Open records laws in Texas were adopted in 1973. The Texas Public Information Act assures that government entities give citizens access to information about what public servants are doing on their behalf – information needed to gain a more complete understanding of how their government works and hold public officials accountable The law’s preamble states that every person, “unless otherwise expressly provided by law,” is entitled “at all times to complete information about the affairs of government and the official acts of public officials and employees.” The law is supposed to be “liberally construed,” the preamble adds.
However, the Texas Public Information Act is routinely bypassed, ignored or violated either in letter or in spirit, and sometimes both, according to the Freedom of Information Foundation of Texas.
Concern over the open flouting of the law by government officials is a rare bipartisan point of consensus, bringing together an unlikely alliance of journalists, First Amendment lawyers, libertarian advocates, and conservative lawmakers.
As court records have become digitized, clerks have increasingly withheld records that used to be available on the same day they’re filed, saying they need to process the documents. Unlike the federal courts, Texas state courts do not have a unifi ed electronic system in which court motions appear automatically.
Instead of turning over information promptly, Texas agencies routinely ask for an opinion from the attorney general’s office on whether they have to release information, often as a delaying tactic, according to Katherine “Missy” Cary, who served four Texas attorneys general and ran the attorney general’s open records division. The requester may also make arguments to the attorney general’s office, which is supposed to issue a ruling within 45 business days.
The law does permit requesters to directly sue the agency for the release of records, in state district court, but that rarely happens because litigation is costly. And in some cases, even the attorney general’s rulings are defied.
Instead of a presumption in favor of transparency, agencies have created an “obstacle course” to block the release of records, fueling mistrust, said Rep. Todd Hunter, R-Corpus Christi, a longtime advocate of open government.
“What’s wrong with telling the public what’s going on?” he asked. “They paid for it.”
Robert Henneke, executive director and general counsel at the conservative-libertarian Texas Public Policy Foundation, said “the process itself is not set up to succeed.” He called for an audit of the exceptions to the law.
The foundation’s litigators have filed several suits to challenge denial of records which can cost hundreds of thousands of dollars in attorney’s fees and take years to get something that should be open and transparent.
Donnis Baggett, executive vice president of the Texas Press Association, said that government officials take advantage of an asymmetry in resources. “There are no consequences whatsoever for the government to just say, ‘Sue me.’ They know we don’t have the money to sue.” The lack of enforcement, he said, makes it easier for a government official “who just thumbs their nose at the law.”
There has been some progress in improving the law, but it’s been slow. This month, a new law took effect defining the term “business days,” making it clear when government offices are open and must accept requests for public information.
Another proposed reform would allow judges to order the government to cover attorneys’ fees for plaintiffs who successfully sue for public information. It passed the Legislature in 2017, but Gov. Greg Abbott vetoed it.