KBS Reference Desk: Open Government During Catastrophes

Q.        With hurricane season in full swing, are there any updates to open government laws that the district needs to be aware of?

A.        Yes! SB 494, effective September 1, 2019, amended various Texas Government Code sections regarding emergency meeting notices, emergency meeting deliberations or actions, and suspension of the Public Information Act during times of catastrophe.

Currently, the Texas Open Meetings Act allows for a governmental body to meet with less than 72 hours’ notice in times of “emergency or urgent public necessity.” Such emergency or urgent public necessity exists only if immediate action is required of a governmental body because of (1) an imminent threat to public health and safety; or (2) a reasonably unforeseeable situation. SB 494 further clarifies this provision by adding examples of conditions when an emergency meeting or emergency agenda item may be added during times of catastrophe. The examples include: fire, flood, earthquake, hurricane, tornado, wind, rain, or snow storm; power failure, transportation failure, or interruption of communication facilities; epidemic; or riot, civil disturbance, enemy attack, or other actual or threatened act of lawlessness or violence.

SB 494 also reduces the time required to post notice of an emergency meeting or supplemental notice of an emergency addition to the agenda from two hours to one hour. Additionally, the bill limits the actions that can be taken at an emergency meeting in which one-hour notice was posted. A one-hour emergency posting will permit action only on: “(1) a matter directly related to responding to the emergency or urgent public necessity identified in the notice or supplemental notice of the meeting…or (2) an agenda item listed on a notice of the meeting before the supplemental notice was posted.” Tex. Gov. Code §551.045(a-1).

Finally, and possibly most impactful, is the suspension of the Public Information Act during times of catastrophe.  SB 494 allows a governmental body that is currently impacted by a catastrophe to suspend the applicability of the requirements of the Public Information Act (“PIA”), including and especially, the obligation to respond “promptly.” Notably, the governmental body must provide notice to the Attorney General in order to benefit from the tolling. Detailed instructions for the catastrophe notice and the form for submission can be found on the Attorney General’s website at https://www.texasattorneygeneral.gov/es/node/232786. Notice of extension must also be submitted to the Attorney General.

TASB anticipates release of Update 114 in October, which should contain all necessary edits to the open government laws found within policies BE and GBAA. As this is a general overview of SB 494, consult with your district’s legal counsel with any questions regarding suspension of the PIA requirements, its implications on timelines, and how to proceed in the event of a catastrophe.