1 Letter from James Madison to W.T. Barry, Aug, 4, 1822, The Complete Madison (Padover ed., 1953). Cited in Etnyre, Robert H., "The Texas Open Records Act: A History and an Assessment," thesis, University of Texas at Austin, May 1975, p. 4, fn. 1.

2 Texas Government Code, Chapter 552. Until 1993, the Act was codified at Texas Revised Civil Statutes, Article 6252-17(a). See Sturgin II, John H., "The Texas Open Records Act," Texas Bar Journal, June 1997, pp. 596-600.

3 Leatherbury, Thomas S., "The Texas Open Records Act," paper prepared for the Advanced Administrative Law Conference, State Bar of Texas, Sept. 24-26, 1997. p. M-1. In 1995, the 74th Legislature changed the heading of Chapter 552 from "Open Records" to "Public Information." The original legislation did not include an official name or title for the Act, but the provisions came to be known as the "Open Records Act."

4 A&T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 675 (Tex. 1995).

5 Texas Government Code, §552.001(a).

6 Plesser, Ronald L. and Peter J. Petkas, Government in the Sunshine, Open Records/Open Meetings Emphasis Texas (Atlanta: Southern Regional Council, Inc., 1975), p. 11. "These two laws and the leadership of Atty. Gen. John Hill have given Texas one of the most comprehensive frameworks for open government in the country." See also "Open Records Law Praised," Daily Texan, 7/15/76 and Reporters' Committee for Freedom of the Press, Tapping Officials' Secrets, The Door to Open Government in Texas (Washington D.C.: RCFP, 1989), pp. 1-3.

7 Texas Government Code, §552.001(b) reads: "This chapter shall be liberally construed in favor of granting a request for information."

8 Acts of the 74th Tx. Leg., H.B. 1718, 22, effective 1/1/96.

9 Nowlin, James R., "Legislative Ethics: 1973," 5 St. Mary's L. Jour. 456 (1973).

10 Texas Government Code, §552.001(a).

11 Nowlin, "Legislative Ethics," pp. 456-7; Reporters' Committee for Freedom of the Press, Tapping Officials' Secrets, p. 2; and Keever, Jack, "Past Scandal Echoes as Texas Begins a Cleanup," Associated Press, 2/24/91.

12 "Past Scandal Echoes," 2/24/91.

13 Ibid.

14 "Legislative Ethics," p. 456.

15 "Denton To Urge Reform Bill Action," Austin American, 5/19/73, p. A9.

16 Texas Government Code, §552.222 and §552.223.

17 Texas Government Code, §552.001(b).

18 Texas Attorney General's Office, 1998 Open Records Handbook, p. 34. "What constitutes a "previous determination" is narrow in scope, and governmental bodies are cautioned against treating most published attorney general decisions as "previous determinations" to avoid the requirements of section 552.301(a). The governmental body need not request another decision from the attorney general ... if [it] had previously requested and received a determination from the attorney general concerning the precise information at issue in the pending request....The governmental body may not unilaterally decide to withhold information on the basis of a prior open records decision merely because it believes the legal standard for an exception, as established in the prior decison, applies to the recently requested information."

19 Texas Government Code, §552.351, §552.352 and §552.353.

20 Texas Government Code, §§552.101-552.130.

21 Texas Government Code, §552.119.

22 Texas Government Code, §552.107.

23 Handbook, pp. 82-86. Specifically, the AG states that the mere fact that information falls within attorney-client privilege under §552.107(1) "is not a compelling reason to withhold it from public disclosure when a governmental body does not request an Attorney General decision within the ten-day time period mandated by §552.301."

24 Texas Government Code, §§552.301-552.303. See also Handbook, p. 34.

25 Texas Government Code, §552.301(b).

26 Texas Government Code, §552.305.

27 Texas Attorney General's Office, Open Records Division, public information sheet (revised 7/97).

28 Ibid.

29 5 U.S.C. §552(a)(6), as amended by Public Law No. 104-231, 110 Stat. 2422. Under FOIA, each agency determines "whether to comply" with a request for information. If it chooses not to comply, it must provide a reason. Requesters must appeal an adverse determination to the head of the same agency. If the head of the agency upholds the agency's initial decision, the requester must take the case to court.

30 Texas Government Code, §§552.321-552.325.

31 Texas Government Code, §§552.351-552.353.

32 Data provided to Consumers Union by Texas Attorney General's Office. Pre-1988 data not available.

33 Data compiled by Texas Attorney General's Office for 1993-98 and supplemented by Consumers Union manual review of open records letters and open records decisions for 1988-1992. We had to use ORLs and ORDs as a proxy for open records requests during 1988-92 because the AG could not provide request data for that period.

34 Interview with Sandra Coaxum, Open Records Division chief, Texas Attorney General's Office, 10/6/98.

35 Ibid.

36 Ibid. "We give the public the opportunity to give input, [but] we generally don't get input," Coaxum notes.

37 Ibid. Coaxum emphasized this position on ORDs is her own, not that of the Attorney General's office.

38 Ibid. Coaxum noted that prior to September 1995, open records opinions were written by the open government section of the Opinions Committee.

39 Ibid.

40 Ibid.

41 Acts of the 73rd Tx. Leg., H.B. 1009, §2, effective 8/30/93. 42 See General Services Commission, "Report on Charges for Public Records by State Agencies," 11/30/93; "Report on Charges for Public Information by State Agencies," 11/30/95; and "Report on Charges for Public Information by State Agencies," 11/30/97.

43 Ibid.

44 Handbook, p. 34.

45 Ibid.

46 Texas Attorney General's Office, intra-office memorandum, Stacy Janecka to Sandra Coaxum, "Open Records/Open Meetings Conferences sponsored by the OAG," 10/7/98.

47 Interview with Sandra Coaxum, Open Records Division chief, Texas Attorney General's Office, 10/6/98.

48 Texas Attorney General's Office, "Total Hotline Calls for Fiscal Year" (FY93-FY96, no date); and "Total Hotline Calls and Correspondence Received by Fiscal Year" (FY96-FY98, no date).

49 Texas Attorney General's Office, Open Records Letter 97-1492 (6/30/97). See also Open Records Letters 97-1472 (6/27/97); 97-1730 (7/30/97); 97-1808 (8/13/97); 97-1876 (8/22/97); 97-2246 (10/9/97); 97-2312 (10/17/97); 97-2343 (10/21/97); 97-2414 (10/30/97); 97-2425 (11/3/97); 97-2603 (11/25/97); 97-2843 (12/30/97).

50 Texas Attorney General's Office, Open Records Letter 97-1492 (6/30/97).

51 Texas Attorney General's Office, Open Records Letter 97-2843 (12/30/97), upholding Open Record Letters 97-2246 (10/9/97) and 97-2603 (11/25/97).

52 Sometimes the complaint report was one of several pieces of information TDH desired to withhold. In those cases, the AG would have written an open records letter even if the complaint report itself was not at issue.

53 Cited in Texas Attorney General's Office, Open Records Letter 97-2055 (9/16/97). See also Open Records Letter 97-2144 (9/24/97).

54 Handbook, p. 91. Known as "front page" information, these facts do not have to be located on the first page of the offense report to be considered public.

55 Texas Attorney General's Office, Open Records Letter 97-1846 (8/19/97). See also Open Records Letters 97-1862 (8/20/97-City of Dallas); 97-1937 (8/27/97-Brazos County); and 97-2045 (9/12/97-City of Dallas).

56 Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.-Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976).

57 Texas Attorney General's Office, Open Records Letter 97-1846 (8/19/97), p. 1. The 75th Legislature codified this requirement by stating that "basic information about an arrested person, an arrest, or a crime" is not excepted from disclosure.

58 See, for example, Texas Attorney General's Office, Open Records Letters 97-1852 (8/19/97-Shelby County); 97-1862 (8/20/97-City of Dallas); 97-2057 (9/16/97-City of Highland Village); 97-2108 (9/22/97-Collin County); and 97-2142 (9/24/97-Liberty County).

59 Texas Attorney General's Office, Open Records Letter 97-1862 (8/20/97), p. 1. Probable cause affidavits supporting executed search warrants are made public by §18.01(b) of the Texas Criminal Procedure Code.

60 Texas Attorney General's Office, Open Records Letter 97-1852 (8/19/97), p. 2, fn. 4.

61 TNRCC form P1-1S, Standard Permit Registration, Air Quality Standard Permit, web site version, 10/97 (www.tnrcc.state.tx.us, ver. 9/97).

62 Handbook, p. 43.

63 Texas Attorney General's Office, Open Records Letter 97-2495 (11/14/97), p. 1.

64 Handbook, p. 72.

65 Texas Attorney General's Office, Open Records Letter 97-2082 (9/17/97).

66 Texas Attorney General's Office, Open Records Letters 97-1963 (8/29/97); 97-1845 (8/18/97); 97-2090 (9/18/97); 97-2098 (9/19/97); and 97-2169 (9/25/97). Sometimes, officials will assert §552.103 together with §552.107 (attorney legal opinion) and §552.111 (internal memorandum and attorney/client privilege). Even when the AG finds that information does not relate to pending or anticipated litigation, limited portions can be withheld as attorney opinion. See Open Records Letters 97-1841 (9/19/97); 97-1873 (8/21/97); and 97-2032 (9/11/97).

67 Texas Attorney General's Office, Open Records Letter 97-1963 (8/29/97).

68 Texas Attorney General's Office, Open Records Letter 97-2169 (9/25/97).

69 Texas Attorney General's Office, Open Records Letter 97-2114 (9/22/97).

70 Acts of the 73rd Tx. Leg., H.B. 1461, §7.05, effective 9/1/93.

71 In Missouri, Illinois, Maryland, Colorado and Oregon, for example, market conduct examination reports are public. While the National Association of Insurance Commissioners (an organization of state insurance regulators) has not studied the issue, examiners assured CU informally that only three or four states, including Texas, do not release these final reports to the public.

72 Texas Insurance Code, 20A.04(a)(15), as amended by Enrolled S.B. 385, 5, effective 9/1/97.

73 Texas Health and Safety Code, §§108.009(o) and 108.011, as amended by Enrolled S.B. 802, effective 9/1/97.

74 Texas Attorney General's Office, Open Records Letter 98-2488 (10/23/98).

75 Texas Daily Newspaper Association et al. v. Dan Morales et. al., Plaintiff's Original Petition, Application for Temporary and Permanent Injunction, and Request for Declaratory Judgment, Aug. 6, 1997.

76 Texas Agriculture Code, §201.026.

77 Texas Agriculture Code, §201.006, as added by H.B. 1808, effective 9/1/97.

78 75th Texas Legislature, H.B. 1808, "Background," House Bill Analysis, Committee Report, March 3, 1997.

79 Texas Civil Statutes, Article 4447cc, §§3, 4 and 6(d).

80 42 U.S.C. §11023; 40 C.F.R. §§372.5 and 372.22, as cited in Civins, Jeff, et al., Texas Practice: Environmental Law, vol. 45, p. 573.

81 Texas Government Code, §552.112, states: "Exception: Certain Information Relating to Regulation of Financial Institutions or Securities (a) Information is excepted from the requirements of Section 552.021 if it is information contained in or relating to examination, operating, or condition reports prepared by or for an agency responsible for the regulation or supervision of financial institutions or securities, or both."

82 Holmes v. Morales, 924 S.W.2d 920 (Tex. 1996).

83 Acts of the 75th Tx. Leg., H.B. 951, §1, effective 9/1/97.

84 Texas Attorney General's Office, Open Records Decision 639 (1996). Morales argued in ORD 639 that the Texas Supreme Court found the Public Information Act to be "loosely patterned" after the FOIA. Therefore, he suggested, it is appropriate to apply federal court interpretations of FOIA to the Texas PIA. In fact, the Court in A&T Consultants did not rely on FOIA to make its decision. (A&T Consultants v. Sharp, 904 S.W.2d 668 at 676).

85 Texas Attorney General's Office, Open Records Decision 592 (8/14/91).

86 5 U.S.C. §552(b)(4).

87 48 Tex. L. Rev. 1261, 1263-67 (1970) as cited in Open Records Decision 592 (8/14/91).

88 U.S. Department of Justice, Justice Department Guide to the Freedom of Information Act, web site ver,, 9/97 www.usdoj.gov/oip/foia/block - 06.pdf, p. 116. Cited below as DOJ Guide.

89 National Parks and Conservation Association v. Morton. 498 F.2d 765 (D.C. Cir. 1974), as cited in DOJ Guide, p. 123.

90 Critical Mass Energy Project v. NRC. 931 F.2d 939, 948 (D.C. Cir.) (Randolph and Williams, JJ., concurring), vacated and reh'g en banc granted, 942 F.2d 799 (D.C. Cir. 1991), grant of summary judgment to agency aff'd en banc, 975 F.2d 871 at 879 (D.C. Cir. 1992), cert. denied, 113 S. Ct. 1579 (1993), as cited in DOJ Guide, p.127.

91 Audio tapes of the Senate Committee on Jurisprudence, presentation of subcommittee substitute for H.B. 6, 5/15/73. Federal courts have not articulated a similarly strong commitment to the public interest. "In Critical Mass, the district court held that a consumer organization requesting information bearing upon the safety of nuclear power plants had 'no particularized need of its own' for access to the information, and thus was 'remitted to the general public interest in disclosure for disclosure's sake to support its request.' Although the court conceded that the public has an interest 'of significantly greater moment than idle curiosity' in information concerning the safety of nuclear power plants, that same interest was shared by the NRC [Nuclear Regulatory Commission] and the submitter of the information and their interest in preventing disclosure was deemed to be of 'a much more immediate and direct nature.' DOJ Guide, pp. 148-150.

92 Letter from Powers, D.J., Center for Economic Justice, to Commissioner Elton Bomer, Texas Department of Insurance, 11/5/96.

93 Letter from Keller, Mary, Texas Department of Insurance, to Dan Morales, Texas Attorney General's Office, 11/15/96; letter from Powers, D.J., Center for Economic Justice, to Dan Morales, 2/4/97, p. 4; letter from Keller, Mary, Texas Department of Insurance, to Stacy Salee, Texas Attorney General's Office, 2/10/97.

94 Texas Attorney General's Office, Open Records Letter 97-0335 (2/13/97).

95 Texas Attorney General's Office, Open Records Letter 97-2171 (9/25/97).

96 Studies conducted by the Office of Public Insurance Counsel and the Center for Economic Justice have identified patterns of discrimination by zip codes across Texas. See, for example, "Insurance Redlining in Texas, A Preliminary Report," Office of Public Insurance Counsel, August 1994; "Auto Insurance Redlining in Texas: Availability Worsens While Consumers Lose Affordable Coverage Options," Center for Economic Justice, April 1997; "Worst Redliners Identified: Department of Insurance Fails to Act," Center for Economic Justice, May 1997.

97 "Worst Redliners Identified: Department of Insurance Fails to Act," Center for Economic Justice, May 1997.

98 National Association of Independent Insurers, et al. v. Dan Morales, Attorney General of Texas and Elton Bomer, Commissioner of Insurance, 98th Judicial District Court of Travis County, Texas, No. 97-09206 (October 1997).

99 Birny Birnbaum v. Alliance of American Insurers, et al., Third Court of Appeals, Austin, Texas, No. 3-97-660-CV (October 1998).

100 National Association of Independent Insurers, et al. v. Dan Morales, Attorney General of Texas and Elton Bomer, Commissioner of Insurance, 200th Judicial District Court of Travis County, Texas, No. 97-09206-A (August 1998) as cited in NAII v. Birnbaum, Plaintiff's Original Petition and Application for Injunctive Relief (October 1998), p. 4.

101 Texas Government Code, §552.112.

102 Letter from Haley, Jim, Legal & Compliance Division, Texas Department of Insurance, to the Honorable Elton Bomer, Texas Commissioner of Insurance, 9/29/98.

103 "Nationwide, USAA, Farm Bureau cited for discriminatory practices," Center for Economic Justice, 4/30/97. In a same-day response, Commissioner Bomer stated, "Based on ZIP Code data, we are now investigating the auto insurance underwriting and marketing practices of State Farm, Nationwide and two smaller companies." Statement of Commissioner Elton Bomer, Texas Department of Insurance, 4/30/97. In announcing the enforcement action, a TDI spokesman stated that the investigation began after minority state legislators raised concerns following the release of CEJ's report. "Regulators say Insurer Redlining," Dallas Morning News, 9/30/98, p.21A.

104 Texas Attorney General's Office, Opinion No. MW-446 (1982), Open Records Decision 616 (1993), and Open Records Decision 287 (1981), as cited in Holmes v. Morales, 924 S.W.2d 920 (Tex. 1996).

105 Holmes v. Morales, 924 S.W.2d 920 (Tex. 1996).

106Acts of the 75th Tx. Leg., H.B. 951, 1, effective 9/1/97.

107 Interview with Paul Watler, President, Freedom of Information Foundation of Texas, 7/17/98.

108 Interview with Mike Ward, Austin American-Statesman, 7/16/98.

109 Handbook, pp. 75, 109-111.

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