Cornyn, panel aim to boost access to records

WASHINGTON — Like the Legislature did this year, Congress is moving to reverse a court ruling clogging the pipeline of public records that open government advocates say should by law flow freely to the public and news media organizations.

A bipartisan alliance of senior U.S. senators, including Texas’ John Cornyn, is sponsoring legislation to counter a U.S. Supreme Court ruling in June interpreting the word “confidential” in a way that further blocks the release of government-held information on businesses.

Washington, like Austin, was seeing a tightening in the release of public records even before the ruling. In June, Gov. Greg Abbott signed legislation returning a measure of transparency in Texas by reversing a state Supreme Court ruling enabling contracts and other business information to be kept secret , even when the businesses were doing taxpayerfunded work. That legislation was a bipartisan effort to restore the reputation Texas has held for open government, a reputation diminished in recent years by court rulings and secrecy.

In Washington, Republican Cornyn and three other Judiciary Committee heavyweights — chairman Chuck Grassley, R-Iowa, Vermont Democrat Patrick Leahy, a former chairman, and Dianne Feinstein of California, now the committee’s ranking Democrat — plan to advance legislation after the Senate recess to counter the Supreme Court’s effects on the Freedom of Information Act.

In the 6-3 decision written by Justice Neil Gorsuch, the court held that FOIA law doesn’t require disclosure of governmentheld information if a business labels it confidential, even if release would not harm the business. The ruling stymied efforts by the Argus Leader, a newspaper in

Sioux Falls, S.D., to investigate local spending under the food stamp program. Critics say that under the decision, businesses could label basic information submitted to the government as confidential to prevent its release.

Cornyn, a journalism major at Trinity University, has been an open government advocate since his days as Texas attorney general, a stance not always in keeping with others in the Texas GOP.

“I’ve always been a little bit surprised that more conservatives didn’t champion freedom of information because I consider it a very conservative approach to government,” Cornyn told reporters before the Senate adjourned for a month.

“Because if public officials know that their actions are going to be transparent and publicly visible and available to voters, it does have a very important way of regulating their actions,” he added.

‘Important’ fix

In March, Cornyn and his committee allies co-authored a stern letter to the Justice Department demanding answers about a FOIA system broken in many respects even before the court ruling.

The letter referred to “knee-jerk secrecy” in government, complaining that delays and backlogs “continue to grow unchecked.”

The letter added: “Some pending FOIA requests are decades old. Making matters worse, there are a number of agencies with tens of thousands of backlogged FOIA requests.”

Cornyn referred to the clout of the sponsors in predicting that their bill will pass the Senate. “I’m pretty optimistic we’ll get it done,” he said.

Emily Manna, a policy analyst at Open the Government, a coalition of more than 100 organizations from across the political spectrum, worked with Senate aides writing the bill.

“It’s a really important corrective fix that would return us to the status quo of a 40-plus-year FOIA precedent that worked well for everybody,” she said.

But things have deteriorated. Manna said that in the Obama years, the release of records was “far from rosy” and that the Trump administration has imposed further restrictions.

For instance, the Environmental Protection Agency in June proposed new FOIA rules, with no opportunity for public comment, that give political appointees in the agency more opportunity to refuse to release documents requested by the public or the media.

The Reporters Committee for Freedom of the Press and 38 news media organizations last month appealed to the EPA to suspend the new rules, arguing in a letter that they are “deeply concerned” that the rules diminish transparency at the EPA.

The court ruling, Manna said, promises to worsen “overuse and abuse” of exemptions that agencies invoke when turning down requests.

“It pretty much says that anything a business calls confidential can be withheld,” she said.

Takes effect in January

In Texas, newly signed legislation overrules the Boeing Co. vs. Paxton ruling of the Texas Supreme Court in 2015, which led to a marked regression in openness at various levels of government. That ruling stemmed from a former Boeing employee’s unsuccessful request to the Port Authority of San Antonio for information about the company.

Texas’ top court accepted Boeing’s contention that what was sought was “competitively sensitive information.”

In a three-year period after the ruling, the Texas attorney general’s office cited it more than 2,600 times to justify denying public requests under the Pubic Information Act, according to the Texas Sunshine Coalition, an alliance of goodgovernment advocates and media groups.

Adrian Shelley, director of Public Citizen’s Texas office, said he is hopeful that the new law “puts teeth back” in the Public Information Act, But, he added, provisions don’t take effect until January and there’s uncertainty about whether — and when — it will work as intended.

“It’s still very hard to get information about contracts and bidding. Industries enjoy a great deal of freedom to claim business information. But I think what we got was pretty good legislation. It met our expectations of what the bill ought to do,” he said.