In Texas, government denials of record requests have soared

Sunday, March 12, 2017
In Texas, government denials of record requests have soared
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In Texas, government denials of record requests have soared

DALLAS -- When Texans ask state and local officials for public records detailing their operations, more and more the answer is no.

The reason why is in dispute, partly because of the lack of some public records.

Among the materials that are, in theory, publicly available: checks cut by a school board, tapes of 911 emergency calls, text messages between city council members.

A quirk of the Texas records law, adopted almost 45 years ago, says that when officials deny the public the right to see something, they usually have to run that decision by the state attorney general's office.

The number of those denials has been soaring. In the fiscal year that ended in August 2001, governments forwarded about 5,000 denied record requests to the attorney general's office for review. That number had jumped to more than 27,000 in 2016. Much of the increase has occurred in the last decade.

The overall number of denials is actually larger than the data indicate. More than 80 agencies and local governments have gotten permission from the attorney general to automatically deny certain kinds of requests, such as those that reveal a person's birth date.

Some experts say the prevailing attitude among governments in Texas has turned from a presumption that records should almost always be available to a belief that officials should release as little as possible.

"I think more governments have become more desirous of withholding information, many of them out there have a knee-jerk reaction," said Kelley Shannon, executive director of the Freedom of Information Foundation of Texas, which is largely supported by journalism organizations.

But lawyers and government spokespeople say they are being flooded with demands for documents, many of which don't exist or that legally they aren't allowed to make public.

"Requestors are submitting more requests," said Justin Gordon, the open records chief for the Texas attorney general's office.

Reporters say one reason may be that officials have started demanding that they file open-records requests for information the government used to release without question.

Getting to the truth is tough, in part because no statewide data exists on the total number of requests, so there is no way to know if the overall number is rising as fast as the attorney general reviews.

It's also unclear if certain kinds of requestors - such as reporters, private citizens, public-interest groups or businesses - account for an outsized portion of the denials.

The attorney general's office told The Dallas Morning News it could not release the names of those asking for records without weeks of review to ensure that every original requestor is not covered by privacy exemptions. For example, if the original requestor was a victim of a crime, his or her name could not be released.

The office says it does not keep tabs on how many requests involve certain kinds of information, and does not analyze the outcome of its reviews. It does post its rulings online, but in a format that is difficult to search and does not include the names of requestors.

In at least some cases, the office makes government officials release some of the information they want to withhold, according to a review by The News of requests for the month of July going back more than a decade. But how often that happens is unclear.

The two most populous cities in Texas, Dallas and Houston, actually referred fewer cases to the attorney general in 2016 than they did in 2005. But some smaller cities and large suburbs, especially in North Texas, submitted far more, The News found.

Plano, the fast-growing suburban city 20 miles northeast of Dallas, asked for 85 reviews in 2015, up from none in 2005, according to state records.

City attorney Paige Mims said officials are simply following state law and that many denied requests involve police records.

Curtis Howard, legal adviser for the Plano Police Department, said the percentage of referrals had been holding steady at about 11 percent a year, but the sheer number of requests has jumped in the last few years.

In 2015, Howard and his staff fielded 5,670 requests for records from the police agency, he said. In 2016, that number rose to 7,055 requests, a 24 percent jump.

For the most part, police arrest records can be released, as long as someone has been charged, he noted. But arrests that do not result in a conviction or acquittal are not required to be made public.

Police record requests are made by the media for newsgathering, but also by private citizens for use in divorces, vetting of potential employees and litigation.

In Killeen, 60 miles southwest of Waco near Fort Hood, the number of information requests and the number of initial denials are rising fast.

The city received 1,811 requests in 2010 and initially denied 173, or 9.5 percent, and forwarded those to the attorney general for review. Six years later, the number of requests had grown to 2,910. Of those 603, almost 21 percent, were sent to the attorney general.

Traci Briggs, Killeen's deputy city attorney, said many of the records people request are complaints that can't be released under privacy rules, describing them as "who turned in my dog, who reported the water dripping behind my house" records.

Others pertain to one of the broadest exceptions to the public-records act, which allows law enforcement to keep information sealed if they think making the material public would interfere with a criminal investigation. They do not have to prove that there is, in fact, an investigation underway.

Killeen recently got permission to automatically reject requests that fall under the open-investigation exemption, though it must continue to release basic information.

Last year, The News and other media organizations filed dozens of open records to the Dallas Police Department for information involving the July 7 ambush that left five police officers and suspect Micah Johnson dead.

Little has been released other than the 911 calls and initial warrant information. The police are citing the open-investigation exemption. Last October, the attorney general's office sided with the police.

A pair of Texas Supreme Court rulings in 2015 have further undermined the public's access to government records by placing information about many private business deals with governmental entities off-limits.

In Boeing vs. Paxton and the Greater Houston Partnership v. Paxton, the Texas attorney general concluded that information about Boeing held by the Port Authority of San Antonio should be publicly released. But the aviation manufacturer sued, and the Texas high court sided with Boeing's argument that making public the information at issue would give its competitors an advantage.

That ruling has had a chilling effect. The city of McAllen used this ruling to keep secret how much it paid singer Julio Iglesias to perform at a Christmas parade. Houston used it to keep secret the number of permits issued to ride-sharing service Uber.

State Sen. Kirk Wilson, D-Austin, told a recent legislative hearing that governments used the Boeing decision to deny about 600 requests for public information in Texas in 2016.

"It's impossible for me to imagine how a final contract with the government shouldn't be made public," Watson said.

In the case involving the Greater Houston Partnership, the nonprofit that handles economic development for the city convinced the court that because it does not rely solely on public money, it is not subject to the state public records law.

Legislators have introduced bills they say will help to restore access that the court rulings removed. Some would force government agencies to release all final contracts. Others would require a private entity to comply with open-records law if it provides services once provided by a public agency.

Gordon, the head of the attorney general's open-records division, said the two rulings have decreased transparency but have done little to impact the workload for the 59 staffers in his office.

Has the staff of the office increased to handle the surge in denials? Unclear. The agency instructed The News to file an open-records request to get an answer.