Texans for Public Justice last year sparked a statewide debate over access to judicial records when it asked for telephone billing information from the Texas Supreme Court. The ensuing debate resulted in new court rules that allow judges to withhold more information than other public officials and subject them to lesser penalties for negligently or willfully withholding public information.

Although the Public Information Act excludes the judiciary from the definition of a governmental body, the Attorney General (AG) found in July 1997 that telephone records should be released to Texans for Public Justice (ORD-657). The AG interpreted the 'judicial exception' narrowly to apply only to those records that relate to the exercise of judicial powers. Records relating to the expenditure of public funds and the routine administration of the court should be open. "We believe that the intent of the judiciary exception was to relieve the judiciary from having to divulge information pertaining to judicial acts, such as opinion drafts, transcripts of judges' conferences, pleadings and other records filed with a court..We do not believe that the legislature intended to remove from public scrutiny the type of administrative records at issue in this request."

The Supreme Court promptly responded. According to the Court, judicial records are not exempt from the Act. Instead, the Act simply does not apply to the judiciary, because it is not a governmental body. The Court also argued that the legislature has allowed to stand many previous AG opinions exempting the judiciary, and therefore must agree that judicial records are outside the scope of the PIA.

Dallas County judges used the Court's opinion to confiscate and seal parking garage records already provided to County Commissioner Jim Jackson (R) under the Act. When asked for additional funding for more judges, Jackson had decided to review parking garage records of each judge to determine whether the existing judges were working full days. But before he could release results of his analysis, the local judges took back the records and placed a gag order on the Commissioner preventing him from discussing their contents.

In light of this controversy, Senator Jeff Wentworth (R-San Antonio) invited Chief Justice Phillips and Attorney General Dan Morales to present to the Senate Interim Committee on Public Information their differing views on the public's right to review administrative records of the judiciary. At that October 1997 meeting, members of the committee scolded Phillips for the Court's resistance to the notion that judges should be subject to the same open records policy as other state and local politicians. But when the Committee released its final report a year later, it recommended only that the Court address access to records through its own rule making process-already in motion.

The early drafts of this rule fell far short of the strong standard for public access outlined by the Public Information Act. A tentative preamble promised only that information would be public provided it did not threaten the "countervailing interests of confidentiality and privacy necessary for judicial process and in recognition that the best interests of the citizenry is served by preserving a free and independent judiciary."

After many hearings and detailed comments from the press, public interest groups and attorneys, the Court proposed a much better rule, but one still far different from the orientation and presumptions of the Public Information Act.

The final rule excepts from disclosure items generally public under the PIA, including applications for employment and appointment calendars. And its preamble still emphasizes the need for an independent judiciary over the public's need to oversee its elected officials. Unlike other government officials, judges may deny access to information if they determine that compliance with the request would "substantially and unreasonably impede the routine operation of the court." Finally, the officials of a court will not be subject to the same criminal sanctions as other public officials who refuse access to public records. Instead, judges who flout the rules will be subject only to discipline by the Commission on Judicial Conduct-an eleven member board composed of 5 judges, 2 lawyers and 4 non-lawyers.

According to Walt Borges of Court Watch, a nonprofit court watchdog group, "the Commisssion's own dedication to open government is suspect. It does not release complaints about judges until it decides to prosecute them, and its sanctions are more often secret than public. In fact, only 17 percent of its 100 sanctions were publicly reported in FY 1996-1997." Unlike the lawyer's disciplinary system, where sanctions are published without the name of the lawyer, a private sanction against a judge results only in notice to the judge and the complainant. Therefore there is no educational value for other judges or the public when a private sanction is issued by the Commission on Judicial Conduct. Public interest groups are concerned that even if the Commission sanctions a judge for knowingly or repeatedly withholding public information, the judge will be protected by this wall of secrecy-a protection unavailable to any other public official who violates public information law.

Most public interest groups, including Common Cause, Consumers Union, and Court Watch, support incorporating judicial administrative records into the Public Information Act. While the Court has a legitimate interest in maintaining its independence (separation of powers) and the confidentiality of its deliberations, allowing public access to administrative records like those sought by Commissioner Jackson does not jeopardize these interests. All public officials must be held to the same standard and subjected to the same scrutiny by the public in order for the people to "retain control over the instruments they have created." (Public Information Act, §552.001)

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