Attorney General Greg Abbott Remarks to the Freedom of Information Foundation of Texas Austin, Texas August 13, 2010 (Note

: Attorney General Abbott occasionally departs from his prepared remarks.) (Introduction by Katherine “Missy” Cary, chief of the General Counsel Division, Office of the Attorney General) Thanks, Missy, for those kind words. I appreciate your many years of service to the State of Texas and the Office of the Attorney General—especially your leadership on open government issues. As you all may know, Missy is the chief of our General Counsel Division. Before that, she served as the chief of our Open Records Division. And prior to that role, she was our Public Information Coordinator. Back in 2003, the Freedom of Information Foundation recognized Missy for all of her tireless work and vast expertise in open government issues, when you gave her the James Madison Award for that year. When it comes to open government issues, we have a wealth of talent at the Attorney General’s office. You have already heard from two of the top open government experts at our office—and in the whole state of Texas—in Mandy Crawford and Hadassah Schloss. These two work tirelessly to ensure that the door to government in Texas stays open. Congratulations to Joe Larsen, the 2010 James Madison Award recipient, and to the Texas Gavel Awards recipients. As a past recipient of the James Madison Award myself, I can tell you that it is an unparalleled honor. A lot has changed since we last met for this annual conference. Since then, my daughter became a teenager. Having a teenage daughter has given me two things: grayer hair and a thinner wallet. Another thing that has changed since we last met is the escalation of the public discussion and debate about the states’ authority versus federal power. About individual determination versus governmental control. About Texas versus Washington. And about the federalist vision articulated by Madison versus a federal government with limitless power. Just this past Sunday, the Austin American-Statesman featured a front page story titled, “Challenges Keep State and U.S. at Odds: Anti-Washington Theme Pervades Attorney General’s Maneuvers.” What’s going on? What’s behind this? The truth is, there is a common thread between our challenges of Washington overreach, on the one hand, and our shared commitment to free press and open government on the other hand. That common thread weaves timeless principles that undergird all our legal challenges against an overreaching government—whether it be an overreaching federal government, dictating unprecedented mandates on its people; or oppressive actions by local governments that try to deny public access to information about what their government is doing.

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There is a tailor who weaved that common thread, whose genius formulated principles that apply with equal vigor today and at the time our democracy was created. And that is James Madison. The James Madison who was the ultimate guardian of the press from suppressive actions by government, is the same James Madison who was the ultimate guardian of states’ authority and individual liberties from an overreaching federal government. James Madison was the champion of access to information. He emphasized that, “Knowledge will forever govern ignorance: And a people who mean to be their own governors must arm themselves with the power which knowledge gives.” That same Madison was one of the chief architects of a limited federal government and expansive state authority. It was Madison who declared that, “The powers delegated by the Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite.” Those principles outlined by Madison are the principles that drive actions like our challenges to the federal health care takeover and the EPA’s federalization of the state air permits. As we detail in the lawsuit challenging the constitutionality of the federal healthcare legislation, the new law represents an unprecedented intrusion on the sovereignty of the states and the freedom of their citizens. As such, the new law threatens the very core of Madison’s vision of dual sovereignty, under which the federal government is to exercise only those limited powers given it by the Constitution, with all other powers reserved to the states or to the people. Justice Anthony Kennedy recently explained that this dual sovereignty was the unique contribution of the Framers to political science and political theory. And the Supreme Court wrote in 1997 that the system was designed to achieve a healthy balance of power between the states and the federal government—to reduce the risk of tyranny and abuse from either front. We contend that the healthcare legislation threatens the risk warned of by the Supreme Court—by transforming our federal government from one of limited, enumerated powers into one of limitless authority over states and their citizens. This is exactly what Madison warned about. He said that, “(A)mbitious encroachments of the federal government, on the authority of the state governments, would not excite the opposition of a single state or of only a few states. They would be signals of general alarm.” What you are hearing, I suggest, are those signals of general alarm that Madison forewarned of. We have taken up the gauntlet thrown down by Madison. Madison was the ultimate guardian of liberty. Liberty is the reason we exist as a country. It is why our forefathers fought for independence. It is what they enshrined in the Constitution, what they guarded in the Bill of Rights. Liberty is also the underpinning of a free press. Without it, there is no real free press. Without a true free press, there is no true liberty. As James Madison said, “(T)he advancement and diffusion of knowledge…is the only guardian of true liberty.” An informed electorate is essential to an effective democracy. A free press is a cornerstone of an informed electorate. An oppressive, overreaching government is antithetical to both. 2

That’s why, just as we have brought legal challenges against government actions that trample our liberties and infringe upon state authority, we have been just as aggressive—and just as vigilant—in our legal actions against governmental bodies that try to hide their conduct from the people they govern. You already know about our efforts, such as:
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Obtaining the first known criminal conviction of a public official for violating the Public Information Act; Ruling that the Comptroller had to disclose state employees’ dates of birth; Ruling that Governor Perry had to disclose some of his budget papers that he wanted to keep under wraps; and Our recent ruling that a Bexar County commissioner had to release emails about public business, even though they were sent from a private email account.

And we have dealt with the repeat offender known as the City of Dallas. Dallas consistently ignores statutory deadlines. In fact, over a nine-year period, our office cited the City of Dallas more than 700 times for missing their deadlines for requesting rulings. We went all the way to the Texas Supreme Court to force the City to stop the delays and follow the law. The Freedom of Information Foundation filed an amicus brief in that case. Unfortunately, the Supreme Court ruling was inconclusive. And, true to form, the City is back to its old tricks. In just the first half of 2010, we found that Dallas has violated the Public Information Act’s statutory deadlines about 30 times. And incredibly, they are suing us again. During the past few years, we have fought many battles to preserve open government. But no fight is bigger—or more important to the future of open government—than the one we are currently waging to defend the constitutionality of the Open Meetings Act. As you know, several cities and city officials across Texas filed a lawsuit in federal court to overturn the Open Meetings Act. With tremendous irony, the plaintiffs claim that the Open Meetings Act violates their First Amendment right to free speech. We argue that the true meaning of the First Amendment is to protect citizens against government oppression, not to protect government against citizen oversight. The Open Meetings Act doesn’t restrict free speech. It restricts only secret speech. As we put it in our court briefing, openness in government is a First Amendment value, not a First Amendment violation. Put differently, the Open Meetings Act doesn’t prevent anyone from speaking. It merely requires public officials to do so openly, not in hiding. The future of this case will determine the lasting vitality of the ideals championed by James Madison. Thanks to the Freedom of Information Foundation for being by our side in this fight, and for filing an amicus brief in support of our position. Your strong voice in this case is very important in the defense of the Open Meetings Act. As you can see, our fight for the First Amendment is—at the same time—never ending and ever threatening. But I’m sure you agree with Madison that it is a fight that must be waged, 3

because vigilance against government encroachment on the First Amendment is an essential bulwark to secure the other liberties we enjoy. Some of you may be less certain about our other efforts to protect the Madisonian principles that established a Federalist system where the federal government had only limited, enumerated authority—with the bulk of authority being reserved to the states. To the extent you have doubts, I urge you to consider Thomas Jefferson’s warning: “A departure from principle in one instance becomes a precedent for a second.” If you truly believe Madison was a genius whose design was critical to our collective liberty, then you cannot revere his approach on the one hand and discard it on the other. We obviously live in a constantly dynamic world, where technologies change as do social standards. And just as the invention of new devices cannot be allowed to erode our legally protected access to government information, nor can the passage of time be permitted to erode the Federalist system conceived by Madison. Ideals that are fundamental principles don’t change. They don’t need to change. They withstand the test of time. Things like the Constitution, the noble principles of the Declaration of Independence, and the immutable truths articulated by James Madison. Our nation was founded on those immutable principles. Our devotion to those principles for over two centuries has left us the envy of the world. Our ongoing championing of those principles is not a pick-and-choose task. It’s a robust challenge, with nothing less than liberty at stake. 1,712 words

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