The Daily News and newspapers across the country are celebrating Sunshine Week. You’ll hear a lot about the laws that require government to be open.
But rather than take a hypothetical case about why these laws require an energetic defense by public-spirited people and institutions, let’s take a real one from League City. The City Council just chose a new city manager.
The city released the names of the four finalists.
The Daily News sought the list of all applicants — not just the final four.
The city said no, the records were held by its consultant, a search firm.
The search firm argued that it’s in the public’s interest to know who the finalists are. But, the firm contended, it’s not in the public’s interest to know about all the candidates.
That would have a chilling effect on applicants. People would be afraid to apply for public jobs if they knew their names would be published. Or so the consultant said.
There are two things wrong with this argument.
First, public records are the public’s. If the public is paying for a search, it’s entitled to see the all records, not just the ones the consultant wants to release.
The city’s decision to hire a private company to provide the service doesn’t magically make those records private. The records belong to the public.
Just a little reflection will show you why that principle is sound. Suppose that some city council of some mythical city decided to put all the financial records in the hands of a consultant.
And suppose that consultant was related to several council members — and to the city’s construction contractor. The public would never have the right to see what it was paying for. It doesn’t take much imagination to see the problems with that line of reasoning.
The second problem with this argument is that it presumes to assert what’s in public’s interest and what isn’t.
The best answer to that argument is the opening paragraph of the Texas Public Information Act. It says:
“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 provide 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.”
People with rights that exist only on paper are paper tigers. People with rights — and with enough information to understand how to use them — are free.
What the attorney general says
On occasion, when a governmental body has contracted with a private consultant to prepare information for the governmental body, the consultant keeps the report and data in the consultant’s office, and the governmental body reviews it there. Although the information is not in the physical custody of the governmental body, the information is in the constructive custody of the governmental body and is therefore subject to the Public Information Act. The private consultant is acting as the governmental body’s agent in holding the records.
Texas Attorney General’s Office Handbook on the Texas Public Information Act