Open records bills push back on court rulings

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Lawmakers this session are targeting rulings by the Texas Supreme Court, above, that gave governments in Texas greater leeway in withholding records from public view.

James Pinson is on a roll.

The attorney for the city of Dallas is laying out his case for the Texas Supreme Court, explaining that even though the city failed to respond to a public records request years ago, it doesn’t mean the city broke the law.

His terminology is dry, his delivery poised as he nails down the caveats of attorney-client privilege until he is interrupted from the bench.

“Under what circumstances would you waive that privilege?” inquires Justice Eva Guzman.

“Yes, uh,” Pinson stammers, “the municipality is, ah, is governed by the city council, and, ah, it acts by, ah …”

Despite Pinson’s fumbling over the case’s key issue, he secured a win in February when the Court affirmed a lower court ruling in favor of the city. The Court agreed that the city was legally within its rights when it sat on an open records request for 26 days in 2008, claiming release of the records would impinge on lawyer-client privilege and hamper its bargaining position on a multimillion-dollar transaction. Under state law, a government body must release records promptly and has just 10 business days to seek an attorney general’s ruling to withhold records under an exception in the law. Otherwise, the material requested is presumed to be public.

“The interests protected by the attorney-client privilege are sufficiently compelling to rebut the public-disclosure presumption that arises on expiration of the [public information act’s] ten-day deadline,” read the court’s opinion, authored by Guzman.

The ruling was another in what has become a string of thumpings against transparency by the state’s highest court. In response, lawmakers from both parties are pushing back.

Rep. Giovanni Capriglione, R-Keller

“I have no idea what the motivation of the justices is,” said Rep. Giovanni Capriglione, (R-Keller). “But I do know the way it was is the way it should be, and these changes the court has made in recent years are not helpful.”

Capriglione’s House Bill 792 would force government entities to be more specific when asserting the right to withhold documents the government believes would hamper a private company’s competitive stance.

The bill is a response to a 2015 state Supreme Court ruling that allowed aerospace giant Boeing to keep secret its lease agreement with the U.S. Department of Defense. The ruling carved out a space for private entities doing government business to protect information that those companies believe would give an advantage to a competitor or bidder.

“So now the city can go to the company and ask if it’s cool with them to provide requested information that should be public,” Capriglione said.

Another proposal from Capriglione, House Bill 793, would make clear that an organization receiving public funds under specified conditions would be subject to public records requirements.

That legislation is an answer to another 2015 Supreme Court ruling referred to as the Greater Houston Partnership decision. The court declared that an economic development group receiving public funding is not necessarily subject to public records law, applying a strict formula that required nearly full support from public money to make the agency subject to open records requirements.

Before that decision, a quasi-government entity getting money for performing public services was generally subject to open records law.

Capriglione said his bill would again allow the public to see how its money is spent on activities that include economic development by operations like the Greater Houston Partnership and the Fort Bend Economic Development Corp., which both receive hundreds of thousands of dollars in taxpayer funding but are not required to release information as to how that money is spent.

The city of Houston in 2007 and 2008 paid the partnership $196,250 per quarter for economic development work, representing 8 percent of the GHP’s annual revenue for the year. Ninety percent of its revenue came from membership dues.

Capriglione allowed that the measures have a limited chance of passage, although one of them, HB 792, has the bipartisan support of 11 co-authors.

While the House bills sit in committee, their Senate companions have both moved through, with opposition from various business and economic development quarters.

Both measures have Senate companions, and all of the measures sit in committee.

But none of the bills would be necessary if it were not for the nine-member state Supreme Court, which includes six members appointed by former Gov. Rick Perry who were subsequently re-elected.

February’s decision on the withholding of records by the city of Dallas under attorney-client privilege “is just the latest in a long line of crappy opinions out of that Supreme Court,” said Joe Larsen, a First Amendment lawyer in Houston. He has tracked the court’s rulings with regard to the media, including First Amendment cases and public records.

He senses that the court’s stances on these issues are shaped by an overall anti-media sentiment as well as a new form of Republicanism.

“Being conservative means something different now,” said Larsen, who was at one time chair of his college Republican group. “It used to mean small government and transparency, and now it means anti-press.”

While the membership of the court has changed over the past decade, the rulings have shown a consistent tendency to favor the government body in transparency disputes. Larsen points to the 2011 opinion that created a lawful means to withhold the governor’s travel vouchers, claiming release of the records would endanger the public official. He also notes the 2013 opinion in which an Austin television station used third-party statements in a segment on a local surgeon, who claimed those statements defamed him. The ruling was viewed by some as undermining the “substantial truth doctrine,” which holds that the truth is a defense against defamation.

“The court’s actions are not just limited to the public information act,” Larsen said. “But the actions are also directed at journalists in general.”

The Court’s decisions can be seen more as upholding the position of the ruling class rather than tacking to any political affiliation, added Rice University political scientist Mark Jones, a veteran watcher of Texas politics.

The Court itself is the essence of the establishment.

“It is a centrist body,” Jones said. “When you think of the public records act, it doesn’t track on the traditional left or right. In Texas, the biggest proponents of transparency tend to be movement-oriented, like Tea Party conservatives or very liberal Democrats. And it’s the establishment conservatives and more institutionalized Democrats who tend to oppose more transparency.”

The court seems to be averse to any news making, keeping disclosure of its goings-on to a minimum. Going back to 2008, the court issued dozens of press releases a year. The information ranged from honors given to prior members to important reviews and opinions.

Since 2014, when the current court took shape, it has issued six press releases, going dark for all of 2016.

A call to Olser McCarthy, staff attorney for public information at the court, was not returned.
Contact Steve Miller at 832-303-9420 or [email protected].

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Steve is a veteran journalist, who has previously worked at the Dallas Morning News and the Washington Times, as well as Texas Watchdog. His work has appeared in the Houston Press, Miami New Times, People Magazine, and High Times. He also travels the country writing true crime books. His work has won awards in national, regional, and state contests.

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