2017 TAB newsroom legislative agenda takes shape

posted on 12.05.2016

TAB has prepared an ambitious newsroom legislative agenda for the 2017 Legislature. The effort includes a package of five measures aimed at righting egregious open records court decisions and addressing a long-standing Texas Public Information Act issue.

TAB hopes to build on its successful record of passing legislation benefiting Texas newsrooms, including passage of the 1993 state interlocutory appeal provision, the 2009 Free Flow of Information Act (reporter shield law), the 2011 Citizen Participation Act (anti-SLAPP litigation law), 2013 Defamation Mitigation Act (uniform corrections/retractions measure) and a 2015 clarification to the law concerning reporting third party allegations.

In each instance, TAB has been assisted by Texas broadcast journalists who provided background information and testified before lawmakers in hearings on these important pieces of legislation.

There are two ways newsrooms can continue to help TAB advance a newsroom legislative agenda.

News Directors and other newsroom staff can get a deep-dive into the legislative issues affecting Texas newsrooms by attending TAB’s biennial Legislative Day Conference in Austin on Jan. 24.

See event details and register here

The event highlight is the Lawmaker/Broadcaster Luncheon at which lawmakers are seated with their local broadcasters so they can discuss issues important to their communities and briefly review TAB’s policy interests.

Broadcaster participation in this event is imperative to TAB’s success in the legislative session, whether advancing bills or fending off attacks on the Texas Public Information Act.

In every Legislature, lawmakers file bills meant to erode our state’s open records and open meetings laws.

News directors and newsroom staff can keep up with these measures by reading TAB’s weekly newsroom legislative Billwatch emails.

These Friday dispatches will begin in the coming weeks and will detail legislation filed by lawmakers which could impact newsgathering in Texas.

But it’s not just legislative action that can hinder Texas newsrooms.

Texas court decisions have had a significant impact on newsgathering in-state in the past two decades.

Some of TAB’s victories noted above stem from such bad court decisions.

And the hits just keep on coming.

Four of the five legislative measures TAB hopes to pass in 2017 stem from court decisions in the past two years.

Two June 2015 rulings by the Texas Supreme Court have severely damaged the public’s access to records related to governmental expenditures to private and non-profit entities.

In Boeing v. Paxton, the court’s 7-1 ruling was a two-fold disaster for open government as it made it easier for government and business to keep contracts involving public funds secret. 

The decision broadened an existing AG ruling protecting governmental competitive interests such as economic development efforts. 

It also lowered the standard by which a company can block the release of information in a government contract if the company asserts it would face competitive harm if the information is made public.   Government contracts have long been held to be public, but bids and proposals were protected by an existing exception protecting trade secrets and proprietary information.

The decision has been used in all manner of instances including the City of McAllen shielding its contract for an hour long holiday concert featuring Enrique Iglesias. 

The City successfully argued that it had “specific marketplace interests” mentioned in the contract and that its release would “place the city at a competitive disadvantage” when negotiating future contracts with entertainers.

In Greater Houston Partnership v. Paxton, the court’s 6-3 ruling said the non-profit Greater Houston Partnership, an economic development entity, is not subject to the Texas Public Information Act because it did not rely exclusively or heavily on government funding to exist.  

The ruling allows third-party groups to conduct business on behalf of government, using public money, without being required to divulge the expenditures of that money.  

There are several economic development groups like GHP across the state and the Texas Attorney General’s office ruled in favor of one of them a month after the court’s decision and cited the GHP case.

A May 2015 Third Court of Appeals decision, Paxton v. City of Dallas, extended a common-law right of privacy to dates of birth of all Texans. 

It based its decision on an earlier Texas Supreme Ct. decision which held public employee dates of birth could be withheld from the public. 

The battle over the release of DOBs has been going on in the Legislature and in Texas courts for nearly two decades.  

Journalists use DOBs to differentiate between two individuals with the same or similar names in order for reporting to be accurate.  

As a result of the court’s decision, some Texas police departments are now redacting DOBs from the “basic information” that must be released when an individual is arrested or charged, thereby creating liability issues for crime reporting. 

TAB and others are seeking, at a minimum, a legislative clarification that DOBs of candidates for public office and those of individuals arrested or charged with a crime should be public.

Another court case, this one involving the State Fair of Texas, has set a dangerous standard for lawsuits based on requests made under the Texas Public Information Act (TPIA).

Under current law, Texas governmental bodies cannot sue a TPIA requestor for making a request under the Act.  

Instead, the governmental body must sue the Texas Attorney General’s Office to prevent release of the information. 

The idea is that a Texas citizen should not be vulnerable to a lawsuit simply for asking for information they believe is covered by the TPIA.  

But what about cases in which the entity does not believe it is a governmental body, or even a quasi-governmental body? 

Recently, the State Fair of Texas sued a law firm seeking records that its client believed were subject to the TPIA.  

The Fair does not believe it is a governmental body and therefore is not subject to the Act. 

Rather than ignore the TPIA request for information, it sued the firm hoping to discourage further requests for information.  

Under the proposed legislative fix, any entity questioning its status as a governmental body must ask the Attorney General’s Office for a determination rather than dragging an ordinary citizen to court.  

If the entity is displeased with the AG’s determination, it may sue the AG to prevent release – not the requestor who believed it was subject to the TPIA.  

TAB is also seeking a legislative solution to an Open Government issue that has been raised at the Capitol for several decades.

Open Government advocates acknowledge there is a problem with individuals who use the TPIA to harass local government.  

They do so by filing voluminous TPIA requests that would take days and weeks to fulfill, either because of the amount of material requested or the number of requests that have been made.  

Some have even written computer programs to systematically send bulk emails requesting information.  TAB is working with others to come up with a solution to a legitimate problem but to do so in a way that legitimate requestors, such as Texas newsrooms, are not curtailed in their efforts.

Questions? Email TAB's Michael Schneider or call (512) 322-9944.

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