Texas DAs fear public scrutiny - may make web discussions secret

by Scott Henson of Grits For Breakfast

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Some in the District and County Attorney Association want to close their discussion board to the public, despite the fact that the discussions would be available with a simple open records request.

Reacting to this Grits post where I questioned DAs interpretation of confidential informant rules, some members of the District and County Attorney Association now want to make their discussion board closed to public web access, despite the fact that taxpayers pay their salaries and the discussions would be available anyway with a simple open records request. Prosecutor Greg Gilleland said the closed discussions were needed to keep DAs from being subjected to "derision and insults" - I think that's wrong and invite you to read it for yourself to see if I derided or insulted anyone.

Even so, not all prosecutors agreed this would be a good idea. One anonymous ADA whose webhandle is RTC wrote:

That's certainly how I view it - there's no doubt in my mind these discussions are public records under current Attorney General interpretations. Prosecutors' desire to conceal such discussion only raises the question, "What do they have to hide?"

As always, you can count on Williamson County DA John Bradley to toss out the most specious, outlandish arguments to support an insupportable position: "Do you also think the public has a right to listen in on our phone conversations?" he spuriously asked RTC.

Allow me to answer on RTC's behalf: A phone call isn't a record under the public information act, so your question doesn't apply. What's more, when involved in phone calls or email conrrespondence involving a case, attorney work product and client privilege remain fully intact and such records are protected by law.

By contrast, when an attorney broadcasts information widely to other lawyers NOT involved in the case, any privilege he might have relied upon immediately goes away. If Bradley doesn't know that, he's not much of a lawyer - since he's actually a pretty smart guy, that makes me think instead he just wants to muddy the issue to justify an unjustifiable position.

Official web conversations between public employees including DAs will remain open records under the Public Information Act so long as current law and precedent stands. The question is DAs will choose to make it as difficult as possible for outsiders to access the information - a lot fewer people would file open records request than just click on the DA's website. It really does make you wonder what in the world Bradley & Co. think they have to hide?

Robert Guest, a former prosecutor who blogs at I Was the State, left a quote from Patrick Henry in Grits' comments recently that's entirely apropos to this discussion: "The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them." I'm glad some prosecutors like RTC understand that, even if the more outspoken DA advocates like John Bradley don't concern themselves with such populist niceties.

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