A linchpin to government accountability lies in the old admonition to “follow the money.” But that’s an impossible task when the law says the government — and companies doing business with government — can legally hide the trail.
The fallout from a June 2015 ruling by the Texas Supreme Court is becoming painfully clear as key details of government contracts, once routine items of public disclosure, are instead being withheld as guarded state secrets.
A random sampling: Costs of a Kaufman County school district’s food service contract. The number of Uber drivers ferrying passengers around Houston. And, amusingly, in an anxiety-inducing sort of way, the amount the city of McAllen paid singer Enrique Iglesias for an hour-long outdoor concert to lead off its annual holiday parade last December.
All result from from a 7-1 opinion by the state’s highest court, made over the objections of Attorney General Ken Paxton’s office. The decision expanded the acceptable reasons for withholding information about contracts between government and private businesses.
The decision in Boeing vs. Paxton stems from the giant aircraft manufacturer’s claim that disclosing financial information about its contract with the inland Port of San Antonio could give an edge to its business competitors.
That opinion, a reversal of two lower court rulings, is a dramatic reinterpretation of financial disclosure exemptions originally meant to protect the contract bidding process.
“It’s one of the worst rulings ever to come out of the Texas Supreme Court,” said open government attorney Joe Larsen, a board member for the Freedom of Information Foundation of Texas, in an interview with the Texas Tribune. “If there’s a place where corruption can fester, it’s here.”
To be clear: This is not a matter of protecting business trade secrets from unfair exposure. Provisions for protecting proprietary information existed in the Texas Public Information Act prior to the Boeing decision.
“Open government people realize there are some things business should protect,”former Deputy Texas Attorney General Bill Cobb told the Houston Chronicle in May. “But there is clear direction and standard on what you have to do to prove that.” The new decision, he said, “blew a hole” in state public disclosure laws.
This should be a matter of bipartisan concern, and there are encouraging signs of bipartisan action in the next state legislative session.
State Rep. Terry Canales, D-Edinburg, who took notice of the issue with the furor over McAllen’s refusal to disclose Iglesias’ performance fee, is reportedly contemplating whether to introduce corrective legislation specifically targeting entertainment contracts or taking a broader approach to the exemptions. And a spokesman for Rep. Giovanni Capriglione, R-Southlake, is also said to be working with open records advocates on a remedy to restore at least some of the transparency the ruling has cost.
More legislators on both sides of the aisle need to pay attention. Public accountability matters, and transparency is where accountability starts.
In their own words
“It’s one of the worst rulings ever to come out of the Texas Supreme Court. If there’s any place where corruption can fester, it’s here.” — Joe Larsen, open government advocate and board member, Freedom of Information Foundation of Texas
“The court opened the floodgates on this one. It blew a hole in the Texas Public Information Act.” — Bill Cobb, former Texas deputy attorney general under then-Attorney General Greg Abbott