On February 27, the Texas Court of Criminal Appeals continued Texas’s recent judicial tradition of favoring government secrecy, ruling to remove the part of the Texas Open Meetings Act that makes it possible to punish government officials who intentionally circumvent the law to discuss public business behind closed doors.
The Texas Open Meetings Act generally requires government officials at the state and local level to conduct public business in front of the public. The law stipulates that if the majority of a governing body, or quorum (for example, three members of a five-member commissioners court), meets to conduct official business, then the meeting must be open to the public. However, governing bodies can still hold secret meetings by exploiting a loophole in the law—all they have to do is limit the number of government officials present in the meeting. This has come to be known as a “walking quorum. ”
The ruling on the Open Meetings Act last week underscored the need for new legislation. The state’s walking quorum provision had protected constituents from this exploitation by making it a criminal offense, punishable by up to a $500 fine and a maximum of six months in prison. From the Act:
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“A member or group of members of a governmental body commits an offense if the member or group of members knowingly conspires to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter.”
Wednesday’s ruling doesn’t legalize secret meetings—it’s still a violation of the Open Meetings Act to exploit the quorum loophole—but it instead effectively allows government officials to circumvent the Open Meetings Act with relative impunity. “We conclude that this provision is unconstitutionally vague on its face,” Judge Sharon Keller wrote in the Court of Criminal Appeals’ ruling, adding later that “the statute before us is hopelessly indeterminate by being too abstract.”
In her written opinion, Keller places nearly every word of the provision under a microscope, embarking on such a close reading of this section of the Open Meetings Act that she ultimately removes all meaning from it. “What does it mean to ‘circumvent’ a law?” Keller asks at one point, calling into question the provision’s specificity. “If it is unclear what it means to circumvent a law, one cannot ‘know’ that he is circumventing the law.” She continued, for five pages of her 23-page opinion, to raise hypothetical situations in an attempt to argue that the law is not explicit enough in defining what type of secret meetings are in violation of the Open Meetings Act. She questions, for example, whether it’s illegal for an official serving on a governmental board to privately lobby individual officials on the board in order to reach a majority vote on something.
The ruling came after the court heard the case of Montgomery County Judge Craig Doyal, who was indicted for secretly meeting with a fellow member of the county commissioners court and a political consultant regarding a county road bond back in 2015. Doyal had argued that the law was too vague and that it violated his First Amendment rights. The Court of Criminal Appeals’ nine-member panel (all of them Republicans) voted 7-2 in favor of Doyal.
Transparency advocates denounced the court’s decision. “If this stands and is not corrected by the Legislature, what the public sees in open meetings will be nothing more than a rehearsed kabuki theater. No longer will the public see the real debate and how the elected officials came to a meeting of the minds,” Bill Aleshire, an Austin attorney who focuses on government ethics, told the Austin American-Statesman.
“I’m disappointed in the ruling,” Kelley Shannon, executive director of the Freedom of Information Foundation of Texas, told the Texas Tribune. “Some people will use it as a chance to try to get around the spirit of the law. But the vast majority of people want to follow the law and want the public to understand government and participate in government. The vast majority of public officials know they can’t go around in secret and deliberate.”
In a rare response to a judicial ruling, Governor Greg Abbott sent a letter to appointees and state agencies addressing the Open Meetings Law. “Texas has long been, and will continue to be, a leader in governmental transparency,” Abbott wrote. “Regardless of yesterday’s ruling, my standard and expectation is for all agencies and boards to continue to follow the spirit of the law. You should not waver in your commitment to providing transparency in the work you perform for Texans at your respective governmental entities.”
Contrary to Abbott’s assurances, Texas is no longer a leader in governmental transparency. Wednesday’s ruling is only the latest in a series of court decisions that have collectively crumbled Texas’s once-heralded open-records protections, allowing state and local government agencies to operate with increased secrecy. Reporters and other members of the public here have found it increasingly difficult to gain access to public information being held by local or state government agencies, with governments frequently kicking open-records requests to the State Attorney General’s Office for review, a tactic that often results in significantly delaying or entirely withholding the release of public records.
In 2012, the Center for Public Integrity handed Texas a grade of D+ for accountability and transparency. Three years later—the next time the Center for Public Integrity published a national report analyzing state transparency—Texas received an overall grade of D-, including a grade of F for public access to information. In March 2017, the Dallas Morning News reported that governments withheld the release of records by instead sending the requests to the attorney general’s office for review a whopping 27,383 times in 2015, up from 6,149 in 2001.
In December 2016, Texas Monthly highlighted several instances where government agencies withheld public information, often using ethically questionable tactics or broad application of the law to keep the public in the dark about everything from maternal mortality statistics to how many racing dogs failed their state-administered drug tests (yes, seriously), even when in some cases that same information had been made public in the past.
Governments seeking to keep their operations secret have perhaps been emboldened by the state’s judiciary, as courts have come down with several key rulings in the past ten years that have eroded the state’s transparency laws. Arguably the most impactful of these rulings came in 2015, when the Texas Supreme Court ruled to block the release of information from a lease agreement between Boeing and the Port Authority of San Antonio, broadly ruling that information can be withheld if its release could put the government or businesses at a competitive disadvantage. The ruling paved the way for private companies to operate in secrecy when they have contracts with state and local governments, while giving governments a tantalizing precedent to justify withholding information. Governments have since seized the opportunity, frequently citing the case as their rationale to block a wide variety of records and information. The City of McAllen, for example, withheld how much it paid pop singer Enrique Iglesias for a Christmas concert, citing the Boeing exception—and the attorney general’s office agreed.
But Boeing was really just the chef’s kiss in what has been a decades-long erosion of Texas’s transparency protections, according to Christopher Collins of the Texas Observer, who in April of last year reported a long and in-depth story titled “Access Denied,” examining Texas’s long slide away from open government. “[Boeing] was preceded by a thousand body blows, courtesy of legislators, attorneys general and the all-Republican Texas Supreme Court,” Collins wrote. “The harm comes in the form of a growing list of loopholes—exceptions to what records the public can obtain from the government. The Texas Legislature alone has hacked 63 exceptions into the Texas Public Information Act over the last four decades. Carve-outs have been added for the dates of birth of government employees, for attorney-client privilege, for information related to executions, for a public power utility’s commercial information. Then there are exceptions for economic development negotiations, trade secrets and dam safety data. There’s even a loophole police departments can use to withhold records related to people who die in police custody. […] It doesn’t take long to find legions of journalists and citizens with stories of how frustrating and difficult the process has become.”
There have been some recent attempts from within the State Legislature to curb Texas’s descent toward complete government opacity, but they have largely fallen flat. In May 2017, for example, the Texas House killed a bill that included amendments aimed at reversing the effects of the Boeing ruling and cracking down on public officials who attempt to circumvent open records law by conducting government business on personal communications devices.
Several bills have been introduced in the 86th Legislature that are similarly designed to expand the state’s open records laws and to close some of the major loopholes that have been upheld by the courts. “It’s a whole new session,” Shannon, the executive director of the Freedom of Information Foundation of Texas, told the San Antonio Express-News last week, before the Court of Criminal Appeals ruled on the Open Meetings Act. “We have new chairmen of committees. We have a whole new speaker. Every session is a new day, and when we’re fighting for the public’s right to know, we always regroup and keep charging ahead.”