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STATEMENT OF KATHERINE MINTER CARY, CHIEF, OPEN RECORDS DIVISION, OFFICE OF THE TEXAS ATTORNEY GEN- ERAL, AUSTIN, TEXAS

Ms. CARY. Thank you. Thank you, Senator Cornyn, thank you, Senator Leahy, for letting me appear before you today. For the record, my name is Katherine Minter Cary and I am the Division Chief of the Open Records Division at the Texas Office of Attorney General. Again, it is an honor to appear before you today and con- vey to you what I do every day in Texas.

First, let me convey for the record Texas Attorney General Greg Abbott’s strong support for the bipartisan OPEN Government Act. As you can tell, General Abbott is here today to offer you that sup- port.

As I said, I have the pleasure and the responsibility of working on a daily basis to apply, educate, and enforce one of the strongest, most effective public information acts in the United States of Amer- ica. I want to state unequivocally to you that unfettered access to government is an achievable reality. Texas has over 2,500 govern- mental bodies scattered throughout the State, but every single day, I oversee a process that succeeds in getting thousands of pieces of information into the public’s hands without controversy. At last check, from the statistics I got before I left the office, two million open records requests are fulfilled every year in Texas.

Under the Texas Public Information Act, as under FOIA, re- quested information is supposed to be given out promptly. Texas law defines this to mean as soon as possible and without delay. Any governmental body that wants to withhold records from the public must, within ten days, seek a ruling from the Texas Attor- ney General’s Office, specifically from my division, the Open Records Division.

In Texas, a governmental body that fails to take those simple re- quired procedural steps to keep information closed has waived any exceptions to disclosure unless another provision of Texas law ex- plicitly makes the information confidential. This waiver provision, above all else, has provided meaningful consequences to prevent government from benefitting from its own inaction. Under Texas law, if a governmental body—either State, local, county—dis- regards the law and fails to invoke these provisions that specifi- cally protect certain categories of information from disclosure, it forfeits its right to use those disclosure exceptions.

The OPEN Government Act would institute a very similar waiv- er provision and it attempts to strike the careful balance as not to negatively affect third parties’ rights or violate strict confiden- tiality. The Texas experience shows that finding this balance is re- alistic, fair, and workable.

Our pro-openness system of disclosure has boasted great success, and without dire consequences, for 32 years through innumerable high-profile events, including the Space Shuttle Columbia disaster, the suicide of an Enron executive, the death of 19 immigrants in a heated tractor trailer in South Texas, and several very high-pro- file front page murder trials.

In 1999, governmental bodies in Texas sought roughly 4,000 rul- ings from you, the Attorney General Cornyn. Last year, my division

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