FOREWORD

Texas has a rich political heritage, one which has historically demonstrated a strong commitment to the free flow of information and open government. When Texas announced its independence from Mexico, its declaration stated: "[It] is an axiom in political science, that unless the people are educated and enlightened, it is idle to expect the continuance of civil liberty, or the capacity for self-government." The Declaration of Independence of Texas para. 11 (1836). This concept of government is borrowed, of course, from Thomas Jefferson, James Madison, and the rationale of the United States Constitution. It was Madison who wrote that, "a popular government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both. Knowledge will forever govern ignorance: and a people who mean to be their own governors must arm themselves with the power which knowledge gives." James Madison, letter to W.T. Berry (Aug. 4, 1822), reprinted in G.P. Hunt, The Writings of James Madison 103 (1910).

This concept of enlightened self-government was carried over to the Texas Constitutional Convention of 1845, when Texas joined the United States. In his opening remarks, Thomas J. Rusk, president of the convention, stated that: "The history of the world may be searched in vain for a parallel to the present instances of two governments amalgamating themselves into one, from a pure devotion to that great principle-that man, by sentiments with which his God has impressed, is capable of self-government." Texas Constitutional Convention of 1845, debates of the Texas Convention (William Weeks, reporter, 1846).

In the years that followed, Texas courts recognized a broad common law right of access to government information. The first reported case dealing with the common law right of access was Jenkins v. State, 75 S.W. 312, 312 (Tex. Crim. App. 1903), which dealt with access to pretrial material in a criminal case. In 1915, the San Antonio Court of Civil Appeals wrote a landmark opinion on the common law right of access, in Palacios v. Corbett, 172 S.W. 777 (Tex. Civ. App.-San Antonio 1915, writ ref'd). The Palacios case dealt with the right of a citizen taxpayer to inspect county auditing papers. Id. at 778.

The presumptive common law right of access to government information in Texas appears to be extremely strong absent a specific statute restricting public access. As the court said in Gill v. Snow, 644 S.W.2d 222, 224 (Tex. App.-Fort Worth 1982, no writ), "This State's policy has been found to be that all information kept by the government is of legitimate public concern unless the legislature rules that the need for confidentiality is outweighed by the public's right to know."

Nevertheless, it took a substantial government scandal to provide the impetus for passage of an open records statute and strengthening of the Texas Open Meetings Act. In 1972, the so-called Sharpstown scandal broke and resulted in the indictment and successful prosecution of a number of government officials. Other high government officials were put under a cloud of suspicion, although not indicted. In 1973, a reform-minded legislature strengthened the Texas Open Meetings Act, and passed the Texas Open Records Act, which the Texas legislature changed in 1995 to the Public Information Act. These acts are among the strongest in the nation. The first section of the Public Information Act underscores this point:

[E]ach person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. The provisions of this chapter shall be liberally construed to implement this policy.

Tex. Gov't Code Ann. § 552.001(a) (Vernon 2004). See also City of Garland v. Public Utility Comm’n of Texas, 165 S.W.3d 814, 820 (Tex.App.—Austin 2005, pet. denied) (“As a general rule, Texas public policy favors open records.”).

Both the Public Information Act and Open Meetings Act have been amended in recent years. One substantial threat to the Open Meetings Act occurred in the intermediate appellate decision of City of Abilene v. Shackelford, 572 S.W.2d 742 (Tex. Civ. App.-Amarillo 1978, writ granted), rev'd on other grounds, 585 S.W.2d 665 (Tex. 1979). In that case, an appellate court held that the press did not have standing to invoke the protections of the Open Meetings Act. Id. at 747. The act subsequently was amended to overrule the case; Section 551.142 of the Texas Government Code (the "Code") now states that "[a]n interested person, including a member of the news media, may bring an action by mandamus or injunction to stop, prevent, or reverse a violation or threatened violation of this chapter by members of a governmental body." Another amendment to the Open Meetings Act overruled an Attorney General's opinion that cameras were not authorized in public meetings. Section 551.023(a) of the Code now states, in part, that a "person in attendance may record all or any part of an open meeting of a governmental body by means of a tape recorder, video camera, or other means of aural or visual reproduction."

As early as 1995, the legislature amended the Public Information Act to bring it into the computer age and to more strictly regulate what governmental bodies may charge for copies of public information. The amendments also replaced all references in the statute to "public records," with "public information," to clarify that the statute applies to data held in computer memory banks or in audio or video form, as well as on paper. In addition, as a result of recent amendments, the statute now requires the Attorney General to render a decision within forty-five days of receiving a request, with a possible ten-day extension. § 552.008(b-2); Texas Administrative Code §§ 70.11(d)(6)(D).  Previously, the Attorney General's office took an average of three to six months to issue an opinion on an open records case.

In 2005, the legislature passed a bill requiring most elected and appointed public officials to take a training course on the Texas Public Information Act and the Texas Open Meetings Act. See § § 551.005, 552.012.

The Public Information Act provides that a court shall assess costs and attorney fees incurred by a plaintiff who substantially prevails in a suit for access to public information. See § 552.323. Costs and fees may not be assessed against a governmental body, however, if the governmental body acted in reasonable reliance on an applicable judgment or court order, a published appellate court decision, or a written decision of the Attorney General. § 552.323(a). Under the Open Meetings Act a party who substantially prevails may be entitled to an award of attorney fees. § 551.142.

In a state as large as Texas, it is difficult to generalize about the attitude of state officials toward citizens' access to government information. In 1971, a law student author at the University of Texas wrote that, despite passage of the Open Meetings Act, "public access is frustrated at every level of the decision making process." Note, Texas Open Meetings Act Has Potentially Broad Coverage But Suffers From Inadequate Enforcement Provisions, 49 Tex. L. Rev. 764, 765 (1971). It is safe to say, however, that there is a wide range of opinion on the issue. Many, if not most, state officials have a cooperative attitude and believe in the concept of open government. All in all, Texas' Public Information Act and Open Meetings Act are among the most liberal in the United States and a great deal of information is released pursuant to the terms of these statutes.