Texas journalists battle for media access

By Lena Williams
Right to Report
Originally published Sept. 24

A year ago, the Texas Legislature amended the state’s Public Information Act to give citizens and journalists greater access to public records and the discussions of public officials.

Gov. Rick Perry signed it into law, but did he mean it?

Officials across Texas are circumventing some of the key provisions of the state’s 41-year-old Public Information Act, considered by many First Amendment advocates to be one of the strongest in the country.

Requests that have been refused in recent months include access to Perry’s travel records, as well as certain court proceedings and records of chemical stockpiles. Journalists have also been denied the right to visually record police activity.

So-called “security concerns” are routinely used to refuse access. And in some court cases, the claim is that releasing records poses a “prospective” risk of harm.

The denials conflict with an otherwise strong Public Information Act that has gotten stronger over the years to include a shield law and a law to dismiss frivolous SLAPP suits, or “strategic lawsuits against public participation.”

But while one hand strengthens the law, another weakens it, say some media watchdog groups and lobbyists who work for media organizations.

“We have a strong public information act, but every time the legislature meets, they try to water it down,” said Donnis Baggett, executive vice president of the Texas Press Association, which represents 450 newspapers.

“There has been session after session where legislators say, yes, open government is good but we should have an exception for this, for security or for privacy,” Baggett said.

Even when the law appears to get stronger through legislation, he said, officials in cities, counties, state agencies – anywhere the law applies – look that much harder for loopholes.

A number of high-profile cases have pitted the media against Texas officials over public access:

·      In August, state police claimed they don’t have to disclose itemized travel records showing how tax dollars are spent to pay for Perry’s security detail when he travels.

  • Declaring that a district judge abused her discretion, a state appeals court in August struck down the judge’s ruling that barred reporters and the public from two juvenile court hearings in a capital murder case.
  • Bexar County officials denied the Houston Chronicle request for records of hazardous chemical stockpiles, claiming they were “confidential under homeland security laws.” State Attorney General Greg Abbott has since ordered the county to release information about the types of chemicals, but not their locations or amounts.
  • In March, a Jeff Davis County deputy sheriff served Texas Big Bend Sentinel reporter John Daniel Garcia with a subpoena ordering him to “produce and permit” inspection and copying of text messages from an artist accused of vandalism.

Laura Lee Prather, a media attorney and past president of the Freedom of Information Foundation of Texas, believes that on the whole the Public Information Act has gotten stronger in the last three legislative sessions – but some media organizations aren’t taking advantage of that.

In 2009, Texas became the 37th state to enact a reporter’s privilege, a “shield law” protecting sources and information. Known as the Texas Free Flow of Information Act, it applies to both civil and criminal proceedings.

When reporters are subpoenaed in a criminal case, if they “file a motion to quash seeking protection from the law, rather than just succumb to the subpoena, the law is working well,” Prather said.

But that’s a big “if.’’

“Unfortunately, we’ve been told that a number of media outlets are simply complying with the subpoenas without raising the privilege,” Prather said. “This seems to invite repeat business in the form of more subpoenas in the future and a lack of awareness about the protections provided by the law.”

The modernized Public Information Act approved in May 2013 specified that electronic communications, including private email accounts or mobile devices dealing with official business, would be accessible to the public. The law also clarified First Amendment protections for whistleblowers, news reporters and individuals exercising their rights to speak out about matters of public concern.

The Freedom of Information Foundation of Texas, a non-profit, non-partisan group that promotes open government and the First Amendment, tracked and spoke out on more than 150 bills during the session that were aimed at further opening government or that threatened to close off public information.

“We are grappling with the update to the law passed last year,” said Kelley Shannon, the Foundation’s executive director. “Public business conducted on a private device is public record but how do you enforce it and make sure everyone complies? It’s a practicality issue we are dealing with to make sure everyone is on board.”

While the attacks of September 11th have provided some reasonable arguments for withholding information, Shannon said the challenge is ensuring that those arguments don’t go too far.

“Security was one of the reasons cited for not releasing the governor’s travel records,” she said. “The public is more likely to go along with that. But security should not be used to close off government to the people.”