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Lawmakers pass key government transparency bills, including measures featuring Rep. Canales and Sen. Zaffirini, reports attorney Omar Ochoa - Titans of the Texas Legislature

FEATURED: Rep. Terry Canales, D-Edinburg, who also serves as Chair, House Committee on Transportation, reviews one of his legislative measures on Thursday, April 29, 2021, in his office at the Texas Capitol.

Photograph Courtesy REP. TERRY CANALES FACEBOOK

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Lawmakers pass key government transparency bills, including measures featuring Rep. Canales and Sen. Zaffirini, reports attorney Omar Ochoa

By DAVID A. DÍAZ
[email protected]

State lawmakers in May 2021 approved key government transparency bills in the Texas Legislature, including measures featuring Rep. Terry Canales, D-Edinburg, and Sen. Judith Zaffirini, D-Laredo, to protect and promote greater access to public records after some governments closed-off information during the COVID-19 pandemic, according to attorney Omar Ochoa.

Openness, accountability, and honesty define government transparency. In a free society, transparency is the government’s obligation to share information with citizens. It is at the heart of how citizens hold their public officials accountable.

https://ballotpedia.org/Government_transparency

Gov. Gregg Abbott signed both bills – Senate Bill 1225, cosponsored by Canales, and Senate Bill 930, authored by Zaffirini – in the final days of the 87th Texas Legislature, which wrapped up its 140-day regular session on Monday, May 31, 2021.

Both laws take effect on Wednesday, September 1, 2021.

“Senate Bill 1225 and Senate Bill 930, which carry the names of Valley legislators as the leaders of those measures, came about as a result of disputes during the past year involving the practice of governmental entities blocking the release of vital public safety and health information,” Ochoa explained. “These efforts are among the most recent of many examples of how our hometown state lawmakers are dedicated to the ideals of government transparency.”

Senate Bill 1225 by Sen. Joan Huffman, R-Houston, updates existing law to clarify (clear up) how governmental bodies can use the “catastrophe notice” provision of the Texas Public Information Act. Rep. Chris Paddie, R-Marshall, sponsored Senate Bill 1225 in the House of Representatives, along with Rep. Richard Raymond, D-Laredo, and Rep. Terry Canales, D-Edinburg.

Senate Bill 930 by Zaffirini – whose Senate District 21 includes Starr County – guarantees the public’s right to know about coronavirus and other communicable disease outbreaks in nursing homes and assisted living centers. Sen. Lois Kolkhorst, R-Brenham,co-authored the legislation, and Rep. Mayes Middleton, R-Wallisville, and Rep. Toni Rose, D-Dallas, cosponsored Senate Bill 930in the House of Representatives.

The Texas Public Information Act provides a mechanism for citizens to inspect or copy government records. It also provides that governmental bodies may withhold government records from the public in specific instances.

The Texas Public Information Act generally requires a governmental body to release information in response to a request for information. However, if a governmental body determines the information is excepted from disclosure under the Texas Public Information Act, then both the request and information at issue must be reviewed by the Open Records Division of the Office of the Texas Attorney General. The Open Records Division will issue a decision on whether the governmental body is permitted to withhold the requested information or must release the information to the requestor.

https://www.texasattorneygeneral.gov/open-government/members-public/overview-public-information-act

The author is the legislator who files a bill and guides it through the legislative process (also called the primary author).

A coauthor is a legislator authorized by the primary author of a bill or resolution to join in the authorship of the measure. Both the Senate and the house of representatives allow an unlimited number of coauthors on a bill or resolution. A coauthor must be a member of the chamber in which the bill was filed.

A cosponsor is a legislator who joins with the primary sponsor to guide a bill or resolution through the legislative process in the opposite chamber. A cosponsor must be a member of the opposite chamber from the one in which the measure was filed.

“Filed” refers to a measure that has been introduced into the legislative process and given a number.

A bill is a type of legislative measure that requires passage by both chambers of the legislature and action by the governor in order to become effective. A bill is the primary means used to create and change the laws of the state. “Bill” types include Senate and House bills, Senate and House joint resolutions, Senate and House concurrent resolutions, and Senate and House resolutions.

A legislative update, published on Monday, May 31, 2021by the Freedom of Information Foundation of Texas, provided the following details on Senate Bill 1225 and Senate Bill 930:

SENATE BILL 1225 BY HUFFMAN/PADDIE, RAYMOND, CANALES TO STOP ABUSES BY GOVERNMENTAL ENTITIES WHICH DELAY RELEASE OF PUBLIC INFORMATION FOLLOWING CATASTROPHES

Senate Bill 1225 specifies that governments are allowed a seven-day break from responding to information requests amid a catastrophe such as a hurricane, flood or epidemic if the disaster directly causes the government to be unable to comply with the public information law.

One seven-day extension of the initial suspension is permitted.

During the COVID-19 pandemic, some governments took multiple seven-day suspensions.

According to the bill analysis of Senate Bill 1225:

In the past, catastrophes, natural disasters, and other similar emergencies rendered it difficult or impossible for impacted governmental bodies to timely respond to Texas Public Information Act requests, either due to emergency work related to the catastrophe or, in some cases, because government offices were closed due to inaccessibility or damage.

Senate Bill 494 (86th Texas Legislature, 2019, Regular Session) codified a long-standing informal practice of allowing governmental bodies, on rare occasions, to temporarily suspend certain Texas Public Information Act provisions during a catastrophe.

Before the COVID-19 pandemic, the catastrophe notice provision of the Texas Public Information Act was rarely used. However, when pandemic-related closures began in March 2020, dozens of governmental bodies across Texas filed catastrophe notices.

Certain governmental bodies abused the temporary suspension process, requesting multiple, consecutive catastrophe notices. This allowed for roadblocks to information at a time when Texans most needed to ask questions and obtain information. While a temporary suspension of responding to TPIA requests may be necessary during a disaster, overuse of the catastrophe notice provision is not consistent with the spirit of the law.

Senate Bill 1225 will improve the Texas Government Code relating to the authority of a governmental body impacted by a catastrophe to temporarily suspend the requirements of the public information law with these changes:

• A catastrophe notice and suspension of the Texas Public Information Act should not be allowed unless the incident significantly impacts a governmental body and directly causes the inability of a governmental body to comply with requirements of the Act;

• A catastrophe does not apply to periods in which a governmental body is required to work remotely, but can still electronically access requested information and otherwise respond to Texas Public Information Act requests; and

• A catastrophe notice allows the suspension of Texas Public Information Act provisions once per catastrophe, with an optional one-time extension.

The following individuals representing themselves or organizations testified or registered in support, against, or on Senate Bill 1225 when the measure was considered in a public hearing on Tuesday, April 20, 2021, by the Senate Committee on Business and Commerce:

Testifying For:

Shelby Sterling, Policy Analyst who also provided written testimony, Texas Public Policy Foundation, Austin

Testifying On:

Jaie Ávila,Investigative Reporter (WOAI-TV), San Antonio

Registering For, But Not Testifying:

• Sarah Floerke Gouak, Lower Colorado River Authority, Austin
•Mike Hodges, Executive Director, Texas Press Association, Austin
•Linda Nuño, Phelobotomist, Self; Democratic Party, Austin
• LauraPrather, Self; Transparent and Accountable Government Coalition, Austin
• Michael Schneider, Vice President, Legislative and Regulatory Affairs, Texas Association of Broadcasters, Austin
• Kelley Shannon, Executive Director, Freedom of Information Foundation of Texas, Austin

Registering Against, But Not Testifying:

• Tammy Narváez, Deputy Director, Intergovernmental Affairs, Harris County Commissioners Court, Houston
•Melissa Shannon, Director of Governmental Affairs, Bexar County Commissioners Court, San Antonio

Registering On, But Not Testifying:

•Justin Gordon, Chief, Open Records Division, Office of Attorney General, Austin

A bill analysis is a document prepared for all bills and joint resolutions reported out of committee. A bill analysis may include background information on the measure, a statement of purpose or intent, and an analysis of the content of the measure.)

The bill analysis for Senate Bill 1225 is available online at:

https://capitol.texas.gov/tlodocs/87R/analysis/html/SB01225F.htm

SENATE BILL 930 BY ZAFFIRINI TO MAKE PUBLIC THE NAMES OR LOCATIONS OF NURSING HOMES OR SIMILAR FACILITIES IN WHICH RESIDENTS ARE DIAGNOSED WITH A COMMUNICABLE DISEASE, SUCH AS COVID-19

According to the bill analysis of Senate Bill 930, the new law makes it clear that, unless made confidential under other law, the name or location of a nursing home or similar facility in which residents have been diagnosed with a communicable disease – such as COVID-19 – and the number of residents diagnosed would not confidential and is subject to disclosure by state agencies or local health authorities under the Texas Public Information Act.

As the COVID-19 pandemic struck nursing homes and other long-term care centers beginning in spring 2020, residents and their loved ones sought answers about whether these facilities were safe. Many nursing homes were not forthcoming with information about coronavirus outbreaks. Family members, advocates, persons with disabilities and the elderly, and journalists asked state and local government officials which Texas facilities had experienced COVID-19 outbreaks, but they ran into information roadblocks.

Numerous Texas Public Information Act requests to the Texas Health and Human Services Commission in spring and summer 2020 did not immediately produce information. Instead, the Texas Health and Human Services Commission sought to block the release of data, arguing to the Texas Attorney General’s Office that state or federal medical privacy laws prevented revealing even the names and location of nursing homes and living centers with coronavirus outbreaks and statistical data for those locations.

Even after some requestors clarified that they were not seeking individual health information, only the identity of facilities where the illness had been detected, the information was still withheld from the public.

In July 2020, the Texas Attorney General’s Office ruled that the Texas Health and Human Services Commission must identify the facilities that had been impacted by COVID-19, and the Texas Health and Human Services Commission began posting the data on its website.

Separate Attorney General rulings, however, allowed local health authorities to withhold such information from the public under Section 81.046 of the Texas Health and Safety Code.

Senate Bill 930 clarifies that, unless made confidential under other law, the name or location of a nursing home or similar facility in which residents have been diagnosed with a communicable disease and the number of residents diagnosed is not confidential and is subject to disclosure by state agencies or local health authorities under the Texas Public Information Act.

Senate Bill 930 also changes current law relating to the disclosure of certain information regarding the occurrence of communicable diseases in residential facilities.

Dennis Baggett, Executive Vice President, Texas Press Association of Austin, provided the following written testimony on Senate Bill 930 before the House Committee on Human Services on Tuesday, May 4, 2021:

“The Texas Press Association strongly supports Senate Bill 930, which would assure Texans’ right to information about the transmission rate of communicable disease in long-term care facilities. Texans with loved ones in these facilities have been continually frustrated in our attempts to learn how many cases of COVID have been experienced in our loved ones’ facilities,” he stated.

“Access to such information is essential for those of us who make life-or-death decisions on behalf of our loved ones with dementia. It is also essential for journalists who report on these issues on behalf of the public,” Baggett continued. “We do not seek access to patient-specific information, but only for aggregate information about the frequency of cases. Without it, we must make life-or-death decisions for our loved ones in an information vacuum.”

The following individuals, including Baggett, represented themselves or organizations in testifying or registering in support, against, or on Senate Bill 930 when the measure was considered in a public hearing on Tuesday, March 23, 2021, by theSenate Committee on Health and Human Services:

Testifying For:

•Dennis Baggett, Executive Vice President, Texas Press Association, Austin
• Derek Hall, Publisher, Brenham Banner Press, Brenham

Registering For, But Not Testifying:

•Patricia Ducayet, Long Term Care Ombudsman, Office of the State Long Term Care Ombudsman, Austin
• Anne Dunkelberg, Associate Director, Every Texan, Austin
• Amabda Fredriksen,AARP, Austin
• ThomasParkinson, Self, San Antonio
•LauraPrather, Laura, Self, Freedom of Information Foundation of Texas and Texas Association of Broadcasters, Austin
• Michael Schneider, Vice President/Legislative and Regulatory Affairs, Texas Association of Broadcasters, Austin
• Kelley Shannon, Executive Director, Freedom of Information Foundation of Texas, Austin

Registering On, But Not Testifying:

• Justin Gordon, Chief, Open Records Division, Office of Attorney General

The bill analysis for Senate Bill 930 is available online at:

https://capitol.texas.gov/tlodocs/87R/analysis/html/SB00930F.htm

RESULTS ON OTHER KEY PUBLIC INFORMATION ACT PROPOSALS DURING 87TH TEXAS LEGISLATURE

“We are certainly glad lawmakers made these important improvements to Texas open government laws. And a number of legislators worked hard to pass additional transparency bills in response to the pandemic, but they did not make it across the finish line,” said Kelley Shannon, Executive Director of the Freedom of Information Foundation of Texas, one of 20 diverse organizations in the Transparent and Accountable Government Coalition.

The Texas House of Representatives approved legislation addressing the impact of remote work and “skeleton crews” by government employees on the Public Information Act; ensuring better citizen access to virtual public meetings; requiring governmental bodies to respond to records requests or face sanctions; restoring access to dates of birth in most public records; and making it clear requestors can obtain government records in searchable-sortable formats.

The Senate did not act on those measures.

Legislation is a proposed or enacted law or group of laws.

“The House was tremendously supportive of sweeping reform to the open government and transparency laws brought forth by the bipartisanTransparent and Accountable Government Coalition only to have the majority of the agenda stymied in the Senate. We are hopeful Gov. Abbott will see the importance of these measures and add them to the special session call. Texans have the right to know how their government operates and bad precedent set during the pandemic continues to thwart average citizens from obtaining this critical information,” said Laura Prather, Co-Chair of the Freedom Of Information Foundation’s legislative committee.

In addition to Prather advocating for proactive open government measures, Arif Panju, President, Freedom of Information Foundation, and others succeeded during the 87th Texas Legislature in opposing bills that would have severely weakened the Texas Public Information Act.

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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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