Finally, agencies may be sending more requests to the AG for review because legislative initiatives, court decisions, and new determinations by the Attorney General have expanded old exceptions and created new ones, giving governmental bodies new legal leverage in the fight to keep information out of the public eye.

The Senate Interim Committee on Public Information recently asked the Texas Legislative Council to identify statutes outside the Public Information Act that affect access to public information. The Council found more than 1,000 statutes outside the PIA that matched selected search terms such as "confidential," "privileged," "public information," or other words that affect public availability of information. Hundreds of these statutes use the word (or a form of the word) "confidential." While Consumers Union lacks the resources to review each of these statutes to determine the extent to which they limit access to previously public information, a few examples illustrate the problems now faced by the public.

Often, public information becomes confidential as part of legislation on topics unrelated to open records access. In 1993, the Legislature adopted language making insurance department market conduct reports confidential as part of the department's enormous sunset bill, H.B. 1461,⁷⁰ which eliminated the three-member State Board of Insurance and substituted a single commissioner as part of the reauthorization of the agency. Generally available in other states,⁷¹ market conduct reports tell consumers whether insurance companies are playing fair in the marketplace and whether the insurance department is fulfilling its duties. This small provision on page 152 of a 444 page bill had significant consequences for the public's right to know.

In the absence of any legislative process for reviewing the public information impact of new laws, legislators have occasionally made information public in one statute, while making similar information confidential in another. In 1997, the 75th Legislature passed a series of bills designed to ensure consumers high quality health care in HMO plans. One bill gave the Texas Department of Insurance (TDI) authority to ask HMOs for information about the types of compensation arrangements they maintain with doctors and hospitals.⁷² This information was made confidential. Another bill, containing technical amendments to the authorization of the Texas Health Care Information Council (THCIC), clarified that certain HMO information collected by the Council is public. ⁷³ (THCIC is expressly charged with collecting data on the state's health care system for public use.) However, during implementation of the THCIC legislation, HMOs argued that the provision making certain information confidential at TDI also applied to a portion of the information collected for the public by the Council. In a recent open records letter, released nearly a year after the issue first came up, the Attorney General found that the information held by the Council was public and should be released. ⁷⁴

Sometimes, statutes with a laudable purpose have a much broader, negative impact on access to public information. The Texas Daily Newspaper Association sued in 1997⁷⁵ to prevent the implementation of S.B. 1069, which made auto accident reports confidential and prohibited posting information related to accidents on the Internet.

Drafted to implement the Federal Driver's Privacy Protection Act of 1994-giving individuals the option to limit commercial use of personal motor vehicle records-legislators added language to S.B. 1069 to prevent various professionals from "ambulance chasing" after accident victims. In 1998, the state agreed to a temporary injunction, effective until February 15, 1999, restraining enforcement of the sections that prevent access to or posting of accident report information, dispatch logs, towing records or 911 records.

Finally, legislators sometimes trade away accountability when they design laws to encourage industries to prevent pollution, allocate their products fairly, or collaborate voluntarily with government. The 75th Legislature made this trade-off explicit in H.B. 1808, drafted to encourage private landowners to contact the Texas State Soil and Water Conservation Board for assistance with water quality management. The board oversees the state's effort to reduce "nonpoint source pollution" from agriculture (e.g., indirect water quality degradation caused by fields irrigated with confined animal wastes).⁷⁶ The legislation provides blanket protection from public disclosure for any information collected in response to a request from a landowner for technical assistance,⁷⁷ even if there has been significant environmental degradation or the land's use represents a health hazard. According to the bill analysis, secrecy is necessary to address property owners' "sense of vulnerability concerning private property rights."⁷⁸

Similarly, the 1995 Texas Environmental, Health, and Safety Audit Privilege Act of the 74th Legislature (H.B. 2473) was introduced to encourage regulated industries to identify and solve past problems through limited immunity from penalties for self-reported violations. The law also allows industries to keep secret important discharge and emissions data contained in audits, and made audits relating to occupational health and safety statutes, as well as audits related to federal, state and local environmental laws confidential.⁷⁹

In both of these cases, statutes designed to encourage industries or agricultural operations to cooperate in pollution abatement do so by promising that information will be kept secret. This contrasts sharply with the one of the nation's most successful pollution abatement programs, the Toxic Release Inventory, which requires certain industries to report emissions to the public ⁸⁰ and lets informed public pressure produce the needed changes. Without information about pollution, the public can neither assess the success of the voluntary programs nor effectively pressure industries to develop better pollution prevention practices.

Just as new laws allow an ever-increasing array of materials to be kept secret, recent changes in the interpretation of the Public Information Act have significantly expanded the general types of information that may be withheld from public view under existing exceptions to the Act.

The Attorney General in 1996 made an important decision that expanded the "trade secret" exception (§552.110) by adopting the broader federal standard for confidentiality of "commercial or financial information."

Also, a recent district court decision to prohibit public release of insurance "redlining" data broadly interpreted an exception in the PIA (§552.112) dealing with "examination, operating or condition" reports of financial institutions.⁸¹ If the ruling stands-it is now on appeal-it may significantly impede public access, not only to insurance redlining data but also to many other records held by the Texas Department of Insurance.

Finally, the Texas Supreme Court in 1996 significantly limited public access to the closed files of police and district attorneys under the law enforcement exception (§552.108).⁸² Although the Legislature subsequently amended the section,⁸³ many closed case files still may be withheld from public view.

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