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Senate Bill 494, supported by Valley legislative delegation, designed to strike balance between open government laws and abilities of elected leaders in Texas to save lives, reports Omar Ochoa 1

Featured, from left: Rep. Terry Canales, D-Edinburg, who also serves as Chairman, House Committee on Transportation; Erika Canales; Miguel Guerra; former longtime Edinburg Mayor Joe Ochoa; and Edinburg City Attorney Omar Ochoa. The group was participating in the third annual Christmas Bash & Toy Drive, hosted by Congressman Vicente González, D-McAllen, and his wife, Lorena Sáenz González, on Monday evening, December 2, 2019, at the Embassy Suites in McAllen. 

Photograph By ISMAEL GARCÍA

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Senate Bill 494, supported by Valley legislative delegation, designed to strike balance between open government laws and abilities of elected leaders in Texas to save lives, reports Omar Ochoa

By DAVID A. DÍAZ
Legislativemedia@aol.com

A new Texas law, which went into effect on Sunday, September 1, 2019, allows elected leaders to more rapidly respond to natural catastrophes and other emergencies while still protecting transparency in government, according to Edinburg City Attorney Omar Ochoa.

Senate Bill 494, authored by Sen. Joan Huffman, R-Houston, and supported by the Rio Grande Valley state legislative delegation, “strike(s) a balance between open government requirements and the ability of government officials to respond to natural disasters and other emergencies. Government transparency is critical, but emergency situations create exigent (urgent) circumstances requiring redirection of resources to save lives,” according to the House Research Organization.

The House Research Organization is the nonpartisan research arm of the Texas House of Representatives.

“The Edinburg City Council, which includes the mayor, has championed transparency in government, while always being prepared to use all available resources to save lives, rescue people, and protect homes and businesses, including during hurricanes and tropical storms,” said Ochoa. “As a result of Senate Bill 494, our elected city leadership can be even better prepared to respond to public dangers, and do so with the advanced knowledge of all the people they serve.”

For decades, Edinburg’s city leadership, just like the constituents they serve, have been strong supporters of the people’s right to know what their local city government is doing, said Ochoa. 

“From publicizing in advance, then recording, broadcasting, and saving the videos of the public meetings of the Edinburg City Council and its jobs-creation arm, the Edinburg Economic Development Corporation, to making easily available the full agenda packets of those public sessions, anyone can know what their city government is planning to do, and has done, in the name of its citizens,” he emphasized.

Those government transparency actions were taken without being required to do so by any state law, the City of Edinburg, through its website, https://cityofedinburg.com, features the full agenda packets of the Edinburg City Council. The full agenda packets of the Edinburg Economic Development Corporation are available at https://edinburgedc.com/agendas/.

“Often, the city’s agenda meeting packets are hundreds of pages in length, but any person can see all of the information and materials that are being reviewed, discussed, and proposed to be acted upon by the mayor and city councilmembers,” Ochoa noted. “Just as important, through the Internet, there is no charge to anyone to access this public information.” 

Senate Bill 494 revised requirements in Government Code sec. 551.045 on exceptions to open meetings requirements in certain emergency situations. The bill allows a governmental body to temporarily suspend requirements in the Texas Public Information Act (Government Code ch. 552) on the handling of public information requests during certain emergencies, according to the House Research Organization bill analysis.

Other key aspects of this law, according to the House Research Organization bill analysis, follow:

• The new state law created as a result of Senate Bill 494 allows “county commissioners, city councils, and other governmental bodies to more quickly communicate during a disaster by lowering the requirement for posting notice of a meeting to deal with the disaster from two hours to one hour. The news media would be given the one-hour notice, allowing time for them to cover the meeting,” the House Research Organization bill analysis noted; and

• Allowing a governmental body to suspend requirements to respond to public information requests during a catastrophe would help local officials prioritize the safety and well-being of their constituents. Government buildings, equipment, and records can be damaged during a flood or other severe weather events, making it difficult to comply with public information requests. The bill would create a process for a one-week suspension, which could be followed by a second one-week suspension.

Open meetings 

Senate Bill 494 decreases from at least two hours to at least one hour the posting time for notice of an emergency meeting or emergency addition to an agenda of a governmental body in an emergency or when there is an urgent public necessity. The notice or supplemental notice must concern a meeting to deliberate or take action on the emergency or urgent public necessity.

The bill specifies that an emergency or urgent public necessity exists only if immediate action is required
of a governmental body due to an imminent threat to public health and safety or a reasonably unforeseeable situation, including certain natural disasters, power or communication facilities failures, or certain acts of lawlessness or violence.

The special notice of an emergency meeting or addition of an emergency item to an agenda must be given to the news media at least one hour before the meeting is convened.

Public information

Senate Bill 494 establishes a period during which a governmental body may suspend the requirements of the Texas Public Information Act. The requirements do not apply to a governmental body during the suspension period if the body is currently impacted by a catastrophe and complies with the bill.

The bill defines “catastrophe” to mean a condition or occurrence that interferes with the ability of a governmental body to comply with public information requirements, including certain natural disasters, power or communication facilities failures, or certain acts of lawlessness or violence.

A governmental body that elects to suspend public information requirements must notify the Office of the Attorney General that it is impacted by a catastrophe and has elected to suspend the requirements during an initial suspension period. A governmental body must provide public notice of the suspension in a place readily accessible to the public and in each other location, the governmental body is required to post open meeting notices.

Supporters said

Senate Bill 494 would strike a balance between open government requirements and the ability of government officials to respond to natural disasters and other emergencies. Government transparency is critical, but emergency situations create exigent circumstances requiring redirection of resources to save lives. The bill would allow local governmental bodies to more quickly communicate during a disaster by easing the requirement for posting notice of a meeting. The news media would receive the one-hour notice, allowing time for them to cover the meeting.

Allowing a governmental body to suspend requirements for responding to public information requests during a catastrophe would help local officials prioritize the safety and well-being of constituents. 

Government buildings, equipment, and records can be damaged during a flood or other severe weather events, making it difficult to comply with requests. The involvement of the attorney general in monitoring local officials’ open government requirements during an emergency would protect against possible abuses.

While some have said the bill would broaden the circumstances under which a meeting could be considered an emergency by listing a variety of possible events, the current statutory language provides more latitude because it does not define what constitutes a “reasonably unforeseeable situation.” The listing of events would give context to the magnitude of an event that could trigger the bill’s provisions.

Critics said

Senate Bill 494 could hamper the ability of the news media to provide critical information to the public. Local officials have sufficiently broad authority to respond to emergency conditions under current law, which allows for a two-hour posting of a public meeting during an emergency. Current law also provides flexibility on deadlines for public information requests when government offices are closed.

FREEDOM OF INFORMATION FOUNDATION OF TEXAS

The Freedom of Information Foundation of Texas strives to ensure that the public’s business is conducted in public and protects the liberties of free speech and press guaranteed by the First Amendment.

They assist individual citizens, journalists, and government officials through educational seminars, an annual conference, and a speaker bureau. They also file briefs in important legal cases addressing open government and freedom of speech and press. 

The Foundation’s FOI Hotline connects Texans with volunteer attorneys who explain open government laws. Their Light of Day project teaches college students how to use public records in their reporting. They are a non-profit 501(c)3 organization.

According to the Texas Freedom of Information Foundation of Texas, two major state laws in Texas help promote and protect the people’s right to know about the activities of their governments and its elected and appointed leaders.

Texas Public Information Act

Covered Entities

The Texas Public Information Act applies to all governmental bodies, including all boards, commissions, and committees created by the executive or legislative branch. It also may apply to a body that is supported by public funds or that spends public funds. Private organizations that hold records for governmental bodies also are covered. However, private individuals and businesses are not covered even though they supply goods or services through a government contract.

Types of Information

Public information refers to information collected, assembled, produced or maintained in the course of transacting public business. It may be on paper or film or in electronic communications such as emails, Internet postings, text messages or instant messages.

Exceptions

Some information is not open to the public. These types of information are listed as exceptions in the Texas Public Information Act. They include some information in personnel records, pending litigation, competitive bids, trade secrets, real estate deals and certain legal matters involving attorney-client privilege. Attorneys’ fees paid by a governmental body are generally public.

Law Enforcement

Generally, the front page of a police report is public. Records that would hinder the investigation or prosecution of a crime if they are released are exempt from disclosure.

The Judiciary

Information collected and maintained by the judiciary is not covered by the Texas Public Information Act. That information is governed by public access rules set by the Texas Supreme Court and other applicable rules and laws.

Making a Request

Filing a request under the Texas Public Information Act is as simple as asking the government agency in writing for the desired information. The request can be made through a letter or via email or fax. It does not need to contain any particular language, but it’s important to be clear. Try to be specific. This will help produce the information that is sought and can eliminate the need later for narrowing down a request that is too broad. The governmental body is not allowed to ask why the information is being requested.

Charges

A governmental body or agency can charge for copies of the information, but the fee must be reasonable and cannot be used to discourage someone from asking for information. The requester is entitled to an itemized bill if the charge is more than $40. A governmental entity can also waive copying charges. For more information, see the Texas Cost Rules tab in the Resources section of the website for the Freedom of Information Foundation (http://foift.org). To avoid charges, the requester can ask to view the records in person on the premises of the governmental body.

Withholding Information

Public information is supposed to be released “promptly.” There is a misconception that a governmental body or agency has 10 days to release information. The 10-day mark is the deadline for a governmental body if it contends the information is not public, to ask for an attorney general’s decision allowing it to withhold the records. (Texas’ open records law is stronger than those in many other states in that if a governmental entity wants to withhold information, it has to ask the attorney general for permission to do so.) After a ruling is sought, the attorney general then decides within 45 days. The person making the original request can also offer written comments to the attorney general. If a governmental body fails to seek an attorney general decision in time, the information is presumed to be public.

Appealing an Open Records Decision

When the attorney general’s office agrees with a governmental body that information can be withheld from the public, the person making the original request has the option of filing a lawsuit in state district court to attempt to have the information released.

Texas Open Meetings Act

The Texas Open Meetings Act is detailed in Chapter 551 of the Government Code. It states that governmental bodies must hold open meetings unless there is an authorized reason for a closed session, also known as an executive session.

Key provisions of the act are as follow:

Covered Entities

Governing boards, commissions, agencies and other bodies created within the executive and legislative branches of government are subject to the Texas Open Meetings Act. Commissioners courts, city councils, school boards and certain nonprofit corporations providing public services or spending taxpayer money are among the entities covered. Certain property owners’ associations also are subject to the law.

Quorum

A quorum refers to a majority of members of a governing body unless a quorum is defined differently by applicable law or rule or charter of the body. A quorum must be present for the body to take action.

Posting of Notice

The governmental body must give the public notice of the date, time, place, and subject of an upcoming meeting. The notice must be posted in a place readily accessible to the general public at all times at least 72 hours before the meeting. In case of an emergency or “urgent public necessity,” a meeting notice or addition to a meeting agenda may be posted at least two hours prior to the meeting. The governmental body must clearly identify the emergency.

Other Exceptions to Posting Law

Boards or commissions with statewide jurisdiction must have their meeting notice posted on the Internet by the secretary of state at least seven days before a meeting. Committees of the Texas Legislature are not subject to the meeting notice rules above. Their rules are set by the Texas House and Senate.

Closed Sessions

Closed, or executive, sessions may be held by a governmental body in certain situations. Executive sessions are permitted when a body is meeting with its attorney on litigation or a settlement offer; deliberating personnel matters; deliberating the purchase or lease of property; discussing certain financial contract negotiations, or discussing deployment of security devices. Several other exceptions to open meetings are also contained in the Texas Open Meetings Act.

Deliberations Between Meetings

Under a new provision of the act that took effect Sept. 1, 2013, members of a governing body are allowed to communicate with one another about public business between meetings if they do so in writing and on a publicly accessible online message board. The message board must be prominently displayed and easy for the public to find on the government entity’s website. Officials may not take action on the message board. That must wait for a posted meeting.

Video Conferencing

The Texas Open Meetings Act now allows for members of a governmental body to attend a public meeting via a video conference call. The head of the board or commission must be physically present in the designated meeting place and the public must be given access to that meeting space. The public must be able to witness the comments and actions of those officials attending the meeting remotely via audio and video equipment and be able to participate via videoconferencing just as they would at a traditional public meeting.

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For more on this and other Texas legislative news stories that affect the Rio Grande Valley metropolitan region, please log on to Titans of the Texas Legislature (TitansoftheTexasLegislature.com).

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