Lawmakers warn more open government battles ahead

Open government successes of the 86th Texas Legislature were reviewed with an eye toward future battles during a legislative panel at the Freedom of information Foundation of Texas annual FOI conference.
Sen. Kirk Watson, D-Austin, Rep. Todd Hunter, R-Corpus Christi, and First Amendment attorney J.T. Richards were on the panel moderated by FOIFT Vice President Arif Panju.
After legislation designed to repair damage to the Texas Public Information Act from two Texas Supreme Court rulings failed in the 2017 session, measures passed in 2019 because the mood in the legislature had changed, Watson said, noting that some of the lawmakers in key positions who opposed the legislation in 2017 were not re-elected.
“Elections matter,” he said.
 Hunter also noted the difference in the legislative sessions. He said that in 2017 he, Watson and Rep. Giovanni Capriglione, R-Southlake, were alone in leading the effort to restore transparency laws ravaged by appeals court decisions. Recalling the lyrics of the 1969 Three Dog Night hit song “One,” he said “three was the actually the loneliest number” during the 2017 session.
This year, the three legislators were successful in passing Senate Bill 943 ensuring that citizens can find out how their taxpayer money is spent on private sector and non-profit contracts, along with Senate Bill 944 addressing several aspects of the state’s open records law and, among other things, assuring public access to government documents contained in officials’ private electronic accounts and devices. 
Also passed in the 2019 session was House Bill 81 by Rep. Terry Canales, D-Edinburg, that requires governmental entities to disclose information about contracts for concerts and other public events funded by taxpayer dollars.
Another success was a bill by Watson and Rep. Dade Phelan, R-Beaumont, that repaired damage from a Texas Court of Criminal Appeals ruling that the Open Meetings Act was “unconstitutionally vague.” The high court struck down the act’s prohibition of a “walking quorum,” a series of private meetings between small groups of elected officials to reach consensus on issues rather than do so in public. SB 1640 clarified the definition of a walking quorum.
Panel member Richards discussed the successful effort to protect Texas’ Anti-SLAPP law, which in the years since it passed had sometimes been used in ways not intended. Legislation to reform the law was initially opposed by open government advocates, who testified in hearings, shared their objections and proposed solutions. The amended version of HB 2730/SB 2162, by Rep. Jeff Leach, R-Plano, and freshman Sen. Angela Paxton, R-McKinney, was supported by open government proponents and passed.
Hunter’s effort to restore access to dates of birth records failed in the 2019 session. Hunter’s HB 1655 and SB 1318 by Sen. Nathan Johnson, D-Dallas, would have restored access to the information in records under the Texas Public Information Act. This information is no longer accessible after a 3rd Court of Appeals ruling. Dates of birth are essential to differentiate between people with common names. Hunter pledged to continue the effort in the next session.
Another loss discussed was the effort by Rep. Joe Moody, D-El Paso, to close a loophole in the Texas Public Information Act that gives law enforcement agencies discretion to withhold information in closed cases if a suspect did not go through the court process, including those who die while in custody or while fleeing to avoid arrest. It was the second time Moody filed legislation attempting to close the loophole and he pledged to continue the effort in the next session. The issue was among the topics addressed in another panel discussion at the conference.
Watson and Hunter said open government advocates “cannot let these successes become a problem in the next session,” where there is more work to be done.
Pointing out that his district was ground zero for Hurricane Harvey in 2017, Hunter noted there will be a move on community broadband safety networks in the next session.
Watson called for more transparency in the upcoming redistricting following the 2020 Census.
Another issue likely to come up in the next session is use of FOIA requests as a tool for discovery during litigation and trials, according to Richards.