Saturday, March 27, 2021

Quis Custodiet Ipsos Custodes?

 "You know, the agency, Ken Paxton's agency controls the public records releasing for the entire state," she explained. "So everything from police departments to the governor's office, if they want to withhold a record from the public, they have to go to Ken Paxton's agency and ask."

I hate it when journalists pretend to be lawyers.  I have my triggers; this is one.

Yes, Texas has an Open Records Act which applies to all governmental agencies.  Yes, those agencies can seek an opinion of the Attorney General's office before releasing requested records.  But they don't do that to "withhold a record from the public".  Often they do it because there are competing interests in those records, and competing laws regarding their protection.  And if you, the agency in question, release those records in violation of one of those laws/interests, you could find yourself on the wrong end of a lawsuit.

Which doesn't sound quite so bad for a state agency, because the state, right?  Well, except governmental agencies are not all state agencies in Texas.  School districts, for example, are independently funded and semi-independent agencies.  You sue them, you sue the taxpayers of that district, who have to pay for the lawyer.  And it's not always "the public" who's seeking records.  More often than not it's private interests, from sellers of mailing lists to private groups wanting to harass someone about something.  It runs the gamut.

Those requests, for the most part, get fulfilled, by the way.  Just because you're an asshole or want to harass someone, isn't alone grounds to refuse a request for records.  But if the agency requests an opinion of the AG, it's not to get corrupt Ken Paxton (or whoever; the law's been in place longer than Paxton's been AG) to protect them.  It's to get an opinion that shields them from potential legal action.

Despite what reporters think, the public's "right to know" is not absolute, even when national security is not involved.

That said, yes, I think Ken Paxton is hiding government records from the public in this matter.  But that's because I think Ken Paxton is crooked as a dog's hind leg, and a disgrace to the office of Attorney General of Texas. This whole matter legitimately raises the question: Quis custodiet ipsos custodes?

Paxton doesn't care about that question.  Which is the problem.

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