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The city of Austin last week denied a formal Austin Free Press request for “records of any motions presented” during a closed session on natural gas powered peaking units, or “peakers” at the city council’s May 21 meeting. The request included “records of how each council member voted.”
The city wrote on June 5 that it “is withholding the information” without first seeking a Texas Attorney General’s opinion, which government bodies typically do under the Texas Public Information Act. The city based this shortcut on a 2009 open records decision by then-Texas Attorney General Greg Abbott that offered automatic carve outs for a few types of information.
The 2009 decision sought to “encourage the prompt release of requested public information and increase the efficiency of the PIA (Public Information Act) review process.” Abbott’s determination allows “certified agendas and tapes of closed meetings” to remain confidential under the Texas Open Meetings Act “unless a court rules otherwise.”
The closed-door meeting resulted in a council vote authorizing Austin Energy, its city-owned utility, to add new peaker units to its generation portfolio. Everything, even the final vote, is now sealed from taxpayers who are on the hook for the estimated $1 billion in unit costs. This all comes during an election year, where three council members are seeking re-election.
During that May 21 meeting, residents packed City Hall to voice their opinion on proposed new peaker units. Austin Energy claims new peakers are needed to meet projected gaps in demand during extreme weather events that its existing portfolio cannot fill. Some residents supported the units on those grounds, noting that power outages put vulnerable residents at risk.
However, the majority of speakers were opposed to the addition of new units, as natural gas emissions add to local air pollution and raise atmospheric temperatures. Opponents were also concerned about environmental racism. All 10 of Austin Energy’s current peaker units are in East Austin – in largely Black and Hispanic communities. The utility has not been transparent about where the new units will be located, though nine of the 14 sites on Austin Energy’s shortlist also are east of IH-35.
The council relied on a narrow Texas Open Meetings Act provision to conduct a closed-door meeting. That provision permits, but does not require, the council to discuss and vote on competitive utility matters in executive session, including “fixed and variable costs” for energy generation units such as peakers or “forecasts of those costs.”
The Austin Free Press previously reported that open government attorneys sharply criticized the city council for using the provision to shield their votes from the public, especially given the public’s interest in knowing how their elected officials voted on the matter. Those experts noted that no part of the law prevents council members from publicly disclosing their votes, which council members refused to do.
Joe Larsen, an open government legal expert at the Houston firm Gregor Wynne Arney, argued that the matters discussed in executive session cannot qualify as competitive, since Austin Energy is the sole electric utility provider in its service region (mostly, the city of Austin).
“I think there is an issue of whether this is a legal closed meeting,” Larsen told the Austin Free Press. He added that the city carries the “burden to show you actually have competition,” rather than simply claiming a matter is competitive.
Because the peaker acquisitions are taking place within the broader energy market, the city contends that the matters are “competitive” under the Texas Open Meetings Act.
Legal experts also are criticizing the city for denying the Austin Free Press records requests without asking the Attorney General for permission to do so.
“In declining to supply any of the requested public information, the City skipped over, or adjudicated itself” from the Public Information legal provision that allows governments to withhold information on certain competitive matters, local attorney and former Travis County Judge Bill Aleshire told the Austin Free Press.
“The City of Austin has no authority to, itself, withhold ‘competitive matter’ material without requesting a ruling from the Attorney General,” Aleshire added. “Case law specifically does not allow a governmental body to decide on its own to withhold such information without requesting an Attorney General ruling.”
On behalf of the Austin Free Press, Aleshire wrote the city on June 8, urging it to request an attorney general ruling on the city’s decision to withhold the requested records from the Austin Free Press.
“I think the Attorney General ought to weigh in on this,” Larsen agreed. “It’s fundamental to know who is voting on what. This is not my idea of democracy.”
Piper Guinn is the health equity reporter for the Austin Free Press, covering the disproportionate health burden carried by our city’s most vulnerable. Piper is a native Texan and recent graduate of Whittier College, where she received a B.A. in political science.
Andrew Wheat contributed to this story. He is the Data, Information and Enterprise Editor of the Austin Free Press.
