Work to fix Texas public information laws is underway

posted on 10.09.2017

It may seem a long way off, but the effort to ensure a successful 2019 Texas legislative session for Texas newsrooms has already begun.

Broadcasters interested in improving the Texas Public Information Act must collect stories now that document just how difficult it is to report on the spending of taxpayer dollars since two 2015 Texas court decisions took place.

TAB President Oscar Rodriguez issued that call to action at TAB’s Annual Convention in August and attorney Laura Prather of TAB Associate Member law firm Haynes Boone LLP reiterated it during TAB’s Public Information Act Update webinar last week.

TAB has archived this webinar online and a PDF of Prather’s slide deck is available by emailing TAB.

Prather detailed TAB and others’ efforts in the recent legislative session to undo the damage of two Texas court decisions, Boeing v. Paxton and Greater Houston Partnership v. Paxton.

The Boeing decision expanded the competitive bidding exception in the Texas Public Information Act by allowing private entities to claim the exception and allowing the exception to apply to final, awarded government contracts. 

As a result, the details of significant taxpayer-funded expenditures contained in government contracts are largely are unavailable to report.

The GHP decision redefined when publicly-funded private entities are subject to the Texas Public Information Act. 

The Texas Supreme Court abandoned a three-decade-old standard which determined when private entities receiving government funds to perform public services had to divulge how taxpayer funds were spent.

The court said the TPIA only applies to private entities “sustained” by public funds – a higher threshold.   

Prather said Hurricane Harvey has brought into sharp focus “the inability to gain information on how many is being spent by non-profits and how many is being spent by government contracts to third parties.”

The City of Houston is already under fire for a lack of transparency in its publicly-funded debris removal contracts awarded to third parties.

“I believe firmly that we will come out of this interim with several very compelling examples of information we cannot get about how taxpayer dollars are being spent,” said Prather.

She also went into detail on other court decisions and TPIA issues that continue to hamper Texas newsrooms.

Prather discussed a joint House/Senate interim committee created by a last minute resolution, SCR 56 by Sen. Kirk Watson, D-Austin, that passed with just hours left to go in the regular session.

The resolution requests the Lieutenant Governor and the House Speaker to create a joint interim committee to examine all state open-government laws, including the Texas Public Information Act, for opportunities to improve transparency and accountability.   

It also calls for the committee to issue a full report, including its findings and recommendations, to the 86th Texas Legislature before it convenes in January 2019.

Prather said the committee’s efforts are significant because it “will look at loopholes in the law, these court cases that we’re talking about, use of force issues and anything that needs to be looked at.   This committee is tasked with how to improve transparency and accountability in the state of Texas.”

She went on to say that broadcasters can help by embarking on a public awareness campaign – on that lets local lawmakers know how this impacts them and their constituents.

Other steps broadcasters can take now include:

• Keeping track of TPIA requests that are denied involving the use of taxpayer dollars and notifying TAB so it may be documented in a developing database
• Keeping track of instances where the inability to obtain date of birth had an impact on your newsroom’s ability to confirm someone’s identity and notify TAB of the same for the database
• Participating in the interim hearings by covering them as a story and by providing specific examples in testimony

The interim committee’s membership is expected and potential meeting dates and locations are expected to be announced in the coming months.

Prather’s hour-long presentation is an excellent briefing on the current state of the Texas Public Information Act and well worth a look by TAB member stations.

She is a longtime member of TAB’s newsroom legislation review committee and was an integral player in TAB’s successful efforts to pass the 2009 Free Flow of Information Act (reporter shield law), 2011 Citizen Participation Act (anti-SLAPP litigation law), and 2015 Defamation Mitigation Act (uniform retractions and corrections law).

Questions?  Contact TAB's Michael Schneider or call (512) 322-9944.

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