Fixing a Huge Open Government Loophole
posted on 12.16.2019- TPIA Update Goes into Effect Jan. 1
New Texas Public Information Act (TPIA) provisions will go into effect Jan. 1 that will make it easier for Texas newsrooms and the state’s citizens to know how their tax dollars are spent.
The enactment of SB 943 by St. Sen. Kirk Watson, D-Austin, and House bill sponsor, St. Rep. Giovanni Capriglione, R-Southlake, is the culmination of a four-year effort to undo the damage created by two Tx. Supreme Ct. decisions, Boeing Co. v. Paxton and Greater Houston Partnership v. Paxton. They were joined in that effort by TAB, other Open Government groups and newsrooms across Texas.
Since the summer of 2015, these two court rulings have been used by corporations, local governments and certain non-profit groups receiving government funds to prevent release of information that had been publicly accessible for more than 30 years.
While SB 943 does not restore full access, it does claw back several significant types of government contract information such as costs, bids and communications related to the same.
It also makes clear that certain economic development organizations are subject Texas Public Information Act (TPIA) requests if those entities receive more than $1 million from a governmental body.
The Boeing ruling was particularly egregious because it allowed companies to assert protections for their government contract information if the business felt the information’s release would put them at a competitive disadvantage. No other state allows such a mechanism to withhold taxpayer-funded information.
The TPIA already contains an exception that allows governmental entities to not have to disclose bids during a competitive bidding process. It is meant to prevent competitors from obtaining each other’s bids while they competed for government work.
The Boeing ruling greatly expanded this exception by ruling that private entities may claim the exception, overturning decades of AG opinions. The court also concluded that the exception could apply even after a governmental body completes a competitive bidding process and awards a final contract.
Boeing has had a dramatic effect on the TPIA, denying citizens’ access to basic information such as how much the City of McAllen paid Enrique Iglesias to sing at a holiday parade, or the contract details for a new City of Denton power plant under construction in with an estimated price tag of $265 million or more. Not only couldn’t taxpayers get contract information, they were also precluded from seeing basic cost information of the largest expenditure in the city’s history.
The court’s other ruling involving the Greater Houston Partnership threw out an earlier court’s mandate that quasi-governmental bodies are subject to the TPIA if they perform services in place of local governments and they receive government funding to do so.
Try, Try Again
In the four years after the court’s ruling, the Boeing decision was cited more than 3,000 times in Texas attorney general opinions to close access to government contract information or even the completed contracts themselves.
Stations are encouraged by TAB and the Freedom of Information Foundation of Texas to resubmit TPIA requests for information that were denied in the past few years citing the Boeing decision.
We’re hopeful that you will now get some, if not all, of what you were seeking. TAB would like to know what your experience was like with the resubmission.
Station Help Needed Soon
Passage of SB 943 is a prime example of how newsrooms can make a difference in the passage of important legislation through their support, input, examples, testimony and phone calls placed to lawmakers.
TAB will soon survey newsrooms about public records access to identify other areas of the TPIA that need correction in the 2021 Legislature.
Stations’ feedback will help TAB prioritize the most important issues to newsrooms before it approaches lawmakers about legislative fixes.
Questions? Contact TAB’s Michael Schneider or call (512) 322-9944.
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