Open meetings laws are often referred to as “sunshine laws.” These laws require that meetings, decisions and records, with some exceptions, of state and federal agencies and regulatory bodies be open and readily available to the public.
The public right to open meetings and an individual right to access to state or federal agency decisions are statutory in nature, not constitutional. The Framers did not incorporate these rights in either the First Amendment or enshrined them in the Bill of Rights.
Writing in The First Amendment Encyclopedia, Alex Aichinger pointed out that sessions of the Continental Congress and the Constitutional Convention were conducted in secret. But Aichinger added:
“The freedoms of speech, the press, and the right to petition the government in the First Amendment all presuppose a ‘right to access.’ To criticize or support a government policy effectively, citizens must be informed of the reasons for that policy.”
Transparency in Government is Hallmark of Democracy
Transparency in government is the hallmark of a true Democratic society. Government secrecy breeds both contempt for and corruption of the rule of law.
The U.S. Congress in 1976 passed the Government in the Sunshine Act whose specific purpose was to make the federal government, its entities, and the U.S. Congress open and transparent to the American public. At the time of the Sunshine Act, all 50 states and the District of Columbia had passed their own versions of sunshine laws intended to make state and local governments as transparent as possible.
Texas Open Meeting Act
The Texas Open Meetings Act is found in Chapter 551 of the Government Code. The Freedom of Information Foundation of Texas says the Act applies to “governing boards, commissions, agencies and other bodies created within the executive and legislative branches of government … Commissioners courts, city councils, school boards and certain nonprofit corporations providing public services or spending taxpayer money are among the entities covered. Certain property owners’ associations are also subject to the law.”
Court Deals Blow to Transparency
Last month the Texas Court of Criminal Appeals (“CCA”) in Texas v. Doyal dealt a serious blow to governmental transparency.
Craig Doyal is a Montgomery County district court judge. Doyal and two county commissioners, Charlie Riley and Jim Clark, were indicted on a misdemeanor charge in June 2016 by a Montgomery County grand jury for violating the Texas Open Meetings Act. The case had been presented to the grand jury over a six month period by special prosecutor Chris Downey, a Houston-based attorney. The indictment centered on the trio violating the open meetings law by conducting secret meetings in November 2015 while putting together a bond ballot package for new and improved roads in the county for an upcoming election.
The CCA struck down the criminal provision of the law that makes it a crime for public officials to “knowingly [conspire] to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations.” The court said the provision is “constitutionally vague”—also known as the “void for vagueness” doctrine. Writing for the CCA majority, Judge Sharon Keller said:
“We do not doubt the legislature’s power to prevent government officials from using clever tactics to circumvent the purpose and effect of the Texas Opens Meetings Act. But the statute before lacks any specificity, and any narrowing construction we could impose would be just a guess, an imposition of our judicial views. This we decline to do.”
Reaction to the ruling was swift.
“I’m disappointed in the ruling,” Kelly Shannon, executive director of the Freedom of Information Foundation of Texas told the Texas Tribune. “Some people will use it as a chance to try to get around the spirit of the law. But the vast majority of people want to follow the law and want the public to understand and participate in government. The vast majority of public officials know they can’t go around in secret and deliberate.”
Criminal Penalty Void for Vagueness
Jim Larsen, the attorney who defended the law, told the Tribune that the CCA ruling takes away “a powerful disincentive” specifically designed to prevent public officials from doing public business in secret. Larsen plans to urge the CCA to reconsider its February 27, 2019 decision.
“This provision is important because it basically addresses what are essentially closed meetings where the members of the government body meet in numbers less than a quorum but are acting as a quorum,” Larsen explained in the Tribune. “It undermines the strength of the Opening Meetings Act.”
In a dissenting opinion, Judge Kevin Yeary wrote that “yet another perfectly good statute falls today.”
Civil penalties are often ineffective in preventing intentional misconduct of public officials. “They provide no real disincentive to members of governmental bodies to try to conduct business in secret. The worst that could happen under that type of regime is that civil remedies may be imposed and that efforts to avoid the requirements of the Open Meetings Act could be thwarted. To provide a true disincentive, the stigma of a criminal penalty is necessary.”
We agree. The legislature needs to get this statute fixed ASAP.