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Where Things Stand – An update on TAB’s 2017 Newsroom Legislative Agenda

With six weeks left in the 85th Texas Legislature, time is running short to get filed House bills heard and voted out of committee before House bill legislative deadlines start to kick in.

The Texas legislative process is set up, in many ways, to kill bills rather than pass them.

Typically, under a quarter of the bills filed in any session of the Texas Legislature will actually make it to the governor’s desk for action.

Built into the session’s schedule are a series of House committee and calendar deadlines that will end the forward path of House and Senate measures.

The first such deadline is May 8, a little more than three weeks from now.

If a House bill is not voted of committee by that date, it’s dead.

As a practical matter, however, the death of a House bill still in committee will occur before then, typically the last week of April.

That’s because of the time needed to report a bill out of committee and to get it to either the House Calendars Committee or House Local and Consent Calendars Committee and on to a regular House calendar printed by May 9.

Local and consent calendar bills have a little more time, but not much.

There will be many bills competing for one of the last coveted spots on a House regular calendar and most will not make the cut.

Deadlines for action on House bills on a House calendar kick in next.

After that, the cycle repeats with Senate bills in the House, starting with May 20, the deadline for Senate bills to clear House committees.

Top two priority bills have cleared the Senate

The Senate versions of TAB’s top two newsroom legislative priorities were received in the House on March 29 are awaiting a referral to House committee, likely the Government Transparency and Operations Committee.

One bill cleared the Senate with unanimous support, the other with votes from all but three of the 31 members. 

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, is awaiting a hearing in the House Government Transparency and Operations Committee. 

SB 408, also by Watson, 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. 

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, is in the House Government Transparency and Operations Committee awaiting a hearing. 

The other top legislative priorities

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

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 is awaiting a hearing in the House Government Transparency and Operations Committee. 

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 is set for hearing this week in the Senate Business and Commerce 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 is awaiting a hearing in the House Government Transparency and Operations 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 was approved by the House Government Transparency and Operations Committee last week and is now looking for a date on a House calendar.

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.

Neither of these bills have yet to get a hearing in their respective committees.

Additional newsroom-related legislation

While the bills above comprise the TAB newsroom legislative agenda, there are other newsroom related bills that were filed this session.

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. 

HB 2328 was approved by the House Government Transparency and Operations Committee last week and is now looking for a date on a House calendar.

SB 1347 is set for hearing this week in the Senate Business and Commerce 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 is set for hearing this week in the House Judiciary and Civil Jurisprudence 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 is awaiting a hearing in the House Government Transparency and Operations 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 is awaiting a hearing in the House Government Transparency and Operations 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 is awaiting a hearing in the House Homeland Security and Public Safety 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 is awaiting a hearing in the House Government Transparency and Operations Committee. 

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

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