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TAB’s Open Government Reforms on Agenda as Lawmakers Return

If recent trends continue, lawmakers will file about 7,000 bills and resolutions during the regular session of the 88th Texas Legislature.  

Typically, however, only a small percentage of bills filed (15-20 percent) make their way to the governor’s desk in their original form or as part of other legislation.  

TAB is hopeful that much needed reforms to Texas’ Open Government laws will be amongst those measures that “go the distance.”

The Texas Sunshine Coalition, a diverse that includes TAB and other longtime Open Government partners such as the Texas Press Association and Freedom of Information Foundation of Texas, are working this session to strengthen the Texas Public Information Act (TPIA).

The coalition is focusing its legislative efforts to improve several areas of concern related to the TPIA, one of the primary tools of Texas newsrooms for newsgathering. 

Texas citizens have a right to know how public officials are conducting business and how taxpayer dollars are spent. 

Contracting Transparency

Although the Legislature passed Senate Bill 943 in 2019 to increase public access to government contracts following a troublesome Texas Supreme Court ruling known as Boeing, some governments still withhold contracting information, including “super public” information such as the dollar value and descriptions of goods and services. 

Even when governments do provide such information, they often defer to private companies or seek attorney general rulings to withhold or delay its release. 

Some even continue to cite Boeing

TAB’s goal is to close these TPIA loopholes. 

The Coalition has drafted legislation to address the issue and broadcasters should expect House and Senate bills to be filed soon.

TPIA Business Days, Administrative Issues

During the pandemic, many governmental entities declared they were closed for business when it came to TPIA requests, even though they continued to operate with a full staff of employees working remotely and many public records were available electronically. 

Some governments stated they were operating on a “skeleton crew” and ignored TPIA requests for months on end. 

TAB and others seek to correct this problem by clearly defining what constitutes a “business day” under the Act. 

Open Government advocates also seek to ensure that governments honor their obligation to respond to all requestors whether working remotely or not. 
St. Sen. Judith Zaffirini, D-Laredo, has filed SB 43 and SB 44 to address these issues and a House bill should be filed soon.

Searchable-Sortable Records

Many governmental entities store public information in spreadsheets but convert these documents to PDF images before producing them to the public. 

This conversion is unnecessary and only makes it more difficult to search and sort information. 

For years, the Texas Attorney General’s Office has recommended producing documents in their original format, but some governments continue to resist this recommendation. 

TAB and others seek to codify existing Attorney General’s guidance into law. 

Sen. Zaffirini has filed SB 45 to address the issue, and a House bill is expected to be filed soon.

Dates of Birth Access and Verification

In some public records, disclosing dates of birth (DOBs) helps ensure that individuals can be properly identified. 

This is particularly true in criminal justice documents, such as arrest records, when common names are involved. 

Disclosing DOBs on applications filed by candidates for public office also helps the public properly identify and better understand who is on the ballot. 

TAB supports restoring access to dates of birth in criminal justice and candidate public records to help ensure accuracy in newsgathering.  

Zaffirini has filed SB 46 to address the issue and St. Rep. Todd Hunter, R-Corpus Christi, is expected to file a House bill on the issue soon.

Attorneys’ Fees

The TPIA includes a provision stating that “the court shall assess costs of litigation and reasonable attorney fees incurred by a plaintiff who substantially prevails” in a mandamus suit. 

A plaintiff’s ability to be awarded attorneys’ fees is key to enforcement of the TPIA.  

However, a governmental body is permitted to produce requested records right before a judge signs an order awarding attorney’s fees and avoid paying those fees.  

TAB supports legislation amending the TPIA to explicitly include the awarding of attorneys’ fees when a governmental body decides to voluntarily release the records after a suit has been filed. 

This policy correction mirrors changes made in 2007 to the federal FOIA law, upon which the TPIA is modeled.  

Expect House and Senate bills to be filed soon using draft legislation prepared by the Texas Sunshine Coalition.

Law Enforcement Transparency 

More than any other Texas event in recent memory, the mass shooting at a Uvalde school in 2022 has made clear more transparency is needed to keep law enforcement accountable to the public which funds it. 

St. Rep. Joe Moody, D-El Paso, has refiled HB 30 from the 2021 legislative session, a bill which addresses several issues involving the law enforcement exception in the TPIA, Section 552.008 of the Texas Government Code. 

Importantly, the bill takes on the TPIA’s so-called “dead suspects loophole.” 

Currently, law enforcement can shield a wide variety of information in pending investigations and in closed cases that do not result in a conviction. 

Since the Uvalde school shooting suspect was killed by authorities, the case will not result in a conviction, yet the loophole was used to prevent release of information related to this criminal case. 

The victims’ families and the public were kept in the dark for months after that tragic day.  

Later, leaked information and video showed that law enforcement’s incident response did not match the official version of events.  

This exception in the TPIA has also been used to prevent release of information in incidents in which an arrested individual died in police custody.

But HB 30 would not stop there. 

It also requires the Texas attorney general to maintain an Internet accessible database of reports of officer-involved injuries or deaths of citizens and officer injuries and/or deaths. 

It adds to the list of information in an officer's personnel file that must be released such as use-of-force reports, incident reports, extraordinary occurrence reports, emergency action reports, Taser-use reports, or any other report concerning the use of force or firearms by that officer or witnessed by that officer. 

Reports on incidents in cases in which physical or property damage was caused by a law enforcement vehicle, called fleet occurrence reports, would also be made public. 

The bill also makes public a list of other information such as basic information related to a criminal investigation; a search warrant; probable cause affidavit for search warrant; arrest warrant; arrest report; incident report or accident report; a mug shot; reports of an officer-involved shooting or discharge of a firearm; reports related to an officer's use of force resulting in death or serious bodily injury; reports related to the death or serious injury of an arrestee or detainee while in custody.  

It also requires disclosure of disciplinary record information.

Finally, HB 30 would mandate the release of more body/dash or other law enforcement camera video.  

Jan. 31 TAB Legislative Day

Rep. Moody is slated to talk about HB 30 with broadcasters at TAB’s Jan. 31 Legislative Day.  

He’ll be joined in that discussion by Laura Prather, a partner with TAB Associate member law firm Haynes Boone, LLP, who has drafted much of the Open Government legislative fixes that TAB and the Texas Sunshine Coalition are pursuing in the current legislative session.

Station staff can register for TAB Legislative Day here.   

Attendees will be briefed on TAB’s efforts to improve the Texas Public Information Act (TPIA) by addressing bad policy and adverse court rulings that negatively impact newsgathering. 

TAB’s panel of investigative journalists will discuss the hurdles and roadblocks Texas newsrooms are encountering because of TPIA issues. 

Panelists include Jaie Avila, WOAI-TV San Antonio; Joe Ellis, KVUE-TV Austin; and Josh Hinkle, KXAN-TV Austin.

TAB will no doubt spend time this session defending hard-fought protections won by TAB and others that affect Texas newsgathering.

Stacy Allen, an attorney with TAB’s longtime Texas legal counsel, Jackson Walker, LLP, will provide context on what TAB’s defensive efforts have looked like in recent legislative sessions.    

The event starts at 10 am with briefings on these and other issues.  

The highlight of the day is the “no-speech luncheon” where lawmakers are seated with their constituent broadcasters. 

This format fosters discussion of how broadcasters and lawmakers can jointly advance their communities, as well as for broadcasters to make their case for passage of our Open Government reforms. 

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

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