Two lawmakers backed by a broad coalition of public information advocates on Tuesday filed bipartisan legislation to reverse the impact of court decisions that they said created an “enormous” loophole in the Texas Public Information Act, regarded as one of the strongest open government laws in the nation.
“If we don’t get this fixed in this session, then over the next two years the public information act will effectively be moot,” said Rep. Giovanni Capriglione, R-Southlake, as he joined Sen. Kirk Watson, D-Austin, in announcing the introduction of two bills designed to shore up the 1973 public information act in the aftermath of two decisions returned by the Texas Supreme Court in 2015.
The rulings ignited a fierce backlash from open records advocates by curtailing access to previously-obtainable public records held by private entities doing business with the government.
The decisions stemmed from cases involving Greater Houston Partnership, a so-called super chamber of commerce that holds millions of dollars in consulting contracts with Houston and area municipalities, and a Boeing aerospace company in San Antonio.
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In introducing the bills a week before the Jan. 10 start of the 2017 Legislature, the lawmakers said the proposed open records protections are urgently needed to reverse a growing series of government decisions to block the release of records that were once deemed available under previous legal precedent before the two court rulings.
Since June of 2015, said Watson, the attorney general’s office, which is charged with overseeing and enforcing the law, has had more than 300 requests to withhold information under the legal criteria in the Boeing decision.
“So when you ask the question, how big is the … loophole they’ve created, it’s enormous,” said Watson, a former Austin mayor.
First-amendment attorney Laura Prather said the rulings cut off a “wide swath of information” available to the public under the Texas Public Information Act, enacted nearly 44 years ago by reform-minded legislators in the aftermath of the Sharpstown Stock Fraud Scandal that rocked state government in the early 1970s.
Although lawmakers have added a number of exceptions and exemptions over the years, the law is tied to the fundamental premise that government information belongs to the public and has been used as a model for similar laws in other states.
“Texans need to know who the government is making deals with and know how their money is being spent,” said Prather, who chairs the legislative committee of the Freedom of Information Foundation of Texas.
Capriglione, embarking on his third term in the House, pushed through one of the few ethics bills enacted in the last legislative session by winning passage of House Bill 1295, which requires the disclosure of “interested parties” who have a financial benefit in government contracts of $1 million or more.
The Tarrant County lawmaker had earlier signaled his intention tackle the court rulings, which public information advocates have designated as their top priority in the upcoming session.
Capriglione and Watson said they crafted the two identically worded bills after working with broad coalition of interested parties that included the Attorney General’s Office, the Freedom of Information Foundation of Texas, the Texas Press Association, the Texas Association of Broadcasters, the Texas Municipal League, the Texas Association of Counties and the Texas Conference of Urban Counties.
Capriglione’s House Bill 793 and Watson’s Senate Bill 408 address the Greater Houston Partnership ruling by restoring a three-decade-old legal precedent, known as the Kneeland test, which held that private entities supported by public funds must comply with the state’s open records requirements.
The Supreme Court held that the nonprofit Greater Houston Partnership was not required to disclose its financial records even though it performed economic development duties for the City of Houston and was partly supported by public funds.
In issuing the 6-3 decision, the Supreme Court dismantled the Kneeland test and applied a much higher threshold by declaring that the open records law applies only to private entities “sustained” by public funds.
Greater Houston Partnership challenged the law by contending that lawmakers didn’t intend for the act to apply to private corporations.
In their 7-1 ruling in the Boeing case, the justices held that Boeing and other private entities doing business with the government can block the release of information that the companies said would give inside information to competitors.
Public information advocates said the ruling greatly expanded a competitive bidding exception in the act by enabling private entities to claim the exception and by allowing the exception to apply to final, awarded contracts.