Here Comes the Sun? Texas Legislature considers bills to reform open government laws

2019 was a good year for open government legislation—in the wake of court rulings that advocates say weakened Texas open government laws, lawmakers approved measures to repair holes in the state’s Public Information Act and shore up the Open Meetings Act.

But then Texas was hit with a pandemic, causing many government offices to close or operate on a skeleton crew. While some governmental bodies adapted well, others struggled to provide public records in a timely manner and conduct accessible public meetings. Texas open government laws weren’t perfect before the pandemic—but the crisis magnified certain problems.

Perhaps the most frustrating problem for requestors during the pandemic is how governmental bodies count “business days.” Under the Texas Public Information Act (TPIA), governments are ordinarily required to respond to a request for information within 10 business days. Under the Texas Attorney General’s interpretation of the TPIA, skeleton crew days and days on which a governmental body’s administrative offices are closed don’t count as a “business day.” Thus, when governments closed their physical offices and sent employees home to work, the business day clock stopped ticking—and TPIA requests languished, at a time when the public had an acute need for information from their government.

Texas State Senator Judith Zaffirini (D-Laredo) has introduced SB 925, a bill that aims to close the business day loophole by providing that a “business day” means every day other than a Saturday or Sunday, a national holiday, or a state holiday. Senator Zaffirini, and other legislators in both parties, have introduced dozens of other bills relating to our open government laws. The most notable of these bills are discussed below.

Texas Public Information Act

SB 927 / HB 3015—Governmental body’s response to a TPIA request. SB 927 and HB 3015 would require a governmental body to notify the requestor within 10 business days if there is no information responsive to the request or if the information is being withheld under a previous determination. If and when a governmental body requests an AG ruling as to whether information may be withheld from a requestor, it must state the specific exceptions that apply to the information (currently, most governmental bodies simply invoke every TPIA exception when they request an AG ruling). The bills also provide that, if a governmental body has failed to respond to a TPIA request and the requestor files a complaint with the AG, the governmental body must complete additional open records training and cannot assess any costs to the requestor for producing the information.

SB 1225 / HB 3627—Catastrophe notices. SB 1225 and HB 3627 clarify existing law pertaining to “catastrophe notices,” which governments can file to briefly suspend TPIA requirements during a disaster. The bills provide that no “catastrophe” exists when staff are working remotely and can access information responsive to a TPIA request electronically. The bills also provide that a governmental body can file only one catastrophe notice (plus one extension) per catastrophe—this is important because some governmental bodies took advantage of catastrophe notices during the pandemic by filing them back to back.

SB 928 / SB 729 / HB 1810—Searchable-sortable records. When government information is stored in spreadsheets or other electronic formats, a requestor may need the data in that electronic format for searching, sorting, and organizing. These bills require governmental bodies to produce information in a searchable and sortable electronic format upon request.

HB 3435—“Expedited” response procedure. While many bills filed this session aim to increase government transparency and accountability, HB 3435 misses the mark. It provides for an “expedited response procedure,” where governmental bodies could make a “good faith determination” that requested information is excepted from disclosure, without requesting an AG ruling. Requestors could appeal that determination to the governmental body, but the appeal would be considered a “new” TPIA request. Such a process is burdensome to the requestor, invites abuse, and could lead to unnecessary delays in the production of public information.

Texas Open Meetings Act

SB 924 / HB 2683—Public access to virtual meetings. SB 924 and HB 2683 would require a governmental body to ensure that members of the public are able to listen to and speak at an open meeting that is broadcast live or held by telephone conference or videoconference. Governmental bodies would be required to make available a recording of the meeting within 24 hours of adjournment.

SB 861 / HB 3793—“Emergency” requirement for telephonic meetings. Among other things, SB 861 and HB 3793 would allow an open meeting to be held by telephone conference whenever it is “difficult or impossible” to convene a quorum at one location—by comparison, current law provides that an open meeting can only be held by telephone conference when an emergency or public necessity exists and it is “difficult or impossible” to convene a quorum at one location.

Government Contracting

SB 929 / HB 2913—Online posting of government contracts. SB 929 and HB 2913 would require governmental bodies to post online each contract it enters into with private vendors, along with information about whether the contract was competitively bid (or why it wasn’t).

June 3, 2021 update:

The bills discussed in this blog post were not passed during the 2021 regular session of the legislature, with one notable exception: SB 1225 (relating to catastrophe notices) was signed by the governor on May 28, 2021 and will take effect on September 1, 2021.