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Investigative newsgathering imperiled by weakened Open Government law

-Supreme Court ruling loophole widens

Newsrooms across Texas are increasingly being stonewalled in their efforts to hold government entities accountable for how they run programs and spend tax dollars as more such entities – and the private contractors they hire – invoke a 2015 Texas Supreme Court ruling that allows them to conceal their activities by making proprietary information claims over contents of their contracts.                       

Just last month, the City of Austin used the so-called Boeing ruling to refuse identifying the finalists for its City Manager position, claiming releasing such “proprietary information” would leave them at a competitive disadvantage with other Texas communities such as the tiny hamlets of Watauga and Sachse which also are seeking to fill a similar position.

The Texas Public Information Act (TPIA) expressly allows some local governments, but not cities, to withhold identities of finalists for executive positions, so the Austin City Council used the Boeing ruling as a way to circumvent clear legislative intent.

TAB this year advanced state legislation to close this loophole and restore the TPIA in partnership with the Texas Press Association and Freedom of Information Foundation of Texas. While the transparency-minded Senate passed the measure not once, but twice, the measure was killed in the House because of opposition from the business community.                                                                                    

Examples sought as problem widens
News directors and reporters who find themselves unable to gain access to information on how government entities and their private contractors are executing their work or spending tax dollars because of this court ruling are encouraged to alert TAB’s Michael Schneider with the details.

TAB is building a compendium of such examples as we renew efforts to change the law ahead of the 2019 session. At least 1,500 rulings to keep public information secret have been issued by the Attorney General’s office since the 2015 court decision.

While the Legislature approved a concurrent resolution establishing a joint interim committee to study this issue, neither chamber has yet appointed its members and Open Government advocates are concerned the committee will never be impaneled.

Candidates should state position
Political season – especially the run-up to the March 6 primary elections – is a perfect time for candidates for the Texas House or Senate to be called upon to state their position on closing the Boeing loophole to ensure that Texans can find out how their tax dollars are being spent.

As in the Austin case, officeholders and candidates often talk a good game about “absolutely supporting Open Government,” but are perfectly willing to find excuses for why they have to keep certain information secret. To be certain, the TPIA recognizes some information should remain secret and spells out those exceptions, but the court’s broad ruling essentially gives license to any contractor or government body to invoke “proprietary” claims and keep more information off limits to the public.

Since the inception of state Open Government laws in Texas following the Sharpstown scandal of the 1970’s wherein state lawmakers were caught colluding with private banking investors to meld legislation in their favor, Texas has long served as an example to the rest of the country for advancing transparency in government.

Journalists and most members of the public aren’t seeking true trade secrets – a section of the TPIA specifically exempts those – and government contracts with private companies shouldn’t be treated as such.

Any candidate for public office should be able to clearly state whether he or she believes that companies doing business with state and local governments should be able to keep their contracts, payments and performance secret.

Preamble to the Texas Public Information Act
Texas Government Code Sec. 552.001.  POLICY; CONSTRUCTION: 

(a)  Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees.  The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.  The people insist on remaining informed so that they may retain control over the instruments they have created.  The provisions of this chapter shall be liberally construed to implement this policy.

(b)  This chapter shall be liberally construed in favor of granting a request for information.

Questions? Contact TAB’s Oscar Rodriguez or call (512) 322-9944.

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