Open government advocates now focusing on 2019

By John C. Moritz
USA Today Network
Originally published July 19, 2017

AUSTIN – When a former employee of the world’s largest aerospace corporation began asking about the specific terms of the company’s lease agreement for its operations in San Antonio, it set in motion a chain of events that would gut Texas’ open government laws.

And bills to restore teeth to the law that requires state and local governments to tell the public what they’re doing and why they’re doing it were blocked during the recent legislative session and likely won’t be revived until 2019.

“This was a huge setback for those of us who believe that the people have a right to know how government is spending their money,” said state Sen. Kirk Watson, an Austin Democrat who guided several open-records bill through the Senate this year only to watch them die in the House.

The measures are not expected to be added by Gov. Greg Abbott to the list of items for the current special session. But Watson and other government transparency proponents are already planning to do a top-to-bottom review of Texas’ Public Information Act and offer proposals for when the Legislature next meets in regular session in 18 months.

Without an effective Public Information Act, countless dollars of public money are without the benefit of public scrutiny, one activist, Watson and others said.

“It will be impossible to track how the taxpayers’ money is spent and whether the terms of these contracts are being followed,” said Donnis Baggett, a former newspaper editor who is now the executive vice president of the Texas Press Association. “And that will spawn abuses that result in tremendous waste and fraud.”

For decades, the cornerstone of the Public Information Act was that that government records, including contracts, payment and lease agreements were – with only certain exceptions – were to be made available upon request.

If any dispute arose, the Texas attorney general was tasked with settling the matter before the courts would get involved.

The principle was still in place in 2006 Robert Silvas, a mechanic for the aircraft giant Boeing, requested the details of the company’s agreement with the Port of San Antonio, which is the governmental entity that had taken over the former Kelly Air Force Base.

According to court records, Boeing agreed to release records that redacted key information on ground that it could keep secret its financial dealings with an arm of government to protect its competitive standing.

The matter was taken to then-Attorney General Greg Abbott, who said state law required Boeing and the San Antonio Port Authority to release the information in full.

Boeing sued, but lost at both the trial- and appeals-court levels. Both courts said governmental entities can withhold financial information if it would undermine their “purchasing interests,” but private companies had no such right under state law.

But the Texas Supreme Court disagreed.

“We find no such limitation in the Act’s text, however, and conclude that a private party may assert the exception to protect its competitively sensitive information,” Justice John Devine wrote in a 7-1 ruling handed down in June 2015 that sided with Boeing.

In a dissenting opinion, Justice Jeffrey Boyd said that while the Public Information Act does allow government contractors to protect information like trade secrets, but the exceptions the court’s majority found for Boeing – which employs 145,000 people in more than 65 countries – were far too broad.

“We must liberally construe the Public Information Act to implement ‘the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees,’” Boyd wrote in his eight-page dissent.

Justin Gordon, who heads the Open Records Division for the Texas Attorney General’s Office, said state officials have no choice but to allow other companies and individuals to state the same claims as Boeing did relating to the dealings with city council, school boards and political subdivisions.

In the year before the Boeing ruling came down, Gordon said, his office allowed about 250 requests for such information to be withheld. In the year following the ruling, he said some 600 exemptions were granted.

Baggett predicted that number will likely grow even larger if lawmakers fail to act in 2019.

“If the Boeing decision becomes the new normal, virtually every contract between government and private industry will be sealed at a time when public-private partnerships are becoming the new normal,” he said. “That will be a devastating blow to transparency and accountability.”