Sixteen organizations join efforts to overcome unfavorable court decisions that block access to vital information that should be public
The 2019 session of the Texas Legislature starts at noon tomorrow when both the House and Senate are gaveled to order. Open government advocates have high hopes that this time they will be able to convince lawmakers to demolish the legal barriers created by court decisions that are preventing access to important public information.
Among other things these court decisions prevent finding out how taxpayers’ money is being spent. They also bar access to dates of birth needed, for example, to properly identify criminal suspects or allow lenders to perform the background checks needed for credit decisions.
Another obstacle to be overcome through legislation is the refusal of some officials to provide access to information about government work done on private devices.
In just one example—and there are many—in 2011, The Austin Bulldog broke the story about the Austin City Council’s institutionalized practice of violating the Texas Open Meetings Act, then had to sue to get 13 months of messages these elected officials had exchanged about public business on their private email accounts.
The county attorney also obtained these emails, which provided additional probable cause these elected officials had conspired to violate the Act. Ultimately the elected officials signed deferred prosecution agreements to avoid being charged and if convicted sentenced to one to six months in jail.
Open government advocates are working to ensure they fare better this session than they did in the Legislature’s 2017 session and reinforce the public’s right to know.
Most initiatives stymied in 2017
How bad was the 2017 session? Let’s put it this way. Batting .300 in baseball would be a great achievement. Only 179 baseball players managed to keep a career batting average of .300 or better, according to the Baseball Almanac, meaning they managed to get a hit three times out of 10 attempts at bat.
But dedicated advocates of open government in Texas weren’t all that happy batting .300 in passing key legislation in the 2017 session.
In planning for the 2017 session, members of the Texas Public Information Act Task Force had worked through nine months of meetings and negotiations, overseen by the House Speaker’s Office, to build support for a slate of 10 bills that seemed to have a good chance of getting through the legislative sausage-making and being passed into law.
While the Task Force members didn’t come away empty handed, the most important bills were killed. Six of those seven agreed-upon measures were throttled by State Representative Gary Elkins (R-Houston), who chaired the House Committee on Government Transparency and Operation.
Elkins won’t be around to play the assassin this session because he lost his seat in the 2018 general election to Democrat Jon Rosenthal.
On the other hand, the incoming House Speaker, Dennis Bonnen (R-Angleton), who chaired the House Ways and Committee last session, hasn’t yet formed committees. It’s not clear whether the Government Transparency and Operation Committee will be reestablished or its work will be folded into another committee’s responsibilities.
Advocates are hopeful, however, that with the continued support of longtime open-government champions in the Legislature, including Senator Kirk Watson (D-Austin) and Representatives Todd Hunter (R-Corpus Christi) and Giovanni Capriglione (R-Keller), that the 2019 session will prove more successful.
The Freedom of Information Foundation of Texas named Watson and Capriglione Lawmakers of the Year in 2018 for their efforts in the 2017 session.
Texas Sunshine Coalition
Donnis Baggett, executive vice president of the Texas Press Association, has lobbied the legislature for years on open government issues. He said no bills have been filed yet to address the Coalition’s concerns.
“It’s hard to say what bills will be filed but it’s safe to say there will be a hefty load of legislation to address what we failed to pass last time.”
Baggett said that Elkins, the former committee chair, “saw nothing wrong” with the Texas Supreme Court’s Boeing decision, which has been used to block access to information that government agencies claim if released would put them at a competitive disadvantage.
Here’s just one example of how that plays out in the struggle to get public information: “In Denton they have a municipally owned utility. They are in the process of building a new power plant at cost of a quarter-billion dollars, but due to Boeing they are not showing what they’re spending,” Baggett said. “The public is in the dark about the biggest public works project in Denton’s history and we may never, ever know the final cost because of the Boeing decision.”
Are the odds of improving access to information better this session?
“I’m excited because we have groups in the Coalition from all over the political spectrum, from left leaning to right leaning. This shows people understand that transparency is not a partisan issue. Everybody has an interest in how government spends money.”
“We’re hopeful that Speaker Bonnen will be sensitive to holding government accountable. You can’t keep up with government spending without open records,” Baggett said.
“Not a session goes by without (lawmakers) trying to water down Texas sunshine laws. It’s a constant battle. It’ll never end. It’s human nature: those elected to government find it easier to do business without people looking over their shoulders. But in a representative democracy, it’s essential.”
“I’m not a Pollyanna,” Baggett said. “This is a tough business and it won’t be easy.”
Conservatives optimistic, too
James Quintero is director of the Texas Public Policy Foundation’s Center for Local Governance, which is concerned with issues such as the state’s dependence on property taxes and an “alarming amount of debt” accumulated by cities, counties, and other taxing entities.
Quintero said, “I’m bullish on the prospect of passing significant legislation expanding government transparency.”
“Government secrecy is a bipartisan problem,” he said. “The Texas Public Policy Foundation wants taxpayers to have the ability to see where their tax dollars are going. In the absence of strong transparency requirements it’s impossible to hold our elected officials accountable.”
“I’m very excited to be part of a coalition to reverse course on Texas Supreme Court decisions, Boeing and Greater Houston Partnership,” Quintero said.
The latter case reversed lower court decisions and ruled that the Greater Houston Partnership, a nonprofit corporation that provides economic development services to the City of Houston, was not a “governmental body” under the Texas Public Information Act because it is not wholly or partially sustained by public funds.
“I’m not just blowing smoke,” Quintero said. “I think we have an excellent chance of passage. It’s been good to see people who we don’t normally agree with come out of the woodwork and be on same page with us on how things ought to work.”
But it’s not going to be a cake walk.
“I think we are going to see a lot of fierce opposition on these issues, but primarily behind closed doors, because it’s hard to go out and argue in public setting that taxpayers shouldn’t know how their money is being spent.
“In the last session, opponents used back-channel methods to stall and defeat our legislation,” Quintero said. “But our coalition has learned a few good lessons about tactics of the other side and we’re coming in this session more prepared to handle these tactics.”
Nonpartisan support too
Fort Worth-based Linda Pavlik represents the League of Women Voters of Texas on the Texas Sunshine Coalition.
“The League’s purpose is to promote democracy, voter participation, and freedom of information,” she said.
“We do not take political positions,” Pavlik said.
“Open government is important to us,” she said.
“This is early. At this moment in time I don’t know of any legislation that addresses any of these concerns.”
Freedom of Information Foundation of Texas
Kelley Shannon is executive director of the nonprofit FOIFT.
Among its initiatives the foundation: hosts a FOI Hotline that connects Texans with volunteer attorneys who explain open government laws; offers a speakers bureau available for conferences, classrooms, and organization meetings; and files briefs in important legal cases addressing open government and freedom of speech and press.
In addition to overcoming the detrimental effects of the Texas Supreme Court decisions, Shannon said FOIFT has other interests to pursue, including closing the “dead suspects loophole.” In one case, for example, the loophole prevented release of a video that would reveal what happened the day a routine shoplifting arrest resulted in a 19-year-old suspect’s death from a self-inflected gunshot while handcuffed in the back seat of an Austin Police Department patrol car.
“The Texas Public Information Act gives law enforcement agencies discretion to withhold information in closed cases if the suspect did not go through the court process,” according to a Texas Tribune article about the incident.
Shannon also wants the make sure the public can get records “in a searchable and sortable way,” not just in portable document format (PDF), but in a “useable format.”
“For many years Texas led the nation, or was close to the top, in the strength of its open government laws,” she said. “But troubling court rulings have changed that. We must work to get back to an environment of transparency that respects the public’s right to know.”
“The opposition may be out there but we hope to find common ground and get them on board with understanding that the free flow of information is the key to our democracy,” Shannon said. “The people have the right to see how their tax money is spent. It’s pretty basic: it’s called American civics.
“Who can argue that taxpayers don’t have a right to see how their money is spent?”
You’re invited to get involved
If you’re excited about strengthening public access to government records, then now’s a good time to start letting your lawmakers know about it.
If you aren’t sure who your state representative and state senator are, just enter your address, city, and zip code in the “Who Represents Me?” portion of Texas Legislature Online. That search will give you the names, phone numbers and snail-mail addresses of these elected officials.
What are you waiting for?
Related Bulldog coverage:
Litigation Challenges Open Government Laws: Attorneys criticize criminal penalties and public access to elected officials’ private email accounts, April 24, 2013 (Part 3 of a 3-Part Series)
Social Media’s Impact on Open Government: Few government organizations have dealt with how Facebook, Twitter use affects compliance, April 23, 2013 (Part 2 of a 3-Part Series)
City Hosts Open Government Symposium: Lawyers attending for education credits abound, much of day has little to do with city practices, April 22, 2013 (Part 1 of a 3 Part Series)
Ken Martin has been covering local government and politics in the Austin area since 1981. See more on Ken on the About page.
Email: [email protected].
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