FREEDOM OF INFORMATIONLAWS IN TEXAS

Legislation Impacting Newsgatheringand 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

pwatler@jw.com

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Texas Legislation Impacting Newsgatheringand Open Government

2009 Legislative Update – 81st Regular Session

By Paul C. Watler

Jackson Walker, L.L.P.901 Main Street, Suite 6000Dallas, TX 75202(214) 953-6000

pwatler@jw.com

I.Introduction

Texas finally joined the modern era of states enacting a journalist’s 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 thesafety 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 soughtto close the DOBs of government employees from public access.The discussion below summarizes significant legislation affecting newsgathering or opengovernment 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 newswithout unwarranted intrusion.Under the bill in civil cases, the journalist’s 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 andreporting, and that the information is essential to the proceeding.

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.

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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 existsthat a confidential source committed a felony and the prosecutor has exhausted all efforts toobtain 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 Amendments

)HB 1360Prosecutor’s 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 todefense counsel would not constitute a voluntary release of information under the Texas PublicInformation Act

HB 2730School 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 directlyor 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 isnot subject to disclosure under the TPIA.

HB 3544E-Mail Public Comment

Amends TPIA §552.137 to provide that an email address is not confidential when used by amember 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 Information

Amends TPIA

552.228 to provide that if public information is not available in the mediumrequested 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 therequestor.”

SB 375Accident 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 TexasDepartment of Transportation, but allows the Transportation Department to release aggregate or statistical information.

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 amendmentsto TPIA.