Featured, from left: Edinburg City Attorney Omar Ochoa; Johnny Rodríguez, a former Chairman of the Board of Directors, Edinburg Chamber of Commerce; Carlos Jasso; former Edinburg Mayor Joe Ochoa; Marsha Green (in white top); Precinct 4 Hidalgo County Commissioner Ellie Torres (with pearl necklace); and standing at the table, Velinda Reyes and Leticia Sáenz. This image was taken on Tuesday, March 10, 2020, during the grand opening ceremony for the District Office of Rep. Terry Canales, D-Edinburg, which is located at the Edinburg Depot, 602 W. University Drive.
Photograph By NAYELI ZENTEÑO
Freedom of Information Foundation of Texas finds journalists putting new Texas public records law to the test, reports City Attorney Omar Ochoa
A recent Texas law, which increases public disclosure requirements involving government contracts, continues to be tracked closely by the Freedom of Information Foundation of Texas, said Edinburg City Attorney Omar Ochoa.
Senate Bill 943, whose primary author was Sen. Kirk Watson, D-Austin, is a new Texas law that “aims to provide more transparency through public access to government contracts under the Texas Public Information Act,” according to an update published on Thursday, April 23, 2020, by Sofia Tyreman, a senior at the University of Texas at Austin who served as an intern with the FOI Foundation of Texas during the Spring 2020 semester.
“Specifically, it’s intended to show how taxpayer money is being spent. News reporters are already using the law and learning about its scope,” Tyreman reported. “Senate Bill 943, which passed the Legislature last year and took effect Wednesday, January 1, 2020, attempts to address some of the issues generated by the 2015 Supreme Court case Boeing Co. v. Paxton, which weakened Texas’ open records statute.”
The Freedom of Information Foundation of Texas, Inc. strives to ensure that the public’s business is conducted in public and protects the liberties of free speech and press guaranteed by the First Amendment, according to its website. (https://foift.org)
Ochoa noted “the strong support by Valley state legislators for laws that promote transparency in government, including their direct involvement in – and their unanimous votes for – the passage of Senate Bill 943.”
• Sen. Juan Hinojosa, D-McAllen, was an author of Senate Bill 943.
A primary author/author is the legislator who files a bill and guides it through the legislative process (also called the primary author). The Texas Senate allows multiple primary authors for each bill or resolution. The Texas House of Representatives allows only one primary author, the house member whose signature appears on the original measure and on the copies filed with the chief clerk. Both chambers also have coauthors, and the house of representatives has joint authors.
• Sen. Judith Zaffirini, D-Laredo/Starr County was a coauthor of Senate Bill 943.
A coauthor is a legislator authorized by the primary author of a bill or resolution to join in the authorship of the measure. Both the Texas Senate and the Texas House of Representatives allow an unlimited number of coauthors on a bill or resolution. A coauthor must be a member of the chamber in which the bill was filed.
• Rep. Terry Canales, D-Edinburg, was a joint sponsor of Senate Bill 943.
A joint sponsor in the Texas House of Representatives, a member authorized by the chair of the committee reporting a senate bill or resolution to join in the sponsorship of the measure. Up to four joint sponsors may be designated per measure.
Rep. R. D. “Bobby” Guerra, D-McAllen, was on the House Committee on State Affairs, which recommended the passage of Senate Bill 943 to the full House of Representatives, and the entire Valley state legislative delegation voted for Senate Bill 943.
“In a related open government issue, the Texas Legislature also approved, and the governor signed into law, House Bill 81, whose primary author was Rep. Canales, which requires local and state governments and their related agencies, including economic development corporations, to make public information about any tax funds use for a publicly-funded entertainment event.”
Hinojosa was the sponsor of Canales’ House Bill 81, which took effect on Friday, May 17, 2019.
For decades, Edinburg’s city leadership, just like the constituents they serve, have been strong supporters of the people’s right to know what their local city government is doing, said Ochoa.
“From publicizing in advance, then recording, broadcasting, and saving the videos of the public meetings of the Edinburg City Council and its jobs-creation arm, the Edinburg Economic Development Corporation, to making easily available the full agenda packets of those public sessions, anyone can know what their city government is planning to do, and has done, in the name of its citizens,” he emphasized.
Those government transparency actions were taken without being required to do so by any state law, the City of Edinburg, through its website, https://cityofedinburg.com, features the full agenda packets of the Edinburg City Council. The full agenda packets of the Edinburg Economic Development Corporation are available at https://edinburgedc.com/agendas/.
“Often, the city’s agenda meeting packets are hundreds of pages in length, but any person can see all of the information and materials that are being reviewed, discussed, and proposed to be acted upon by the mayor and city councilmembers,” Ochoa noted. “Just as important, through the Internet, there is no charge to anyone to access this public information.”
In her news story about Senate Bill 943, Tyreman further wrote:
The law is “a good tool to have on our side in terms of making public entities provide clear information to taxpayers and everyone else in the public,” Austin American-Statesman reporter Bob Sechler told Tyreman. “There are some loopholes (in Senate Bill 943), but at least it makes entities have to justify it.”
Under the new law, entities can still try to withhold information in some cases if the release would cause a competitive disadvantage or when a government has a series of reoccurring expenses, said Sechler. These are the loopholes the Texas Retirement System used in 2019 to conceal the total cost of renting an office space in an upscale building in downtown Austin.
“We got partial information from this TRS thing, and I think the bill helped on that,” Sechler said, adding that TRS claimed the information release had nothing to do with the new law. “I think they gave it out partly (because of Senate Bill 943) and partly because of the political pressure and publicity.”
The Teacher Retirement System is seeking an attorney general’s ruling to prevent disclosure of the rest of the lease information, but Sechler said he is optimistic he’ll get the total lease thanks to (the law created by Senate Bill 943).
Mitchell Ferman, a reporter for the Texas Tribune, and a former reporter with The Monitor in McAllen, shared similar thoughts about the new law’s potential.
“We’re now seeing where public money (is being spent), and that should be the case generally with public funds,” he said. “I’ve also heard anecdotally that people are just trying to reexamine previous contracts that would potentially now open up things to this new legislation.”
Ferman has not noticed a major change with obtaining information beyond gaining access to the Enrique Iglesias contract the city of McAllen agreed to – and withheld from public view for years – as part of its annual holiday parade in 2015.
“It’s great that we got to see (an) update for some big events that happened in years past that were previously kept secret,” he said. “But I think there’s a lot more to do as far as transparency in Texas. I don’t think the legislature is done.”
And Ferman isn’t the only reporter who believes the Texas Legislature needs a bit of work.
“When it comes contracts, I would say up until 2015, we had pretty good success getting them,” said News 4 San Antonio reporter Jaie Ávila. “The Boeing decision complicated matters. I still haven’t noticed a big change since 943 passed.”
This year, Ávila submitted public information requests to the city of San Antonio and Bexar county regarding taxpayer spending but has only received notice that the companies involved are waiting for an attorney general’s opinion to release the information.
“Based on what I was told about (Senate Bill) 943, there should at least be some basics that should have come back right away,” said Ávila.
Although he’s glad (Senate Bill 943) passed, Ávila plans to continue to testify in committee hearings at the State Capitol to voice his concerns. He said the issue lies with the records custodians and the city attorneys in the open records departments, who seem more concerned with contractors’ privacy rights than making information available to the public.
“They still have the ability to delay us getting records back by months just by sending it to the Attorney General’s Office,” Ávila said. “In a lot of cases, the higher-ups probably don’t know the specifics of what should’ve changed as of (Wednesday) January 1 (2020).”
The House Research Organization, which is the nonpartisan research arm of the Texas House of Representatives, provides the following details about the law created by Senate Bill 943.
This analysis is based on the final version of Senate Bill 943 approved by the Texas Legislature and signed into law by Gov. Greg Abbott, and which went into effect on Wednesday, January 1, 2020.
The law created bySenate Bill 943 expands public disclosure requirements related to government contracts under the Public Information Act and imposes record-keeping requirements on certain entities in possession of such information. The law created by Senate Bill 943 revises requirements for exceptions from disclosure based on competitive advantage and trade secrets, creates a new exception from disclosure for proprietary information, and expands the definition of a governmental body.
Contracting information. The law created bySenate Bill 943 requires public disclosure of the following types of contracting information maintained by a governmental body or sent between a governmental body and contractor, unless otherwise excepted under the Public Information Act:
• Information in vouchers or contracts on the receipt or expenditure of public funds by governmental bodies;
• Solicitation or bid documents relating to a contract with a governmental body;
• Communications between a governmental body and a vendor or contractor during the solicitation, evaluation, or negotiation of a contract;
• Documents showing the criteria by which a governmental body evaluated responses to a solicitation; and
• Communications and other information about the performance of a final contract with a governmental body or work performed on behalf of the governmental body.
Excluding information properly redacted (changed) under law, the following types of contracting information may not be excepted from disclosure as trade secrets, proprietary information, or commercial or financial information that would cause competitive harm:
• Contracts with a state agency required to be posted on the agency’s website;
• Contracts required to be included in the Legislative Budget Board’s major contract database;
• Contract or offer terms describing price, items or services subject to the contract, delivery and service deadlines, remedies for breach of contract, identity of parties or subcontractors, affiliate overall or total pricing for the contractor, execution and effective dates, and duration dates; and
• Information indicating whether a contractor performed its duties under a contract.
Contracting information held by certain entities.
The law created bySenate Bill 943 requires a nongovernmental entity that executes a contract with a governmental body that has a stated expenditure of at least $1 million in public funds or that results in the expenditure of at least $1 million in public funds in a fiscal year to be subject to certain record-keeping and disclosure requirements.
Under the law created bySenate Bill 943, certain contracts between a governmental body and another entity must require the contracting entity to preserve all contracting information as provided by the governmental body’s record retention requirements for the duration of the contract. The entity must provide the governmental body any related information on request, and upon the contract’s completion, the entity either must provide at no cost to the governmental body all contracting information in the entity’s possession or preserve such information under the governmental body’s record-keeping requirements.
A governmental body may not accept a bid for a contract or award a contract to an entity that the governmental body determines to have knowingly or intentionally failed to comply with the bill’s requirements in a previous bid or contract unless the governmental body determines that the entity has taken adequate steps to ensure future compliance.
Competitive advantage exception. The law created bySenate Bill 943 excepts (does not affect) information from disclosure if a governmental entity demonstrates that the information’s release would harm its interests by providing an advantage to a competitor or bidder in a particular ongoing competitive situation or in a particular competitive situation that is set to reoccur or if there is a specific and demonstrable intent to enter into the competitive situation again in the future.
Trade secrets exception. The law created bySenate Bill 943 excepts (does not affect) from disclosure certain information that is shown by specific factual evidence to be a trade secret. A trade secret is defined as all forms and types of information if the owner of the information has taken reasonable measures to
keep it secret and if the information derives independent economic value from not being generally known to or readily accessible by another person who could obtain economic value from its use or disclosure.
Proprietary information exception. The law created by Senate Bill 943 also excepts (does not affect) from disclosure certain information submitted to a governmental body by a vendor, contractor, or potential vendor or contractor in response to a request for a bid, proposal, or qualification if the vendor or contractor demonstrates that public disclosure would give an advantage to a competitor by revealing an individual approach to work, organizational structure, staffing, internal operations, processes, or pricing information. This exception may be asserted only by a contractor, vendor, or potential vendor or contractor to protect its interests.
Definition of governmental body. The law created bySenate Bill 943 expands the definition of a governmental body to include:
• A confinement facility operated under contract with the Texas Department of Criminal Justice;
• A civil commitment housing facility owned, leased, or operated by a vendor under contract with the state for the civil commitment of sexually violent predators; and
• An entity that receives public funds in the current or preceding fiscal year to manage daily operations or restoration of the Alamo or an entity that oversees such an entity.
Economic development entities. The law created bySenate Bill 943 specifies that certain economic development entities that contract with a state agency or political subdivision to promote economic growth are not considered governmental bodies. These entities may assert that information in their custody relating to economic development agreements with governmental bodies is excepted (does not apply) from disclosure.
The law created bySenate Bill 943 will improve the transparency and accountability of state and local governments by removing court-created loopholes from the Public Information Act and would strike a balance between promoting competition and providing taxpayers with information about how their money is being spent.
Recent Texas Supreme Court decisions have given contractors significant latitude to claim that information related to their government contracts should be kept secret, essentially overruling decades of attorney general interpretations promoting transparency. In some cases, even the contracts themselves and the amount of taxpayer money at issue were held to be exempt from public disclosure. As a result, the public’s ability to keep informed about government spending and contracting has been greatly reduced.
The law created bySenate Bill 943 will help restore transparency to government and protect taxpayer dollars from waste, fraud, and abuse while recognizing that some information is proprietary and needs to be protected from disclosure. The law created bySenate Bill 943 returns certain exceptions under the Public Information Act back to their longstanding interpretation while providing a new exception to disclosure for truly proprietary information.
The law created bySenate Bill 943 will improve accountability by requiring certain contractors to maintain information associated with their government contracts and to provide that information in response to public information requests. Maintaining these records simply would be part of the cost of doing business with state or local governments.
The law created bySenate Bill 943 will impose record-keeping requirements on entities that contracted with governmental bodies that could prove burdensome for smaller contractors.
Sofia Tyreman contributed to this article. For more on this and other Texas legislative news stories that affect the Rio Grande Valley metropolitan region, please log on to Titans of the Texas Legislature (TitansoftheTexasLegislature.com).