At the Freedom of Information Foundation of Texas annual conference in Austin, Texas Land Commissioner George P. Bush, (left) who is challenging Texas Attorney General Ken Paxton in 2022, fielded questions about his views on open government issues during an interview program moderated by Bob Garrett, Austin bureau chief for the Dallas Morning News.
Texas Land Commissioner George P. Bush, who is challenging Texas Attorney General Ken Paxton in the 2022 Republican primary, fielded questions about his views on open government issues at the Freedom of Information Foundation annual conference in Austin.
Weeks after Bush announced his candidacy in June, former President Donald Trump endorsed incumbent Paxton, even though in the past Trump has referred to the Texas land commissioner as “the only Bush who likes me.”
In an interview format program moderated by Bob Garrett, Austin bureau chief for The Dallas Morning News, Bush related his views on open meeting and open records topics ranging from his work in establishing the Alamo Trust, Inc. to operate the Alamo project to his views on charter schools and redaction of personal information about public officials.
Bush noted that of the 4,200 employees of the AG’s office, about 1,100 are assigned to the open government division. He criticized Paxton’s stances on several issues of concern to journalists and other open government advocates, including the “skeleton crew” loophole employed by many agencies during the pandemic.
In the early days of the pandemic when businesses and government agencies were adjusting to personnel working remotely, Public Information Act requests for information were routinely ignored under the skeleton crew provision on grounds that employees working remotely did not have access to the records requested. Under Paxton’s guidance, some agencies have used the provision for more than a year.
“Our office adjusted (to remote working) within four months and with access to office records,” Bush said. He maintained that there should not be a blanket provision but guidelines and timelines for getting back to the public’s business.
FOIFT 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, passed the House but the senate did not act on the bill. Bush said he would support the legislation in the next session.
Overuse and misuse of the attorney general’s ruling system was discussed several times during panel discussions at the FOIFT conference. It’s a popular tool for governments to 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, according to FOIFT Executive Director Kelley Shannon.
Public records decision requests to the Attorney General’s office increased from approximately 19,000 in 2011 to about 34,000 in 2020, an increase of 300 percent, Bush noted.
Paxton’s response to the overload was to push for a new provisions to the Public Information Act allowing local government agencies to determine themselves what information they think falls within the exemptions without seeking an AG opinion first. That system would allow the requester to appeal the local government decision to the AG’s office.
Bush disagreed with Paxton’s measure as “using the easy button” and called for “more teeth” in the PIA to discourage agencies from seeking multiple opinions as a delaying tactic. He also noted that despite the large increase in opinion requests, the office should be able to reduce the 45-day waiting period to 30 days through proper management and redistributing resources within the department if necessary.
Bush also responded to questions about the Land Office’s work in 2015 and 2016 to form a trust to raise funds for maintaining and operating the Alamo. He said that in 2018 and 2019, his office took steps to bring the trust under provisions of both the Public Information Act and the Texas Open Meetings Act. “We put the ATI under open government laws because it was the right thing to do,” he said.
He contrasted the Alamo Trust with ERCOT, the agency that operates the state’s electric grid under the supervision of the Texas Public Utility Commission.
In the aftermath of Winter Storm Uri in February when massive power outages disabled public infrastructures, hampered health care facilities and left businesses and residents without power in dangerously cold weather, ERCOT records relating to the agency’s response to the disaster were withheld. ERCOT officials maintained that as a private and/or nonprofit group, it was not under the provisions of open meetings and open records laws.
Bush maintained that agencies receiving state and federal funds should be held to the standards of open government laws through a “substantial public interest funding test.”
Bush also championed efforts of Texas Sen. Judith Zaffirini and other lawmakers with her successful bill addressing the issue of nursing homes withholding information about COVID-19 infections on grounds it would violate HIPPA provisions. Data about health issues of concern to families should and can be released by nursing homes and other heath care facilities through data without violating the personal privacy of individual patients, he noted.
However, Bush said he did not want to commit to any position on the “dead suspect” loophole issues relating to law enforcement agencies. The measure gives law enforcement agencies discretion to deny the public access to details about a suspect who has not been convicted or received deferred adjudication – even if that suspect is dead. Rep. Joe Moody, D-El Paso, who is pushing to close that loophole with proposed legislation, was also among the speakers at the FOIFT conference.
Bush maintained law enforcement agencies should be allowed to conduct internal investigations and disciplinary actions in house without public scrutiny and release of records and potentially distressing images used in those investigations. He would not commit to release of these materials even after an investigation is closed, but said he would be willing to listen.
He also pointed to the use of federal open records laws and civil rights adjudication, such as that used by the family of a young man who died while in custody of the Mesquite police Department in 2013, a case that garnered statewide and national attention.
Thanks to the federal system, the family of the young man eventually obtained the records denied to them by the police department. His parents have become champions for open records laws and the rights of other families in similar cases.
In response to a question about charter schools being treated differently than public school districts under open government laws, Bush said he was a proponent of public school charters but also felt the playing field should be leveled. He said he was willing to participate in a roundtable discussion of the topic with FOI proponents and charter school officials.
Bush also did not want to commit to positions on repealing recent laws calling for the redaction of personal addresses of public and elected officials and redaction of dates of birth. Journalists, lenders and others say they need access to this information in order to differentiate between people with similar names and for issues such as making sure elected officials live in the districts they were elected to represent.
“We live in an age of doxing,” Bush said. “During the issues with the Alamo, believe it or not, we had threats. Another issue for the AG’s office is to protest personal information.”
The interview with Bush is available on YouTube via the FOIFT Channel.