Corpus Christi Caller-Times: Texas’ top court downsized the right to know

Corpus Christi Caller-Times
Originally published Oct. 4, 2015

Among the most basic of the reasons for We the People to have a right to know is so we can review how our government is spending our money.

The Texas Public Information Act protects this right, with careful exceptions meant to protect commerce without infringing on this basic right. An example is the right of a private company that contracts with the state to protect trade secrets that make its products or services unique.

Recently, the Texas Supreme Court extended private companies’ right to keep secrets from the public way too far. In a 7-1 ruling leaving dissenting Justice Jeff Boyd as the lone defender of the public’s best interests, the court has decided that Boeing, the Seattle aerospace giant, could withhold financial details of a lease of public property — the former Kelly Air Force Base in San Antonio.

Boeing had been fighting since 2005 against disclosing details such as its share of maintenance costs and its insurance obligations. There are a few rare secrets that even we advocates of the fullest possible disclosure would concede — begrudgingly — are worth keeping. But these aren’t those. We’d understand if the request were for the Boeing equivalent of the Colonel’s 11 secret herbs and spices. But Boeing wasn’t fighting disclosure of how to build an aircraft nobody else knows how to build.

What was at stake were mostly financial secrets — cost-of-doing-business stuff. The court decided that Boeing had a right not to risk giving competitors the advantage of knowing Boeing’s overhead costs. The court also decided that the advantage didn’t have to be decisive. Any advantage at all would be too much of an advantage.

Because, heavens to Betsy, theoretically somebody else could use that kind of information to outbid Boeing. And we wouldn’t want that to happen, now would we?

Oh, wait a minute, yes We the People would. If it’s a government contract, the taxpaying public would benefit from either a better bid by a competitor or a more competitive bid by Boeing.

Private companies should know and accept that there are risks and responsibilities involved when they contract with the government. If the risks weren’t well worth it, there would be no government contractors.

The public right given up by the court to protect Boeing from acceptable risk is unacceptable. As the Freedom of Information Foundation of Texas pointed out, contracts between governments and private companies traditionally are what’s known as “super public” except for those aforementioned rare exceptions. The Colonel can keep secret how he makes chicken, but seriously, if he has contracted with the government to make chicken, his cost of chicken shouldn’t be kept secret from the ultimate buyer of the chicken.

The request for the lease information came from a former Boeing employee — not that who asked for it, or why, matters. Who asked for it is a matter of public record. Why is supposed to be nobody’s beeswax according to the law. Any individual should feel comfortable exercising the right to request public information as did this former Boeing employee. We point this out because not enough people know they have this right and they might feel intimidated trying to exercise it.

It’s unfortunate that the court put the rights of this intimidating large corporation first, thus extending the rights of large, intimidating corporations at the expense of those it should protect. We rue the chilling effect of this ruling. The Legislature should undo the damage at its first opportunity.