Texas Attorney General Rebuffs ALEC's Effort to Declare Itself Immune from Open Records Law

FOR IMMEDIATE RELEASE: September 30, 2013

CONTACT: Brendan Fischer, brendan@prwatch.org

MADISON -- Texas Republican Attorney General Greg Abbott has issued an Open Records Letter Ruling rejecting an effort by the American Legislative Exchange Council (ALEC) to declare itself immune from the state's public records law, after the Center for Media and Democracy (CMD) and the Freedom of Information Foundation of Texas filed briefs in the matter.

Texas is the first known state where ALEC has formally asked an Attorney General for an exemption from sunshine-in-government laws. ALEC's extreme efforts to evade public records laws have relevance in every state in the country, including Wisconsin, where CMD is separately litigating a case against Sen. Leah Vukmir, ALEC's Treasurer, for her failure to disclose documents sent from ALEC to legislators.

"We applaud Texas' commitment to open government and for rejecting ALEC's astounding scheme to keep its communications with legislators secret," said Brendan Fischer, CMD's General Counsel. "We hope that Attorneys General in states across the country will similarly put the interests of the public and its right to know ahead of the interests of special interest lobbying organizations."

The Open Records Letter Ruling from the Attorney General's office rejected the claim from ALEC's Washington, D.C.-based attorneys that disclosure of the organization's communications with legislators would burden its "freedom of association" rights. The Ruling was issued September 25 and released today.

"You cannot just create a special private club between lobbyists and lawmakers and then claim your communications with legislators cannot be disclosed to the public under state sunshine laws," said Lisa Graves, CMD's Executive Director. "Allowing this would only increase the power of special interests to secretly influence officials elected to represent real people in Texas and across the country."

ALEC has had an enormous influence over law and policy in all 50 states for the past forty years, but because it operates in secret -- for example, by barring the press and public from attending the task force meetings where model legislation is voted on by special interest lobbyists and lawmakers -- open records requests have been one of the few ways for the public to gain knowledge of how ALEC operates in one's home state.

As ALEC has come under growing public scrutiny in recent years in the aftermath of CMD's award-winning ALEC Exposed investigation, ALEC has taken the extraordinary step of stamping its documents with a "disclaimer" asserting that materials like meeting agendas and model legislation are not subject to any state's open records law. Because of that disclaimer, in July, Texas State Rep. Stephanie Klick asked the Attorney General for an opinion about whether she was required to release ALEC-related materials under the public records law. ALEC's lawyers submitted a brief in the matter, making Texas the first known state where ALEC formally asked for an exemption from the sunshine-in-government laws that apply to everybody else.

Both CMD and the Freedom of Information Foundation of Texas also filed briefs with the Attorney General's office arguing that a group that exists to advance a special interest agenda in the legislature cannot do so in secret. Because ALEC is communicating with Rep. Klick in her official capacity as a State Representative, the requested documents are official records to which the public has a First Amendment right of access.

The Attorney General's Ruling also dismissed separate claims from Rep. Stephanie Klick that ALEC documents fall under the "deliberative process exemption" to the public records law. That exemption protects certain policy discussions internal to a governmental body, not between a legislator and a third-party special interest group funded by lobbyists trying to influence legislation.

Texas is not the only front in ALEC's war on open government.

CMD is separately litigating an open records lawsuit in Wisconsin against Sen. Leah Vukmir, ALEC's national Treasurer, who has made the preposterous claim that despite attending ALEC's meeting in Oklahoma, sponsoring a bill at that meeting, and serving on ALEC's national board, she has no records pertaining to ALEC anywhere in her office -- a particularly suspicious claim given ALEC's open records "disclaimer" and use of an internet dropbox to secretly communicate with legislators.

On Senator Vukmir's behalf, Wisconsin's Attorney General J.B. Van Hollen has taken the unprecedented step of asserting that a legislator cannot ever be held accountable for refusing to comply with the state's open records law, for as long as they hold office. In court filings, Van Hollen's department advanced a radical reinterpretation of the scope of legislative privilege, arguing that a legislator is immune from civil suit for as long as they are a legislator, rather than just during the periods where the legislature is meeting.

Read the Texas Attorney General's Open Records Letter Ruling here.

Read the Center for Media and Democracy's filing with the Texas Attorney General here.