Attorney General Ken Paxton denied Friday that he violated the state’s open records law, rejecting allegations by a local prosecutor that his office should release communications from the week of the Jan. 6 Capitol attack.
Paxton had given a speech at a pro-Trump rally just hours before the violence erupted in Washington, but his office hasn’t released messages to Texas media outlets that sought the records under the Texas Public Information Act.
The district attorney launched an investigation after top editors at several of the state’s largest newspapers wrote a joint complaint about Paxton’s denials of their information requests. Those papers are the Austin American-Statesman, The Dallas Morning News, the Fort Worth Star-Telegram, the Houston Chronicle and the San Antonio Express-News.
The district attorney’s office warned Paxton last week that it would file suit if his office did not fix violations of the open records law within four days. In a letter to the Travis County district attorney’s public integrity unit, Paxton’s office called the claims “meritless” and said there was “no violation to cure.”
“Frustrated that they have failed to uncover anything worth reporting following ‘numerous records requests to AG Paxton(‘s) office for various documents,’ complainant newspaper editors have sought to leverage your office’s authority to further their fishing expedition, or worse, manufacture a conflict between our respective offices that will give rise to publishable content for the complainants’ media outlets,” wrote Paxton’s general counsel, Austin Kinghorn.
José Garza, Travis County district attorney, is a Democrat. Paxton is a Republican running for re-election this year. He is currently facing the fiercest scrutiny of his decades-long career, with several GOP challengers, three state criminal indictments, allegations of an extramarital affair and a pending FBI bribery investigation.
Paxton has denied any wrongdoing. A spokesperson with the district attorney’s office confirmed officials received the letter but declined to answer further questions.
The Texas Public Information Act guarantees the public’s right to government records, even if those records are stored on personal devices or public officials’ online accounts. The attorney general’s office enforces this law, determining which records are public and which are private.
A coalition of Texas news outlets in March sought to bring attention to the issue by reporting a joint story on the denied requests for information and their finding that the office lacked a policy for releasing work-related messages stored on Paxton’s personal devices or accounts.
On Jan. 4, five newspaper editors filed a complaint asking the district attorney to investigate the alleged violations. Anyone who files an open records request in Texas can also file a complaint with a local prosecutor if they believe a public agency is withholding information in violation of the Public Information Act.
The district attorney’s office had thoroughly reviewed the editors’ complaint and agreed with each concern they raised, according to a Jan. 13 letter to Paxton from Jackie Wood, director of the public integrity and complex crimes unit.
Wood said Paxton’s office was violating the law by claiming all his messages around the time of the Jan. 6 rally fell under attorney-client privilege. Wood noted nearly 500 pages of communications to and from First Assistant Attorney General Brent Webster during that same time frame had been released, and no exemption was cited for those records.
The attorney general’s office responded that all non-privileged communications were released and that complainants did not have evidence that Paxton or his office has not complied with the law.
In another example cited by the media outlets, a Dallas Morning News reporter sent Paxton a work-related text message in February and another reporter later requested all the attorney general’s messages for that day.
Paxton’s office responded to the open records request by saying no responsive messages existed. A spokesman for Paxton later said the attorney general doesn’t have to retain “unsolicited and unwelcome text messages to personal phones.” Wood, in her letter, said that the attorney general’s office had violated the law by not retaining or providing work-related messages on his personal devices.
In the letter Friday, Paxton’s office reiterated that contention by saying if the message was public information, it would be considered transitory and could be deleted.
Wood also agreed with the editors’ complaint that Paxton appeared to be releasing copies of other people’s communications in response to requests for his text messages and wasn’t able to provide his own copy.
For example, in response to an information request by reporters, Paxton did not provide his own text messages with officials at the attorney general’s office in Utah — where he and his wife traveled during the February freeze — and instead turned over a copy of another person’s text to Paxton.
The attorney general’s office did not explain why Paxton didn’t provide his own version of the text exchange.
“The PIA (Public Information Act) does not obligate a custodian of records to provide every version of transitory information that existed at some point in time if those versions are no longer maintained at the time of the PIA request,” the letter read.
Most of the messages sought by reporters focus on his communications during a nearly weeklong time frame around the Jan. 6 riot. Hours before the Jan. 6 attack, Paxton had stood at a lectern in front of a crowd of thousands at a pro-Trump “Save America” rally, promising to “not quit fighting” the results of the 2020 election.
A month earlier, Paxton challenged the general election results in four battleground states won by President Joe Biden: Georgia, Michigan, Pennsylvania and Wisconsin. In the U.S. Supreme Court lawsuit, he argued the states made unconstitutional changes to their election laws amid COVID-19. The case was rejected by the court because of lack of standing.
The House select committee investigating the Jan. 6 attack has unearthed dozens upon dozens of text messages and other communications, shedding new light on the timeline of that day’s events as well as efforts by some urging the former president to de-escalate the event. Little is known, however, about Paxton’s activities that week.
Eleanor Dearman, staff writer with the Fort Worth Star-Telegram, contributed to this report.