Record Levels of Open Records Activity in Texas—Are Legislative Changes on the Horizon?
September 19, 2018

Texas Attorney General Ken Paxton announced in a press release today that the Open Records Division of the Office of the Attorney General (OAG) handled a record number of Texas Public Information Act (TPIA) requests and issued an all-time high number of rulings during state fiscal year 2018.  Between September 1, 2017 and August 31, 2018, the Open Records Division (ORD) issued 30,939 rulings—a 6.6 percent increase over fiscal year 2017—and responded to over 50,000 pieces of mail and more than 10,000 calls to the ORD’s open government hotline.

While the press release does not indicate any underlying reasons for the high volume of requests and rulings, one contributing factor is undoubtedly governmental entities’ increased deference to third-party interests as a result of the Texas Supreme Court decision in Boeing Company v. Paxton, 466 S.W.3d 831 (Tex. 2015), in which the Court held that a private party may assert the TPIA Section 552.104(a) exception to protect its competitively sensitive information.

Bi-partisan legislation filed during the 85th Legislative Session to address concerns of open government advocates stemming from Boeing, as well as the Texas Supreme Court’s decision in Greater Houston Partnership v. Paxton, 468 S.W.3d 51 (Tex. 2015) (interpreting the meaning of a “governmental body” under the TPIA), failed to pass.  Senator Kirk Watson (D-Austin) was successful, however, in passing Senate Concurrent Resolution 56 which requested the creation of a joint interim committee to examine all state open government laws for opportunities to improve transparency and accountability.  Additionally, an interim charge of the House Committee on Government Transparency & Operation is to “[e]valuate whether, in light of recent Texas Supreme Court rulings, the provisions of the [TPIA] are adequate to support transparency and accountability in government, particularly as it relates to government contracting and procurement.”  The committee requested under SCR 56 has yet to be named, so it appears that any formal recommendations for improvements to the TPIA to guide the 86th Legislature will likely come from the House Committee on Government Transparency & Operation Interim Report.

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