Fight for Open Government Picks Up Speedposted on 4.02.2018
The Texas House of Representatives Government Transparency and Operations Committee heard testimony March 27 from TAB and other Open Government advocates on two of the Committee’s interim charges involving the Texas Open Meetings Act and Texas Public Information Act.
Interim charges are issued by the House and Senate leadership on a variety of complex issues with the goal of a more deliberate and contemplative review than is often afforded to them during the hurried and intense 140-day Texas legislative session every two years. These studies can produce informed recommendations for legislation. Interim Charge #3 focuses on the efficiency of the Texas Open Meetings Act when confronted with a major disaster such as Hurricane Harvey while Interim Charge #4 reviews the impact recent Texas court decisions have had on the Texas Public Information Act. In preparation for last week’s hearing the House Research Organization released a report on the Open Records related interim charge.
Led by Rep. Gary Elkins, R-Houston, this is the same House committee that refused to advance substantive Open Government reform legislation advocated by TAB, the Freedom of Information Foundation of Texas and the Texas Press Association in 2017. Other committee members include Reps. Giovanni Capriglione, R-Southlake; Larry Gonzales, R-Round Rock; Eddie Lucio III, D-Brownsville; Matt Sheehan, R-Plano; Tony Tinderholt, R-Arlington; and Tomas Uresti, D-San Antonio.
The 2017 effort included two bills authored by the committee’s Vice Chairman, Rep. Capriglione, to address the Texas Supreme Court’s 2015 rulings in Boeing Co. v. Paxton and Greater Houston Partnership v. Paxton, which have closed off many types of government contracting information that was once readily available. 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, taxpayers no longer can see the details of many significant taxpayer-funded expenditures contained in government contracts. 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 which now shrouds in secrecy millions of local tax dollars dedicated to economic development efforts.
Open Meetings Act testimony
Ft. Bend Co. Pct. #3 Commissioner Andy Myers provided much of the testimony the committee took on Interim Charge #3. Myers said the emergency meeting provisions of Texas Open Meetings Act were too burdensome during a natural disaster like Hurricane Harvey whose widespread flooding prevented a majority of the Commissioners Court from meeting at one location even though impactful decisions had to be made quickly on an ongoing basis. Floodwaters also prevented staff from posting the required meeting notice at its official location.
Attorney Jim Hemphill, a board member of the Freedom of Information Foundation of Texas, said some slight adjustments might be necessary to TOMA, but overall, it has emergency meeting provisions already and they can perform well in such instances.
Texas Public Information Act testimony
Mandy Crawford, General Counsel to Attorney General Ken Paxton and former head of the AG’s Open Records Division, provided an overview of the TPIA and how it applies to government contracts. She noted that governmental bodies increasingly are using the Boeing and Greater Houston Partnership decisions to prevent the release of information. Since June of 2015, Boeing has been cited in more than 2,000 requests by government for an AG decision to prevent release of information.
Gary Huddleston, a past chairman of the Greater Irving-Las Colinas Chamber of Commerce, said businesses needed protection for trade secrets and proprietary information beyond the existing trade secrets exception in the TPIA and that Boeing provides that protection. But TPIA advocates say the ruling goes too far and several individuals testified in that regard, including Dave Hendricks, a freelance reporter from the Rio Grande Valley who testified at TAB’s request. While working at KGBT-TV, Hendricks put together a series of stories on nearly $500,000 in severance settlement payments made to two former Agua Special Utility District employees.
The Boeing decision was explicitly cited in the agreements to prevent their release. Ultimately Hendricks and KGBT prevailed after local state Sen. Juan “Chuy” Hinojosa, D-McAllen, requested and received information about the settlements under a TPIA provision and provided it to the station.
Chairman Elkins and Vice Chairman Capriglione both agreed that the types of information being sought in the Agua SUD example should clearly be public. Elkins suggested a possible legislative solution such as a laundry list of type information related to government contracts, RFPs and bids that is always subject to release. Others suggested going further, including attorney Rob Johnson of Austin’s Gardere law firm who called for a more thorough review and updating of the entire TPIA.
Johnson represents clients who sought public information and entities that sought to withhold it. He acknowledged that there is a need to protect certain types of business information, but there is a price of transparency when one does business with government. Johnson also said governmental bodies do abuse the Act to delay release of information. The committee will likely not meet again in an open hearing, but rather, will work with individuals to come up interim charge recommendations for the Legislature to consider in 2019.
“Texas Sunshine Coalition” webcast event
The Texas Sunshine Coalition, presented an informative webcast later in the week, Open Government, Engaged Citizens: A Conversation on Texas’ Public Information Act, that further explored what has become of Texas’ government transparency laws and what changes can be made to strengthen them. TAB is one of several groups comprising the non-partisan coalition, which is advocating for a more robust Texas Public Information Act.
Moderated by the Texas Tribune’s Ross Ramsey, the panel featured state Sen. Kirk Watson, D-Austin; state Rep. Todd Hunter, R-Corpus Christi; Laura Prather of TAB Associate member law firm Haynes & Boone LLP; and James Quintero of the Texas Public Policy Foundation which hosted the event.
The basic gist of the discussion: Texas taxpayers deserve to know how their money is being spent, and for change to occur Texans must persuade lawmakers that these eroded laws have failed to serve them and be able to demonstrate it. Watson and Hunter said they remain hopeful that Lt. Gov. Dan Patrick, R-Houston, and House Speaker Joe Straus, R-San Antonio, will appoint the joint interim committee called for in SCR 56 to examine all state Open Government laws, including the Texas Public Information Act, for opportunities to improve transparency and accountability.
SCR 56 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. While the measure was passed unanimously by both chambers, neither Patrick nor Straus has appointed committee members to date.
Regardless of whether the interim committee is ever appointed, broadcasters can play a big role in improving the Texas Public Information Act by emailing TAB the following items in preparation for the 2019 legislative session:
- Story links or reports that document how difficult it is to report on the expenditure of tax dollars since these two Texas Supreme Court rulings were made in 2015
- Reports on denial of TPIA requests involving the use of tax dollars
- Reports on instances a newsroom was unable to obtain date of birth information to confirm someone’s identity
- Stories documenting problems with the Texas Public Information Act, such as this WOAI-TV story that aired in March.
Questions? Contact TAB's Michael Schneider or call (512) 322-9944.
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