TAB Advocacy Reflected in Law: Open Records, Anti-SLAPP Changes in Effectposted on 9.03.2019
Texas broadcasters can see the early fruit of TAB’s state lobbying efforts earlier this year as two key bills took effect Labor Day week-end along with hundreds of others. Closing the so-called “custodian loophole” in the Texas Public Information Act and protecting the core free speech protections in the Texas Citizen Participation Act were among the industry’s highest priorities in the 2019 legislative session.
SB 944 closed the so-called “custodian loophole” that has prevented newsrooms and citizens from accessing public information stored on private devices owned by elected officials and public employees. A 2013 TPIA change said public business, even if it is conducted on private electronic devices or in private email accounts, is public record, but it provide local government the tools to compel current or former employees to turn over that material to satisfy TPIA requests for such information.
Bill author Sen. Kirk Watson, D-Austin, and House sponsor Rep. Giovanni Capriglione, R-Southlake, first sought to fix the problem in the 2015 Legislature, but an obstinate House committee chairman thwarted their efforts that year and again in 2017.
The change should make it easier for Texas newsrooms to hold elected officials and public employees accountable for their work on taxpayer-funded business, but as KRLD-AM Dallas-Fort Worth reported last week, the new law has panicked some in local government as several public employee groups have issued advisories to their membership overstating the impact of the law.
Simply put, SB 944 does not apply to any private text message or email on a private device that does not concern public business.
Messages that do pertain to public business, however, must be forwarded to the custodian of records for that governmental body and archived for TPIA requests for that information.
TAB expects some hiccups as the law goes into effect, but prudent public employee practices using privately held devices will eventually take hold.
Anti SLAPP Law Rewrite
HB 2730 by Rep. Jeff Leach, R-Plano, a revamp of what is officially known as the Texas Citizen Participation Act, also went into effect on Sunday.
At the start it was perceived as an attempt to gut the state Anti-SLAPP law’s free speech protections for Texans speaking out on matters of public concern, and in some respects turned into a stronger law for members of the public in general and for journalists and content providers.
Leach and Rep. Joe Moody, D-El Paso, who introduced a bill that took a more surgical approach to updating the law, worked with a broad range of Free Speech advocates that included TAB, judges, trial lawyers, tort reform advocates and citizens groups to revise HB 2730 to address a plethora of concerns.
Chief among them was the fact that the anti-SLAPP law was being asserted in cases to which it was never intended to apply.
In some ways, the TCPA now contains stronger protections for media entities that report on critical speech that involves matters of public concern, a win for Texas journalists and media interests.
Government Contract Transparency
It will be another four months before newsrooms see the fruit of the other major change to the TPIA enacted by the 2019 Texas Legislature, SB 943.
The Watson-Capriglione bill addresses the availability of government contract information and goes into effect Jan. 1, 2020.
SB 943 offsets much, but not all, of the damage done by the June 2015 Texas Supreme Court decisions in Boeing and Greater Houston Partnership that have prevented taxpayers from seeing how taxpayer dollars are being spent.
Questions? Contact TAB’s Michael Schneider or call (512) 322-9944.
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