Paul Watler's Perspective

Last month in this space, my partner Stephen Fogle reported on a legislative success story in Texas. In this issue, I want to focus on a less sanguine picture regarding another statute fundamental to the Fourth Estate fulfilling its constitutional role of government watchdog.

Steve reported on the results under the first 15 months of the Texas Free Flow of Information Act (FFOIA). He showed that the statute, often referred to as a journalist shield law, markedly reduced news media subpoenas and allowed Texas media to redirect scarce resources to gathering the news rather than testifying about it in court.

If the FFOIA is the new kid on the block, then the Texas Public Information Act is the graying grandparent. The TPIA has been a stalwart in Texas for nearly 40 years in making the government accountable to the people. However, that venerable law is showing signs of age that threaten its basic effectiveness.

In 1973, the Legislature made government transparency the law of the land. The Act proclaims that “the people insist on remaining informed so that they may retain control over the instruments they have created.” To that end, the Act was structured to provide that “all information collected, assembled or maintained by a governmental body” is public information available for inspection by the public or the media unless specifically excepted by law.

Today, under the primary stress of profound technological change, the policy of government transparency and public access to government is in peril. The “Dirty 30” reform Legislature which passed the open records act did not anticipate the development of the Internet, e-mail, or social networking. Paradoxically, in the high-tech era when communication has never been easier, faster or more prolific, there are more impediments to fulfilling the promise of government transparency.

A short-list of current PIA shortcomings would include these three top concerns from an open government perspective.

Here today, gone tomorrow, not retained for inspection.

The PIA lacks a standard e-mail retention policy for state and local government. This allows governmental officials to select a retention policy of their own choosing. Often, the period chosen to retain e-mail is seven days. This makes it virtually impossible for the public and the media to have effective access to government information in the electronic era. Open government supporters urge a state-wide standardized policy that requires all electronic information to be retained for a period of at least 90-180 days in order to facilitate governmental transparency.

Private Blackberrys, public information?

The Act defines public information to presume that all information created or held by governmental bodies or officials “in connection with the transaction of official business” is public. Some government officials and bodies take the position that this definition does not reach e-mail or text messages that they may send on personal computers, Blackberrys or cell phones even though they are used to conduct official business. Yet, if the exact same message was transmitted by a device owned by the governmental body through a government e-mail server, there would be no doubt that it was public. It is difficult to discern a rational basis for this distinction. A gaping loophole to the PIA emerges that allows officials to conduct all manner of public business with no public transparency or oversight, as long as the electronic communication never passes through a government computer server.

More requests, slower processing.

After the Legislature amended the Act a few sessions ago to permit members of the public to e-mail information requests, the volume of requests has soared. When a governmental body wishes to withhold information from public inspection, it must seek an Attorney General decision. The AG opinion process is becoming a choke point in the free flow of information to the public and the press. The AG does an excellent job in processing opinion requests and the office has shown its dedication to protecting open government. However, even the speediest opinions take weeks, and more complex opinions can take months.

These open government concerns will be before the Legislature in 2011. Let us hope that we are reporting another success story out of Austin in coming months.

— Paul Watler is a partner at Jackson Walker. He can be reached at pwatler@jw.com.