Press Release November 19, 1998	Contact: Reggie James or Rafael Ayuso (512) 477-4431 Consumers Union Southwest Office

Study finds access to public records
getting more difficult for Texans

Public officials circumvent the spirit and letter of open records law

AUSTIN, TX -- Public officials in Texas often circumvent the spirit and the letter of the state's open records law, creating a logjam of opinion requests at the state Attorney General's Office and barring access to open government, according to a report released today by the Southwest Regional Office of Consumers Union, publisher of Consumer Reports.

The report - "Break the Dam - Access to Public Information in Texas" -- points to three key problem areas: (1) some officials manipulate the process through requests for Attorney General reconsiderations and frivolous referrals; (2) legislative initiatives, court decisions and new Attorney General opinions have expanded old exceptions and created too many new ones; and (3) the law is not adequately enforced.

"Open the floodgates," said Reggie James, director of CU's office in Texas. "The flow of information is backing up so far that it threatens the safety of our democratic process. If people are to remain in control over their government, we must have access to government information."

Governmental requests for Attorney General opinions on open records issues grew seven-fold over the past decade -- from 396 in 1988 to 2,847 in 1997. The AG's office is expected to release more than 3,000 opinions this year.

Some of the general growth in requests for opinions during the past decade may be attributed to the office tackling an opinions backlog that built up in the early 1990s. However, requests by some state agencies for AG opinions on open records issues increased even faster than the rate at which opinions grew overall. For example, open records requests referred by 15 selected state agencies and the University of Texas System to the Attorney General increased more than nine-fold over the same period, from 61 in 1988 to 582 in 1997.

Key problem areas uncovered by the report include:

• Unnecessary requests - Government agencies in recent years have become increasingly likely to second-guess the Attorney General's open records opinions by filing requests for reconsideration. A reconsideration request extends the review process by two to four months. Of 100 reconsideration letters reviewed by Consumers Union, the AG upheld its original ruling in 61 of the cases. State agencies, which generally have large legal staffs, account for a disproportionate number of reconsideration requests. The report also found that agencies sometimes forward clearly public information to the AG, such as autopsy reports, "front page" information from police reports and certain hospital information deemed public by federal law.
  
• Too many exceptions -- The Public Information Act creates a strong presumption in favor of openness. But it also makes exceptions for disclosure of certain types of information - such as certain personnel information and bids during the government bidding process -- either to protect privacy or ensure that government officials can do their jobs. The problem is that the number of exceptions has become unmanageable. The Texas Legislative Council this year identified more than 1,000 laws outside the Public Information Act that affect access to public information.
  
• Inadequate enforcement - The AG's open records hot line supposedly serves as a direct route to quick answers for both government officials and the public. But even the hot line staff can't force recalcitrant officials to provide public information. The report followed up on several complaints filed with the AG's hot line and found many of the individuals were still waiting for their public documents long after the AG closed its complaint file. And just as troubling, AG officials say their office lacks the necessary resources to investigate such cases and pursue legal action as required by law.
  

Noting that the open records law itself declares that "the people insist on remaining informed so that they may retain control over the instruments they have created," CU's James added: "This law, while in need of repair, is priceless. The price of freedom is eternal vigilance and this law was meant to provide us the necessary tools to remain vigilant."

Unless changes to the Public Information Act are made, Texans will continue to find increasing gaps in the accountability of their government. "The vitality of the law depends largely upon public officials' willingness to strictly enforce and liberally construe its provisions in favor of public disclosure," the report says.

In order to correct the abuses that undermine citizens' access to public information, the report asks lawmakers to:

• Limit broad exceptions found in the law - such as the widely cited trade secret exception and the financial institutions exception. The financial institutions exception has been used recently by the Texas Department of Insurance to keep secret underwriting data that may prove discrimination ("redlining") as well as hide the valuation of the nonprofit Blue Cross Blue Shield of Texas.
  
• Create a legislative process for reviewing the public information impact of new laws and mandate a study of existing exceptions to public disclosure in laws other than the PIA.
  
• Improve the Attorney General review process by eliminating the practice of "reconsidering" decisions at the request of governmental bodies and by shortening the period in which the AG must issue its opinions.
  
• Incorporate performance measures into the Sunset process.
  
• Create a civil penalty as a supplement to the current criminal penalty.
  

Said James: "Our state officials have an opportunity to rekindle the spirit of a law that helps make government accountable in Texas. We call on them to break the dam and let information flow freely to the people of Texas as the Public Information Act promised a quarter century ago."