Open government advocates optimistic about Texas legislative session

By Eva-Marie Ayala
The Dallas Morning News
Originally published May 20, 2015
AUSTIN — Texans are likely to get greater access to campus police records and public meetings online.

But after a group secretly taped lawmakers in Austin, some are wary of legislation that could make it harder to record audio without the consent of all recorded.

A variety of bills still in play in the final days of the legislative session will affect government transparency, and so far, major legislative efforts are falling on the side of open government.

“Until the last day of the session, it’s just too early to tell where we’ll be, but we’ve had good progress,” said Kelley Shannon, executive director of the Freedom of Information Foundation of Texas.

The caution is common until the final gavel falls. Measures that appeared to have died could suddenly be revived. Others that have gained approval from both chambers could ultimately end with a veto by Gov. Greg Abbott.

But Rep. Todd Hunter, R-Corpus Christi, a longtime advocate for open government, says he’s optimistic.

“The thing about open records and open government is that people are understanding it more,” Hunter said. The Legislature “is becoming more educated on freedom of speech and First Amendment issues.”

One of his bills would expand the defense against libel lawsuits. News organizations could argue that they accurately reported on allegations of wrongdoing, even if the allegations turned out to be false. The bill would allow for continued reporting on issues such as the treatment of incarcerated youth or questionable dealings in state contracts.

The measure, a response to a 2013 Texas Supreme Court ruling against a television station accused of libel, now awaits the governor’s signature.

“This is a significant bill for Texas citizens because many times the way we find out about wrongdoing is through the press,” Shannon said.

One of Hunter’s bills would have clarified open-records laws requiring government officials to hand over private emails and text messages dealing with public business. Such information is already public under the law.

The bill did not get a vote in the House, but Hunter said efforts to attach the measure to a Senate bill look promising.

Meanwhile, open-government advocates are celebrating the passage of a bill that awaits Abbott’s signature.

This week, the House passed a measure by Sen. John Whitmire, D-Houston, that requires police at private universities to release information such as crime reports. Texas would be one of only three states to require such disclosure.

Though such departments are commissioned by the state, most have been reluctant to disclose routine police information.

The family of a Southern Methodist University student who died of an apparent overdose fought for more than a year to get a copy of the police report. In another case that inspired the legislation, Rice University officials refused to disclose video showing police officers using a baton on a suspect during an off-campus incident.

Another bill, by Rep. Pat Fallon, R-Frisco, that passed the House last week would require more school boards and cities to post videos of meetings online so busy residents can keep tabs on government business.

Playing defense

In some cases, advocates of open government are playing defense.

One bill expected to fail would significantly curtail the ability to record conversations in Texas by requiring all parties to grant permission first. Currently Texas, like most states, requires only one person in the conversation to consent.

The bill was introduced weeks ago by Sen. Paul Bettencourt, R-Houston. But it came up for a committee hearing last week after news broke that a group had been secretly recording lawmakers, looking for examples of wrongdoing and hypocrisy.

The late date of the hearing made the bill unlikely to pass this session, as deadlines approach this week. But senators clearly indicated they were interested in such legislation amid fears their colleagues had been taped without their consent.

“In the digital age, there is the affinity for people to record daily events,” Bettencourt said at the hearing. “Obviously, Texans do and should enjoy some expectation of privacy.”

However, opponents of the bill indicated they were concerned about crime victims trying to obtain proof of wrongdoing, consumers documenting interaction with companies or agencies, and media reporting news. Broadcasting groups noted that current law already addresses privacy issues.

The departed

A handful of other bills that could have significantly limited transparency died in committees without gaining much traction.

One bill would have made it optional for government agencies to respond to open-records requests from non-Texans.

The measure was filed by Rep. Mike Schofield, a Katy Republican who worked for former Gov. Rick Perry. The governor’s office was often inundated by requests from media outlets across the country that scrutinized his travel spending, emails and other public documents.

Such media “thought they would be guardian of email or ethics of Texas,” Schofield said at a committee hearing. “Our government belongs to us and ought to answer to us.”

But others argued that such a law would have hindered business development, academic research, estate transactions and even law enforcement capabilities.

A representative from the database company LexisNexis noted that many agencies across the nation use its service, which compiles public records, to help investigate crimes such as money laundering, insurance fraud and even human trafficking.

One North Texas lawmaker, Rep. Jason Villalba, R-Dallas, pulled a bill that would have limited the right to record video of police. It would have made it illegal for a nonjournalist to do so within 25 feet, prompting a public backlash amid questions around the country about police shootings.

Despite the progress, a handful of bills chip away at open government, Shannon said.

For example, a bill awaiting Abbott’s signature would create secrecy in execution procedures by concealing information about who was involved, including drug suppliers.

“Every session, there is always some give and take,” Shannon said.