Greg Abbott facing questions on open government

By Chuck Lindell
Austin American-Statesman
Originally published Oct. 4, 2014

Greg Abbott was the toast of open government advocates early in his 12-year tenure as attorney general, but recent decisions in favor of tighter secrecy have prompted some to re-evaluate his commitment to transparency.

Since May, Abbott’s agency has reversed policy by allowing Texas to keep secret the source of its execution drugs and withhold inventory reports listing businesses that stockpile dangerous chemicals, including ammonium nitrate, the compound that exploded in the town of West, killing 15 in 2013.

Abbott’s Democratic opponent in the race for governor, Wendy Davis, recently questioned his handling of documents related the Texas Enterprise Fund after a state audit revealed that $222 million in relocation incentives was given to 11 companies that did not formally apply for the money.

“Abbott has done some very good things for transparency,” said Joseph Larsen, a board member for the Freedom of Information Foundation of Texas, a leading advocate for open government. “But increasingly … it’s hard to give Greg Abbott a ringing endorsement regarding his oversight of Texas open government laws.”

Texas has some of the nation’s strongest open government laws, and the attorney general’s office enforces statutes requiring that most government records be made public and most government meetings be held in open session.

Open government ally

The Freedom of Information Foundation honored Abbott in 2005 as a “strong ally in promoting open government,” noting that he increased funding for the attorney general’s open government division, hired a prosecutor devoted to open records violations and beefed up training so elected officials knew their legal responsibilities under transparency laws.

Abbott also gained credibility by aggressively and successfully fighting a lawsuit that would have gutted the Texas Open Meetings Act by arguing that the law unconstitutionally targeted one class of speaker — elected politicians — by limiting what they can say and when they can say it. After years of litigation, the courts determined that the law was meant to promote good government and citizen involvement, not thwart free speech.

Before a governmental body can withhold information requested under open records laws, the attorney general’s office must approve. Recent rulings from Abbott’s agency have allowed state agencies to keep more types of information secret, tarnishing Abbott’s legacy, Larsen said.

“It’s not like it’s been an unmitigated disaster, because it has not,” Larsen said. “But overall, and increasingly, it’s less pro-requester and more pro-institution.”

Wanda Garner Cash, an advisory board member for the Freedom of Information Foundation, called the attorney general’s rulings to withhold information on execution drugs and chemical stockpiles “curious” and seemingly motivated by politics in the midst of Abbott’s campaign for governor.

Even so, she said, “Greg Abbott has been the strongest proponent of open government in Texas in my 25 years of working with the foundation.”

“I think that overall, he would get a strong ‘A’ from the open government community. We haven’t agreed with all of his positions, but I think we’ve agreed with most of them,” Cash said. “He gets it. He understands open government.”

Texas Enterprise Fund

Ensuring that government operates openly is one of Abbott’s top 10 issues in his campaign for governor, but Davis has worked to turn the issue into a liability for the Republican.

During last week’s final gubernatorial debate, Davis hammered Abbott’s handling of documents related to the Texas Enterprise Fund.

In 2004, Abbott’s agency declined a Dallas Morning News request to view the application of Vought Aircraft, one of the 11 recipients of money that did not submit a formal application, according to a state audit. The ruling allowed problems with the fund to remain hidden for a decade, Davis said.

“You were the chief law enforcement officer over the Enterprise Fund. It was your responsibility to make sure that the tens of millions of dollars that were going to these companies were resulting in jobs,” Davis said. “You covered up the fact that many instances they were given money without even applying for those moneys.”

Abbott declined to address Davis’ allegation, moving instead to question his opponent’s ethics related to government contracts.

After the debate, however, Abbott’s office provided documents clarifying the Vought matter.

The initial ruling, issued in December 2004, allowed the governor’s office to withhold Vought documents because they included confidential business information and because the Enterprise Fund had not yet issued a grant to encourage the aircraft company to move to Texas.

Four months later, Abbott’s office issued an amended ruling requiring Gov. Rick Perry to release a 14-page letter — with information redacted that could help Vought’s competitors — from Vought’s chief executive requesting an Enterprise Fund grant.

The initial ruling was based on a mistaken belief that Vought had not yet received Enterprise Fund money, the later ruling said. Because the $35 million grant had been awarded a year earlier, the Vought letter could no longer be considered a “draft” document that would be exempt from disclosure, the ruling said.

“As attorney general, Greg Abbott’s record of protecting open government in Texas is unmatched,” Abbott spokesman Jerry Strickland said last week. “Attorney General Abbott doesn’t just talk about protecting open government laws — he has continually worked to improve open government education, push for transparency and strictly enforce the state’s open government laws.”

Davis’ campaign, however, has noted that Abbott’s office also allowed Perry to withhold similar documents from four other companies that had already been awarded grants but had not submitted formal applications.

Davis, who has called for an outside investigation into the attorney general’s oversight of the Enterprise Fund, said Abbott has not yet explained how he could deny access to applications “he knew didn’t exist.”

Election Day is Nov. 4. Early voting will begin Oct. 20.