Houston Chronicle Editorial (12/04/2001)
Equity for Houston: 
Secret Transportation Evaluations are not Fair Evaluations

The Texas Transportation Commission met last week to hear public comments on proposed highway beautification projects for the coming year. Two issues  warrant the commission's careful attention.

The first is Houston's claim to an equitable share of the federal funds for these projects, which range from highway landscaping to hike and bike trails to transportation museums. The commission and the agency it governs, the Texas Department of Transportation, for decades have failed to allocate to the  Houston area the share of highway funds this region's  population and economy warrant. A fair share would  direct to Houston in excess of 20 percent of the  funds spent in Texas.

Randall Dillard, manager of TxDOT's media relations department, said traditional transportation measures of fairness such as population and vehicle miles don't apply to the Statewide Transportation Enhancement Program because it has nothing to do with moving people. That is not strictly accurate; the projects must be at least tangentially related to transportation. But the program most assuredly is about enhancing people's quality of life, and more than a fifth of all Texans live in the Houston area.  There is no reason why Houstonians, whether moving or stationary, should not be entitled to equity and a fair share of new sidewalks, landscaping and other improvements.

Dillard said the projects proposed for Houston received a fair evaluation by three panels of TxDOT and other state officials, but TxDOT refused to make the evaluations public. The Chronicle's request for the information awaits a ruling by Texas Attorney General John Cornyn.

This brings up the second matter that begs the attention of the Texas Transportation Commission:  Secret evaluations are not fair evaluations. They are also unlawful in Texas, where the Public Information Act requires disclosure of almost all public information.

Janice Mullenix, TxDOT's associate general counsel, writes in a letter to the attorney general's office that the evaluations are shielded from public disclosure because they are "intra-agency memoranda that would not be available by law to a party in litigation with a state agency." However, there is no litigation at hand, and no indication these public documents would be denied to a hypothetical litigant.

Mullenix further pleads that the evaluations are "predecisional advice or recommendations" and therefore can be denied the public. If this were true, TxDOT in effect would be little more than an advisory committee to the Transportation Commission, and all the reports, maps, studies and budget numbers it provided the commission would be defined as confidential memos.

The evaluations, however, are not "predecisional." Transportation Commissioner John W. Johnson of Houston said the scores the panels gave to each proposal determined which enhancement projects would receive priority funding.

Perhaps aware of the weakness of her argument, Mullenix throws a Hail Mary. She concludes that the evaluations must be kept secret because they are incomplete, confusing and misleading.

Why didn't the TxDOT officials finish the job? The evaluations are as finished as they will ever be. If they are confusing and misleading, there is little chance they were done competently and fairly.