After the Sharpstown Bank scandal in 1972, Texas voters overwhelmingly elected reform candidates to the Texas Legislature who adopted sweeping legislation to better safeguard our government from corruption and secrecy. At the time, Texas adopted some of the strongest laws in the nation on government transparency, what are now the Texas Public Information Act, the Texas Open Meetings Act, and little known, but important, records retention laws.
But even at just 46 years of age, those open government laws are dying of old age. The vitality of open government laws in Texas has been diminished by technology and adverse court decisions without legislative response.
In order to retain these open government principles, the Legislature must rethink what transparency in government should look like in today’s reality and how to really promote and protect it.
Technology developed since 1973 has increased the volume and type of information the government possesses and the opportunities to share information for an empowered electorate. But technology has also unleashed opportunities for public officials and employees to secretly deliberate about and conduct official business using their personal computers, cell phones and clever apps developed specifically for temporary, secret, discussions. If they are so inclined, today’s government officials and employees can easily hide government information, and, without prosecution, delete those privately held “government records,” denying public access to this official business. See Bill Aleshire, “Hillary” Emails and the Unenforceable Texas Public Information Act, 17 Tex. Tech Admin. L.J. 175 (2016).
Recent court decisions—after 46 years of accepted interpretation, application, and enforcement of the laws—have gutted some important provisions of these laws:
- 2019: TOMA’s “walking quorum” provision implicates First Amendment free speech and is unconstitutionally vague on its face. This must be restored in law, or what the public sees in “open” meetings will be nothing more than a rehearsed kabuki theatre of the backroom secret debate. (State v. Doyal, PD-0254-18, 2019 WL 944022 (Tex. Crim. App. Feb. 27, 2019)
- 2018: The Texas Anti-SLAPP Act applies to government officials sued in their official capacity. If that is not changed, TPIA and TOMA lawsuits will be chilled out of existence. (Roach v. Ingram, 557 S.W.3d 203, 220 (Tex. App.—Houston [14th Dist.] 2018, pet. filed)
- 2016: A governmental body does not forfeit the attorney-client privilege by failing to timely request an Attorney General decision under the TPIA. This, along with TPIA section 552.323 that allows governments to wait until sued to disclose records and avoid paying attorney fees to the requestor, make the TPIA “prompt” disclosure requirement a farce. Paxton v. City of Dallas, 509 S.W.3d 247 (Tex. 2017)
- 2015: TPIA section 522.104 exception to disclosure of information that might give an advantage to competitors applies to both the government and private parties and may be invoked by either.). This change has resulted in government contracts and other records of public expenditures being kept secret from taxpayers. Boeing Co. v. Paxton, 466 S.W.3d 831, 839 (Tex. 2015)
Right or wrong, these court decisions permit secrecy the laws did not intended; they provide a chilling effect on suing government officials; they delay the open records ruling process; and these decisions further mean that even government contracts for expenditure of public funds will not be disclosed to taxpayers.
A sample of additional transparency problems that should be addressed include:
- TOMA’s (Section 551.103) requirement to make a record of executive (closed) sessions should require the sessions to be recorded no longer permitting merely keeping a “certified agenda.” No one knows what a “certified agenda” is. Keeping a real record of what goes on in such closed meetings will discourage unlawful discussions there.
- In this computer age, every governmental body with a webpage should be required by TOMA to make their agenda, meeting backup material, and either stream or record their meetings for public access online.
- TPIA’s “litigation exception”—non-disclosure of information merely because it relates to litigation in which the government is, or may be, a party—should be repealed or strictly narrowed. This nonsensically denies prompt disclosure of otherwise disclosable information to the public, merely because the information could be subject to discovery in litigation by parties suing the government.
But here’s a reality check: No law will be stop public officials and employees who are Hell-bent on conducting government in secret because the likelihood of them getting caught and punished is low. Transparency occurs when public servants truly believe and respect that the public has a right to see what they are doing inside the people’s government. That attitude achieves transparency better than any law. As a public official, it’s sometimes uncomfortable and irritating to slow the process down and be open. But secrecy in government breeds mistrust by the public and surely lays a base for corruption. Public servants who care about that potential awful effect on our democratic republic, must operate transparently.
Texas transparency laws need to be reborn with a fresh view of, and response to, today’s technology and the opportunity—or threat—it creates for a government the people can view, trust, and control.
Bill Aleshire is a lawyer at AleshireLAW. He worked on the open government bills as a legislative staff member in the 1973 session and for 17 years had to comply with those laws as a Tax Collector and County Judge). He has spent more than 17 years of his career focusing on government transparency.