Will Supporters of Press Freedoms and Government Transparency Face Headwinds in the 2023 Texas Legislative Session?

October 4, 2022 | Insights

By Stacy Allen

Because I have had the privilege of testifying on behalf of JW client Texas Association of Broadcasters regarding bills pending in past Texas legislative sessions, I have regularly written about the aftermath of those sessions and their impact on Texas newsrooms. This time, I’d like to offer a preview of opposition that past successes and proposed bills affecting journalists could face in the upcoming 2023 session.

In its 2015 decision in Boeing v. Paxton, the Texas Supreme Court upended over forty years of Texas Attorney General decisions construing the Texas Public Information Act to require state and local government entities to provide copies upon request of final contracts entered with private parties, and to release bids received but rejected after the contracting process was completed. Such transparency allowed members of the public to make their own assessments of the fairness and propriety of the contracting process. The Boeing decision reversed that long-standing rule, and went even further by empowering the private contractors to object to such disclosures as well. In a subsequent legislative session, TAB and other supporters of transparency in governmental spending obtained passage of SB 943, which restored the public’s right to request copies of government contracts with private parties once entered. Since then, a disturbing trend has arisen in which the government bodies receiving such requests have sought Attorney General opinions on long-settled issues, thereby delaying disclosure of such contracts, or refused to provide portions of such contracts to which no objection was made. TAB and other champions of government transparency hope to obtain sponsorship for a bill addressing these evasive practices. Opponents can be expected to offer amendments of their own which would further weaken the disclosure requirement.

The recent COVID-19 pandemic exposed other weaknesses in how TPIA requests are handled. In some cases, government entities delayed in responding to lawful requests blaming “skeleton crews” and pursuing an “everything but the kitchen sink” approach to objections, while employees were working from home on other government business and could likewise have processed TPIA requests; in some cases, these entities simply failed to respond at all. In 2021, TAB-supported SB 1225 which limited agency suspensions of TPIA request deadlines to once per declared “catastrophe”, and for 14 days only. Similarly, “disaster” declarations were frequently relied on to cloak the reallocation of tens of millions of dollars from one government agency to another, defeating the bi-annual legislative budgeting process (in which all stakeholders can participate), thereby undermining public confidence in fair and open government. Efforts to correct such practices are likely to be met with resistance from the special interests which most benefit from them.

In another example, TAB hopes to seek codification of an Attorney General ruling that information subject to a TPIA request be provided by the government body in the same form in which it was maintained (e.g., providing digitally-stored data in native digital form instead of printing the data in thousands of PDF pages and charging the requestor for the cost of such printing).

During the 2021 session, the trend of restricting access to public records of dates of birth and personal identifying information of public officials and employees continued with more groups of such persons added to the growing list. Such information can be of vital importance to journalists reporting stories. For example, two persons with the same name, gender and approximate age can be confused when reporting that an individual is wanted by the police as a suspect; having the correct date of birth of that suspect can protect an innocent person from being misidentified, and lead to the earlier apprehension of the actual suspect. Also, without access to the correct address of an individual running for public office, a journalist is unable to confirm that the candidate resides in the district in which he or she is seeking election—a necessary prerequisite. Such laws raise concerns about who gets to determine which individual’s privacy interests outweigh the public’s right to know.

On a bright note, in addition to TAB and other open government advocates, House leadership has indicated strong support for criminal transparency legislation addressing in-custody deaths, toxicology reports, and other policing issues in response to the Uvalde mass school shooting tragedy.

With threats of violence and actual assaults against journalists (including murder) reportedly on the rise, and given the crucial role a free press plays in our form of government, is it time to consider increasing criminal penalties against such crimes, much as is the case for violence directed against law enforcement officers? These and other important questions will be posed during the 2023 session by TAB and others promoting the interests of free and robust news reporting in Texas.

The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice. For assistance related to the First Amendment and issues impacting broadcasters and other media companies, please contact Stacy Allen or a member of the Media Law practice.

Stacy AllenMeet Stacy

In over 30 years of litigating complex state and federal cases across the country, Austin partner Stacy Allen’s aggressive approach to discovery and trial preparation has resulted in favorable judgments and settlements for a wide array of sophisticated commercial clients. Stacy’s national practice concentrates on intellectual property litigation, defense of federal and state class actions against insurers, defense of media companies and news organizations against defamation and privacy tort claims, defense of managed care companies in claims arising from complex provider contracts, and other commercial lawsuits and arbitrations alleging breach of contract, unfair trade practices, fraud, and other business torts.

Stacy Allen and fellow partner Paul Watler recently prepared an update for the Newsroom Legal Guide published by the Texas Association of Broadcasters (TAB). First published in 2012, the guide covers legal principles and considerations affecting Texas broadcasters in gathering and reporting the news. For more information, see “Paul Watler and Stacy Allen Update TAB Newsroom Legal Guide.”

Meet JW

Jackson Walker’s service to Texas broadcasters dates to the earliest days of the industry. In fact, the firm representing pioneer television broadcaster KRLD-TV of Dallas when its signal first went on air in 1949. Today in the internet-centric era of broadcasting, the firm remains at the cutting edge of legal issues for Texas broadcasters. With more than 115 years of experience in media law, the firm handles litigation and transactional matters involving news content, employment, entertainment, intellectual property, advertising, and other related matters. To learn more about Jackson Walker’s century-long dedication to local and regional broadcasters and news organizations, visit our Media Law page.