By Kelley Shannon
If you work in government, here’s something to remember: You work for the people.
It’s your job to ensure citizens can interact with their government and have the information they need to hold it accountable. That includes handing over public records when someone requests them.
In Texas, government documents are presumed to be open to everyone and can only be withheld under specific confidentiality exemptions in the state’s Public Information Act. Many government employees understand this quite well. Some relish helping records requestors.
Unfortunately, though, Texas is experiencing a wave of blocked or delayed access to public information.
One of the more egregious cases is in the city of Odessa. For two years, officials have been holding up police information sought by The Odessa American, other news media and citizens. Basic documents that once were available within hours, such as police reports and probable cause arrest affidavits, were held for days or weeks. In some instances, information that’s clearly public was blacked out when records were finally released.
This forced requestors to play a game of “Mother May I?” to obtain information, said Odessa American publisher Patrick Canty when the newspaper sued the city in 2020 to press for the timely release of records. He added, “The city is not our ‘mother,’ and they have no legal or ethical right to demand anyone ask their permission. That information belongs to all of us.”
The newspaper alleges Odessa officials slow-walked public records requests by having city attorneys vet each request related to crimes and arrests and by sending all requests to the attorney general’s office for a ruling. (If a governmental body wants to withhold information under the Texas Public Information Act, generally it must ask the Texas attorney general to decide whether it can do so.)
In May, an appeals court sided with a lower court in rejecting the city’s attempt to throw out the Odessa American’s case. Now another court hearing is set for Aug. 12.
Overuse and misuse of the attorney general’s ruling system isn’t only happening in Odessa. It’s increasing across Texas as governments stall and take advantage of the 45 business days it can take to receive an AG decision, rather than providing records “promptly,” as required by law. This scheme delays getting information to the public and overloads the attorney general’s office.
Attorney general public records decision requests increased from approximately 19,000 in 2011 to about 34,000 in 2020, with some of that growth obviously attributable to bad faith ruling requests. We need an appropriate penalty when governments abuse the system.
Another recent widespread delay strategy involves governments refusing to respond to information requests because their offices are physically closed amid the COVID-19 pandemic and operating on a “skeleton crew” remote work schedule. That’s despite the fact that public employees are still on the job and many records today are accessible electronically by remote workers. Meanwhile, certain cities – Dallas and Fort Worth among them – don’t even want to disclose their skeleton crew policies. They cited attorney-client privilege in their pleas to the attorney general when the Freedom of Information Foundation of Texas asked to see their guidelines.
The FOI Foundation of Texas and other open government supporters urged legislators this year to prevent these arbitrary skeleton crew information shutdowns. House Bill 1416, a bipartisan measure addressing the problem by defining “business days” in the Public Information Act, overwhelmingly passed the Texas House of Representatives. The Senate did not act.
Clearly, more work must be done to improve government transparency in Texas. The FOI Foundation will explore these timely topics at its annual state conference Sept. 24 in Austin.
Citizens need information so they can speak out and question elected leaders and policies. The public’s right to know is at the heart of our democracy. Those in government have a duty to ensure information flows freely.
Kelley Shannon is executive director of the nonprofit Freedom of Information Foundation of Texas. For details on FOIFT and its state conference go to www.foift.org.