Amicus Curiae Brief — Priscilla Villarreal, Petitioner v. Isidro R. Alaniz, et al.

Supreme Court briefMay 22, 2024

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No. 23-1155

In The

Supreme Court of the United States

PRISCILLA VILLARREAL,

Petitioner,

ISIDRO R. ALANIZ, et al.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF AMICUS CURIAE

MUCKROCK FOUNDATION

IN SUPPORT OF PETITIONER

AARON S. JACOBS

Counsel of Record

JEFFREY PYLE

Prince Lobel Tye LLP

One International

Place, Suite 3700

Boston, MA 02110

(617) 456-8000

ajacobs@princelobel.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................. i

TABLE OF AUTHORITIES...................................... iii

INTEREST OF AMICUS CURIAE.............................1

SUMMARY OF ARGUMENT .....................................2

ARGUMENT ...............................................................3

II.

Respondents Did Not Reasonably Believe

that Petitioner’s Act of Requesting

Government Information Could Be a

Crime. ..................................................................3

Texas law declares that people are

entitled to “complete information about

the affairs of government and the

official acts of public officials and

employees,” subject to exemptions. ................4

The Fifth Circuit unreasonably

construed the Texas Misuse of Official

Information statute so as to make it a

crime to request information that may,

but need not, be released. ...............................7

A Person Who Requests Information from

a State or Local Government Usually Has

No Way of Knowing Whether the

Information is Non-Public Under the

State’s Public Records Law. ................................9

Records in the possession of state

entities are presumptively public,

unless one of a great number of

exemptions applies. ....................................... 10

Many exemptions require judgment

calls by the governmental entity

holding the records. ....................................... 14

III. The Texas Criminal Statute Is Not

Limited to the Use of “Backchannel”

Sources. .............................................................. 19

IV. Informal Requests for Information Like

Petitioner’s Must Be Protected, Because

Formal Procedures Under State Public

Records Laws are Neither a Timely nor

Adequate Means to Inform the Public.............. 22

CONCLUSION .......................................................... 25

iii

TABLE OF AUTHORITIES

Page(s)

Cases

ACLU Found. v. Sup. Ct.,

400 P.3d 432 (Cal. 2017) ...................................... 13

Bridges v. California,

314 U.S. 252 (1941).............................................. 24

Carlson v. Pima Cty.,

687 P.2d 1242 (Ariz. 1984) .................................. 14

Cf. Courthouse News Serv. v. Planet,

947 F.3d 581 (9th Cir. 2020)................................ 25

Erie R.R. Co. v. Tompkins,

304 U.S. 64 (1938)................................................ 24

Grove Fresh Distributors, Inc. v.

Everfresh Juice Co.,

24 F.3d 893 (7th Cir. 1994).................................. 24

Indus. Found. of the South v. Tex. Indus.

Accident Bd.,

540 S.W.2d 668 (Tex. 1976) ................................. 15

International News Service v. Associated

Press,

248 U.S. 215 (1918).............................................. 24

Jackson v. State Off. of Admin. Hearings,

351 S.W.3d 290 (Tex. 2011) ............................... 6, 8

Nat’l Archives & Records Admin. v.

Favish,

541 U.S. 157 (2004).............................................. 17

Nebraska Press Ass’n v. Stuart,

423 U.S. 1327 (1975)............................................ 24

Smith v. Daily Mail Pub. Co.,

443 U.S. 97 (1979).............................................. 4, 9

State v. Ford,

179 S.W.3d 117 (Tex. App. 2005) ..........................8

State v. Newton,

179 S.W.3d 104 (Tex. App. 2005) ..........................8

Thomas v. Cornyn,

71 S.W.3d 473 (Tex. App. 2002) ............................6

Tidwell v. State,

No. 08-11-00322-CR, 2013 WL 6405498

(Tex. App. Dec. 4, 2013) .........................................8

Villarreal v. City of Laredo, Texas,

94 F.4th 374

(5th Cir. 2024) (en banc) ............ 4, 9, 15, 16, 19, 22

West v. Am. Tel. & Tel. Co.,

311 U.S. 223 (1940)................................................9

Rules

1 M.R.S.A. §§ 400 et seq.......................................... 11

Cal. Gov’t Code § 7922.000 ..................................... 13

Cal. Gov’t Code § 7930.000(a) ................................ 13

Cal. Gov’t Code §§ 7930.100 et seq. ........................ 13

Fla. Stat. §§ 119.01 et seq. ...................................... 10

Fla. Stat. §§ 286.011 et seq. .................................... 11

K.S.A. §§ 45-215 et seq............................................ 11

K.S.A. §§ 75-4317 et seq.......................................... 11

N.D.C.C. §§ 44-04-17 et seq. ................................... 11

Ohio Rev. Code § 149.43 ......................................... 12

ORS § 192.314......................................................... 12

T.C.A. §§ 10-7-501 et seq. ....................................... 12

T.C.A. §§ 8-44-101 et seq. ....................................... 12

Tex. Gov’t Code § 552.001 ........................................4

Tex. Gov’t Code § 552.001(a) .............................. 5, 10

Tex. Gov’t Code § 552.007(a) ....................................6

Tex. Gov’t Code § 552.007(b) ....................................6

Tex. Gov’t Code § 552.021 ........................................5

Tex. Gov’t Code § 552.101 .................................. 5, 14

Tex. Gov’t Code § 552.108 ...................................... 16

Tex. Gov’t Code § 552.108(a) .............................. 6, 14

Tex. Gov’t Code § 552.108(c) .................................. 14

Tex. Gov’t Code § 552.1085 ......................................5

Tex. Gov’t Code § 552.221(a) .............................. 5, 22

Tex. Gov’t Code § 552.301(a) ................................ 7, 8

Tex. Transp. Code § 550.065 .................................. 16

Tex. Transp. Code § 550.065(a).............................. 16

Va. Code Ann. §§ 2.2-3700 et seq. .......................... 13

Other Authorities

Rule 37.2 ...................................................................1

Rule 37.6 ...................................................................1

Statutes

Amy M. Oster, Open Government Guide:

North Dakota (Jan. 2024),

https://www.rcfp.org/open-governmentguide/north-dakota/#2-discussion-ofeach-exemption .................................................... 11

Andrew Geronimo & David Marburger,

Open Government Guide: Ohio, RCFP

(last visited May 15, 2024),

https://www.rcfp.org/open-governmentguide/ohio/#1-character-of-exemptions ............... 12

C.J. Ciaramella, “New Jersey Town That

Sued a Woman for Public Records

Requests Now Wants Lawyer

vii

Prosecuted for Same Thing,”

reason.com (Jan. 6, 2023),

https://reason.com/2023/01/06/newjersey-town-that-sued-a-woman-forpublic-records-requests-now-wantslawyer-prosecuted-for-same-thing/ ..................... 21

Comptroller General’s Report to the

Subcommittee on Government

Information and Individual Rights,

House Committee on Government

Operations, at ii

July 25, 1978 ........................................................ 21

Craig T. Merritt & David B. Lacy, Open

Government Guide: Virginia, RCFP

(Sept. 2021),

https://www.rcfp.org/open-governmentguide/virginia/#2-discussion-of-eachexemption ............................................................. 13

Douglas R. Pierce, Open Government

Guide: Tennessee, RCFP (last visited

May 15, 2024),

https://www.rcfp.org/open-governmentguide/tennessee/#ii-exemptions-andother-legal-limitations ......................................... 12

Duane A. Bosworth & Derek G. Green,

Open Government Guide: Oregon,

RCFP (July 2019),

https://www.rcfp.org/open-governmentguide/oregon/#1-character-ofexemptions ........................................................... 12

viii

How open is your government?,

MuckRock,

https://www.muckrock.com/place/ (last

visited May 15, 2024)........................................... 23

Margaret B. Kwoka, Saving the Freedom

of Information Act

(Cambridge Univ. Press, 2021) ........................... 21

Mark R. Cara et al., Open Government

Guide: Florida, RCFP (July 31, 2021),

https://www.rcfp.org/open-governmentguide/florida/#2-discussion-of-eachexemption ............................................................. 10

Maxwell E. Kautsch, Open Government

Guide: Kansas, RCFP (Jan. 19, 2023),

https://www.rcfp.org/open-governmentguide/kansas-2/#ii-exemptions-andother-legal-limitations ......................................... 11

N.D. Const., art. XI, § 6 .......................................... 11

Sigmund D. Schutz & Harper

Weissburg, Open Government Guide:

Maine, RCFP (Oct. 2021),

https://www.rcfp.org/open-governmentguide/maine/#ii-exemptions-and-otherlegal-limitations ................................................... 11

Tex. Att’y Gen. Op. OR2022-36798,

2022 WL 17552725 (2022) ............................. 17, 18

Tex. Att’y Gen. Op. ORD-127 (1976)...................... 17

Tex. Att’y Gen. Op. ORD-405 (1983)...................... 15

Tex. Att’y Gen. Op. ORD-600 (1992)...................... 15

Tex. Att’y Gen., Public Information Act

Handbook 76 & n.363 (2022) ............................... 17

Texas Public Records Guide, MuckRock

(last visited May 15, 2024),

https://www.muckrock.com/place/unite

d-states-of-america/texas/.................................... 10

INTEREST OF AMICUS CURIAE

Amicus MuckRock Foundation is a journalism and

government transparency non-profit organization. 1

Since its founding in 2010, MuckRock has helped

thousands of journalists, professionals, and ordinary

citizens request, share, and understand public

records.

MuckRock’s work involves extensive use of the

public records laws of the 50 states, including the

Texas Public Information Act. State public records

laws are essential tools of public accountability.

Requests under them have led to the exposure of

public corruption, misuse of government funds, and

police misconduct, among many other matters of

public concern.

MuckRock operates as a hybrid newsroom and

journalism support organization. In addition to

working with thousands of newsrooms around the

country to help file more effective requests, the

organization has collaborated on important public

interest reporting based on the collection and analysis

of government records. For example, in 2023,

MuckRock and the Missouri Independent published

an investigation about the involvement of the City of

St. Louis in the race to build an atomic bomb during

World War II, and the government’s failure to protect

1 Pursuant to Rule 37.6, amicus states that no counsel for a

party authored this brief in whole or in part, and that no person

other than amicus or its counsel contributed money intended to

fund preparing or submitting this brief. Pursuant to Rule 37.2,

amicus affirms that all parties received timely notice of the

intent to file this brief.

the public from the environmental contamination that

followed. In March 2024, MuckRock won the First

Amendment Coalition’s Free Speech and Open

Government Award for its data journalism

collaborations.

SUMMARY OF ARGUMENT

The Fifth Circuit erroneously held that the

Respondents, law enforcement officials of the City of

Laredo, Texas, were qualifiedly immune from suit

based on their acts of charging and arresting a

journalist for requesting information from a police

officer. The decision rested in part on the court’s

determination that the information the journalist

requested was not subject to disclosure under the

Texas Public Information Act (“TPIA”), the state’s

analogue to the federal Freedom of Information Act.

As such, the court held, the journalist’s inquiry met

the elements of a criminal statute proscribing the

solicitation of nonpublic information from a public

servant.

Every day, thousands of citizens and corporations

submit informal inquiries or formal public records

requests to state and local entities for information

that government officials ultimately conclude is

nonpublic. That is not because requesters are

unlawfully seeking confidential information. Rather,

it is because state public records laws contain

hundreds of exemptions, some of them vaguely

defined or subject to complex balancing tests.

In this legal context, the act of merely requesting

information that is ultimately deemed nonpublic

cannot reasonably be considered a crime. Rarely can

an individual know in advance whether information

she requests is subject to a public records exemption.

Further, requiring journalists or other citizens always

to submit official information requests to authorized

government representatives on pain of criminal

sanction would lead to the unacceptably delayed

disclosure of timely information, and a less-informed

public.

Unless corrected, the Fifth Circuit’s decision will

encourage other government officials, both high and

petty, to harass, threaten, and arrest people for

requesting information that the government would

prefer not to release – even if the government may

lawfully release the information under state law. The

decision not only chills journalists from speaking to

unauthorized

government

sources

information – what the Fifth Circuit scorned as

“backchannel” communications – it inhibits the use of

state public records acts themselves, which are

essential tools of public accountability. The Court

should grant certiorari and reverse.

ARGUMENT

I. Respondents Did Not Reasonably Believe

that

Petitioner’s

Act

Requesting

Government Information Could Be a Crime.

Contrary to the Fifth Circuit’s ruling, it was not

reasonable for Respondents to believe that

Petitioner’s conduct – asking a police officer to

confirm the identities of two people in her community

who had recently died – was a violation of Texas law. 2

2 The officers were also on notice that their conduct violated

the First Amendment, as Petitioner has argued. Smith v. Daily

Villarreal v. City of Laredo, Texas, 94 F.4th 374, 385

(5th Cir. 2024) (en banc) (“Villarreal (en banc)”). The

Fifth Circuit construed the Texas criminal statute,

and the TPIA exemptions that it incorporates by

reference, in such a way as to hold that the law

prohibits a citizen from requesting information that is

subject even to a discretionary exemption to the TPIA.

As thus construed, the law would impose the absurd

result of imposing liability not only on those who seek

“confidential” information, but on those who request

information that the government may, but need not,

make public.

A. Texas law declares that people are

entitled to “complete information

about the affairs of government

and the official acts of public

officials and employees,” subject to

exemptions.

The TPIA, like the public records laws of many

other states, provides that records in the hands of the

government are presumptively public, subject to

narrow exemptions. Tex. Gov’t Code § 552.001. The

“policy” section of the statute articulates the reason

for this presumption:

Under the fundamental philosophy of the

American constitutional form of representative

government that adheres to the principle that

government is the servant and not the master

Mail Pub. Co., 443 U.S. 97, 103–04 (1979) (“[I]f a newspaper

lawfully obtains truthful information about a matter of public

significance then state officials may not constitutionally punish

publication of the information, absent a need to further a state

interest of the highest order.”).

of the people, it is the policy of this state that

each person is entitled, unless otherwise

expressly provided by law, at all times to

complete information about the affairs of

government and the official acts of public

officials and employees. The people, in

delegating authority, do not give their public

servants the right to decide what is good for the

people to know and what is not good for them to

know. The people insist on remaining informed

so that they may retain control over the

instruments they have created.

Tex. Gov’t Code § 552.001(a). Consistent with this

policy, the TPIA provides that government officers

“shall promptly produce public information for

inspection, duplication, or both on application by any

person to the officer.” Tex. Gov’t Code § 552.221(a).

Subchapter C of the TPIA sets categories of records

exempt from “required disclosure.” Tex. Gov’t Code

§§ 552.101-552.163. For the most part, however, these

exempt categories are not “prohibited from

disclosure,” in the words of the criminal statute under

which Petitioner was charged. Tex. Penal Code

§ 39.06; see infra § I.B. Rather, they are merely

exempt from required disclosure in response to a TPIA

request. 3 For example, section 552.108 provides that

3 The exemptions state that they exclude certain information

“from the requirements of Section 552.021,” which provides that

“[p]ublic information” be “available to the public . . . .” Tex. Gov’t

Code § 552.021. In a few cases, they additionally provide that

certain information “is confidential,” and that a government body

may not permit a person to view or copy it. See, e.g. Tex. Gov’t

Code § 552.1085 (sensitive crime scene images deemed

confidential).

“[i]nformation held by a law enforcement agency or

prosecutor that deals with the detection,

investigation, or prosecution of crime is excepted”

from mandatory disclosure “if . . . release of the

information would interfere with the detection,

investigation, or prosecution of crime,” or other

conditions are met. Tex. Gov’t Code § 552.108(a). In

other words, a governmental agency does not have to

disclose such information, but it still may do so.

In fact, the statute expressly permits public bodies

to provide exempt information to the public. Section

552.007 provides: “This chapter does not prohibit a

governmental body . . . from voluntarily making part

or all of its information available to the public, unless

the disclosure is expressly prohibited by law or the

information is confidential under law.” Tex. Gov’t

Code § 552.007(a). Thus, a great deal of statutorily

exempt

information,

including

investigatory

information, may be voluntarily provided to the public

at the discretion of a given governmental body.

To put a fine point on it, the TPIA provides: “This

chapter shall be liberally construed in favor of

granting a request for information.” Tex. Gov’t Code

§ 552.007(b) (emphasis supplied). The Texas

Legislature “has clearly expressed its intent that

exceptions to disclosure be construed narrowly.”

Jackson v. State Off. of Admin. Hearings, 351 S.W.3d

290, 299 (Tex. 2011). Like the laws of other states and

the federal FOIA, under the TPIA, it is the

government’s responsibility – not the requester’s – to

prove that an exemption to required disclosure

applies. See Thomas v. Cornyn, 71 S.W.3d 473, 480-81

(Tex. App. 2002). In fact, unlike the public records

laws of other states, the TPIA provides that if a Texas

government body wishes to withhold a record under

an exemption listed in Subchapter C, it must seek and

obtain “a decision from the attorney general about

whether the information is within that exception if

there has not been a previous determination” as to the

records requested. Tex. Gov’t Code § 552.301(a).

B. The Fifth Circuit unreasonably

construed the Texas Misuse of

Official Information statute so as

to make it a crime to request

information that may, but need

not, be released.

The Texas “Misuse of Official Information” statute

under which Petitioner was arrested states in

relevant part:

A person commits an offense if, with intent to

obtain a benefit or with intent to harm or

defraud another, he solicits or receives from a

public servant information that:

(1) the public servant has access to by means

of his office or employment; and

(2) has not been made public.

Tex. Penal Code § 39.06(c). The statute defines the

term “information that has not been made public” to

mean “any information to which the public does not

generally have access, and that is prohibited from

disclosure under Chapter 552, Government Code,”

meaning the TPIA. Id. (emphasis supplied).

Against the backdrop of Texas’s strongly expressed

public policy in favor of disclosure of government

information, it was unreasonable for the Respondents

and the Fifth Circuit to believe the statute

criminalizes any request (with intent to benefit) for

governmental information that ultimately turns out

to be nonpublic. The TPIA enacts a presumption of

disclosure, expresses the “clear[] . . . intent that

exceptions to disclosure be construed narrowly,”

Jackson, 351 S.W.3d at 299, and requires a

declaration from the Texas Attorney General to apply

an exemption, Tex. Gov’t Code § 552.301(a). In this

legal context, the little-used Misuse of Official

Information statute cannot reasonably be construed

to make it a crime to request information, merely

because the information happens to fall into one of the

narrow TPIA exceptions.

It is true that, according to two Texas intermediate

appellate courts, the word “prohibited” in the Misuse

of Official Information statute includes all of the

discretionary exemptions listed in Subchapter C of the

statute. State v. Newton, 179 S.W.3d 104, 109 (Tex.

App. 2005); see also State v. Ford, 179 S.W.3d 117, 123

(Tex. App. 2005) (companion case to Newton) (“[I]n

order to give meaning to the penal statute, we will

construe the phrase ‘prohibited from disclosure’ in

§ 39.06(d) to mean the set of exceptions to disclosure

listed in Subchapter C of [the TPIA].”); 4 Tidwell v.

State, No. 08-11-00322-CR, 2013 WL 6405498, at *12

(Tex. App. Dec. 4, 2013) (agreeing with Newton).

However, neither of the appellate court decisions

4 The Texas appellate court need not have decided how to

construe this language because the records at issue in Newton

were grand jury materials, judicial records not subject to the

TPIA, and thus the court held that an indictment for seeking

them was properly dismissed. Newton, 179 S.W.3d at 111.

explained why it made sense to conflate exceptions

from mandatory disclosure with information

“prohibited from disclosure.” The Fifth Circuit was not

required to adopt this construction of the statute in

determining whether there was probable cause to

arrest the Petitioner here. Villarreal (en banc), 94

F.4th at 387, 386 n.12; see West v. Am. Tel. & Tel. Co.,

311 U.S. 223, 237 (1940).

In any event, as construed by the Fifth Circuit, the

“Misuse of Official Information” statute is obviously

unconstitutional as applied here. If the law prohibits

“soliciting” from a public servant information that the

government may, but need not, disclose, then not only

are “routine newspaper reporting techniques”

unlawful, but so are ordinary requests by citizens for

information that may lawfully be disclosed. Smith,

443 U.S. at 103.

II. A Person Who Requests Information from a

State or Local Government Usually Has No

Way of Knowing Whether the Information is

Non-Public Under the State’s Public Records

Law.

In immunizing the Petitioner’s arrest, the Fifth

Circuit erroneously assumed that a person such as

Petitioner who requests information from a state or

local government would know in advance whether the

information is exempt from disclosure under the

state’s public records law. That assumption was

incorrect. That is shown by the sheer number of

exemptions to such laws, and the way those

exemptions are drafted and interpreted.

A. Records in the possession of state

entities are presumptively public,

unless one of a great number of

exemptions applies.

As noted supra § I.A, the TPIA provides that “each

person is entitled, unless otherwise expressly

provided by law, at all times to complete information

about the affairs of government and the official acts of

public officials and employees.” Tex. Gov’t Code

§ 552.001(a). However, there are so many exemptions

“otherwise expressly provided by law” as to render

almost ineffective any effort by a layperson to follow

them. 5

Texas is not unusual in this respect. The Reporters

Committee for Freedom of the Press (“RCFP”)

surveyed the public records laws of all 50 states, and

it found thousands of such exemptions. For example:

•

Florida has at least 1,100 statutory

exemptions to its public records law. 6 See

generally Fla. Stat. §§ 119.01 et seq. (Florida

5 For example, MuckRock tracks requests by state, including

Texas. Requesters in Texas have a success rate of 37.52%. Texas

Public Records Guide, MuckRock (last visited May 15, 2024),

https://www.muckrock.com/place/united-states-ofamerica/texas/.

Mark R. Cara et al., Open Government Guide: Florida,

RCFP (July 31, 2021), https://www.rcfp.org/open-governmentguide/florida/#2-discussion-of-each-exemption; see also id. (“The

difficulty in identifying exemptions is partially because the

enactment of exemptions has occurred over many years, often as

part of larger bills. Also, because the term ‘exemption’ had no

statutory definition, no uniform language was used when

exemptions were created.”).

Public Records Law); Fla. Stat. §§ 286.011 et

seq. (Florida Sunshine Law).

•

Kansas has “a laundry list” of exemptions in

its Open Records Act, as well as more than 350

others spread throughout its statutes. 7 See

generally K.S.A. §§ 45-215 et seq. (Kansas Open

Records Act); K.S.A. §§ 75-4317 et seq. (Kansas

Open Meetings Act).

•

Maine’s exemptions are “[t]oo numerous to

list.” 8 See generally 1 M.R.S.A. §§ 400 et seq.

(Maine Freedom of Access Act).

•

North

Dakota has 166

enumerated

exemptions. 9 See generally N.D. Const., art. XI,

§ 6; N.D.C.C. §§ 44-04-17 et seq. (North Dakota

open records statutes).

Maxwell E. Kautsch, Open Government Guide: Kansas,

RCFP (Jan. 19, 2023), https://www.rcfp.org/open-governmentguide/kansas-2/#ii-exemptions-and-other-legal-limitations; see

also id. at https://www.rcfp.org/open-government-guide/kansas2/#b-other-statutory-exclusions (“Any other statute which

specifically restricts disclosure takes precedence over the KORA.

K.S.A. 45-221(a)(1). The Revisor of Statutes has identified over

350 such other statutes.”).

8 Sigmund D. Schutz & Harper Weissburg, Open Government

Guide: Maine, RCFP (Oct. 2021), https://www.rcfp.org/opengovernment-guide/maine/#ii-exemptions-and-other-legallimitations.

Amy M. Oster, Open Government Guide: North Dakota

(Jan. 2024), https://www.rcfp.org/open-government-guide/northdakota/#2-discussion-of-each-exemption.

•

Ohio has more than 400 statutory exemptions

spread throughout its code. 10 See generally

Ohio Rev. Code § 149.43 (Availability of public

records for inspection and copying).

•

Oregon has more than 500 exemptions. 11 See

generally ORS § 192.314 (Right to inspect

public records).

•

Tennessee’s Open Records Act lists 48

categories of confidential records, with more

than 300 other exemptions scattered

throughout other statutes and court rules. 12

See generally T.C.A. §§ 10-7-501 et seq.

(Tennessee Public Records Act); T.C.A. §§ 8-44101 et seq. (Tennessee Sunshine Act).

•

Virginia has “136 exclusions for public records

located in seven different statutes organized

loosely by subject matter,” while the “Virginia

Code contains dozens of specific statutory

provisions operating outside of the Act that

10 Andrew Geronimo & David Marburger, Open Government

Guide: Ohio, RCFP (last visited May 15, 2024),

https://www.rcfp.org/open-government-guide/ohio/#1-characterof-exemptions.

11 Duane A. Bosworth & Derek G. Green, Open Government

Guide: Oregon, RCFP (July 2019), https://www.rcfp.org/opengovernment-guide/oregon/#1-character-of-exemptions.

Douglas R. Pierce, Open Government Guide: Tennessee,

RCFP (last visited May 15, 2024), https://www.rcfp.org/opengovernment-guide/tennessee/#ii-exemptions-and-other-legallimitations.

make information confidential.” 13 See generally

Va. Code Ann. §§ 2.2-3700 et seq. (Virginia

Freedom of Information Act).

California presents an interesting (and not

uncommon) example. In an effort “to assist members

of the public and state and local agencies in

identifying exemptions to the California Public

Records Act,” Cal. Gov’t Code § 7930.000(a), the

Legislature helpfully collected an alphabetical list of

the approximately 570 statutory exemptions spread

throughout California’s Code. See generally Cal. Gov’t

Code §§ 7930.100 et seq. But, this does not tell the

whole story, because CPRA includes a “catchall”

exemption under which any agency may withhold

“any record by demonstrating . . . that on the facts of

the particular case the public interest served by not

disclosing the record clearly outweighs the public

interest served by disclosure of the record.” Cal. Gov’t

Code § 7922.000. This “public interest” exemption

involves a “case-by-case balancing process” and has

been used to withhold a variety of public records not

otherwise expressly exempt under the CPRA. ACLU

Found. v. Sup. Ct., 400 P.3d 432, 439 (Cal. 2017)

(listing examples).

13 Craig T. Merritt & David B. Lacy, Open Government Guide:

Virginia, RCFP (Sept. 2021), https://www.rcfp.org/opengovernment-guide/virginia/#2-discussion-of-each-exemption.

B. Many

exemptions

require

judgment

calls

the

governmental entity holding the

records.

Quite apart from the sheer number of exemptions,

whether information falls within a particular

exemption is often unknowable in advance by a

requester. For example, one exemption to the TPIA

states that information is exempt if “release of the

information would interfere with the detection,

investigation, or prosecution of crime.” Tex. Gov’t

Code § 552.108(a). But, an exemption to that

exemption – i.e., information that may not be

withheld – is “information that is basic information

about an arrested person, an arrest, or a crime.” Tex.

Gov’t Code § 552.108(c). How would anyone

know – before

asking – whether

release

information about a crime would interfere with an

investigation? Such a determination could vary

depending on the case, on the status of the

investigation, and even on the police departments or

individual police officers involved. And, if otherwise

exempted, how would anyone know – before

asking – whether an exemption to the exemption

might apply because the information is “basic”?

Further, many exemptions under state public

records laws call for a balancing of interests. For

example, Section 552.101 of the TPIA exempts

information “if it is . . . considered to be confidential

by law, either constitutional, statutory, or by judicial

decision.” Tex. Gov’t Code § 552.101. 14 So, the statute

14 Examples from other states abound. To take just one, the

Arizona Supreme Court in Carlson v. Pima Cty., 687 P.2d 1242,

1244 (Ariz. 1984), explained that Arizona’s statutory scheme is

invokes common-law privacy doctrine, under which

information is confidential if it “contain[s] highly

intimate or embarrassing facts about a person’s

private affairs, such that its publication would be

highly objectionable to a person of ordinary

sensibilities.” Indus. Found. of the South v. Tex.

Indus. Accident Bd., 540 S.W.2d 668, 683 (Tex. 1976);

see also Tex. Att’y Gen. Op. ORD-405 (1983) (stating

that “information may be withheld only if it is highly

intimate or embarrassing, its release would be highly

offensive to a reasonable person, and the public

interest in its disclosure is minimal.”); Tex. Att’y Gen.

Op. ORD-600 (1992). If an unknown government

official must balance the public’s interest in the

newsworthiness of information against the privacy

interests of unknown others, the Constitution cannot

possibly permit post hoc criminal liability simply

because a member of the public guesses the outcome

of that balancing test wrong.

Indeed, Villarreal’s case is a paradigmatic example

of this uncertainty. For, contrary to the intimations of

the court below, see Villarreal (en banc), 94 F.4th at

382, 387-88, there is no TPIA exemption clearly

providing that a suicide or crash victim’s identity is

confidential while the investigation is ongoing or

before the notification of the victim’s next of kin. This

bears repeating: There is no express exemption for the

information Villarreal sought to confirm.

simple, providing “a broad right of inspection to the public.” But,

documents can be withheld on the bases of (1) confidentiality;

(2) privacy; or (3) where “disclosure would be detrimental to the

best interests of the state,” based upon a balancing of interests.

Id.

The court below stated:

Texas law prevents the disclosure of certain

personal identifying information of victims in

accident reports and exempts disclosure of

information related to ongoing criminal

investigations. See TEX. TRANSP. CODE

§ 550.065(f)(2)(A)

(requiring

the

Texas

Department of Transportation to withhold or

redact “the first, middle, and last name of any

person listed in a collision report”); TEX.

GOV’T CODE § 552.108(a)(1)-(2) (exempting

from disclosure information dealing with the

investigation of a crime).

Villarreal (en banc), 94 F.4th at 387. These

statements are incorrect. Texas Transportation Code

§ 550.065 only applies to “a written report of a

collision” and tabulated collision reports under

Section 201.806. Tex. Transp. Code § 550.065(a). It

does not apply to the identity of a suicide or crash

victim outside of such reports. Villarreal did not seek

a written report of a collision; she only asked for

information. And, no case or other authority had

hitherto applied Texas Government Code § 552.108 to

such a request.

So too, the court below claimed that “[t]he state

has a longstanding policy to protect individual privacy

in law enforcement situations that appear to involve

suicide or vehicular accidents,” Villarreal (en banc),

94 F.4th at 387, but the authorities it cited are

inapplicable or support Villarreal’s position. The

Texas Attorney General’s opinion from 1976 spoke

only of protecting the privacy of voluntary witnesses,

not the feelings of grieving families. Tex. Att’y Gen.

Op. ORD-127 at 7 (1976). The Texas Public

Information handbook cited by the court below was

issued after Villarreal’s arrest, and it says nothing

about the timing of access to a crash or suicide report.

Tex. Att’y Gen., Public Information Act Handbook 76

& n.363 (2022), https://perma.cc/6NJB-X5NM.

Finally, the more recent Texas Attorney General

opinion cited by the court below was also issued after

Villarreal’s arrest and, significantly, ordered the

information produced. Tex. Att’y Gen. Op. OR202236798, 2022 WL 17552725 (2022).

In fact, the 2022 Texas Attorney General’s opinion

suggests that the identities of the decedents may well

have been subject to mandatory disclosure under the

TPIA. As the Texas Attorney General explained in

2022:

[T]he right to privacy is a personal right that

lapses at death and therefore may not be

asserted solely on behalf of a deceased

individual. However, the United States

Supreme Court has determined that surviving

family members can have a privacy interest in

information relating to their deceased

relatives. See Nat’l Archives & Records Admin.

v. Favish, 541 U.S. 157 (2004).

Because the submitted information relates

to deceased individuals, the information may

not be withheld from disclosure based on the

deceased individuals' privacy interests. The

[Southwestern Institute of Forensic Sciences]

contends members of the deceased individuals’

families may have privacy interest in the

information. As of this date, we have not

received correspondence from any member of

any deceased individual's family asserting a

privacy interest in the information. Thus, we

have no basis to conclude any family member

has a privacy interest in the information at

issue. Therefore, the institute may not withhold

any portion of the information at issue under

section 552.101 of the Government Code in

conjunction with constitutional privacy and the

holding in Favish.

* * *

Because the submitted information pertains

solely to deceased persons, we find the institute

may not withhold any portion of the

information under section 552.101 in

conjunction with common-law privacy. The

institute must release the submitted

information.

Tex. Att’y Gen. Op. OR2022-36798, 2022 WL

17552725, at *2 (2022) (certain citations omitted).

In short, the decedent at issue in the 2022 Texas

Attorney General’s opinion had – and could have – no

privacy interest, as he/she was deceased. And, since

no member of the decedent’s family had come forward,

there were no privacy interests identified such that

the information could be withheld. But, of course,

there was no way the requester could have known that

no family had come forward until she asked for the

information. So too, there is no way that Petitioner

could have known that the information she sought

was exempt until she asked – especially where she

had already obtained the decedents’ names from nongovernmental sources.

It is also noteworthy that, as discussed supra § I.A,

Texas law does not entrust the exemption

determination to just any government official. In

order to invoke one of the exemptions and thereby

withhold information, a governmental entity must

obtain express permission from the state Attorney

General, unless the specific records requested were

previously deemed exempt by the Attorney General.

Tex. Gov’t Code § 552.301. In other words,

government officials are not supposed to invoke an

exemption on their own – the Texas Attorney General

must look over their shoulders and approve the

invocation of the exemption. That is because the

legislature did not believe that just any government

entity would – or even could – apply the exemptions

correctly. And yet, according to the court below, it was

reasonable to criminally charge a member of the

public for failing to correctly guess whether

information was subject to a TIPA exemption, and

whether the Texas Attorney General would so

determine.

III. The Texas Criminal Statute Is Not Limited

to the Use of “Backchannel” Sources.

The Fifth Circuit erroneously assumed that

Petitioner would not have run afoul of the Misuse of

Official Information statute (as it construed that

statute) but for the fact that she contacted “an illicit

backchannel” source – to wit, Officer Goodman – to

confirm the identities of the decedents. Villarreal (en

banc), 94 F.4th at 389. The court suggests that

Petitioner should have sought to confirm the

identities of the decedents through a formal TPIA

request, or by asking the City of Laredo’s “public

information officer,” who is “entrusted with reporting

to the press and public.” Id. at 387, 389.

However, under the statute as the Fifth Circuit

interpreted it, Petitioner could have been arrested for

doing just that. The statute does not limit liability to

those who use “backchannel” sources, nor does it

provide immunity for soliciting information from

authorized spokespeople. Rather, it prohibits any

person from “solicit[ing]” (i.e., asking for or trying to

obtain) information that is nonpublic under the TPIA

from any “public servant” with “intent to obtain a

benefit.” Tex. Penal Code § 39.06(c). Thus, at least

under the Fifth Circuit’s construction of the statute, if

Petitioner had asked the public information officer to

confirm the identities of the decedents on the days

they died, Petitioner would have been no less guilty of

“soliciting” nonpublic information from a “public

servant” under the terms of the statute. And, if

Petitioner had filed a TPIA request for public records

sufficient to show the decedents’ identities, that too

could have been an illegal request, if the information

were later deemed in retrospect to be exempt.

It cannot constitutionally be a crime to request

public information from the government, whether

through public records requests, questions directed to

government officials, or otherwise. If the Fifth

Circuit’s ruling to the contrary is allowed to stand,

states would be left free to pass similar statutes and

deploy them against those who request information

the government would rather not produce, inhibiting

public accountability.

This is not theoretical. One town in New Jersey

recently threatened to bring criminal charges against

a lawyer who complained that the town had ignored

his public records request. 15 The same town had

previously sued an 82-year-old woman who sought

records, including items as basic as travel

expenditures and copies of township resolutions. 16 If

allowed to stand, the Fifth Circuit’s ruling could

greenlight such intimidation at a much broader scale.

Such intimidation would not be directed just at

journalists. While data at the state level is difficult to

ascertain, a 1978 study from the Government

Accountability Office found 58% of analyzed FOIA

requests were commercial in nature. 17 A more recent

analysis by Professor Margaret Kwoka found that for

some agencies, as many of 95.6% of FOIA requests

were commercial. 18 Requesting information via state

and federal laws is critical to businesses that, for

example, wish to understand why new medicines were

denied approval, or why they lost competitive bids for

government contracts. All requesters of government

information must be protected from retaliation and

15 C.J. Ciaramella, “New Jersey Town That Sued a Woman

for Public Records Requests Now Wants Lawyer Prosecuted for

Same

Thing,”

reason.com

(Jan.

2023),

https://reason.com/2023/01/06/new-jersey-town-that-sued-awoman-for-public-records-requests-now-wants-lawyerprosecuted-for-same-thing/.

16 Id.

Comptroller General’s Report to the Subcommittee on

Government Information and Individual Rights, House

Committee on Government Operations, July 25, 1978, at ii.

18 Margaret B. Kwoka, Saving the Freedom of Information

Act (Cambridge Univ. Press, 2021).

harassment like that suffered by Petitioner if the

public records laws are to have their intended effect.

IV.Informal Requests for Information Like

Petitioner’s Must Be Protected, Because

Formal Procedures Under State Public

Records Laws are Neither a Timely nor

Adequate Means to Inform the Public.

The court below suggested that Petitioner should

have “take[n] time to go through local or TPIA

channels” to confirm the identities of the decedents,

even if doing so “sacrifice[d] the status of getting a

scoop.” Villarreal, 94 F.4th at 388. However, even

assuming that a formal TPIA request would not have

rendered Petitioner liable under the Misuse of Official

Information Statute, that vehicle is too slow to satisfy

the public’s interest in reporting on the news when it

is fresh.

It is true that Texas law mandates that

information requested under the TPIA be provided

“promptly,” meaning “as soon as possible under the

circumstances,” and sets 10 business days as a

presumptive standard of reasonableness. Tex. Gov’t

Code § 552.221(a). In reality, though, the state’s

compliance with the timeliness requirements of the

TPIA does not come close to these standards.

MuckRock has surveyed compliance times under all

the state records laws, and has found that in Texas,

the average wait time is 74 days:

How open is your government?, MuckRock,

https://www.muckrock.com/place/ (last visited May

15, 2024). So, had Petitioner gone through official

channels, she could have expected to wait many days

for the production of records confirming the identities

the

decedents – information

she

already

had – assuming the information was released at all.

The value of news is that it is new. Or, as this

Court put it in International News Service v.

Associated Press:

The peculiar value of news is in the spreading

of it while it is fresh; and it is evident that a

valuable property interest in the news, as news,

cannot be maintained by keeping it secret.

248 U.S. 215, 235 (1918); 19 see also, e.g., Bridges v.

California, 314 U.S. 252, 269 (1941) (recognizing that

a ban on reporting news “just at the time [the]

audience would be most receptive” would be

effectively equivalent to “a deliberate statutory

scheme of censorship”); Nebraska Press Ass’n v.

Stuart, 423 U.S. 1327, 1329 (1975) (Blackmun, Circuit

Justice) (“[E]ach passing day may constitute a

separate and cognizable infringement of the First

Amendment. The suppressed information grows

older. Other events crowd upon it. To this extent, any

First Amendment infringement that occurs with each

passing day is irreparable.”); Grove Fresh

Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893,

897 (7th Cir. 1994) (“The newsworthiness of a

particular story is often fleeting. To delay or postpone

disclosure undermines the benefit of public scrutiny

and may have the same result as complete

suppression.”).

Accordingly, informal queries to police officers,

politicians and other governmental officials are of

profound importance to reporting the news when it is

still relevant. Cf. Courthouse News Serv. v. Planet,

19 INS was abrogated on other grounds by Erie R.R. Co. v.

Tompkins, 304 U.S. 64 (1938).

947 F.3d 581, 594 (9th Cir. 2020) (“[A] necessary

corollary of the right to access is a right to timely

access. CNS’s reporting on complaints must be timely

to be newsworthy and to allow for ample and

meaningful public discussion regarding the

functioning of our nation’s court systems.”). Neither

the citizenry, nor the news media that represents it,

should be expected to be mere passive conduits for

whatever information government publicity offices

choose to provide, whenever they choose to provide it.

The Fifth Circuit’s decision to the contrary should be

reversed.

CONCLUSION

For the foregoing reasons, amicus respectfully

asks the Court to grant the petition for a writ of

certiorari.

May 22, 2024

Respectfully Submitted,