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The Free Flow of Information Act continues to be a winner for stations

A Bryan TV station is the latest broadcast outlet to successfully use the state’s reporter shield law which TAB passed in 2009. The law, known formally as the Free Flow of Information Act of 2009, helps fend off compelled testimony to disclose the anonymous source for a story.

Attorneys for former Bryan ISD Superintendent Tommy Wallis had sought the testimony of KBTX-TV staff to identify the anonymous source for stories it aired concerning Wallis’ forced resignation.

The reports were based on documents the station received detailing multiple alleged ethical breaches committed by Wallis while he was Bryan ISD Superintendent.

The documents had been sealed by an Austin court earlier this year after the Texas Attorney General’s Office had ruled in December that most of the information should be released under the Texas Public Information Act.

KBTX, The Eagle newspaper and WTAW-AM had sought the information under TPIA requests filed in 2016.

In order to require a reporter to testify or produce materials, the Texas Free Flow of Information Act requires the party who issued the subpoena to show by clear and specific evidence that they have satisfied a three part test:

(1) they have exhausted all reasonable efforts to get the information elsewhere;
(2) the information is relevant and material to the proper administration of justice; and,
(3) the information sought is essential to the maintenance of the claim or defense of the person asking for it.

Tom Williams, an attorney with TAB Associate Member law firm Haynes Boone, represented KBTX-TV and filed a motion to quash Wallis’ subpoena for the testimony of KBTX news anchor Rusty Surette.

Williams’ Haynes Boone colleague Laura Prather authored the 2009 law and served as TAB’s lead negotiator on the bill during the legislative process. Prather also has been involved in updating and defending the statute in subsequent sessions.

Texas media law attorney Joel White filed a similar motion to quash Wallis’ subpoena for Kelly Brown, the editor of The Eagle.

State District Judge Orlinda Naranjo ruled in June that Wallis’ legal team had not exhausted all resources to learn who gave the documents to the station and the newspaper, a win for both media outlets.

“The requirement that a party seeking to subpoena a journalist must first exhaust reasonable alternative sources is certainly one of the key provisions of the Free Flow Act,” said Williams.

“While our motion was based on all of the act’s requirements, if alternative sources have not been exhausted, it provides a court a basis on which to quash the subpoena without regard to the other elements of the law.”

School officials, however, were grilled by Wallis’ attorney for several hours in an attempt to learn who had leaked district documents to the station and newspaper.

It’s another example of how the law championed by TAB has been utilized to prevent compelled testimony in such cases.  The statute also has done an admirable job in reducing the number of subpoenas issued to stations for testimony and work product.

The Wallis case is ongoing.

Naranjo has ruled that others within the Bryan ISD and two of its trustees were not the source for the information either but that there "clearly was a violation" of the court's temporary injunction.  She is expected to announce this month whether the district should be found in contempt.

The ruling would be significant as Wallis could seek attorneys’ fees from the Bryan ISD.

Additionally, while it may be a moot point, at the time the documents were sealed by the court, an Oct. 2 hearing was scheduled to determine whether the information should be released by the district.

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

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