin
1999, no pet.).
85
See id.
86
See Harris County Emergency Service Dist. #1 v. Harris County Emergency Corps., 999
S.W.2d 163, 168 (Tex. App.–Houston [14th
Dist.] 1999, no pet.).
87
See Shawn E. Tuma & Christopher R. Ward, Contracting Over the Internet in Texas, 51
BAYLOR L. REV. 15 (forthcoming 2001), <http://www.geocities.com/dallaslawyer_23456/econ.pdf>.
88
See TEX. GOV’T CODE ANN. § 551.001(4)(B).
of Texas stated that “when a majority of a public decisionmaking body is considering a
pending issue, there can be no ‘informal’ discussions. There is either formal
consideration of a matter in compliance with the Open Meetings Act or an illegal
meeting.”81
Focusing on whether there was a majority of decisionmakers participating,82
the Court held the Open Meetings Act was violated where two of the three
commissioners had an ex parte discussion of official matters while in the restroom.83
The meeting requirements apply to telephone conversations between government
officials.84
Consistent with the reasoning in Acker, where public officials have used the
telephone to discuss official business and a quorum participated, the discussions were
considered to be meetings.85
However, where public officials discussofficial business over
the telephone but there is no quorum participating in the discussion, the telephone
discussion is not a meeting.86
When governmental officials participate in meetings over the telephone, they are
in a real-time two-way conversation such that they are in each other’s “virtual
presence”87
which is a “gathering” pursuant to the Open Meetings Act.88
Internet “chat

89
See TEX. GOV’T CODE ANN. § 551.128.
90
See Tuma & Ward, supra note 87.
91
See id. (citing Thomas J. Smedinghoff, Electronic Contracts & Digital Signatures: An
Overview of Law and Legislation, 564 PRAC. L. INST. 125, 135 (1999); Jeff C. Dodd & James A.
Hernandez, Contracting in Cyberspace, 1998 COMPUTER L. REV. & TECH. J. 1, 12 (1998)).
92
See Acker, 790 S.W.2d at 300-01.
rooms,” “instant messages,” and other real-time methods of communicating over the
Internet provide the same “virtual presence” as telephone discussions. Accordingly,
Internet communications that provide such “virtual presence” will be subject to the
requirements of the Open Meetings Act and should not be engaged in by a quorum of
government officials unless the meetings are conducted in accordance with requirements
for meetings broadcast over the Internet.89
E-mail communications do not necessarily provide the same “virtual presence” as
do the real-time Internet communications.90
E-mail messages are often routed through
different servers for significant periods of time and often remain in the recipient’s
mailbox for days before being opened.91
Without this “virtual presence,” e-mail
communications should not be considered analogous to telephone conversations for
determining whether such constitute a meeting.
Because of the quorum principle, it is relatively clear that if an e-mail is sent from
one governmental official to another governmental official and the two of them do not
constitute a quorum, the communication will not be considered a meeting.92
The question
becomes whether an e-mail communication that is sent among a quorum is a meeting.
Such a message would be more analogous to a letter or other written correspondence
sent among a quorum of officials.
In 1992, the Texas Attorney General issued an opinion on the following question,

93
See Op. Tex. Att’y Gen. DM-95 (1992).
94
See id. (quoting the definition of “meeting” as set forth in the Act).
95
See id. (quoting the definition of “deliberation” as set forth in the Act).
96
See id.
which it called hypothetical: “whether members of a city council violate the Open
Meetings Act . . . when the members constituting a majority of the council, sign a letter
expressing an opinion on matters relevant to the city government.”93
In analyzing this
issue, the Attorney General acknowledged that there can be no meeting unless there is
a “deliberation”94
and that “deliberation” requires the existence of “a verbal exchange .
. . .”95
Accordingly, the signing of such a letter by a quorum does not seem to fit within
the precise language of the Open Meetings Act. Nonetheless, the Attorney General
looked to the public policy behind the Open Meetings Act and ultimately concluded that
signing of a letter by a quorum, even if they never met to discuss it, would be violative
of the OMA.96
At this time, one must assume that the Attorney General’s Office would view an
e-mail message sent to a quorum of a governmental body the same way it did the written
letter and treat it as a “meeting” for purposes of the OMA. Given the increased use of
technology by Texas’ state and local governments, this is an important issue that the
Attorney General needs to clarify. For now, however, government officials should not
send e-mail messages pertaining to official business to a quorum of the members of the
governmental body as such messages would likely be construed as a meeting violative
of the OMA. Moreover, officials should also avoid sending e-mails pertaining to official
business to one or members constituting less than quorum. Consider the following

97
See Bojorquez, supra note 73 (citing Op. Tex. Att’y Gen. No. ORD 654 (1997).
98
See Jeff C. Dodd & James A. Hernandez, Contracting in Cyberspace, 1998 COMPUTER L.
REV. & TECH. J. 1, 12 (1998); Thomas J. Smedinghoff, Electronic Contracts & Digital Signatures:
An Overview of Law and Legislation, 564 PRAC. L. INST. 125, 135 (1999); Shawn E. Tuma &
Christopher R. Ward, Contracting Over the Internet in Texas, 51 BAYLOR L. REV. ___ (forthcoming
2001), <http://www.geocities.com/dallaslawyer_23456/econ.pdf>.
99
For an excellent compilation of these laws, see the Texas Electronic Commerce Homepage
at the following Internet address: <http://www.state.tx.us/EC/>.
example: There are five members on a local governing body, with three constituting a
quorum. Member 1 sends such a message to Member 2, with the two of them being less
than a quorum. Member 2, however, is close friends with Member 3 and believes the
content of the message is something to which Member 3 should be privy. Member 2
forwards the message to Member 3 and now the message has been circulated among a
quorum: the Open Meetings Act is violated according to the Attorney General’s current
position. One other reason to consider not communicating by e-mail is that e-mail
messages may be considered a public document and subject to disclosure pursuant to the
Public Information Act.97
IV. ISSUES RAISED IN ENTERING TRANSACTIONS VIA THE INTERNET
Municipal governments are generally subject to the same rules governing
electronic contracts as are private entities. Because these rules have been discussed at
length in other articles98
they need not be repeated. However, along with the numerous
other laws recently promulgated by the Legislature with regard to the Internet and
electronic commerce in general,99
there are specific rules that apply to electronic
contracts entered into by municipal governments and other state agencies that are
worthy of mention.
House Bill 984 in the 1997 Legislature was directly addressed the issue of

100
A digital signature is any symbol “executed or adopted by the party with the present
intention to authenticate a writing.” TEX. BUS. & COMM. CODE. ANN. § 1.201(39).
101
See TEX. GOV’T CODE ANN. § 2054.060(a). Specifically, this key provisions regarding state
agencies are as follows:
(a) A digital signature may be used to authenticate a written electronic
communication sent to a state agency if it complies with rules adopted by the
department. Before adopting the rules, the department shall consult with the
comptroller, state auditor, attorney general, secretary of state, and office of court
administration, and with representatives of county and municipal governments,
regarding the content of the rules. When adopting the rules, the department shall
consider factors that may affect the reliability of a digital signature, including
whether a digital signature is:
(1) unique to the person using it;
(2) capable of independent verification;
(3) under the sole control of the person using it; and
(4) transmitted in a manner that will make it infeasible to change the data in
the communication or digital signature without invalidating the digital signature.
Id.
102
See TEX. GOV’T CODE ANN. § 2054.060(b). Specifically, this key provisions regarding local
governments is as follows:
(b) A digital signature may be used to authenticate a written electronic
communication sent to a local government if it complies with rules adopted by the
governing body of the local government. Before adopting the rules, the governing
body of the local government shall consider the rules adopted by the department
and, to the extent possible and practicable, shall make the governing body's rules
consistent with the department's rules.
Id.
entering electronic transactions by local governments. The Bill amended Chapter 2054
of the Government Code by adding Section 2054.060 which expressly allows digital
signatures100
to be used in transactions with state agencies101
and local governments,102
subject to some qualifications.
V. CLOSING
The use of the Internet by state and local governments will undoubtedly flourish
over the next few years. With its use comes the potential for a tremendous increase in
both accessibility to the public and efficiency in attending to governmental affairs.

However, along with the increased use of the Internet comes several potential problems.
Many of these problems can be easily addressed with clear policies that are promulgated
to officials and employees alike while others require a clearer understanding of the law.
Nonetheless, if proper measures are taken to avoid these potential problems, state and
local governments will be able to reap all of the promise that the Internet holds without
compromising the gains through disputes and litigation.

Municipalities & The Internet: A Few Legal Issues

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