Session wasn’t kind to open government
Abbott’s veto of reimbursements in public information cases a final blow
Gov. Greg Abbott’s veto of a bill giving judges the option of reimbursing attorney fees to requestors of public information was a disappointing end to a legislative session where few improvements to open government laws were passed, open records activists say.
“There was a noticeable, anti-transparency mood at the Texas Capitol this session,” said Kelley Shannon, executive director of the nonprofit Freedom of Information Foundation of Texas. “So several of our major initiatives passed in the Senate but died in the last stages of the session, and this bill dealing with attorney’s fees for information requestors was the final blow.”
At least 10 House and Senate bills that dealt with open records died during the recent legislative session, Shannon said.
The “final blow” was a reference to House Bill 2783, by Rep. John Smithee, R-Amarillo, that Abbot vetoed Thursday after claiming paying requestors’ legal fees would encourage lawsuits against government. The law would give a judge the option to award attorney fees to requestors in lawsuits where the governmental agency ultimately decided to hand over the documents before a trial was held.
Shannon disputed Abbott’s rationale, noting there are relatively few court cases brought under the Texas Public Information Act.
“That’s a false way of looking at it. First off, TPIA lawsuits are not common, and it’s only in rare cases when they go to court,” Shannon said. “So it’s really not an avenue open to most people. This legislation could have allowed a judge to award attorney fees … that could have been an option but it’s not a given. So the idea this would attract more people to the courthouse is a false conclusion.”
Houston lawyer Joe Larsen was involved in a nearly five-year battle with the city of Houston for attorney’s fees in a case
involving public records requests regarding the city’s now defunct redlight camera program.
While the trial court awarded the attorney’s fees in the case, the city appealed the judgment and went through a lengthy appeals process until it stopped contesting the judgment. Larsen called it a very rare victory, adding that he believes the law’s current structure will foreclose the requestor from getting attorney’s fees unless the governmental body takes it to a higher court.
“It encourages government bodies to use litigation as a tactic instead of a real defense,” said Larsen, a board member of the Freedom of Information Foundation of Texas, who practices with the Sedgwick law firm in Houston. “It’s basically a tax on the requestor in the form of attorney’s fees to be able to exercise these rights.”
However, the biggest setback was the inability to pass two bills that addressed two earlier Texas Supreme Court rulings, including the Boeing Co. ruling in June 2015 and the Greater Houston Partnership ruling, the FOI director said. Together, they greatly limited public access to records when governments enter into contracts with private companies or rely on nonprofits for services, triggering “hundreds” of Texas Attorney General denials of record requests for tax payer-supported expenditures.
“Texas has always had one of the strongest open records law in the country, and now we don’t and that’s something that is going to be felt painfully all over the state in the next couple of years,” said Shannon. “Hopefully, we’ll be able to do something about it in the 2019 (legislative) session.”
Austin attorney Laura Prather, co-chair of the FOI legislative committee, agreed there was little good news.
“Despite efforts to work on agreed-upon legislation for more than a year with governmental entities, the Attorney General’s Office and open records advocates, we were not successful in getting any of the bills that would have increased transparency for Texas citizens ultimately enacted into law,” said Prather. “With the governor’s veto of HB 2783, that sealed the fate of the only measure we had been able to get out of the Legislature.’’