Analysis: Secrecy reigns as information requests almost always denied by Attorney General

AUSTIN, Texas -- When Carmen Lambeck's common-law husband died alone in his Harris County Sheriff's patrol unit late on a particularly warm February night in 2017, she had questions.

Deputy Terry Faughtenberry's vehicle was still running when he was found about two hours after beginning his shift. His cause of death was ruled to be a heart attack.

Faughtenberry hadn't been feeling well the week it happened, Lambeck said, but he didn't have a documented history of heart issues.

She needed to know what happened, she said.

So she requested records under the Texas Public Information Act. In that request, Lambeck asked to see the reports for the night Faughtenberry died. She filed the request to the county and waited.

And waited.

"They never wound up turning over anything," she said.

In a reporting collaboration with the Houston Chronicle, ABC13 analyzed nearly 250,000 open records decisions issued by the Texas Attorney General from 2009-2018 and found situations like Lambeck's, where people request access to information that belongs to the public, are more and more common.

READ MORE FROM THE HOUSTON CHRONICLE: "No right to know?"

When requests for information were sent to the Attorney General in 2018, the information was only fully released 5.4 percent of the time, according to the analysis. Deadlines that are part of the law are often ignored with little or no penalty. Outright denials are trending up, coinciding with the election of Ken Paxton in 2015, compared to his predecessor Greg Abbott.

"At first, in the midst of it, I was angry," Lambeck said. "I mean, who do they think they are? The Public Information Act applies to everyone."

Documents show Harris County told the Texas Attorney General that the information Lambeck wanted would interfere with the detection or investigation of a crime. Of the nearly 10 types of information requested, Lambeck received nothing.

In 2018, agencies across Texas asked the Attorney General to keep information secret using that exception 16,739 times, the most-used exception to open records law by far. It worked 98 percent of the time.

There are roughly 60 lawyers at the attorney general's office who deal only with public information requests and their workload has never been higher.

In 2018, the office issued 31,850 open records letters to agencies across the state, an 84 percent increase in the last 10 years.

Do the math, and that's more than 500 decisions per attorney for the year. There's not a lot of time to dive into the issue at hand. The attorney assigned reads a letter from the city, county or other agency wanting to keep something secret. They look at a sample of the information (chosen specifically by the entity desiring secrecy) and then render a decision on whether or not the agency can, in fact, withhold the information.

They can't ask more questions. By law, they aren't allowed to fact check. They have to take the word of the government body as fact.

Many issues, like Carmen Lambeck's request, come into the AG's office as procedural formalities. Government agencies are almost always required to ask permission before they are able to keep information from the public.

While complete release of records is rare, complete denials are routine. Of the requests in 2018, 42.8 percent were total denials. Just over 50 percent were a mix of partial release and partial denials.

Many times those "partial releases" allowed the release of only "basic information" in criminal cases, which is a single page of information.

Part of the increase in referrals to the AG's office is due to the public's scrutiny and growing knowledge of the law said former Houston City Attorney Dave Feldman. He believes there's been an attitude shift, from a presumption of openness to a sprint toward secrecy.

"It's almost like it's become a knee jerk reaction," Feldman said. "I've witnessed it."

Feldman now works with his son in private practice where he often requests information on behalf of his clients. They also represent some government bodies and handle requests from that side too.

"Governmental entities are increasingly taking a cavalier attitude towards their responsibilities under the act," Feldman said. "I can't even remember the last time I submitted a request where the information was actually provided within 10 business days."

In his experience, Feldman has first-hand knowledge of more than a few Attorneys General.

Sitting next to his son, who is also a practicing attorney, the pair rattled off names of AGs from years' past.

"There was a decision that this attorney general has allowed to extend way too far," Cris Feldman said. "The legal culture has developed where, in the course of a lawsuit, you do everything you can to hide information from the other side. That same mentality has carried over to the lawyers who are representing governmental entities."

Denial rates of records requests ranged from 37 to 40 percent under the previous attorney general Greg Abbott. Under Ken Paxton, denial rates trend higher, between 42 and 46 percent.

Similarly, release rates for Abbott range between five and 12 percent. They range between 4-5 percent for Paxton.

"This attorney general doesn't prioritize, period, in that his view on government transparency is clear as mud," Cris Feldman said.

The Texas Public Information Act was written in the early 1970s after nearly two dozen state officials were accused of being paid off by Houston businessman Frank Sharp for favorable legislation.

The scandal was so controversial that lawmakers passed the new regulations making it illegal to hold secret meetings, required government officials to disclose sources of income, and required government bodies to open their filing cabinets and books for inspection by the public.

Since then, nearly 60 exceptions have been carved into the law, bit by little bit chipping away at the access citizens once had.

"We're going full circle, in my opinion," Dave Feldman said. "I'm giving you that judgment based on four decades worth of dealing with that act long before it was called the public information act."

"It really is tragic," said Laura Prather, partner with law firm Haynes and Boone. "Texas used to have one of the best sunshine laws in the entire nation. Other states look to Texas as an example, and now it is considered one of the worst. It is the only state in the nation where a private company can prevent a taxpayer from getting the final contract with the government."

Prather is a part of the newly-formed Sunshine Coalition described as a "non-partisan, grassroots coalition protecting open government and your right to know." Members include groups from both sides of the political aisle: ACLU, Center for Public Policies, the League of Women Voters and the Texas Public Policy Foundation to name a few.

They mobilized after a series of decisions by the Texas Supreme Court that led to dramatic changes and radical increases in secrecy.

"When you do business with the government, the taxpayers should have the right to know how their money is being spent."

Laura Prather seems sure about that point.

"Quite frankly, the government should want taxpayers to know that because it increases the level of trust that taxpayers have in their government."

But ask the City of Fort Worth how much it's paying for dog food at the pound, or how much the North Texas Toll Authority is paying to landscape medians, or how much the electricity board for San Antonio is paying for office supplies: they're all likely to say that information is super secret.

And they have a 2015 Texas Supreme Court decision to back that up. In that case, Boeing sued the state to prevent releasing how much it was paying in rent for a facility owned by the Port Authority of San Antonio. Releasing that information would give an advantage to its competitors the court ruled, thus carving a wide exception in Texas open records law for secrecy.

For years, the Texas Attorney General's Office required companies like Boeing to prove why releasing what is otherwise clearly public information would hurt their business. The standard was the information would have to provide competitors a "decisive advantage."

But that's not how the law is written and the state supreme court struck down the "decisive advantage" standard in favor of the plain language interpretation of simply any "advantage."

Perhaps the most well-known use of what's now known as the "Boeing" exception was when journalists in McAllen wanted to know how much singer Enrique Iglesias was paid to perform at a taxpayer-funded concert. Officials argued releasing that information would give other singers an advantage in negotiations. The AG's office agreed, somewhat begrudgingly, and included a paragraph in its decision outlining the fact the court made them use a new standard.

Other agencies have taken notice since that ruling. The University of Texas wanted to keep secret contracts with performers for its 2017 "iHeart Country Music Festival," for example. San Antonio asked to keep its contract with the World Wrestling Entertainment company secret when it came to town.

Texas A&M University successfully used the Boeing exception to keep contract and salary information for football coaches secret, despite all of that money belonging to taxpayers.

How much taxpayer money was used to lure a TopGolf franchise to Pharr: secret.

While there are some humorous examples of the AG ordering release of information despite the attempted use of the Boeing exception (see: a request for a Texas Tech football game plan or a request for a school's list of mascots), agencies have used it to overwhelming success. In 2018, it was attempted more than 1,500 times. It was successful nearly 94 percent of the time, according to an ABC13 analysis.

To Prather's point, Texas' law is well written and includes strict deadlines for agencies to comply with the law.

After a request comes in, the government body has 10 days to ask for attorney general permission to withhold the information or, if they don't ask for permission, they have to release it in a timely fashion. If they miss the 10-day deadline, the information is presumed open and must be released.

For years, the attorney general's office held a strict view of those deadlines and ordered agencies that missed the deadline to release information because they were in violation of the law.

But a separate state supreme court decision in 2017 poked another hole in the long-held standard. City of Dallas attorneys missed the 10-day deadline and were ordered to release the requested information. The city sued to withhold emails they claimed had attorney/client privileged information despite missing the deadline. The city won.

Now, violations of the 10-day deadline rule are at an all-time high with nearly 2,000 in 2018. Many violating agencies cited the 2015 Dallas case as a reason to let them both break the law and keep records secret. In 2009, 836 requests violated the law. Of those, three out of four were allowed to be completely or partially withheld, despite breaking the law.

Near the top of the list: the City of Houston, which was in violation for 11.9 percent of its requests to the attorney general, according to our analysis. City attorneys will often acknowledge they violated the law but ask for proverbial forgiveness in the form of permission to keep the information secret.

Feldman, who served as Houston's City Attorney from 2010 to 2015, says part of the problem comes from leaders who set the tone on how the organization should react to requests.

"I just didn't consider that kind of thing tolerable," Feldman said. "There's no reason it should be that way. I can see it happening on occasion, but not that kind of thing."

"It's a question of the tone that is set," Feldman said. "A lot has to do with the mayor. A lot has to do with, in the case of the city of Houston, the city attorney."

We asked current City Attorney Ron Lewis for an interview but he turned us down.

A spokesman for Mayor Sylvester Turner sent a statement saying the city is doing its best.

"Governmental bodies have more responsive information now than ever before in the form of electronic information. A simple keyword search may return more than 10,000 emails, which must be culled and reviewed for confidential information. This is a very time intensive process, but the City, like most governmental bodies, does its best to balance its dual obligations under the Act to provide public information and protect confidential information."

Statistics provided by the city show it received 16,631 requests for records in 2018 alone, sending two percent of those to the Attorney General. When you add in requests to city courts (that aren't subject to the TPIA) it goes up to 21,398. The data, however, isn't a complete picture, as some departments haven't logged requests for years and just started, while others still don't log, according to the data provided.

HPD, which has its own legal department, received 12,176 requests and referred 8 percent to the AG.

Many requests from either the city or police department don't require a referral to the AG's office because of a "previous determination" ruling. Those give the city the ability to automatically deny some requests without asking for an opinion. Those denials wouldn't be counted in requests that would go in front of the AG. And many departments require you to file a request for any information at all, which inflates the number of requests received.

Feldman points to a culture where requests could be going up simply because the city requires a request instead of just giving over information when informally asked.

But organizations also use the law to delay or outright block the release of information, leading requesters to file complaints with the state, Feldman said.

Texas' Health and Human Services Commission was at the top of the list for complaints last year with 18 on file.

One such complaint came from Texas Tribune reporter Marissa Evans. In her case, HHSC wanted more than $5,000 for the top ten employers of food stamp recipients.

HHSC first argued none of the information may be releasable. Then, it argued it would take 114 hours to write a computer program to get the information Evans requested.

Either way, HHSC still wanted her to pay for the request even if it resulted in no information being released.

Evans complained to the state to varying degrees of success. The AG knocked down the original $5,160 charge by $2,760 on a technicality, but told Evans she owed the rest.

Though Evans briefly acknowledged her frustration to ABC13, Texas Tribune's managing editor wouldn't allow Evans to comment further.

Evans was one of 190 complaints relating to cost filed last year. Non-cost complaints stood at 774.

Some deal with just who has to comply with the law. Texas open records law used to apply to anyone receiving public funds for any purpose, the activities performed and any other spending that resulted.

Now (in yet another Texas Supreme Court case) that scope is dramatically limited to only those who get specific allocations of public money.

That fight was local.

The Greater Houston Partnership, which gets thousands of dollars of taxpayer money, received a request for information on how the GHP was spending that money.

The GHP had a contract with the city to provide consulting, marketing and other services in exchange for cash.

The AG's office ruled that to the extent that public money was being used, GHP was subject to the TPIA and needed to disclose its records.

GHP sued and won a ruling that changed the standard to whether or not the entity was "wholly or partially sustained" by public money.

Now that standard -- wholly or partially sustained -- allows hundreds of otherwise public agencies to keep secret how it spends public tax dollars.

Other complaints describe tactics used either intentionally or unintentionally to deny requests or delay them. One outlines how a city asked for a clarification of the request six times. With each clarification comes a new 10-day deadline, allowing the city to delay for up to an additional 10 weeks of time to respond.

Most end in the AG's office gently reminding agencies of their duties under the act and the phrase 'We are closing our file on the matter.'

In the major cases that have come before the Texas Supreme Court, one theme has emerged: the law needs to be revised for a 21st-century approach.

The holes poked in the law through court interpretations remain, along with so many broad exceptions, agencies have their pick of ways to keep information that used to be public from ever being released.

How do you repair that damage?

"The fix for the court decisions is a legislative fix," Prather said. "The legislature needs to recognize that nothing good happens in the dark. They should want their voters to know what their government is doing. And if they make that a priority then they'll make it a priority to repair what is really a damaged public information act."

There are a number of bills filed this session aimed to repairing the law. Some of the more significant progress made in the last legislative session were killed in committee, despite broad bipartisan support.

Prather has more hope this time around after the chair of that committee lost reelection in 2018. But aside from that, Prather's optimism rests in her partners of Sunshine Coalition.

"We have this broad based coalition that has helped spread the word to people on both sides of the aisle about the importance of the issue," Prather said.

ABC13 wanted to know how many people were actually getting the information they asked for through open records requests. That's a tall order.

Many, if not most, organizations don't do much reporting on their own of how many requests they receive or how many are sent to the Attorney General's office.

Despite a high level of transparency with our requests, not even the Attorney General keeps statistics on the win/loss record of records requests. (A nod to the AG's office, who not only fulfilled a great deal of requests from us, but lengthy and complex ones. And they didn't charge us a dime.)

What we do have is every open records letter issued back to at least 1989 thanks to the AG's office promptly posting letters almost as soon as they are issued.

So we downloaded all of them from the last 10 years. All 237,903 of them.

Five hours and 15 GB later, we fed them into a specialized piece of software that takes PDF files, turns it into text, indexes it and makes the index searchable.

That process took nearly three weeks to complete. The software couldn't handle more than about 10,000 files at a time. Each 10,000 file chunk takes about 10 hours to complete.

Fortunately for us, the Attorney General's office uses standard language in every letter that allowed us to search for key phrases that indexed opinions that were denials, orders to release or both. We could also index agency name, information requested, if the request was flagged for a violation of the law, generally who the requestor was and the exceptions requested.

We then compiled all that information into a database that we ran statistics on.

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