Watson, Capriglione: Close loopholes in the state Public Information Act

By Kirk Watson and Giovanni Capriglione
Published by the Houston Chronicle
Jan. 26, 2017

After the Sharpstown fraud and bribery scandal rocked the Texas Capitol in the early 1970s, Texans opted to “throw the rascals out” and elect a reform-minded Legislature to clean up the mess.

A cornerstone of the 63rd Legislature’s reform agenda was the Public Information Act of 1973, which empowered the people to see what their government officials were doing and hold them accountable. Lawmakers clearly stated that the public’s right to know, in most cases, should prevail over other interests because information is key to accountability.

But the Texas Supreme Court ignored this fundamental principle of the law and overlooked decades of prior interpretations when deciding two recent cases regarding public information: Boeing v. Paxton and Greater Houston Partnership v. Paxton. In both cases, the Court chose to protect the interests of private entities that benefit from public funds over the rights of the people.

The press and various watchdog groups raised the alarm when these opinions were released in 2015. But now that the 85th Legislature is in session, it’s incredibly important that Texans understand what is at stake, too.

Every year, our state and local governments enter into thousands of contracts with private entities such as engineers, accountants, road-builders, foster care agencies, food service providers, IT companies, social service groups and so many more. These contracts, which together are worth billions, dictate what we as the taxpayers will pay, what we’ll receive in return and who’ll reap the financial benefit. And now, in many instances, those contracts can be kept hidden from those of us who are picking up the tab.

This process is ripe for abuse, as we’ve seen time and again from recent contracting scandals. Has a company failed to deliver on-time and on-budget? Has a state or local official struck a self-serving deal?

People will generally behave better if they know someone could be watching. To be good watchdogs, the public must first be able to see government contracts.

Increasingly, these court decisions are being used to shield basic information that would have been released before. In 2016, the state Attorney General’s Office ruled in about 600 cases that information may be withheld under the competitive bidding exception; that’s compared with about 250 in 2014, the year prior to the Supreme Court ruling.

We’re not talking about protecting a company’s trade secrets here – those are covered elsewhere in the Public Information Act. Examples of withheld information have been well-documented and include: how much McAllen paid Enrique Iglesias to perform in a holiday parade; how many licenses Houston issued to Uber; and how public money is spent by the Greater Fort Bend Economic Development Council on behalf of local cities, schools and special districts. In each of these cases the public is now unable to trace public funds.

Unfortunately we can only expect this problem to get worse as more private businesses and public entities try to push the bounds of what can be withheld under these rulings.

At the same time, state and local governments are increasingly outsourcing public services. In fact, Boeing and Greater Houston Partnership create a perverse incentive to channel public money through private entities in order to avoid disclosure. If you think this sounds like the next Sharpstown scandal waiting to happen, you’re on the right track.

The good news is the Legislature will soon have an opportunity to close the loopholes the Court created in Boeing and Greater Houston Partnership, and we have filed legislation to do just that.

We hope Texans will appreciate the need for this legislation and encourage its adoption. Only then can we restore government accountability and avoid the kind of scandal that led to the Public Information Act’s passage in the first place.

Watson, a Democrat, represents Austin in the Texas Senate. Capriglione, a Republican, represents Southlake in the Texas House of Representatives.