“Make public record law more open”

Our first reaction on hearing that Texas lawmakers might revisit the state’s open records law during next year’s legislative session was, “This can’t be good.”

While the law could use a few tweaks to better define some of its language and to bring it up to date to with new technology, any revision that doesn’t make the law more open shouldn’t be made at all. Lawmakers should resist any temptation to move in the opposite direction.

The Texas Senate Open Government Committee, following a request by Lt. Gov. David Dewhurst, met Monday to hear testimony about possible changes to the law to reduce the number of “frivolous” open records requests, clarify its application to new forms of information and accommodate the concerns of government contractors. Democratic state Sen. Rodney Ellis of Houston chairs the committee.

Created in 1973, the Texas Public Information Act is written to favor individuals and organizations requesting government information. Some exceptions are allowed. State agencies can keep confidential information such as an employee’s Social Security number or address private.

The law’s intent is clear, however. The government’s business is the public’s business, and people should have access to information about government.

We’re leery of stated concerns about the law’s impact on government contractors. Any company that takes public money should play by public information rules. The public has a right to know how its money is being spent, no matter by whom, and whether promised savings or greater efficiency is actually occurring.

According to an Associated Press report of Monday’s hearing, Amanda Crawford, the assistant Texas attorney general for open records, said that government contractors trying to keep information about their government work to themselves account for between one-third and one-half of the public records lawsuits her office handles.

Legislators have criticized what they consider to be burdensome or frivolous requests that often lack a clear purpose beyond harassing an official or agency. Fees and other provisions exist to try to discourage such requests, and perhaps these fees should be increased. But how many of the lawsuits filed by contractors could also be considered frivolous?

Further, how many claims by contractors seeking open records exemptions to protect trade secrets are the private equivalent of law enforcement agencies claiming exemptions in the name of public safety? Are they necessary exemptions to protect sensitive information, or are they veils used to hide information that should be open to the public?

Another source of contention in recent years involves public officials who have used private email accounts to discuss government business. Attorney General Greg Abbott’s office has said that such information is public information, but officials continue to resist releasing it. Two current cases involve two City Council members in Lubbock who have sued to keep text messages they traded during a meeting secret and a Bexar County commissioner who has fought a ruling that he release emails about transit issues that were sent from his personal account.

The frivolity in these cases doesn’t come from some crank pestering a public official, but from public officials wasting taxpayer dollars by pursuing legal cases they’ve already lost at least once.

There are many forms of communication that didn’t exist when the open records law was written 40 years ago — email, texting, social media — and changes specifying that these forms are subject to the state’s open records law would be beneficial, we suppose. But Crawford, the assistant attorney general, said it well when she told the Senate committee: “We look to the content of the communication, not the technology with which it was transmitted. Does it relate to the transaction of public business? If so, it falls under the definition, and you cannot circumvent the Public Information Act by using new technologies.”

Texas’ open records law is one of the best open government laws in the country, but it could be changed to guarantee even greater access to public records. One possibility: Require public officials to keep their email available for more than a year. Another: Demand state agencies take advantage of technology by releasing information electronically to make it easier to search.

Ellis’ committee wasn’t discussing any actual bill. With next year’s session about a month away, none has been filed yet. It’s probably best to keep it that way.

If proposed changes are filed, then lawmakers should proceed with extreme caution.