Dark Legislative Session for Open Government, but Many Defensive Victories
posted on 5.26.2017The 85th Texas Legislature ended on Monday, slamming the door on TAB’s efforts to restore Texas taxpayers’ right to know how tax dollars are spent by private and non-profit groups, or even to see government contracts with private companies.
Approximately 6,800 bills were filed this session and of those, TAB’s Newsroom Legislative Committee tracked slightly more than 500 for potential impact on newsgathering.
It appears that a little more than 100 of those measures made it to Gov. Greg Abbott’s desk.
Regrettably, very few of the priority bills TAB advanced to offset recent negative Texas court decisions, or to improve the Texas Public Information Act in general, went the distance this session.
While all of TAB’s newsroom legislative priorities were approved by the Texas Senate, most died in the Texas House of Representatives, specifically in the House Government Transparency and Operations Committee under the direction of Chairman Gary Elkins, R-Houston.
Ethics reform also came up short.
After unveiling a highly-touted package of reform measures at the beginning of session, only about half of them will make it to the governor for action.
It was an exceedingly frustrating session for those seeking to advance governmental transparency.
TAB worked tirelessly in conjunction with the Freedom of Information Foundation and Texas Press Association to save these legislative priorities, as did Sen. Kirk Watson, D-Austin, Rep. Giovanni Capriglione, R-Southlake, and Rep. Todd Hunter, R-Corpus Christi, and their staff.
When it became evident that Chairman Elkins would not release the measures from their House committee, Watson attempted a “Hail Mary” pass in the final two and half weeks of the session by attaching components of the stalled bills as floor amendments to a related bill, HB 2328 by Rep. Eddie Lucio, III, D-Brownsville.
In the end, Lucio and the House leadership rejected the amendments as “not germane” and sent HB 2328 back to the Senate to remove them.
Indeed, it was the House leadership that slammed the coffin lid shut on governmental transparency for 2017, including several measures that were the agreed upon product of a year’s efforts by FOI attorney Laura Prather with TAB Associate Member law firm Haynes and Boone, TAB, TPA, FOIFT and multiple organizations representing governmental entities.
In short, big business won over Texans’ right to know how their tax dollars are spent, diminishing Open Government advocates’ ability to expose public corruption and hold officials accountable.
TAB’s legislative priority bills affected were:
- “Boeing Fix” - Addressing a 2015 Texas Supreme Ct. decision by limiting the competitive bidding exception in the TPIA and also explicitly stating that the exception does not apply to finalized government contracts. (SB 407 by Sen. Kirk Watson, D-Austin, and HB 792 by Rep. Giovanni Capriglione, R-Southlake)
- “Greater Houston Partnership Fix”- Addressing a 2015 Texas Supreme Ct. decision by restoring a framework used for nearly 30 years to make decisions on release of information under the TPIA. (SB 408 by Sen. Kirk Watson, D-Austin and HB 793 by Rep. Giovanni Capriglione, R-Southlake)
- “Custodian of Records” - Requiring a government officer or employee in possession of public records on a privately owned device to hand that information over to the governmental body upon request. (HB 2670 by Rep. Todd Hunter, R-Corpus Christi)
- Dates of Birth - Addressing a 2015 Third Court of Appeals decision by clarifying that DOBs, unless statutorily or court protected, are subject to release. (HB 2710 by Rep. Todd Hunter, R-Corpus Christi)
- Responding to TPIA Requests - Allowing governmental bodies to release information to a requestor on a USB-type flash drive. Requiring governmental bodies to respond to a request, even if it’s to say they don’t have information responsive to the request or can’t release it because of a previous AG determination. (A governmental body is currently not required to respond to a TPIA request if they have no responsive documents or if there is a previous AG determination that the information does not have to be released.) Requiring governmental bodies to cite the specific TPIA exceptions they seek to use deny information in their requests for Attorney General’s Office determination of release. They would no longer be able to cite all of the TPIA exceptions to release in hopes that one might be applicable. (SB 1644 by Sen. Kirk Watson, D-Austin)
Lawmakers will not have another opportunity to address these holes in the Texas Public Information Act until 2019, and that depends on the House leadership’s willingness to advance Open Government in the 86th Texas Legislature.
Bright spots
There was, however, a glimmer of hope in the last weekend of the recent session.
House lawmakers approved SCR 56 by Sen. Watson which calls for 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.
The committee must issue a report of findings and recommendations, to the 86th Texas Legislature before it convenes in January 2019.
This measure is now on Gov. Greg Abbott’s desk awaiting action.
Another bright spot was TAB’s defensive efforts, typically TAB’s main thrust during a session, which stopped a host of bad measures that would have gutted the Citizens Participation Act and Freedom of Information Act, or otherwise curtailed newsgathering.
There also were a few TAB-advocated bills that have made it to Gov. Abbott’s desk, including:
TPIA Attorney’s Fees
HB 2783 by Rep. John Smithee, R-Amarillo
This bill would end a long lamented practice by governmental bodies of needlessly sticking requestors with a hefty legal bill when seeking release of information.
Under current law, a court can assess litigation costs and reasonable attorney fees to a requestor if they substantially prevail in a lawsuit to force release of information.
In some cases, however, governmental bodies have disingenuously elected to release the information on the eve of trial, well after the requestor has spent tens of thousands of dollars in legal costs to win the information’s release.
Smithee, who chairs the House Judiciary and Civil Jurisprudence Committee, heard the plea of Open Government advocates, and filed this bill requiring governmental bodies to foot the bill for requestors’ legal costs if the agency “voluntarily releases the requested information after filing an answer to suit.”
Awaiting action by Gov. Abbott
Vexatious Open Records Requests
HB 3107 by Rep. Trent Ashby, R-Lufkin
TAB worked with other Open Government groups and Rep. Ashby’s office to come up with a solution to a legitimate problem but to do so in a way that legitimate requestors, such as Texas newsrooms, are not hampered in their efforts.
Open Government advocates acknowledge there is a problem with individuals who use the TPIA to harass local government.
They do so by filing voluminous TPIA requests that would take days and weeks to fulfill, either because of the amount of material requested or the number of requests that have been made.
Awaiting action by Gov. Abbott
TPIA Requests / Website URLs
SB 79 by Sen. Jane Nelson, R-Flower Mound
Cities and counties can send TPIA requestors to their websites if the information already exists online and the request for information is considered fulfilled.
This measure would expand access to public information by allowing state agencies to do the same by responding to TPIA requests with an Internet address where requested information may already exist.
Awaiting action by Gov. Abbott
As noted above, it is important to take stock of all of the bad ideas that TAB and other groups were able to stop or modify this session.
Virtually every bill on TAB’s top threats list was neutralized or killed outright:
HB 760 Dates of Birth (DOBs)
By Rep. John Raney, R-College Station
Would have created a new Texas Public Information Act exception for DOBs of living persons.
Died in House Government Transparency and Operations Committee
Photographing Accidents
HB 809 by Rep. Gary VanDeaver, R-New Boston
Would have prohibited a person operating a motor vehicle from using an electronic device, including a wireless communication device, to photograph or film a traffic accident.
Died in House Transportation Committee
Texas Public Information Act / Traffic Violations
HB 1725 by Rep. Ana Hernandez, D-Houston
Would have created a new exception in the Texas Public Information Act for personal information contained in traffic citations. TAB successfully amended the bill to guarantee newsroom access to such reports.
Amended but died in House Calendars Committee
Trade Secrets / Rule 76a
HB 1995 by Rep. Gary Elkins, R-Houston
In its original form this bill would have amended the Texas Uniform Trade Secrets Act to include a provision overriding Rule 76a of the Texas Rules of Civil Procedure. It allowed companies to seal court records in trade secrets cases without the public or newsrooms from being able to petition the court to open these matters if the public concern outweighed the need for secrecy. Why does that matter? In the excellent reporting in the 1990’s on safety issues with Firestone tires, the way in which the tire deficiencies ultimately became public was through the unsealing of court records that the parties had “agreed” were trade secrets and filed under seal. It is one of many examples in which safety problems were uncovered that had been cloaked in secrecy through agreed upon, sealed, “trade secret” filings. At the urging of Open Government groups and with the bill at risk of being killed in the Local and Consent Calendars Committee, Rep. Elkins added a second reading House floor amendment that struck the language regarding Rule 76a.
Gov. Abbott signed 5/19/17. Effective 9/1/17
Mugshots
HB 2521 by Rep. Mary Ann Perez, D-Houston
Under current law, the release of mugshots is discretionary. HB 2521 would have prohibited, in certain circumstances, the release of mugshots generated by an arrest.
Died in House Criminal Jurisprudence Committee
9-1-1 Calls
HB 3640 by Rep. Rep. Todd Hunter, R-Corpus Christi
Would have made confidential the recordings and transcripts of 9-1-1 calls.
Died on House Calendar. HCR 140, also by Rep. Hunter, has revived the issue by calling for an interim study of release of 9-1-1 tapes and transcripts
Anti-SLAPP
HB 3811 by Rep. J.M. Lozano, R-Kingsville
Part of the job of passing a bill is defending it once it becomes law. This bill would have gutted the Citizen Participation Act, the Texas anti-SLAPP statute (strategic lawsuit against public participation), that TAB helped pass in 2011. It allows newsrooms to extricate themselves from frivolous lawsuits.
Died, was never even referred to committee
Libel Claims/Public Officials or Public Figures
HB 3387 by Rep. Ken King, R-Canadian, and SB 2121 by Sen. Kel Seliger, R-Amarillo
HB 3387 said being a public figure in a libel suit, in certain circumstances, should not matter for the purpose of establishing “actual malice” in a case. It sought to undo more than 50 years of case law established by the U.S. Supreme Court’s 1964 decision in the landmark case, Sullivan v. New York Times. The Sullivan decision established the “actual malice” libel standard for U.S. newsrooms. Journalists cannot broadcast or publish material that they know to be false or act in a reckless disregard of the truth.
HB 3387 died in House State Affairs Committee. SB 2121 died in Senate State Affairs Committee.
Journalist Privilege
HB 3388 by Rep. Ken King, R-Canadian
Would have damaged the 2009 Texas reporter shield law statute (Free Flow of Information Act), that TAB drove to passage. It sought to strip newsroom staffers of the privilege against compelled testimony and forced release of work product, if a journalist had donated to a political campaign in the last five years or if the newsroom staffer worked for an owner who has done so either individually or as part of PAC.
Died in House State Affairs Committee
Lawmaker Home Address
SB 659 by Sen. Donna Campbell, R-New Braunfels
Would have added statewide elected officials as well as Texas House and Senate lawmakers to the laundry list of governmental employees who could shield certain types of information contained in government records. Information includes: home address, home phone number, emergency contact information, social security number or information that reveals whether the person has family members.
Died in House Government Transparency and Operations Committee
Body and Dash Cam Video
SB 1487 by Sen. Royce West, D-Dallas
It was captioned as a bill on racial profiling but it did more to prevent the release of body and dash camera video.
Died in House Local and Consent Calendars Committee
So where do TAB and other Open Government advocates go from here?
If Sen. Watson and Rep. Hunter get their way, the Lt. Gov. and House Speaker will appoint a joint interim committee to study improvements to the Texas Public Information Act.
Both Watson and Hunter filed concurrent resolutions to that end.
TAB remains hopeful that changes will eventually take place, but only with considerable involvement and leadership from political leaders and Open Government advocates alike.
Until then, Texans and their checkbooks are vulnerable to corruption and abuse as a cloak of secrecy increasingly envelopes state and local government.
Questions? Contact TAB's Michael Schneider or call (512) 322-9944.
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