Web Posted: 01/28/2005 12:00 AM CST Lomi Kriel Express-News Austin Bureau AUSTIN — When Rep. Aaron Peña first read about the trial of Jim Taricani, a Providence, R.I., investigative journalist convicted last month of not disclosing who leaked a videotape in an FBI investigation, it caught his attention. "Then I did a Google search," he said. "I didn't realize how common this is, that reporters are threatened with jail for not revealing their sources." Peña, a Democrat from Edinburg, has filed House Bill 188, which would give journalists a qualified legal privilege not to testify in certain situations. It is among several proposals related to open government the Legislature will consider in the session that began Jan. 11. One proposal filed Thursday by Sen. Jeff Wentworth, R-San Antonio and Rep. Todd Baxter, R-Austin, would require all elected or appointed state and local officials to take open government courses through Attorney General Greg Abbott's office. "Open government should be a top priority for public servants," Baxter said. Others would make government information more accessible to the public — such as a proposed constitutional amendment requiring lawmakers to record their votes — but some reverse open government victories from previous years.

Austin confidential

Both chambers this month changed their rules for this session to record most votes taken by lawmakers.
Peña's bill would create a "shield law" for reporters, which 31 other states and the District of Columbia have.
The state's civil courts recognize reporters' privilege not to testify — but the state's highest criminal court, the Texas Court of Criminal Appeals, has consistently held that there is no constitutional support for it in criminal cases.

"It benefits all of us to have an open democracy," Peña said. "And most people who are going about their daily lives and paying electric bills and paying the mortgage don't have the time to dig up information regarding people in positions of authority or power.

"The general public may not have an interest in it, but really, they do," Peña said, because there's a chilling effect on democracy when people in power can't be questioned.

Nine U.S. journalists are facing contempt charges for refusing to reveal their sources, according to the Reporters Committee for Freedom of the Press.

The Texas Press Association and the Texas Daily Newspaper Association both have said they are taking a "wait-and-see attitude" about whether to endorse Peña's proposal. The past position of both organizations has been that journalists should not enjoy a greater privilege than ordinary Texans, said Donnis Baggett, TPA's spokesperson and publisher and editor of the Bryan-College Station Eagle.

"The First Amendment should be strong enough to provide any protection we may need," Baggett said.
Both organizations fear that such a privilege could have "unintended consequences," and worry about giving lawmakers the power to define who is a journalist and who isn't, Baggett said.

But since 1994, when the Court of Criminal Appeals decided not to recognize a journalist's privilege to refuse testimony, it has become increasingly difficult for journalists to win such cases based on the First Amendment, said Joel White, president of the Freedom of Information Foundation of Texas.

White, a Houston lawyer, said anything would be better than the existing situation.

"I think it would be an enormous step forward," he said of Peña's proposal. "The whole reason for the reporter's privilege not to testify is that it gives more information to the public."
If courts could have forced Washington Post journalists Bob Woodward and Carl Bernstein to identify Deep Throat, their still-anonymous Watergate source, he probably wouldn't have talked, leaving a national scandal unexposed, White said.

"If the journalist can promise confidentiality, information is going to reach the public and otherwise it would not," he said. "Privilege is not there to protect the journalist, it's there to protect the public."
There are instances when reporters should have to testify, White said, such as when they witness a a murder. But lawyers can often conduct their investigations without a reporter's help, he said.

Opening meetings

Another proposal, House Bill 47, filed by Republican Rep. Terry Keel of Austin, would fine counties $1,000 if they fail to make certain information about search warrants available to the public.

"Apparently there's still a problem around the state in providing this information," said Michael Schneider, director of programs at the Texas Association of Broadcasters, who applauded Keel's bill.

House Bill 305, by Rep. Toby Goodman, R-Arlington, would allow government officials to meet privately without a quorum. That would essentially undo a 1999 measure that closed a loophole in the state's open meetings law allowing government officials to be privately briefed by staff, Schneider said.

Under the proposal, with less than a quorum, officials could gather without posting their meetings, as is now required, for the purposes of sharing information, Schneider said.

"It was often abused," he said. "Informal decisions were made and informal votes taken."
Goodman's daughter and chief of staff, Christie Goodman, said the measure was intended to clarify existing ambiguities in the law so small groups of officials could get background information outside of public meetings.

The measure would limit the closed-door sessions to one time, "so they'd really have to think about it before they have that discussion," she said. "The intent of the bill was never ever to try have secret meetings or inhibit people's right to see open government."

But the proposal is still a loophole and "a step backward," said Sen. Jeff Wentworth, R-San Antonio. As a former county commissioner and member of the Texas State University System Board of Regents, he said he knew from experience that staff briefings often wind up in discussions not allowed by law.

Gunning for privacy

A bill filed by Rep. Suzanna Hupp, R-Lampasas, would make confidential the names of people who are licensed to carry concealed handguns. Hupp has repeatedly sought to pass the measure because, she said, it's "personal, private information" similar to Social Security numbers.

Critics say the public should be allowed to know who can legally carry guns. But Wentworth, a vocal proponent of open government, said it's not the kind of information the public should be able to know.
"We have to use some balance and common sense for what is and what isn't public information," he said.