Sunlight is the best disinfectant, but it may have to wait 14 days

COVID-19’s impact on obtaining information under the Texas Public Information Act

Since Gov. Greg Abbott declared a state of disaster for COVID-19 in early March, more than 90 municipalities, school districts and other governmental bodies have posted “Catastrophe Notices” under the Texas Public Information Act (PIA). Posting a Catastrophe Notice allows a governmental body that is being impacted by a “catastrophe” to suspend requirements of the PIA for up to two weeks.

The Texas legislature added the Catastrophe Notice provision (section 552.233) to the PIA in the wake of Hurricane Harvey, which left some government offices flooded and inaccessible and governmental employees unable to respond to public information requests within the 10-business-day period proscribed by the PIA.

Catastrophe Notices have not been widely used since the law took effect in September 2019, and before the coronavirus pandemic, only four governmental bodies had taken advantage of the new law. Dallas Independent School District posted a notice after tornadoes hit Dallas in October 2019. And three other governmental bodies each posted a notice related to cyber-security incidents that caused an interruption to communications facilities. COVID-19 is putting section 552.233 to a trial by fire.

Use of the section 552.233 suspension process is appropriate where a government is open for business but determines that a catastrophe has interfered with its ability to comply with PIA requirements. Governmental entities are not required to prove the catastrophe has happened, nor do they have to show how the event prevented a timely response.

The governmental body must submit the initial Catastrophe Notice and notice of 1-week extension to the Texas attorney general. All notices are then publicly posted on the attorney general’s website.

The initial suspension period can last up to 7 consecutive days, beginning not earlier than the second day before the date the notice is submitted to the attorney general and ending not later than the 7th day after the date the notice is submitted. An extension—and notably, section 552.233 provides for only one extension—may also last up to 7 consecutive days that begin on the day following the end of the initial suspension period. According to the Texas attorney general, the “total timeframe of the suspension period should not exceed fourteen days.”

A section 552.233 suspension is not necessary if the governmental body is closed, unable to access its records, or operating with a skeleton crew. The Texas attorney general recently clarified how governmental bodies should calculate business days under the PIA. As a reminder:

• Skeleton crew days are not business days.
• A day on which a governmental body’s administrative offices are closed is not a business day. If a governmental body has closed its physical offices for purposes of a public health or epidemic response or if a governmental body is unable to access its records on a calendar day, then such day is not a business day, even if staff continues to work remotely or staff is present but involved directly in the public health or epidemic response.

With the uncertainty surrounding the coronavirus pandemic, governmental entities may be operating remotely or with skeleton crews for months to come, slowing the exchange of public information to a near standstill.

June 3, 2021 update:

On May 28, 2021, Governor Abbott signed SB 1225, which provides that no “catastrophe” exists when staff are working remotely and can access information responsive to a TPIA request electronically. SB 1225 also provides that a governmental body can file only one catastrophe notice (plus one extension) per catastrophe.