Yesterday, I opened the Sunday paper and discovered that I made the front page. Ok, if you read the article you won’t see my name anywhere. BUT, make no mistake: I am very much at the heart of this article.
Spring Break is the time of the year that the media has dubbed as “Sunshine Week.” More than at any other time of the year the media focuses on advocating increased governmental transparency under federal and state laws. For the duration of Sunshine Week many different articles about information transparency run in newspapers across the country. The media is ALWAYS going to want more transparency. For them, there is no reason to withhold ANYTHING from disclosure, even with a valid legal basis. The media will often claim, in subtle ways, that the government is being disingenuous.
For instance, an article might say that the governmental body “refused to release the requested information,” but it doesn’t go on to explain that the reason the agency refused was because the request sought something that was confidential by law which made it illegal to release that information.
The devil is in the details, but this is an important distinction: It is the difference between alluding that the state agency is stone-walling and the reality which is that it was, in fact, merely complying with the law in its handling of the request. The latter is quite obviously not as savory a story for the media. Who wants to read an article about a state agency doing its job?
Open government laws (at least in Texas) are double-edged swords that put governmental entities between a rock and a hard place. Texas’s laws provide both criminal and civil penalties against agencies and their employees that either fail to release “public” information OR mistakenly release confidential information. This area of the law is indeed a minefield to navigate. Even four years away from my pre-law school job hasn’t dampened my fervor and advocacy for the importance of using common sense in handling issues of governmental transparency. I think that this mindset is what made me so successful at my old job.
As this is a topic of great interest to me, I read any Open Government articles in my local newspaper with a critical eye often catching sweeping generalities that the media prints as fact, when the reality is often very different. Sunday’s article was an especially touchy issue for me because work that I did was at the very beginning of this particular debate. The article focuses on the use of Texas’s Homeland Security Act (“HSA”) as a basis for withholding information related to “critical infrastructure.”
The article begins by highlighting a 2010 open record request by local residents of the Birdville school district (in Tarrant County) who were concerned about athletic spending inequalities among high schools. The requestor in that case asked to access blueprints of one school’s athletic areas. The agency sought a determination from the Texas Attorney General (as required by law) and pointed to the HSA and its provisions protecting critical infrastructure. The Attorney General agreed with Birdville.
Because the documents at issue are blueprints, I know that inroads I paved back in December 2003 are in play. If my legal brief on this issue wasn’t the first, it was certainly one of the very first in Texas. I know this because when I was researching how to craft my legal brief to the Attorney General back in 2003, there were exactly two previously issued HSA opinions that offered any insight as to how it should be done: One was successful and the other was not. Neither of these dealt specifically with a request for blueprints, so I was on my own with regard to these types of documents; my analysis set the bar.
At that time, the Texas HSA had only been law for a few months, so there were precious few test cases. We had new words like “critical infrastructure,” “terrorism,” and government “assets” that were as yet undefined or under-defined in state law. Getting the Attorney General to agree that the Texas HSA applied to a request for “blueprints” meant that I had to show how these documents met the state definition of “critical infrastructure” and also meant proposing that Texas adopt federal definitions for other terms as yet undefined in our state law. I had my work cut out for me and I gave it all I had. While the documents requested in my case were definitely worthy of protection, I also saw future implications that rippled way into the future:
Consideration should also be given to the domino effect that will follow if the requested documents are released despite the arguments presented. Should the University fail in its attempt to secure the [sic] blueprints, it would also compromise its building blueprints, and set a precedent for the release of the blueprints of any other state agency that may have a similar request in the future.
In a recent statement regarding the nation’s current terror alert, U. S. Homeland Security Secretary Tom Ridge stated, “We will not broadcast our plans to the terrorists. But extensive and considerable protection have been or soon will be in place all across the country.” By asserting the confidentiality of our [sic] blueprints and our critical infrastructure, the University of Texas at Austin does play a vital part in securing this city and state from domestic terroristic threats.”
My position, as articulated in my 2003 legal brief above, has not changed. Clearly, as it is now 2012 and the issue of whether blueprints are protected by the Texas HSA is still a front page debate, I was right. Thankfully, the Attorney General agreed with me then, and continues, for the most part, to maintain this position even today.
I say, err on the side of caution. Use your common sense when asking the government to release potentially sensitive information. Most times, the governmental body is not concerned with the originating requestor receiving the information, it’s the fact that once the information is out there, we have no control over how else it’s used or to whom it is disseminated. This is why you have to pull out all the stops the first time; failure is not an option.
I’m so proud to have had a central role in shaping this area of the law here in Texas. I know I did an honorable job and that my goal was always to do the best I could for the citizens of this state. I’d do it all again—the exact same way.