Options for a Governmental Entity to Suspend the Public Information Act During a Catastrophe
The information below, prepared by BHDA attorneys Lori J. Robinson and Philip B. Arnold, addresses the options for a governmental entity to suspend the Public Information Act during a catastrophe. It addresses both the statutory procedure and the procedure in effect during the emergency declaration, as declared by Governor Abbott in March 2020.
Typically during a catastrophe, which includes an epidemic, a governmental body may suspend application of the requirements of the Public Information Act (“PIA” or “Act”), subject to the requirements of Government Code Section 552.233. Suspension of PIA requirements is not required during the days that the governmental body is closed for business, as those days are not considered “business days” for calculation purposes under Government Code Section 552.301.
The Attorney General’s Office provided an update to clarify the calculation of business days under the PIA:
According to the Attorney General, the following are not “business days” and do not necessitate a suspension of the PIA obligations under Government Code Section 552.233:
- Holidays observed by the governmental body
- Weekends
- Skeleton crew days
- If a governmental body has closed its physical offices for purposes of a health or epidemic response or is unable to access its records on a calendar day, then such a 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.
However, if the governmental body’s physical offices remain open and a large number of staff are out due to the catastrophe, an election to suspend the requirements of the Act is recommended.
Public Information Act Suspension During Catastrophe
Question: What is a catastrophe?
Answer: The definition of catastrophe includes an epidemic. A catastrophe is a condition or occurrence that interferes with the ability of a governmental body to comply with the requirements of PIA, including:
(A) fire, flood, earthquake, hurricane, tornado, or wind, rain, or snow storm;
(B) power failure, transportation failure, or interruption of communication facilities;
(C) epidemic; or
(D) riot, civil disturbance, enemy attack, or other actual or threatened act of lawlessness or violence[1].
Question: What does it mean to suspend the requirements of the Public Information Act?
Answer: Government Code Section 552.233 allows for governmental entities to suspend applicability of the requirements of the Public Information Act if there is a catastrophe and the entity complies with the notice requirements under that section. A period of suspension means a time during which a governmental body may suspend the applicability of the requirements of this chapter to the governmental body under this section.[2]
Question: How long is the suspension period?
Answer: A governmental body that remains open during a catastrophe can suspend obligations under the Act for up to 14 consecutive days. The first 7 days are considered the initial suspension period. A governmental body may extend the initial suspension period one time, for not more than an additional seven consecutive days. However, both the initial and subsequent 7 day suspension periods require compliance with Section 552.223. The entity must notify the Attorney General and complete the form found on the Attorney General’s website.
Question: What should a governmental body do if it elects to suspend the requirements of the Public Information Act?
Answer: First, a governmental body must submit a catastrophe notice to the Attorney General’s office and post the notice for the public. The notice submitted must be on the form provided by the Attorney General’s Office.
Notice to the public must be in a place that is readily accessible, including the governmental body’s website, and in the other locations the governmental body is required to post notice of a meeting under the Open Meetings Act.[3] The notice must remain posted during the period of suspension.
A notice is required for the initial period of suspension (7 calendar days). To request an extension, the governmental entity must submit an extension notice to the Attorney General on the form provided by the Attorney General and post this new notice for the public in the same manner.
Below are the relevant links to the Attorney General’s webpage on catastrophe notices, the link to the form provided by the Attorney General, and the link to the instructions.
https://www.texasattorneygeneral.gov/open-government/governmental-bodies/catastrophe-notice
Question: What if there are pending requests before the suspension period or during closure? What if a request is received during a suspension period or closure?
Answer: If the governmental body is closed, has a skeleton crew, or falls under any of the above examples that do not constitute a “business day,” the days closed do not count and the deadlines under the Act would be tolled until the first business day after closure. Any requests received during non-business days are not considered received until the first business day the governmental body opens.
If the governmental body remains open, the body’s obligations under the Act are delayed until the first business day after the date the suspension period ends.[4] Any requests received during the suspension are not considered received until the first business day after the period of suspension.[5]
[1] Tex. Gov’t Code § 552.233(1)
[2] Tex. Gov’t Code § 552.233(2)
[3] Tex. Gov’t Code § 552.233(f)
[4] Tex. Gov’t Code § 552.233(h)
[5] Tex. Gov’t Code § 552.233(g)