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In 1973, Texas implemented an open records law following the Sharpstown scandal, a stock-fraud debacle that ultimately resulted in the downfall of a Democratic governor, lieutenant governor, and House speaker’s political careers.
According to the preamble of the law, every individual has the right to access comprehensive information regarding government affairs and the official actions of public officials and employees, unless explicitly stated otherwise by law. Additionally, it is emphasized in the preamble that the law should be interpreted in a broad and generous manner.
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.
There is a rare agreement among individuals from different political affiliations, including journalists, First Amendment lawyers, libertarian advocates, and conservative lawmakers, regarding the worrisome disregard for the law by government officials. They have pointed out numerous instances where non-compliance or legal loopholes have been observed.
Clerks now withhold court records that were previously accessible on the same day they were filed, citing the need for document processing, as these records have been digitized. Unlike the federal courts, Texas state courts lack a comprehensive electronic system that automatically displays court motions. Bill Girdner, the editor of Courthouse News and recipient of the James Madison Award from the foundation, compared news to bread, emphasizing its freshness on the day of creation and its subsequent staleness. Girdner believes that news loses its relevance after a certain period, becoming suitable only for croutons.
According to Katherine “Missy” Cary, a former employee of the attorney general’s open records division who served under four Texas attorneys general, Texas agencies frequently resort to seeking opinions from the attorney general’s office as a means to delay the release of information, rather than promptly providing it. The requester also has the opportunity to present arguments to the attorney general’s office, which is expected to issue a ruling within 45 business days.
She expressed, “Instead of utilizing the process as intended, they weaponize it. It’s perplexing how the number of briefing requests continues to soar, considering the limited presence of 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.)
Rep. Todd Hunter, R-Corpus Christi, a staunch advocate of open government, expressed his concerns about the lack of transparency within agencies. He criticized their approach of creating barriers to hinder the release of records, which he believes contributes to a growing sense of mistrust.
“Why shouldn’t we inform the public about what’s happening?” he inquired. “After all, they are the ones who funded it.”
“The current process is not designed for success,” stated Robert Henneke, executive director and general counsel at the Texas Public Policy Foundation, a conservative-libertarian organization. Henneke emphasized the need for an examination of the exceptions to the law and proposed an audit. He argued that, with the exception of safeguarding sensitive data such as Social Security numbers, driver’s license numbers, and medical records, the extensive redaction of most records should be reduced or eliminated, as some records are currently not 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 suggested a revamp that would grant county justices of the peace or the State Office of Administrative Hearings the authority to promptly handle public-records requests.
According to Donnis Baggett, executive vice president of the Texas Press Association, government officials exploit an imbalance in resources by having no repercussions for their actions. He stated, “When the government simply says, ‘Go ahead and sue me,’ they are aware that we lack the financial means to do so.” This absence of consequences, Baggett explained, facilitates the defiance of the law by government officials who brazenly disregard it.
The speakers recognized that there are government employees, including some who were present at the conference, who make sincere efforts to ensure transparency while handling open-records requests.
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.
In her keynote address to the conference, she emphasized that we are currently experiencing a politically turbulent period in Texas and across the nation. The issues encompassing COVID, Texas’ response to the border crisis, the impending debate on public education, and countless other political discussions are overwhelming us as Texans and Americans. Public skepticism seems to hinder progress, and one way to combat this is by intensifying efforts to obtain public information and dismantling the barriers that exist between the government and its citizens.
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.
