Texas lawmakers fail to close loopholes in public information law

One of state Rep. Giovanni Capriglione’s top priorities at the outset of the 2017 Legislature was to close what he called “enormous” court-inflicted loopholes in the Texas Public Information Act, regarded as one of the strongest government transparency laws in the nation.

With the hours ticking down toward Monday’s adjournment, the Southlake Republican is proclaiming his efforts a lost cause — at least for this session — while blaming intense opposition from business lobbyists and other groups for the demise of his bills.

“I have so many knives in my back, I feel like a porcupine,” he said in an angry postmortem.

Capriglione joined state Sen. Kirk Watson, an Austin Democrat, in pushing measures to reverse the impact of Texas Supreme Court decisions that curtailed access to previously obtainable records held by private entities doing business with the government.

“The people of Texas are the losers in this,” said Kelley Shannon, executive director of the Freedom of Information Foundation of Texas, which was part of a broad coalition of open-records advocates who backed the two lawmakers.

Nearly a dozen other bills to widen government transparency also flamed out this session, most of which were left to die in committees. One survivor was a bill by Rep. John Smithee, R-Amarillo, which has been sent to the governor and would ease the recovery of legal fees in an open-records lawsuit.

The Texas Public Information Act, enacted in 1973 as part of a sweeping reform in the aftermath of the state’s Sharpstown stock fraud scandal, has opened state and local government records to everyone from newspaper reporters to ordinary citizens with a beef against city hall and other levels of government. Its basic premise is that government information belongs to the people unless specifically sealed under a growing number of exceptions in the act.

The Supreme Court, in two decisions in 2015, limited the scope of the act in ruling on cases involving a Boeing aerospace company in San Antonio and the Greater Houston Partnership, a super chamber of commerce that holds millions of dollars in contracts with Houston and nearby municipalities.

Addressing the Greater Houston Partnership case, Capriglione and Watson filed House Bill 793 and Senate Bill 408 to restore a precedent under which private entities supported by public funds must comply with the state’s open-records requirements.

The Supreme Court ruling struck down the precedent. In the Boeing decision, which the lawmakers sought to reverse with House Bill 792 and Senate Bill 407, the justices held that the aerospace firm and other private companies can block the release of information that the companies said would give inside information to competitors.

Chesapeake Energy tried to use the loophole in the public information law last year to prevent disclosure of its $1 million settlement of a natural gas royalty lawsuit filed by the Fort Worth school district. Chesapeake argued that releasing the settlement details would allow the information to be used against the company in other litigation. The Texas attorney general’s office was not persuaded and ordered that the information be released to the public.

The Watson-Capriglione bills passed the Senate but never emerged from the House Government Transparency and Operation Committee, the final resting place for four other bills backed by public-disclosure advocates.

Opponents to one or both of the Watson-Capriglioni bills, according to a witness list provided by the committee, included representatives with the Texas Association of Business, the Texas Association of Manufacturers, the Texas Economic Development Council, a branch of the Associated General Contractors of Texas, the Texas Healthcare & Bioscience Institute, Pfizer and Sanofi (pharmaceuticals), Exelon (energy), and Zachary Corp. (construction).

Opponents to HB 793 and SB 408 included Memorial Hermann Health System, the Texas Travel Industry Association and the American Council of Engineering Companies of Texas.

“We agree that government transparency and of course access to public information is very important, but we simply think that these bills just went too far,” said Chris Wallace, president of the Texas Association of Business, saying the measures would “hinder business” and put companies at an “unfair disadvantage” by requiring the disclosure of sensitive information.

Capriglione contended that opponents gave a distorted picture of the measures, saying that many “were willing to do just about anything and say anything to keep the disclosure of tax dollars secret.” He said he learned of behind-the-scenes lobbying by powerful opposition groups and that it appeared that “everybody” was lined up against the measures.

“I’m not exaggerating,” he said. “Every single nonprofit, chamber, company, industry, hospitals, pharmaceutical companies, insurance companies. On the front of it, they’ll always start their conversation with ‘you know, I love transparency, but …’ ”

Despite the defeat of the Capriglione-Watson legislative package, public transparency advocates say they will continue trying to revitalize the 44-year-old act, which has been used as a model for laws in other states. An interim study is expected to be conducted before the next legislative session in 2019 to review varying perspectives of the law.

“Unfortunately, the Legislature that is currently serving did not put its foot down and maintain the strength of our law that has worked so well for decades,” said Shannon.

Staff writer Max B. Baker contributed to this report.

This story was originally published May 28, 2017 at 5:53 PM with the headline "Texas lawmakers fail to close loopholes in public information law."