The Texas Attorney General’s Office has maintained its objection to the disclosure of information concerning notices the Harrison County Elections Office sent as part of a statewide voter citizenship review, citing an exemption in state law that allows a state agency to withhold records if it interferes with the detection, investigation or prosecution of a crime.
The AG recently mailed the News Messenger its official opinion after seeking and receiving a decision on the matter from the Office of the Attorney General’s Open Records Division. The letter was addressed to the Law Offices of Allison, Bass & Magee, which represents Harrison County in this matter.
The law office sought an opinion from the Attorney General after the News Messenger filed a Freedom of Information request on Feb. 13, seeking information related to the list of ineligible voters.
“On May 6, 2019, our office received an Attorney General Opinion regarding this matter. The responsive documents are being withheld in accordance with this open records determination,” J. Eric Magee, counsel for Harrison County informed the News Messenger in an email sent recently.
The denial of public access to the records is not only occurring locally, but statewide.
The Texas Tribune reported in a June 5 article that state officials continue to deny public access to the list of 100,000 voters selected for citizenship checks, citing a section of state law that allows them to withhold the information if it’s part of a pending criminal review.
“When former Secretary of State David Whitley launched a review of the Texas voter rolls for supposed noncitizens, his office marked almost 100,000 voters for two reviews — one by county officials to question their voter eligibility and another by the Texas attorney general’s office for possible criminal prosecution,” the article states. “The counties halted their work — though some never actually started — after a federal judge put the review on hold over questions of constitutionality raised in three federal lawsuits. But it appears that the state’s top prosecutor, who boasted his office would ‘spare no effort in assisting with these troubling cases,’ has not.”
According to the Tribune, more than a month after a settlement was reached in late April to scrap the review, Attorney General Ken Paxton’s office has indicated it is keeping open the criminal investigation file it initiated based on the secretary of state’s referral.
“That’s even after the list was discredited when state officials realized they had mistakenly included 25,000 people who were naturalized citizens and admitted that many more could have been caught up in the review,” the Texas Tribune reported.
“Paxton’s office made that indication in a letter this week denying The Texas Tribune’s request for a copy of the list of flagged voters,” the Tribune said.
The News Messenger sought a Freedom of Information request in light of the noncitizens list that was shared with county election offices by the Texas Secretary of State’s Office and federal lawsuits that were filed by civil rights groups as a result.
One of the lawsuits listed the Harrison County Elections Administrator, along with other counties, as a defendant. The lawsuit alleged that the state and counties have discriminated against naturalized citizens and people of color by flagging their voter files for citizenship review.
The News Messenger’s FOI request asked for the number of Harrison County registered voters that were included on the list of people that were flagged by the state as potential non-U.S. citizens.
It also asked for the number of notice letters sent to potential non-U.S. citizens informing them that they must report to the local elections office with proof of citizenship within a specific amount of days lest their registration be cancelled.
The request additionally asked about the date the notices were sent to verify citizenship. It asked whether the review posed any issues or confusion among voters who have come to the office to verify citizenship, and if so, how were the issues handled. Lastly, it inquired how many on the list actually turned out to be naturalized citizens.
According to the AG’s opinion, which was recently sent in response to Harrison County’s counsel, where a governmental body has custody of information relating to a pending case of a law enforcement agency, the custodian of the records may withhold the information if it provides this office with a demonstration that the information relates to the pending case and representation from the law enforcement agency that it wishes to have the information withheld.
“The OAG has advised this office the responsive information relates to a pending criminal investigation conducted by the OAG’s Election Fraud Section of the Criminal Prosecutions Divisions and release of the information would interfere with the pending investigation,” James Graham, Assistant Attorney General for the Open Records Division informed stated. “Based upon this representation, we conclude the release of the information at issue would interfere with the detection, investigation or prosecution of a crime.
“Accordingly, the county may withhold the submitted information under section 552.108(a)(1) of the Government Code on behalf of the OAG,” Graham informed.