How lawmakers, the Texas Supreme Court and Ken Paxton closed the door on open government.

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by Christopher Collins
@collins_reports
April 2, 2018

By most measures, McAllen’s 2015 Christmas parade and concert was a wild success. Telenovela stars, radio personalities and local dignitaries waved to cheering crowds from an impressive line of lighted floats that glided through the streets of this city of 142,000 in the Rio Grande Valley. Fourteen marching bands strutted their stuff. Towering over the festivities were larger-than-life balloons: Santa Claus, the Gingerbread Man and Angry Birds characters. In a major entertainment coup, the city had secured a top-shelf headliner: Latin pop sensation Enrique Iglesias. Bailamos! crooned Iglesias, before turning his microphone to the mob of fans to finish the song’s chorus: Let the rhythm take you over, bailamos! Iglesias high-fived attendees and pulled fans onstage to sing along with him in the high-energy performance. A huge crowd, estimated at 240,000 strong, showed up for the festivities. “It really exceeded our expectations and it was just incredible to be out there and to see the families and to see the smiles on the kids’ faces,” Joe Vera, assistant city manager, told the McAllen Monitor at the time.

Fast forward to March 7, 2016, well after Iglesias’ roadies had packed up the last mic stand, the floats’ lights had been extinguished and Santa Claus had been deflated and boxed away. Vera gave a glowing report to city commissioners at a little-publicized workshop preceding a regular meeting: 4.4 million national and international viewers saw a broadcast of the event. The local economy benefited from $9.2 million in economic impact. Guillermo Rodriguez, Jimmy Kimmel’s sidekick, had even shown up!

Oh, and by the way, the city lost $765,000 on the event.

Mitchell Ferman was covering the workshop for the Monitor when the figure flashed on a TV screen. His eyes grew wide. “I took a picture of it with my phone to make sure I had it,” he said. After the meeting, Ferman asked commissioners for a breakdown of the costs. How much taxpayer money was Iglesias paid? The city had already refused to release a copy of Iglesias’ contract to other local media outlets, and City Commissioner John Ingram told Ferman the document was confidential. “Ingram told the Monitor he is not at liberty to discuss the figure Iglesias received,” partly because the terms were negotiated in executive session, Ferman wrote.

So Ferman did what reporters commonly do when public officials won’t answer questions: He filed a formal request with the city under the Texas Public Information Act, the 45-year-old state law that enshrines the public’s right to access information. For decades, the open records law has enjoyed bipartisan support, or at least lip service, as a powerful tool to shine a light on what elected officials and other agents of the government are doing with public money. “The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know,” the law’s preamble reads.

But the city pushed back, claiming that releasing concert payment information would limit McAllen’s ability to negotiate future contracts, and it appealed the matter to Texas Attorney General Ken Paxton.

“I think everyone thought it was objectively pretty ridiculous that they aren’t releasing this. And it was really curious as to why,” Ferman said.

The city had precedent on its side. In 2015, the Texas Supreme Court ruled in Boeing Co. v. Paxton that records could be kept secret if their release would put the government or businesses at a competitive disadvantage.

The Boeing decision blew a gaping hole in the Texas Public Information Act. It’s been used to keep the public in the dark about a $265 million deal to build a new power plant in Denton; to withhold a food service contract at Kemp ISD; and to hide the identities of candidates who applied for the Austin city manager job last year. The ruling was cited in at least 1,850 decisions blocking the release of information to the public under Ken Paxton since 2015, according to the AG’s office.

“The ruling is being stretched and used in ways that weren’t even imaginable when it came out,” said Kelley Shannon, executive director of the Freedom of Information Foundation of Texas. Its effects are “pervasive, and infecting communities across Texas,” she said.

But if Boeing was an uppercut to the chin of government transparency in Texas, it was preceded by a thousand body blows, courtesy of legislators, attorneys general and the all-Republican Texas Supreme Court. The harm comes in the form of a growing list of loopholes — exceptions to what records the public can obtain from the government. The Texas Legislature alone has hacked 63 exceptions into the Texas Public Information Act over the last four decades. Carve-outs have been added for the dates of birth of government employees, for attorney-client privilege, for information related to executions, for a public power utility’s commercial information. Then there are exceptions for economic development negotiations, trade secrets and dam safety data.

There’s even a loophole police departments can use to withhold records related to people who die in police custody. In Mesquite, the parents of 18-year-old Graham Edward Dyer asked police for records related to his arrest after the young man sustained a fatal head injury in a confrontation with officers. But because the case hadn’t resulted in a conviction, police said they didn’t have to give up the records. Greg Abbott, then the state’s attorney general, agreed.

In 2017, government agencies made a record number of requests to keep information secret — nearly 32,000, almost double the 17,000 sent a decade ago.

“It’s almost a death-by-a-thousand-cuts scenario. A lot of little things add up,” said Jim Hemphill, an Austin attorney who advises the Observer and other media clients on libel matters. “Through a number of mechanisms, government transparency in Texas has been a one-way ratchet toward less transparency.”

Graphic by Drue Wagner

Even if government agencies can’t find a loophole, they have plenty of other tools at their disposal. Over time, public information officers have developed some effective tactics to delay, derail and deny, including dragging out the release of information indefinitely, repeatedly asking for clarification and charging exorbitant prices for documents.

It doesn’t take long to find legions of journalists and citizens with stories of how frustrating and difficult the process has become.

Ask Kara Sutton, a researcher and nonprofit grant writer in Dallas. After an economic development corporation won a lucrative contract from the city to implement offender re-entry services, Sutton wanted to know if the best company had been chosen. She requested a copy of the bids and the request for proposals, but the city said it couldn’t release anything because the bid wasn’t finalized. After it was, Sutton asked again. This time, the city said the documents simply didn’t exist. Only after she filed a complaint with the Attorney General’s Office did Dallas finally cough them up. The fight took 10 months. “When you have this level of difficulty getting records, it seems like something fishy is going on,” Sutton said.

You could ask Carey Thiel, executive director of Grey2K USA, a nonprofit that seeks to end dog racing. Thiel says Texas A&M University asked the Texas Racing Commission for permission to destroy records related to drug tests for racing greyhounds after Grey2K requested the information in 2016. Even though the Racing Commission itself had previously published the data in annual reports — showing that some dogs were dosed with stimulants, steroids and other drugs — the commission refused to turn over the records. Paxton ultimately agreed that the documents could be kept secret.

Or ask Arif Panju, whose Institute for Justice, a libertarian law firm that aims to limit the scope of government power, was told it would have to cough up $410,800 to get records of communications between the Texas Department of Public Safety (DPS) and two federal agencies. DPS said it’d take 19,000 hours (at $15 an hour) to fulfill the request. The agency also tacked on other exorbitant fees, including $57,000 for labor overhead and $68,800 worth of “computer charges.” In 2015, DPS was a finalist for the Investigative Reporters and Editors’ Golden Padlock Award, a tongue-in-cheek award given by the organization to only the most secretive government agencies. That year, Observer reporter Melissa del Bosque detailed her experience with DPS — months after the agency had agreed to release limited records about the state’s border security plan, and after she paid a $221 deposit, the agency simply never sent the records.

Most experts interviewed for this story, including seasoned investigative journalists, agree that the open records law is still a useful tool. But they’ve all noticed a trend toward secrecy — what the Texas Tribune’s Jay Root calls “a slow unraveling of true transparency.”

“I find [the law] very useful and valuable. However, I have seen its usefulness diminish considerably over the years,” Root said.

Emails courtesy Jay Root, Texas Tribune

Eric Dexheimer, an investigative reporter at the Austin American-Statesman, has used the Texas Public Information Act to break some of the state’s biggest stories. In 2015, Dexheimer and a team at the newspaper used public records to show that Child Protective Services employees falsified documents, lied to prosecutors and failed to intervene in hundreds of cases in which children died. Sometimes he’s stymied, though. Dexheimer said he once threatened to file a theft charge against the Dallas Police Department because they cashed his check for records but were slow-walking the request. “That seemed to jog something loose,” he said.

“Every time I see [the law] whittled away, a little piece of me dies,” Dexheimer said. “Journalists care about this because every day we see the importance of it. But unless you run straight into a brick wall … you don’t see that there are these obstacles preventing you from getting the information you need and holding government accountable.”

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It took one hell of a scandal to get the Legislature to pass an open records law in the first place. In 1972, state House Speaker Gus Mutscher Jr., Representative Tommy Shannon and former Texas Insurance Commissioner John Osorio were convicted of embezzlement in what’s known as the Sharpstown scandal. They and other high-ranking officials, including the governor and lieutenant governor, were implicated in a scheme to pass legislation favorable to Houston financier Frank W. Sharp in return for stock offerings.

Voters saw the behind-closed-doors dealings as an affront to open government. “It was just a shock to everybody,” said Buck Wood, the Austin attorney who drafted the legislation in 1973. Even officials who hadn’t been implicated in the scandal faced the wrath of voters, as the mounting pressure on state leaders led to the retirement or defeat of half the Legislature. Many of the freshmen elected in 1972 won seats on an aggressive platform of reform, accountability and transparency.

This set the stage for Wood, the new executive director of government transparency group Common Cause, to help newly elected House Speaker Price Daniel Jr. pass a whirlwind of reforms: campaign finance rules, the Open Meetings Act, ethics rules, lobbyist disclosure requirements and the state’s first open records law. These laws remain the cornerstones of open government in Texas.

“At the time, Texas had absolutely no legislation regarding what was a public record,” said Wood, who is 73. “You might be in Dallas, and you’d find the county clerk was very open. Then you’d be in some other county and they wouldn’t let you see stuff. Lots of places were just totally hostile.”

But it didn’t take long before legislators, attorneys general and Supreme Court jurists started taking potshots at open records.

The first major blow came in 1976, when the Texas Supreme Court ruled that details of state workers’ compensation claims could be withheld from the public on grounds of their being “highly intimate or embarrassing.” While that may sound reasonable, the ruling has been used to block the release of state employees’ dates of birth, a crucial tool for trying to determine whether a government official has a criminal background. In 1993, the state’s high court ruled a government attorney’s entire trial case file wasn’t subject to the law, though it would be an invaluable tool in reviewing instances when prosecutors have railroaded innocent Texans.

The Texas Supreme Court set another damaging precedent in 2015 when it allowed the Greater Houston Partnership, a powerful business consortium that oversees the city’s economic development activities, to withhold files on what it does with taxpayer money. Though the ruling hasn’t been invoked much yet, open records activists say it could allow governments to farm out more public work to outside agencies while skirting the open records law. Taken together with the Boeing case, the public’s right to know what’s happening at the intersection of public and private businesses has been drastically reduced in recent years.

Wood argues that the Supreme Court has done more damage than any attorney general or individual agency. “We’re going to have to do something legislatively to stop this court attack on it,” he said. “The Supreme Court has messed it up. No question about it.”

The Legislature has roughed up the Public Information Act each session, too.

In 2015, lawmakers passed a bill to hide the identities of companies that manufacture drugs for state executions. Sponsors argued that news articles about the drugmakers had resulted in a “chilling effect” on the state’s ability to procure pentobarbital, a barbiturate commonly used to euthanize animals. Attorneys representing death row inmates have accused the state of botching two executions by using expired drugs, a claim that’s more difficult to verify when basic information about the drugs is secret. And of course, that’s the point.

As part of the nationwide panic after 9/11, the Legislature in 2003 passed the Texas Homeland Security Act, which allowed the government to withhold information if it’s related to “detecting, responding to, or investigating an act of terrorism.” Some of the carve-outs seem reasonable — should the public really have access to encryption codes to public communication systems? — but the law has been stretched to ridiculous lengths.

In 2013, a stockpile of ammonium nitrate at a fertilizer plant in the McLennan County town of West exploded, killing 15 people and injuring 160. Reporters wondered if other towns were in danger from potentially explosive material. Under state law, companies are required to keep inventories of certain hazardous chemicals. Citing the homeland security law, then-Attorney General Abbott said the inventories could be kept secret, lest terrorists get their mitts on them. The homeland security law cropped up again when explosions at the Hurricane Harvey-flooded Arkema chemical plant in Crosby forced the evacuation of hundreds of nearby homes. The public is still in the dark when it comes to the danger posed by the plant.

“Every legislative season somebody comes up with something that will protect some particular interest,” said Joe Larsen, an open records attorney in Houston. “There’s a certain mindset that lies behind this, like in sharing information with ordinary citizens, we’ll also share it with the bad guys.”

Generally, when government agencies want to withhold information, they need to consult the Attorney General’s Office, which is charged with interpreting and implementing the Public Information Act. The office acts as a referee in the battles that frequently play out between the public and government agencies. Though adverse decisions can be appealed to a district court, in reality the attorney general has the final say on most matters. Anecdotally, open records advocates say that previous attorneys general — especially U.S. Senator John Cornyn — were even-handed in their decisions.

Advocates mostly praised Abbott, too, when he served as attorney general from 2002 to 2014. In 2005, Abbott was awarded the Freedom of Information Foundation of Texas’ James Madison Award for ruling that the state’s open records law overrides federal confidentiality rules regarding some health records, giving the public access to documents hospitals had refused to give up. (Cornyn won the award in 2001.) But Abbott would not forever remain the darling of transparency advocates — in 2014, before the Legislature put the brakes on execution drug information, Abbott told the Department of Public Safety it could withhold drugmakers’ identities.

And the decision to keep chemical inventories secret after the West explosion? That was Abbott, too. If citizens were concerned about exploding chemical facilities, they could just go visit the chemical plants, he said. “You know where they are if you drive around,” Abbott told reporters at the time. “You can ask every facility whether or not they have chemicals … and if they do, they tell which ones they have.”

Experts say the situation’s gotten worse under Paxton, who became the state’s top lawyer in 2015. In one bizarre example, Paxton in 2015 represented DPS in a lawsuit against his own office to hide records on how border agents were spending taxpayer money. And while it’s true that Paxton represented the public in the Boeing and Greater Houston Partnership litigation, he lost both cases.

Meanwhile, Larsen and other experts say that instead of readily handing over documents, government agencies are increasingly turning to Paxton for help. Data provided to the Observer by the AG’s office appear to bear that out. The number of open records rulings by the attorney general has soared since the turn of the century, from 5,000 in 2000 to 29,000 in 2017, the most ever.

Advocates and requesters wonder if the avalanche of ruling requests — coupled with complaints from requesters and calls into the AG’s open records hotline — has overburdened the office. Do they have the time and resources they need to make fair, accurate rulings?

Kayleigh Lovvorn, a spokesperson for the AG’s office, said the rulings “have not caused a strain on our division,” adding that the open records division “consistently meets or beats our statutory deadlines.”

Hemphill said the workload may be too heavy for the attorneys to reliably make good decisions. “When you’ve got 30,000 open records decisions being issued every year, it’s virtually impossible for every one to be correct,” Hemphill said. “I’m sure they get it right more often than not. But the strictures of the job make it so mistakes will be made.”

Paxton also has a notoriously adversarial relationship with the press. He rarely grants interviews to outlets other than Fox News, and his staff has lashed out at the Dallas Morning News for dogged reporting on Paxton’s habit of bringing on staff members outside the normal state hiring process. In 2016, Breitbart Texas ran a bizarre piece quoting anonymous sources within the attorney general’s office who complained that Lauren McGaughy, a Morning News reporter, was “stalking” them by waiting outside their offices to ask questions she couldn’t otherwise get answered.

One of the staffers Paxton hired without publicly posting the position was Marc Rylander, a former pastor at Prestonwood Baptist, a Plano church that’s an epicenter of GOP politics and anti-LGBT activism. In 2016, Paxton tapped Rylander to serve as his communications director. In January, Rylander was caught on video candidly speaking his mind about the press and the open records law. Reporters, he said, are people who “don’t ever have to leave their apartment or their house. They troll Twitter all morning. Steal a bunch of ideas and jot down some crappy article by 3 o’clock.”

Rylander made the remarks during a training session put on to help government officials respond to Public Information Act requests. (Poetically, the video of his remarks was obtained through a records request.) When asked by the session’s moderator about expediting request responses, Rylander grinned and guffawed as he suggested to officials that they intentionally delay responses for reporters they have a beef with.

“Don’t do that, right?” the moderator asked.

“I’m supposed to tell you not to do that,” Rylander said, still chortling. “Depends who the reporter is!”

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It was in this environment — one of secrecy-tinged Supreme Court rulings, obstructionist laws and an arguably overworked Attorney General’s Office — that open records advocates set out to reverse some of the Public Information Act’s recent erosions. In the year leading up to the 2017 legislative session, a task force led by the Freedom of Information Foundation of Texas and joined by legislators convened with high hopes. They had at least a sporting chance, since government transparency is one of the very few issues that has bipartisan support.

“We all sat down and made our best effort to brainstorm on issues that need reform that we all agreed on,” said Laura Prather, an open records attorney and co-chair of the foundation’s legislative committee. The task force came up with an impressive lineup of reform legislation, including House and Senate proposals that sought to tighten response requirements for custodians of public records and would have closed the new loopholes opened by the Supreme Court.

As expected, the two main bills had bipartisan support. In March, the Senate passed both overwhelmingly. But as the bills snaked through the legislative process, opposition from the business community mounted, particularly the powerful Texas Association of Business.

Chris Wallace, the association’s president, said member companies were concerned the legislation might put trade secrets in the public domain. “We are not trying to prevent public disclosure of any kind of final contracts; that’s not it at all,” Wallace said. “If there are still some gray areas that still need to be worked out, we need to make sure businesses are at the table.”

While lawmakers waged war over the bathroom bill and so-called sanctuary cities, the open records legislation idled in the House Government Transparency and Operation Committee. The committee is fittingly chaired by Houston Republican Gary Elkins, a pioneer of payday lending in Texas, an industry that kept regulators at bay in part by operating in secrecy. Elkins told the Corpus Christi Caller-Times that “a lot of people happen to think the Supreme Court got it right,” and that a separate bill to restore dates of birth as government records was “D.O.A.” in his committee.

Ultimately, the committee would be a cemetery for the reform bills. Austin Senator Kirk Watson, Prather and others have pegged Elkins as the gravedigger. “I do not know why the committee chair worked so hard, even against his vice chair, [to kill the bills],” Watson told the Observer. “The committee was more interested in protecting the private business interests, which rely on making money off tax dollars, than in taking care of the public taxpayer.”

Elkins did not return calls to be interviewed for this story.

The single bill that open records activists managed to pass would have reinstated the right of plaintiffs to recoup attorney’s fees after winning an open records lawsuit. Abbott vetoed the bill, arguing in a statement that it would have created incentives for members of the public to sue right away.

The Legislature did pass a resolution calling for the creation of a committee to study loopholes, but no members have been appointed as of press time. “My hope is that it can only get better,” Prather said. “There has to be a public outcry. There has to be a grassroots movement and a groundswell of support.”

In reality, things may get worse before they get better. After all, it took a scandal to convince legislators to pass the landmark open records legislation in the first place, Hemphill said. Do we need a Sharpstown 2.0 to repair the law? “If we go too far in the direction of decreasing transparency, I’m afraid we’re setting the stage where the potential for that corruption is possible. … I think it’s an unintended consequence, but I think it’s a possible consequence,” he said.

And what came of the request made by Ferman, the Monitor reporter who simply wanted to know how much the city of McAllen paid Enrique Iglesias to croon at its Christmas concert? That story doesn’t have a happy ending. A couple of months after the request was sent, Paxton’s office sided with the city, citing the Boeing case. The taxpayers of McAllen are not allowed to know how much they paid the singer.

“I don’t think there’s any doubt it’s a bad precedent,” Ferman said. “It’s one of those things people still talk about.” Secrecy has won out over transparency, not only in McAllen but all over the state. The Public Information Act is just not as powerful as it once was. And though the open records advocates who have sworn to fix it seem determined, they’ll have to wait until 2019, when the Legislature meets again, to make repairs.

Until then, the government may take Iglesias’ lyrics in “Don’t You Need Somebody” to heart: “Baby just keep it our little secret/What they don’t know won’t do them no harm.”

Illustration by Matt Chase.