Texas Supreme Court limits reach of open government law with GHP ruling

By Mark Collette
Houston Chronicle
Originally published June 26, 2015

In a 6-3 opinion with profound reach on the state’s open government laws, the Texas Supreme Court on Friday decided that Greater Houston Partnership doesn’t have to open its check registers, even though it receives funds from the city of Houston.

The case stemmed from a 2007 request by Jim Jenkins of Montgomery County, who wanted to see how GHP spends the city’s money. GHP, the region’s major economic development group, argued that it wasn’t a governmental body for the purposes of the Texas Public Information Act, and eventually sued to block disclosure of its finances.

The Texas Attroney General, a trial court and an appellate court each previously ruled that GHP must open its books because, although it runs primarily on membership dues, it performs work for the city that makes it, in essence, an extension of the government.

With this ruling, the Supreme Court has said that an organization – or the part of an organization supported by public money – is not a governmental body unless it receives enough funds that it couldn’t exist without them. The entity must be “sustained” – not merely “supported” – by the government to qualify as a public body, the majority reasoned.

The court’s three dissenting justices wrote that this upends 40 years of precedent. But the majority said the full context of the Public Information Act makes it clear that the Legislature never intended it to reach groups like GHP.

The opinion was anxiously awaited both by open government advocates and by other groups that sometimes straddle the line between public and private. Chambers of commerce from around the state and the Harris County Democratic and Republican parties had supported GHP’s case, hoping to avoid public records requests.

GHP plays a significant role in Houston’s economic development programs, courts new business for the city and plans mayoral business recruiting trips. It also analyzes business prospects to help City Council determine whether to offer incentives.

Jenkins, a small business owner, complained that there is too much money and politics at play in the way businesses get taxpayer-funded incentives, creating a field of “haves” and “have nots” based on political access. He argued that GHP’s expenditures would shed light on that process.

For decades, it has not mattered how much government money a private entity like GHP receives – even the smallest contribution of public funds could mean that it was required to release public information, if it passed a series of legal tests. Those included determining whether the entity functions as an arm of the government.

For example, a nonprofit water supply corporation was subject to the public records law because it performed services traditionally provided by the government.