Texas records law finds requesters jumping through hoops for records

Texas records law finds requesters jumping through hoops for records

A “pre-appeal” system and an overused exemption are creating headaches in the state

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Edited by JPat Brown

Public records law differs in each state. What you might get in one might not be so accessible in another. Similarly, state processes can drastically change what you request, how you request it, and how long you have to wait for it.

One state in particular stands out as being completely different than the federal statute it was based on. FOIA states that agencies can hold information hostage based on certain exemptions, which in turn press the requester to challenge that action through an appeal. However, the Texas Public Information Act places the onus on the agency to provide its justifications for applying exemptions to the state’s Attorney General.

“Typically, the process is to file a request, get records back, but if [the agency] thinks they don’t want to give out records, they write to the Attorney General and explain why it falls under an exception,” said Statesman reporter, Elizabeth Findell.

From there, it’s up to the AG to decide if the agency’s justifications are enough. Its a pretty sweet deal for requesters looking to get records out of Texas as they can sit-back, relax and let the process unfold. But as with any bureaucratic process, requesters can find themselves waiting on the AG’s decision for up to 45-business days with an additional 10 business days if the AG decides it needs more time.

The decision to withhold records is even more problematic after 2015 Supreme Court ruling decision in Boeing v. Paxton, in which the Supreme Court asked Attorney General Ken Paxton to block the release of records between Boeing and the Port Authority of San Antonio.

In 2015, the City of McAllen invited Latin pop singer Enrique Iglesias to perform at the City’s 2015 Holiday Parade. But one records request to find out how much money the City spent in hiring the iconic singer was denied, citing Boeing v Paxton.

“It should be a basic right of the people of Texas to know how their government operates and how their government uses their taxpayer dollars,” said Texas Representative Terry Canales (D-Edinburg).

The decision to not release those records, which are ultimately receipts on taxpayer money, were justified by Boeing v. Paxton on the basis that releasing those records “would put the government or businesses at a competitive risk.”

“The Boeing V. Paxton severely infringes on the public’s right to know what their government is doing on their behalf. The spirit of the reform effort in the Texas Legislature is focused on returning government transparency to Texas and shining a light on the actions of our governmental entities. The public deserves the right to know what their government does,” said Canales.

Late last year, Canales authored House Bill 81, which would have ended the government’s use of the Boeing v. Paxton exemption for records related to concerts, parades, and other entertainment funded by taxpayers. The bill ultimately died as well as several other attempts by state legislators to end the overuse of the exception such as a Boeing reform bill last year.

Now, state legislatures are gearing up to propose new legislation that would tackle the widespread use of the Boeing exception. State transparency groups also hope 2019 brings an end to the exception.

“The Boeing ruling has now been used to close off information in at least 2,700 cases that governments have sent to the attorney general for a ruling,” said Executive Director for the Freedom of Information Foundation of Texas Kelley Shannon. “Because the court decision is so broad, and the threshold for withholding competitive bidding information so low, it has blown a huge hole in the Texas Public Information Act. In some cases, even final contracts and amounts of contracts have been kept secret.”

State agencies continue to take part in the overuse and sometimes, misuse of case law to justify suppress records. Exceptions continue to sneak into records law through bills and unvetted legislation.

“This ruling is being used in ways that probably even the court didn’t envision. It’s closing off basic information about how taxpayer money is spent,” added Shannon.

Do you have your own public records issues in your state? Let us know!

Image by Famartin via Wikimedia Commons and CC BY-SA 4.0