Promote Open Records
Overview: Texas law and policy provide that each person is entitled at all times, unless otherwise expressly provided by law, to complete information about the affairs of government and the official acts of public officials and employees.
Problem: Politicization wrongly affects fair decision-making. Open Records requests must be treated in a non-partisan manner with transparency, fairness and legal scholarship, understanding the presumption for disclosure. For example, the Attorney General was mistaken in his opinion allowing secrecy on school use-of-force policies. His attempted justifications didn’t warrant over-riding the presumption of the people’s right to know. This is particularly true when minors are involved. Courts and parents have rights to know, as well as the public in general. Disclosure promotes deterrence, safety and efficacy, including better recordkeeping and evaluation of effectiveness of policies. Open records spur public debate regarding appropriateness of force against minors, just as open records serve the interests of justice and democracy generally.
Solution: Remove partisan, political influences from office leadership, stop poaching of key matters from the hands of career people, require written policies, procedures and training, and allow the career lawyers to apply the presumption and laws fairly.
Recently, the Texas AG conceded that it should have tracked how often it issues similar rulings on withholding data, and should be educating requesting entities as to the basics of the law. The AG should make sure governing entities are reminded of rulings they’ve already received. This is an obvious first step in preventing abuse and delay in disclosure. The AG’s spokesman conceded in December 2009 that the Attorney General doesn’t track how often the office issues similar rulings, telling the Corpus Christi Caller-Times: “there are certain rulings for information that’s not only similar but nearly identical to the extent that there is a pattern, we don’t really keep numbers or statistics.” The office of Attorney General must return to its duty of protecting the People of Texas.
The Attorney General’s loss in City of Dallas v. Abbott highlights the need for tracking requests, educating requestors and creating a climate of openness.
When citizens ask for copies of government records the Public Information Act (PIA) presumes the people’s right to know.
The Act says, Section. 552.001 regarding "Policy; Construction... The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created..."
The Attorney General lost a major appeal on this issue, but he can still protect the public from abuse. In City of Dallas v. Greg Abbott, Attorney General of Texas, 53 Tex. Sup. Ct. J. 349 (Feb. 19, 2010), rev’g 279 S.W.3d 806 (Tex. App.--Amarillo 2007), the Texas Supreme Court held that "good faith" requests for clarification on Public Information Act (PIA) requests reset the time clock for requesting original information.
The enormous proof problems of "good faith," and the thwarting of the law's disclosure presumption and intent are summarized in the dissent.
"The Court’s approach resets the clock for all information in the original request each time a clarification is sought, and it is not justified where that clarification only narrows the scope of the original request for the benefit of the governmental entity… Surely, where new information is sought in a clarification, the entity should receive ten business days to seek an attorney general opinion. But it is inconsistent with the language and purpose of the PIA to extend the statutory deadline ten business days beyond the time already allotted for public information requested initially. The Court’s holding ignores the date of receipt of the original request and, contrary to the statutory mandate, inserts an unnecessary delay into the process. This allows both inadvertent delay of disclosures about government affairs and easy manipulation of the deadline through clarification requests."
In light of his loss and the highlighting of the problem, the Attorney General should take pro-active measures to prevent the government from using this decision to delay, parry or completely frustrate the public from access to public records. To prevent the predicted abuses, complaints of over broad requests, and endless requests for "clarification", the AG should implement education programs and tracking of requests and responses by agencies for clarification. This will discourage unneeded or unknowledgeable requests for clarification and delaying tactics.
Does the abuse potential exist? Yes. The Corpus Christi Caller Times, on Dec 12 2009, reported on governmental units and agencies referring information requests to the Attorney General, instead of complying. For agencies, between 2003 and 2009, the paper found, referrals to the Attorney General increased 40.5 percent, while total number of requests those agencies received dropped by 84.5 percent. The paper reported complaint of waste of tax payers’ dollars when governing bodies send requests to withhold information already declared open.
The Attorney General can alleviate misuse of the review process by education and tracking issuance of similar rulings and developing patterns. Now is the time to ensure such programs are implemented statewide.
