Watson, Capriglione bills close loopholes in open records law

Tuesday, January 3, 2017

Kate Alexander, Office of Sen. Kirk Watson: (512) 463-0114
Courtney Roberts, Office of Rep. Giovanni Capriglione: (512) 463-0690

Watson, Capriglione bills close loopholes in open records law

Texas Rep. Giovanni Capriglione and Sen. Kirk Watson filed two pieces of identical legislation on Tuesday to close loopholes in the Public Information Act that were created by recent Texas Supreme Court rulings.

“Taxpayers have a right to know how their money is being spent,” Rep. Capriglione said. “The original intent of the Public Information Act was to be as permissive as possible in favor of the citizens of Texas. The bills filed today will get us back to that intent and bring Texans true transparency. As the first bills I have filed this session I hope to underscore their importance to citizens and legislators alike.”

The stated purpose of the Texas Public Information Act is to enable the people to remain informed so they can retain control over their government, but that purpose has been undermined by these court rulings that have closed off access to information once deemed clearly public, Sen. Watson said.

“Unfortunately, two recent decisions from the Texas Supreme Court weakened the law by allowing governmental bodies and private entities that receive public funds to more easily conceal their dealings,” Sen. Watson said. “I believe it is our duty as the Legislature to ensure the people of Texas can track how government spends public money, and I’m proud to work with Rep. Capriglione to do just that.”

Sen. Watson and Rep. Capriglione worked with a broad coalition of interested parties to craft these bills. This group includes the Attorney General’s Office, Freedom of Information
Foundation of Texas, Texas Press Association, Texas Association of Broadcasters, Texas Municipal League, Texas Association of Counties and Texas Conference of Urban Counties.

Boeing v. Paxton (2015) greatly expanded the competitive bidding exception to the Public Information Act in two ways:

1. It allowed private entities to claim the exception; and 2. It allowed the exception to apply to final, awarded contracts.

In essence, these changes transformed the competitive bidding exception into a second, lax trade- secrets exception. This expanded exception now allows private entities benefiting from public funds to shield basic information like price because at some point they may compete for the contract again.

The legislation would undo this damage by limiting the competitive bidding exception to those cases when a governmental body demonstrates that the release of information would harm its interests “in a particular competitive situation.” Furthermore, the bills explicitly state that the exception does not apply to finalized government contracts.

Greater Houston Partnership
Greater Houston Partnership v. Paxton (2015) redefined when publicly-supported private entities must comply with the Public Information Act.

For more than 30 years before this case, Texas relied on the Kneeland test, which protected the public’s ability to monitor public funds. In Greater Houston Partnership, the Texas Supreme Court abandoned the Kneeland test and said the Public Information Act only applies if a private entity is “sustained” by public funds. This is a much higher threshold that seems to ignore the Act’s text, which covers any private entity “that spends or that is supported in whole or in part by public funds.”

This legislation restores this protection by codifying the Kneeland test, which holds that a private entity must comply with the Public Information Act if it:

 Receives public funds, unless the funds are received pursuant to an arms-length contract for services;
 Receives public funds under a contract that indicates a common purpose or creates an agency-type relationship with the public entity; or
 Provides services traditionally provided by a governmental body.