As public transparency advocates nationwide observe Sunshine Week, Texas can lay claim to what is considered one of the strongest public information tools in the country — a 42-year-old law that has enabled journalists and frustrated taxpayers alike to unearth tons of data exposing the deeds and misdeeds of government entities.
At the same time, those who champion the 1973 Texas Public Information Act have had to fight to keep it from being eroded through exemptions added by the Legislature or through government attempts to stall when presented with disclosure requests.
“It’s gotten worse over the last 10 years,” said Austin attorney Randall Buck Wood, who as a young Common Cause lawyer helped push the measure through the reform-minded 1973 Legislature after the Sharpstown stock fraud scandal. Wood complains that government agencies are citing the law to force citizens to file open-records requests for information that should be handed over routinely.
Public information advocates also worry about what appears to be a nationwide trend toward higher fees to comply with open-records requests.
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In 2014, Del Mar College in Corpus Christi initially gave a jaw-dropping estimate of $26 million in labor and printing costs when local CPA Edward Bennett requested what the college said would have been more than 100 million pages. The two sides settled on a scaled-down document retrieval that was made available for free.
The Texas Public Information Act and what is often considered a companion measure — the Texas Open Meetings Act — are among hundreds of transparency laws that will be reviewed during the 10th anniversary of Sunshine Week, which begins today and runs through Saturday.
The American Society of News Editors initiated Sunshine Week in 2005 with funding from the John S. and James L. Knight Foundation to promote open government. The nationwide series of forums, public discussions and media presentations was designed to coincide with the March 16 birthday of James Madison, often considered the father of the Constitution and a fierce defender of the First Amendment guarantees of free speech and a free press.
Madison, the fourth president, wrote about the importance of government openness, once asserting that the “diffusion of knowledge” is “the only Guardian of a True Liberty.”
The Texas Public Information Act, in Chapter 552 of the Texas Government Code, echoes that lofty concept. The first paragraph states: “Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees.”
The act applies to all government entities except the judiciary — from the governor’s office to the school board — as well as many private entities that receive public money. Agencies must respond “promptly” to requests for information. They have up to 10 days, or they can seek a ruling from the Texas attorney general’s office if they believe the information falls under various exceptions.
The law was the centerpiece of a package of reform bills crafted in response to the public’s demands for a housecleaning after the Sharpstown scandal of 1971-72. Half the Legislature was replaced after disclosures that state officials profited from quick-turnover stock purchases in return for legislation sought by Houston financier Frank Sharp, according to the Handbook of Texas.
The Open Meetings Act, originally passed in 1967, was toughened in the 1973 reform session amid calls for the public to gain greater oversight of its representatives. The law requires government business to be conducted in the open, with notice to the public, although it permits closed sessions for issues such as personnel, attorney consultation and security.
Wood, who is now considered a national expert on elections and government disclosure, was one of the leading advocates in the reform movement and worked with Attorney General John Hill to ensure that the public would be empowered to seek attorney general’s opinions under the statute.
“It was probably the most successful statute we passed during that 1973 session,” Wood said.
In the ensuing four decades, the law has had an indisputable impact, giving journalists a powerful weapon to expose scams and misdeeds, including Medicaid fraud, police corruption, and misuse of public funds in both state and local government.
It has also transformed legions of ordinary citizens into aggressive watchdogs increasingly adept at filing open-records request to dig into the behavior of local officials.
“We hear all the time about average citizens trying to get records on their school district budgets or something the city council is spending money on or hiring practices or terminations or firings,” said Kelley Shannon, executive director of the Freedom of Information Foundation of Texas. “All of those are important in those communities, and that is at the heart of the public information act. That is what it really does day in and day out that is so important in this state.”
Bennett, the Corpus Christi CPA and a member of a local taxpayer association, said he lodged his request with Del Mar College in September to look into what he said were write-offs and debt.
In a Sept. 11 response, college officials said it would cost $26.7 million to print out 105 million pages of documents, along with labor charges to make the printouts and redact sensitive student information. They also offered “a less costly option” of letting Bennett sit with a programmer and view the electronic data for $60,508 — to cover the 4,032 hours of labor.
Bennett said he originally considered the response a “roadblock” to keep him from investigating the school’s finances. But Claudia Jackson, the school’s executive director for strategic communications and external relations, said in a telephone interview that the school is committed to public disclosure.
Bennett’s request, she said, was “very, very detailed,” resulting in the “astronomical price” when the 10-cent-per-page charges and labor costs were calculated.
Jackson said the school presented a smaller alternative package of records at no charge. Bennett said he accepted the material but still plans to pursue his inquiry.
Wide public use
The act has become a go-to tool for thousands of other Texans, many of them politically active, who want to pry loose details about a particular concern. And its use ratchets up at election time when opposition research teams start studying their opponents.
Richard Weber, a former Arlington city employee who regularly runs for City Council, has an email news blast called the Spectator that often criticizes the council. He averages at least six public information requests a year.
“Government is not supposed to be hiding from you,” he said.
In Fort Worth, Maryellen Hicks, a lawyer and former judge who is the mother of former Councilwoman Kathleen Hicks, said she has generally been satisfied with the city’s response to past public information requests. But now she is outraged over what she believes is an attempt to stonewall a request involving the council’s zoning change to transform Glen Garden Country Club into a whiskey distillery. Hicks said she is considering a lawsuit.
Texas public information experts say the law is one of the best of its kind, but they concede that they have to be vigilant to keep government entities from doing an end run around the law’s intent.
One concern is the growing tendency of officials to seek an attorney general’s opinion on what they view as an exception to the act. That move delays action on the request and could block the information if the attorney general sides with the government entity.
If the attorney general rules against release, a requester’s last recourse is a lawsuit, an unlikely option given that average citizens can’t afford a protracted legal battle.
In fiscal 2014, state agencies sought 1,810 requests for rulings from the attorney general, compared with 891 in 2000, according to the attorney general’s office. Agencies made 4,268 requests from Dec. 1, 2011, through Nov. 30, 2013, according to the office.
Freedom-of-information advocates also say they are forced to stand watch every legislative session to defend against unneeded exemptions or other changes that would weaken the law.
More than 55 exemptions and confidentiality exceptions have been tacked on since the law was enacted in 1973, covering, among other things, competitive bidding, trade secrets and certain law enforcement security information.
“Every legislative session, there are efforts to scale the public information act or weaken it,” said Shannon, of the Freedom of Information Foundation of Texas. “And we are constantly having to be on the watch to prevent this from happening.”
One proposal under scrutiny is a bill by Rep. Mike Schofield, R-Katy, who served as policy adviser to then-Gov. Rick Perry, that would give government entities the option of ignoring out-of-state requests.
Shannon said the law could have a negative effect on several fronts, including keeping out-of-staters from learning about business opportunities in the Lone Star State or from selecting Texas colleges.
The digital age
The march of the Internet, cellphones and social media — all unforeseen when the law was enacted — has added a 21st-century dimension to the act, raising new questions and legal arguments about its scope.
In a victory for public information advocates, the Legislature enacted a law in 2013 declaring that public business conducted on private electronic devices or in private email accounts is subject to disclosure. This year, media groups and transparency proponents are backing a bill by Rep. Todd Hunter, R-Corpus Christi, to specify that a government officer or employee who possesses public information must hand it over to the governmental body on request.
Despite challenges to the law over the years, those who watched it clear the Legislature four decades ago say it has stood the test of time. One of those was Bill Aleshire, a prominent freedom-of-information attorney and former Travis County judge who was an administrative assistant to Rep. Lane Denton, the bill’s sponsor.
“I can’t imagine the degree of government waste and corruption that would exist in our government if we didn’t have this act,” he said.
Researcher Cathy Belcher and staff writers Caty Hirst and Susan Schrock contributed to this report.