By Terri Langford
The Texas Tribune
Originally published July 17, 2014
Ask Texas Attorney General and Republican gubernatorial hopeful Greg Abbott about his record on providing the public greater access to government records and he will tell you it is one worth bragging about. He has aggressively pursued open records training for state and elected officials, and been honored for his work keeping Texas government transparent.
“There really is no attorney general who’s had a greater proven record of achieving more transparency and more openness than myself,” Abbott told The Texas Tribune in an interview last week.
But open government advocates find the transparency record of the state’s longest-serving attorney general to be much more varied, especially in light of recent rulings that kept both the locations of facilities storing dangerous chemicals and details about compounding pharmacies that produce execution drugs out of view.
“It is definitely mixed,” said Joe Larsen, a First Amendment attorney for Sedgwick LLP in Houston and a board member for the Freedom of Information Foundation of Texas, which promotes government openness.
Texas’ open records law and companion open meetings statute are among the nation’s more robust, and the attorney general, whose office also defends state agencies in civil actions, wields absolute authority in deciding public access cases. In many other states, disputes about public records are referred to the courts, or else the attorney general has a much more limited decision-making role.
“The Public Information Act is powerful and the [Texas] AG has dominion over it,” said Nicole Casarez, a communications professor at the University of St. Thomas who will teach constitutional law at the University of Houston Law Center this fall. “It’s a big part of his job and his legacy.”
Since Abbott stepped down from the Texas Supreme Court and successfully ran for attorney general in 2002, he and his staff have gone to great lengths to make sure elected officials and government employees who handle records requests know how to comply with the Texas Public Information Act.
Both are now required to take open government training, thanks to Abbott. And he’s fought against some of the worst public records scofflaws in the state, like the city of Dallas, which his office has called a “notorious” repeat open government offender.
In 2005, three years after taking office, Abbott was awarded the Texas Freedom of Information Foundation’s James Madison Award for his efforts. Abbott has also said he would like the attorney general’s office to have greater authority so that its lawyers could criminally prosecute agencies that refuse to abide by the Texas Public Information Act.Currently, his office can only take such action if invited to do so by the local district attorney’s office.
Larsen and Casarez both praise Abbott’s office for the transparency progress, lauding him for pushing back when medical officials tried to inappropriately hide basic health care information by declaring the information private under HIPAA, the Health Insurance Portability and Accountability Act.
They also point to how Abbott prevailed after years of challenges made by members of Alpine’s city council who believed their emails to one another did not violate the Texas Open Meetings Act.
“That’s a real feather in his cap,” Larsen said of the Alpine case.
But there are other decisions, particularly in this past year, that not everyone in the transparency camp favors.
Just ask KXAN-TV reporter Brian Collister of Austin, who, while working at another station a few years ago, recruited other broadcast stations in the state to jointly request reports detailing Texas Department of Public Safety troopers’ “use of force.” Collister thought the request would be a slam dunk.
In 2001, a trial and appeals court had sided with the San Antonio Express-News, which was seeking the same type of report from local police. Typically, police personnel records are protected from disclosure. But the newspaper proved that the records were kept outside the personnel files for other reasons, and were therefore releasable.
Abbott’s office ruled on the DPS use-of-force request in November. The decision said that because the agency’s use of force and firearms discharge logs were part of officers’ personnel records at the agency, they could not be released.
“We wanted to know if officers are getting in trouble or maybe they’re not,” Collister said. “There is no way now. There’s a shield around them, and we can’t find out anything.”
Larsen considers the use of force decision a critical low in Abbott’s transparency record.
“That was really bad,” he said. If police departments were not already doing so, he said, they would now make sure that their use-of-force reports were kept within personnel records, and not subject to disclosure.
Another case — one involving Gov. Rick Perry‘s memos when deciding whether or not to grant clemency to Cameron Todd Willingham, who was accused of killing his three three children by setting the family’s Corsicana home on fire in 1991 — is still pending.
Willingham was executed in 2004 but maintained his innocence up until his death. In 2010, the Texas Forensic Science Commission released a report saying the evidence used to convict Willingham was based on “flawed science.”
Media requests for legal memos — known as “clemency memos” — given to Perry by his counsel were denied after Abbott’s office determined they were confidential. The Houston Chronicle sued over the matter.
Years earlier, in 2003, The Atlantic obtained “clemency memos” written by Alberto Gonzales, who had been the legal counsel for former Gov. George W. Bush. The magazine obtained these memos through a public information act request from the state archive because no one from Perry’s office objected to their release, which would have prompted an open records decision from the newly installed attorney general, Abbott.
“I think the clemency memos in the Todd Willingham case, people had an interest in seeing those,” Casarez said.
Larsen and Casarez also point to two more recent decisions that suggest there’s a flip side to Abbott’s openness record.
For decades, the Texas Department of State Health Services has released information about the storage of hazardous or “Tier II” chemicals to the public. But the agency had second thoughts about its procedure after last year’s explosion in the town of West, and the subsequent requests from media outlets for the information. The health department asked Abbott’s office for guidance.
In May, Abbott agreed with DSHS that the agency should not release the information to the public, saying it never should have been released by DSHS in the first place.
“On the title of the law itself, it includes the word confidentiality, and so anyone and everyone who sees that law understands that that law is intended to keep that information confidential,” Abbott said.
In another May decision, Abbott’s office eventually sided with the Texas Department of Criminal Justice, which has tried and failed previously to keep information about the compounding pharmacies providing lethal injection drugs for executions secret.
In previous decisions on the same issue, Abbott’s lawyers informed the state prison system that it had not proven the harm caused by releasing a pharmacy’s name.
TDCJ was finally able to win its case two months ago after getting DPS Director Steve McCraw to write a one-page note saying that “some of the threats” to the Woodlands Compounding Pharmacy near Houston, which was publicly named as a lethal injection drug provider, “should be taken seriously.”
“The issue people really want and need to know about these [execution] protocols is: What drugs are being used to effectuate the death penalty?” Abbott said. “That information is still widely open.”
Abbott told the Tribune that he stands by the hundreds of decisions made by his office, including the most recent ones making headlines, like the Tier II chemical storage decision.
And he insisted that the cases in the past year that news organizations and open records advocates disagree with do not signal a move to keep more records secret as the November gubernatorial election nears.
“Actually, what you’ve seen over the past year is greater access to public information,” Abbott said. “I’m continually pushing for greater transparency.”