Mad final dash of bill-filing - TAB newsroom legislative agenda is in place

posted on 3.13.2017

Texas lawmakers filed more than 7,000 bills and resolutions before the close of business on March 10 on what was the 60^th day of the 85^th Texas Legislature, the last regular day to file legislation.  

There are now just 76 days left in the session to pass any measure.

TAB’s newsroom legislative committee is going through the last batch of bills (more than 1,500 were filed in the last two days alone) and has identified more than 400 with an Open Government or newsroom impact. 

A core package of six bill topics comprise the 2017 TAB newsroom legislative agenda and all measures were filed before the regular bill filing deadline kicked in.

TAB newsroom legislative agenda

The Senate versions of our top two priorities could move out of the Senate Business and Commerce Committee this week.  

SB 407 by Sen. Kirk Watson, D-Austin, is a legislative redress to the Boeing v. Paxton Texas Supreme Court decision that expanded the competitive bidding exception in the TPIA in two egregious ways.

It allowed private entities to claim the exception and also allowed the exception to apply to final, awarded government contracts.   

SB 407 would limit the competitive bidding exception in the TPIA to those cases in which a governmental body can demonstrate the release of the information would harm its interests “in a particular competitive situation.” 

It also explicitly states that the exception does not apply to finalized government contracts.

The House companion bill, HB 792 by Rep. Giovanni Capriglione, R-Southlake, has been

referred to the House Government Transparency and Operations Committee. 

The second bill Watson filed early this year, SB 408, may also move out the same committee this week.

It addresses the Texas Supreme Ct. decision in Greater Houston Partnership v. Paxton.

The ruling redefined when publicly-funded private entities are subject to the TPIA. 

For three decades, Texas relied on the so-called Kneeland test to protect the public’s ability to monitor public funds. 

In the Kneeland case, a federal appeals court adopted a three-prong test developed by the Texas attorney general to determine whether a nominally private entity receiving public funds is subject to the Texas Public Information Act:

• The agreement between the not-for-profit entity and the governmental entity does not have a specific and definite obligation to provide a measurable amount of service in exchange for an identifiable amount of money; or
• The entity has a relationship with the government that indicates a common purpose or objective or creates an agency-type relationship between the two; or
• The private entity's relationship with the government requires the private entity to provide services traditionally provided by governmental bodies

The court abandoned the Kneeland standard and said the TPIA only applies to private entities “sustained” by public funds – a higher threshold.   

SB 408 would essentially codify the Kneeland test and restore a framework used for nearly 30 years to make decisions on release of information.

HB 793 by Rep. Giovanni Capriglione, R-Southlake, the House companion bill has been

referred to the House Government Transparency and Operations Committee. 

A May 2015 Third Court of Appeals decision, Paxton v. City of Dallas, extended a common-law right of privacy to dates of birth (DOBs) of all Texans. 

The court based its decision on an earlier Texas Supreme Court decision which held public employee dates of birth could be withheld from the public.  

As a result of the court’s decision, some Texas police departments are now redacting DOBs from the “basic information” that must be released when an individual is arrested or charged, thereby creating liability issues for crime reporting.  

Journalists use DOBs to differentiate between two individuals with the same or similar names in order for reporting to be accurate.  

HB 2710 by Rep. Todd Hunter, R-Corpus Christi, would clarify that DOBs, unless statutorily protected, are subject to release. 

HB 2710 has yet to be referred to a House committee. 

Another Texas court decision remedy bill, SB 1655 by Sen. Kirk Watson, D-Austin, would

address this year’s Paxton v. City of Dallas Texas Supreme Ct. decision involving the attorney-client privilege protection that exists in the TPIA.

At issue is whether TPIA deadline requirements which can force governmental bodies to turn over requested information, despite release exceptions in the law. 

The court ruled 7-2, that the City of Dallas could withhold the requested public information because it was covered by the privilege, even though the city had missed TPIA deadlines which the AG’s office said mandated the information’s release under the Act. 

SB 1655 has yet to be referred to a Senate Committee.

Not all of the items in the TAB newsroom legislative agenda are the result of a bad court decision.

Such is the case of HB 2670 by Rep. Todd Hunter, R-Corpus Christi.

TAB and others want to clarify a 2013 law that said public business, even if it is conducted on private electronic devices or in private email accounts, is public record. 

The 2013 law 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. 

The proposed fix, first attempted in the 2015 Legislature, 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. 

It also would create a criminal penalty for not doing so which should be helpful as a deterrent to bad actors. 

The 2015 bill made it out of committee but failed to make it to a House calendar in time to beat a House bill deadline.

HB 2670 has yet to be referred to a House Committee.

TAB also is seeking a legislative solution to an Open Government issue that has been raised at the Capitol for several decades. 

Open Government advocates acknowledge there is a problem with individuals who use the TPIA to harass local government.  

They do so by filing voluminous TPIA requests that would take days and weeks to fulfill, either because of the amount of material requested or the number of requests that have been made. Some have even written computer programs to systematically send bulk emails requesting information.  

TAB worked with other Open Government groups and Rep. Trent Ashby, R-Lufkin, to come up with HB 3107, a solution to this legitimate problem which does not curtail legitimate requestors, such as Texas newsrooms, in their efforts.

HB 3107 has yet to be referred to a House Committee. 

To complete the package of bills, Rep. Hunter and Sen. Watson have filed Open Government omnibus legislation, HB 3848 and SB 1646, as backup legislative vehicles for most of the issues contained in stand-alone bills.

Other legislation affecting newsrooms

While the bills above comprise the TAB newsroom legislative agenda, there are other newsroom related bills that have been filed in the past two weeks.

Expedited TPIA Response
HB 2328 by Rep. Eddie Lucio III, D-Brownsville and SB 1347 by Sen. Kirk Watson, D-Austin
These bills establish a mechanism governmental bodies can use to expedite responses to requests for information under the Texas Public Information Act.  

They were developed by the Attorney General's Office with input from Open Government Advocates and other interested parties.

These bills require public information officers who are authorized to make a determination to withhold information to undergo several hours of Open Records training administered by the AG's Office.

They also create an appeal mechanism for those who feel information was incorrectly withheld by a governmental body. 

Neither HB 2328 nor SB 1347 has been referred to committee.

TPIA Attorney’s Fees
HB 2783 by Rep. John Smithee, R-Amarillo
This bill 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.

HB 2783 requires governmental bodies to foot the bill for requestors’ legal costs if the agency “voluntarily releases the requested information after filing an answer to suit.”

HB 2783 has yet to be referred to a House committee. 

Dead Suspect Cases / 552.108 Exception to Release
HB 3234 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, law enforcement materials do not have to be released until there is a pending investigation or unless there is a final court outcome. 

But there won’t be a final court outcome if a suspect in a case is deceased – a problem some newsrooms have run into over the years. 

For example, newsrooms haven’t had access to materials related to the mass shooting at a Killeen Luby’s restaurant in the 1990’s.   

Yet the same material is used to train law enforcement in Texas.  

HB 3234 has yet to be referred to a House committee. 

TPIA Records Layout Information
HB 3581 by Rep. Giovanni Capriglione, R-Southlake
This bill would require governmental bodies to release “record layout” information contained in spreadsheet and database records.

Newsrooms have encountered problems with requested data being released but the header used to identify the columns of information in a spreadsheet is not. In some cases it makes the information unusable for reporting purposes.  

In other cases spreadsheets are released in the form of a PDF rather than a searchable document.  This bill would address both issues.

HB 3581 has yet to be referred to a House committee. 

Use of Force Information
HB 4091 by Rep. Garnet Coleman, D-Houston
Getting law enforcement agencies to release “use of force” reports under the Texas Public Information Act has long been a challenge for journalists, who are readily met with claims of exemptions under both the personnel and investigation exemptions to the TPIA.

Use of force reports have been held to be administrative and not subject to the TPIA personnel exemption, yet the Attorney General continues to rule that departments can withhold the reports. 

This bill would address the problem.

HB 4091 has yet to be referred to a House Committee. 

Requestor Protection Act
HB 4144 by Rep. Chris Paddie, R-Marshall
Under current law, Texas governmental bodies cannot sue a TPIA requestor for making a request under the Act.  

Instead, the governmental body must sue the Texas Attorney General’s Office to prevent release of the information. 

Recently, the State Fair of Texas sued a law firm seeking records that its client believed were subject to the TPIA.  

The Fair does not believe it is a governmental body and therefore is not subject to the Act.  Rather than ignore the TPIA request for information, it sued the firm hoping to discourage further requests for information.  

HB 4144 says a Texas citizen should not be vulnerable to a lawsuit simply for asking for information they believe is covered by the TPIA.  

HB 4144 has yet to be referred to a House Committee.

Questions?  Contact TAB's Michael Schneider or call (512) 322-9944.

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