Ken Paxton faces a deadline to respond to journalists’ open-records requests

Newspapers across the state filed open-records requests for the Texas attorney general’s emails and text messages from his time in Washington during the Jan. 6 insurrection.

By Rhonda Fanning, Michael Marks & Shelly BrisbinJanuary 14, 2022 12:41 pm,

The Travis County district attorney’s office has taken a complaint by journalists directly to the Texas attorney general’s office. Texas Attorney General Ken Paxton has refused to release records requested by the journalists under the Texas Public Information Act. The DA’s office believes Paxton has violated the law.

Jackie Wood is the director of public integrity and complex crimes in the Travis County district attorney’s office. She hand-delivered a letter to Paxton’s office on Thursday.

Records requested by editors at Texas’ biggest newspapers, including The Dallas Morning News, include Paxton’s emails and text messages from last January, when he spent time in Washington at the pro-Donald Trump rally that preceded the Jan. 6 insurrection.

Lauren McGaughy is an investigative reporter for The Dallas Morning News. Listen to the interview above or read the transcript below.

This transcript has been edited lightly for clarity:

Texas Standard: Can you tell us a little bit more about the records that have been requested from the attorney general?

Lauren McGaughy: Last year, after the Jan. 6 rally that preceded the attack on the Capitol, there were a lot of reporters filing requests of a lot of state officials who might have attended the rally. And we realized that a lot of us were asking for the same things, just general requests for text messages and emails. When Attorney General Paxton and his top aides were in Washington. So after we realized we were asking for the same thing and all summarily being denied access to those communications, we decided to write a story about it, which we did in March of 2021. And then this complaint succeeded that.

That’s a pretty big move, right? Can you think of any other time in recent memories that all of the Texas editors had had gotten together in this way?

I’m not sure. I talked to a couple of public records experts about whether this was unprecedented or not. Texas has had a very interesting history, so it’s hard to say that. But they did say that they couldn’t remember, at least within the last several decades, whether the attorney general himself and his agency had been accused of violating the open records law. And this is even more important because the attorney general’s office is the agency that oversees the enforcement and implementation of open records. They decide what is private and what is available for public view. And so it’s even more concerning that, Paxton and the agency might not be releasing all of the communications that the public are owed.

How then did the Attorney General’s Office respond to that request?

The newspaper editors, filed the complaint on Jan. 4, I believe of this year, and we have not received a response. the district attorney’s office gave Paxton and his agency four days to respond and we’ll see what they say. But we asked for comment yesterday. Didn’t hear from the agency, and we haven’t seen any tweets or anything from Paxton either, so not really sure what’s going on his head at this time.

Is there evidence that shows the attorney general has the types of records that should be part of this request, but that he is withholding?

That’s what’s so interesting about this request, not just according to me and the folks that have been trying to get these communications. But the open records experts said it’s pretty rare to have proof that you’re asking for a communication that does exist and then you’re denied that communication.

There is a specific instance, and it’s not related necessarily to the Jan. 6 rally and attack on the Capitol. But we at The Dallas Morning News were concerned that Paxton was not releasing communications on his personal cell phone that might be subject to open records; requests. This would be official business – texts about official business. So my colleague sent a text to Paxton’s cell phone that explicitly used those words. And then I requested any copies of any communications from that particular day that would be subject to public disclosure just from that particular cell phone number. And we were told that there were no responsive records. And when we pushed back and said, but we in fact do know there is a text because we sent it, we were told by Paxton’s own agency that they see unsolicited and unwanted communications as not subject to their retention schedule, which made us concerned that they are cherry-picking what they deem even necessary to keep or delete. So that that was particularly concerning to us.

The letter says the attorney general has four days to cure the violations. What happens then?

So the complaint response that we received yesterday said that if Paxton doesn’t respond in four days that the Travis County district attorney will take him to court. This is a civil matter, not a criminal matter. And we’ll just have to wait and see what Paxton chooses to do. He has the option to go to court. He has the option to release the records that we requested that may be subject to public disclosure, or even go further and release additional communications that we didn’t even ask for. So it’s really up to the attorney general at this point.

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