Texas Open Government Laws: 2009 Legislative Update

FREEDOM OF INFORMATION LAWS IN TEXAS Legislation Impacting Newsgathering and Open Government 2009 Legislative Update – 81st Regular Session

Paul C. Watler Jackson Walker, LLP, 901 Main Street, Suite 6000 Dallas, TX 75202 (214) 953-6069 [email protected]

Texas Legislation Impacting Newsgathering and Open Government 2009 Legislative Update – 81st Regular Session By Paul C. Watler1 Jackson Walker, L.L.P. 901 Main Street, Suite 6000 Dallas, TX 75202 (214) 953-6000 [email protected]

I.

Introduction

Texas finally joined the modern era of states enacting a journalist’s shield law with the passage of HB 670 by the 2009 Legislature. The bill was the most significant impacting newsgathering and open government from Austin this session. In the open records realm, legislators continued to chip away at the public right to know by excepting more information from disclosure, largely justified as resting on concerns for the safety or privacy of public employees. Open government advocates did enjoy some successes in playing defense under the Texas Public Information Act, most notably blocking bills that sought to close the DOBs of government employees from public access. The discussion below summarizes significant legislation affecting newsgathering or open government that was passed by the Legislature and signed into law by the governor. II.

Texas Free Flow of Information Act

With the 81st Legislature’s enactment of HB 670, Texas joins 37 other states and the District of Columbia in safeguarding the free flow of information to the public by protecting the rights of sources to provide information and the rights of journalists to gather and communicate the news without unwarranted intrusion. Under the bill in civil cases, the journalist’s privilege could be overcome only in narrow circumstances. The statute requires a clear and specific showing that alternative sources have been exhausted, that the subpoena is not overly broad, that reasonable notice was provided to the journalist, that the interest in disclosure outweighs the public interest in news gathering and reporting, and that the information is essential to the proceeding.

1

Mr. Watler, a partner in the litigation section of Jackson Walker, LLP, is a board certified civil trial lawyer and was president of the Freedom of Information Foundation of Texas from 1996 to 1999. He is listed in the Best Lawyers in America in the categories of First Amendment law, bet-the-company litigation and commercial litigation. FOI 2009 Legislature Update, Page 1 5580720v.1

In criminal cases, the Texas shield law includes limited exceptions involving a journalist as an eyewitness to a felony, a person confessing a felony to a journalist, where probable cause exists that a confidential source committed a felony and the prosecutor has exhausted all efforts to obtain the source’s identity, or if disclosure is necessary to prevent certain death or substantial bodily harm. III.

Texas Public Information Act (Direct or Indirect Amendments2)

HB 1360 Prosecutor’s Disclosure to Defense Counsel Amends Code of Criminal Procedure art. 38.02 to provide that the release of information related to the pending or reasonably anticipated prosecution of a criminal case by the state attorney to defense counsel would not constitute a voluntary release of information under the Texas Public Information Act HB 2730 School Employee Criminal Background Check Amends the Government Code to provide that any information that could reveal the identity of a person about whom criminal history record information is requested and information that directly or indirectly indicates or implies involvement of a person in the criminal justice system obtained by a school district in connection with mandatory criminal background checks of employees is not subject to disclosure under the TPIA. HB 3544 E-Mail Public Comment Amends TPIA § 552.137 to provide that an email address is not confidential when used by a member of the public for the purpose of providing public comment on or receiving notices related to an application for a state license, or receiving orders or decisions from a governmental body. Medium for Public Information Amends TPIA § 552.228 to provide that if public information is not available in the medium requested by the requestor, the governmental body no longer has the option to provide a paper copy. Rather, public information must be produced in “another medium that is acceptable to the requestor.” SB 375 Accident Report Information Amends Transportation Code § 550.065 to provide for the confidentiality of the names and identifying information listed in motor vehicle accident reports compiled by the Texas Department of Transportation, but allows the Transportation Department to release aggregate or statistical information.

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Information is often excepted from disclosure under the TPIA or made confidential by amendments to laws other than the TPIA itself. Therefore, this outline discusses notable changes through both direct and indirect amendments to TPIA. FOI 2009 Legislature Update, Page 2 5580720v.1

SB 1068 Redaction Without Attorney General Opinion Amends §§ 552.024, 552.1175, and 552.138 to provide that no Attorney General opinion is necessary to redact information excepted under these sections, but the governmental body must provide written notice to the requestor that the information has been redacted, a description of the withheld or redacted information, citation of the applicable basis for the redaction, and notice to the requestor and instructions on the right to seek an Attorney General’s opinion. Excepting Information Posing “Substantial Threat of Physical Harm” Enacts new TPIA § 552.151 providing that information regarding government employee or officer is excepted if, under specific circumstances pertaining to the employee or officer, disclosure of the information would subject the employee or officer to a substantial threat of physical harm. SB 1071 Public Pension System Trustees and Employees Enacts new TPIA § 552.0221 providing that information regarding employees and trustees of a public employee pension system, including relating to their income, salary, benefits and bonuses, is public information. SB 1182 Hospital District Employees Enacts new TPIA § 552.150 authorizing withholding information that could reasonably be expected to compromise the safety of an employee or officer of a hospital district where the employee submits a request in writing with specifics on why the information should be withheld. (This amendment is subject to a sunset provision terminating its effectiveness in 2013.) Bio Agents Enacts new TPIA § 552.151 authorizing withholding of information related to a biological agent or toxin identified or listed as a select agent under federal law, specifically: (a) location of select agent; (b) people in chain of custody for the select agent; and (c) identity of people authorized to possess select agents. SB 1629 Media Carve-out From Research Cap Extended to Magazines and On-line Newspapers Amends TPIA § 552.275 to add magazines and on-line newspapers to the list of news media excepted from Section 552.275’s required prepayment to a governmental body for requests requiring large amounts of agency personnel time. IV.

Texas Open Meetings Act

HB 1783 Amends Utilities Code Sec. 412.204 to require the Public Utilities Commission and ERCOT to broadcast public hearings and meetings online.

FOI 2009 Legislature Update, Page 3 5580720v.1

SB 1182 Enacts TOMA § 551.0415 to exempt from agenda notice requirements municipal governing body discussions regarding expressions of thanks, congratulations, or condolence; information regarding holiday schedules; an honorary or salutary recognition of a public official, public employee, or other citizen; a reminder about an upcoming event organized or sponsored by the governing body; information regarding a social, ceremonial, or community event; and an imminent threat to the public health and safety that has arisen after the posting of the agenda.

FOI 2009 Legislature Update, Page 4 5580720v.1