By Kelley Shannon
Those of us who keep a close eye on Texas’ evolving open government laws watch the state Legislature for signs of change. We also look at how local and state government agencies carry out these laws to see if they are working.
But we must focus on the courts, too.
Troubling rulings by the Texas Supreme Court and lower courts are watering down our Texas Public Information Act, long considered one of the strongest in the nation.
The momentous law, which originated as the Texas Open Records Act in the early 1970s amid citizen frustration after the Sharpstown stock fraud scandal, is based on the public’s right to know. It presumes government records are open.
If a governmental body wants to withhold information, it can attempt to do so using one of the exceptions spelled out in the law. In most cases it must ask the Texas Attorney General’s Office for permission to do it on a case-by-case basis.
That said, some cases end up in court, and the Texas Supreme Court twice last year interpreted the law in ways that made it easier to keep information secret.
The court decided the non-profit Greater Houston Partnership did not have to open its financial books to the public because it was not a governmental body, even though it performed economic development duties for the city of Houston and was supported in part by public funds.
Another disturbing decision involved the aerospace company Boeing operating in San Antonio. The court ruled that a private party doing business with the government can have its information in government documents withheld if releasing it would give advantage to a competitor. Furthermore, governments can now more easily withhold their own information on those grounds.
The result? Information is getting closed off in seemingly straightforward cases of public interest, such as the city of McAllen keeping secret how much taxpayer money it paid for singer Enrique Iglesias to perform at a holiday concert. The city says it doesn’t want to be at a competitive disadvantage when negotiating with future entertainers.
In the pivotal Texas Supreme Court rulings, Justice Jeffrey Boyd led the dissent, stating specific legal concerns and noting the overarching theme that the Public Information Act declares it “shall be liberally construed in favor of granting a request for information.” He also offered this point:
“The necessary corollary is that we must narrowly construe the Act’s exceptions to disclosure.”
That makes sense. Presume openness. Limit the withholding of information.
Lawsuits affecting public access also are in play in regional state appellate courts. One of them is a pending case in Dallas connected to the larger controversy over development at Fair Park. The non-profit State Fair of Texas sued an attorney who requested its records. The State Fair claimed it’s not a governmental body and not covered by the Public Information Act.
A trial court dismissed the case and financially sanctioned the State Fair for filing it. But the State Fair appealed, and the appellate court has sided with the fair.
It raises the question of what if an everyday citizen – without the money to hire an attorney – ended up sued in court simply for asking for information from an entity that’s not covered by the Texas Public Information Act. (Governmental bodies covered by TPIA cannot sue a requestor for making a request.)
Several other court cases could negatively impact citizen access to information and will be discussed at the Freedom of Information Foundation of Texas state conference Sept. 8 in Austin.
Efforts are under way, meanwhile, to further clarify and strengthen the Public Information Act in the 2017 Legislature.
It’s hoped that our current state lawmakers, like their predecessors, value open government as a foundation of our democracy. The people’s right to know is at stake.
Kelley Shannon is executive director of the non-profit Freedom of Information Foundation of Texas, which advocates for open government and the First Amendment rights of free speech and press. Click here for more information on the foundation’s state conference Sept. 8.