Some Texas lawmakers want to close open records loophole

By Nicole Cobler
San Antonio Express-News
Originally published Feb. 28, 2017

Some state lawmakers are aiming to close an open records loophole in light of a 2015 Texas Supreme court ruling that allows governments to withhold records turned over to agencies by businesses.

Lawmakers debated a slew of open records legislation in a Senate hearing Tuesday, including Sen. Kirk Watson’s bill that responds to the 2015 Boeing ruling by the state’s highest court, which blocked the release of some details of a lease between the Boeing Co. and the Port Authority of San Antonio because the aerospace manufacturer said making the details public could tip off its competitors.

The 7-1 decision in the Boeing v. Paxton case has allowed other businesses to assert that they could be at a competitive disadvantage if records they turn over to a government agency are made public.

Justin Gordon, the open records division chief at the Texas Attorney General’s office, said his office has seen an increase in the number of third party entities using the Boeing decision to withhold information that had been previously made public.

“More information is being withheld,” Gordon said, adding that businesses previously were using the state’s trade secret exception to withhold records. “Now it’s almost primarily using the Boeing decision.”

Gordon said the attorney general’s office saw roughly 600 cases in 2016 in which third-party entities withheld information using the Boeing decision. The office has issued 75 similar opinions in 2017 so far.

Watson told lawmakers his bill would restore the standard before the ruling that required a business prove the information was a trade secret before it could be exempt. In Tuesday’s packed hearing, Watson said citizens should be allowed to know where their tax dollars are being spent. The bill is opposed by several business groups, including the Texas Association of Business.

“When TAB says the reason they want to stay with Boeing is because it gives more protection to the business, that is at the expense of the public’s right to know,” Watson said.

Chris Wallace, president of the Texas Association of Business, testified against the legislation Tuesday, calling it “problematic to many of our members” because it requires businesses to disclose trade secrets and confidential information.

The Boeing ruling has been at the center of several major records request battles. It allowed the city of McAllen to withhold information on how much money singer Enrique Iglesias was paid for a Christmas concert. In Houston, it allowed the ride sharing company Uber to withhold records on its drivers in the area.

The Monitor, the largest daily newspaper in the Rio Grande Valley, filed the request for information on city expenditures for McAllen’s Christmas parade in 2015. The newspaper’s request was denied under the Boeing ruling, said opinion editor Sandra Sanchez.

“To this day, taxpayers in McAllen still do not know how much Enrique Iglesias was paid with taxpayer money,” Sanchez said during testimony in favor of the legislation.

Lawmakers also heard from Watson about another open records bill filed in response to the recent Texas Supreme Court ruling, Greater Houston Partnership v. Paxton. The 2015 ruling redefined when publicly-supported entities must comply with the state’s Public Information Act.

The court ruled to abandon the long-standing “Kneeland test,” which protected the public’s ability to monitor public funds. It required that a private entity receiving public funds or providing services generally performed by a governmental body is subject to open records laws.

Watson called the ruling “very problematic for the Texas Public Information Act.” His bill would codify the Kneeland test.

“This test worked well for decades because it recognizes that the public has a right to know how public funds are spent even when the government uses privatization to complete its work,” Watson said.

As with his Boeing legislation, Watson’s Kneeland bill also is opposed by business advocates. Jeffrey Wiley, CEO of Greater Fort Bend Economic Development Council, said the legislation should be rejected by the committee because the Kneeland test is too broad.

“We think there’s other ways of disclosing how government funds are being spent,” he said, arguing that lobbying reports and other forms required by the Texas Ethics Commission are enough to keep the public in the know.

Substitutes offered up Tuesday to Watson’s open records bills were left pending in committee. A spokeswoman for the senator said they were left in committee as a matter of course, not because of a lack of support from lawmakers on the committee.

Several other open government bills also were left pending in the committee. One would require governmental public meetings be livestreamed. Another would allow home address information on property tax appraisal records be kept confidential.