Texas Legislature: Bills put transparency at risk; Supporters: Restricting FOI ensures justice

By Matthew Waller
Originally posted 4.27.13 

AUSTIN — House Rep. Phil Stephenson said he wants innocence until a person is proven guilty, and to that end, some information might be better kept away from the public.

His bill, HB 1331, would specifically make confidential certain investigations and complaints received by the Texas Department of Licensing and Regulation, which would close off to the general public access to complaints lodged against hundreds of government departments.

His chief of staff, Matt Minor, said that department was chosen because a disproportionate number of complaints received by the agency are determined to be without merit.

Stephenson offered up former U.S. Rep. Tom DeLay’s money laundering conviction as an example of what strengthens his conviction for the need of presumed innocence, although HB 1331 doesn’t concern criminal cases but rather regulatory matters.

The Wharton Republican still believes DeLay was innocent, even though the former Republican U.S. House Majority leader was found guilty of money laundering in 2010 and sentenced to three years in prison. The case is under appeal, and in the meantime DeLay is free.

“I still don’t believe he has done anything,” said Stephenson, an accountant.

Because of the media, however, “He was already convicted before he went there. … I don’t think he broke the law.

“Hopefully, the media is ethical and waits to get the story right, and then if the person has to go to court and they find out they’re guilty, they can do whatever they do and research. But don’t prejudge by the media before you even do anything.”

He denied that his bill negatively affects government transparency, arguing that it would allow the public to responsibly obtain the facts.

Advocates for open government are fighting the bill because it could make information harder to obtain, clouding the transparency of state government.

The bill is one of many in the session that could affect open government.

“I think it’s important to have it ensured that the public’s business be conducted in public,” Freedom of Information Foundation of Texas board member Arif Panju said.

Panju is an attorney who also works for the Institute for Justice Texas chapter, a law firm that deals in civil liberties law.

Laura Prather, an attorney who is the vice president of the Freedom of Information Foundation of Texas, said the Legislature also is seeing bills that would prevent people from seeing employer information of a sex offender, as with HB 879 from Rep. Lon Burnam, D-Fort Worth. Another bill, HB 1295 from Rep. Allen Fletcher, R-Cypress, would farm out the release of accident reports to a third party, which could make those reports more difficult to obtain, she said.

Prather said lawmakers are interested in finding public information from organizations such as the Cancer Prevention Research Institute of Texas because of suspected conflicts of interest in the grants that it gave out. Other sources of information, however, are another story.

“We’re seeing some reaction to some problems, but when it comes to what can be characterized as personal or private information, more and more carve-outs are being proposed in the law,” Prather said.

Technology and transparency
Panju is monitoring about 300 bills this session, and many of them concern new ways government information is processed, such as online or through video conferencing, he said.

One bill supported by Texas Attorney General Greg Abbott would let governing body members have an electronic forum that is accessible to the public, something like a Facebook page or chat room for lawmakers to use, so as to not violate the Open Meetings Act and deliberate as a quorum electronically.

“Today, technology is helping put to rest the notion that transparency must be sacrificed in the name of functionality, or vice versa,” bill author Sen. Kirk Watson, D-Austin, said in a news release on the legislation. “This innovative bill uses technology to ensure that officials at every level of government can communicate when they need to, and that the public can be in on that conversation.”

That bill, SB 1297, has passed the Senate and awaits action from the House Government Efficiency and Reform Committee.

“There is definitely more attention at the intersection of public information and technology,” Panju said.

One bill to prohibit the abuse of technology in government transparency includes forbidding members of government bodies from texting each other — deemed to be a secret method of commination — during a government body meeting. That bill, HB 2934 from Rep. Todd Hunter, R-Corpus Christi, is still pending in committee.

New data
Panju said he is not worried merely about keeping information from being hidden — the Freedom of Information Foundation of Texas wants to increase the scope of information available to the public.

He spoke in favor of HB 3277. That bill would require law enforcement to report more information about “criminal asset forfeitures,” in which law enforcement agencies litigate to take property alleged to have been used for criminal activity, leaving the owner forced to either hire an attorney, to prove the property “innocent,” or give it up.

Research from around the country suggests that sometimes law enforcement agencies seize property worth as little as $1,500 or even less — an amount too small to make the cost of hiring an attorney to defend it — worthwhile. Such lawsuits netted the government about $300 million from 2001-07, Panju said.

HB 3277 would require release of information in these cases, including the date seized, the value and type of property or proceeds that were seized, and the offense underlying the seizure. At the moment, the only information publicly available is how much was seized and what was done with that money.

“They raise significant money this way, and there is not much sunlight on it,” Panju said.

Rep. Naomi Gonzalez, R-El Paso, is the primary author, and Rep. Jonathan Stickland, R-Bedford, and Rep. Steve Toth, R-The Woodlands, are joint authors. The bill has had a hearing and has been left pending in committee.

Another bill, SB 346 from Sen. Kel Seliger, R-Amarillo, would require disclosure of donor names for nonprofits that are involved in political advocacy, even if politics is not the organization’s main focus.

Texas among most transparent states
Texas ranks well among the states in terms of government transparency. The Sunlight Foundation issued its “Open Legislative Data Report Card” in March and gave Texas an “A” rating, one of 10 states to receive that grade.

Texas scored high marks in “machine readability” and “permanence,” although it got a low mark in “completeness,” largely for its lack of roll-call votes published online, said Laurenellen McCann, national policy manager for the Sunlight Foundation.

The U.S. Public Interest Research Group Education Fund gave Texas an “A” on its report card for spending transparency, one of seven states with that grade.

“I think doing well on these report cards now definitely means something,” McCann said.

With increasing technology, and a search-engine minded generation, the standards are changing, and states are working on new ways to offer the public access to information, including moving toward access to downloadable “bulk data” by which people can make their own analysis of the information, McCann said.

“I think we’re on the edge of a culture shift in government,” McCann said.

Matthew Waller covers the Legislature for Scripps Newspapers and works in Austin. Contact him at mwaller@gosanangelo.com or via Twitter @waller_matthew.

Government transparency, bills to watch
HB 1331 from Rep. Phil Stephenson, R-Wharton — makes confidential certain investigations and complaints by the Texas Department of Licensing and Regulation, which would close off from public access complaints lodged against hundreds of government departments. Status — Heard in committee, pending in committee since April 2

HB 879 from Rep. Lon Burnam, D-Fort Worth — would prevent people from seeing employer information of a sex offender. Status — Heard in committee, pending since March 12

HB 1295 from Rep. Allen Fletcher, R-Cypress — would farm out the releasing of accident reports to a third party, possibly making those reports more difficult to obtain. Status — Heard in committee. Left pending since March 12

SB 1297 from Sen. Kirk Watson, D-Austin — would let governing body members have an electronic forum that is accessible to the public. Status — Passed Senate, referred to a House committee

HB 2934 from Rep. Todd Hunter, R-Corpus Christi — prohibits abuse of technology in government transparency, including prohibiting a member of government body from texting other members during a government body meeting. Status — Heard in committee, left pending since April 1

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