How Texas Lawmakers Patched Open Government Laws But Kept Government Agencies Immune from Open Record Requests

After a series of recent court decisions weakened Texas open government laws, advocates hoped that this year would be an opportunity to rehabilitate government transparency in the state.

During the 140-day legislative session that wrapped up last month, the advocates achieved mixed results. Lawmakers sent a bill to the governor’s desk closing two major loopholes allowing government agencies to keep certain records private. But the Legislature also opened up a big loophole for itself, making it easier for lawmakers to shield their records from public scrutiny.

Still, advocates say they’re mostly pleased.

“This was a good session for open government legislation,” said Kelley Shannon, executive director of the Freedom of Information Foundation of Texas. “We experienced a much more positive reception than we did last session. Members of both parties in both chambers largely had open minds and were eager to fix some of the problems in our open government laws.”

Here’s a look at some of the most important developments in open government this year.

• Loopholes closed

  Perhaps the biggest open government win came from the Legislature addressing two 2015 court decisions that advocates said peeled back transparency.

  In one ruling, in the case Boeing Co. v. Paxton, the Texas Supreme Court made it easier to keep information hidden about private companies doing business with local governments or the state. Prior to the case, only companies’ trade secrets, proprietary information or pending bids could be exempt from open records requests. But the Boeing ruling expanded exemptions to allow the withholding of any information that could put the companies at a competitive disadvantage.

  The ruling allowed companies to object to their information being made public, and essentially allowed their arguments in favor of withholding the records to be taken at face value. There was no mechanism for the attorney general to conduct independent fact-finding about whether disclosure would genuinely risk a competitive disadvantage. And often there was no way for taxpayers to scrutinize how much certain companies were being paid for certain services.

  In the other ruling, in the case Greater Houston Partnership v. Paxton, the Texas Supreme Court found that that quasi-governmental entities that receive money from the public are only subject to public records laws if public money makes up such a large portion of the entity’s overall funding that it couldn’t function without it.

  Advocates say the decision lets entities like Greater Houston Partnership, a nonprofit that provides economic development services to Houston, hide what they are doing with taxpayer money and what incentives they offer to businesses.

  Past efforts to address the 2015 rulings have failed. But now a bill authored by Sen. Kirk Watson, D-Austin, is awaiting a signature from Gov. Greg Abbott. The bill would make many details of a contract between a private entity and government agency public, including cost, certain communications and bids, while also continuing to protect trade secrets and proprietary information.

  The bill would also require that certain organizations devoted to economic development be subject to certain open records rules if they receive more than $1 million from a single state agency or local government.

  Separately, Rep. Terry Canales, D-Edinburg, passed a bill that more narrowly addresses the most infamous case in which the Boeing ruling was invoked. In 2015, the city of McAllen paid Enrique Iglesias to perform at a holiday parade. The city supposedly lost money on the deal — but taxpayers were never able to find out how much the city paid the pop singer to perform.

  The bill authored by Canales would prohibit government entities from withholding information about entertainment events that are paid for with public funds.

  Abbott signed that bill into law on May 17, and it went into effect immediately.

  A loophole opened

  But while advocates applauded the bills by Watson and Canales, they have expressed worry about a separate piece of legislation that appears to protect lawmakers. House Bill 4181, filed by Rep. Charlie Geren, R-Fort Worth, largely consists of procedural and housekeeping clarifications to legislative processes, but it also includes a provision that would change the classification of a “legislative record,” potentially restricting the public’s ability to see how lawmakers do business.

  Currently, legislative records — which include private communications between state lawmakers and their staff — are classified as state records and are available to the public. But lawmakers have a lot of ability under current law to claim that certain records are subject to legislative privilege, or are confidential and thus exempt from open records laws.

  Geren’s bill would give lawmakers broader discretion in claiming legislative privilege, and expand the privilege to communications between lawmakers and essentially any of their employees — including interns and parliamentarians, who give legislators opinions and advice on procedures. It applies to any private communication between lawmakers and their staff which “concerns a legislative activity or function,” meaning any communication could potentially be kept out of the public eye.

  HB 4181 would also transfer much of the authority of legislative records from the Texas State Library and Archives Commission to the Legislative Reference Library.

  The bill has faced opposition from multiple archival organizations, including the Texas Library Association, which argued the bill would limit government accountability and “undermine the public’s right to know.”

  Many of the provisions regarding legislative records and legislative privilege were added to the bill during a House committee meeting and voted out without a public hearing, leaving many open government advocates concerned that the bill was passed out too quietly and too quickly.

  The bill passed both chambers with strong support and is awaiting Abbott’s signature. [LIT Comment: It went into effect without Abbott’s signature]

  Open meetings

  The other big win for open government advocates also came in a bill filed by Watson. Senate Bill 1640 restores a key provision of the state’s Open Meetings Act after a February court ruling weakened it.

  Watson filed the bill not long after the Texas Court of Criminal Appeals struck down a more than two-decades-old provision in state law that made it a crime for public officials to meet or talk separately in smaller groups to discuss public business outside of a public meeting, known as a walking quorum.

  Montgomery County Judge Craig Doyal was indicted under the statute in 2016 for allegedly holding private meetings about a county road bond. He filed to have the charges dismissed, and the case eventually made its way to the Texas Court of Criminal Appeals, which in February ruled that the provision was unconstitutionally vague.

  Advocates worried the decision would make it easier for lawmakers to hide public business from the public and the media. Watson’s bill, which sailed to Abbott’s desk and is now awaiting signature, would once again make walking quorums a crime.

  Watson also filed a broad open government bill that includes a provision that would require public information on private devices to be backed up to a governmental server. That bill is also awaiting Abbott’s signature.

  Other bills failed

  A few more minor bills supported by advocates never made it to Abbott’s desk. Those include legislation that would have required governmental bodies from redacting people’s birth dates from public records. Because of a 2010 court decision, those dates can be withheld.

  A separate failed bill would have addressed the fact that law enforcement agencies are not required to release records when a case does not result in a conviction or adjudication — including cases when a suspect dies in police custody. Rep. Joe Moody, D-El Paso, filed House Bill 147, which would have closed what is commonly known as the “dead suspects loophole.”

  Moody’s bill would have required law enforcement to release records in which a person consents to the release of the information or is deceased. It would have also required the release of records when a peace officer is the subject of a “criminal or internal investigation arising out of the peace officer’s involvement in the detection, investigation, or prosecution of a crime,” a provision that was met with heavy opposition from the state’s police leaders.

  Moody’s bill died before missing a crucial House deadline.

Credit: Texas Tribune