Last week’s Texas Press Association convention in Corpus Christi served as a reminder to elected officials that We the People own the government. The reminder didn’t take the negative tone of a warning or a threat, but of positive reinforcement in recognizing four of those elected officials who defended the people’s right to a free flow of their information.
The honorees are state Sens. Rodney Ellis, D-Houston, and Kevin P. Eltife, R-Tyler; state Rep. Todd Hunter, R-Corpus Christi; and House Speaker Joe Straus, R-San Antonio. Eltife and Straus have been reliable allies and enablers of open government and information access-friendly laws. Ellis and Hunter are initiators of these laws.
Specific victories include the landmark shield law protecting a news reporter’s right to protect the confidentiality of news sources; the opportunity for news media to correct mistakes and be protected from punitive damages; and protection for whistle-blowers against meritless retaliatory lawsuits.
Defending the people’s right to know shouldn’t put these four lawmakers at odds with their colleagues in the Legislature, or with local government officials in their home districts. But, unfortunately, often it does. And it’s likely to happen again in the next regular session in 2015.
The Texas Press Association has identified four legislative priorities for the 2015 session. We acknowledge openly and proudly that this agenda furthers our self-interest as both a news medium and a for-profit business — no shame in any of that. It also furthers the people’s best interest.
First on this in-no-particular-order list is protection of the requirement that governmental bodies publish public notices in their local newspapers. They continually seek to have publication on their websites count as fulfillment of the public notice requirement. By all means, they should post notices on their websites. But to count it as official public notice would be tantamount to hiding the information in plain sight. Try to imagine empty-nesters perusing a school district website regularly, on the off-chance of a notice of a public hearing on a bond issue. Working parents of school kids also are unlikely to do it.
Second on the legislative priority list is legal clarification of journalists’ freedom to report ongoing investigations and third-party allegations without threat of defamation lawsuits. The Texas Supreme Court injudiciously undermined this tradition in a 2013 ruling. The press association cited the Lance Armstrong case as an anecdotal example — what if news media couldn’t have reported the long-standing allegations of his use of performance enhancers safely until after they had been proven. The court ruling could have a chilling effect not only on dissemination of news but on witness testimony. It’s a recipe for aiding and abetting wrongdoing.
Third, the Texas attorney general should have jurisdiction to initiate enforcement of open government laws where district attorneys have been reticent to do so. Currently the attorney general needs an invitation from a local DA. Local DAs have been loath to prosecute their fellow home-district public officials. With apologies to our own District Attorney Mark Skurka, try to picture him prosecuting the county judge or Corpus Christi ISD board president for an open meetings transgression. It would be a lot less awkward for the attorney general.
Fourth and not least on the list is to establish a clear custodial responsibility by a government body for public records transmitted on public officials’ private devices. Requests shouldn’t be shunted off to AT&T or Google. The loophole enables public officials to use their private devices to dodge public disclosure.
One final observation in praise of our local state representative: On the homepage of the Freedom of Information Foundation of Texas is a video of Hunter accepting an award. His face and voice are linked to defense of the First Amendment and the Texas open meetings and public information laws.