Q: I’m hoping the Legislature made it easier to suspend the Texas Public Information Act in the event we experience another COVID epidemic. Did I hear that correctly?
A: Not really. S.B. 1225 did amend the TPIA. However, the amendment provides for greater restriction than access to the Act’s suspension provisions.
In the past, catastrophes, natural disasters, and other similar emergencies rendered it difficult or impossible for impacted governmental bodies to timely respond to TPIA requests, either due to emergency work related to the catastrophe or, in some cases, because government offices were closed due to inaccessibility or damage (think hurricane). The relief within the statute was limited to a 7-day suspension, with the ability to extend only one time. As such, when COVID hit last spring, the Governor of Texas, beginning March 13, 2021, suspended the TPIA (and other regulatory statutes) by Executive Order for recurring 30-day periods throughout the pandemic. This eliminated the 7-day suspension limitation, which in the minds of legislators, led to abuse.
Senator Joan Huffman noted:
Before the COVID-19 pandemic, the catastrophe notice provision of the TPIA 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.
Enter S.B. 1225, which amends Texas Government Code Section 552.233 to exclude application of the TPIA only to a governmental body that is “significantly” impacted by a catastrophe “such that the catastrophe directly causes the inability of a governmental body to comply with the requirements of [the TPIA].” Further, the definition of “catastrophe” expressly excludes a period when staff is required to work remotely and, even though the physical office of the governmental body is closed, can still access information responsive to a request for information electronically.
S.B. 1225 further limits a governmental body’s ability to elect a suspension period (including a single extension period) to only one time for each catastrophe. Except for the single extension period following an initial suspension period, a governmental body may not initiate another suspension period related to the same catastrophe, and the combined suspension period for a governmental body may not exceed a total of 14 consecutive calendar days with respect to any single catastrophe. The bill clarifies that, upon conclusion of any suspension period, the governmental body must immediately resume compliance with all requirements of the TPIA.
Finally, the bill adds Texas Government Code Section 552.2211 to the TPIA to require a governmental body that closes its physical offices but requires staff to work, including remotely, to make a good faith effort to continue responding to requests for information subject to the TPIA. This is true even while the school district’s administrative offices are closed, to the extent staff have access to responsive information. A failure to respond to requests under such conditions will result in a finding of a violation of the Act, which could result in civil and/or criminal penalties.
As such, consult with your local school attorney should you have specific questions or need additional information concerning compliance with the TPIA.