Freedom of Information Foundation of Texas Files Brief in Opposition to ALEC's Effort to Evade Open Records Law

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The Freedom of Information Foundation of Texas has filed a brief with state Attorney General Greg Abbott in support of the Center for Media and Democracy's request for records pertaining to the American Legislative Exchange Council (ALEC), and further refuting ALEC's effort to declare its communications immune from the state public records law.

"ALEC's arguments reflect a dangerous trend of claiming a constitutional right to close the public off from governmental body deliberations," says attorney Joe Larsen, a member of FOIFT's Board of Directors. "However, the real purpose of the First Amendment is to further the 'free trade in ideas.' That's done through transparency, not behind closed doors."

As ALEC has come under increasing public scrutiny in recent years, they've taken new steps to cover their tracks and escape public accountability. In recent months, they've begun stamping documents with a "disclaimer" asserting that materials like meeting agendas and model legislation are not subject to any state's open records law. In late July, Texas became the first state where ALEC formally asked the Attorney General for an exemption from sunshine-in-government laws.

On August 15, CMD filed a brief with the Texas Attorney General asking his office to reject arguments by ALEC and Texas State Rep. Stephanie Klick that the lobbying organization's communications with lawmakers should be kept secret from the public.

FOIFT's brief, filed last week, supports CMD's position and adds additional arguments countering claims by Rep. Klick and ALEC -- noting, among other things, that the arguments made by each are "mutually inconsistent."

"Rep. Klick invokes the deliberative process privilege, which involves 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, the brief notes. "[But] ALEC invokes its members' First Amendment right of association, which involves its internal discussions and membership."

In other words, Rep. Klick's assertion -- that the requested documents reflect internal governmental deliberations -- is undermined by ALEC's claim that the documents at issue involve the internal deliberations of a private organization.

And, 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. ALEC failed to show that the limited circumstances exist that might justify an exception from public access. FOIFT asked the Attorney General to preserve the public's right to have informed access to the workings of government.

Attorney General Abbott's decision on the matter is expected in the coming weeks.

Read the Freedom of Information Foundation of Texas' brief here.