Bill to bolster open records law gets day in sun

In the 2017 legislative session, Rep. Giovanni Capriglione proposed a bill to restore the strength of the Texas Public Information Act, which guarantees citizens access to government records, after a pair of 2015 court rulings that transparency advocates say gutted the law.

But his bill to shine a light on government spending never saw the light of day in the House, where Gary Elkins, then-chairman of the Government Transparency and Operation Committee, refused to call it up for a hearing.

Two years later — with Elkins gone, having lost re-election, and with the House committee structure rearranged — Capriglione finally got his hearing.

On Wednesday, the State Affairs Committee, led by Chairman Dade Phelan, R-Beaumont, heard testimony on House Bill 2189, which aims to close loopholes created by the two Texas Supreme Court decisions that allowed state agencies and local governments to keep secret basic details about their dealings with contractors and quasi-public corporations that receive taxpayer money.

"Contracting scandals over the last 10 years have illustrated that transparency and accountability are key to eliminating waste, fraud and abuse," Capriglione, R-Southlake, said at the hearing.

The committee took testimony Wednesday on numerous transparency and good government bills, including House Bill 318 by Rep. Donna Howard, D-Austin, which would expand the number of agencies that must broadcast their public meetings over the internet, and House Bill 1655 by Rep. Todd Hunter, R-Corpus Christi, which would prevent government employees' dates of births from being redacted from public records requests.

It also heard three ethics bills by Rep. Sarah Davis, R-Houston, that would prevent agency heads who lost their jobs due to malfeasance from being hired to lead another agency, create a one-year "cooling off period" in which lawmakers are prohibited from becoming lobbyists after leaving office, and require elected officials' personal financial disclosure statements to be posted to the Texas Ethics Commission's website.

Records fight redo

In one of the 2015 cases Capriglione's bill aims to address, Boeing v. Paxton, the court greatly expanded an exception to the law that allows records to be withheld from citizens if they contain trade secrets or proprietary information of companies that contract with government entities. The court's broad reinterpretation of the exception already has led to more than 2,600 instances of people being denied access to records because of the Boeing ruling, including some absurdist moments of government secrecy, such as the city of McAllen refusing to disclose how much money it paid Enrique Iglesias to sing at a 2015 parade.

The other case, Greater Houston Partnership v. Paxton, limited what records are available from quasi-government entities, such as economic development corporations, that receive taxpayer money but are, on paper, private companies or nonprofits.

In 2017, Capriglione and Sen. Kirk Watson, D-Austin, who is championing the legislation in the upper chamber, tried to simply reverse the court decisions through new legislation that would withstand judicial review, but they were opposed by general contractors and other government vendors.

This year, Capriglione said, they have inverted their strategy with a narrower bill: Instead of trying to make public every type of record that was public before 2015, he and Watson are proposing to make it mandatory that certain fundamental information be made public if requested, including the basic terms of contracts, such as their cost and duration, and records showing what vendors promised to provide and whether they delivered.

James Hemphill, an attorney and board president for the Freedom of Information Foundation of Texas, said while the new proposal doesn't go as far as he would like, it does improve the public's right to know how taxpayer money is being spent.

"This bill does not return the law to pre-Boeing and pre-Greater Houston Partnership, which was our goal last session. It didn't happen," Hemphill said at the hearing. "Now it's time to address that. And we've found a way."

Public records, private companies

American-Statesman Executive Editor John Bridges testified in support of the bill, citing instances in which the newspaper's reporters have been denied access to records that used to be considered public.

"The Department of Public Safety cited Boeing in withholding applications filed by medical marijuana companies. The University of Texas cited Boeing in refusing to release any details on its athletic sponsorship deal with Corona Extra," Bridges said. "Apparently the interests of beer companies and marijuana companies are more important than the interests of taxpayers."

The only opposition to the bill came from the Associated General Contractors of Texas' Tracy Schieffer, who said that subjecting private companies to the Public Information Act will force them to hire in-house lawyers, an "undue burden this bill will place on small- to medium-sized businesses."

"The open records process should be a focus of government entities and not pushed down to the companies," she said.

After the hearing, Capriglione said he would work with the contractors group on finding a compromise but would not allow the industry to be exempted from the law entirely, as Schieffer suggested.

"If you don't want to disclose the deals or the terms of the deals, then don't get into business with the government," he said.