Let the sunlight in

Texas lawmakers should restore teeth and transparency to state’s open government law.

The tussle between government officials and the ordinary Texans determined to keep tabs on them has been going on for as long as there has been a Texas. And in recent years, it’s been a mostly losing campaign for those who demand greater transparency from elected officials and the bureaucracies they oversee.

But this month could mark a breakthrough moment in that long struggle. Lawmakers in Austin are grappling with a series of bills that could turn the tide back in favor of the people by restoring to them once-potent tools necessary to monitor officials and the tax money they spend.

Two of these bills would add teeth back to the Texas Public Information Act, which has been weakened steadily over the years, most grievously by a series of court rulings that have poked holes in key aspects of the law. A third, co-authored by Sen. Paul Bettencourt, R-Houston, would close a loophole in the Open Meetings Act which was recently stretched beyond recognition by the Texas Court of Criminal Appeals.

Most readers will have scant experience with Texas’ so-called “sunshine laws” but many have felt their benefits. Together, the open meetings and open records laws are the surest guarantors Texans have that public business will be conducted both in public and for the public.

First Amendment attorney Joe Larsen of Houston has fought for open government in Texas for decades. He said conservatives and liberals should back lawmakers’ efforts this session to restore potency to the state’s sunshine laws.

“Philosophically, my background is that of a small-government conservative,” Larsen told the editorial board. “But these laws are not partisan issues. If you’re a conservative who wants to limit the role of government in our lives, then these laws are going to help you to know what the government is doing.

“And if you believe government can solve society’s problems … then you’ll still want to know what your government is doing. Or else, how can you know if it’s doing what you want it to do?”

That’s why we’re urging support for legislation aimed at strengthening the state’s sunshine laws. Among the most important bills is SB 944 by Sen. Kirk Watson, D-Austin, taking aim at two disastrous Texas Supreme Court rulings that have maimed the Texas Public Information Act.

In its 2015 Boeing decision, the high court turned on its head an exception lawmakers had written into the TPIA in order to protect local governments from having to reveal competitive commercial information if doing so would clearly disadvantage them in future negotiations. But when the Port Authority of San Antonio was asked to make public aspects of its deal with Boeing to locate one of its headquarters there, the private company claimed the exception should apply to them, too.

The attorney general, a trial court and the appeals court all rejected the argument. The law, they held, was designed to benefit the public. And the exception to the law was justified by public, not private, concerns.

But the Texas Supreme Court ruled otherwise. Ever since, companies have needed only to show that if a public entity’s disclosure of information about their business might help a private competitor, they can block the release. Left unsaid was the simple reality that any release of information a private company would prefer to be kept secret could be construed as giving a competitor a slight advantage.

“That’s an extraordinarily low standard,” said Larsen.

He ought to know. Last year, that same ruling was used to block Houston ISD from disclosing pertinent details about a contract it had awarded for bus services, citing the possibility that a competitor could benefit from its release.

Watson’s bill would also undo damage done by another, older case as well, Greater Houston Partnership v. Paxton. In 2008, Houston-area resident Jim Jenkins had asked the Greater Houston Partnership for a copy of its check register, claiming that because Houston contracted with the GHP, essentially outsourcing a large part of its economic development efforts, citizens like him deserved to know how it spent their money.

The GHP balked. Again, the attorney general, the trial court and the appeals court all ruled that the information must be provided. But then the Texas Supreme Court ruled 6-3 that GHP needn’t share its records with the public or the press.

Donnis Baggett, executive vice president of the Texas Press Association, hailed the momentum toward transparency this session. He said the bills aimed at strengthening open government, including one that would ease requirements that state agencies remove dates of birth before releasing public documents, are getting attention this session.

We hope they get more than that. Lawmakers should stand up for the state’s sunshine laws. They are essential guarantors of the transparency upon which democracy depends.