The Texas House has thwarted an effort to patch what some called “glaring loopholes” in public records law, recently punched by the Texas Supreme Court.
In a last-ditch maneuver last week, the Senate attached a slew of amendments aiming to bolster access to government information — key provisions of bills languishing in a House committee — to legislation the House had already approved. The aim was to muscle the proposals to Gov. Greg Abbott’s desk all at once.
But the House parliamentarian Thursday ruled the amendments were not relevant to Rep. Eddie Lucio III’s House Bill 2328, which would expedite information requests at some government agencies. The ruling, which Lucio said he supported, effectively killed or put on life support several proposals advocates described as crucial to shoring up the Texas Public Information Act in response to court decisions.
The amendments would have:
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▪ Reversed the effects of two 2015 Texas Supreme Court rulings that have helped private companies shield parts of their government contracts from Public Information Act requests;
▪ Cracked down on — and potentially disciplined — officials who try skirting public records law by refusing to turn over public information resulting from official business conducted on personal electronic devices;
▪ Reversed part of a 2010 Texas Supreme Court ruling that said government employee birthdates were no longer public records;
▪ Clarified some government duties in responding to public information requests.
Kelley Shannon, executive director of the Freedom of Information Foundation of Texas, lamented the House ruling Thursday.
“Transparency advocates negotiated for the past year with government officials, businesses and others on solid proposals to repair and strengthen the Texas Public Information Act,” she said in a statement. “But forces that sought to keep the public in the dark appear to have won out.”
The Texas Association of Business had voiced concerns about some of the proposals. And Rep. Gary Elkins, who chairs the House Committee on Government Transparency and Operation, has said his committee members found them problematic for a variety of reasons, including privacy considerations.
Sen. Kirk Watson, D-Austin, who pushed for the amendments in the Senate, expressed disappointment in the House ruling.
“Open government took a severe blow today,” he said in a statement. “Ensuring access to basic public information was — and still is — simply too important to let these bills die quietly.”
Watson suggested there was still time — “if there’s the political will” — to pass two bills whose provisions he tried to attach to Lucio’s legislation: SB 407 and 408, which respond to pair of Supreme Court rulings that allow private companies doing business with the government to keep parts of their contracts secret.
But it appears unlikely those bills, opposed by business groups, will reach the House floor.
In June 2015, the Texas Supreme Court ordered Texas Attorney General Ken Paxton to block the release of information in a lease between Boeing and the Port Authority of San Antonio because the aerospace manufacturer said making the details public could tip off its competitors.
That ruling expanded the secrecy by broadening an exemption in public records law used to protect the government’s competitive interests and by affirming that businesses could also invoke it. Hundreds of entities have since cited that ruling in asking Paxton to shield contracting details that were previously considered public.
SB 407 sought to reverse that trend by limiting the competitive interest threshold governments could use to withhold information. It states that all finalized contracts would be released.
SB 408 responded to a separate 2015 Supreme Court opinion. The justices ruled that the Greater Houston Partnership, which received some public funds, could withhold details of contracts for economic services because it was not entirely dependent on public funds. The ruling narrowed the definition of groups subject to open records law.
The Senate easily passed both bills in March, but both are stuck in Elkins’ committee, where they don’t have support.
“Everything does not rise to the level of a trade secret, but just because you do business with a government identity, you should not have to disclose to the public all of your thought processes,” Elkins said last week about SB 407. “We do not want to reveal the methodology about prices.”