Radnofsky responds defending open records stance

After Charles Kiker forwarded her this morning's Grits post and my addendum in the comments that discussed her open records stance, I received the following response from Democratic Attorney General candidate Barbara Ann Radnofsky, printed here in its entirety with my initial reaction below:

From Barbara Ann Radnofsky:

Scholarship and leading from the top, emphasizing fairness and due process, do indeed make a difference. The Office of AG is so politicized that opinions and open records determinations are no longer made on the merits. For example, I have spoken out that the AG was mistaken in his opinion allowing secrecy on school use of force policies, for many reasons. These include:

1. Deterrence.
2. Safety and efficacy: recordkeeping and evaluation of effectiveness of policies
3. Minors are involved. Courts and parents have needs and rights to know.
4. Open records spur public debate re appropriateness of force against minors.

Emphasizing scholarship and respecting career officials, and requiring decision making to be fair is the opposite of saying "presume in favor of non-disclosure.” “Fairness” remains the intent of my website post (www.BarbaraAnn2010.com). Fairness means no presumption of non-disclosure under Texas law, which emphasizes the people’s right to know.

How can we promote fairness?

Recently, the Texas AG conceded that it should have tracked how often it issues similar rulings on withholding data, and should educate requesting entities as to the basics of the law, and make sure governing entities are reminded of rulings they’ve already received. This is an obvious first step in preventing abuse and delay in publication. Here's the quote from the Corpus Christi Caller Times, quoting the AG's spokesman on the issue:

Strickland said the attorney general doesn’t track how often the office issues similar rulings.

“There are certainly rulings for information that’s not only similar but nearly identical,” he said. “To the extent that there is a pattern, we don’t really keep numbers or statistics.”

He said he thought it would be helpful to keep track of that and make sure governing entities are reminded of rulings they’ve already received. “Let’s make sure they are aware,” he said. “That’s part of the process and our responsibility, making sure to also educate the governmental body.”

“There are certainly rulings for information that’s not only similar but nearly identical,” he said. “To the extent that there is a pattern, we don’t really keep numbers or statistics.”

If we also stopped the poaching of key matters (particularly in post conviction appeals) from the hands of career people, if we required written policies and procedures and training, and if the career lawyers were allowed to apply the laws fairly, then the office of AG would be serving the people of Texas.

Now is this the single most important issue we face in this State? You will see I have many issues on the website and in my speeches. We face as great a danger from secrecy in meetings as we do from secrecy in records. Bill Hobby has just written a significant op-ed piece worthy of quotation here:

"Governing bodies must conduct the people's business in public or else face some serious penalties. This statute has protected the public and elected representatives alike for the past 42 years with a basic premise: Public bodies should deliberate in public."

The Open Meetings Act passed in 1967, and strengthened in 1973 should be adhered to. The recent claims and litigation that the First Amendment somehow allows officials to secretly meet and discuss the public issues, all in private, in violation of clear Texas law, and conversely not be required to follow the law and procedures (and suffer the penalties of violating the Open Meetings Act) turns the First Amendment on its head. We can adapt to modern communications and technology without a reversion to shutting out the public and thwarting the will of the People of Texas, clearly expressed through the legislature.

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Grits' reaction:

These are reasonable, moderate stances, but they do not convince me that the Democratic candidate will be a strong advocate for open government, mostly because they seem to betray a relative unfamiliarity with the Public Information Act or the AG's function enforcing it.

Keeping data would be good. Even better would be to pledge to liberally construe information requests in favor of requestors in all circumstances, regardless of her personal political position on the subject.

For example, the reasons given for believing "the AG was mistaken in his opinion allowing secrecy on school use of force policies" were telling, even though I agree with Radnofsky the information should be public. Notice her four reasons are all policy arguments regarding why releasing the information would be in the best interests of the public. While I agree with all of them, that's the WRONG reason for the AG to insist those records be released. The real reason they should be disclosed is that the government has no authority to conceal them. As I wrote earlier on the subject:

Agencies seeking to close [school use of force policies] rely on Sec. 552.108 of the government code, which states in relevant part that agencies may keep from disclosure any information which might "interfere with the detection, investigation, or prosecution of crime."

Use of force policies don't fit any of those three categories. They involve how police interact with suspects during arrest. By the time of an arrest, a crime has already been "detected." Similarly, the arrest process does not implicate the "investigation" of crime: When use of force is part of the investigatory process, that amounts to torture which is clearly illegal. And only prosecutors can prosecute, so policies about how police conduct arrests simply have nothing to do with the prosecution of any alleged underlying crime.

In other words, if the documents are not specifically exempted, the AG is required to liberally construe the law in favor of giving records to the requestor. Period. It doesn't matter what the policy arguments are pro or con. That subject shouldn't even come up!

Whereas Radnofsky says there should be "no presumption of non-disclosure" if she were AG, the law actually says there should always be a presumption in favor of disclosure. Mere neutrality would not actually fulfill the AG's duties under the statute.

This is important because what if the AG's policy positions were different? What if Ted Cruz replaces Abott instead of Radnofsky and he believes (I'm speculating) that:

1. Releasing use of force policies harms deterrence.
2. Safety and efficacy are reduced by transparency
3. Minors are involved so records should be kept private.
4. Open records encourage wrongful villification of police officers and negatively impact public discourse.

I know people who believe (or at least who have argued) each of those things, so such a worldview is not out of the question. But even if that's what you believe, a Texas AG who follows the law and "liberally construes" it in favor of requestors would give out the use-of-force policies anyway. It shouldn't matter what are their personal political views. Even if I agree with someone on this or that specific issue, it's dangerous for that to be the guiding influence behind an AG's approach on open records.

It's easy to favor open records for people who agree with you; I want to know a candidate will also champion open records for their enemies, and their friend's enemies, and even for people with whom they may violently disagree. That will only happen if the AG puts aside their personal political views and focuses on fulfilling their duties under the law to promote the interests of requestors.

I do not, btw, think this is the "most important issue we face in this state." However, it is the most important issue for me in the AG's race. It's a myth to call the Attorney General Texas' top law enforcement officer. Outside of representing state agencies in lawsuits, the AG's role in enforcing the open records law is arguably their single most important duty. And as bad as things have apparently gotten under Abbott's watch, I hope it becomes a central issue in next year's campaign.