Recent rulings by the Texas Supreme Court have hidden records long regarded as public, such as contracts between a governmental body and a private business, and have contributed to growing secrecy about how state and local authorities spend your tax dollars.
Troubled by that trend, a Republican in the House and a Democrat in the Senate will file bills Tuesday to strengthen the state’s open records law. The Texas Public Information Act was once touted as among the strongest in the nation, but recent court rulings and decades of attorney general opinions have chipped away at it.
Rep. Giovanni Capriglione, R-Southlake, and Sen. Kirk Watson, D-Austin, are carrying the identical bills, which will take aim at two rulings open government experts say advance corporate interests at the expense of the public interest.
The first decision, in Boeing vs. Paxton, essentially made secret contracts and other documents that detail billions in deals between private businesses and all branches of Texas government, from local school boards all the way up to the governor’s office. The Supreme Court ruled, essentially, that contracts should be kept secret from the public to protect companies whose competitors could gain an advantage from their publication.
In McAllen, for instance, taxpayers can’t find out how much the city paid Latin pop singer Enrique Iglesias to sing at a holiday show – the sort of transaction that before last year could unquestionably be released to the public.
“To me, that is so against the entire principle of accountability and transparency,” Capriglione said. “This is taxpayer dollars that must be disclosed.”
The ruling also gave companies the power to invoke the law, meaning they can step in on a citizen’s records request.
“Now, effectively any business can say, ‘Hey, you know what? I don’t want that information released,' “ Capriglione said.
With the help of open government advocates and news organizations, the two lawmakers also intend to press reset after Greater Houston Partnership vs. Paxton. That 2015 ruling undid a three-decade-old precedent requiring nonprofits that use public funds, essentially acting like governmental bodies, to open their books to the public.
Private entities that perform government services on behalf of governments abound in Texas, and with respect to public records, were treated much like a state agency or city. But last year, the Supreme Court ruled that the Greater Houston Partnership did not have to disclose its finances even though it handled economic development for the city of Houston and was funded, in part, by public money.
Watson said that ruling could allow cities to outsource work to shroud their use of taxpayer dollars.
“You can’t do government activity wrapped in the cloak of a private entity, so that you avoid open access to records and access to open government,” he said.
“There have been some troubling trends with regard to open records and open government,” Watson said.
Ironically, the rulings obscuring government contracts and spending came the same year lawmakers passed sweeping reforms to increase transparency and oversight of government contracts. The reforms were spurred by news reports that found an Austin-based technology company, 21CT, had procured a multimillion-dollar contract without competition and with the help of a top-level state official with ties to the company.
The documents used in that reporting, which prompted several high-profile resignations and led to the cancellation of a $90 million contract extension with 21CT, would be kept secret because of the Boeing vs. Paxton ruling.
The Legislature moving to reverse public records rulings is unusual. And the rulings indicate a souring of the court’s sentiment toward the interests of news organizations, which have in recent years lost key libel and records lawsuits.
Kelley Shannon, executive director of the Freedom of Information Foundation, said those setbacks have compelled groups that might have once sought help from the courts to appeal to lawmakers. Those groups include the Texas Newspaper Association, the Texas Association of Broadcasters and various cities and counties, she said.
“The common theme is a lot of court rulings have muddied the waters on the Texas Public Information Act,” Shannon said.
Some of the records setbacks on Shannon’s radar might seem obscure but have become broad obstacles to the release of public information. For instance, a court ruling that governments must withhold birthdays in public records has, among other things, made it difficult for media outlets to distinguish between two people of the same name in arrest records.
Similarly, citizens and journalists have had trouble finding candidates’ birth dates, which are necessary to do criminal background checks or ensure a candidate meets age requirements to run for public office.
“We’re trying to get it back to where the Texas Public Information Act is one of the strongest in the country and is not to be tampered with and is to be liberally construed to lead to the release of public information,” Shannon said.