Tuesday, December 15, 2009

AG Greg Abbott presiding over dark hour for Texas open records

Over the years I've sometimes praised Attorney General Greg Abbot for being reasonably good on his open records decisions, but data published by the Corpus Christi Caller Times suggests Abbot's watch has not been an especially happy period for open records overall ("Increase in requests to withhold public data worries advocates," Dec. 12). The fault seems to lie more at the level of state and local agencies, but clearly the AG hasn't been adequately policing the trend or focusing enough resources to solve the problem.

Bottom line: More state agencies and local governments are appealing what should be routine requests to the AG's office as a delay tactic, seemingly without consequence or penalty. "Requests that the Texas attorney general withhold information requested by the public increased 88 percent in five years, according to a Caller-Times analysis of state records."

However, "Between 2003 and 2008, when the requests to the attorney general spiked, the staffing levels of the office issuing the opinions stayed relatively flat, said Jerry Strickland, a spokesman for Attorney General Greg Abbott." There's no one to blame for that understaffing but the chief administrator.

What's more, these delays are apparently causing the public to use open records requests less. At state agencies, "Between 2003 and 2009, referrals to the attorney general increased 40.5 percent, according to the state reports. During the same period, the total number of requests those agencies received dropped by 84.5 percent, the reports say."

Those are staggering figures, indicating that Greg Abbott may be presiding over the darkest hour for government transparency since the Texas Open Records and Open Meetings Acts were created in the wake of the 1971 Sharpstown bank scandal.

Twenty years ago you could honestly say Texas had among the strongest open records acts in the nation (us and Florida would have argued for top billing) and citizens here had aggressively comprehensive access to the vast majority of government records. Since then, though, the trend has all been in the direction of opacity: A series of bad court decisions, dozens of new, mostly unjustified legislative exemptions and weak enforcement by Attorneys General from both parties left us, at best, somewhere near the middle of the pack among states as opposed to a national leader on transparency.

Where are the state leaders willing to champion openness? Over the past several sessions, for the most part "good" pols on open records were the ones fighting closure bills. There simply was/is no concerted effort to roll back recent record closures; the trend appears to be a one-way ratchet.

Democrat Barbara Radnofsky who is running against Greg Abbott has an open records page on her campaign website, but it is framed not as a proactive agenda but as a political attack, aiming to "depoliticize" open records, which is an obvious reference to favorable records closing decisions made by Abbott on behalf of Governor Rick Perry.

I disagreed with those decisions by Abbott, too, but Radnofsky's stance for "depoliticization" is not really enough to fill me with optimism. It doesn't tell me, for example, any specific records closing decisions by Greg Abbott she disagrees with. It doesn't say she'd beef up staffing to process appeals faster, or what she'll do to punish agencies that abuse the appellate process. I also wish she, or some state leader, would articulate what records closed by the AG, the Legislature and the courts in the last two decades should be re-exposed to sunlight, even if it would require changing current law or court precedent. (Every AG comes into each session with their own legislative agenda.)

For me, open records is the deciding issue regarding who I support for Attorney General, over and above party labels or any other factor. I voted for Greg Abbott over Democrat Kirk Watson when they squared off a few years back because Watson's Austin mayoral stint made me distrust him on open records stewardship (state senator is a much better fit for him, IMO) and Abbott's public positions represented a huge improvement over John Cornyn or Dan Morales before him. Similarly, in this election, I'm open to Radnofsky (presumably) making the case that she'd be a more vocal and active advocate for government transparency as AG. But I'm not convinced yet.


ckikerintulia said...

I worked with BAR in her ill-fated senate race in '06, and was extremely impressed with her. I'm forwarding this blog to her, and asking her to convince you.

Gritsforbreakfast said...

As I said, Charles, I'm open. Her web page makes me think nobody's given much thought to open records at their shop. Since you're going to tell her about it, I'll elaborate just a little why I'm not there yet.

On her campaign site, here's how she defines the "problem." "Open Records request must be treated in a non-partisan manner with transparency, fairness and legal scholarship."

I simply disagree. That's not the problem at all. The problem is that Attorneys General have spent to much time trying to be "fair" to government agencies when the statute actually commands them to be biased, in favor of the requestor. From the Preamble: "This chapter shall be liberally construed in favor of granting a request for information."

Well, guess what? It's the AG doing most of the "construing." It's not the AG's job to be "fair" as though they're arbitrating a dispute between agency and requestor. It's their job to be an aggressive advocate in FAVOR of openness. That's what I want to see in an AG, somebody who will give life to the seldom-quoted preamble leading up to that "Construction" declaration at the beginning of the Open Records Act:

"Sec. 552.001. POLICY; CONSTRUCTION. (a) Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. The provisions of this chapter shall be liberally construed to implement this policy."

I don't want an AG trying to be "fair" to government agencies or focused on "legal scholarship" when the courts have eviscerated the law. I want an AG who will be a champion for open records and aggressively beat down the doors to ensure nothing is hidden from the public.

The idea that the AG is the state's top law enforcement officer is a myth. Other than represent state agencies in lawsuits, open records is far and away the most important thing the AG does, and it's usually treated in campaigns like a red-headed stepchild.

ckikerintulia said...

Scott, I've asked BAR to read your blog, and forwarded it. I think this could be a "populist" campaign issue. Who can be opposed to open government? Hopefully she will respond.

Anonymous said...

What I find Shocking is that you really think that Abbott, or anyone else in the political spectrum, would be completely open when it comes to their dirty laundry. I find our local, state, and federal governments regressing to the pre-60's, akin to the witch hunts for communists, or in this case, americans the government find unworthy. Which if not elected, then you are unworthy.

Our government has forgotten who they actually report to, the People, but as the People as asleep at the wheel, I think more of the same is going to come our way.

Hook Em Horns said...

What, exactly, is Texas hiding? The execution of the innocent? Shadiness by Rick Perry? How about all of the above?

Greg Abbott is just another limb on the shade tree. As long as Rick Perry is Governor there is and will be plenty to hide.

el_longhorn said...

Late to the party, but....

I don't think that Abbott has been aggressive in his defense of open records, but the statistics cited may also be very misleading. Governmental bodies are REQUIRED to seek an AG opinion before withholding ANY information. For example, someone requests a police report but it has drivers' license numbers on it. Even though the city is ready and willing to release the police report, they still have to write the AG and ask for a ruling in order to withhold the license numbers.

That is about to change. I understand that cities and counties are about to be given authority to withhold things like drivers' license numbers and similar information without having to request a ruling. This should drastically reduce the number of requests to withhold information and reduce the workload on the Open Records Division at the AG.

Not to say that there are not problems with the AG's enforcement of open records laws, just that those statistics may not mean much.

Curious52 said...

So much for Open Records!
Per my son's suspicious death, I requested, via an FOIA, the official time of the 911 call made by the complainant. I was told that this document had been destroyed! WHY?
www.americaiswatching.org (Joshua Robinson) Attached documents within the story, click on the underlined phrases.
Sign the attached petition.

ANYONE~Can you suggest how I can get justice for this police coverup and blatant violation of Josh's Civil Rights?

Hook Em Horns said...

ANYONE~Can you suggest how I can get justice for this police coverup and blatant violation of Josh's Civil Rights?

12/19/2009 05:34:00 AM
The federal courts and Department of Justice are the place for federal civil rights violations. Finding a lawyer will be your challenge. Like everything else in Texas, we have a FEW that are above board and worth hiring and then we have the rest.

Sorry about your loss. Good luck in your endeavors.

Hook Em Horns said...

Greg Abbott + Rick Perry = FOREVER