Some Texas records now closed in wake of state Supreme Court ruling

By Steve Miller
Texas Watchdog
Originally published July 30, 2015

An economic development group in Fort Bend County is no longer subject to the state’s open records law in the wake of a game-changing state Supreme Court ruling in June.

The Texas Attorney General Office’s open records division has ruled the Greater Fort Bend Economic Development Council is not a public body, reversing a ruling it made in March regarding the same group before the high court edict.

The new AG ruling concludes that under the provisions of the Supreme Court decision, the Fort Bend council is not subject to open records because it has no elements that are sustained by government funds.

“The Texas Supreme Court has defined ‘supported in whole or part by public funds’ to include only those private entities or their sub-parts sustained, at least in part, by public funds…” the July AG ruling reads. And because the Fort Bend group contends it could operate without the 16 percent of its funding that comes from local governments, “the council does not fall under the definition of “a government body.”

The Supreme Court decision allows third-party groups to conduct business on behalf of government, using public money, without being required to divulge the expenditures of that money.

The AG in March ruled in favor of requestor Yvonne Larsen, a Missouri City resident and blogger at the conservative Big Jolly Politics site, and forced the Fort Bend group to turn over a portion of its check register and contracts.

In April, Larsen sought more information, including more check register information and personnel time sheets.

The Fort Bend group appealed to the AG, contending it was not subject to the state’s open records law.

Earlier this month, it received a letter from the AG’s office asking it to frame its argument against disclosure in light of the Supreme Court ruling.

In its response, the Fort Bend group relied heavily on the decision in successfully thwarting the inquiry, concluding “Using the GHP decision as applicable law, as is required, the (Fort Bend group) meets all of the criteria to be deemed a private entity not subject to the (Public Information Act).” …

The Supreme Court decision distressed open government advocates, who fear cities and counties can now form tighter relationships with private groups who sometimes perform undefined business and spend public money without having to disclose it.

“It’s going to snowball because as it is, the (Supreme Court) opinion is written and as you can see, the AG will treat it as the law of the land,” said Joe Larsen, an open records lawyer in Houston and board member of the Freedom of Information Foundation of Texas. He is unrelated to requestor Yvonne Larsen.

Most significantly, the July AG ruling ignores the Kneeland test, as the Supreme Court’s decision did.

The test, named after a 1988 federal case in which a Texas broadcaster, Carole Kneeland, successfully challenged the NCAA to obtain records from a college football program, established a precedent for determining if a private entity receiving public funds is subject to open records.

It has been the crux of dozens of decisions in the state under which economic development groups funded wholly or in part by government groups must without a vendor relationship must turn over work funded by taxpayer money.

Aside from her role as a blogger, Yvonne Larsen said she is simply a concerned taxpayer.

“I’m a voter who pays taxes,” she said. “I work for a Fortune 500 company and I have no financial interest in this other than that my husband and I pay taxes in Fort Bend County.”