Senate Bill 943 (SB 943) was recently signed by Governor Abbott and substantially amends Texas’ Public Information Act (PIA). The amendments to the PIA will take effect on January 1, 2020, and will likely have significant impacts on disclosure obligations under the PIA. Governmental entities and those that may contract with governmental entities must evaluate the new law and how it may impact your responses to PIA requests.
The most significant change made by SB 943 is the statutory clarification of the Texas Supreme Court’s 2015 decision in Boeing Company v. Paxton. In Boeing, the Texas Supreme Court held that the disclosure exception provided by Section 552.104 of the PIA applied to private parties. Following this 2015 decision, government vendors and contractors cited 552.104 as their basis for objecting to public disclosure of documents when such disclosure would provide an advantage to a competitor or bidder. In passing SB 943, the Texas Legislature has effectively reversed the Boeing decision and clarified that Section 552.104 can only be invoked by “governmental bodies” when the governmental body proves that public disclosure of the requested documents will harm the governmental body’s interests and provide “an advantage to a competitor or bidder in a particular ongoing competitive situation” or in a “particular competitive situation” that is “set to reoccur.”
Another important change encompassed within SB 943, is that the PIA will clearly specify that “contracting information” is public, must be disclosed unless an exception applies, and is defined to include: “information in a voucher or contract relating to the receipt or expenditure of public funds,” “bid documents relating to a contract with a governmental body,” “communications between a governmental body and vendor/contractor or potential vendor/contractor during negotiations and performance on the contract,” and “documents showing the governmental body’s criteria for evaluating bids.”
In addition, SB 943 specifies that an entity cannot argue that the following types of “contracting information” are protected by the trade secret and commercial and financial exception or the proprietary information exception:
- The overall price;
- The price and description of items or services to be delivered;
- Delivery and service deadlines;
- Remedies for breach of contract;
- The identity of parties to a contract;
- The execution and effective dates; and
- Information connected to a vendor or contractor’s performance on the contract.
SB 943 also creates a new third party exception within the PIA for the “confidentiality of proprietary information.” Located in the newly created Section 552.1101,this exception will apply to vendors, contractors, potential vendors, or potential contractors who have submitted “proprietary information” to a governmental body in response to a government bid or proposal. In order to prevent public disclosure of this “proprietary information,” third parties must demonstrate “based on specific factual evidence” that disclosure of the information would provide an advantage to a competitor and will reveal an internal, individualized approach of the non-governmental entity to which the PIA request inquires.
In addition, SB 943 creates an entirely new subchapter within the PIA that applies to any non-governmental entity that enters into a contract with a governmental body requiring a public expenditure of $1 million or more. When a governmental body receives a written request for public information in connection with such a contract, and the public information is held by the non-governmental entity, the governmental entity must forward the request to the non-governmental entity within three business days. Furthermore, the governmental body has eighteen business days from receipt of the public information request to ask the Attorney General if the requested information falls within an exception to the PIA.
Finally, SB 943 revises Section 552.003(1)’s definition of “governmental bodies” to include certain confinement and civil commitment housing facilities, and excludes certain economic development entities. It also enables certain economic development entities to claim exceptions to public disclosure under Section 552.305, and provides a statutory definition of “trade secret” in Section 552.110.
Other Legislation Amending the Public Information Act
While SB 943 includes the most substantial changes to Texas’s PIA, the Legislature passed several other bills that may affect compliance with the PIA. They are:
- HB 81: Provides that information related to a governmental body’s receipt or expenditure of funds related to a publicly-funded “entertainment event,” such as a parade or concert, must be disclosed under the PIA. HB 81 is effective immediately.
- HB 2446: Exempts from public disclosure certain personal information regarding firefighters, volunteer firefighters, and emergency medical services personnel. HB 2446 is effective immediately.
- HB 3175: Exempts from public disclosure certain personal information provided by an individual or household in connection with state or federal applications for disaster recovery funds. HB 3175 takes effect on September 1, 2019.
- HB 3913: Exempts from public disclosure certain personal information obtained by Harris County flood control districts in connection with operations related to a declared disaster or flood. HB 3913 takes effect on September 1, 2019.
- SB 494: Establishes that PIA requirements do not apply to governmental bodies impacted by certain types of “catastrophes,” such as floods, fires, hurricanes, epidemics or enemy attacks. SB 494 takes effect on September 1, 2019.
- SB 944: Clarifies that public information maintained on a privately owned device must be maintained appropriately or transferred to the governmental body to be preserved. SB 944 also specifies the methods by which a member of the public can make a request for information, and how governmental bodies must communicate the location to which requests are received. SB 944 also requires the Attorney General to create a public information request form that gives requestors the option to exclude certain information that is confidential or subject to an anticipated exception. SB 944 additionally clarifies the ownership of public information created or received by a governmental officer or employee. SB 944 takes effect on September 1, 2019.
- SB 988: Relates to the assessment of litigation costs and attorneys’ fees in lawsuits initiated under the PIA by a governmental entity. SB 988 provides that the assessment of costs and reasonable attorneys’ fees are not granted to either party “unless the court finds the action or defense of the action was groundless in fact or law.” SB 988 takes effect September 1, 2019 and applies only to an action brought on or after September 1, 2019.
For more information on how this could impact your organization or governmental entity, contact:
- Michael A. Shaunessy, Partner (firstname.lastname@example.org, 512-495-6061)
- or another member of the McGinnis Lochridge Government Practice Group