Legislation Relating to the Texas Public Information Act and Open Government

by Stefanie Albright

Legislation Affecting the Boeing Co. v. Paxton Texas Supreme Court Decision and the Texas Public Information Act (“TPIA”)

The 2019 Legislative Session was again impactful on water districts and other political subdivisions of the State of Texas. This article highlights some of the bills that will certainly impact those entities with respect to maintaining and disclosing public information under the TPIA, and conducting open meetings under the Texas Open Meetings Act (“TOMA”).

• SB 943 (Watson) The broad exception to the TPIA created by the 2015 Boeing case has been narrowed by SB 943, effective on January 1, 2020. The decision in the Boeing case generally impacted the TPIA exception for competitive bidding information and allowed information to be withheld that would give a competitive advantage to one entity over another. SB 943 makes “contracting information” public unless covered by an exception under the TPIA. Perhaps most surprising, the bill even subjects non-governmental bodies to public information requests if they contract with governmental bodies for large amounts.

SB 943 created a new category of “contracting information” that must be released by the governmental entity, unless specifically excepted from disclosure by a TPIA exception. ”Contracting information” includes information maintained by a governmental body or sent between a governmental body and a vendor, contractor, potential vendor, or potential contractor, including (1) information in a voucher or contract relating to use of public funds; (2) solicitation or bid documents relating to a government contract; (3) communications during the solicitation, evaluation, or negotiation of a government contract; (4) documents, including bid tabulations, showing bid evaluation criteria and, if applicable, an explanation of the selection; and (5) communications and other information related to the performance of a final contract or work performed on behalf of the governmental body.

SB 943 also modifies the section 552.104 “Competitive Bidding Exception” under the TPIA, requiring a governmental body or third party to show not only that the release of information would provide an advantage to a competitor or bidder, but also that the harm would be in the context of a particular ongoing or recurring competitive situation. The bill also broadens the section 552.110 “Trade Secret Exception” under the TPIA and creates a new “Proprietary Information Exception” relating to the withholding of certain bidding information.

Finally, SB 943 requires a non-governmental body that contracts with a governmental body for $1 million in public funds in a fiscal year to comply with disclosure rules for contracting information, and allows governmental bodies to terminate contracts upon certain violations of this section.

• HB 2840 (Canales) relates to the right of a member of the public to address the governing body of a political subdivision at an open meeting of the body. It amends the TOMA to allow each member of the public to address a governmental body regarding an agenda item at the meeting before or during the body’s consideration of the item. The body may adopt rules, including time limitations, but it may not prohibit public criticism of the body. HB 2840 also requires additional speaking time for speakers using a translator.

• SB 494 (Huffman) addresses certain provisions relating to open meetings and public information in an emergency. Notice for emergency items must be posted at least one hour before the meeting is convened, and the matter must be directly related to the emergency response or an urgent public necessity identified in the notice. Violations may result in injunction or mandamus by the Attorney General (“AG”).

This bill also allows a governmental body to suspend public information rules if currently impacted by a catastrophe. The body must provide notice to the AG and the public, and the AG must continuously post such notices online for one year. The initial suspension period lasts seven days, and the governmental body is allowed one extension. Any public information requests received during a suspension period are considered received on the first business day after the period ends.

• SB 944 (Watson) provides preservation rules for public information maintained on privately owned devices. Such information must be transferred to the governmental body to be preserved, or it must be preserved in its original form in a backup or archive. To encourage compliance, governmental entities should enact policies to ensure that officers and employees, both current and former, are aware of these new requirements and create a process to ensure proper retention of public information in the future. SB 944 also allows public information requests to be made by mail, email, hand delivery, or any other appropriate method approved by the governmental body. The governmental body may designate a mailing and email address for requests, and if posted as required, response to public information requests is required only if received in the approved format and at the approved address.

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Stefanie Albright is a Principal in the Firm’s Districts and Water Practice Groups. If you have any questions concerning legislative issues affecting Districts or would like additional information, please contact Stefanie at 512.322.5814 or salbright@lglawfirm.com.