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The House Committee on Government Transparency & Operation met to take up several interim charges relating to open meeting laws, Public information requests, and state data.

This report is intended to give you an overview and highlight of the discussions on the various topics the committee took up. This report is not a verbatim transcript of the hearing; it is based upon what was audible or understandable to the observer and the desire to get details out as quickly as possible with few errors or omissions.

Open Meeting Laws

  1. Review Texas’ open meeting laws and related government decision-making policies. Determine if the formal processes prevented the efficient delivery of assistance during Hurricane Harvey. Make recommendations on maintaining the current standards of accountability without limiting government-provided aid during disaster events.

 

Jennie Hoelscher, Attorney General Open Records Division  

  • First issue committee may want to consider – revise posting notice rules for emergency meetings
    • Current language allows for the potential of a suit if meeting notices not placed in the proper location, so need to address locations where postings must be such as on the internet or in a “good faith effort”
  • Second issue committee may want to consider – revising laws that allow for teleconferencing
    • Current language allows for teleconferencing but it must be held at the location where meetings are usually held and audible at those locations, so need language to address locations where teleconferencing can take place
    • Gonzales – asked for a definition of emergency
      • Broader than a disaster, it is defined in the act
      • Capriglione – believes may need to be narrowly defined as a catastrophe
      • Could revise teleconferencing language for narrow definition

 

Andy Meyers, County Commissioner in Fort Bend County

  • Gave a demographic overview of county and representation
  • Provided background on concern they faced during Hurricane Harvey
  • Provided example of walking quorum concern
  • Elkins – asked about the definition of walking quorum, will follow up on this
    • County Attorney cautioned them on providing certain updates one on one
  • Found difficulty communicating with school districts, coordinating efforts with several entities on real-time basis since they could not communicate with County Judge who was coordinating, etc
  • Recommends to: allow Commissioners that have more than 50% of unincorporated area declared disaster by Governor to allow meeting as soon as possible as long as meetings are posted, recorded and posted as quickly as they can, waive 2-hour notification
  • Elkins – if you could have communicated, what kind of details would you sought?
    • What type of evacuation and what areas
    • Discussion on need for voluntary evacuation
    • Agrees County judge decision does not need Commissioner’s vote to do so
    • Elkins – not sure government action would have been taken to make that request
    • Agrees with Elkins but followed the advice of County Attorney
  • Feels those who had contacts in community with best knowledge could not communicate with the County Judge based on the information he received from his County Attorney according to his experience and discussions with other County Commissioners
  • Capriglione – why would 2-hour notice not be sufficient?
    • Would like to communicate through rest of the day, not sure what question is
    • Situation is dynamic
  • Capriglione and witness discuss further Commissioner action versus Commissioner discussion/input
  • Gives examples of opening shelters and communicating what is open to County Judge, instead Commissioners asked individuals to contact County Judge, examples of communicating with volunteers and believes according to County Attorney it would have been a violation of Open Meetings Act
  • Elkins – County Judge can act alone in disaster, can law be tweeked so that it is clear no decisions/votes made by Commissioners in this waiver but it allows for communication
    • They could listen but were not allowed to give input
  • Elkins – not sure he would limit it to 50% of unincorporated area, agrees need to address issues for needed communication

 

Jennie Hoelscher, Attorney General Open Records Division 

  • Elkins – in the opinion of Open Meetings Act would example just given be a violation?
    • Nothing would prohibit one Commissioner with speaking to County Judge
    • Believes concern is there is a criminal penalty for having meetings less than a quorum to circumvent the act and through multiple smaller meetings it could be a violation
  • Elkins- when no business is taking place how is that a violation?
    • When there is a deliberation about public business and exchange of ideas
    • There does need to be “intent” to have a walking quorum
  • Elkins – provide more examples of communication of conversations, concern of going through the third party to communicate and believes there needs to be latitude to communicate and get help to people in certain situations
  • Elkins – confirms County Judge can declare an emergency so after that declaration, perhaps that is when these exceptions could apply for communication

 

Jim Hemphill, Freedom of Information Foundation of Texas

  • Notes there are broad levels of agreement, there needs to be some flexibility in examples of situations like Harvey
  • Advocates for technology to help increase transparency
  • Conveyance of information is needed but believes there is already someone in charge to take action in an emergency situation that does not require a convening of a body
  • Does not believe the examples he heard would be examples of walking quorum and believes some flow of communication is already allowed under existing law
  • Declared Emergencies can last a long time after urgent situation has passed
  • Believes 2-hr provision is for meetings that require deliberations and believes 2-hr window is appropriate and information can still flow in that time
  • Elkins – what about the requirement to record conversations and post after the fact; also agrees with comment certain exemptions could not last entire time of declared emergency
    • Agree but certain details would need to be looked at – agrees flow of information should not be inhibited
  • Believes walking quorum issue is when deliberation occurs not simply gathering information
  • Shaheen – believes there are possibly a number of scenarios that could cause a violation of Open Meetings Act such as any type of coordination among precincts, would your organization be open to sharing of information during certain circumstances?
    • Yes, agrees and believes information gathering is crucial
    • Shaheen – direction as well?
    • Absolutely
    • What would be helpful to see what they wanted to do in past circumstances and work on specific examples after the experience of Harvey
  • Discussion on appropriate balance with Capriglione that any exceptions be limited and aimed directly at the situation of flow of information because of people lives and property in peril

 

Chris Cobler, Editor of Victoria Advocate

  • An emergency situation such as this was a partnership between media and government and Public Information Act is a good guideline
  • Wrote a story on an emergency plan not being released and that public should be informed
  • In a true emergency don’t know that government body needs to meet
  • Elkin – maybe needing to get on a telephone
    • Agree but examples above did not sound like walking quorum
  • No one has challenged and said Commissioners have not acted inappropriately
    • Elkins – no challenge because they didn’t act
  • Said some government bodies were posting to personal Facebook pages and did not coordinate with media

 

Public Information Act

  1. Evaluate whether, in light of recent Texas Supreme Court rulings, the provisions of the Public Information Act are adequate to support transparency and accountability in government, particularly as it relates to government contracting and procurement.

 

Amanda Crawford, Office of the Attorney General

  • Gave overview of Public Information Act – must prove if the information is not open to public disclosure
  • Information is presumed to be open unless an exception applies
  • In 2017 issued over 30k open letter record rulings and these rulings can be challenged & only 61 were challenges in courts
  • Boeing v Paxton & Greater Houston Partnership v Paxton will be discussed
  • Boeing new interpretation under Supreme Court ruling
    • The section on confidential trade secrets allow 3rd parties to withhold certain information
    • Prior to ruling governmental body could withhold during competitive bidding
    • In terms of requests from AG 552.104 exceptions are now up (552.110 are down)
  • More information that would have been released can now be withheld under Boeing
    • Provided examples of certain cases such as:
    • County request for all payment made on invoices but 3rd party is arguing Boeing to withhold information
    • Governmental Body using a private firm to hire state employees and 3rd body is arguing to withhold interview questions and answers and details relating to hiring
  • Greater Houston Partnership v Paxton under new standards PIA applies only if a private entity is “sustained” by public funds
    • Not finders of fact so accept assertions of body saying they are not “sustained”
    • Impacts outsourcing of government functions and seeing the trend of rulings going down on this standard
  • Capriglione – can you repeat example of public employees being hired?
    • Agency outsourcing to private company who does questions, conducts interviews and then makes recommendations to agency
  • Capriglione – are there provisions where company can claim trade secrets, maybe hiring practices are proprietary, isn’t that also an exemption?
    • Yes
    • But under Boeing companies can say “any release of information” is problematic
  • Capriglione – seems to him Boeing is being used for different purposes than what the case ruling was really about, discusses nuances of trade secrets
  • Uresti – why would entity be allowed to withhold amounts of invoices/amounts being paid out?
    • If 3rd party raises Boeing and release would allow competitor an advantage, but if they can issue a ruling that says no they are doing so – then this ruling will go into litigation very steep hill for AG
  • Elkins – prior to Boeing when company alleged 110, when was information required to be given anyway?
    • Will need to go back through history
  • Capriglione – is government entity calling 3rd party, how does 3rd party know the request is made?
    • 3rd Parties are always able to argue for their information to be withheld, the governmental body shall notify a person that information has been requested
  • Elkins – asked since Boeing approx. number of cases going on where AG ruling is being challenged?
    • Probably less than a dozen but will confirm those numbers
  • Elkins – believes AG was completely inflexible and AG always made them give the information out but Boeing was able to afford challenge to AG, believes Supreme Court ruling is saying that AG had it wrong
  • Elkins – could see how certain interview practices are proprietary, and doesn’t not believe entity should have to reveal trade secrets just because they are doing business with the government

 

Gary Huddleston, Legislative Committee of Irving Las Colinas Chamber of Commerce

  • Chamber has many partnerships with arms-length agreement for certain services
  • Prior to 2015 Supreme Court decision more than 200 staff hours and $100k spent on requests, if requests had continued then 24% of chamber budget would have been spent solely on open record requests
  • Legislation considered in 85th (HB 793) could have doubled the amount of funding needed for open records requests and diverted resources from staff
    • Expansion definition in section 2 of the bill could have resulted in a further impact to Chamber in regarding to public information
  • Uresti – aren’t you allowed to charge for every hour used to address request? Why is it costing taxpayer money?
    • Don’t have to pay for employee time but for the production
    • Uresti – believes they have to pay for employee time as well as production
    • Clarification will be sought on this question by staff
  • Capriglione – asked questions about city relationship with Chambers, such as representation on the board, etc? Referred to City of Houston creating Houston First that acted for economic development as a “shell company”, etc? Generally speaking, would you say if there was an agency controlled by the city they should be subject to open records?
    • Absolutely, City is subject to open records

 

Bruce Gibson, Texas Association of Business

  • Does not think working with cities/agencies does not make them public entities
  • There may be some surgical approaches needed to deal with certain situations, willing to sit down and work with members on those issues

 

Rob Johnson, Attorney

  • Entire Act needs attention, needs regular maintenance
  • Boeing decisions have unsettled many because it looks like a seismic shift, believes that decision was a long time in the making
  • Notes all 8 Justices agreed on Boeing but an interesting part that has gotten lost
    • Boeing was only asking for minimal redactions
    • Boeing was not a procurement contract, not about public funds going out
    • Boeing sought to remove line item details about business they would conduct in the facility
    • Aerospace industry was different and said this level of industry needed a higher protection
    • Believes both parties now are over asserting Boeing – both AG and 3rd parties that ask for it
  • Legislature needs to make a fix – AG has adopted and applied common law definition for trade secret
    • Case law in this area will be fossilized
  • Uniform Trade Secrets has more modern definition of trade secrets – need to utilize this statutory definition
  • Supreme Court invited legislature to get involved and provide more definition in certain areas
  • Sheer volume of request to Open Records Division needs relief – governmental entities once had a letter to refer to on the ability to redact certain information without having to send in a request to AG
    • Need to codified prior determination letter
  • Predictability and stability is a need for open government
  • Elkins – asked about client-attorney privilege communication
    • Would often call requestor and if they don’t need attorney-client information will get them information faster
  • Uresti – why would some delay of getting information out?
    • Smaller district, some get one PIA request a year, don’t have much volume so lack of experience/expertise
  • Capriglione – agree with some statements, but would add in addition to predictability and stability, people want all the information they are entitled to and as a result of this ruling it has resulted in less information being open to the public?
    • Yes
  • Provided an example of who all is notified in open records request, will go to 3rd parties and they can submit a briefing but not everyone in the request (ie details on all staff)
  • Capriglione – do you think it was Judges desire to be specific, defense industry
    • Not a blanket statement, every 3rd party needs to show why information being redacted is needed
  • Capriglione – asked about an exchange of public funds/actual cash
    • Thinks there is a consensus that can be built that amount of public funds and what is given in exchange should always be public
    • What is actually paid out and what they are getting for it should be public
    • AG repeated today that pricing information cannot be trade secret
    • However, Waste Management appeal said pricing information could be a trade secret

 

Dave Hendricks, Freelance media

  • Worked at Channel 4 covering a Utility District for part of Hidalgo County
  • Provided examples of challenges Boeing ruling in regards to getting information
    • Severance agreement and amounts being paid we kept secret
    • ED paid out two payments of $221k and $268k for the employees who were also on the local school board
    • “To avoid releasing documents” – both parties agreed to keep settlement confidential based on Boeing language
    • So the bill was passed in the legislature to add conflict of interest provisions to address this concern

 

Jim Hemphill, Freedom of Information Foundation of Texas

  • Boeing ruling is a “sea changer”
  • AG can interpret absent any other input from the legislature
  • City of Austin City Manager example provided
  • Believes clarification for confidential information category would be helpful
  • Believes what is being withheld is far more than what was narrowly issued
  • Elkins – refers to past testimony calling for a prior determination letter, could both sides come to an agreement to tell contractor here is a list of things that would be expected to be disclosed if you deal with the government
  • Elkins – would like to see clarity and certainty that provides guidelines on what is public information, standard of openness that is needed to work with government
    • Agree, if an entity wants to obtain taxpayer money understands there is a certain transparency required
    • Gives an example of private email released with actual email addressed redacted

 

Chris Cobler, Editor of Victoria Advocate

  • Wants to convey the sentiment of the newspaper – asking for information on behalf of the citizens
  • Rely on AG opinions in favor, now many opinions going against that
  • Serious flaws exposed by the court ruling, beholden of legislators to come back to Public Information Act
  • Elkins – did several things last session that died in the Senate such as Rep. Canales bill that addressed expenses on a parade
  • Capriglione – pointed out witnesses comments on relying on “goodwill of public officials”, seems to be an effort to prevent disclosure
    • Not much goodwill when writing stories they don’t like
    • Chilling effect going on over past few years
  • Often ask public officials for subtle issues but hear they will go to AG opinion on it
    • Elkins – could be delaying tactic
    • It is his sense of it, maybe if they delay long enough maybe it will not be news anymore

 

Peyton McKnight, American Council of Engineering Companies of Texas 

  • Issue regarding hypothetical examples and concern of release on proposals not contracts
  • Number of requests being made by competitor firm or headhunter firm seeking additional information
  • Believes proposals are propriety information
  • Elkins – believes proposals are public once they move to contract
    • Not necessarily
    • Not asking for all proposals but those that have proprietary information
  • Elkins – want work product exempt?
    • Design contract with plans and specs would be public but would want to hold back part of the proposal that went into winning the job
  • Elkins – gave a historical example of a person who perfected how to fix an amplifier, so that is basically what you want to be held back?
    • Advocates for proprietary information in proposal needs to be protected

 

Justin Gordon, Open Records Chief at Attorney General Office

  • Uresti – can you charge the requestor for an hourly fee
  • Cannot charge the requestor for an amount you pay employee but can for labor cost used around $15hr
  • Very common body could have charges but didn’t ask for them
  • Cost estimate would need to be sent in before work is started
  • Uresti – asked about items witness asked about in prior determination letter being codified?
    • Legislature has already codified withholding certain information in three examples given by the witness
    • Uncommon to see a request for something only on things like DL and SSN numbers

 

 

Harvey

  1. Examine the role of technology in disaster preparedness and the response to Hurricane Harvey and future natural disasters. Review and make recommendations to drive innovation and efficiency and evaluate whether there are any regulatory impediments to collaboration between the public and private sectors.

 

Caroline Joiner, Executive Director for TechNet

  • 2017 hurricane season was devastating
  • Throughout these disasters, tech companies played an important role in emergency response
  • Unmanned aerial vehicles (drones) were used to monitor flooded areas and identify individuals in distress
  • We recommend the state embrace policies which embrace drone development
  • Shelter managers and the American red cross used services like Lift to coordinate drivers
  • Social media sites functioned as a virtual command center, allowing for coordinated response efforts and for victims to plead for assistance
  • Cloud computing reduces concerns about whether data will be destroyed in a disaster because the data is stored off-site
  • Shaheen – requirements/mandates what needs to happen first
    • Look towards DIR
  • Shaheen – drones, why would you restrict in certain areas, what areas would you want to be allowed?
    • Will provide list and recommendations

 

Joshua Sanders, Lyft

  • Lobbyists for Lyft, read a statement on behalf of the company
  • Relief rides program started during Harvey
  • Have learned of state and federal funds to help reimburse for transportation, would like to work with the government to help access these funds

 

Bryan Mahalik, Regional Manager on AT&T FirstNet

  • Invested over $600 million in disaster recovery
  • Reviewed assets on the ground provided by AT&T during the disaster, maintained a 24/7 presence
  • AT&T had the capacity to send out drones to areas to provide visual inspection of cell site, sent out more than 40 drones to determine where it was safe to send crews to
  • AT&T also provided assistance in shelters such as cell phone batteries, Direct TV for children in the shelter, etc
  • First Responder Network authority established in wake of 9/11 – AT&T was selected for FirstNet providing communication for first responders

John Fanelli, Hughes Communication

  • State contract holder for a variety of communication services
  • Largest satellite-based broadband service
  • Listed numerous areas of support provided by Hughes during Harvey
  • Provided examples of FEMA use in response efforts such as during Puerto Rico response
  • Highlighted importance of satellite communication
  • Elkins – asked about satellite phones, a perception that satellite technology does not work in cloudy conditions
    • Rain fade can degrade the clarity of satellite technologies
    • But they are working on ways to counter that
  • Elkins – are cities using this as a backup?
    • Yes for emergency but emphasis is to use this during emergency preparedness, need backup communication on bad day
  • New breed of satellites being launched with more capacity
  • Elkins – asked about low orbiting satellite
    • Hughes is part of One Web
  • Elkins – technology advances are amazing
    • Agrees, key is preparedness
  • Notes there are more uses than for emergency communications
  • Discussion continued on devices/technology they offer such as flyaway

 

Donnie Gerault, CEO Cloud49

  • DIR approved cloud-based business
  • Let the software do work and create efficiencies
  • Can help reduce time regarding submitting an application and getting funding
  • Capriglione – talking about applications which is a higher level of skill?
    • Yes, taking fields filled out by hand and putting into system
    • Capriglione – sounds like human OCR
    • Absolutely but also provides check and balances

 

Disaster Recovery Services

  1. Evaluate whether qualifying state agencies are appropriately utilizing available state disaster recovery services, including the statewide technology centers. Consider the costs and benefits of allowing other states to participate in Texas’ statewide technology centers under Subchapter L, Chapter 2054, Texas Government Code for disaster recovery purposes.

 

Stephen Volbrecht, Office of Risk Management

  • Clarify the difference between continuity of operations and disaster recovery
  • Their office requires a continuity of operations plan
  • DIR will testify regarding IT Disaster Recovery which is interrelated to continuity
  • They do publish guidance on continuity of operations
  • During Harvey – $13.1 billion of state assets at risk, as a result of mitigation and continuity planning only experiences $13 million in loss
  • Capriglione – did insurance continuity come into play?
    • A report was given to legislature last session and believes this issue will come back up

 

Dale Richardson, DIR COO

  • Referred committee to powerpoint presentation
  • Defined IT disaster, an unplanned major event that prohibits access to data and data process more than typical 2 hr outage
  • Disaster Recovery plan is required
    • Plans should be tested
  • High availability of the system
    • Always signal point of failure
    • Still need a disaster recovery plan
  • Provided list of agencies that are currently in the program such as HHS, DPS, TxDOT which equates to 70% of state agencies data
  • Provides a history of where disaster recovery has come from
  • Have recently added disaster recovery as a service
  • Also, have corporate cloud contracts
  • Elkins – why did you use AWS and others
    • Agencies wanted those two primaries ones they wanted to connect to

 

Data Coordination 

  1. Study how state agencies can share knowledge and practices, reduce duplicative data gathering, and conduct business in a more efficient manner through interagency data sharing. Review best practices to provide the public with more transparency and access to government information.

 

Ed Kelly, Statewide Data Coordinator – DIR

  • Each state agency collects and manages data individually
  • Over past 2.5 years have approached accomplishing program goals
  • Collaboration Examples
    • Texas Enterprise Information Management Group was started to create a forum to share information and success stories
    • Open Data Portal User Group – publishers of 10 agencies share techniques
  • Texas Open Data Portal is an important component, provide a central location to post data
    • Agencies can now direct an individual to website making it faster and more convenient
    • Work with each agency during the onboarding process
  • Texas Data Management Framework – based on data industry practices
  • Texas Statewide Development Exchange Compact – major state agencies play an important role including DPS, AG, HHS and one document to rule them all in terms of data exchange to help expedite data exchange process
    • Leverage work on Interagency Transparency Commission
  • State Strategic Plan was utility with focus on three pieces (governance, sharing, and analytics)
  • Have also worked to get certain new positions
  • Today only 10 agencies participate by publishing information on portal, goal to have all agencies participate
    • Example is the Comptroller office, they can store data in secure cloud environment but also access information at the agency
  • Capriglione – do you find it difficult to get access to data from agencies? Or are they not putting it up quickly enough?
    • They continue to work with agencies, have had a number of calls finding out more about portal but it comes down to prioritization
    • Several agencies asked him to come do a presentation on what they can provide, purely voluntary effort on behalf of the agencies
    • Through continued efforts on improving portal features will see expanded use
  • Capriglione – Asked about CapMetro data and details about them
    • CapMetro has GPS locator on buses, it’s a highly used application
  • State agencies have had over 99k downloads, consider those public information request that agencies do not have to work on

 

Zenobia Joseph, Individual

  • Wanted to make comments regarding CapMetro and City
  • Difficult to get information from CapMetro
  • Would like to clean up language added to having work sessions of CapMetro posted online
  • Work sessions only have to be posted for school districts, would like to expand this
  • Spent $8 million on advertisement, will change about 200 routes in the city and on March 9 work session they discussed regional planning and change in routes
    • March 9th meeting was recorded
    • Found out they have posted some and removed other work sessions
  • Have requested several videos of work sessions and goes into details on efforts accessing information
  • Committee members commend witness for her efforts

 

DIR Update

  1. Monitor the agencies and programs under the Committee’s jurisdiction and oversee the implementation of relevant legislation passed by the 85th Legislature. In conducting this oversight, the committee will also specifically monitor the implementation of H.B. 8 (85R).

 

Nancy Rainosek, Chief Information Security Officer – DIR

  • HB 8 is a far-reaching bill that will have a significant impact
  • Have implemented items they have planned to for first two quarters
  • Regarding Section 5 – DIR has to set up a center and have it governed by Security Council which has Capriglione as a member
  • Regarding Section 7 – mandatory vulnerability assessments, have entered into a contract with AT&T to carry this out
  • Section 11 – assessment every two years and done through DIR portal, then report is provided to the legislature
    • Will do on up to 50 agencies per year and will then upload in the portal
  • Cyber Security Risk – setting up information security academy
  • Delivering state agency training and phishing exercises
  • Digital Study Storage – working with library archives on the study, released a questionnaire on how agencies are storing data, will then facilitate a session with agencies culminating in a report to the legislature

 

 

Chair Concluding remarks: will be working on a report to get back to speakers office, trying to get done before September this year