Featured: A Phantom quadcopter drone in flight. With their maneuverability and small size, the largest use of quadcopters in the United States has been in the field of aerial imagery. Quadcopter unmanned aerial vehicles (UAVs) are suitable for this job because of their autonomous nature and huge cost savings.
First National Drone Safety Awareness Week highlighted by FAA as a federal lawsuit in Austin targets Texas law for allegedly discriminating against “image journalists”, reports Omar Ochoa
With the week of November 4 through November 10, 2019, highlighting the first National Drone Safety Awareness Week, a federal lawsuit is underway in Austin that challenges Texas’ drone law, arguing it unconstitutionally restricts visual journalists, reports Edinburg City Attorney Omar Ochoa.
The legal action, filed on Thursday, September 26, 2019, was brought by the National Press Photographers Association, the Texas Press Association and an independent journalist filed a lawsuit in Austin federal court challenging a Texas law— Texas Government Code Chapter 423 — that makes it a crime for visual journalists and others to use drones for newsgathering and other similar activities.
The federal lawsuit is available for public review at:
In general, a drone is defined as an unmanned aerial vehicle (UAV) (or uncrewed aerial vehicle). It is an aircraft without a human pilot onboard and a type of unmanned vehicle. UAVs are a component of an unmanned aircraft system (UAS); which includes a UAV, a ground-based controller, and a system of communications between the two. The flight of UAVs may operate with various degrees of autonomy: either under remote control by a human operator or autonomously by onboard computers.
National Drone Safety Awareness Week, sponsored by the Federal Aviation Administration, was designed to help educate the public about drone safety by highlighting how key sectors of the drone community are engaging with the public and spreading awareness throughout all 50 states on specific focus areas. It can also be an opportunity for drone stakeholders and users to kick off new safety initiatives.
Ochoa, as a public service, provides information about Texas laws that promote open government, said news about the federal lawsuit and the National Drone Safety Awareness Week, are important because drone technology is going to continue to affect the public’s access to information as well as privacy rights.
“Here at home, Edinburg’s city leadership long has demonstrated its support for transparency in government at the local level, such as through the posting on our website of the entire city council agenda packets, through broadcasting live and maintaining on our city website the full meetings of the city council and Edinburg Economic Development Corporation Board of Directors full meetings,” Ochoa added. “Neither of these major acts of government transparency is required by state law, but the mayor and city council members fully support informing our citizens of the actions of their local government at all times.”
According to the news release distributed by the Freedom of Information Foundation of Texas, and titled “Federal lawsuit challenges Texas drone law, arguing it unconstitutionally restricts visual journalists”:
Texas’s drone law is among the most restrictive in the country. Chapter 423 makes it a crime and imposes civil penalties on journalists’ use of drones to capture images of a person or privately owned real property, regardless of where the drone is located. The restriction is on “intent to conduct surveillance,” a phrase not defined in the statute that is vague enough to include most newsgathering activities and chill legitimate speech.’
A subsection of the code provides more than 21 exemptions – including oil and gas, agribusiness, and real estate brokers – from the criminal and civil liability otherwise imposed, but notably does not exempt the use of drones to capture images for the purpose of visual journalism or newsgathering. The penalties for violating Chapter 423 range from a $500 fine to a fine of up to $2,000 and/or 180 days in jail for a single image; each image constitutes a separate offense, both when captured and again if it is used or distributed.
The lawsuit also challenges a provision of Texas’ drone law that completely bans all drone use at an altitude lower than 400 feet (above ground level) for any purpose above “critical infrastructure facilities,” “correctional facilities,” and “sports venues.” “Critical infrastructure facilities” are defined as 19 different kinds of facilities, including oil and gas drilling sites and pipelines, correctional facilities, animal feedlots, and petroleum and alumina refineries. The 400- foot floor acts as a per se ban of drone operations because, under Federal Aviation Administration regulations, drones are not permitted to fly higher than 400 feet above ground level.
The suit alleges that the law violates the First Amendment because it is a restriction on speech that is not narrowly tailored in furtherance of the substantial governmental interest. The suit also argues that the law violates the Supremacy Clause because it infringes upon the FAA’s exclusive primacy over national airspace.
The real purpose of the law, the suit argues, is to suppress news coverage of potentially dangerous or embarrassing conditions at these sites of public interest. This includes, for example, the negative environmental impacts of some oil, gas, and chemical manufacturing facilities.
Alicia Calzada, NPPA’s deputy general counsel, testified against the bill at a 2013 legislative hearing. “We advised the legislature of the chilling impact of this law when they were considering it and our warnings have come true. Our members worry about the legal risk every time they put a drone in the air—and some of our members avoid using drones in this state altogether.”
The Texas Legislature passed Chapter 423 in 2013 over forceful opposition from visual journalists across the state, including the National Press Photographers Association and the Texas Press Association, who advised the Legislature of the unconstitutional restrictions the proposed law would impose and the chilling effect it would have on newsgathering activities and speech.
The Texas Legislature amended Chapter 423 in 2015, 2017 and 2019. The amendments added additional exemptions from the law’s surveillance provisions — but not for journalists — and added two sections that ban the use of Unmanned Aerial Vehicles above any location classified as “a correctional facility, detention facility, or critical infrastructure facility” or a “sports venue.” Independent journalist and Plaintiff Joseph Pappalardo covered the barriers created by Chapter 423 for visual journalists in Texas for the Dallas Observer in an award-winning investigative piece.
“The National Press Photographers Association has been an active stakeholder in the use of drones for newsgathering for many years, working cooperatively with the FAA and other government agencies as well as first responders and news organization to create common-sense rules,” said Mickey H. Osterreicher, NPPA general counsel.
“It is extremely unfortunate that Texas has chosen to impose such ‘constitutionally suspect’ restrictions on drone use despite our best efforts,” he added.
Texas’s Drone Law has had a serious chilling effect on visual journalists in the State of Texas and is unquestionably hampering important newsgathering activities. For example, NPPA member Brandon Wade was hired by the Center for Investigative Reporting to photograph a facility housing immigrant children where CIR reported children had been mistreated. Because of the restrictions and vagueness of Texas’s drone law, Wade had to limit where he flew his drone, which hampered his efforts to capture newsworthy images of the treatment center. NPPA member Billy Calzada was using a drone to capture images of the aftermath of a deadly fire that killed six people in San Marcos, Texas when he was threatened by police with Ch. 423.
These are just a few examples of the chilling effects of Texas’s Drone Law. Had its restrictions not been in place, the suit alleges, plaintiff Pappalardo would have used his drone to take aerial photographs to aid in coverage of newsworthy topics like Hurricane Harvey (including a panic at the gasoline pumps that the storm caused); flood and wind damage in other storms, house fires, construction projects; urban sprawl; the removal of homeless encampments; the route a proposed toll road would take dumping sites for dead animals; and the removal of a Confederate statue from a public park. Instead, Pappalardo allowed his federal drone license to expire, since Chapter 423 prevented him from using his drone from journalistic purposes.
The plaintiffs in the case are represented by Yale Law School’s Media Freedom and Information Access Clinic (MFIA), Public Justice, and Jim Hemphill of Austin law firm Graves Dougherty Hearon & Moody, P.C.
FREEDOM OF INFORMATION FOUNDATION OF TEXAS
The Freedom of Information Foundation of Texas strives to ensure that the public’s business is conducted in public and protects the liberties of free speech and press guaranteed by the First Amendment.
They assist individual citizens, journalists, and government officials through educational seminars, an annual conference and a speakers bureau. They also file briefs in important legal cases addressing open government and freedom of speech and press. The Foundation’s FOI Hotline connects Texans with volunteer attorneys who explain open government laws. Their Light of Day project teaches college students how to use public records in their reporting. They are a non-profit 501(c)3 organization.
According to the Texas Freedom of Information Foundation of Texas, two major state laws in Texas help promote and protect the people’s right to know about the activities of their governments and its elected and appointed leaders.
Texas Public Information Act
The Texas Public Information Act applies to all governmental bodies, including all boards, commissions, and committees created by the executive or legislative branch. It also may apply to a body that is supported by public funds or that spends public funds. Private organizations that hold records for governmental bodies also are covered. However, private individuals and businesses are not covered even though they supply goods or services through a government contract.
Types of Information
Public information refers to information collected, assembled, produced or maintained in the course of transacting public business. It may be on paper or film or in electronic communications such as emails, Internet postings, text messages or instant messages.
Some information is not open to the public. These types of information are listed as exceptions in the Texas Public Information Act. They include some information in personnel records, pending litigation, competitive bids, trade secrets, real estate deals and certain legal matters involving attorney-client privilege. Attorneys’ fees paid by a governmental body are generally public.
Generally, the front page of a police report is public. Records that would hinder the investigation or prosecution of a crime if they are released are exempt from disclosure.
Information collected and maintained by the judiciary is not covered by the Texas Public Information Act. That information is governed by public access rules set by the Texas Supreme Court and other applicable rules and laws.
Making a Request
Filing a request under the Texas Public Information Act is as simple as asking the government agency in writing for the desired information. The request can be made through a letter or via email or fax. It does not need to contain any particular language, but it’s important to be clear. Try to be specific. This will help produce the information that is sought and can eliminate the need later for narrowing down a request that is too broad. The governmental body is not allowed to ask why the information is being requested.
A governmental body or agency can charge for copies of the information, but the fee must be reasonable and cannot be used to discourage someone from asking for information. The requester is entitled to an itemized bill if the charge is more than $40. A governmental entity can also waive copying charges. For more information, see the Texas Cost Rules tab in the Resources section of the website for the Freedom of Information Foundation (http://foift.org). To avoid charges, the requester can ask to view the records in person on the premises of the governmental body.
Public information is supposed to be released “promptly.” There is a misconception that a governmental body or agency has 10 days to release information. The 10-day mark is the deadline for a governmental body if it contends the information is not public, to ask for an attorney general’s decision allowing it to withhold the records. (Texas’ open records law is stronger than those in many other states in that if a governmental entity wants to withhold information, it has to ask the attorney general for permission to do so.) After a ruling is sought, the attorney general then decides within 45 days. The person making the original request can also offer written comments to the attorney general. If a governmental body fails to seek an attorney general decision in time, the information is presumed to be public.
Appealing an Open Records Decision
When the attorney general’s office agrees with a governmental body that information can be withheld from the public, the person making the original request has the option of filing a lawsuit in state district court to attempt to have the information released.
The Texas Open Meetings Act is detailed in Chapter 551 of the Government Code. It states that governmental bodies must hold open meetings unless there is an authorized reason for a closed session, also known as an executive session.
Key provisions of the act are as follow:
Governing boards, commissions, agencies and other bodies created within the executive and legislative branches of government are subject to the Texas Open Meetings Act. Commissioners courts, city councils, school boards and certain nonprofit corporations providing public services or spending taxpayer money are among the entities covered. Certain property owners’ associations also are subject to the law.
A quorum refers to a majority of members of a governing body unless a quorum is defined differently by applicable law or rule or charter of the body. A quorum must be present for the body to take action.
Posting of Notice
The governmental body must give the public notice of the date, time, place, and subject of an upcoming meeting. The notice must be posted in a place readily accessible to the general public at all times at least 72 hours before the meeting. In case of an emergency or “urgent public necessity,” a meeting notice or addition to a meeting agenda may be posted at least two hours prior to the meeting. The governmental body must clearly identify the emergency.
Other Exceptions to Posting Law
Boards or commissions with statewide jurisdiction must have their meeting notice posted on the Internet by the secretary of state at least seven days before a meeting. Committees of the Texas Legislature are not subject to the meeting notice rules above. Their rules are set by the Texas House and Senate.
Closed, or executive, sessions may be held by a governmental body in certain situations. Executive sessions are permitted when a body is meeting with its attorney on litigation or a settlement offer; deliberating personnel matters; deliberating the purchase or lease of property; discussing certain financial contract negotiations, or discussing the deployment of security devices. Several other exceptions to open meetings are also contained in the Texas Open Meetings Act.
Deliberations Between Meetings
Under a new provision of the act that took effect Sept. 1, 2013, members of a governing body are allowed to communicate with one another about public business between meetings if they do so in writing and on a publicly accessible online message board. The message board must be prominently displayed and easy for the public to find on the government entity’s website. Officials may not take action on the message board. That must wait for a posted meeting.
The Texas Open Meetings Act now allows for members of a governmental body to attend a public meeting via a video conference call. The head of the board or commission must be physically present in the designated meeting place and the public must be given access to that meeting space. The public must be able to witness the comments and actions of those officials attending the meeting remotely via audio and video equipment and be able to participate via videoconferencing just as they would at a traditional public meeting.
For more on this and other Texas legislative news stories that affect the Rio Grande Valley metropolitan region, please log on to Titans of the Texas Legislature (TitansoftheTexasLegislature.com).