Open government pioneer sees 'sunshine laws' in peril

AUSTIN – As a young lawyer and activist in the early 1970s, Buck Wood recalls that prying loose information and records from the hands of government bureaucrats was so onerous that even members of the Legislature were routinely stiff-armed.

“It was so bad that the state treasurer refused to tell the Legislature which banks he was depositing state money in and how much interest was being earned,” recalled Wood, now considered one of the state’s foremost legal authority on open government laws. “They asked and he wouldn’t do it.”

Then, in the wake of the infamous Sharpstown stock fraud scandal that toppled numerous political careers in the Texas Capitol, Wood worked with dozens of the newly elected lawmakers and a new state attorney general to craft a law that would become the national model for government transparency.

But over the past several years, Wood said, he’s seen a shift in attitude in the interpretation of the state's "sunshine laws," from the stated policy that all government records were considered to be public to one of push back at all levels of government where records are held secret unless the state attorney general’s office rules otherwise.

That new approach was effectively cemented in law two years ago when the Texas Supreme Court ruled in a case involving the aircraft giant, Boeing, that the contracts of private companies doing business with government entities could be shielded from public view if releasing the details would put the companies at a competitive disadvantage.

That court ruling has since been used at various levels of government to withhold the details of transactions with private entities.

Early optimism for open government

Advocates of robust government transparency policies entered the 2017 legislative session optimistic that the state’s Public Information Act could be fine-tuned to reinstall the principal that all government records are presumed public unless the attorney general’s office rules otherwise.

But even though that several pieces of legislation to widen the window into the operations of government passed one of the two legislative chambers, virtually all of them died amid intense lobbying – both in public view and behind the scenes.

“It’s important that proprietary information of businesses be protected when doing business with government,” said Chris Wallace, president of the Texas Association of Business, when he testified against one of the transparency bills. “It’s important to note after years of interpretation, this was finally challenged and it went to the Texas Supreme Court, who ruled that not only government entities have the right to the exception.”

The business group was joined by several other organizations – including the public-private Greater Houston Partnership, which promotes economic development, along with the American Council of Engineering Companies of Texas and the Texas Association of Manufacturers.

Their objections ranged from giving away trade secrets to scaring off qualified government contractors to making it difficult for governments to attract new commerce and industry.

Lawmaker's frustration boils over

That lobbying effort, which proved successful, frustrated open government advocates, including lawmakers who carried some of the bills that died as the legislative session entered its final weekend.

One would have made clear that the high court’s ruling in the Boeing case did not give governments the right to withhold details of routine contracts.

“The issue is transparency, the public’s right to know how the government spends their tax dollars, the public’s tax dollars,” said Rep. Terry Canales in a fiery floor speech late Thursday. “Government is the servant of the people, not the other way around.”

Canales, a South Texas Democrat, was angry that his legislation that would have made clear that the city of McAllen would have had to disclose the terms of its contract with entertainer Enrique Iglesias, who had performed for pay at the city’s holiday season celebration in 2015. Canales blamed a “conspiracy to keep contracts between government (and) corporations secret” for killing the open-government legislation.

Wood, whose open government legislation in 1973 was a priority measure called House Bill 6 and coauthored by more than two dozen members, said it contained ample protections for trade secrets and was never intended to allow governments to spend tax dollars in secret.

Calls for full review of open government laws

“I can’t speak to the specifics of the case involving the singer in McAllen, but never was there any expectation that cities could hire entertainers and not tell the public what they were paying them,” he said.

State Rep. Todd Hunter, R-Corpus Christi, said that even though the open government bills cratered, he and state Sen. Kirk Watson, D-Austin, are pushing for a top-to-bottom review of all transparency laws and how they might be approved. The findings would be presented to the next Legislature, Hunter said.

“Let’s a shine a light on this process and come up with a way to bring back transparency into state government,” he said.

Wood said that considering the present laws trace their roots back 44 years, it’s probably about time.

“They’ve got to hold public officials accountable,” Wood said. “That’s about as fundamental as it gets.”


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