TAB’s Open Government Legislative Agenda Takes Shape
posted on 2.22.2021- Online Briefing for Members Friday, Feb. 26
Two of the Open Government bills TAB seeks to pass in the 87th Texas Legislature have already been filed and others are expected to be unveiled in the next few weeks. The regular deadline for Texas lawmakers to file legislation in the session is March 12.
TAB, along with the Freedom of Information Foundation of Texas, Texas Press Association, and several other Open Government advocate organizations, is part of the Transparent and Accountable Government (TAG) Coalition.
The group is seeking to pass about a dozen reforms aimed at curtailing government abuse of the Texas Public Information Act and improving the nearly 50-year-old governmental transparency law.
Station managers and newsroom staff can learn about the proposed improvements TAB’s other key advocacy goals for the 2021 Texas Legislature in our Statewide Legislative Briefing this Friday, Feb. 26 at 11 am.
The one-hour program will review TAB’s multiple Open Government proposals and key business development initiatives, as well as our efforts to protect a wide range of tax, regulatory and newsroom policies secured in previous sessions.
TAB member station staff can register for the event here
Initial Open Government Bills Filed
St. Rep. Giovanni Capriglione, R-Southlake, a longtime governmental transparency advocate, has already filed two of TAB-advocated reforms. A Senate companion bill to one of them was filed on Monday by St. Sen. Nathan Johnson, D-Dallas.
Skeleton Crews, Remote Work, and the Texas Public Information Act
HB 1416 by Rep. Giovanni Capriglione, R-Southlake
One badly needed reform exposed by the impact of COVID-19 on government operations is the so-called “skeleton crew” loophole in the TPIA. Governmental agencies have 10 business days to respond to a request for information under the TPIA. As many governmental agencies are working remotely, only skeleton crews may be onsite. Such skeleton crew workdays are not considered part of the 10 business day timeframe.
This bill clearly defines what constitutes a “business day” under the TPIA.
Searchable/Sortable Records
HB 1810 by Rep. Giovanni Capriglione, R-Southlake
SB 729 by Sen. Nathan Johnson, D-Dallas
To prevent data from being released in useless formats, HB 1810 requires that electronic public information be produced in a searchable and sortable format, such as an Excel spreadsheet, if such information is maintained in that manner and if a requestor asks for information in a searchable and sortable format.
Additionally, HB 1810/SB 729 clarifies that data dictionaries and record layouts that define what certain data fields are constitute public information subject to disclosure.
Requestors would also be able to obtain column-header information allowing them to make sense of the data they request from government entities.
Other Needed Reforms
TAB and our TAG Coalition partners also seek to amend the TPIA and other laws to prevent abuse and to make access governmental information easier.
Some these issues were brought to light but the impact of COVID-19 on government operations, but others are long-standing issues or were brought on by bad court decisions.
“Catastrophe Notice” Abuse
The last Legislature passed SB 494 by St. Sen. Joan Huffman, R-Houston, in response to Hurricane Harvey.
It allows government agencies to suspend responses to TPIA requests for information up to 14 calendar days by issuing a “catastrophe notice” to the Attorney General stating a temporary halt.
More than 75 governmental bodies have filed catastrophe notices stating they would not comply with Open Records rules during COVID-19 shutdowns.
Some filed multiple ongoing catastrophe notices, extending these periods well beyond the 14-day temporary period contemplated by the Legislature when it passed SB 494.
TAB and others believe these notices should not be used as excuses to ignore public information requests.
Nursing Homes / Assisted Living Facilities
During the COVID-19 outbreak, nursing homes and other long-term care facilities across the state refused to inform the public about COVID-19 cases at their facilities.
Many Texans were not informed when making vital choices about their loved ones.
As nursing homes became high-risk places for COVID-19, Texas stood out as a state with incredibly little transparency.
State health officials also refused to provide such information, although releasing the facilities’ identities and locations did not violate individual patient privacy.
The Texas Health and Human Services Commission refused to disclose the names and locations of senior care and other long-term care facilities where the virus appeared.
The Attorney General’s office later ruled that facilities must be identified.
Clarifying this in law will help prevent problems during future emergencies.
Procurement Measures
Government contracts always need public vetting, even in times of emergency.
In a quick and mostly secretive bidding process, however, MTX Group Inc. won a $295 million state contract to track Texans potentially infected with COVID-19.
Both Republican and Democratic lawmakers were incensed because the public did not receive sufficient notice about the awarding of the contract or transparency in the bidding process.
Government Contracts Online
The public’s ability to view government contracts is a basic right and helps citizens know how taxpayer dollars are spent.
Last session’s SB 943 by former Sen. Kirk Watson, D-Austin, updated the TPIA to ensure the essentials of public contracts are accessible to everyone.
Yet some governments continue to try to keep contract information secret.
Capriglione and St. Sen. Jane Nelson, R-Flower Mound, will seek to require posting more government contracts online.
Dates of Birth
Access to birthdates in public records was largely cut off by a 2015 regional appeals court ruling expanding a prior Texas Supreme Court decision in which dates of birth in public employees’ personnel files were declared private.
Since the ruling, confusion has abounded in the inability to verify the accuracy of information when dealing with common names.
More than 10,000 Attorney General rulings have now been issued allowing redaction of birthdates in various public records.
Knowing a birth date ensures accuracy in background checks by employers, financial institutions, and others; allows for the vetting of political candidates; identifies those with criminal records who are working with children; and provides verification for news reporting when there is a common name.
Required Response to TPIA Request for Information
Government agencies by law must provide public records to requestors promptly and without delay.
They have up to 10 business days to fulfill the request or to seek an attorney general ruling to withhold records.
There is currently no practical way to penalize agencies that do not respond to records requests in a timely manner or at all.
At a minimum, public officials should be required to notify requestors if there are no records responsive to the specific request, or if the governmental body has a previous Attorney General ruling allowing withholding of the information.
Simply ignoring such public records requests should not be an option.
Remote Meetings
Increasingly, governmental bodies hold virtual meetings online.
Texas Open Meetings Act provisions continue to apply, but some public officials are confused about how to ensure public access and participation.
For instance, those who want to make a public comment should not be required to attend in person if the rest of the meeting is virtual; and, accommodations need to be made so that there is call-in access for those who do not have adequate internet coverage.
Public officials must comply with TOMA when holding online meetings and create a forum that promotes public participation.
The public must have sufficient notice and access to government meetings with the ability to interact online.
Governmental bodies should ensure that all can participate by including a call-in phone number as well as a video link.
Extra burdens should not be placed on witnesses who want to make a public comment; a witness should not be required to appear in person when a meeting is being held remotely.
SB 639, a bill filed Feb. 10 by Sen. Jose Menendez, D-San Antonio, addresses some, but not all, of the Texas Open Meetings Act protections the TAG Coalition is seeking to fix this session.
Questions? Contact TAB’s Michael Schneider or call (512) 322-9944.
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