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Texas’ open records law is 50 years old — and routinely flouted

By Sewell Chan, The Texas Tribune

Texas’ open records law is 50 years old — and routinely flouted” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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Texas adopted its open records law in 1973, after a stock-fraud scandal dubbed Sharpstown ultimately ended the political careers of a Democratic governor, lieutenant governor and House speaker.

The law’s preamble states that every person, “unless otherwise expressly provided by law,” is entitled “at all times to complete information about the affairs of government and the official acts of public officials and employees.” The law is supposed to be “liberally construed,” the preamble adds.

However, the Texas Public Information Act, at 50, is routinely bypassed, ignored or violated either in letter or in spirit, and sometimes both, according to numerous speakers who gathered in Austin on Thursday under the aegis of the Freedom of Information Foundation of Texas, a nonpartisan group founded in 1978.

Concern over the open flouting of the law by government officials is a rare bipartisan point of consensus, bringing together an unlikely alliance of journalists, First Amendment lawyers, libertarian advocates and conservative lawmakers. The speakers cited numerous examples of non-compliance with or loopholes in the law.

As court records have become digitized, clerks have increasingly withheld records that used to be available on the same day they’re filed, saying they need to process the documents. Unlike the federal courts, Texas state courts do not have a unified electronic system in which court motions appear automatically. “I compare news to bread – it’s fresh on the day it’s made, it’s stale the next, and after two weeks, bread is good for croutons, and the ‘news’ just isn’t news,” said Bill Girdner, the editor of Courthouse News, who received the foundation’s James Madison Award.

Instead of turning over information promptly, Texas agencies routinely ask for an opinion from the attorney general’s office on whether they have to at all, sometimes as a delaying tactic, according to Katherine “Missy” Cary, who served four Texas attorneys general and ran the attorney general’s open records division. The requester may also make arguments to the attorney general’s office, which is supposed to issue a ruling within 45 business days.

“They use the process as a weapon rather than using the process as intended,” she said. “How is it that requests for briefings keep skyrocketing, when there aren’t that many new governmental bodies?”

The law does permit requesters to directly sue the agency for the release of records, in state district court, but that rarely happens because litigation is costly. And in some cases, even the attorney general’s rulings are defied. According to Dave Hendricks, a reporter and producer in the Rio Grande Valley, a nonprofit public charter school operator there sued Attorney General Ken Paxton several times after his office directed the nonprofit to release records of finance committee meetings, expense reports by top executives and documents concerning the nonprofit’s purchase of a boutique hotel. (The cases are pending.)

Instead of a presumption in favor of transparency, agencies have created an “obstacle course” to block the release of records, fueling mistrust, said Rep. Todd Hunter, R-Corpus Christi, a longtime advocate of open government.

“What’s wrong with telling the public what’s going on?” he asked. “They paid for it.”

Robert Henneke, executive director and general counsel at the conservative-libertarian Texas Public Policy Foundation, said “the process itself is not set up to succeed.” He called for an audit of the exceptions to the law. Other than shielding information like Social Security numbers, driver’s license numbers and medical records, most records, he said, should not be redacted as heavily as they are now — if they’re even released at all.

The foundation’s litigators have filed several suits to challenge denial of records. In one case, it represented a resident of Georgetown, north of Austin, who had requested records about the economics on the use of solar panels by the city, which has described itself as relying 100% on renewable energy.

In another case, in 2018, the Highland Park Independent School District, in the Dallas area, fired a longtime tennis coach accused of intimidating, bullying and harassing students. The district hired outside lawyers to conduct an internal investigation. They briefed board members in a closed executive session. The district argued that the investigation was a “work product” protected by attorney-client privilege. Henneke said his organization was suing for the records, “spending years and probably hundreds of thousands of dollars in attorneys’ fees, to get something that should be open and transparent.”

Henneke proposed an overhaul that would empower county justices of the peace, or the State Office of Administrative Hearings, to decide on public-records requests quickly.

Donnis Baggett, executive vice president of the Texas Press Association, said that government officials take advantage of an asymmetry in resources. “There are no consequences whatsoever for the government to just say, ‘Sue me.’ They know we don’t have the money to sue.” The lack of enforcement, he said, makes it easier for a government official “who just thumbs their nose at the law.”

The speakers acknowledged that many government employees processing open-records requests — some of whom attended the conference — do their best to be transparent.

In 2019, longtime El Paso journalist Bob Moore used the Texas Public Information Act to obtain records from the Weslaco Police Department concerning the death of a 16-year-old Guatemalan boy while detained by U.S. Customs and Border Protection. The federal agency had refused to turn them over, but the attorney general’s office told the local police they had to hand over the records. The records resulted in a ProPublica investigation.

Sen. Lois Kolkhorst, R-Brenham, who chairs the Senate’s health and human services committee, said she was angered in 2020 when the state refused to identify long-term care facilities where patients were dying of COVID-19 in large numbers, citing medical privacy.

“We are living in a politically volatile time in Texas and in our nation,” she said at the keynote address to the conference. “Whether it was COVID or how Texas is addressing the border crisis or the upcoming debate over public education or the hundreds of other political debates filling our days, we as Texans and Americans seem to be stifled by public skepticism. One of the remedies for skepticism must be to increase the pursuit of public information, to knock down the walls between the government and the governed.”

There has been some progress in improving the law, but it’s been slow. This month, a new law took effect defining the term “business days,” making it clear when government offices are open and must accept requests for public information. During the pandemic, some agencies had said they wouldn’t accept requests because they were relying on a “skeleton crew” with few employees present and most staff working from home. “They just made up their own rules for when they were open and closed,” said Kelley Shannon, executive director of the Freedom of Information Foundation of Texas. (Ayan Mittra, The Texas Tribune’s senior managing editor, is on the foundation’s board.)

Another proposed reform would allow judges to order the government to cover attorneys’ fees for plaintiffs who successfully sue for public information. It passed the Legislature in 2017, but Gov. Greg Abbott vetoed it.

Craig Garnett, owner and publisher of the Uvalde Leader-News, and Kimberly Mata-Rubio, whose daughter died in the mass shooting at Robb Elementary School in Uvalde in May 2022, spoke at the conference’s final panel, titled, “Never Give Up,” describing their continuing demands for transparency and accountability. The Texas Department of Public Safety has refused to release records about the school shooting — the deadliest in Texas’ history — citing an ongoing criminal investigation. News organizations, including the Tribune, have challenged that argument, noting that officials have described the gunman, who was killed, as the only person responsible. In June, a state district court ordered the release of the records, but the litigation is still pending.

Also on that panel were Kathy and Robert Dyer, a retired civil engineer and retired junior high school teacher whose 18-year-old son Graham died in police custody in Mesquite, in 2013. They were only able to obtain records of their son’s death after going to the FBI. State and local officials had refused to turn over the records, citing the so-called dead-suspect loophole, which gave police discretion to withhold information about people who die in custody and therefore haven’t gone through the court system. The Legislature closed the loophole this year after years of advocacy by the Dyers and other families.

Disclosure: The Texas Public Policy Foundation has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

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