TEXAS DE­NIALS OF OPEN RECORDS RE­QUESTS HAVE SOARED

Crit­ics say at­ti­tude of gov­ern­ment now leans to no, not yes.

Austin American-Statesman - - METRO & STATE - By Terri Lang­ford

When Tex­ans ask DAL­LAS — state and lo­cal of­fi­cials for pub­lic records de­tail­ing their op­er­a­tions, more and more the an­swer is no.

The rea­son why is in dis­pute, partly be­cause of the lack of some pub­lic records.

Among the ma­te­ri­als that are, in the­ory, pub­licly avail­able: checks cut by a school board, tapes of 911 emer­gency calls, text mes­sages be­tween city coun­cil mem­bers.

A quirk of the Texas records law, adopted al­most 45 years ago, says that when of­fi­cials deny the pub­lic the right to see some­thing, they usu­ally have to run that de­ci­sion by the state at­tor­ney gen­eral’s of­fice.

The num­ber of those de­nials has been soar­ing. In the fis­cal year that ended in Au­gust 2001, gov­ern­ments for­warded about 5,000 de­nied record re­quests to the at­tor­ney gen­eral’s of­fice for review. That num­ber had jumped to more than 27,000 in 2016. Much of the in­crease has oc­curred in the last decade.

The over­all num­ber of de­nials is ac­tu­ally larger than the data in­di­cate. More than 80 agen­cies and lo­cal gov­ern­ments have got­ten per­mis­sion from the at­tor­ney gen­eral to au­to­mat­i­cally deny cer­tain kinds of re­quests, such as those that re­veal a person’s birth date.

Some ex­perts say the pre­vail­ing at­ti­tude among gov­ern­ments in Texas has turned from a pre­sump­tion that records should al­most al­ways be avail­able to a be­lief that of­fi­cials should re­lease as lit­tle as pos­si­ble.

“I think more gov­ern­ments have be­come more de­sirous of with­hold­ing in­for­ma­tion, many of them out there have a knee-jerk re­ac­tion,” said Kel­ley Shan­non, ex­ec­u­tive di­rec­tor of the Free­dom of In­for­ma­tion Foun­da­tion of Texas, which is largely sup­ported by jour­nal­ism or­ga­ni­za­tions.

But lawyers and gov­ern­ment spokes­peo­ple say they are be­ing flooded with de­mands for doc­u­ments, many of which don’t ex­ist or that legally they aren’t al­lowed to make pub­lic.

“Re­questers are sub­mit­ting more re­quests,” said Justin Gor­don, the open records chief for the Texas at­tor­ney gen­eral’s of­fice.

Re­porters say one rea­son may be that of­fi­cials have started de­mand­ing that they file open-records re­quests for in­for­ma­tion the gov­ern­ment used to re­lease with­out ques­tion.

Get­ting to the truth is tough, in part be­cause no statewide data ex­ists on the to­tal num­ber of re­quests, so there is no way to know if the over­all num­ber is ris­ing as fast as the at­tor­ney gen­eral re­views. It’s also un­clear if cer­tain kinds of re­questers — such as re­porters, pri­vate cit­i­zens, pub­lic-in­ter­est groups or busi­nesses — ac­count for an out­sized por­tion of the de­nials.

The at­tor­ney gen­eral’s of­fice told The Dal­las Morn­ing News it could not re­lease the names of those ask­ing for records with­out weeks of review to en­sure that ev­ery orig­i­nal re­quester is not cov­ered by pri­vacy ex­emp­tions. For ex­am­ple, if the orig­i­nal re­quester was a vic­tim of a crime, his or her name could not be re­leased.

The of­fice says it does not keep tabs on how many re­quests in­volve cer­tain kinds of in­for­ma­tion, and does not an­a­lyze the out­come of its re­views.

It does post its rul­ings on­line, but in a for­mat that is dif­fi­cult to search and does not in­clude the names of re­questers.

In at least some cases, the of­fice makes gov­ern­ment of­fi­cials re­lease some of the in­for­ma­tion they want to with­hold, ac­cord­ing to a review by The Dal­las Morn­ing News. But how often that hap­pens is un­clear.

The two most pop­u­lous cities in Texas, Dal­las and Hous­ton, ac­tu­ally re­ferred fewer cases to the at­tor­ney gen­eral in 2016 than they did in 2005. But some smaller cities and large sub­urbs sub­mit­ted far more, The News found.

In Killeen, 60 miles south­west of Waco near Fort Hood, the num­ber of in­for­ma­tion re­quests and the num­ber of ini­tial de­nials are ris­ing fast.

The city re­ceived 1,811 re­quests in 2010 and ini­tially de­nied 173, or 9.5 per­cent, and for­warded those to the at­tor­ney gen­eral for review. Six years later, the num­ber of re­quests had grown to 2,910. Of those 603, al­most 21 per­cent, were sent to the at­tor­ney gen­eral.

Traci Briggs, Killeen’s deputy city at­tor­ney, said many of the records peo­ple re­quest are com­plaints that can’t be re­leased un­der pri­vacy rules, de­scrib­ing them as “who turned in my dog, who re­ported the wa­ter drip­ping be­hind my house” records.

Oth­ers per­tain to one of the broad­est ex­cep­tions to the pub­lic-records act, which al­lows law en­force­ment to keep in­for­ma­tion sealed if they think mak­ing the ma­te­rial pub­lic would in­ter­fere with a crim­i­nal in­ves­ti­ga­tion. They do not have to prove that there is, in fact, an in­ves­ti­ga­tion un­der­way.

Killeen re­cently got per­mis­sion to au­to­mat­i­cally re­ject re­quests that fall un­der the open-in­ves­ti­ga­tion ex­emp­tion, though it must con­tinue to re­lease ba­sic in­for­ma­tion.

Last year, The News and other me­dia or­ga­ni­za­tions filed dozens of open records to the Dal­las Po­lice De­part­ment for in­for­ma­tion in­volv­ing the July 7 am­bush that left five po­lice of­fi­cers and sus­pect Micah John­son dead.

Lit­tle has been re­leased other than the 911 calls and ini­tial war­rant in­for­ma­tion. The po­lice are cit­ing the open-in­ves­ti­ga­tion ex­emp­tion. Last Oc­to­ber, the at­tor­ney gen­eral’s of­fice sided with the po­lice.

A pair of Texas Supreme Court rul­ings in 2015 have fur­ther un­der­mined the pub­lic’s ac­cess to gov­ern­ment records by plac­ing in­for­ma­tion about many pri­vate busi­ness deals with gov­ern­men­tal en­ti­ties off-lim­its.

In Boe­ing vs. Pax­ton and the Greater Hous­ton Part­ner­ship v. Pax­ton, the Texas at­tor­ney gen­eral con­cluded that in­for­ma­tion about Boe­ing held by the Port Author­ity of San An­to­nio should be pub­licly re­leased. But the avi­a­tion man­u­fac­turer sued, and the Texas high court sided with Boe­ing’s ar­gu­ment that mak­ing pub­lic the in­for­ma­tion at is­sue would give its com­peti­tors an ad­van­tage.

That rul­ing has had a chill­ing ef­fect. The city of McAllen used this rul­ing to keep se­cret how much it paid singer Julio Iglesias to per­form at a Christ­mas pa­rade. Hous­ton used it to keep se­cret the num­ber of per­mits is­sued to ride-shar­ing ser­vice Uber.

State Sen. Kirk Wil­son, D-Austin, told a re­cent leg­isla­tive hear­ing that gov­ern­ments used the Boe­ing de­ci­sion to deny about 600 re­quests for pub­lic in­for­ma­tion in Texas in 2016.

“It’s im­pos­si­ble for me to imag­ine how a fi­nal con­tract with the gov­ern­ment shouldn’t be made pub­lic,” Wat­son said.

In the case in­volv­ing the Greater Hous­ton Part­ner­ship, the non­profit that han­dles eco­nomic de­vel­op­ment for the city con­vinced the court that be­cause it does not rely solely on pub­lic money, it is not sub­ject to the state pub­lic records law.

Leg­is­la­tors have in­tro­duced bills they say will help to re­store ac­cess that the court rul­ings re­moved. Some would force gov­ern­ment agen­cies to re­lease all fi­nal con­tracts. Oth­ers would re­quire a pri­vate en­tity to com­ply with open-records law if it pro­vides ser­vices once pro­vided by a pub­lic agency.

Gor­don, the head of the at­tor­ney gen­eral’s open-records divi­sion, said the two rul­ings have de­creased trans­parency but have done lit­tle to im­pact the work­load for the 59 staffers in his of­fice.

Has the staff of the of­fice in­creased to han­dle the surge in de­nials? Un­clear. The agency in­structed The News to file an open-records re­quest to get an an­swer.

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