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Home My WebLink AboutOpen Govt- Pt Arthur (Nov 30 2023) A Guide to Open Meetings & Open Records OPEN GOVERNMENT Entire presentation is 2 hours + At least one hour is dedicated to Open Records, and at least one hour is devoted to Open Meetings. 1 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur ALAN BOJORQUEZ Municipal Attorney based in Austin, TX Manages statewide Municipal Law firm (since 2002) Texas Tech University: JD, MPA, BA Former Staff Lawyer, Texas Municipal League Past-President, Texas City Attorney Assn Board Member, International Municipal Lawyers Assn Honorary Member, International City Mgt Assn Honorary Member, Texas Muni Clerk Assn Ambassador Award, Texas Tech Univ School of Law Author, Tex Muni Law & Proc Manual (7th Ed.) City of Port Arthur November 30, 2023 November 30, 2023 2 AGENDA Texas Open Meetings Act Texas Public Information Act The Texas Open Meetings Act and Public Information Act are vital to participatory democracy. They are premised on the notion that, to effectively be involved in the democratic process, citizens must have access to the decision-making process and to the data upon which government leaders are relying. It’s not enough for the public to see the votes or learn the final actions. Citizens must also be allowed to observe and hear the back-and-forth, give – and- take that leads up to the votes. Citizens must also be given the opportunity to have input on items pending before their governmental bodies. You’ll probably forget much of what I present to you today, but if you’ll keep these 5 points in mind you’re less likely to encounter difficulties. 3 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur 6 POINTS TO REMEMBER Assume all Data is “Public” & “Open” Think Before You Create “Private” Devices can have “Public” Info Beware of Email (texts, social media) Assume Gatherings are “Meetings” Beware of Walking Quorums The Texas Open Meetings Act and Public Information Act are vital to participatory democracy. They are premised on the notion that, to effectively be involved in the democratic process, citizens must have access to the decision-making process and to the data upon which government leaders are relying. It’s not enough for the public to see the votes or learn the final actions. Citizens must also be allowed to observe and hear the back-and-forth, give – and- take that leads up to the votes. Citizens must also be given the opportunity to have input on items pending before their governmental bodies. You’ll probably forget much of what I present to you today, but if you’ll keep these 5 points in mind you’re less likely to encounter difficulties. 4 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur WHY ARE YOU HERE? It’s required by law for Newly-Electeds! It’s a good idea! You’ll enjoy learning this stuff! It’s fundamental to Democracy at local level TGC §552.012 TGC §551.005 The Texas Open Meetings Act and Public Information Act are vital to participatory democracy. They are premised on the notion that, to effectively be involved in the democratic process, citizens must have access to the decision-making process and to the data upon which government leaders are relying. It’s not enough for the public to see the votes or learn the final actions. Citizens must also be allowed to observe and hear the back-and-forth, give – and- take that leads up to the votes. Citizens must also be given the opportunity to have input on items pending before their governmental bodies. You’ll probably forget much of what I present to you today, but if you’ll keep these 5 points in mind you’re less likely to encounter difficulties. 5 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur OPEN MEETINGS Members of the public have a statutory right to: Watch Listen Speak Record 6 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur WHAT IS A MEETING? Deliberation (Verbal or Written) Quorum Governmental Body About Public Business Within Their Jurisdiction TGC §551.001 “Deliberation” means a verbal or written exchange between a quorum of a governmental body, or between a quorum of a governmental body and another person, concerning an issue within the jurisdiction of the governmental body. TGC 551.001(2) Section 551.001(4)(B) defines “meeting” as follows: (B) except as otherwise provided by this subdivision, a gathering: (i) that is conducted by the governmental body or for which the governmental body is responsible; (ii) at which a quorum of members of the governmental body is present; (iii) that has been called by the governmental body; and (iv) at which the members receive information from, give information to, ask questions of, or receive questions from any third person, including an employee of the governmental body, about the public business or public policy over which the governmental body has supervision or control. 7 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur APPLICABILITY Texas Open Meetings Act Governmental Bodies (e.g.): City Council County Commissioners Court School Board Action Requires Quorum Requires Meeting Subcommittees Excluded (Usually) Social Gatherings & Regional Training Excluded Advisory Boards Excluded Staff Meetings Excluded TGC Ch. 551 “Deliberation” means a verbal or written exchange between a quorum of a governmental body, or between a quorum of a governmental body and another person, concerning an issue within the jurisdiction of the governmental body. TGC 551.001(2) Section 551.001(4)(B) defines “meeting” as follows: (B) except as otherwise provided by this subdivision, a gathering: (i) that is conducted by the governmental body or for which the governmental body is responsible; (ii) at which a quorum of members of the governmental body is present; (iii) that has been called by the governmental body; and (iv) at which the members receive information from, give information to, ask questions of, or receive questions from any third person, including an employee of the governmental body, about the public business or public policy over which the governmental body has supervision or control. Subcommittees Excluded (Usually): the applicability of the Act to a subcommittee of a governmental body depends on its level of authority, such as when the subcommittee is the one actually making final decisions that the parent body merely rubber-stamps. “Staff Meetings” refers to a meeting that does not include governmental body members. In contrast, meetings at which staff members brief the governmental body (commonly known as “staff briefings”) are considered “meetings” under the definition in Tex. Gov’t Code section 551.001(4)(B) even if the governmental body asks no questions of the staff or makes no comments. 8 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur BASICS To Conduct Meeting Must Have: Agenda (What You’re Going To Do) Quorum (Minimum Elected Body To Act) Minutes (What You Did) Public Access (Watch, Listen + Speak) Locational Requirements Beware of Action Without Meetings Beware of Email, Text & Social Media TGC Ch. 551 Agendas are crucial Meetings must be held in Texas Avoid email, texts, or social media and other methods of communication through which you can build a consensus or take action OUTSIDE of a properly-posted public meeting. Government officials and agents can’t count votes and build consensus among governmental body members behind the scenes, but lobbyists working for outsiders might be able to unless you have local regulations restricting lobbying. 9 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur AGENDAS Notification: Who, Where, When, What? Specificity = Reasonable Person Standard Reports / Council Comments Notice of Executive Sessions Time & Accessibility: 72 hrs. Post at City Hall & on Website New Law HB 3440 TGC § § 551.041 & 551.056 The Act requires written notice of all meetings. Section 551.041 of the Act provides: A governmental body shall give written notice of the date, hour, place, and subject of each meeting held by the governmental body. The Act does not require the notice of a closed meeting to cite the section or subsection numbers of provisions authorizing the closed meeting. No judicial decision or attorney general opinion states that a governmental body must indicate in the notice whether a subject will be discussed in open or closed session The notice must be sufficient to apprise the general public of the subjects to be considered during the meeting Generalized terms such as “old business,” “new business,” “regular or routine business,” and “other business” are not proper terms to give notice of a meeting because they do not inform the public of its subject matter. The term “public comment,” however, provides sufficient notice of a “public comment” session The notice of a meeting of a governmental body must be posted in a place readily accessible to the general public at all times for at least 72 hours before the scheduled time of the meeting (with certain exceptions) the governmental body satisfies the requirement that the notice be posted in a place readily accessible to the general public at all times by making a good-faith attempt to continuously post the notice on the Internet during the prescribed period 10 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur MINUTES Agendas with Answers Who, What, Where, When? Record Actions & Votes Recording &/or Paper Transcript Not Required TGC §551.021 Section 551.021 of the Government Code provides as follows: (a) A governmental body shall prepare and keep minutes or make a recording of each open meeting of the body. (b) The minutes must: (1) state the subject of each deliberation; and (2) indicate each vote, order, decision, or other action taken If minutes are kept instead of a recording, the minutes should record every action taken by the governmental body Minutes of Executive Session (aka, Certified Agenda) must be kept for at least 2 years. Minutes of Open Session are kept in compliance with the Records Retention Schedule. 11 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur CITIZEN PARTICIPATION Right to Speak at Open Meetings On Any Agenda Item Before or When Address an Item Reasonable Rules May Apply Decorum & Civility Can Be Required Must Facilitate Input Must Allow Criticism 12 TGC §551.007 551.007 requires a governmental body to “allow each member of the public who desires to address the body regarding an item on an agenda for an open meeting of the body to address the body regarding the item at the meeting before or during the body’s consideration of the item 12 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur MEETING DYNAMICS Regular Meetings Special Meetings Joint Meetings eg, City Council & P&Z Procedural Rules Ratifications Regular Meetings: Usual day / time Special Meetings: Subject to same rules Joint Meetings: Allowed if each entity posts properly e.g., City Council, P&Z, LCRA Procedural Rules: Robert’s is NOT “Law” Ratifications: Sometimes can have a do-over, but no retroactive effect & still at risk of penalties 13 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur EXECUTIVE SESSIONS General Rule: All Deliberations Must Be In OPEN Session Must Announce Item & Cite Section Justifying Can Exclude Certain Persons from Executive Session Data from Executive Session not necessarily “Confidential” Minutes are “Confidential” Common City Justifications: Atty Real Estate Gifts Personnel Security Eco D TGC §551.071, .072, .073, 074, .076, .087 Section 551.101 states the requirements for holding a closed meeting. It provides: If a closed meeting is allowed under this chapter, a governmental body may not conduct the closed meeting unless a quorum of the governmental body first convenes in an open meeting for which notice has been given as provided by this chapter and during which the presiding officer publicly: (1) announces that a closed meeting will be held, and (2) identifies the section or sections of this chapter under which the closed meeting is held. 14 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur PHONE / VIDEO-CONFERENCING Open or Closed Sessions By Phone (emergencies only) By Video-Conference (any time) Web Mtgs typically requires quorum onsite, chair at public location, full 2-way participation & technical specs Recording TGC §551.127 TGC §551.125 The Act also authorizes governmental bodies to conduct meetings by videoconference call and, unlike with telephone meetings, does not limit that authority to emergency circumstances. Section 551.127 authorizes a member or employee of a governmental body to participate remotely in a meeting of the governmental body through a videoconference call if there is live video and 15 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur 2019 16 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur WALKING QUORUMS aka, Daisy Chains “Prohibited Series of Communications” Knowingly Have 1 or + communications In a series With less than quorum Each occurs outside a meeting On an issue w/i the jurisdiction Knowing total series = quorum TGC §551.143 The back and forth, give and take discussions that lead to votes (action) should be occurring in properly-posted public meetings, not in serial communications behind the scenes. 17 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur ENFORCEMENT Action Taken in Meeting is VOIDABLE Executive Session Without Lawful Basis Executive Session Without Certified Agenda Disclosure of Minutes of Executive Session Defense if Relied on Written Attorney Opinion Punishment: Up to $500 &/or 6 mos. in Jail TGC §551.144 TGC §551.145 TGC §551.146 TGC §551.144 TGC §551.141 The Act may also be enforced as a civil matter. Pursuant to Tex. Gov’t Code section 551.142, members of the public may sue to enjoin a violation. 18 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur OTHER MEETING-RELATED TOPICS Agenda Preparation Establishing a Quorum Frequency of Meetings Topic-Specific Notice & Hearing Rules Disrupting Meetings / Disorderly Conduct Agenda Preparation: Process left up to local rules Establishing a Quorum: Can vary based on type of entity or special mtg Frequency of Meetings: Look to statute or local ordinance / rules Regulating Public Comment: No Viewpoint Discrimination Procedural Rules: Roberts Rules is NOT “Law” Records Retention: Know your Records Retention Schedule Disrupting Meetings / Disorderly Conduct: It’s a Crime! Topic-Specific Notice & Hearing Rules: There are other statutes that mandate hearings and public notices, which have to be factored in 19 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur OPEN RECORDS TGC Ch. 552 20 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur OVERVIEW OF RECORDS Was Texas Open Records Act Now Texas Public Information Act Covers All Types of Formats Info Created By or For the City Info Given To the City Beware of Email & Texts! TGC §552.022 definition of “public information” in section 552.002(a-2) now specifically includes: any electronic communication created, transmitted, received, or maintained on any device if the communication is in connection with the transaction of official business. Section 552.002(a-1) further defines “information . . . in connection with the transaction of official business” as: information . . . created by, transmitted to, received by, or maintained by an officer or employee of the governmental body in the officer’s or employee’s official capacity, or a person or entity performing official business or a governmental function on behalf of a governmental body, and pertains to official business of the governmental body. The statute is very broad. 21 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur PERSONAL v. PUBLIC DATA? Info made, transmitted, maintained, or received in connection w/ govt’s official business is covered by PIA even if govt doesn’t possess the data eg, official-capacity e-mails are connected w/ the transaction of county business, thus county owns the info regardless of whether data is created or received in a personal email account or an official county email account TGC §§ 552.022 & .003 Adkisson v. Paxton (2015) definition of “public information” in section 552.002(a-2) now specifically includes: any electronic communication created, transmitted, received, or maintained on any device if the communication is in connection with the transaction of official business. Section 552.002(a-1) further defines “information . . . in connection with the transaction of official business” as: information . . . created by, transmitted to, received by, or maintained by an officer or employee of the governmental body in the officer’s or employee’s official capacity, or a person or entity performing official business or a governmental function on behalf of a governmental body, and pertains to official business of the governmental body. The statute is very broad. 22 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur TEMPORARY CUSTODIANS a city officer or employee who: in the transaction of official business creates or receives public info not provided to the city’s PIO must surrender or return info to city not later than the 10th day after PIO requests the data TRANSLATION: If you created it,… or you received it, …and you don’t hand it over,… you’re responsible for it! TGC §552.003(7) & §552.203 Pursuant to section 552.203(4) of the Government Code, a governmental body’s public information officer shall make reasonable efforts to obtain public information from a temporary custodian if: (A) the information has been requested from the governmental body; (B) the officer for public information is aware of facts sufficient to warrant a reasonable belief that the temporary custodian has possession, custody, or control of the information; (C) the officer for public information is unable to comply with the duties imposed by this chapter without obtaining the information from the temporary custodian; and (D) the temporary custodian has not provided the information to the officer for public information or the officer’s agent. You need to be mindful of data you create or come to possess if it’s regarding government business but is not stored by the PIO. 23 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur RECORDS RESPONSES Uniform Responses Timing “Promptly” / 10 “Business” Days New Law: HB 3033 Nat’l/State/Local holidays Right to Inspect Right to Copies: Paper / USB / Email TGC §552.221 TGC §552.226 TGC §552.225 TGC §552.0031 Section 552.221 reads in part: (a) An officer for public information of a governmental body shall promptly produce public information for inspection, duplication, or both on application by any person to the officer. In this subsection, “promptly” means as soon as possible under the circumstances, that is, within a reasonable time, without delay. (b) An officer for public information complies with Subsection (a) by: (1) providing the public information for inspection or duplication in the offices of the governmental body; or (2) sending copies of the public information by first class United States mail if the person requesting the information requests that copies be provided and pays the postage and any other applicable charges that the requestor has accrued under Subchapter F. We can charge reasonable fees and sometimes (depending on the circumstances) we can require a deposit. The Office of the Attorney General of Texas maintains an online list of the acceptable fees and charges (eg, USB drives, CDs, copies, etc). We must respond PROMPTLY, which is as soon as reasonable under the circumstances. Typically we have 10 BUSINESS days to: (a) provide the data, or (b) furnish an estimate of when the data will be provided; or (c) seek a determination from the AG Note section 552.221(d) requires a GB to certify in writing to the requestor and set a date and hour within a reasonable time when the information will be available for inspection or duplication if an officer for public information cannot produce public information for inspection or duplication within 10 business days after the date the information is requested under Subsection (a). 24 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur COMMON EXCEPTIONS Confidential / Privileged Legal / Litigation Real Estate Eco D Security Measures Juveniles / Victim / Medical 3rd Party Financial Data / Trade Secrets / Health Info Agency Memo (Drafts / Deliberative Process) There many justifications to lawfully withhold data from public release (too many to list here). There are just a few of the most common ones that are generally-applicable. When you go to the AG seeking a determination regarding releasing data you must raise the exceptions that you think apply (justifying withholding the data). After requesting an AG determination we typically have 5 business days to provide a brief to the AG providing more detail and presenting our arguments or questions more fully. 25 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur AG’s OPEN RECORDS DIVISION Only A Governmental Body Can Request Determinations 552.301(b) – 10 Business Day Deadline Copy to Requestor & Notify Third Party (If Necessary) with a Copy of Request and/or Holiday Calendar 552.301(e) – 15 Business Day Deadline Submit brief to AG with Arguments As to Why Info is Excepted From Disclosure Submit Copy of Requestor’s Request, Holiday Calendar (If Necessary), & Info at Issue (or Representative Sample) Provide a Copy of the Brief ONLY to the Requestor. Submit a signed statement as to the date on which the request for information was received by the GB or evidence sufficient to establish that date. AG Has Up To 45 Business Days to Respond (+10 Business Day Extension) Governmental Body may Receive a Memorandum Ruling Comments can be submitted by Requestor, 3rd Party & Public No Opportunity for Internal Appeal or Reconsideration Method of Appeal is to Bring Suit Against AG in Travis Co. TGC §552.301 If you care about the data, you must take steps to safeguard the data. Where do you store it? Who has access? How is it used? Distinguish between the 10-day and 15-day requirements: 552.301(b) Request ruling and raise exceptions to disclosure Must copy requestor Notify any interested third parties (if necessary) 552.301(e) Provide signed statement as to date request was received or evidence of date request was received Provide copy of request Provide comments stating why the requested information is excepted from disclosure Provide copy or representative sample of information requested Must copy the requestor 552.301 provides the requirements for requesting a ruling from the AG. The requirement to release information promptly if the governmental body is not requesting a ruling is provided in section 552.221 and the authority to request clarification is provided in section 552.222. 26 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur AG’s ORD Maintains List of Fees (Costs) Provides Online Cost Estimate Model Handles Complaints of Alleged Overcharges Manages Requests for Cost Rule Exceptions Ensures Compliance with the Public Information Act Publishes an Excellent Handbook (free online) TGC §552.2615 If you care about the data, you must take steps to safeguard the data. Where do you store it? Who has access? How is it used? 27 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur CAUTION WITH SENSITIVE DATA Guard the Privilege Protect Confidentiality Label Internal Data Store Files Deliberately Handle with Care If you care about the data, you must take steps to safeguard the data. Where do you store it? Who has access? How is it used? 28 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur ENFORCEMENT Civil Remedies (AG or Requestor: Writ of Mandamus) Declaratory Judgment / Injunctive Relief (DA/CA) Destruction Removal Alteration of Public Info $25-$4,000 or 3 days – 3 mos. in Jail (or both) Distribution or Misuse of Confidential Info Failure / Refusal PIO to Provide Public Info up to $1,000 or 6 mos. in Jail (or both) TGC §552.321 TGC §552.3215 TGC §552.351 TGC §552.352 TGC §552.353 Do not ignore requests for information. Respond to requests promptly and in accordance with the law. There are penalties for releasing data you should not have disclosed. There are penalties for not releasing data you were obligated to disclose. 29 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur 6 POINTS TO REMEMBER Assume all Data is “Public” & “Open” Think Before You Create “Private” Devices can have “Public” Info Beware of Email (texts, social media) Assume Gatherings are “Meetings” Beware of Walking Quorums The Texas Open Meetings Act and Public Information Act are vital to participatory democracy. They are premised on the notion that, to effectively be involved in the democratic process, citizens must have access to the decision-making process and to the data upon which government leaders are relying. It’s not enough for the public to see the votes or learn the final actions. Citizens must also be allowed to observe and hear the back-and-forth, give – and- take that leads up to the votes. Citizens must also be given the opportunity to have input on items pending before their governmental bodies. You’ll probably forget much of what I present to you today, but if you’ll keep these 5 points in mind you’re less likely to encounter difficulties. 30 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur Thank You for your Time & Attention. Best of luck w/ your CPM! Thank You Pt. Art. for your Time & Attention. Best of luck! Embrace the spirit of Transparency and the opportunities to engage the public in the decision-making process. November 30, 2023 31 Bojorquez Law Firm, PC (c) 2023 City of Port Arthur