The price of 'free' information
How UT and the state attack the Texas Open Records Act
By Kathy Mitchell
November 1990; pages 6-7, 17; Volume 2, No. 2
In the past months students have used the Texas Open Records Act to discover information on the English 306 controversy, UT President Cunningham's relations with multinational corporations, the University's financial structure, and UT's connections and position in the political economy of Austin and the state. But recently our access to information has come under attack. Universities by their very nature should provide a free and open environment for the exchange of information, and the very fact that UT doesn't makes a strong statement about the moral basis on which the University stands.
UT is the single largest line item in the state budget, possesses more political clout than any other state agency, and actively uses its vast resources to make economic decisions that effect the entire state. Still, its top officials - usually wealthy businessmen - are all appointed, and there's simply no popular input into its decisions outside the influence of a few large donors. More than any other state agency, UT's deserves close scrutiny, and the Open Records Act is the only vehicle by which we can monitor its actions. The following article will discuss the recent infringements on student access to university documents, and provide a brief legal and political history of the evolution of Texas open records law.
The Bond Market for Information
In a recent telephone conversation, Vice Provost Patty Ohlendorf demanded a $144 bond for an open records request on materials relating to a Freeport McMoRan research contract with the University. She went on to say that the $144 was only an estimate, and that the final bill might be higher depending on the amount of time individuals like Natural Sciences Dean Boyer spend with their files. In a letter outlining the charges, she wrote that students would pay Dean Boyer of Natural Sciences $50.00/hr. for the time it takes him to go through his correspondence. Further, the letter concludes that the amount of time the President's Office might need to "excise student info" cannot be estimated, and the costs can be added later if significant.
Ohlendorf admits that this was in fact a policy change, accelerated by the open records requests received from by the administration this summer. "Although I plan to write a Policy Memorandum addressing costs now that we have received clarification on the matter from legal counsel, I have not yet had time to do so," she wrote on Sept. 19. Six weeks and many open records requests later students still have received no statement from the Administration outlining the legal basis for the new policy.
Students have never before been asked to cover labor fees for highly paid individuals like Boyer or System Attorney Mel Hazelwood. Ohlendorf said that the Vice President's office had applied for an attorney general's recommendation a year ago, but had received nothing until, at the end of the summer, the VP's office pressured the attorney general to respond. She claims to have the approval now for charges, but has produced no evidence of it.
System Attorney Hazelwood, in a letter dated Sept 10, informed us that his own opinion regarding fees for students and student access to information was not written down anywhere - although he would base future charges upon it - and that the Open Records Act does not require the production of new records. In other words, the system has created a new policy but does not feel inclined to produce a policy statement for students to read as a guideline.
A high fee for open records virtually closes off student access to information and undermines the basic purpose of the act. Written into law in 1973, the act guarantees that "all persons are, unless otherwise expressly provided by law, at all times entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as 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. To that end the provisions of this Act shall be liberally construed." (italics added).
Origins of the Act: The Sharpstown Bank Scandal
The Texas Open Records Act was drawn up in the wake of government banking scandals remarkably similar to the S&L scandals that plague us today. The Sharpstown Bank Scandal of 1971 implicated a number of legislators and government officials in SEC fraud, conflict of interest, and bribery, and sharpened public awareness of the high costs of a secretive governing body.
The SEC filed a stock fraud suit implicating Houston banker Frank Sharp, then-Governor Preston Smith, Attorney General Waggoner Carr, House speaker Gus F. Mutscher, one of his aides, and former Representative Tommy Shannon, in a scheme to conceal assets by switching them among three banks and two insurance companies as each firm came under SEC scrutiny. Further, defendants attempted to avoid FDIC regulation by having legislation introduced that would enable state banks to be insured by state insurance companies rather than the FDIC.
According to the SEC petition, "The defendants caused large sums of money to be loaned to certain legislators, employees and members of the Executive Branch," including Dr. Elmer Baum, one of the three members of the Texas Banking Board. Governor Smith and Dr. Baum each made over $62,000 profit on insurance company shares sold six weeks after their purchase from Sharp.
In other incidents, indictments of several former state legislators on "numerous counts of theft of state funds and property brought unusual and encouraging political pressures from a large segment of the general public for substantive action," according to then Rep. J. Nowlin, one of the legislators who worked on the original Open Records legislation.
The Texas Open Records Act represented a commitment on the part of many legislators to a more open and accessible government. The act shifted the burden of proof from the person requesting information to the agency. People no longer need to demonstrate their reasons for looking at their own government's records. The agency must now demonstrate that the requested information falls under a specific exemption or turn it over.
The act guarantees that no governing body may make crucial policy decisions without open hearings, that citizens can observe all meetings where votes are taken or where crucial information is imparted, and that anyone can apply for records filed with a state agency. If the agency chooses not to release information it must, within 10 days, state the attorney general's ruling governing the exemption. If there is no current attorney general's ruling, the agency must apply for one. In general, advice and opinions exchanged among policy makers is protected from disclosure, but all forms of information exchange are public. We do not have the legal right to view the process by which our administrators make decisions, but we do have the right to know the information upon which administrators base their decisions.
The "Protection of Certain Information" Law
In the last five years, however, several legislative changes have to diluted the Act's force, particularly as it relates to the University. Some of the most important changes were passed into law, not through the committee charged with public information law, but through the education committee, and tacked onto the education code.
This "back-door" amendment strategy has been used since 1981 by the Reagan-Bush administration in its war on the federal Freedom of Information Act (FOIA). Texas Open Records clause 3(a)1, like the Federal exemption (b)(3), allows agencies to withhold information that is made secret by other Federal or State law. In other words, legislation may be written by committees other than the FOIA/Open Records oversight committees, without being reviewed in a public records hearing. These changes are often drawn up by those sympathetic with increased restrictions.
At the national level, the "back-door" procedure created major restrictions on the availability of previously unclassified information. The FOIA was amended through the Anti-Drug Abuse Act that allows agencies to "neither confirm nor deny" the existence of records pertaining to criminal investigations, informants, intelligence or terrorism. The Atomic Energy Act of 1981 allows for prohibitions against the "dissemination of unclassified information" (my italics) pertaining to atomic energy defense programs. A new classification, enforcement sensitive, was invented in 1982 just for the EPA, which may now choose not to disclose otherwise unclassified material. Since then such new categories have proliferated, like the Department of Energy's new Unclassified with Deletion regulation, extending to regulatory agencies a broader power to limit access to data on the companies they are supposed to regulate.
Texas Senate Bill No. 840, added to the Education Code by the Education Committee, Aug. 26, 1985, instituted protections for "all information relating to a product, device, or process, the application or use of such a product ... developed in whole or in part at a state institution of higher education, regardless of whether patentable or capable of being registered ... that have potential for being sold traded or licensed for a fee." The University grounded its full scale attack on conflict of interest law in this crucial "Protection of Certain Information."
Senate Bill 840 at the same time established the Center for Technology Development and Transfer which legalized corporate/faculty partnerships for the commercialization of research and approved board shareholding "in corporations engaged in the development, manufacture, of marketing of products, technology, or scientific information under license from the board."
Administrators and faculty protect information about basic scientific research even before any commercial potential has been proven. This undermines the scientific exchange of ideas that has long been a tenet of university-based research.
Gonzalo Barrientos, State Senator and UT system lackey, wrote both sections of the bill, analyzed it for the committees, and pushed it through both Houses without any significant changes from the original wording. The only person to testify before the Senate committee, was then head of the General Council for the UT System, James L. Crowson. According to Crowson, the legislation raised no first amendment questions with regard to the general protection from disclosure of scholarly material that might, in the future, be saleable. The public hearing, posted without fanfare, brought no further testimony, and the House passed the bill by non-record vote.
Texas legislators honed the definition of "intellectual property" further with Senate Bill No. 321 of 1987. This act created new exemptions from public release for materials collected privately but donated to public institutions, including oral history interviews, personal papers, unpublished letters, rare books and original manuscripts. Sec. 3(a)(20) now exempts materials like those at the HRC from public disclosure at the discretion of the donor or the University. The same act also protects the names of applicants for the job of President until finalists have been chosen, and protects "curriculum objectives and test items by educational institutions."
Not only is more University information protected, but people who request information are likely to pay more as a result of another "back-door" incursion. In 1989 the legislature passed H.B. 1285, a huge package which completely revised at a technical level the ways agencies must gather and access information. Until September of 1989, the law governing fees simply said that costs "shall not be excessive" and that agencies should make "every effort to match the charges with the actual cost of providing records." Under H.B. No. 1285, part of a larger revision of the Government Code, this has been amended to specify "costs of materials, labor and overhead." "Overhead" leaves the agency, in this case Patty Ohlendorf s office, a great deal of leeway to charge students for the infrastructure of Open Records production. "Labor" can be tabulated as she sees fit. This is a direct reversal of the precedent set by Attorney General's opinion (JM-114, 1984), which had held that "A governmental body may not charge for employee time in editing records or in making records available."
Further, while the new 1989 law provides for fines if the agency has overcharged, it also states that the defendant (student) must be able to prove the University "did not act in good faith in computing the costs." The law also provides additional protections ("affirmative defenses") for agencies which are sued for documents.
And while the Act deems that agencies must limit fees for labor and overhead to a "reasonable" level, it does not specify how that term will be defined. In a recent fee decision, Attorney General Jim Mattox found in favor of the requestor, who appealed a fee of $95.00 for the production of a document from the Texas Highway Commission because he had been charged for employee time to put together a document that in fact already existed in bound form.
What They Want to Hide
Recent open records requests have pinpointed President Bill Cunningham's and Provost Gerry Fonken's direct and personal interference in the modification of the syllabus for English 306. And the president's appointment book revealed that not only does he make a $50,000 salary from Freeport McMoRan, but he also spends his vacation at the Freeport House in Colorado and much of his time jetting to Freeport and other board meetings. Open records requests have produced invaluable documentation of donors and their gifts to various departments and the Chancellor's account, as well as the entire investment portfolio for the System, a 1,300-page document never before examined in its entirety by students.
Students are only just beginning to learn how to access the documents upon which important University decisions are based. According to Op. Atty. Gen. 1976, No. ORD-137, for example, the intra-agency memorandum exemption that the University has been using very liberally to withhold documents pertaining to English 306, the Black Student Alliance, student activism, the Sexual Orientation Clause, and other subjects, "does not protect documents when the agency has adopted those documents as the basis for its decision."
When the administration responds to a request for the documents pertaining to its consideration of the BSA's PRIDE (a student proposal for curriculum reform), for example, by giving students copies of PRIDE itself, we know that they are withholding other information upon which they base their decisions. We have a right to know upon what information and analysis our administration bases its policy decisions that affect all of us.
Our right to know should not be a matter for debate.