The House Committee on Government Transparency & Operations has published its interim report to the 86th Legislature.
The report examines topics including the use of technology in disaster preparedness, disaster recovery services, open meetings during disasters, recent Texas Supreme Court Public Information Act rulings, interagency data sharing, and implementation of the Texas Cybersecurity Act (HB 8, 85th). For full details, analysis, and conclusions drawn by the committee, please see the complete report.
Spotlight on Recommendations
TECHNOLOGY IN DISASTER PREPAREDNESS
- As state and local agencies continue to evolve with technology to create better systems for quicker disaster relief, the committee encourages them to use every tool possible — including embracing and leveraging the wide network of technology assets at private companies. Collaboration is key. The State of Texas should encourage emergency management officials to forge partnerships with innovative technology companies so they can better complement state and local efforts.
- Planning and Communication are key elements to the successful implementation of any effort. The committee encourages the state to coordinate its resources and use its authority to help aide local governments in the planning process to better incorporate the private sector and its resources. Ensuring there are proper communications channels between the government and the public during these events is imperative for the safety and success of any relief efforts. People need to know what resources and help are available to them before, during and after a major disaster.
DISASTER RECOVERY SERVICES
- Require all state agencies to include in their COOP a section on their disaster recovery services and testing. All agencies are required to submit a COOP. In order for the state to know which agencies have appropriate disaster recovery plans, each agency should include their disaster recovery plans and testing requirements that follow appropriate model guidelines in their COOP.
- Require all state agencies, not in the data center, to include in their IT contracts a provision mandating disaster recovery services and testing. Whereas all agencies are required to submit a COOP, all agencies are not required to submit a disaster recovery plan or to test their plans. By including in contracts for outside data services a provision following model guidelines, the state could be more assured of appropriate disaster recovery plans and testing by agencies.
- Allow other states to become customers of the state’s data center. Subchapter L, Chapter 2054, Government Code, currently does not allow for tax payer funded entities outside the state of Texas to access DCS services. A legislative policy change would be required to allow other states to become customers. To date, several other states have expressed interest in having discussions about using the DCS program in their DR plans, including Kansas, Vermont and Georgia.
OPEN MEETINGS DURING DECLARED DISASTER
The Committee recommends that the 86th Legislature explore the following amendments to Chapter 551 of the Government Code:
- Explicitly state that the County Judge, as Emergency Manager, can communicate with individual commissioners during state or federally declared disasters in order to gather or disseminate information pertinent to individual precincts.
- Explicitly allow Commissioner’s Court members to ask questions on conference/video calls with any county official, even if a quorum is present, during times of state or federally declared disasters.
- Modify the posting requirements for emergency meetings in the event the physical location where notice must be posted is inaccessible due to a catastrophe.
- Allow a good faith attempt to comply with the posting requirements of the Act to be sufficient when failure to comply is due to the inability to access the posting locations because of a catastrophe.
- Allow teleconferencing at an alternative location if the regular meeting location is inaccessible due to a cause outside of the governmental body’s control.
RECENT TEXAS SUPREME COURT PUBLIC INFORMATION ACT RULINGS
The Committee recommends that the 86th Legislature explore the following amendments to the Public Information Act, Government Code, Chapter 552:
- Adopt the statutory definition of “trade secret” for use under the Public Information Act – Since Texas has now adopted the Uniform Trade Secrets Act [TUTSA], all commercial disputes involving “trade secrets” will be litigated using the procedures and definitions of that statute. As such, there will likely be no more case law in Texas regarding the common law definition of “trade secret” created by the courts and applied by the attorney general’s office in reviewing public information requests. In order to provide the Open Records Division, as well as the requestors and interested third parties, with the benefit of the legislature’s more detailed and modern definition of trade secret, and any contemporary case law applying it, an amendment is needed. Otherwise, the public information process will be condemned to applying a fossilized definition of “trade secret” without any hope of future guidance. By adopting the TUTSA definition of “trade secret”, the legislature made the policy decision that the prior common law definition was insufficient to meet the needs of a modern, vibrant economy largely shaped by technology and information. An application of the TUTSA definition could be accomplished by either: Amending Civ. Prac. & Rem. Code, §134A.007(d) to specify that the definitions and case law (but not the procedures) from TUTSA should be used in public information review, or Amending Gov’t Code §552.110(a) to incorporate the TUTSA definition into the PIA exception.
- Provide more detailed criteria for applying existing exceptions – It would appear that most of the dissatisfaction with the application of the Boeing opinion lies not with the fundamental question addressed by the case – whether or not the §552.104 exception may be raised by third parties. The debate lies more in what elements need to be established in order for the exception to apply and for information to be withheld. While it is difficult for the Open Records Division to make factual determinations in the letter briefing process, it cannot be avoided when applying the exceptions in the PIA. There are two exceptions where criteria and/or clarification would be particularly helpful:
- Gov’t Code §552.104 is the exception addressed by the Boeing opinion. The Legislature could provide detailed criteria setting forth what facts a bidder or competitor needs to show in order to qualify for the exception. It could also specify types of information that could not be withheld under the exception, like the ultimate price to be paid under a final contract and the goods or services to be received. Most bidders and competitors are primarily interested in protecting line-item, detailed information about the methodology that generated their ultimate price, but certainly understand that taxpayers have a right to know how public funds are spent. An amendment clarifying the balance between these interests would prevent some of the more egregious examples of letter rulings relying on the Boeing opinion.
- Gov’t Code §552.110(b) is the exception most commonly cited prior to Boeing. The statute requires “specific factual evidence that disclosure would cause substantial competitive harm,” but provides no definitions or guidance as to what the evidence must prove. This exception was a source of inconsistent and sometimes conflicting rulings which made it very difficult for the business community and the governmental entities to anticipate what information would be found to be public. Defining terms and/or providing elements to be proven by the “specific factual evidence” would remove a great deal of uncertainty and delay from the public information process.
- Improve notice to third parties – Gov’t Code §552.305(d) requires that a governmental body referring a PIA request to the Open Records Division must make a good faith attempt to notify any party whose information might be released, so that party may submit a briefing. Typically, governmental bodies only provide notice to the party that submitted the information, and make no attempt to provide notice to other third parties identified in the information being requested whose interests would likely be affected. An amendment could clarify that all those with an interest in the information need to be notified, and could specify whether the governmental body is responsible for notifying all parties, or whether the party that submitted the information to the governmental body should be responsible for notifying the additional parties
- Transparency in briefing — Gov’t Code §552.305(e) requires that any person submitting a briefing to the Open Records Division must send a copy to the requestor. There is no requirement that a brief submitted by the requestor or briefs submitted by other third parties should be copied to all persons submitting briefs. Occasionally a letter ruling is issued that refers to a briefing provided by a requestor that was never seen by parties that submitted letter briefs, which undermines trust in the process. To avoid placing a burden on requestors or governmental entities, consider adding §552.305(f) to provide that an interested third party could request that the Open Records Division provide notice and a copy of any briefing filed.
- Clarify that governmental entities must respond to PIA requests for those private and/or non-profit entities with which they contract. Private, non-profit entities are not governmental entities, but the contracts they receive from governmental entities should be made public. Private, non-profit entities do not have appropriate staff to respond to PIA requests, whereas governmental entities, cities, and counties budget for and use taxpayer dollars to respond to all duly submitted open records requests. These governmental entities have a team of trained Public Information Act staff whose job is to respond to such requests. In addition, there needs to be clarification that not only the funds, but the specifics of the contracts should also be made public along with the audits and work product the private entity is to fulfill.
- Reduce unnecessary submissions to OAG – It would be beneficial to all involved in public information requests to reduce the workload of the Open Records Division. A pair of simple suggestions for accomplishing this include the following:
- Specify that certain exceptions should be applied by the governmental body without referring them to the AG’s office. In 2009, Attorney General Greg Abbott issued Open Records Decision ORD-684. This decision permitted governmental bodies to withhold certain information that is undisputedly confidential without referring it for AG review by relying on ORD-684 as a previous determination. This is specifically permitted by §552.011 and §552.301(a). However, governmental bodies still refer requests including these basic exceptions for AG review. ORD684 listed the following types of information that may be withheld: direct deposit authorization forms, I-9 employment eligibility forms, W-2 and W-4 income tax forms, certified agendas and recordings of meetings designated as closed under the Open Meetings Act, fingerprints, L-2 and L-3 forms filed by law enforcement personnel, driver’s license and vehicle registration information, access device information (like credit card and bank account numbers, etc.), private e-mail addresses, and military discharge records. An amendment to the Act could instruct governmental bodies that not only may they withhold such information without referring it to the AG’s office for review, but that they must do so. The types of information listed in ORD-684 are a great place to start when considering exceptions that governmental bodies must attempt to apply without requesting an OAG ruling. Governmental bodies routinely handle these exceptions correctly and they are found in many government records. Revising the PIA to require governmental bodies to withhold the information listed in ORD-684 would reduce the number of straightforward rulings requests. Other relatively straightforward exceptions could be added to the list in ORD-684, such as information submitted to state regulatory agencies that is expressly confidential and protected from public disclosure by state statute.
- Presume a narrow interpretation of a request unless the requestor specifies otherwise. A potential amendment to §552.222 could permit a governmental body to presume that a broad request for information does not encompass information typically excepted from public disclosure unless the requestor specifies otherwise. Types of information that could be included in this presumption could be attorney-client communications, personal information about private individuals, student records, or any of the types of information discussed in ORD-684 if there is no amendment to automatically withhold the information without AG review. Many PIA requests are delayed as a governmental body, based on a broad request, either conducts expensive and time-consuming reviews of information the requestor never intended to request, or submits multiple requests for clarification to the requestor pursuant to §552.222(b) to narrow the request. Most requestors do not actually intend to request things that are widely accepted to be confidential. Those that do would be able to specify that fact in the request. As long as there is notice of the default narrow interpretation combined with a guided application of the exceptions, governmental body can demonstrate transparency and release relevant information in a more efficient manner. This suggestion is like previous actions the legislature implemented on an exception-by-exception basis. For example, PIA sections 552.130 and 552.136 were amended to permit a governmental body to withhold information without an OAG ruling or requestors’ prior authorization, if the governmental body provides a statutory notice. The requestor can appeal the withholding under these exceptions. Other provisions, including PIA sections 552.114 and 552.147, permit a governmental to withhold information without an OAG ruling, and do not require notice or provide for an appeal. Thus, the PIA already permits some information to be withheld without an OAG ruling or prior requestor authorization. These approaches could be expanded to other PIA exceptions.
INTERAGENCY DATA SHARING
- The Committee recommends that the Legislature encourage agencies to include their data in the Open Data Portal. Today, only 10 agencies participate by publishing their open data on the portal. Most state agencies publish data on their individual agency portal. Constituents who deal with multiple state agencies must traverse multiple web sites to find the information they are looking to obtain. The technology within the portal allows for agencies to have the data in both places, on their individual web site and on the Texas Open Data Portal at no additional cost. An example of this comes from the Comptroller’s office who last year decided to place all their open data on the Texas Open Data Portal and through a simple application programming interface, or API, they pull it back to feed their individual agency web site. This allows the Comptroller to store their open data in a secure cloud environment, at no additional cost to their agency, and have the information available in both locations. So effectively a citizen, researcher, journalist, private company, or anyone can access the same information in either locations.
- The Committee recommends that each state agency with more than 250 employees have a dedicated data management employee. To move forward, the state must offer continued support and focus on applying good data management practices. Keys to a successful data program include establishing a formal and defined data governance structure, led by dedicated data management professional(s). Having these two pieces in place allow agencies to focus on the opportunity and create the value that is within their data. Additionally, having dedicated resources across the enterprise allows for more data sharing discussions between agencies that can lead to overall better services for our citizens, better efficiencies for our operations, better coordinated fraud identification, and higher levels of security and management of our overall strategic asset, that is data.
- The Committee recommends that the position of Statewide Data Coordinator be changed from Statewide Data Coordinator to Chief Data Officer and the expiration date of September 1, 2021, as outlined in H.B. 1912, Section 2054.0286(d), be abolished. The position of Statewide Data Coordinator (SWDC) is critical to continue the progress of the Statewide Data Program while attaining the long-term program goals, objectives, and on-going success. In the role, the SWDC provides a driving and centralized focus on establishing best practices for data management, data sharing, open data government transparency and the use of data analytics as well as supporting agency and higher education enterprise information management. To maintain the view of Texas as the forefront of technology and to align the position with industry best practices and other state’s similar data management programs, it is recommended that the position be changed from Statewide Data Coordinator to Chief Data Officer and the expiration date of September 1, 2021, as outlined in H.B.1912, Section 2054.0286 (d), be abolished.
HB 8 IMPLEMENTATION
- The Committee is pleased with the efficient manner in which DIR has implemented the requirements of HB 8.
