In Texas, access delayed: Public records appeal process invites abuse

Despite process to ensure government transparency, records show state’s public records law allows universities to hold up the process.

Yang Wang knew a delay could jeopardize her story. So when she sent a public records request to the University of Houston, she used a strategy she learned from her mentors.

“I want to stress that I’m not seeking any records that are prohibited from release either by statute or previous rulings by the Texas Attorney General or the courts,” Wang, a reporter and data specialist at The Houston Chronicle, wrote in her request to the university. “Please let me know if clarifying the request might speed the release of the data, reduce any programming time and, most important, avoid a referral to the Attorney General.”

If the university forwarded her request to the Texas Attorney General’s Office, she knew she wouldn’t see the requested documents for at least a few months.

The public information law in Texas requires state agencies — like public universities — to seek an opinion from the attorney general before withholding requested information. A Student Press Law Center investigation found these universities often use this provision in the law to delay the release of information the public should be allowed to see.

Texas law starts with the assumption that a requestor is owed records within 10 days. But asking the attorney general for an opinion stops the clock and can push the agency’s response time back by a month-and-a-half — which makes the process vulnerable to manipulation by an agency seeking to run out the clock on a deadline-sensitive request.

In an industry where “time is everything,” Wang said delays could be used as a “weapon.”

One in three

In 2013, Texas A&M University, the state’s largest public university by enrollment, sought to withhold information in 125 separate records requests, according to documents the SPLC obtained from the Texas Attorney General’s Office through a public records request. For this investigation, the SPLC also obtained documents from the state’s eight largest public universities, based on total enrollment.

In 73 of Texas A&M’s 125 requests to withhold information, officials in the Attorney General’s Office agreed: the requested documents did contain information state law says may be withheld from the public. Information exempt from disclosure ranged from police reports in active criminal investigations to a third parties’ proprietary information to administrators’ emails.

The office of then-Texas Attorney General Greg Abbott ordered university officials to release all requested information in 10 instances. But in 39, or 31 percent, of requests, Abbott’s staff never got a chance to reach a decision before university officials withdrew the requests.

On average, Texas A&M officials withdrew their requests with the attorney general 20 business days after the requestor asked for documents. In four instances, a request for an attorney general ruling was withdrawn because the requestor was no longer interested in the documents.

“Upon review of the records, we determined that none of the responsive records included information that requires a decision from your office,” Texas A&M officials wrote in one withdrawal letter to the attorney general’s office, referring to a student’s request to obtain copies of his own file from the Student Conduct Office.

A spreadsheet from Texas A&M shows the university received 888 information requests in 2013.

Though they received fewer records requests and sought fewer attorney general opinions, withdrawal rates at the University of Texas Arlington were similar to Texas A&M. University officials changed their minds in 27 percent of their requests for state review. Of the 18 letters UT-Arlington sent the attorney general seeking to withhold information, five were later withdrawn. According to the letters the institution sent the attorney general, university officials — and not the requestor — stopped the attorney general from making a ruling.

“The university no longer objects to the release of the requested information and will provide the responsive information it maintains to the requestor,” UT Arlington officials wrote to the attorney general in one withdrawal — 28 business days after the request was made. In one instance, records officials determined UT Arlington didn’t even maintain documents pursuant to a request.

Similar withdrawal rates were observed at the University of Texas at Austin and the University of Texas at San Antonio.

A spreadsheet from UT Arlington outlined 166 requests. However, it did not detail 15 records requests for information the institution sought to withhold. Each of these requests to the attorney general were later withdrawn. UT San Antonio received 239 requests, records show.

Opening the gate

In the 1970s Sharpstown stock fraud scandal, state officials were charged for making quick-turnover bank-financed stock purchases in exchange for legislation Houston businessman Frank Sharp requested, ending the political careers of the governor, lieutenant governor and the state’s speaker of the house.

The controversy prompted several reforms including passage of the Texas Public Information Act, establishing that “government is the servant and not the master of the people.”

Upon receipt of a request for information, a state agency is generally required within 10 business days to provide access to the documents under the state’s public records law. If the agency believes all or part of the information should be withheld, they must request a ruling from the attorney general. Exemptions to the law include information on personnel records, pending litigation, trade secrets, legal matters involving attorney-client privilege and records that could hinder an active criminal investigation or prosecution — exemptions that exist in most state open records laws and the federal Freedom of Information Act.

If asked, the attorney general has 45 days to respond on whether the information should be released or withheld, either in part or in full. While the attorney general does issue formal opinions that can be cited as precedent in future records requests, most rulings are informal. In 2013, the attorney general’s office issued more than 22,000 informal rulings in open records cases.

Lauren Bean, a spokeswoman for the Texas Attorney General’s Office, said the agency does not keep statistics on how often universities or other government agencies withdraw requests for an open records letter ruling. She said the law does not address what happens when a government agency withdraws its request for an open records letter ruling, adding only that agencies are required to respond “promptly.”

Even when requests to withhold information are not withdrawn, receiving a formal or informal opinion from the attorney general takes time. In 2013 the attorney general ordered the eight universities to release all of the requested information 29 times. Of those, the attorney general issued a ruling, on average, 45 days after the requestor asked the universities for documents.

If a requestor believes a government agency has not complied with the law, they can file a complaint with the attorney general. Complaints can also be filed against governmental bodies that fail to comply with an attorney general ruling.

Although he said he understands why some people might be tempted to stall the release of public information, UT Arlington attorney Shelby Boseman said government employees who fail to comply with the public records law could face personal criminal liabilities, “so if an individual chooses to do that, they face a severe penalty.”

Currently, requestors can bypass a ruling from the attorney general’s office through litigation, but that could change pending a ruling from the state Supreme Court.

In 2008, Randall Kallinen requested information about a commissioned study on traffic light cameras in Houston. While the city released some of the documents, it sought from the attorney general a ruling to withhold some of the information. Before the attorney general’s office made a ruling, Kallinen filed suit in district court to access the documents and requested the attorney general wait to make a ruling because the issue was part of ongoing litigation.

The trial court said dual tracks to access information was acceptable — requestors could either wait for the attorney general to issue an opinion or in court, unlike administrative hearings. The appeals court, however, reversed the lower court’s opinion, ruling that requestors must first exhaust their administrative remedies.

“It’s never been considered to be an administrative proceeding,” said Laura Prather, a media lawyer at Haynes and Boone, LLP, and a member of SPLC’s Board of Directors. “It’s not one in which both sides put on evidence and all of that,” adding that the Attorney General’s Office has indicated in its rulings that they should not be considered part of an administrative proceeding.

In a friend-of-the-court brief submitted in May 2014 to the Texas Supreme Court, the Human Rights Defense Center, National Police Accountability Project and Communities United Against Police Brutality argued requestors should not have to seek an attorney general opinion before taking the issue to court. Such a “loophole,” the brief said, would give a government body a chance to avoid having to supply public records.

“If a governmental body can delay supplying public information,” according to the brief, “this allows the temporary suppression of mistakes or irregularities that should be immediately open to the scrutiny of the press and the general public.”

Reason to withhold

Government agencies often have a “knee-jerk” reaction to withhold information that should be public, said Kelley Shannon, executive director of the Freedom of Information Foundation of Texas.

“There tends to be too much leaning toward secrecy at universities and university systems,” Shannon said. Institutions, she said, often get “caught up” by student education records, which are exempt from disclosure under the Family Educational Rights and Privacy Act, the federal student privacy law.

“It’s either just being afraid of releasing it for some reason or it’s a stalling tactic thinking that, if they wait a while to release it, then maybe it loses its news value,” said Shannon, who was previously a reporter for The Associated Press and The Dallas Morning News.

UT Austin spokesman Gary Susswein said the institution does not have a central storage area for all university emails, documents and records, which are instead held at the collegial, departmental or individual level.

While he said the system requires open records officials to be thorough and precise when gathering recordings responsive to a request, sometimes open records officials at the university “may not have received all responsive documents from our UT departments by the 10th day so we file the request to maintain our rights under the law,” Susswein said. If a government agency does not timely request an attorney general decision or does not notify the requestor it is seeking an attorney general decision, the information is generally presumed to be open to the public.

“Once we do receive these documents, we may see that nothing, in fact, can or should be withheld,” Susswein said, “so we withdraw our requests.”

Before seeking an opinion from the attorney general, Eric Bentley, an attorney for the University of Houston System, said the university often asks the requestor to modify their requests to exclude certain information they believe should be redacted. But if university officials don’t hear back from the requestor within 10 business days, the university may request an opinion from the attorney general “only to later hear from the requestor that the information may be redacted.”

When records involve third parties, Bentley said, it often makes more sense to send the attorney general a request to withhold the information rather than to notify the third party informally.

“For example, it may be difficult to correspond with large companies (e.g. Microsoft) and receive a determination from the company before the 10 business days when the University is required to send the official third party notice under the Texas Public Information Act,” he said.

Like the Attorney General’s Office, the University of Houston does not track their withdraws, Bentley said, because “it is not a useful statistic.”

Boseman, the UT Arlington attorney, said he wasn’t shocked by the number of withdrawals at his institution. Frequently, he said, information requests are for police reports for cases being actively investigated. Because law allows the university to withhold investigatory records, the university will write a letter to the attorney general requesting to withhold the documents, but “a week later if that investigation is closed, at that point we can turn the information over.”

Unlike at the University of Houston, Boseman said UT Arlington’s public information officer does not notify requestors they are seeking an opinion from the attorney general ahead of time because it would look like they are “trying to dictate what information they’re requesting.”

“We’d rather let them do it on their own rather than us trying to dictate to them how they should make their own request,” he said.

When the requestor is notified the university has sought an attorney general opinion, Boseman said they generally modify their request so an attorney general opinion isn’t needed.

Texas A&M officials did not respond to telephone calls or emails requesting comment for this story.

In an article for The Center for Public Integrity, a non-profit investigative journalism organization based in Washington, D.C., Shannon reported how some city governments frequently use the attorney general to keep government information secret.

In her reporting she found some municipalities’ requests to withhold information were often denied. For example, the attorney general approved only 49 percent of the City of San Antonio’s requests to withhold information.

“By what we saw with cities, you could probably figure that’s going on with other governmental bodies too,” Shannon said.

However, SPLC’s public records examination didn’t garner similar results at the state’s largest public universities. Only three requests at UT Austin were ordered to be released. All of them involved a third party that either didn’t respond to a letter from the Attorney General’s Office or didn’t object to the records’ release.

Of the 12 records requests the Attorney General’s Office told Texas A&M should be released without any redactions, the attorney general ordered the release of one because the institution did not submit before the deadline an argument explaining why information should be withheld.

“We have no choice but to order you to release the requested information,” the Attorney General’s Office wrote in a letter to the university.

In nine of those requests, however, the attorney general determined release of the information would not compromise the proprietary information of a third party or it did not receive a letter arguing otherwise.

Shannon’s research did not explore withdrawals at city governments. She said she has heard of agencies withdrawing their requests for a ruling but was unaware of any trends.

“Why would they have made the request to begin with?” Shannon said. “If there is a really solid reason to try and withhold it, why would they have to go back on over one-third of their requests and say ‘oh wait, we can actually release this information.’ It makes it sound like maybe that initial request to withhold information was not so well thought out.”

Delaying affects student journalists

Although delayed access can be a hindrance for all journalists, the issue is especially true for those who work at a student newspaper because their employment is generally short-lived.

When UT Austin senior Bobby Blanchard sent records requests to his institution as a reporter for The Daily Texan, the student newspaper, he noticed a trend. It didn’t matter the complexity of his requests, it would take UT Austin about 10 days to respond — the maximum time law allows. Other state agencies, including other public universities, seemed to respond more quickly.

“I noticed that UT Austin always takes 10 days, pretty much across the board, which isn’t necessarily the law in Texas, Blanchard said. “The law in Texas is that you have to respond promptly and you have to have a response within 10 days.”

To determine how much longer it took UT Austin to respond to his requests than at other Texas colleges, he sent identical requests to several universities seeking copies of email correspondence between the universities’ presidents and their college deans or associate deans.

As university officials responded to his request, Blanchard, who now interns for the nonprofit investigative news site Texas Tribune, soon realized his project would fall short. The broad records request used to determine response times, he said, “wasn’t the best test example.”

However his investigation did reveal how institutions can respond differently to the same records request. The University of Texas Arlington sent his request to the Texas Attorney General’s Office, which determined — after 50 days — the university could withhold at least some of the information.

Texas A&M University also sought from the attorney general permission to withhold at least some of the requested information.

Six business days later, though, the university reversed.

“Upon subsequent review,” university officials wrote in a letter to the attorney general, “we determined that the records provided by the university contain no information requiring a decision from your office.”

Lydia Coutré contributed to this report.

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When a public agency in Texas receives a public records request for information it believes it can withhold, the agency must first seek a ruling from the Texas Attorney General’s Office. The chart below shows the state’s eight largest public universities, by enrollment. Based on public records requests the Student Press Law Center filed with each institution and the attorney general, it was able to determine institutions often request from the attorney general the ability to withhold information, but later withdraw that request. Numbers are from the 2013 calendar year.