Senate comm. considers tighter open records law

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AUSTIN, Texas (AP) — Texas' open records law should be tightened and clarified to reduce lawsuits, witnesses told a Senate committee Monday.

Freedom of information advocates said the Legislature could improve on what is widely seen as one of the best public information acts in the country, but should provide more information, not less.

Lt. Gov. David Dewhurst asked the Senate Open Government Committee to consider possible changes to the Public Information Act when the Legislature meets next year. One key question is how much information private contractors must turn over when they are providing services on behalf of the government.

Amanda Crawford, the assistant Texas attorney general for open records, said between one-third and one-half of the lawsuits her office handles on public records requests are filed by government contractors who are trying to avoid disclosing information to potential competitors.

Some companies try to minimize how much information they must make publicly available when they draft their contracts with state agencies.

"The question is whether you are supported in whole or in part by public funds," Crawford told the committee. "When you have contractors, how much access can you contract away? A lot of time what you see in the contracts is that there is not a lot of access by the governmental bodies."

Terri Burke, representing the Freedom of Information Foundation of Texas, cited an ongoing case where Reeves County officials hired a contractor to operate a jail and promised the county would make money by renting it to the Bureau of Prisons. When a government watchdog filed a request for records to see if the county was profiting, the county refused to release the information and appealed an attorney general's decision that said they must.

"This is very costly to the state and to this location," Burke said. "The people of Reeves County really don't know if it's cost efficient because we can't get this information.

Burke recommended that the Legislature produce definitions that make clear what information a government agency and its contractors must make public.

Sen. Rodney Ellis, a Houston Democrat, chaired the committee on Monday, but only Sen. Wendy Davis, D-Fort Worth, showed up. The three Republicans on the committee did not attend.

Witnesses also testified about what some consider burdensome and frivolous public information requests. Camila Kunau, an attorney for San Antonio, said some people make dozens of requests clearly designed to harass city officials or make huge requests, such as every document on every computer used by top city officials and their staff.

"I agree there are rules that help cities deal with burdensome requests, but I don't think they go far enough," Kunau said. She wants the law to allow her to charge people more when they make repeated and large requests.

Russell Coleman, a board member of the Freedom of Information Foundation of Texas, said he was concerned about any attempt to regulate so-called frivolous requests.

"We encourage this committee to move ahead cautiously and not diminish the Public Information Act," he said. "This could lead to unintended consequences harmful to the public's right to know."

Another source of recent litigation is whether a public official must share emails sent from a private account concerning government business, Crawford said. The attorney general's office has said officials must do so, but the city of Lubbock and a Bexar County commissioner are fighting that decision in court.

Social media could also represent a new challenge for public officials. Crawford explained that any information, no matter the technology or its ownership, is subject to the Public Information Act.

"We look to the content of the communication, not the technology with which it was transmitted," she said. "Does it relate to the transaction of public business? If so, it falls under the definition, and you cannot circumvent the Public Information Act by using new technologies."

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