Celebrating Sunshine Week

posted on 3.11.2019

Each year since 2005, the U.S. news industry calls attention to the importance of public information access during Sunshine Week.  This year’s celebration kicked off on Sunday and runs through March 16. 

It’s a great opportunity for stations to highlight how newsrooms use the Texas Public Information Act to cover the day’s events and develop stories. 

It’s also a time to educate audiences on the erosion of the venerable TPIA that has taken place over the past 40 years due to court decisions and legislative butchering of the law.  Even the Texas Open Meetings Act is not immune to attack. 

As we noted in last week’s TABulletin, lawmakers responded quickly with three bills intended to fix a recent bad court decision which struck down the prohibition on “walking quorums”.

You can learn more about Sunshine Week, by visiting www.sunshineweek.org. Follow Sunshine Week on Twitter and Facebook, and use the hashtag #SunshineWeek.  TAB encourages all Texans to support and publicize this year’s effort by the Texas Sunshine Coalition, of which TAB is a member, to strengthen and improve the TPIA.  

In the crush of the 7,434 bills and resolutions filed during the regular 60-day bill filing period in the 86^th Texas Legislature, there are number of solid improvements to the TPIA that if passed, would strengthen the act.

We’ve noted these TAB TPIA legislative priorities below.  

Dates of Birth
HB 1655 by Rep. Todd Hunter, R-Corpus Christi
SB 1318 by Sen. Nathan Johnson, D-Dallas
Journalists use DOBs to differentiate between two individuals with the same or similar names.  A 2015 Third Court of Appeals decision, Paxton v. City of Dallas, extended a common-law right of privacy to dates of birth of all Texans.

TAB is seeking a clarification in law that DOBs, unless statutorily or constitutionally protected, are subject to release. 

TPIA Records Layout Information
HB 4132 by Rep. Eddie Rodriguez, D-Austin
SB 1317 by Sen. Nathan Johnson, D-Dallas
These bills would require governmental bodies to release “record layout” information contained in spreadsheet and database records. 

Newsrooms have encountered problems with requested data being released without the header used to identify the columns of information in a spreadsheet. It can make the information unusable for reporting purposes. In other cases, spreadsheets are released in the form of a PDF rather than a searchable/sortable document. These bills address both issues.

Custodian of Records
HB 1700 by Rep. Todd Hunter, R-Corpus Christi
HB 2191 by Rep. Giovanni Capriglione, R-Southlake
SB 944 by Sen. Kirk Watson, D-Austin
TAB wants to strengthen a 2013 law that said public business, even if it is conducted on private electronic devices or in private email accounts, is public record. 

It essentially codified what the Texas Attorney General's office had been ruling for many years.  Some public officials, however, are refusing to provide these materials to the governmental body to satisfy the requests for that information. 

HB 1700 would amend the existing law by requiring a government officer or employee in possession of public records to hand that information over to the governmental body upon request.  The language of HB 1700 is contained in two TPIA omnibus bills, HB 2191 and SB 944.

Government Contracting
HB 2189 by Rep. Giovanni Capriglione, R-Southlake
SB 943 by Sen. Kirk Watson, D-Austin
These House and Senate companion bills are meant to offset the damage done by two 2015 Texas Supreme Court decisions that have gutted the public’s ability to see how taxpayer dollars are spent.

HB 2189 and SB 943 would create a new exception for contractors' proprietary information to address some of the concerns raised by the business community.

However, these bills ensure that, even with the new exception, the public can obtain key contract terms (like overall price and deliverables) and information indicating whether a contractor performed its duties under the contract.  The measures would also require specific contractors that are truly intertwined with government to respond to TPIA requests those entities receive about their government work. 

Importantly, these companion bills also require other contractors that receive large government contracts to maintain information about the contract and share it with the governmental body when the governmental body receives a TPIA request for that information.

Texas Public Information Act Omnibus
HB 2191 by Rep. Giovanni Capriglione, R-Southlake
SB 944 by Sen. Kirk Watson, D-Austin
These TPIA omnibus companion bills address several facets of how the TPIA functions.  They contain elements of HB 1700 (noted above) that address the so-called “custodian loophole” which has prevented newsrooms from getting records concerning public business that are in private email accounts or held on a private electronic device. 

These bills also direct the Texas Attorney General’s office to create a public information request form that could prove useful in speeding up responses to requests for certain types of information. 

TPIA Attorney Fees
HB 2192 by Rep. Giovanni Capriglione, R-Southlake
SB 988 by Sen. Kirk Watson, D-Austin
HB 3457 by Rep. John Smithee, R-Amarillo
These bills would end a long-lamented practice by governmental bodies of needlessly sticking requestors with a hefty legal bill when seeking release of information. 

Under current law, a court can assess litigation costs and reasonable attorney fees to a requestor if they substantially prevail in a lawsuit to force release of information. 

In some cases, however, governmental bodies have disingenuously elected to release the information on the eve of trial, well after the requestor has spent tens of thousands of dollars in legal costs to win the information’s release.  There are three other Open Government reform bills worth pointing out that lawmakers have filed this session, and one of them has already moved out of committee.

Texas Public Information Act / Government Funded Public Events
HB 81 by Rep. Terry Canales, D-Edinburg
SB 402 by Sen. Juan “Chuy” Hinojosa , D-McAllen
These companion measures very narrowly address the release of information related to government contracts for parades and concerts.  They stem from the application of the 2015 Texas Supreme Court decision in Boeing v. Paxton to shield records for a 2015 publicly-funded Enrique Iglesias holiday concert.  

Several media outlets requested details from the City of McAllen about its contract with Iglesias, who performed prior to the city’s annual holiday parade.  The AG’s office, citing the city’s use of the Boeing decision to bolster its case to keep the contract information private, agreed McAllen didn’t have to disclose the details. Iglesias’ management, Creative Artists Agency, also opposed releasing the contract details. 

This past week, the House State Affairs committee approved HB 81 and the bill could make it onto a House calendar before the end of March.

Dead Suspect Cases / TPIA 552.108 Exception to Release
HB 147 by Rep. Joe Moody, D-El Paso
This bill would allow access to law enforcement information in cases in which all suspects involved are deceased.  

Under Section 552.108 of the TPIA, law enforcement materials do not have to be released if there is a pending investigation or unless there is a final court outcome.  There won’t be a final court outcome, however, if a suspect in a case is deceased. 

Several high-profile investigations remain “active” cases even though the only suspect in the case is deceased and it’s a problem that newsrooms continue to encounter.  This bill has been heard by the House State Affairs Committee and was left pending.

Questions? Further information is available at https://txsunshine.org or contact TAB’s Michael Schneider or call (512) 322-9944.

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