AUSTIN, TX — Over the summer months, Texas became a hothouse of media access issues surrounding some high profile stories—from Gov. Rick Perry’s travel records, to access to court proceedings and records of chemical stockpiles, to the right to visually record police activity.
From the media’s perspective, some of these battles ended in victories, some in losses, and others are ongoing. Together, they point to the need for an ongoing effort on the part of media organizations and other transparency watchdogs to uphold the state’s open records laws and right of access.
Detailed travel records still secret
We begin with the perpetual media attraction that is Texas Gov. Rick Perry. In August, the Texas Tribune reported that state police do not have to disclose itemized travel records showing how tax dollars are spent to pay for Perry’s security detail when he travels. That’s according to a ruling from the office of the state’s attorney general, Greg Abbott, which is the latest word in a fight that began seven years ago, when three Texas papers—the Austin American-Statesman, San Antonio Express-News, and Houston Chronicle—sued for access to the records.
The ruling from Abbott’s office does authorize state police to release information on broad categories of spending. But it relies on a standard established by the state supreme court over the course of the legal wrangling—that records may be withheld if their release poses a “prospective” risk of harm—and assertions by police that that risk exists, to leave detailed records beyond public scrutiny even well after the fact. “The ruling means that the public won’t know precisely what their tax dollars paid for when it comes to the governor’s security detail,” noted the Tribune.
The episode reveals the gap that can exist between the letter of the law and actual practice when it comes to open records in Texas. “In our state, [information] is presumed to be public and it’s presumed the person has a right—on the books it’s pretty good,” said Kelley Shannon, executive director of the Freedom of Information Foundation of Texas. “But how it’s carried out, that’s an ongoing issue.”
Municipalities and public agencies in Texas that want to deny a public information request typically have to seek an opinion from the attorney general. In 2012, before joining the FOI Foundation, Shannon produced an investigation for the Center for Public Integrity that found municipalities in the Dallas-Ft. Worth area led the state in those petitions—and that some cities win approval to at least partially withhold information in more than 90 percent of those cases.
An earlier report from the State Integrity Investigation, a project of CPI and Public Radio International, had ranked Texas 29th in access to information. “There’s always going to be government officials trying to block information—but then, there’s always an effort to make sure the public has access,” Shannon said. “It’s a back-and-forth battle all the time.”
Meanwhile, Abbott’s office figures in another of this summer’s records battles. The Houston Chronicle has been seeking access to information related to chemical stockpiles. The issue is particularly sensitive after last year’s massive, deadly explosion in the town of West, just north of Waco. One story related to the paper’s ongoing efforts begins:
Bexar County emergency planning officials don’t want to release information about chemical stockpile cites [sic] in the area and have punted a Houston Chronicle public records request for the information to Attorney General Greg Abbott.
The Chronicle reported that county officials informed the newspaper they had requested the opinion, arguing that the records were “confidential under homeland security laws.” An investigation into the explosion in West by the federal Chemical Safety Board found the accident had been preventable and that all levels of government had failed to adopt and enforce codes to protect communities from hazardous chemicals.
Access to courts, and activists taping cops
In another recent case, a restriction on media access was struck down. A state appeals court ruled in August that a district judge had abused her discretion in barring reporters and the public from two juvenile court hearings in a capital murder case earlier this year. The closed hearings had come soon after the same judge sparked outrage with her ruling in another closely watched case, sentencing a 16-year-old from a wealthy family to 10 years’ probation and a stint in a rehab center after a drunk-driving crash that results in four deaths.
A media coalition including the Fort Worth Star-Telegram, The Dallas Morning News and several TV stations joined in a legal fight against the judge’s decision to close the proceedings. “It’s obvious that the public is very interested in what’s happening in our juvenile court system, and it’s our job to tell them,” Star-Telegram executive editor Jim Witt told a reporter for his paper. (In Texas, juvenile proceedings are presumed open if the accused is 14 or older, unless evidence of good cause to close them is shown.)
But that sort of wrangling for information is often remains limited to large news outlets with resources to wage legal battles. “Those big chains who were willing to invest—they don’t exist as much,” G.W. Schulz, a Texas-based reporter with the Center for Investigative Reporting and coordinator of an journalists’ collective in Austin known as the Deadliners.
Schulz says new strategies for waging legal battles are necessary to reflect the changes in the media landscape. Last year, the FOI Foundation delivered an open records workshop to the Deadliners. “I want all of the Deadliners to know how to access records, I want them to know they can call (the FOI) hotline,” said Schulz. He added, soberly, “But Deadliners ain’t going to be suing anybody tomorrow for records.”
Press freedoms and media access here, however, did make some indirect gains through legal battles waged by activists. On July 24, a federal magistrate judge upheld the constitutional right of Austin activist Antonio Buehler to photograph and film police officers.
The judge’s order stemmed from a lawsuit brought by Buehler, a 37-year-old Army veteran, after he was arrested in 2012 while videotaping an arrest in Austin. Buehler is a founder of the Peaceful Streets Project, which monitors police interaction with the public. The National Press Photographers Association filed an amicus brief in support of his lawsuit, arguing the case was “part of a nationwide phenomenon where police have interfered with citizens’ rights to photograph and video-record officers.”
Those issues gained widespread attention a few weeks later, when police arrested journalists, including Getty photographer Scott Olson, covering the aftermath of the Michael Brown shooting in Ferguson, MO.
But the message in Buehler’s case apparently has yet to trickle down. Just this week, on Sept. 8, the alt-weekly Dallas Observer provided a detailed description of the arrest of three members of the Peaceful Streets Project who were on a “cop watch” in Arlington, near Dallas.
These battles aren’t over—and media organizations, and others committed to public access and the free flow of information, will need to keep waging them, however they can.
Mario Garcia is CEO of Garcia Media and senior adviser on news design at Columbia Journalism School.