For the latest award for creative FOIA avoidance (see also The ever popular enemies exemption and Plano Texas Economic Development Board explores new ways to avoid records requests) we return to Texas, where the city of Arlington is playing musical records in an attempt to evade the public records law. The city opted to move their criminal records, including police records, prosecution records and trial records from the local police department to the local court house. Why, you may ask, would a city choose to transfer control of such critical records? The reality is that the Texas Public Information Act specifically does not include the judiciary. By transferring control of the records, Arlington is essentially moving the records from a department which is subject to FOIA to one which is not.
However, local FOIA advocates are not sitting by and letting this happen. The Dallas law firm Sullo & Bobbitt has filed suit in an attempt to prevent the transfer of the records. Bill Aleshire, the attorney representing the firm justified the suit, telling the press, “Imagine if every city did this. You would have municipal judges deciding how and what information should be released.” See: “Arlington sued over access to criminal records”
This is obviously a dangerous precedent and one that should be prevented. The transfer of public records to organizations and entities which are not subject to FOIA laws has typically been prevented by both litigation and legislation. In fact, Texas law already prevents the concealment of public records in private agencies by including in its definition of public body all private entities which receive funds or are controlled by governmental agencies. The fact that Texas law attempts to prevent the concealment of records in private agencies but fails to address the issue presented by the transfer of records to a body that is publicly funded and considered a branch of the government constitutes a serious negligence on the part of the Texas legislature which will hopefully be corrected by the courts soon.