Open Government

 Public Information Now Harder to Get

Despite lengthy negotiations and compromise
most open government legislation was
blocked in 2017 Texas legislative session

by Ken Martin
© The Austin Bulldog 2017
Posted Monday October 16, 2017 9:41am

Batting .300 in baseball is quite an achievement.

Open government advocates batted .300 in getting laws enacted in the 2017 regular session of the Texas Legislature to make changes to the Texas Public Information Act (TPIA). But they were bitterly disappointed and said so during a panel discussion at the September 14, 2017, annual conference hosted by the Freedom of Information Foundation of Texas (FOIFT).

The hard work done before the legislative session started in May 2016 and included nine months of meetings and negotiations among members of the TPIA Task Force overseen by the House Speaker’s office. The members represented government entities, the attorney general’s office, requestor groups, and legislative representatives. The Task Force reached agreement that 10 bills were acceptable to all parties yet only three of those bills made it through the legislative sausage-making to become law.

Six of the seven agreed upon bills died in the Texas House—and all but one of those were attributed to the failure of State Representative Gary Elkins (R-Houston) chairman of the Government Transparency and Operation Committee, to call for a vote on them. (The Chart of Legislative Agenda Items, linked at the bottom of this story, lists each of the bills.)

“Representative Gary Elkins screwed us,” said Brian Collister, an investigative reporter for Austin-based KXAN-TV, a conference panelist who participated in the legislative process. “He looked us right in the face and stabbed us in the back. He’s the problem.”

Good intentions, hard work, little success

“It was incredibly frustrating—especially since lawmakers always tout the importance of building consensus,” said attorney Laura Prather of HaynesBoone in Austin, a longtime open government advocate who moderated a panel discussion titled “What happened in the 2017 Legislature and what’s ahead?”

“In this instance we worked hard to build consensus for nine months and then were stymied every step of the way by big business that wanted to hide from taxpayers how they use their money and the chair of the House Government Transparency and Operation Committee, whose interests were not in making more information available to the public—even the ones footing the bill.”

 Tab for Public Records $133,000

City of Austin cost estimate for records
related to its Right of Way decisions

by Ken Martin
© The Austin Bulldog 2017
Posted Monday June 12, 2017 11:03am
Updated Tuesday June 20, 2017, 12:14pm 
to add theCity's first response to the attorney general

Well this case probably would not qualify for the Golden Padlock Award bestowed annually by Investigative Reporters and Editors. The award is designed to dishonor the most secretive publicly funded agency or person in the United States.

But on a local level in the Austin area—if anyone were keeping track—this might rank among the highest cost estimates furnished by a government agency for providing records in response to a single public information request.

The request was filed with the City of Austin by Wayne Dolcefino of Houston-based Dolcefino Consulting. Recently he survived a head-on highway wreck that might easily have been fatal. Now he’s trying to make the best of a collision between the public’s right to know and a government agency’s unyielding response.

Dolcefino is no stranger to public information fights. He is a former investigative reporter and winner of 30 Emmy Awards for his work in television and numerous other awards, according to his website. Back in the 1970s he worked at KLBJ Radio here in Austin. More recently, in Houston at KTRK-TV he headed the station’s 13 Undercover Unit at for 27 years.

Dolcefino filed a public information request six months ago and is still waiting for the information. He asked for records that he needed to investigate the “staggering right of way fees for developers trying to build new apartment complexes and office buildings,” which he says ultimately result in charging higher rents to cover the costs.

He asked for copies of three kinds of records: (1) the personnel files of 11 named employees, (2) emails sent or received after January 1, 2016, by these employees, and (3) other electronic communications covering the same period for these individuals.

A whopper of a cost estimate

 Surfing New Wave Open Government

Symposium panelist says local efforts show
potential but Austin not open government leader

by Mark Henricks
© The Austin Bulldog 2015
Posted Thursday April 23, 2015 10:44am

New technology and new ideas promise to make government more open than ever, perhaps even someday replacing politicians with direct decision-making by citizens, according to panelists in a discussion of innovation in open government held this month at Austin City Hall. At the same time attendees were warned of the risk of disenfranchising those who lack access to technology. And, while panelists lauded Austin’s image as a center of technology, the city government’s reputation for openness and transparency was said to be unremarkable.

The session took place April 9, 2015, as part of the City of Austin’s Open Government Symposium. This is the second city-sponsored symposium since 2012, when all City of Austin elected officials agreed to deferred prosecution after an Austin Bulldog investigation into their open meetings violations.

Kerry O'Connor, the city’s first chief innovation officer, moderated the panel. She was joined by Mary Beth Goodman, a senior fellow with the Washington, D.C, think tank, Center for American Progress, and Nathaniel Heller, managing director of the Results for Development Institute, a Washington, D.C. economic development research group.

Cities like Austin are on the front line in the effort to make government more transparent, according to Goodman, who was formerly director for international economic affairs on the White House national security staff. “The more we've gotten into the process, the more we've learned that citizens want to engage first and foremost at the city level,” Goodman said.

Heller, much of whose work has dealt with less-developed countries around the world, cited crowdsourcing as an example of openness that is well-suited for city government. “This is being experimented with nationally, but it's working better at the local level,” he said. Examples of using crowdsourcing in government include holding challenges and contests to get citizens to contribute their ideas about how to solve problems delivering needed city services.

O’Connor, who took over the city innovation office in 2014 after working for the U.S. State Department, said Austin has employed crowdsourcing-type tools with mixed success. “It is a nascent movement and takes a little practice to get it right,” she said. City efforts to encourage citizen contributions include CodeNEXT, an initiative to create a new land development code addressing affordability and other issues. The innovation office partnered with three volunteer working groups to generate recommendations for the program, but it still a work in progress.

Openness impedes efficiency?

Ethics Bills Face Complex Dynamics

Open government legislation would move public
official investigations, open financial reports

by Mark Henricks
© The Austin Bulldog 2015
Part 4 in a Series
Posted Monday April 20, 2015 2:42pm

Although some proposed legislation in the current session promises to improve public access to information, a tangled web of factors including fear of the unknown and lack of a major scandal will likely keep state legislators from enacting major open government and ethics legislation.

That was the consensus of participants in a panel discussion on Legislative Developments held April 9, 2015, as part of the City of Austin’s Open Government Symposium. Moderator, Cary Grace, an assistant city attorney and interim deputy officer of the city’s Intergovernmental Relations Office, was joined by panelists Tim Sorrells, former general counsel of the Texas Ethics Commission, and Denise Davis, former chief of staff to Texas House Speaker Joe Straus and currently a lobbyist and partner in law firm Davis Kaufman.

Davis, who also formerly served as parliamentarian and special counsel to the Texas House of Representatives, said new members often arrive in the Capitol intending to pass ethics legislation but most waver because of worries about potential unintended consequences of new ethics laws.

The specter of possibly having to back-pedal on proposals or even wind up lobbying to kill their own bills generally scares them off for good, she said. “You don’t want to be the person that has killed an ethics bill,” Davis explained. “That's the kind of thing that gets you on 10 worst lists.”

Attorney Sorrells spent 12 years at the Texas Ethics Commission, which among other things advises legislators about the propriety of actions they are considering. He said that the attitude about ethical behavior among legislators is that unless something is being done secretly, it is probably acceptable. “The way it’s working in Texas is, you can do it as long as you tell somebody about it,” he said.

Legislators’ comfort with that attitude, coupled with unwillingness to initiate legislation that could require more rules, means no major change can be expected in Texas open government laws unless something happens to spur it, Sorrells said. Legislators tend to be reactive rather than proactive when it comes to ethics and open government legislation. As an example, he pointed to the 1971 Sharpstown stock fraud scandal. That episode produced federal criminal charges against the attorney general and state insurance commissioner and allegations of bribery that went all the way to the governor’s office.

Sharpstown scandal triggered reforms

 Open Government Aids Defendants Too

Criminal cases opened through Michael Morton
Act makes big difference for prosecutors as well

by Ken Martin
© The Austin Bulldog 2015
Part 3 in a Series
Posted Wednesday April 15, 2015 11:01pm

“Prosecutors could read to us what they wanted us to know,” said defense attorney Betty Blackwell in describing the old rules for discovery in criminal cases. “There were no depositions, no interrogatories, no witnesses. All we (defense attorneys) were entitled to ... was the indictment.

“It was a trial by ambush.”

Blackwell, of the Austin-based Law Office of Betty Blackwell, in 2001 served as the Texas Criminal Defense Lawyers Association’s first female president. Last week she participated in a panel discussion on Litigation Developments at the City of Austin’s Open Government Symposium held April 9, 2015.

The discussion was moderated by Gary Cobb, who for 25 years has been with the Travis County District Attorney’s office and currently directs its Grand Jury and Intake Division. The panel also included Craig McDonald, executive director of Texans for Public Justice, whose criminal complaints resulted in the indictments of Governor Rick Perry and then-U.S. Representative Tom DeLay.

Blackwell and Cobb talked about the impact the Michael Morton Act (SB 1611) has had on the discovery rules governing criminal cases since it was signed into law by Governor Perry in 2013. The legislation, authored by State Senators Robert Duncan (R-Lubbock) and Rodney Ellis (D-Houston), was enacted in the wake of Morton’s exoneration after serving 25 years in prison for murdering his wife. Morton was convicted because prosecutors withheld key evidence. He was freed only after DNA testing pointed to another suspect.

New discovery rules boost criminal defense