Disturbing trend in Texas counties limiting public access to public records

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Mike Cronin is a Peabody Award-winning investigative reporter for Texas Watchdog, a nonprofit news website based in Houston. He also writes about cybersecurity for World Politics Review. Please feel free to contact him at mike@texaswatchdog.org.

Democracy is messy. Sometimes even counterintuitive.

One would expect open government advocates to support 100-percent transparency. But many Texas elected officials contend transparency actually may prevent them from doing the work of democracy.

So much so that the Texas Legislature passed a law in 2007 that set a threshold on how much was too much. It enables local government agencies to bill citizens for staff time that meets or exceeds 36 hours responding to public information requests during a 12-month period.

As more Texas public entities adopt that policy a debate rages whether it keeps government employees from becoming bogged down in broad, time-consuming requests. Or whether it blocks citizens from keeping their governments accountable.

The problem is public officials forget that answering public-records requests is part of their job, said Paul Watler, a partner at the Dallas law firm Jackson Walker.

“Keeping the public informed about the business of government isn’t just ancillary to public agencies,” said Watler, past president and current member of the board at the Freedom of Information Foundation of Texas.

“Open record requests shouldn’t be looked at as something that distracts from the real work of government employees,” Watler said. “Transparency is the essence of public institutions in a democracy.”

That may be so, but the fact is many broad requests do take a lot of time during the workday of Corsicana city employees, said Mayor Chuck McClanahan. Corsicana city council members passed its ordinance on June 5. Corsicana is about 55 miles south of Dallas and has a population of roughly 25,000.

“Some of the information requests were really starting to slow down the process here,” said McClanahan, who said he believes in transparency and pointed to awards the city has won for financial transparency from the state Comptroller. “We want to be more efficient. We’re trying to be responsible with taxpayers’ money.”

McClanahan was elected in November on an open government platform after serving on the city council for four years.

Texas state Sen. Jeff Wentworth, R-San Antonio, authored the 2007 law. He put forward the proposal after parents flooded the Austin-based Lake Travis Independent School District  and the Eanes Independent School District with thousands of open records requests, according to stories in the Austin American-Statesman and the Houston Chronicle.

Wentworth did not respond to multiple requests for comment.

Kemah City Attorney Dick Gregg Jr. can relate to the dilemmas faced by Lake Travis, Eanes and Corsicana officials.

Two or three “serial requestors” of open records consistently ask for “giant volumes of things that ties up city hall in a small city,” he said.

Those people’s actions are “costing us dough,” Gregg said. “It’s a tremendous burden. A large portion of the staff becomes responsible for finding documents instead of taking care of running the city. So taxpayers end up paying for that work rather than the cost of city governance.”

To combat the conundrum, the Kemah City Council passed its version of the 2007 Texas law on June 7. Kemah sits about 35 miles southeast of Houston and has a population of roughly 2,500.

Several other local government agencies in Texas, such as Comal County and Fort Bend County, have enacted policies to stem similar situations.

Pinning down how much time and money public officials ultimately spend per year on open-records requests proved difficult.

Anecdotes comprised most of the evidence Corsicana and Kemah city staff members provided Texas Watchdog as proof that citizens were wasting public resources.

What data they did have were sparse.

Corsicana employees spent an estimated 113 hours handling requests last year, the first year the city tracked that statistic, said Connie Standridge, the Corsicana city manager. Staff has spent an estimate of 60 hours for the year to date, she said.

Six people across three departments — finance, engineering and parks — typically handle public records requests, Standridge said. The city has 279 full-time employees, according to its website.

No statistics or estimates exist for time spent on or fees charged for public-records requests, said Kemah City Secretary Kathy Pierce. “We don’t track that.”

Comal County officials passed its law in 2008, but County Judge Sherman Krause said he hasn’t heard anyone talk about it.

“So I’m not sure how we would quantify” whether the law has made county governance more efficient.

Fort Bend County commissioners approved the 36-hour-limit open records law in 2010. Michelle Rangel, an assistant county attorney, said that the 36-hour threshold has not been triggered since the law passed two years ago.

The new laws worry some residents, who fear they’ll be targeted as the so-called “serial requestors.”

“Now, as soon as we file requests, they’re just going to use multiple employees to use up as much time as they can” to reach the 36-hour threshold, said Blu Shields, 59, a commercial and residential builder from Texas City who does a lot work in Kemah. “Now, they can pick and choose who they charge and who they don’t.”

The ordinance enables city officials to “impede us even before we ask for records,” said Donna Holcomb, 47, a stay-at-home mom of Bacliff who used to live in Kemah. Holcomb recently asked for eight years’ worth of email records for 16 city officials and was told she could have them, but it would cost $412,000.

She said the new law gives even more power to officials such as Gregg to “give us a ludicrous estimate for the amount of time and money our record requests will cost.”

“This law is going to close up government for the people of Kemah,” she said.

That chilling effect is an unintended consequence of the 2007 law, said Watler, the Dallas lawyer and FOI Foundation board member who specializes in First Amendment and media law.

“It deters legitimate requestors from seeking public records,” Watler said.

The Texas Legislature in passing the law exempted public officials and journalists, as well as tax-exempt legal services organizations. The exemption does not cover activists like Tom “Smitty” Smith, state director of Public Citizen, the national consumer advocacy organization founded by activist Ralph Nader.

Smith said the 2007 law “hinders people from finding out what’s really going in government,” because unraveling scandals often takes many public records requests over a long period of time.

“On a number of occasions we, or our allies, have been told that data we are seeking would be prohibitively expensive,” Smith said. “And we would have to trim back our data request or abandon it because we couldn’t afford to go forward.”

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