When Texas Attorney General Greg Abbott first campaigned for his office 12 years ago, he promised a new era of government transparency. Abbott, who in July announced his bid for governor, believes he has accomplished his goal, even as the public pressure for more openness has also risen dramatically. Others believe that self-assessment overstates Abbott’s results.
“Throughout my tenure as AG, we have achieved the highest transparency ever,” he says.
The Office of the Attorney General serves as the state’s arbiter of whether information is open to the public under the Public Information Act and other applicable laws. Therefore, municipal and state government agencies often ask the OAG to rule on open-records requests they receive. In response, the AG issues informal rulings or formal opinions, the later of which creates precedents that may be cited in future disputes.
The OAG received 2,059 such requests in the fiscal year ending Sept. 30, 2013, and received 2,301 in the previous fiscal year.
Abbott describes the rise in the public seeking public records over his 12-year tenure as “an explosion.” The letter rulings his office has issued about open-records requests have increased 209 percent since he took office in 2002.
Asked what’s behind the increase, Abbott responds: “Several things and many of them are good. The public’s more active use of the Internet has more people empowered, and, through that platform, they are able to make a whole lot more open-records requestsand can be a lot more inquisitive of their government.”
Also, Abbott says, “Our office is doing a better job of communicating” what the law is that allows for open-records requests.
Abbott believes some of his most significant achievements in creating more transparency have stemmed from developing bipartisan support for proposed legislative reforms of the open-records statutes.
Most recently, Abbott backed the efforts led by Texas Sen. Kirk Watson, (D-Austin) to expand the Texas Open Meetings Act. It will create electronic bulletin boards for government agency board members to communicate with each other and for all to see.
Abbott also believes he has supported government transparency by increasing the ranks of the AG’s lawyers and staff members who handle open-records requests. Although he generally has sought to limit any growth in the OAG’s budget during his tenure, Abbott says he has more than tripled the size of the staff of the office’s Open Records Division.
According to figures provided by OAG spokeswoman Lauren Bean, in the fiscal year ending Sept. 30, 2002, the division issued 7,171 letter rulings and had 45 full time employees. In comparison, in the fiscal year ending Sept. 30, 2013, the division issued 22,161 letter rulings and had 57 full time employees.
The AG’s office has increased its efficiency in the face of the swelling workload, according to figures supplied by Bean. During the fiscal year that just ended, the division issued 46 percent of rulings within 10 calendar days or less, up from just 5 percent in 2002, Bean reports.
While the number of rulings has gone up, the number of rulings requiring deadline extensions actually decreased from 128 in 2002 to 103 in the recent fiscal year, Bean reports.
Abbott stresses that his office also has taken aggressive pro-transparency position in battles between government-record seekers and state and local government officials who wanted to keep papers away from prying eyes.
Abbott points to a 2010 OAG letter ruling finding that Bexar County officials could not avoid the disclosure requirements of the open-records laws by using private accounts or devices when discussing official business. Bexar county officials challenged Abbott’s ruling in a district court, which agreed with the AG that the material should be released. So then the county commissioner appealed to 3rd Court of Appeals, which has scheduled arguments in Tommy Adkisson, Individually, and in his Official Capacity as Bexar County Commissioner Precinct 4 v. Greg Abbott, Attorney General of Texas et al, on Oct. 9.
George Hyde, a partner in Austin’s Denton, Navarro, Rocha & Bernal who represents the Bexar county commissioner on appeal, says he finds “it very difficult to imagine that local governments have a right to pry into its individual employees’ email access” and thereby get the access that would need to fulfill the requests in dispute.
“Transparency is wonderful, but it cannot be used as a shield or a guise to interfere with constitutional rights” of due process of city employees, he says.
Hyde notes that in his arguments in the 3rd Court case he is relying upon an opinion the Supreme Court issued in 2000, when Abbott served on the court, which said private correspondence had to be used in official business proceedings before it was subject to the open-records laws.
More to Do
Some open-records lawyers think there has been much discussed about transparency, but more action is needed.
“Certainly, General Abbott has said a lot of things that have been in support of transparency of government,” says James Hemphill, a shareholder in Austin’s Graves Dougherty Hearon & Moody, who regularly represents clients seeking records from reluctant municipal and state agencies.
“I have to give Greg Abbott credit” for taking some strong positions, says Bill Aleshire, a partner in Austin’s Riggs Aleshire & Ray.
But Aleshire says Abbott has also “disappointed” him by not taking an aggressive enough position in a recent battle involving a client of Aleshire’s who was seeking records. That fight arose between the city of El Paso and Aleshire’s client, Stephanie Townsend Allala of Stephanie Townsend Allala & Associates, an El Paso law firm.
Allala sought city officials’ emails related to a proposal to replace the city hall building with a baseball field, plus other correspondence about city business during specific dates. The El Paso city officials did not give Allala the emails and sought a ruling from the AG, which in December 2012 issued a letter ruling telling them to turn over the material, including public business done on personal emails.
Then, El Paso city officials sued the AG in the 261st District Court in Austin, seeking a declaratory judgment to determine if they could withhold records. Allala, as an intervenor in that case, City of El Paso, Texas v. Greg Abbott, Attorney General of Texas, sought to depose city officials. The officials, at that point, because the baseball field deal was no longer pending, released many of the requested records, says Hyde, who also represents the El Paso city officials. The city also filed a motion to quash those depositions, which the court denied on Sept. 30. The AG’s office did not fight El Paso’s motion to quash or its still-pending plea to jurisdiction, seeking to dismiss the AG’s favorable ruling for Allala.
Aleshire says, although the AG initially issued such a strong ruling for his client, Abbott’s office didn’t follow that up with support in the ensuing litigation, instead accepting El Paso city officials’ unsworn statements that they do not have the remaining materials requested to turn over.
Hyde says the city released most of Allala’s requested material and that’s why they and the AG believe the fight should be over.
When asked about the Allala litigation and why his office didn’t take a more aggressive stance, Abbott says, “We can’t get involved in certain situations. . . . If we were to litigate all 10,000 of these, my budget would increase.”
Aleshire says, “The way it is, it’s left to requestors to fight the mighty, flowing power of governments, who have an endless supply of lawyers. That is exactly what has happened in the El Paso case.”
Hemphill, too, appreciates Abbott’s efforts to increase transparency but finds some flaws in the AG’s approach. Hemphill cites a proportionate decrease in formal open-records rulings and reliance on informal letter rulings, which might provide a requestor relief but are not then available in the future for parties to cite as binding precedents.
Abbott says the letters rulings get the dispute at hand resolved just as effectively as a formal opinion. He notes that, although the workload has increased for the AG’s Open Records Division by quantity of requests for rulings, it has not increased in complexity.
“The broad swath of the high volume [of open-records request] falls within limited subject areas,” Abbott says. Therefore, often an informal letter — even one cut and pasted from previous rulings — is sufficient, he says.
For those who wonder what Abbott as governor would do in terms of transparency, stayed tuned, the AG says.
“I’m not going to break that news now,” he says, but during the campaign ahead he expects to propose a new level of transparency for the governor’s role in the budgeting process.