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Texas Senate unsticks proposals to plug public records "loopholes"

With looming deadlines threatening to kill a slew of bills aiming to bolster access to public records in Texas, Sen. Kirk Watson muscled them closer to the governor's desk — all at once.

Sen. Kirk Watson, D-Austin, talks about open records efforts on Jan. 31, 2017.

With looming deadlines threatening to kill a slew of proposals aimed at bolstering access to public records in Texas, a state senator on Thursday muscled them closer to Gov. Greg Abbott’s desk — all at once.

Sen. Kirk Watson’s maneuver came as senators took up an open records bill that had already cleared the House: Watson and Rep. Eddie Lucio III’s House Bill 2328, which would give government entities  with employees trained in open records law — an option to expedite information requests under Texas public records law.

Watson attached, through floor amendments, key provisions from several other transparency bills (some of them his own) that had languished in the House Committee on Government Transparency and Operation, chaired by Rep. Gary Elkins, R-Houston. Those bills included:

  • Senate Bills 407 and 408, which would reverse the effects of two 2015 Texas Supreme Court rulings that have helped private companies shield parts of their government contracts from Public Information Act requests
  • House Bill 2670, which would crack down on — and potentially discipline — officials who try skirting public records law by refusing to turn over public information resulting from official business conducted on personal electronic devices
  • House Bill 2710, which would reverse a 2010 Texas Supreme Court ruling that said government employee birth dates were no longer public records
  • House Bill 3848, which would clarify some government duties in responding to public information requests

The Senate approved the bulked-up bill in a 30-1 vote Thursday, with Sen. Bob Hall, R-Edgewood, in opposition.

The House can either adopt the amendments or request a conference committee to iron out differences in the bills each chamber passed.

“We now sent them a very good Public Information Act bill, one that closes significant holes that were blown in the Public Information Act and assures that the public will have information it deserves,” Watson told reporters after the vote. “The public needs to have access to information, particularly when it comes to how its tax dollars are spent.”

The most closely watched bills — Watson’s SB 407 and 408 — breezed through the Senate in March before hitting the committee bottleneck. Those proposals push back against a pair of Supreme Court rulings that Watson said “closed the door" on information about government contracts and "created darkness when there ought to be light."

In June 2015, the Texas Supreme Court ordered Texas Attorney General Ken Paxton to block the release of information in a lease between Boeing and the Port Authority of San Antonio because the aerospace manufacturer said making the details public could tip off its competitors.

That ruling expanded the secrecy in government contracts in two key ways: by broadening an exemption in public records law used to protect the government’s competitive interests and by affirming that businesses could also invoke it.

Hundreds of entities have since cited that ruling in asking Paxton to shield contracting details that were previously considered public. Such secrets include how much the city of McAllen paid pop star Enrique Iglesias to sing at a holiday parade, how many driver permits Houston had issued to the ride-hailing giant Uber and details of a Kaufman County school district’s food service deal.

SB 407 sought to reverse that trend by limiting the competitive interest threshold governments could use to withhold information. It states that all finalized contracts would be released.

SB 408 responded to a separate Supreme Court opinion. The justices ruled in March 2015 that the Greater Houston Partnership, which received some public funds, could withhold details of contracts for economic services because it was not entirely dependent on public funds. The ruling narrowed the definition of groups subject to open records law.

Rep. Giovanni Capriglione, R-Southlake, had filed the same proposals in the House, where he says he met resistance from the business community and is frustrated by the inaction.

“People don’t understand the value of these until they don’t have the ability anymore to ask the government for this information,” he said earlier this week, predicting governments would end up paying more on contracts and see less competitive bidding if his proposals don’t free up more information. “There are people in these dark corners, and they’re doing everything they can to kill these bills without leaving their fingerprints on it.”

The Texas Association of Business is among those who have voiced concerns over both bills.

Without Watson’s maneuver, time was running out for them to reach Abbott’s desk.

The House had yet to bring the Senate bills to the floor. They, like many of the House bills, had not cleared Elkins’ committee.

“Everything does not rise to the level of a trade secret, but just because you do business with a government entity, you should not have to disclose to the public all of your thought processes,” Elkins said about SB 407, which would reverse the effects of the Boeing decision. “We do not want to reveal the methodology about prices.”

Elkins called House Bill 2710 — Rep. Todd Hunter’s effort to make government employee birth dates public again — “dead” in his committee due to employee privacy concerns and said he saw “no support” in his committee for Hunter’s bill to address public information on government employees’ personal electronic devices. He suggested that bill needed narrowing.

“There’s no question that the information on your device is public information,” Elkins said, but he worried the bill could particularly burden low-level public officials, such as heads of municipal utility districts.

Watson said Thursday he hadn’t spoken with Elkins about his maneuver but hoped the full House would see the Senate was "making it easier for the public to know what is happening with its tax dollars.”

Neena Satija contributed to this report.

Disclosure: The Boeing Company, the Texas Association of Business and Uber have been financial supporters of The Texas Tribune. A complete list of Tribune donors and sponsors is available here.

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