In the political context, the term “sunshine” originated in U. S. Supreme Court Justice Louis Brandeis’ book Other People’s Money and How the Bankers Use It, where he argued that “sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”
While initially aimed at the business sector, Brandeis’ axiom is an especially fitting one for government action. After all, governments act and spend on behalf of the general public, which means that they have a special obligation to remain accountable. And accountability begins with transparency.
The critical nature of government transparency is a major reason why the Texas Public Policy Foundation, along with almost one-and-a-half dozen other organizations of every ideological persuasion, have partnered together to strengthen the state’s open government laws. The group is known as the Texas Sunshine Coalition* and it has united behind five key ideas: improve contracting transparency; define a business day and address administrative issues; require the return of searchable-sortable records; more disclosure of dates of birth; and allow requestors to recover attorney’s fees under the Public Information Act (PIA). Here’s more on each.
One goal is to close loopholes in the Texas Public Information Act which allow governments to withhold contracting information, even items such as the dollar value and descriptions of goods and services. This comes as the result of a troublesome Texas Supreme Court ruling known as Boeing, which lessened the efficacy of Senate Bill 943 in 2019 to increase public access to government contracts. Since public contracts have not always proven to be as good a use of funds as privately allocated, free-market driven projects, the lack of transparency in something as basic as contracting and giving of bids for projects should raise concern.
TPIA Business Days, Administrative Issues
A second objective is to ensure that public information requests are filled in a timely manner. One issue with this in recent years was seen during the pandemic, when many governmental entities declared they were closed for business when it came to Texas Public Information Act requests, even though they continued to operate with a full staff of employees working remotely and many public records were available electronically. Some governments stated they were operating on a “skeleton crew” and ignored TPIA requests for months on end. The Coalition seeks to correct this problem by clearly defining a “business day” under the Act and by requiring governments to respond to all requestors.
Once a citizen has obtained information from a public information request, that information can still be obtuse and difficult to use to any great benefit. Many governmental entities store public information in spreadsheets but convert these documents to PDF images before producing them to the public. This conversion is unnecessary, and only makes it more difficult to search and sort information. For years, the Texas Attorney General’s Office has recommended producing documents in their original format, but some governments continue to resist this recommendation. The Coalition seeks to codify existing Attorney General’s guidance into law.
Dates of Birth Access and Verification
Another issue with the actual information provided in returned public information requests, or publicly available records, which prevents its actual utility, is the lack of date of birth information.
In some public records, disclosing dates of birth helps ensure that individuals can be properly identified. This is particularly true in criminal justice documents, such as arrest records, when common names are involved. DOBs also help ensure that background check companies and other businesses can obtain accurate information when searching criminal histories. Disclosing DOBs on applications filed by candidates for public office also helps the public properly identify and better understand who is on the ballot.
Lastly, attorney’s fees for citizens who must engage in litigation to obtain public records should be covered, as per federal law. A series of appellate court decisions have made it extremely difficult for requestors to recover attorney’s fees under the TPIA. This precedent allows governmental bodies to hand over documents at the last minute—even after months of litigation—and avoid paying any fees. Governments can ignore requestors, or delay releasing public information, knowing requestors may be unable or unwilling to incur the costs necessary to enforce the TPIA. The Coalition seeks to end this “tax” on requestors by bringing the TPIA in line with federal law.
Through this package of reforms, the Sunshine Coalition hopes to provide citizens with the tools they need to accurately understand what their government is doing and why. And in so doing, the public will be better able to hold their government officials to account.
*Sunshine Coalition partners include: ACLU Texas, Americans for Prosperity—Texas, Common Cause, Every Texan, FIRE, Freedom of Information Foundation of Texas, Grassroots America: We the People, Institute for Justice, League of Women Voters of Texas, Public Citizen, Texas Appleseed, Texas Association of Broadcasters, Texas Association of Licensed Investigators, Texas Press Association, Texas Public Policy Foundation, Texans Uniting for Reform and Freedom