Closing Open Records

One of the many issues on which President George W. Bush and Gov. Rick Perry see eye to eye is open records. Both men seem to have a gut instinct against public disclosure of the operations of government. And if they succeed in their ongoing attempts to restrict access to public records in Texas, they will have undermined a law that, 30 years after its enactment, advocates often describe as one of the best open records laws in the U.S.

The last time Bush and Perry hooked up in an attempt to defeat the Texas Public Information Act was two years ago, when the new governor tried to help the new president keep his state papers out of the hands of journalists and scholars. Now the two leaders are at it again, threatening to create an important exception to disclosure of the same Bush records and thereby restricting the public's right to know.

George W. Bush suffered few setbacks during his time as a public official in Texas, but the defeat of his original plans for his state papers was total. During the chaotic period following the disputed 2000 presidential election, Bush's Capitol staff loaded up a couple of trucks and carted his administration's archives to his father's Presidential Library, and nominally federal jurisdiction, on the campus of Texas A&M. The younger Bush may or may not have had legal authority to attempt the transfer, but the consensus view of the library officials is that he did not. In particular, state archivists began to howl, politely but firmly insisting that the papers are state property and needed to be cataloged before they went anywhere (see W's Paper Chase, Sept. 28, 2001).

The initial Bush response was to stonewall. "We have serious problems with any movement of papers out of the Library in College Station," the president's private attorney, Terri Lacy of the Houston firm Andrews & Kurth, wrote to state officials when the fur first began to fly. Lacy's strategy was to treat the papers' presence at A&M as a done deal, and she was assisted in this effort by Bush's successor, Rick Perry, who at one point even suggested that the open records law, which covers all state documents, need not be strictly enforced in the case of Gov. Bush's papers. (See The Texas Public Information Act)

In the end, the state -- or at least that part of it not resident in the Governor's Mansion -- prevailed, and the documents were returned to Austin, where they are being cataloged by state archivists. That meant that for a time at least, the Texas Public Information Act -- stronger and more reliable than the federal equivalent in effect at the Bush Presidential Library at A&M -- was in full force, requiring timely disclosure of the archives' contents in response to open records requests. The president lost by a knockout.

In the latest dispute over the Bush papers, however, the president is winning on points. This round began in August, following the publication of an article tracking Gov. Bush's decision-making process that had led to the execution of 151 men and two women during his six-year tenure in Austin. Specifically, reporter Alan Berlow ("The Texas Clemency Memos," The Atlantic Monthly, July/August 2003) attacked as sloppy and inadequate the work of Bush's briefing attorney and general counsel, Alberto Gonzales, who now holds that same job in the White House. Gonzales is a hot property in D.C., widely considered to be the president's first choice should a vacancy open on the U.S. Supreme Court. (Following Gonzales' stint as general counsel, Bush appointed him to the Texas Supreme Court.) The Atlantic piece was the unofficial beginning of the Gonzales confirmation process, which could be nasty (some conservatives also oppose his nomination because they consider him too liberal). In retrospect, the Atlantic article is also turning out to be a test case on the strength of open records law in Texas.

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Closing the Door

During recent years, state agencies have increasingly begun stamping documents as confidential or indicating that the work is subject to attorney-client privilege. The practice has a counterpart among federal documentation -- the "secret" classification, for example -- but even sensitive federal papers may be automatically declassified after 15 years, while no statutory time limit exists on the "confidential" papers of state agencies in Texas.

At the Texas State Library the assumption had long been that once a state document reached the archives, it was open to public inspection, whatever the original nature of the document. Only those exceptions mandated by law (home telephone numbers of state officials, some Social Security information, e-mail addresses, etc.) would be blocked out, or "redacted." Gradually, however, because of the increasing number of state documents designated as classified, archivists have increasingly been required to seek attorney general opinions before opening them to the public.

Then came the Atlantic article -- and a subsequent open records request (by this paper, among others) for Gov. Perry's execution summaries on the 71 men he has thus far ordered put to death during his time in office. Perry asked for an attorney general's opinion to determine what he must release. Because of the governor's desire to withhold the memos, as well as the above-mentioned changes in the use of confidentiality, the process of disclosure of Texas government documents is being turned on its head (see Execution Memos: Cornyn Slams the Door).

Perry's sentiments concerning secrecy are not confined to capital punishment matters. Earlier this year, the governor demonstrated his feelings about the public's right to know by first asking the attorney general to allow him to keep his draft budget papers confidential. When that was denied, Perry tried to have a new law passed authorizing the same restrictions -- although an otherwise generally compliant Legislature refused to go along with him on secrecy.

But last month Perry was vindicated on his execution summaries when Attorney General Greg Abbott wrote a letter reminding interested parties (including the State Library) of a recent legal opinion expanding the coverage of attorney-client privilege in state government. Under the terms of the letter, the presumption of open government is no longer the standard at the state archives. State agencies can now more freely ask for so-called "permissive exceptions," like confidentiality, in an attempt to keep even no longer current documents from public eyes.

In the future, if Gov. Perry, for example, decides that a document out of Gov. Bush's files -- an opinion by Al Gonzales might be a good example -- should be treated as confidential, it will now be submitted to the attorney general for a ruling (the same attorney general who just endorsed the idea of attorney-client privilege for state officials). In the past, there was a presumption of openness -- and with all due respect to his position, the governor would have been told to go fish. Now -- gradually, and then abruptly -- Gov. Rick Perry has laid his hands on the keys to Gov. George W. Bush's filing cabinet.

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The Governor's Counselor

The Atlantic Monthly article was not the first connection between Alberto Gonzales and the darker recesses of the Bush archives. In November 1995, the governor's general counsel asked to see state archivist Chris LaPlante and state librarian Robert S. Martin. "Dr. Martin stated that he was personally disappointed that Governor Bush wanted to place his gubernatorial records outside of Austin," LaPlante wrote in a memo summarizing the meeting, "since he has been hoping that the governor would work with the Library to establish a precedent whereby the governor's official records would be transferred to the State Library as soon as possible.

"We also both spoke to what we saw as our statutory responsibility," LaPlante continued, "to have the Archives staff work to establish some sort of administrative control and minimal intellectual control over the records before they were actually loaned to another repository."

In his own memorandum to Gov. Bush, Gonzales recounted faithfully the arguments, pro and con, about the wisdom of sending the documents to College Station. (Acting in his capacity as the governor's lawyer, Gonzales was required to offer all legal options.) But at the conclusion of the memo, in a sentence that sounds as if the general counsel considered state law governing open records largely an obstacle to be gotten around, Gonzales wrote, "we could pursue legislation to give the [State Library and Archives] Commission the authority to allow public records to be stored at special facilities, such as presidential libraries, without requiring the operator of the facility to be subject to each and every law or regulation of the state." It's precisely this kind of memorandum (obtained by the Chronicle before the most recent attorney general's ruling) that shows the general counsel's views on matters of law. Although Gonzales' opinions on such matters would be of obvious interest to, say, a U.S. Senate confirmation hearing, such frankness would increasingly be subject to the governor's and the attorney general's judgments of where attorney-client privilege begins -- and ends.

"They're trying to get around the open records law," commented a prominent Texas academic archivist (who asked to not be identified), when informed of the changes in progress. That opinion is held by others as well. Steve Hensen of Duke University, who was president of the Society of American Archivists in 2001, notes similarities between what is happening in Texas now and the firestorm in Washington when, shortly after taking office, President Bush took authority for disclosure of prior administrations' papers out of the hands of national archivists and transferred that power to the White House. The presumption was that the second Bush administration wanted to protect the first Bush administration -- but there were also classified Reagan administration files scheduled for disclosure that were suddenly made subject to presidential veto, in perpetuity. The same secrecy two-step is now under way in Texas.

Are Perry, et al. trying to juke the archives? Probably. Is it legal? Perhaps. It helps them that the judge -- in this case, the attorney general -- is sympathetic to secrecy. Former Attorney General (now U.S. Senator) John Cornyn is a fierce Bush partisan, but on open records, as attorney general, he was generally pro-disclosure. The new AG, Greg Abbott, is leaning the other way. If it's a conspiracy, it's a good one, because it's simple. Unable to control the location of the Bush archives, the strategy has changed to trying to limit their disclosure.

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The Notes Not Taken

There may be nothing of greater alarm in the general counsel's memoranda, but given the president's recent rocky experience on judicial confirmations by the U.S. Senate, the best news out of Austin is no news. A disconcerting precedent already exists. A single sentence that Al Gonzales wrote as a member of the Texas Supreme Court helped to hold off the confirmation of Justice Priscilla Owen as a federal appellate judge. Concerning an Owen denial of a judicial bypass for a minor seeking an abortion (as allowed under Texas law), Gonzales wrote, "to construe the Parental Notification Act so narrowly as to eliminate bypasses ... would be an unconscionable act of judicial activism." That was from a published opinion. God knows what else Gonzales may have whispered into the governor's ear as consigliere.

Gov. Bush's daily calendars, also part of the archives -- and still, so far, open to public review -- reflect that Al Gonzales was one of the first faces George W. Bush saw most working mornings in Austin. Gonzales brought with him official documents to be signed, and as general counsel, of course, kept track of executions, including drafting many of the summary memos upon which Bush based his decisions on clemency. (Of 153 requests to Bush for clemency, 152 were denied.) While there haven't been any bombshells out of these files yet, a slow fuse may be burning, in memory of Karla Faye Tucker, executed in 1998. The governor's prolonged public and private deliberations over the fate of Tucker, who became the first woman executed in Texas in a century, brought widespread media attention to Texas and to the governor.

Berlow recounts Gonzales' official memos in the Tucker case, but according to references in the Bush gubernatorial papers, in the course of his research for preparation of his "execution summary" Gonzales also made an unpublicized personal visit to Tucker, in prison at Huntsville. No other documentary evidence of the prison cell visit can apparently be found in the Bush files -- no notes, for example, nor a memorandum of the interview. (In Gov. Bush's file on Tucker, there is, however, a photograph of one of Karla Faye's victims, lying dead with a pickaxe stuck in his chest.) The processing of the papers is not complete, but if the general counsel failed to take notes on a personal interview in a death penalty case, that would lend support to Alan Berlow's argument that the review process -- leading to the execution of 153 people -- was inadequate.

In his execution summary on Tucker, Gonzales noted that her behavior in prison had been good and that she was a born-again Christian, like the governor himself. But at the same time, he reminded W., "Many of Tucker's supporters are basing their request for clemency upon her gender and her religious conversion. Neither of these factors have been given weight in previous decisions made by you in death penalty cases." Bush put a big check mark under "DENY" on the last page of the execution summary, the modern equivalent of the Roman thumbs-down.

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Final Destination

Late this summer when Peggy Rudd, who succeeded Robert Martin as state librarian and whose office supervises the archives, announced the signing of the memorandum of understanding between the president and the state regarding the care of the Bush archives, she told her bosses on the library's governing commission, rather understatedly, "The issues continue around these archives." While issues of access and disclosure remain unresolved, it's good to be able to report that at least the question of College Station has apparently been laid to rest: Time has put the Aggies out of the competition.

The Bush papers were originally estimated to require three to four years for processing in Austin, but the principal archivist on the project, Tonia Wood, believes now that the work will take closer to five years to complete. The staff of the State Library has had to devote considerable energy to complicated open records requests and to dealing with the legal issues involving the Bush papers themselves, Wood explains. There have been several requests for attorney general's opinions, and there will be more. The open records requests have also been surprisingly tough, she and other archivists say. The New York Times, for example, asked for everything in Governor Bush's file on global warming. Bush didn't have a file on global warming -- there was, however, global warming material in other files that must be collected and produced. That's the kind of work state archivists are doing now.

As time passes, one eventuality becomes clearer and clearer. Part of the agreement reached with the president is that, once cataloged, the Bush files will go where he wants them. By the time processing of the documents is complete in Austin, there'll be a George W. Bush Presidential Library somewhere, or certainly plans for one. Current bets are that it'll be in Waco, at Baylor University, or in Dallas at SMU. UT has submitted a proposal as well, but Baylor is more convenient for the president, closer to his ranch, and the first lady graduated from Southern Methodist.

Mrs. Bush is, after all, a librarian by training, and presumably the president will listen closely to her recommendation.