Texas House OKs a quiet move to reduce public access to legislative records

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Texas State Capitol

Open-government advocates are expressing concern that a bill passed hastily, but unanimously, Friday in the Texas House will diminish the public’s ability to know how the legislature does its business.

Those advocates are particularly disturbed that substantial open records sections were added to an otherwise ordinary “housekeeping” proposal aimed at more efficient handling of some routine types of meetings.

The author of House Bill 4181, Charlie Geren, R-Fort Worth, who is also chairman of the House Administration Committee, did not respond to a request by The Texas Monitor to discuss the bill. Nor did the vice-chair of the committee, Donna Howard, an Austin Democrat who has in the past been a government transparency advocate.

The bill has yet to be assigned to a Senate committee.

If passed, HB 4181 would broaden the ability of legislators and the lieutenant governor to claim that their private communications on government matters are confidential by law and not subject to release under the Texas Public Information Act.

Legislative records would no longer be considered state records, available to the public through the Texas State Library and Archives Commission. Instead, those records would be kept by the Texas Legislative Council.

“This bill seems to remove the authority which TSLAC has had for 110 years to preserve and make available the historical record of the legislative branch of Texas government,” Wendy Woodland, communications director for the Texas Library Association, told The Texas Monitor. “I don’t know what is driving this, or going on behind the scenes, but we remain very concerned about the impact this will have on transparency and accountability.”

In particular, the bill would keep secret virtually all forms of communication involving parliamentarians in both chambers. By definition, a parliamentarian serves to provide legislators, regardless of party, with advice on the body’s rules of operation.

However, during several sessions over the past 15 years the nonpartisanship of the parliamentarians has been called into question. During a tumultuous climax to the 2007 session the House parliamentarian and deputy parliamentarian resigned over then-House Speaker Tom Craddick’s attempts to stop a motion to force him to step down.

Craddick, R-Midland, currently serving his 26th term in the House, was replaced as speaker in 2009 by San Antonio Republican Joe Straus.

Joe Larsen, a Houston attorney and longtime member of the Freedom of Information Foundation of Texas, said House rules already allow for exceptions to protect some private communications. This law would give legislators broader discretion in claiming legislative privilege.

“It looks to me like, if the parliamentarian is drawn into questions of policy, you’re trying to shield that,” Larsen said. “Then how is the public to know if the parliamentarian has gotten out of his lane? It appears ripe for the further politicization of the parliamentarian and ripe for abuse.”

Geren’s bill drew no public attention until the Texas Library Association wondered aloud what Geren was hiding. The group issued its statement the day before the House took up the bill.

“We don’t know why such important and far-reaching changes to public access to information were made so quickly and without any public discussion,” the statement said.  “Whoever added these provisions, for whatever reason, the choice to do so behind the scenes only reinforces the perception that the Legislature does not want the public to have the right to access legislative records as they have for the past 140 years.”

The bill sat in House Administration for a month before the archiving and parliamentarian sections were added as a committee substitute at an April 24 meeting. The minutes of the meeting do not reflect why the new language was added or any discussion of the substitute before the committee voted 11-0 to send the bill to the House floor for consideration.

Attorneys for the Freedom of Information Foundation contacted Geren the day before the vote to voice concerns. “The bill itself significantly expands on what is off limits to the public,” executive director Kelley Shannon told The Texas Monitor before the vote. “It’s definitely problematic.”

On Wednesday, Geren asked that a vote on the bill be postponed. On Friday Geren and two other legislators made five amendments to the bill, one of them to assure that the bill didn’t interfere with a court’s ability to assess the confidentiality of legislative communications.   

No legislator came to the floor to question whether the public was losing out before the House passed the bill.

The FOIFT was satisfied with the changes. “Our main concerns were addressed in the explanations we received and in amendments to the bill,” Shannon said. “It’s good that lawmakers took a little extra time in passing this legislation so it could be explained and improved.”

Texas Public Policy Action, a conservative nonprofit organization that analyzes bills, remained opposed to this one.

“Texas Action opposes HB 4181 because it would result in reduced transparency in government,” the group’s bill analysis said. “The legislative privilege and legislative records provisions of this bill are serious public policy issues which deserve to be dealt with in the full light of day with proper debate and ample opportunity for public comment.”

Empower Texans, another conservative group with concerns about the political leanings of parliamentarians under former speaker Straus, was more muted in its assessment of the potential impact of the bill.

“I assume the bill will make the legislature even less transparent, but I’ve yet to see anything in it that I’ve set my hair on fire over,” Tony McDonald, general counsel for Empower Texans, told The Texas Monitor.

The Library Association remains steadfast in its position that the public is ill-served by the bill.

“Unfortunately, the amendments did not address TLA’s concerns about this bill,” Woodland said.  As legislative records would no longer be state records, it would be up to the discretion of the Legislature what to do with them, and as they are not state records, it would seem that they may not be subject to public information requests.”

Mark Lisheron can be reached at [email protected].

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