The Texas attorney general’s handbook on the Public Information Act (Act) explains that “[g]overnment transparency and openness are fundamental to American democracy” and, in Texas, the Act “is one of the primary mechanisms by which members of the public hold their governmental accountable.”  So how do the Act’s requirements relating to cities, as well as the efforts of cities to improve government transparency, stack up against the “openness” of the records of the state legislature?

Texas cities and city councils are subject to the Act. That means, for example, that communications about city business that occur between members of a city council and a citizen by letter or electronic mail are generally subject to release to the public. 

Those same communications between a citizen and a legislator may, however, be protected from public release.  Chapter 306 of the Texas Government Code exempts legislators from having to disclose their constituent communications.  The provisions of Chapter 306 trump the Act, thereby relieving legislators from ordinary public disclosure requirements. 

The legislature, in the Act itself, explains that

[u]nder 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.

Apparently, access to communications between constituents and members of the city council is fundamental to maintaining our democratic government, but communications between constituents and members of the state legislature are not.  Might this be another case of hypocrisy when it comes to state-level open government?

What about other efforts of cities to improve government openness and accountability?  The Texas comptroller launched a local government transparency program in December 2009.  By August 2010, more than 200 local governments—including cities, counties, and school districts—had earned a spot in the comptroller’s “leadership circle” by posting budgets, financial information, and/or check registers online. As of January 2011, 97 cities had received a leadership circle designation.

Unfortunately, the legislature cannot boast of such transparency.  This legislative session, Senator Kirk Watson proposed to add some transparency to the state budget process by requiring the conference committee report on the budget to be available for five days prior to its passage.  His proposal did not pass.  

As recently noted by Texas Monthly editor Paul Burka, “real transparency will require a fundamental change in the entire budget adoption process.  All deliberations – the committee, the working groups, conference committee working groups, those of the conference committee itself – should be held in public.”  Burka notes that under the current process, “[f]inding out the time and place of working group meetings is a mystery akin to cracking the DaVinci Code.”  This “working group” approach, which assigns particularly complex issues to be debated in a small group setting has – as Burka explains – increasingly occurred behind closed doors. 

Do individual legislators and the legislative leadership have the commitment to make the state budget process more transparent?  Ultimately, Senator Watson was able to garner support only for a 48-hour “layout” of such bills.  Perhaps the citizens of Texas should request that the comptroller grade the transparency of the legislature and its budget process?

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