Texas Open Records Fights Abound After Bad Court Decisions Close Off Basic Governmental Information

posted on 1.14.2019

This past week TAB and other members of the Texas Sunshine Coalition met with nearly 90 Texas House of Representatives staffers to brief them on how recent Texas court decisions have created huge loopholes in the Texas Public Information Act.

The Coalition also discussed how public business conducted in private electronic accounts, which is already classified as a public record, has been difficult to access.  It was an engaged and inquisitive crowd, and for many, it was their first deep dive into these issues.

While TAB-backed legislation addressing these problems was twice approved by the Texas Senate, the measures never made it out of a House committee and onto the House floor in the 2017 legislative session.  TAB is hopeful that will not be the case in the 86^th Texas Legislature as the committee in question, and its nefarious chairman, are no longer part of the House.

Newly minted House Speaker Dennis Bonnen, R-Angleton, struck the Government Transparency and Operations Committee from the list of standing committees.  The move means legislation soon to be filed by St. Rep. Giovanni Capriglione, R-Southlake, will likely be routed to the House State Affairs Committee.

The chairman of the now defunct GTO committee, St. Rep. Gary Elkins, R-Houston, lost his bid for reelection last November.  Elkins kept several key pieces of Open Government legislation from seeing the light of day.

TAB Associate member law firm attorney Laura Prather of Haynes Boone, and a member of TAB’s Newsroom Legislative Committee, profiled how two 2015 Texas Supreme Court decisions prevent the public from knowing how their taxpayer dollars are being spent.  One of them, Boeing v. Paxton, said companies doing business with government could seek to have their contracts and other information in government custody withheld from the public based on a claim that releasing the documents would create a competitive disadvantage.  Companies are routinely using the decision to block release of information related to their governmental contracts because alleged competitive reasons.

Texas is the only state in the U.S. that has such a provision.  And it’s not just companies seeking to shield information – local governments are now emboldened to do the same.  Just last week the City of Pharr attempted to shield the salary of the recently hired City Manager Alex Meade using the Boeing decision to justify doing so.  After a reporter sought to find out Meade’s salary, Pharr sought an Attorney General’s office opinion to keep the salary information under wraps, telling the AG’s office that release of the information would put the city at a competitive disadvantage in seeking candidates for such high-profile city jobs.

The public backlash was instant and vehement once word of the city’s lack of transparency was reported.  After the outcry, the City of Pharr was forced to backtrack and withdraw the request.  Turns out Meade is being paid $250,000 annually plus a car allowance, comparable to city managers in  other nearby cities, and slightly more than Pharr had paid its previous city manager.  It was a minor victory in what has become a growing battle.

There have now been more than 2,700 rulings by the Attorney General’s Office in which some or all of the requested information has been kept hidden because of the Boeing ruling.

Prather also discussed other unfinished business from the 2017 session which are TAB and the Coalition’s three other legislative priorities:

• Taxpayers have a right to know how non-profit entities essentially acting as an arm of the government are spending tax dollars
• Dates of birth contained in public records should, in most cases, be open to the public so that proper identity can be confirmed
• Public business conducted in private electronic accounts – already classified as a public record – must be publicly accessible

In addition to TAB, the coalition includes at the Texas Press Association and the Freedom of Information Foundation of Texas, as well as a diverse group of organizations ranging from the American Civil Liberties Union to the Texas Public Policy Foundation.

There are two ways newsrooms can help TAB advance the Coalition’s Open Government legislative agenda.  News Directors and other newsroom staff should attend TAB’s biennial Legislative Day Conference in Austin on Jan. 22.

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TAB will provide in-depth briefings on these legislative priorities and other legislation at the event.  Additionally, news directors and newsroom staff can keep up with this and other newsroom-related legislation by reading TAB’s weekly newsroom legislative Billwatch emails.  These informative dispatches begin last week and will continue for the next 19 weeks of the 86^th Texas Legislature. 

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

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