FOI Column: Boeing ruling stretched, twisted to keep government records secret

By Kelley Shannon
Executive Director
FOI Foundation of Texas

Every week, government officials across Texas and private companies receiving taxpayer dollars get increasingly creative in hiding public records.

Their new tool is the Boeing ruling, a decision from the Texas Supreme Court that lowered the threshold for arguing competitive bidding as an exemption from disclosure under the Texas Public Information Act.

It gives governments an easier path to claim that competitive bidding concerns should allow them to keep records secret. And, businesses can now make the claim, too.

Those attempting to censor records under Boeing have sought approximately 1,500 rulings from the Attorney General’s Office since the 2015 court decision, and the number keeps growing. The court decision originated over releasing information in a property lease between Boeing and the Port of San Antonio.

Because the court ruled that the withholding test is now whether knowing a competitor’s bid information creates “an advantage” rather than a “decisive advantage,” requests for sealing government records are frequently granted, even after a final contract has been awarded.

“Wait,” you might say. “Shouldn’t taxpayers have a right to see how their money is spent? This is basic in our democracy.”

You would be correct. But in Texas, you could be out of luck.

Everything from school bus finances to power plant construction costs to a university’s beer marketing agreement have been kept off limits because of the Boeing ruling.

By the way, no one is suggesting that companies give up their trade secrets. That exemption to disclosure is a separate part of the public information law. The essentials of a company’s contract with government aren’t a trade secret.

Meanwhile, public officials are becoming contortion artists in their use of Boeing to close off all sorts of other information.

The city of Austin recently used the ruling in an effort to keep secret the names of finalists in its city manager search, saying it didn’t want to give competing cities a hiring advantage. After public pressure and a lawsuit by the Austin American-Statesman, the city said it would soon release the finalists’ names. The Statesman has already figured out several candidates’ names and reported them.

In the Rio Grande Valley, the Agua Special Utility District attempted to use the Boeing ruling as a reason to keep secret nearly $500,000 in severance payments it made to two former employees.

The continuing poster child case for the Boeing problem is the city of McAllen’s refusal to say how much taxpayer money it paid to entertainer Enrique Iglesias to perform in a holiday festival.

Clearly, there’s deep erosion occurring in the Texas Public Information Act. Texas needs to re-examine its commitment to the people’s right to know.

One way to jump-start this important work is with a joint interim committee to study open government laws called for in Senate Concurrent Resolution 56 that the Texas Senate and House passed and that Gov. Greg Abbott signed.

So far, neither Lt. Gov. Dan Patrick nor Speaker Joe Straus has appointed members to this interim committee. But if they are serious about public access to government information – about the taxpayer’s ability to hold its government accountable – they should do it right away.

Public hearings throughout the state in 2018 would ensure all Texans are included in this vital discussion. We need state leaders to listen to the message that comes through loud and clear every day in communities across Texas: People care about what their government is doing, and they want information.

The Sharpstown stock fraud scandal in state government in the early 1970s created a climate for passage of the Open Records Act, which eventually became known as the Public Information Act. The law stood strong for four decades, as Texas government operated mostly in the sunshine.

Texas must not sit around in the dark today waiting for another massive scandal before repairing the law. It’s time to get to work.

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Kelley Shannon is executive director of the Freedom of Information Foundation of Texas, a non-profit dedicated to promoting open government and the First Amendment rights of free speech and press. For more information go to www.foift.org.