How Texas lawmakers patched open government laws this session


Open government advocates say the state's recent legislative session helped to rehabilitate government transparency in Texas, after a series of recent court decisions weakened existing laws. 

Lawmakers passed three major bills that closed various loopholes that allowed government agencies, or government employees and elected officials, to keep certain records private. 

“This was a good session for open government legislation,” Kelley Shannon, executive director of the Freedom of Information Foundation of Texas, told The Texas Tribune. “We experienced a much more positive reception than we did last session. Members of both parties in both chambers largely had open minds and were eager to fix some of the problems in our open government laws.” 

Loopholes closed

Legislators addressed two 2015 court decisions advocates said restricted transparency. 

In one ruling, Boeing Co. v. Paxton, the Texas Supreme Court made it more difficult for the public to learn details about private companies doing business with local governments or the state. Before that case, the only information that could be exempted from open records requests was information related to the companies’ trade secrets, proprietary information or pending bids. But the court expanded exemptions that kept "any information that could put the companies at a competitive disadvantage" out of the public eye. 

Companies could object to their information being made public, and essentially allowed their arguments in favor of withholding the records to be taken at face value, the Tribune reported. There was no mechanism for the attorney general to conduct independent fact-finding about whether disclosure would genuinely risk a competitive disadvantage. And often there was no way for taxpayers to scrutinize how much certain companies were being paid for certain services. 

In another ruling, Greater Houston Partnership v. Paxton, state's Supreme Court ruled that quasi-governmental entities which receive money from the public are only subject to public records laws if public money makes up such a large portion of the entity’s overall funding that it couldn’t function without it. 

Advocates say the decision allowed some entities to hide what they are doing with taxpayer money and what incentives they offer to businesses. 

SB 943, sponsored by Austin Sen. Kirk Watson and signed by Gov. Greg Abbott last weekend, makes many details of a contract between a private entity and government agency public, including cost, certain communications and bids, while also continuing to protect trade secrets and proprietary information. 

The law also says certain organizations devoted to economic development are subject to certain open records rules if they receive more than $1 million from a single state agency or local government. 

Separately, Rep. Terry Canales, passed a bill that more narrowly addresses a widely-reported use of the Boeing ruling. In 2015, the city of McAllen paid Enrique Iglesias to perform at a holiday parade that city supposedly lost money on. But taxpayers were never able to learn how much the city paid Iglesias to perform. 

The bill authored by Canales would prohibit government entities from withholding information about entertainment events that are paid for with public funds. 

Abbott signed that bill into law on May 17, and it went into effect immediately. 

Open meetings

Another big win for open government advocates came in a bill filed by Watson. Senate Bill 1640 restores a key provision of the state’s Open Meetings Act after a February court ruling weakened it. 

Watson filed the bill not long after the Texas Court of Criminal Appeals struck down a more than two-decades-old provision in state law that made it a crime for public officials to meet or talk separately in smaller groups to discuss public business outside of a public meeting, known as a walking quorum, according to the Tribune.

Montgomery County Judge Craig Doyal was indicted under the statute in 2016 for allegedly holding private meetings about a county road bond. He filed to have the charges dismissed, and the case eventually made its way to the Texas Court of Criminal Appeals, which in February ruled that the provision was unconstitutionally vague. 

Advocates worried the decision would make it easier for lawmakers to hide public business from the public and the media. Watson’s bill sailed to Abbott’s desk and took immediate effect when the governor signed it on June 10, once again making walking quorums a crime. 

Access to public information on any device

Watson also filed a broad open government bill that includes a provision that requires public information on private devices to be backed up to a government server. SB 944, which was passed with overwhelming bipartisan support and signed into law by Abbot over the weekend, closes what open government advocates call the "custodian loophole." 

Shannon said existing laws already made clear that the nature of the data determines whether or not it a record is public information, not what device holds the data or whether it was created using a government employee's or elected official's personal email account or personal cell phone.

The Texas Open Records Act, which was established in 1973 and later became known as the Texas Public Information Act, says that the law “shall be liberally construed in favor of granting a request for information.”

Austin attorney and Texas open records expert Bill Aleshire told the Denton Record Chronicle earlier this year that tweets, texts, emails and any other form of communication about official business are “absolutely covered” by the Texas Public Information Act, which makes it a crime to alienate or destroy those records.

In other words, whether the communication was created on a public official’s private device doesn’t matter, the newspaper reported. If the communication is about public business, it’s a public record. The problem for Texas was that the enforcement provisions in the act were weakened in recent years, and the local government code has no enforcement provisions whatsoever.

In other words, officials have been on the honor system for texts, emails and other messages that aren’t created on city accounts or devices. 

“As a custodian of a public record, you are supposed to protect it from being deleted, alienated or destroyed,” Aleshire said in March, before Watson’s legislation passed through committee. “Records can be deleted by the normal operations of an app, or deliberately… officials know they can get away with writing texts and emails in secret. It’s a mess.”

SB 944 clarifies that government employees and elected officials do not own records created or received while acting in an official capacity.

The law now requires government employees and elected officials to provide copies of all communications created on their personal accounts or electronic devices to the governmental entity’s public records official for backup, and so that the public records official has access to the data when responding to open records requests.

— Reporting from Catherine Marfin of The Texas Tribune contributes to this story.