Free Flow of Information Act signed into law

After years of dedicated effort from the state's FOI advocates, Texas finally has a source protection law on the books. Governor Rick Perry signed HB 670, the long-awaited Free Flow of Information Act, May, 13.

According to a press release from the governor's office, the law takes effect immediately.

House Bill 670 by state Rep. Trey Martinez Fischer mirrors the version of the Free Flow bill that came out of the House Judiciary Committee last session.

The law says that any body with authority to issue a subpoena cannot compel a journalist to testify or produce or disclose in an official proceeding any confidential or nonconfidential information, document or item obtained or prepared while acting as a journalist. The source of any information, or document described in the law could not be subpoenaed with some exceptions.

It provides that, after notice and an opportunity to be heard, a court may compel testimony or require the journalist to produce any information or document or the source if the person seeking it makes a clear showing that: all reasonable efforts have been made to get the information from an alternative source, the subpoena is not overbroad, unreasonable or oppressive and limited to the verification of published information, and the subpoena is not being used to obtain "peripheral, nonessential or speculative information."

The information has to be relevant and essential to a case. It must be central to the investigation or prosecution of a criminal case based on something other than the assertion of the person seeking the subpoena and reasonable grounds exist that a crime has been committed.

A journalist would have to testify if he or she were an eyewitness to a crime. Testimony would be required if the source was someone who had participated in a violent crime and the person seeking the testimony had exhausted reasonable efforts to get the information from some other source. Testimony would be required if there it was reasonably necessary to stop or prevent reasonably certain death or substantial bodily harm.

An application for a subpoena would have to be signed by a district attorney or county attorney. Timely notice would be required and an order would have to include "clear and specific findings" on which the court relied in issuing the court order.

House Speaker Tom Craddick allowed a similar bill to come to a vote in 2007, but it was late in the session and a Republican legislator shot it down on a technical point of order.

A spokesman for Sen. Rodney Ellis, a Houston Democrat who sponsored the bill in 2007, said winning approval in the Senate last time was a major step forward.

Proponents say the legislation would protect the public because it would encourage whistleblowers to come forward with information that could reveal corruption, the AP story said. Opponents, including district attorneys, say it could hinder their ability to gather evidence in criminal cases.

Learn more about Free Flow laws across the country