Coronavirus and open government

By Kelley Shannon
Executive Director
Freedom of Information Foundation of Texas

(Last updated July 8, 2021)

The coronavirus emergency has created trying times for public officials and citizens when it comes to open government. But transparency and the public’s right to know are vitally important during a disaster. We need more information flowing now, not less.

Here are reminders and resources for complying with Texas transparency laws during the COVID-19 outbreak:

Gov. Greg Abbott in March 2020 suspended a portion of the Texas Open Meetings Act dealing with public gatherings during a videoconference or telephone meeting of a public body and a section of the law requiring a quorum of the governmental body to be in one physical place. All other aspects of the law remained in force. The public still must have sufficient notice of and access to a governmental body’s public meeting, even a virtual meeting. The FOI Foundation of Texas urges when a governmental body holds an online meeting that, in addition to video streaming, it also provides a telephone call-in line to allow access to those who may not have home Internet access or an electronic device suitable for video viewing.

The governor’s Open Meetings Act waiver, initially issued March 16, 2020, is effective only during the COVID-19 emergency period. It removes the requirement to provide a physical gathering space for the public to watch or listen to the meeting; however, the public must be given the ability to watch or listen to the meeting remotely and interact during public comment periods. The waiver also means a quorum of the governing body doesn’t have to be physically present in one place. Additionally, any handouts that would have been distributed in hard copy at the meeting must be made available online.

On June 30, 2021, Abbott announced the Open Meetings Act suspensions would be lifted as of Sept. 1, 2021.

We at the FOI Foundation noticed some confusion among public officials about how to comply with the Open Meetings Act during a virtual meeting. To answer questions, the Texas Attorney General’s Office has established an open meetings hotline at 1-888-672-6787 and this email: toma@oag.texas.gov. We encourage public officials to use these resources.

Meanwhile, the Texas Department of Information Resources has issued this guide to help governments with technology issues as they comply with the Open Meetings Act. 

The public should also be aware that many governmental bodies, as allowed by a law that took effect in 2019, were sending “catastrophe notices” to the Texas Attorney General’s Office to suspend requirements of the Texas Public Information Act for a seven-day period because they were affected by the COVID-19 pandemic. Texas governments of all sizes were sending these catastrophe notices, which must be published on the attorney general’s website. A government can also file an extension notice for another seven-day period. Some governments abused the law and acted contrary to its original intent. Sen. Joan Huffman, author of the 2019 law, updated it in 2021 to clarify how it can be used. Here’s the link where you can see the notices: https://www.texasattorneygeneral.gov/open-government/governmental-bodies/catastrophe-notice/submitted-catastrophe-notices

The Attorney General’s Office also has issued a reminder about how to calculate business days when responding to a Texas Public Information Act request. These business day calculation rules were in place before the COVID-19 emergency.

On another subject related to COVID-19, the Texas Attorney General’s Office, in response to a ruling request by the Texas Health and Human Services, ruled in July 2020 that most information related to coronavirus outbreaks in nursing homes and assisted living centers must be released to the public if the information doesn’t jeopardize individual patient medical privacy. Here’s a link to that attorney general ruling: https://foift.org/files/2020/07/HHSC-AG-Response-Nursing-Homes-2.pdf

And, here’s the portion of the HHSB website where the information is now published online: https://hhs.texas.gov/services/health/coronavirus-covid-19/texas-covid-19-case-data

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This article was originally published by the FOIFT in March 2020 and has been updated periodically with new developments.