In 2019, Another Chance to Fix the Texas Public Information Act

It’s been three years since Enrique Iglesias walked away from the Rio Grande Valley holding a proverbial sack full of taxpayer cash. He got the money in 2015 for crooning in the city of McAllen’s annual holiday concert and parade, a boondoggle that saw taxpayers losing hundreds of thousands of dollars. City officials still refuse to tell residents how much Iglesias was paid to perform — a decision supported by Attorney General Ken Paxton.

“It’s extremely disappointing,” said state Representative Terry Canales, whose district encompasses McAllen. The Iglesias debacle was preceded by a 2015 Texas Supreme Court ruling — Boeing Co. v. Paxton — finding that records could be kept secret if their release would put the government or businesses at a competitive disadvantage. The decision blew a gaping hole in the Texas Public Information Act, the 45-year old law enshrining the public’s right to access information kept by the government. It’s since been cited more than 1,850 times to withhold all kinds of records: power plant deals, school cafeteria contracts, even the identities of Austin city manager candidates.

Last week, in the lead-up to the 2019 Legislature that begins in January, Canales filed House Bill 81, which would prevent the government from invoking the Boeing exception to hide payment information related to concerts, parades and other taxpayer-funded entertainment events. (Canales filed a version of the bill in the last legislative session, but it was killed in the Senate.)

This bill is part of a slate of planned legislation meant to shore up the state’s open records law, which has been weakened not only by the Boeing ruling but also by decades of attacks from the Legislature, attorneys general and the state’s Supreme Court. “The bottom line is this: The way the law functions right now is that government entities are able to hide what they’re doing with taxpayer money,” Canales said. “When the public is denied the right to know how its tax dollars will be spent, it’s a breeding ground for corruption.”

Though government transparency generally gets bipartisan support (or at least lip service) from politicians, legislation to reverse the Boeing ruling and make other repairs to the state law failed to pass in 2017 despite having majority support in both chambers. Austin state Senator Kirk Watson, a Democrat, passed a Boeing exception reform bill through the Senate with an overwhelming majority in 2017, but it died without receiving a hearing in the House.

Transparency advocates and lawmakers largely blame Houston Republican Gary Elkins for the defeat. Elkins, an outgoing state representative who once said that “a lot of people happen to think the Supreme Court got it right” on the Boeing ruling, chaired the House Government Transparency & Operations Committee in 2017 and refused to give Watson’s bill a hearing. Elkins eventually allowed a version of Canales’ entertainment transparency bill through his committee toward the end of the session before it died in the Senate; it was killed by GOP Senators Charles Schwertner and Lois Kolkhorst.

“When the public is denied the right to know how its tax dollars will be spent, it’s a breeding ground for corruption.”

Open records activists managed to squeak one bill through the Legislature last session — one that would have reinstated the right of plaintiffs to recoup attorney’s fees after winning an open records lawsuit — but it was vetoed by Governor Greg Abbott, who said it would have incentivized lawsuits against the government.

Kelley Shannon, executive director of the Freedom of Information Foundation of Texas, said she’s hopeful bills seeking to mend the state open records law will stick next year. Since the last session ended in 2017, the foundation pulled disparate groups together to form the Texas Sunshine Coalition. The group predictably counts news organizations such as the Texas Association of Broadcasters and Texas Press Association among its members, but also includes the normally diametrically opposed Center for Public Policy Priorities and the Texas Public Policy Foundation.

“We’re really proud that there are so many diverse groups. Some lean right, some lean left. … But they’re all talking about, ‘The taxpayers have a right to see how their money is being spent,’” Shannon said. The state Democratic and Republican parties both pledge to support laws “that would close contractor and trade secret loopholes in the Texas Public Information Act” in their respective platforms.

Watson and state Representative Giovanni Capriglione, a Republican who has authored open government bills, told the Observer on Tuesday they plan to file new reform legislation together in the 2019 session, as they did two years ago. El Paso Democrat Joe Moody has already filed a bill in the House to close the “dead suspect” loophole that allows police to withhold information regarding a police investigation even if the suspect is dead. Elkins won’t be a problem anymore for advocates of open government — he lost his seat in the midterms. His replacement and other committee chairs will likely be announced in January.

Canales, the McAllen representative, said he isn’t sure if the bills will pass this time around, but he anticipates reform at some point in the future if lawmakers are able to keep the issue in the public eye. “This keeps us focused on the fact that the public’s right to know is being severely infringed upon,” he said. “The spirit of the legislation is to shine sunlight on what is undoubtedly becoming a larger and larger problem throughout the state.”