Open Records reform measures begin legislative journey

posted on 2.27.2017

This week, two pieces of TAB’s newsroom legislative package began their journey in the 85^th Texas Legislature. 

The Texas Senate Business and Commerce Committee took testimony this week on SB 407 and SB 408, two measures filed by Sen. Kirk Watson, D-Austin, which seek to undo the effects of separate 2015 Texas Supreme Court decisions involving the release of records under the Texas Public Information Act (TPIA).

Boeing v. Paxton Redress
SB 407 by Sen. Kirk Watson, D-Austin

In Boeing v. Paxton, the court’s 7-1 ruling was a disaster for Open Government as it made it easier for government and business to keep contracts involving public funds secret. 

The decision expanded the competitive bidding exception in the TPIA in two egregious ways – it allowed private entities to claim the exception and also allowed the exception to apply to final, awarded government contracts.   

Government contracts have long been held to be public, but bids and proposals were protected by an existing TPIA exception protecting trade secrets and proprietary information.

The decision has been used in all manner of instances including the City of McAllen shielding its contract for an hour long holiday concert featuring Enrique Iglesias. 

The city successfully argued that it had “specific marketplace interests” mentioned in the contract and that its release would “place the city at a competitive disadvantage” when negotiating future contracts with entertainers.

SB 407 would limit the competitive bidding exception in the TPIA to those cases in which a governmental body can demonstrate the release of the information would harm its interests “in a particular competitive situation.” 

It also explicitly states that the exception does not apply to finalized government contracts.

Greater Houston Partnership v. Paxton Redress
SB 408 by Sen. Kirk Watson, D-Austin

In Greater Houston Partnership v. Paxton, the court’s 6-3 ruling said the non-profit Greater Houston Partnership, an economic development entity, is not subject to the Texas Public Information Act because it did not rely exclusively or heavily on government funding to exist.  

The ruling allows third-party groups to conduct business on behalf of government, using public money, without being required to divulge the expenditures of that money.  

For nearly three decades, Texas relied on the so-called Kneeland test to protect the public’s ability to monitor public funds. 

The test is named for Carole Kneeland, the late Capitol bureau chief for WFAA-TV Dallas-Fort Worth and later news director at KVUE-TV Austin. 

Kneeland and WFAA-TV sued the NCAA to get access to records involving the troubled, and ultimately, disgraced SMU football program which had been paying players, among other things. 

In the Kneeland case, a federal appeals court adopted a three-prong test developed by the Texas Attorney General to determine whether a nominally private entity receiving public funds is subject to the Texas Public Information Act:

• The agreement between the not-for-profit entity and the governmental entity does not have a specific and definite obligation to provide a measurable amount of service in exchange for an identifiable amount of money; or
• The entity has a relationship with the government that indicates a common purpose or objective or creates an agency-type relationship between the two; or
• The private entity's relationship with the government requires the private entity to provide services traditionally provided by governmental bodies

In its 2015 decision, the Texas Supreme Court abandoned the Kneeland standard and said the TPIA only applies to private entities “sustained” by public funds – a much higher threshold. 

SB 408 would essentially codify the Kneeland test and restore a framework used for nearly 30 years to make decisions on release of information.

Station help needed

If your newsroom’s Texas Public Information Act request was denied in the past 18 months and either the Boeing v. Paxton or Greater Houston Partnership v. Paxton court decisions were cited as the reason to deny your request, TAB needs to hear from you!

• The Boeing decision has been used to deny information related to government contracts
• The GHP decision has been used to deny information from groups performing quasi-governmental functions that are funded, in part, by city or county tax dollars (think economic development groups and other similar entities)

TAB needs stations’ help to identify more examples of how important stories are being stymied by the court’s closure of this information.

Newsroom legislative success

TAB hopes to build on its strong record of passing legislation benefiting Texas newsrooms, including passage of the 1993 state interlocutory appeal provision, the 2009 Free Flow of Information Act (reporter shield law), the 2011 Citizen Participation Act (anti-SLAPP litigation law), 2013 Defamation Mitigation Act (uniform corrections/retractions measure) and a 2015 clarification to the law concerning reporting third party allegations.

In each instance, TAB has been assisted by Texas broadcast journalists who provided background information and testified before lawmakers in hearings on these important pieces of legislation.

General managers, news directors and newsroom staff can keep up with the measures above and other newsroom-related legislation by reading TAB’s weekly newsroom legislative Billwatch emails.

These Friday dispatches detail legislation filed by lawmakers which could impact newsgathering in Texas as well as tracks the TAB newsroom legislative agenda.

Contact TAB if you would like to receive TAB Billwatch

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