FEATURED: As a result of a legislative measure known as an amendment in 2023 by Rep. Terry Canales, D-Edinburg, all Texas governmental organizations – from the smallest local special district up to the governor’s office – face a 10-business day deadline for government officials to release public records requested by citizens – or those bureaucrats and politicians could be punished by (1) a fine of no more than $1,000; (2) jail time for no more than six months; or (3) both a fine and jail time, according to South Texas attorney Omar Ochoa. Canales is shown here in 2023 addressing his colleagues on the floor of the Texas House of Representatives in the State Capitol in Austin.
Photograph By HOUSE PHOTOGRAPHY
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Rep. Canales played key role in 2023 in helping eliminate delay tactics previously used by some Texas governments in releasing public records requested by citizens, reports South Texas attorney Omar Ochoa
By DAVID A. DÍAZ
[email protected]
Transparency in local and state governments has been improved thanks to legislation in 2023 by Rep. Terry Canales, D-Edinburg, which made clear the 10-business day deadline for government officials to release public records requested by citizens, or require that those bureaucrats and politicians justify to the Office of the Texas Attorney General why they cannot do so, according to South Texas attorney Omar Ochoa.
Legislation is a proposed or enacted law or group of laws.
Transparency in government is generally defined as a government’s obligation to be open, accountable and honest with citizens on how it is conducting business and spending taxes.
Among its many duties, the Office of the Attorney General is responsible for the integrity of the public information process under the Texas Public Information Act, which provides a mechanism for citizens to inspect or copy government records.
https://www.texasattorneygeneral.gov/open-government/members-public/overview-public-information-act
“The Texas Public Information Act – which protects the people’s right to know about what their governments, including boards, commissions, and agencies, are doing – contained a loophole that slowed or prevented the quick release of public records that were not available on the Internet,” Ochoa said.
A loophole is an accidental technicality or unclear section of a written document that allows someone to avoid following a rule or fulfilling an obligation.
https://www.dictionary.com/browse/loophole
“The stakes can be significant for certain violations of the Texas Public Information Act, and can result in civil and criminal penalties for an unjustified delay or denial by governments in Texas to release public information,” Ochoa added.
An offense of this type is a misdemeanor and is punishable by: (1) a fine of no more than $1,000; (2) jail time for no more than six months; or (3) both a fine and jail time. In addition, this sort of violation constitutes “official misconduct.” – Tex. Gov’t Code § 552.353.
https://www.cobbjohns.com/blog/2021/12/are-there-criminal-penalties-for-violating-the-texas-public-information-act
Texas Government Code, Chapter 552, gives any person the right to obtain government records; and an officer for public information and the officer’s agent may not ask why a person wants them. All government information is presumed to be available to the public, Ochoa emphasized.
Under the Texas Public Information Act, governmental bodies in Texas are obligated to “promptly produce public information” upon request, further explained Ochoa, a champion of open government who regularly provides legislative updates to the people about the Texas Public Information Act, the Texas Open Meetings Act, and transparency in government.
Open government is the governing doctrine which maintains that citizens have the right to access the documents and proceedings of the government to allow for effective public oversight.
However, Ochoa noted that certain information held by governmental bodies is not open to the public.
These types of non-public records include some information in personnel records, pending litigation, competitive bids, trade secrets, real estate deals and certain legal matters involving attorney-client privilege.
Ochoa also said a governmental body is not required to answer questions, perform legal research, or create new information in response to a public information request.
Regardless, the State of Texas has many open government laws to help make the work of the state transparent to the public.
The primary open government laws are the Texas Public Information Act and the Texas Open Meeting Act.
“I have filed dozens of bills over my legislative career focused on preserving the public’s right to know what their government is doing in their name,” Canales declared.
“Filed” is used to refer to a measure that has been introduced into the legislative process and given a number.
The Texas Public Information Act does not apply to the federal government or to any of its departments or agencies.
If a person is seeking information from the federal government, the appropriate law is the federal Freedom of Information Act. Its rules and procedures are different from those of the Texas Public Information Act.
https://www.texasattorneygeneral.gov/open-government
A Texas Public Information Act request is a written letter from a Texas citizen, or an official document from the governmental body which is filled out by a Texas citizen, requesting materials that a citizen believes is maintained by the governmental body. That request needs to be for information already in existence.
https://www.texasattorneygeneral.gov/open-government/members-public/how-request-public-information
Canales: “Big win for government transparency!”
As a result of the COVID-19 pandemic in 2020 and 2021, and stretching through much of 2023, local and state governments continued to have ways of unjustifiably delaying or denying the release of public records to citizens who had submitted a Texas Public Information Act request.
“Throughout the COVID-19 pandemic, some governments refused to respond to Texas Public Information Act requests if their physical offices were closed, even if the staff was working remotely,” Canales gave an example.
Remote work is the practice of working from one’s home or another space rather than from an office.
He added language achieving his goal to House Bill 3033 – a strategy known as an amendment – and when that bill was approved by the Texas Legislature and became state law, so did Canales’ amendment.
https://capitol.texas.gov/BillLookup/Text.aspx?LegSess=88R&Bill=HB3033
An amendment is any proposed change to a bill or resolution as it moves through the legislative process.
Canales said House Bill 3033 with his amendment was a “big win for government transparency!”
A bill is a type of legislative measure filed in the Texas Legislature that requires passage by both 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.
That weakness in the Texas Public Information Actremained in place until Canales eliminated that imperfection through his amendment to House Bill 3033 during the 88th Regular Session of the Texas Legislature in 2023.
“The amendment closes this loophole and will ensure that reporters and the public can more quickly get information from our government,” Canales contended.
Before House Bill 3033 with Canales’ amendment became law on Friday, September 1, 2023, the state’s governmental bodies had considerable freedom in deciding whether they were open for business for purposes of Texas Public Information Act requests, according to Kelley Shannon, Executive Director, Freedom of Information Foundation of Texas.
The Freedom of Information Foundation of Texas is a nonprofit group that advocates for open records and open meetings in Texas.
“Often, the government claimed it was ‘closed’ when its employees worked remotely or when it had only a ‘skeleton crew’ in the office. This often led to long delays in responding to records requests, particularly during the COVID-19 pandemic (of 2020 and 2021),” Shannon said.
A skeleton crew is the minimum number of personnel needed to operate and maintain an item – such as a business, organization, or ship – at its most simple operating requirements. Skeleton crews are often utilized during an emergency and are meant to keep an item’s vital functions operating.
Canales’ amendment to House Bill 3033 will ensure uniformity in the timelines for how governments across Texas respond to Public Information Act requests, Shannon added.
As a result of Canales’ amendment to House Bill 3033, a “business day” for local and state governments in Texas for the purpose of Texas Public Information Act requests is determined as being any day during the year that is not one of the following time periods:
Non-Business Days
• Weekends — Saturday or Sunday;
• National holidays (i.e., New Year’s Day, Martin Luther King, Jr. Day, President’s Day, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day, and Christmas Day);
• State holidays (i.e., Confederate Heroes Day, Texas Independence Day, San Jacinto Day, Texas Emancipation Day, Lyndon Baines Johnson Day, the Friday after Thanksgiving, and the 24th and 26th of December);
• Optional holidays of Rosh Hashanah, Yom Kippur, or Good Friday if the public information officer of the governmental body observes the holiday; and
• Friday or Monday before or after a national or state holiday if the holiday falls on the weekend and the governmental body observes the holiday on that Friday or Monday.
• A governmental body may designate a day on which the governmental body’s administrative offices are closed or operating with minimum staffing as a non-business day. The designation of a non-business day for an independent school district must be made by the board of trustees. The designation of a non-business day for a governmental body other than an independent school district must be made by the executive director or other chief administrative officer. A governmental body may designate not more than 10 non-business days under this subsection each calendar year. A governmental body shall make a good faith effort to post advance notice of the non-business days designated under this subsection on the governmental body’s Internet website.
• The fact that an employee works from an alternative work site does not affect whether a day is considered a business day under this chapter.
Governmental bodies subject to the Texas Public Information Act
Governmental bodies subject to the Texas Public Information Act include:
• A board, commission, department, committee, institution, agency, or office that is within or is created by the executive or legislative branch of state government and that is directed by one or more elected or appointment members;
• Cities, counties, public school districts, community colleges, universities, economic development corporations, boards of education, special districts, local workforce development boards, and nonprofit corporations authorized by the state which receive funds under the federal community services block grant program;
• The part, section, or portion of an organization, corporation, commission, committee, institution or agency that spends or that is supported in whole or in part by public funds, a deliberate body that has rule making or quasi-judicial power and that is classified as a department, agency, or political subdivision of a county or city; and
• A confinement facility operated under a contract with any division of the Texas Department of Criminal Justice, and a civil commitment housing facility owned, leased or operated by a vendor under contract with the state as provided by Chapter 841, Health and Safety Code.
The judiciary is expressly excluded from the definition of “governmental body.” The required public release of records of the judiciary is governed by Rule 12 of the Texas Rules of Judicial Administration.
In addition to the judiciary, specified economic development entities are also expressly excluded from the definition of “governmental body” pursuant to section 552.003(1)(B)(ii). An entity that does not believe it is a “governmental body” within this definition may make a timely request for a decision from the attorney general under Subchapter G of the Act if there has been no previous determination regarding this issue and it wishes to withhold the requested information.
Sen. Zaffirini carried House Bill 3033 through Texas Senate
Sen. Judith Zaffirini, D-Laredo/Starr County, played an influential role in House Bill 3033, whose author was Rep. Brooks Landgraf, R-Odessa.
As the author of House Bill 3033, Landgraf was the legislator who filed the bill and guided it through the legislative process (also called the primary author).
Zaffirini was the sponsor of House Bill 3033.
As sponsor of House Bill 3033, Zaffirini guided the measure through the legislative process in the Senate after it had been approved by the House of Representatives.
An individual who believes a governmental body has not properly responded to his/her Public Information Act request may contact the Open Government Hotline of the Texas Attorney General at (877) 673-6839 or (512) 478-6736
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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).
