Legislators outline transparency priorities, issues for next session

Restoring law enforcement transparency and access to dates of birth in public records are major priorities of two open-government legislators who spoke at the Freedom of Information Foundation of Texas annual conference.
State Rep. Todd Hunter (R-Corpus Christi) and Sen. Nathan Johnson (D-Dallas) shared their views of the upcoming legislative session in a panel discussion moderated by Josh Hinkle of KXAN TV in Austin.
Following the May 24 shooting at Robb Elementary School in Uvalde when 19 students and two teachers were killed and numerous others wounded, news organizations filed lawsuits against the Texas Department of Public Safety and local officials who are withholding information about the massacre. The news organizations are asking a judge to order release of records related to law enforcement actions and subsequent investigations. 
Officials cited exemptions to the Texas Public Information Act — including one commonly called the “Dead Suspect Loophole,” which allows police to withhold records even when the suspect is deceased. At times, law enforcement agencies have used the loophole to deny family members and concerned citizens information when someone arrested dies while in police custody. 
Some departments never close a controversial case in order to take advantage of the loophole. That makes it difficult if not impossible for the public or families of deceased suspects to ever learn what happened.
Hinkle pointed out House Speaker Dade Phelan’s call for an end to using the loophole to “thwart the release of information that is so badly needed and deserved right now.” Both Hunter and Johnson said they support the speaker’s position and will push reform legislation.
Hinkle asked Hunter and Johnson about the legislature’s failure to restore public access to dates of birth in government records. The DOB information was available for decades, but a state appeals court closed off access a few years ago.
For the past two sessions, Hunter has won House approval for legislation to restore public access to DOBs. In both sessions, the bills died in the Senate. “I am not leaving the legislature until date of birth is passed,” Hunter said.
Dates of birth are essential to reporters who must differentiate between individuals with common names, Hunter noted. DOB access is also crucial for lenders, employers doing background checks on applicants and commercial data providers such as Lexis/Nexis.
Johnson said some opposition was based on the fear of identity theft, but he pointed out that more information than birth dates is needed for fraud. He also noted that dates of birth are already accessible on the internet. “They can get your date of birth whether it is in a public record or not,” he said. “It’s not an invasion of privacy. It can be to your advantage for you not to be confused with another person.”
Johnson and Hunter also introduced unsuccessful legislation in 2021 that would have required government agencies to make public records available in searchable and sortable formats so the data can be used more efficiently. Opponents maintained that the information could be manipulated by the recipient and used to foster fake news.
Johnson said much public information released is no more than a “200-page PDF (permanent data file).” Hunter lamented the fact that too often, it’s little more than 200 pages of white-out or redactions. 
Johnson said he supports working with state agencies to make sure they have the software and staffing resources to respond to public information requests in a timely manner and in user-friendly formats.
Also failing in the 2021 session was legislation addressing government agencies that ignore public information requests or refuse to release information on grounds that the government entity is operating under temporary staffing restrictions, as occurred during the pandemic. The legislators also lamented the tendency of some officials to challenge or redact all public information requests.
“Instead of a transparency issue, it’s becoming a litigation and legal process,” Hunter said, as officials require more information before eventually releasing redacted documents that lead to legal challenges.
The two lawmakers also said they would revisit legislation passed in 2019 to address harmful court rulings that restricted release of information about bidding processes and contracts between government agencies and private companies, preventing the public from seeing how taxpayer funds were being spent. 
Johnson said that while there has been improvement, he recommends revisiting and tightening up some definitions, particularly where the act created certain categories of what is called “super public information.” 
“I don’t want any entity or agency to be able to withhold super public information under the theory that ‘if we release this to you it might be misleading outside of the context of this other non-super public information, so we are going to litigate and give you none of it,’ ” he said.
Also on his list of priorities, Hunter pledged to protect public notices in newspapers. Referring to governmental entities who propose eliminating newspaper notices in favor of posting their notices solely on their own government websites, he said he opposes any plan that would erode the effectiveness of public notices.
Hunter predicted the biggest distraction to legislators during the upcoming session is the $27 billion budget surplus projected by Comptroller Glenn Hegar and deciding which areas of state government should benefit.
“The surplus will be a hard thing to deal with politically,” Johnson said. “It’s going to be tough to move anything.”