FEATURED: Gov. Greg Abbott, appearing on Thursday, September 9, 2021, addressing physicians, nurses, other medical professionals, and leaders with DHR Health, emergency medical services personnel from South Texas, and the Valley and state news media at the Edinburg Conference Center at Renaissance.
Photograph By ANTHONY ACOSTA
Gov. Abbott signs into law two new Texas government transparency measures – led by Sen. Zaffirini, Rep. Canales, respectively – which addressed public records problems that arose as a result of COVID-19, reports Omar Ochoa
Two new Texas transparency laws – one by Sen. Judith Zaffirini, D-Laredo/Starr County, and another one by Rep. Terry Canales, D-Edinburg – addressed public records problems that arose during the COVID-19 pandemic, took effect on Wednesday, September 1, 2021, reports attorney Omar Ochoa.
Public records refer to information that has been filed or recorded by public agencies, such as corporate and property records. Public records are created by the federal and local government, (vital records, immigration records, real estate records, driving records, criminal records, etc.) or by the individual.
Both measures were signed into law on that date by Gov. Greg Abbott.
According to the Freedom of Information Foundation of Texas:
• Senate Bill 930 by Sen. Judith Zaffirini, D-Laredo, and Rep. Mayes Middleton, R-Wallisville, ensures that governmental entities must release information on COVID-19 and other communicable disease outbreaks in nursing homes and assisted living facilities.
The names and locations of the facilities must be made available to the public. However, individual patient information will be protected from release.
Zaffirini is the author of Senate Bill 930. As an author, she is the legislator who filed the bill and guided it through the legislative process (also called the primary author).
A bill is a type of legislative measure that requires passage by the Texas Senate and the Texas House of Representatives 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.
“Filed” is used to refer to a measure that has been introduced into the legislative process and given a number.
Senate Bill 1225 by Sen. Joan Huffman, R-Houston, and Rep. Chris Paddie, R-Marshall, Rep. Richard Raymond, D-Laredo, and Canales make it easier to understand the “catastrophe notice” provision of the Texas Public Information Act to prevent abuse of the law during a time of emergency.
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.
During the COVID-19 pandemic, some governments submitted multiple catastrophe notices with the Texas attorney general, claiming they didn’t have to respond to open records requests for weeks-on-end. As a result of Senate Bill 1225, the law was clarified to note that only one seven-day pause in replying to Texas Public Information Act requests, and possibly one seven-day extension, are allowed per emergency under the catastrophe notice provision.
Paddie, Raymond, and Canales were sponsors of Senate Bill 1225.
As sponsors, they were the legislators who guided the bill through the legislative process in the House of Representatives after the bill had passed the Texas Senate.
“With these two new state laws, and with numerous other legislative measures approved earlier this year, our Valley legislators continue to help lead efforts to protect the public’s right to know about what Texas government is doing in the name of the people, including and especially during the time of threats to public health,” Ochoa said.
Senate Bill 1225 covers cities, counties, school districts, regional governing bodies, colleges and universities, state agencies, boards, and commissions – even statewide elected officials, the governor’s office, and the Texas Legislature – by guaranteeing the people’s access to public documents, he said.
“This is known as ‘government transparency’, and this is one of the guiding principles of our Valley legislators in the Texas Senate and in the Texas House of Representatives,” Ochoa said.
Ballotpedia, which is a nonprofit and nonpartisan online political encyclopedia founded in 2007 that covers American federal, state, and local politics, elections, and public policy, explains the concept of government transparency:
• 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.
• Governments exist to serve the people. Information on how officials conduct public business and spend taxpayers’ money must be readily available and easily understood. This transparency allows good and just governance.
Texas Government Code, Chapter 552, gives any individual the right to access government records; and an officer for public information and the officer’s agent may not ask why you want them. All government information is presumed to be available to the public. Certain exceptions may apply to the disclosure of the information. Governmental bodies shall promptly release requested information that is not confidential by law, either constitutional, statutory, or by judicial decision, or information for which an exception to disclosure has not been sought.
More details on Senate Bill 930 (communicable disease outbreaks in nursing homes and assisted living facilities) and Senate Bill 1225 (making it easier to understand) the “catastrophe notice” are provided in a separate bill analysis by the Senate Research Center.
The Senate Research Center provides quality, specialized, objective research and information to the Texas Senate and Office of the Lieutenant Governor.
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.
A bill analysis is composed of three sections: Author’s/Sponsor’s Statement of Intent; Rulemaking Authority; and Section-by-Section Analysis.
Author’s/Sponsor’s Statement of Intent
This section contains three segments: a statement of current law, the problem which initiated the legislation, and how the bill changes the law to solve the problem.
This section explains which state-level governmental entity has been given the authority to make rules, on what subject, in which section of the bill, and in which section or article of the law it will appear.
This is a summary of proposed changes to each section or article of the law which eventually went into effect on Wednesday, September 1, 2021.
These are broken up into sections in a bill and analyzed accordingly.
Zaffirini/Senate Bill 930
Author’s/Sponsor’s Statement of Intent
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 the 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 explains 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 changed the old law relating to the disclosure of certain information regarding the occurrence of communicable diseases in residential facilities.
This bill does not expressly grant any additional rulemaking authority to a state officer, institution, or agency.
Section By Section Analysis
SECTION 1. Amends Section 81.046(b), Health and Safety Code, to provide that reports, records, and information relating to cases or suspected cases of diseases or health conditions are not public information under Chapter 552 (Public Information), Government Code, and are prohibited from being released or made public on subpoena or otherwise except as provided by certain sections, including Section 181.060. Makes non-substantive(having no significant impact) changes.
SECTION 2. Amends Subchapter B, Chapter 181, Health and Safety Code, by adding Section 181.060, as follows:
Sec. 181.060. INFORMATION REGARDING COMMUNICABLE DISEASES IN CERTAIN FACILITIES.
(a) Defines “communicable disease,” “facility,” and “resident”.
(b) Provides that protected health information in Chapter 181 (Medical Records Privacy) does not include information that identifies the name or location of a facility in which residents have been diagnosed with a communicable disease or the number of residents who have been diagnosed with a communicable disease in a facility.
(c) Provides that the information described by Subsection (b), unless made confidential under other law, is not confidential and is subject to disclosure under Chapter 552, Government Code.
SECTION 3. Effective date: September 1, 2021.
Canales, Paddie, Raymond/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 (in 2019) 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.
(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.)
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 Texas Public Information Act requests may be necessary during a disaster, overuse of the catastrophe notice provision is not consistent with the spirit of the law.
During the COVID-19 pandemic, some governments filed multiple catastrophe notices with the Texas attorney general, claiming they didn’t have to respond to open records requests for weeks on end. The law was clarified to note that only one seven-day pause in replying to Texas Public Information Act requests, and possibly one seven-day extension, are allowed per emergency under the catastrophe notice provision.
Senate Bill 1225 changed the Texas Government Code to specify that:
SECTION 1. Amends (changes) Section 552.233, Government Code, as added by Chapter 462 (S.B. 494), Acts of the 86th Legislature, Regular Session, 2019, as follows:
(a) Provides that, in Section 552.233 (Temporary Suspension of Requirements for Governmental Body Impacted by Catastrophe):
(1) “Catastrophe” means a condition or occurrence that directly interferes, rather than interferes, with the ability of a governmental body to comply with certain requirements of Chapter 552 (Public Information).
(2) “Catastrophe” does not mean a period when staff is required to work remotely and can access information responsive to an application for information electronically, but the physical office of the governmental body is closed.
(3) Creates this subdivision from existing text and makes no further changes.
(b) Provides that the requirements of Chapter 552 do not apply to a governmental body during the suspension period determined by the governmental body under Subsections (d) and (e) if the governmental body:
(1) Is currently significantly impacted by a catastrophe such that the catastrophe directly causes the inability of a governmental body to comply with the requirements of Chapter 552; and
(2) Makes no change to this subdivision.
(d) Authorizes a governmental body to suspend the applicability of the requirements of Chapter 552 to the governmental body for an initial suspension period. Authorizes the governmental body to suspend the applicability of the requirements of Chapter 552 under this subsection only once for each catastrophe.
(e) Authorizes a governmental body to extend an initial suspension period if the governing body determines that the governing body is still impacted by the catastrophe on which the initial suspension period was based. Authorizes the initial suspension period to be extended one time for not more than seven consecutive days that begin on the day following the day the initial suspension period ends.
Requires the governing body to submit notice of the extension to the Office of the Attorney General (OAG) on the form prescribed by OAG under Subsection (l), rather than Subsection (j).
(f) Prohibits a governmental body that initiates a suspension period under Subsection (d) from initiating another suspension period related to the same catastrophe, except for a single extension period as prescribed in Subsection (e).
(g) Prohibits the combined suspension period for a governmental body filing under Subsections (d) and (e) from exceeding a total of 14 consecutive calendar days with respect to any single catastrophe.
(h) – (l) Creates these subsections from existing text and makes non-substantive changes.
(m) Requires the governmental body, upon conclusion of any suspension period initiated pursuant to Subsections (d) or (e), to immediately resume compliance with all requirements of Chapter 552.
SECTION 2. Amends Subchapter E, Chapter 552, Government Code, by adding Section 552.2211 as follows:
Sec. 552.2211. Production of public information when administrative offices closed.
(a) Requires a governmental body, except as provided by Section 552.233, if a governmental body closes its physical offices, but requires staff to work, including remotely, to make a good faith effort to continue responding to applications for public information, to the extent staff have access to public information responsive to an application, pursuant to this chapter while its administrative offices are closed.ï¿½
(b) Provides that failure to respond to requests in accordance with Subsection (a) may constitute a refusal to request an attorney general’s decision as provided by Subchapter G (Attorney General Decisions) or a refusal to supply public information or information that the attorney general has determined is public information that is not excepted from disclosure under Subchapter C (Information Excepted From Required Disclosure) as described by Subsection 552.321(a) (relating to the conditions in which a requestor or the attorney general is authorized to file suit for a writ of mandamus).
SECTION 3. Effective date: September 1, 2021.
Meanwhile, parts of the Texas Open Meetings Act that Gov. Greg Abbott temporarily suspended at the start of the pandemic were back in place as of Sept. 1. Abbott announced earlier this summer that he was lifting the TOMA suspensions. Click here to see a list of the suspensions.
About the Freedom of Information Foundation of Texas
The Freedom of Information Foundation of Texas works to encourage a greater appreciation, knowledge, and understanding of the First Amendment and helps to ensure that the public’s business is conducted in public. Since its formation in 1978, the Foundation has helped citizens access government meetings and documents.
The Foundation seeks to inform journalists, legal professionals, educators, students, public officials, and individual citizens about their rights and responsibilities as participants in our democracy. With the clear objective to protect and preserve the state’s open meetings and open records laws, the non-partisan Foundation acts as a statewide information clearinghouse and offers guidance and assistance on Freedom of Information-related issues through a network of attorneys and through public seminars and conferences.
The Freedom of Information Foundation of Texas is a nonprofit 501(c)(3) supported through grants and tax-deductible donations from individuals, corporations, and foundations.
ROSS GIESINGER, FORMER POLICY ADVISOR TO SPEAKER OF THE HOUSE DADE PHELAN, R-BEAUMONT, JOINS CORNERSTONE GOVERNMENT AFFAIRS
Cornerstone, a leading, bipartisan government relations and public affairs firm with federal and state reach, on Wednesday, September 8, 2021, announced the addition of Ross Giesinger as principal in the firm’s Austin, Texas office.
Geisinger brings more than a decade of experience and relationships within the Texas Legislature, serving in positions for both the House and Senate chambers.
Most recently, he served as a senior policy advisor to Dade Phelan, Speaker of the Texas House of Representatives. During his time in this role, Giesinger monitored activity in the House Committees on State Affairs and Elections and drafted and advanced several major pieces of legislation related to the Texas electric utility market post Winter Storm, Uri – including Senate Bill 3, the most comprehensive reform of Texas energy regulation in the last 20 years.
Before working for the Phelan, he served as a director for the Texas Senate Committee on Health & Human Services, drafting complex legislation and analyzing agency appropriation requests. During the COVID-19 pandemic, he coordinated response efforts with Texas Division of Emergency Management, the Office of the Texas Governor, the state’s Health and Human Services Commission, the state’s Department of State Health Services, and members of the Texas Senate, while also monitoring regulatory actions.
“We believe Ross is an impact hire who will fit well with the team culture we have built in Texas,” Managing Director Campbell Kaufman said. “With so many changing dynamics in Texas politics, it is great to have someone who has worked in the House and Senate, and who has significant subject matter expertise.”
A lawyer with a degree from Southern Methodist University Dedman School of Law, Giesinger started his career at the Texas Legislative Counsel, eventually moving on to serve as general counsel and legislative director for the office of State Sen. Lois Kolkhorst, R-Brenham.
He joins the well-established Cornerstone Texas team that includes Martin Hubert, Anne Mazuca, Craig Holzheauser, Steve Holzheauser, Justin Jordan, Tim Schauer, Tony Essalih and Tyler Nelson.
“I am excited to deploy the knowledge and skills I have developed during my time with the Texas Senate and House of Representatives to build on Cornerstone’s outstanding reputation of client services and success,” Giesinger said. “While I am somewhat saddened to exit state service after 11 years, I look forward to contributing to the development and prosperity of our state in my new role. Cornerstone’s bipartisan, collaborative approach is perfectly suited to help clients succeed in Texas and across the nation.”
Cornerstone Government Affairs, Inc. is a full-service, bipartisan public affairs firm with more than 110 professionals in 13 offices across the country. Through its federal and state government relations; strategic communications; and business consulting/strategic advisory brands, Cornerstone represents a diverse group of clients from myriad industries and sectors and maintains expertise in a wide range of issue areas, including agriculture, cyber security, defense, education, energy, health, homeland security, international affairs, tax policy, telecommunications, and transportation and infrastructure.
Campbell Kaufman contributed to this article. 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).