texas open government laws: 2009 legislative update

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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) [email protected]


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FOI 2009 Legislature Update, Page 15580720v.1

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 journalists shield law with the passageof HB 670 by the 2009 Legislature. The bill was the most significant impacting newsgatheringand open government from Austin this session.

In the open records realm, legislators continued to chip away at the public right to know byexcepting 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 inplaying 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 Legislatures enactment of HB 670, Texas joins 37 other states and the District ofColumbia 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 newswithout unwarranted intrusion.

Under the bill in civil cases, the journalists privilege could be overcome only in narrowcircumstances. 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 theBest Lawyers in

America in the categories of First Amendment law, bet-the-company litigation and commercial litigation.


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In criminal cases, the Texas shield law includes limited exceptions involving a journalist as aneyewitness 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 toobtain the sources 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

Prosecutors Disclosure to Defense Counsel

Amends Code of Criminal Procedure art. 38.02 to provide that the release of information relatedto 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 PublicInformation Act

HB 2730

School Employee Criminal Background Check

Amends the Government Code to provide that any information that could reveal the identity of aperson 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 obtainedby 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 CommentAmends 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 noticesrelated to an application for a state license, or receiving orders or decisions from a governmental body.

Medium for Public InformationAmends 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 papercopy. 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 andidentifying information listed in motor vehicle accident reports compiled by the Texas

Department of Transportation, but allows the Transportation Department to release aggregate orstatistical information.

2 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.


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SB 1068

Redaction Without Attorney General Opinion

Amends 552.024, 552.1175, and 552.138 to provide that no Attorney General opinion isnecessary 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 noticeto the requestor and instructions on the right to seek an Attorney Generals opinion.

Excepting Information Posing Substantial Threat of Physical Harm

Enacts new TPIA 552.151 providing that information regarding government employee orofficer 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 ofphysical harm.

SB 1071

Public Pension System Trustees and Employees

Enacts new TPIA 552.0221 providing that information regarding employees and trustees of apublic employee pension system, including relating to their income, salary, benefits and bonuses,

is public information.

SB 1182

Hospital District EmployeesEnacts 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 theemployee 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 in2013.)

Bio AgentsEnacts 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 selectagent; (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 mediaexcepted from Section 552.275s required prepayment to a governmental body for requests

requiring large amounts of agency personnel time.

IV. Texas Open Meetings Act

HB 1783Amends Utilities Code Sec. 412.204 to require the Public Utilities Commission and ERCOT to

broadcast public hearings and meetings online.


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SB 1182Enacts TOMA 551.0415 to exempt from agenda notice requirements municipal governing

body discussions regarding expressions of thanks, congratulations, or condolence; informationregarding 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 animminent threat to the public health and safety that has arisen after the posting of the agenda.

texas open government laws: 2009 legislative update

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