Changes in Texas Open Government Law
Governmental entities in Texas, and the companies that transact with them, should be aware of new changes in Texas “open government” law that may affect how they do business. On September 1, 2013, changes in state law became effective that are intended to make Texas “open government” law more open. These changes affect the Texas Public Information Act (TPIA) and the obligations of public officials, employees and private companies to comply with Texas open records law.
Texas Public Information Act
The TPIA gives the public the right to request access to government information. Subject to certain exceptions, governmental bodies must timely disclose “public information” upon request or seek a decision from the Attorney General to withhold records. The data of third-parties that contract with governmental bodies is often implicated by open records requests, and third-parties that contract with governmental bodies or respond to governmental bids should be aware of their rights and obligations under the TPIA.
Records of a private entity under contract with the State are subject to open records laws, to the extent the records are considered public information.
Senate Bill 1368 is of interest to companies that contract with Texas state agencies, boards, commissions, offices, departments or other agencies in the executive or legislative branch of state government. This bill revised the Texas Government Code to clarify that the records of a private entity under contract with the State are subject to the TPIA. This was an issue that previously was not uniformly applied by state agencies.
After September 1, 2013, contracts between private vendors and affected state bodies must contain a provision that requires the vendor to make information not otherwise excepted from disclosure under public information law available in a specific format that is agreed upon in the contract and accessible by the public. This law does not change applicable exceptions from disclosure for third-parties, such as exemptions from disclosing trade secret and confidential commercial and financial information. Companies that do business with Texas agencies should have policies in place to address records retention, timely response to open records requests and, if necessary, objections to the open records requests based on applicable exceptions.
The definition of media containing public information has been updated to include a variety of electronic communications.
Senate Bill 1368 also modernized the definitions of media containing public information. In addition to traditional “hard copy” formats of public information, the Government Code now expressly references e-mail, Internet posting, text message, instant message and other electronic communication. As a general practice, public officials, governmental employees and private individuals who communicate with public agencies should assume that any communication regarding public business is subject to the TPIA, regardless of the medium or the public/private nature of their account.