Out of state, out of luck? Restraint on outside access among open records bills

By Allison Wisk
The Dallas Morning News
Originally published Feb. 11, 2015

Interest in prioritizing open government may wax and wane in the state Legislature. But as the first month of the legislative session draws to a close, a host of bills offered by lawmakers could impact the reach of the state’s sunshine law, the Texas Public Information Act.

Most of those bills seek to carve out exceptions to disclosure of public information in other laws. But some legislators have proposed revisions to the language of the Public Information Act to change who is entitled to receive information, and what they are able to obtain.

State Rep. Mike Schofield, R-Katy, offered a bill last week that would allow government entities to refuse service to those who do not live in Texas.

Schofield said the bill is meant to clarify the Public Information Act, which, he said, “has no guts.” It would sharpen the act’s language to let public employees know to whom they must answer — and make clear which requests records custodians may ignore.

“This is a simple bill to say, ‘Texas government is responsive to Texans.’” Schofield said.

The bill was prompted in part by Schofield’s experience working as counsel and advisor to former Gov. Rick Perry, whose office, he said, fielded numerous requests from “outside individuals that would take it upon themselves to decide that they were the lead person on some area of Texas government.” Time spent on those requests should instead be devoted to helping Texans, he said.

Schofield said newsgathering originating from other states should not be impacted by a change to the law. Pointing to reporting on former Virginia Gov. Bob McDonnell’s corruption scandal and subsequent prosecution, Schofield cited that state’s transparency law as an example of a successful open records act with language that limits rights to those inside the state.

“In my experience, most outside reporters call people for interviews,” he said.

While the bill does not mandate refusal of service to those outside the state, it does allow records custodians to ask for proof of primary residency in Texas before they decide to provide public information. If it isn’t offered up, the records custodian has the discretion to put the request aside. Unless out-of-state requestors can find another person living in Texas to obtain the information, they may be out of luck.

“They’re not entitled to command it,” Schofield said.

Other lawmakers are seeking to rework portions of the Public Information Act to widen the reach of the law in criminal justice matters.

Information about official oppression complaints against police officers could become public under a bill offered by state Rep. Borris Miles, D-Houston.

Under legislation proposed by state Sen. John Whitmire, D-Houston, information about private university police at schools such as SMU would be subject to disclosure under the Texas Public Information Act.

State Sen. John Whitmire, D-Houston, chairman of the Senate’s Criminal Justice Committee, has also filed a bill to make private university campus police departments subject to the Public Information Act.

The move came in response to a 2013 incident involving Rice University campus police officers who were filmed using batons to beat a suspected bicycle thief. A Harris County grand jury later chose not to indict the officers.

“When we asked for the investigation [information], the incident report and even a video, they said they were not covered by open records [laws],” Whitmire said. “And we said, ‘No, the state licenses and certifies your peace officers.’”

State Sen. Van Taylor, R-Plano, and Rep. Jason Villalba, R-Dallas, have filed the“Private School Marshall Act,” which provides for armed guards on campus. The act would makethe identity of those guards confidential under open records law.

A bill and amendment to the state Constitution offered by state Rep. Debbie Riddle, R-Spring, would remove the state’s Public Integrity Unit from the Travis County District Attorney’s Office to place it under the jurisdiction of the Attorney General. The filings were made in reaction to a Travis County grand jury’s indictment of former Gov. Rick Perry last summer on felony charges of abuse of official capacity and coercion of a public servant. The charges came after Perry threatened to veto funding for the unit unless Travis County District Attorney Rosemary Lehmberg offered her resignation following a drunk-driving arrest.

Information provided by law enforcement officials to the Public Integrity Unit is confidential under Riddle’s bill. While the open records law exempts most investigatory materials from disclosure, it lists “a completed report, audit, evaluation, or investigation made of, for, or by a governmental body” as examples of what’s informally known as “super public” information. A call to Riddle’s office to determine the intended scope of the bill’s confidentiality provision was not returned.

Last month, The Dallas Morning News published the results of a yearlong investigation into compliance with the state’s open records law among 113 government agencies in North Texas. The study found systemic violations among cities, counties and school districts in the area.

The News sought comment on the open records law and the findings of its study from new attorney general, Ken Paxton, whose office oversees enforcement of the Public Information Act. Paxton’s spokesperson, Cynthia Meyer, said he was not available for an interview.

Instead, a statement was released through his press office.

“For more than 40 years, Texas’s open government laws have worked to promote transparency, inspire public confidence and hold governmental bodies accountable,” he said. “The Office of the Attorney General is committed to ensuring the open government process by monitoring governmental bodies’ compliance with open government laws.”