Another test of a new state law by Rep. Vicki Truitt has allowed a public pension fund to withhold information that Truitt said she wanted the public to see.
The Teacher Retirement System of Texas does not have to make public a list of the 10 highest average salaries used to compute retirement benefits and the related monthly annuity amounts for May 2010 retirees, a state district court judge ruled Thursday. The TRS has said that the information, requested by the Star-Telegram, could be used to deduce the identities of retirees and that Truitt's bill, HB2460, gave it authority to withhold the records.
The TRS, a taxpayer-supported pension, also said in a court filing that because of the new law, it has "exclusive discretion" over what information it deems public. The judge's ruling did not address that claim.
Open-government advocates said the new law is flawed.
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Media attorney Joseph Larsen, a board member of the Freedom of Information Foundation of Texas, said the judge probably ruled correctly because "that is the way the law is written." He said he would call on Truitt, R-Keller, to revisit the law.
"This is contrary to the democratic principles of our government, and it needs to be fixed," he said.
Rhonda Price, a spokeswoman for the TRS, said the agency is committed to operating in an "open and transparent way."
But, she said, the "TRS is also committed to protecting information required by law to be kept confidential," such as information about members and retirees and investments, as well as information that, if released, would place the system at a competitive disadvantage in conducting business on behalf of the trusts administered by the TRS.
The "TRS is currently involved in open records litigation, as you are aware, and has no comment about any specific litigation," she said.
In an e-mailed statement Friday, Truitt said the lack of disclosure was not an intended outcome of the legislation. "Certain key information about public pension plans should absolutely be made public," she wrote.
But she also wrote that the privacy of individuals should be protected. "There is bound to be a way to balance the privacy rights of individuals with the public's right to information," she wrote, adding that she will work toward a "reasonable solution" in the next legislative session.
Her office has previously said that she included a provision giving pension plans sole discretion in releasing information to prevent an inordinate numbers of appeals to the attorney general's office and that it's clear that pensions can't issue wholesale denials for benefits information and other data. The only information that is protected, Truitt's office said, is "identifying" information about specific members of a retirement system.
The Star-Telegram request, by reporter Yamil Berard, stipulated that she did not ask for identifying names or titles.
After the request, the Teacher Retirement System asked the attorney general for an opinion, saying that if the information were made available, it could identify one or more retirees by using superintendent salary reports available through the Texas Education Agency.
The attorney general ruled in May that the TRS must release the information. The agency then sued the attorney general, and the Star-Telegram later intervened in the case, filed in state district court in Travis County.
While the case was pending, HB2460 was enacted. The newspaper had said the law did not apply to an information request made before the law took effect, on Sept. 1.
In court documents, the attorney general had said the TRS "is not permitted to withhold the requested information ... because the information at issue is aggregate non-identifying information which is not a "record" exempted ... under the newly-enacted statute."
Judge Rhonda Hurley granted summary judgment to the TRS but did not explain the reason for her ruling.
"This is a great example of why this is a bad law for the public's right to know," said Jim Witt, senior vice president and executive editor of the Star-Telegram. "At a time when government pension information ought to be more accessible, the Legislature has decreed it should be less so. Incredibly, the law appears to exempt the TRS from having to comply with any part of the Texas Open Records Act."
Truitt is on record as saying her legislation would prohibit municipal pension funds from denying access to aggregate and financial information about retirement benefits and financial obligations. She had said that House Bill 2460 scrapped old exemptions that blocked taxpayers from pension data.
"When taxpayers help fund public pensions, they have a right to know how their money is being used," she told the Star-Telegram in July.
In the first legal test of the law, another state district judge in Austin ruled that the Fort Worth Employees' Retirement Fund has sole discretion to determine what information to release to the public regarding those drawing a public pension. That decision set aside an attorney general's opinion involving a public information request by the Star-Telegram for data on lump sum payouts to some recent retirees.
Darren Barbee, 817-390-7126