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TAB Newsroom Legislative Agenda Takes Shape: Bills Filed and Bills Heard in Committee

Friday marks the 60th day of the 85th Texas Legislature, an important milestone in the 140-day legislative session.

Apart from the fact that it’s the mid-way point of the session, it also is the regular bill filing deadline. 

Nearly 4,500 bills and resolutions have been filed thus far and TAB’s newsroom legislative committee has identified more than 300 with an Open Government or newsroom impact. 

TAB is expecting anywhere from 1,500-2,500 bills to be filed this week alone, and 6,000+ bills to be filed this session. 

The good news is that two bills comprising TAB’s 2017 newsroom legislative agenda have already been heard in Senate committee, while another three bills were filed late last week.

Hearing for Open Records Legislation

The Senate Business and Commerce Committee heard two of the bills last week that TAB is advocating this session.  

SB 407 and SB 408, both by Sen. Kirk Watson, D-Austin, are meant to address negative Texas Supreme Ct. decisions which have shut off access to information long held to be public under the Texas Public Information Act (TPIA). 

The Boeing v. Paxton court 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.   

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.

KXAS-TV senior investigative reporter Scott Friedman testified on SB 407 for TAB. 

Friedman detailed how the Boeing decision has affected KXAS’ ability to fully report the financial and administrative problems surrounding the Dallas County Schools. 

The problems with DCS are so widespread that Sen. Don Huffines, R-Dallas, has filed a bill to dissolve it.

The other Watson bill, SB 408, is meant to address the Greater Houston Partnership v. Paxton court decision which redefined when publicly-funded private entities are subject to the TPIA. 

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

It’s named for Carole Kneeland, the late Capitol bureau chief for WFAA-TV Dallas-Ft. Worth and later news director at KVUE-TV Austin. 

Kneeland and WFAA 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 court abandoned the Kneeland standard and said the TPIA only applies to private entities “sustained” by public funds – a 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.

The committee left both SB 407 and SB 408 pending, which was expected and not an indication of a lack of committee support.

In fact, Sen. Kelly Hancock, R-North Richland Hills, the committee chairman, was quite direct in his questioning of witnesses against the legislation.

The committee is not meeting this week, so the earliest the bills could receive a vote is likely March 14.

Broadcasters should contact members of the Senate Business and Commerce Committee this week and weigh in with their support of SB 407 and SB 408.

Lawmakers File More TAB Newsroom Priority Bills

Rep. Todd Hunter, R-Corpus Christi, and Rep. John Smithee, R-Amarillo, filed three more pieces of legislation late last week that TAB is advocating in the 85th Texas Legislature. 

Hunter, who chairs the House Calendars Committee, file HB 2670 and HB 2710.

HB 2670 would clarify a 2013 law that said public business, even if it is conducted on private electronic devices or in private email accounts, is public record. 

The 2013 law essentially codified what the Texas A.G.'s office had been ruling for many years.  

Some public officials, however, are refusing to provide these materials to the governmental body to satisfy the requests for that information. 

Chairman Hunter’s proposed fix, first attempted in the 2015 Legislature, would amend the existing law by requiring a government officer or employee in possession of public records to hand that information over to the governmental body upon request. 

It also would create a criminal penalty for not doing so which should be helpful as a deterrent to bad actors. 

The 2015 bill made it out of committee but failed to make it to a House calendar in time to beat a House bill deadline.

The 2017 version of the legislation has one key addition – governmental information on a private device is tied to that governmental body’s records retention schedule. 

An individual can’t destroy the information on their device in an effort to free up space on that device.

Another Hunter bill, HB 2710, would bring much-needed clarity as to the release of dates of birth (DOB) contained in governmental records.

The battle over the release of dates of birth has been going on in the Legislature and in Texas courts for nearly two decades. 

Journalists use DOBs to differentiate between two individuals with the same or similar names in order for reporting to be accurate.  

A May 2015 Third Court of Appeals decision, Paxton v. City of Dallas, extended a common-law right of privacy to dates of birth of all Texans. 

It based its decision on an earlier Texas Supreme Ct. decision which held public employee dates of birth could be withheld from the public. 

As a result of the court’s decision, some Texas police departments are now redacting DOBs from the “basic information” that must be released when an individual is arrested or charged, thereby creating liability issues for crime reporting. 

TAB, the Texas Press Association and the Freedom of Information Foundation of Texas are seeking a clarification that DOBs, unless statutorily protected, are presumed open and subject to release.

Another bill filed last week could end a long lamented a 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, has heard the plea of Open Government advocates, and filed HB 2783, a bill that requires governmental bodies to foot the bill for requestors’ legal costs if the agency “voluntarily releases the requested information after filing an answer to suit.”

These measures and a handful of others to be filed this week, are a nice coda coming just in time for Sunshine Week, an annual national celebration of governmental transparency and the public’s right to know that takes place March 12-18.

Questions? Contact TAB's Michael Schneider or call (512) 322-9944.

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