Open records effort falls short.

Advocates work to revive issue in next session

AUSTIN — As the 85th Legislature draws to a close, hopes have been extinguished for major legislation that would have reversed the impact of two court decisions that limit open records access for Texans.

But proponents of more transparency in government already are working to bring the issue back into the spotlight in 2019, and the advocates said they did have some limited success in certain areas this year.

Sen. Kirk Watson, DAustin, last week had a late resolution approved 30-1 by the Senate calling for a joint Senate-House committee to study the open government issue and make recommendations for the next legislative session. Todd Hunter, R-Corpus Christi, has filed an identical measure in the House.

In 2015, two Texas Supreme Court decisions limited the availability of public records when the government engages outside parties. In Boeing v. Paxton, the court ruled that private businesses could keep their contracts secret because competitors might gain an advantage if they were made public.

In the other case, Greater Houston Partnership v. Paxton, the court reversed a longstanding precedent that required nonprofits that receive public money to open make financial information public. Now, even nonprofits that perform government services or otherwise act like government agencies are not required to disclose their records.

Those decisions have raised concerns over the government’s interactions with both for-profit and nonprofit entities.

For example, the Boeing decision has been cited in the city of McAllen’s refusal to disclose how much it paid Enrique Iglesias to sing at a holiday concert and in Houston’s withholding of information about how many driver permits

the city issued to ride-hailing service Uber.

Meanwhile, the state government is moving to increase the use of nonprofits to provide more services that were previously handled by public entities, ranging from foster-care placement to the establishment of the Texas State Music Museum. Lawmakers have expressed worries over the creation of shell organizations that could operate essentially as shadow government agencies.

Watson introduced two bills this session to restore public access to these records, along with another bill aimed at ensuring that a separate attorney-client exemption to the public information law would not be extended to other areas. All three were passed by wide margins by the Senate by mid-session, only to get bottled up in the House Government Transparency and Operation Committee, chaired by Gary Elkins, R-Houston. Political maneuvering

Identical House bills filed by Rep. Giovanni Capriglione, R-Southlake, and Hunter also were left pending in the same committee.

“We came to a bipartisan and bicameral consensus and worked pretty hard to come up with the best way to fix what had been broken and to improve the public information act,” said Watson, who led presession efforts to develop the legislation with a working group that included the attorney general’s office, advocacy groups and other stakeholders.

At a committee hearing on the House bills last month, Peyton McKnight, general counsel and legislative director for the American Council of Engineering Companies of Texas, testified that private businesses needed more protection from making records public. He said headhunters and competitors, and not ordinary citizens, are making many of the requests for information from companies that contract with government entities.

Watson said efforts to address concerns from some parties who initially opposed the legislation had resulted in those groups ultimately taking a neutral position on the bills. These included some nonprofits such as economic development groups, Catholic charities, private schools and electric utilities, according to Watson.

Faced with the stalled bills in the House committee, Watson engineered a last-ditch effort to tack the proposals onto another public records bill that had originated in the House. While the amended House Bill 2328 was approved by the Senate on a 30-1 vote, it was killed upon its return to the House.

“All of that work for open government died,” said Watson, who has since turned his attention to preparing for 2019 by calling for the establishment of a joint committee to address the open government issue.

“I ain’t done trying to fix what is broken. We’ll hold public hearings, and people that are now opposed will have the opportunity in the light of day to help us craft legislation, as opposed to doing it in secret,” Watson said.

“If a Texan pays a dollar in tax to any government entity, that Texan has the right to know how that dollar is spent and the government has the obligation to make sure that she knows,” he said. Open government laws

The state’s Public Information Act dates back to 1973, and prior to the 2015 Supreme Court decisions was often described as one of the country’s best open government laws.

But since 2015, the Attorney General’s Office has reported an increase in the use of the court decisions as the basis for the withholding of information that was once available to the public.

Justin Gordon, open records division chief for the attorney general, said that in 2014, before the Boeing decision, the office had granted around 250 requests from private contractors who sought to avoid disclosing information that could put them at a competitive disadvantage, while in 2016, the number increased to 600 as a result of the court’s broader standard for withholding information.