Faced with the challenges posed by the COVID-19 pandemic, the February winter storm energy shortages, and redistricting, most observers thought there would be little time left in the 2021 Texas legislative session for bills advancing the interests of open government and journalists. They were right. While a surprising number of bills beneficial to Texas newsrooms were filed, few were enacted. The good news was that the same fate awaited some bad bills which could have reduced government transparency and hobbled journalists. Alongside longtime Jackson Walker client Texas Association of Broadcasters, I was in the trenches and can provide the following summary.
Only two of TAB's eight newsroom legislative priority bills made it to the governor's desk, and both will become effective September 1. Open access advocates discovered that during periods subject to disaster declarations by the governor, governmental bodies whose offices were closed used this as an excuse to postpone responding to requests under the Texas Public Information Act, even though their employees were working from home and could have made timely responses. SB 1225, sponsored by Senator Joan Huffman, specifies that a catastrophe would not include a period when the physical office of the governmental body was closed, but staff was required to work remotely and could electronically access information responsive to TPIA requests. Where work did not continue remotely, the bill caps the suspension period at 14 calendar days for each catastrophe and requires immediate resumption of compliance with the TPIA thereafter.
The other, SB 930 sponsored by Sen. Judith Zaffarini, requires local and state health authorities to release information about infectious disease outbreaks in nursing homes and assisted living centers, including the names of those facilities and the numbers of residents diagnosed.
As is often the case, the death or substantial revision of a bad bill can be equally important to protecting Texans' right to know. One such bill dubbed the "Expedited Response Act" sought to empower governmental bodies with the ability to "grade their own test" by allowing them 10 business days to decide for themselves whether they must respond to a TPIA request for information. The bill would have then shifted the burden to the requestor to appeal the denial to the same governmental body that issued the denial; five business days after receipt of the appeal would have to pass before the government was finally required to seek an opinion from the Attorney General. Far from "expediting response," the bill would have lengthened the time to obtain a response from a governmental body bent on stalling.
HB 54, which was passed and signed by the governor, prevents Texas law enforcement agencies from entering into contracts with "reality television shows" which film their activities while acting in the line of duty to be aired as "entertainment." Javier Ambler, the new law's namesake, died of heart failure after being tased and forcibly detained by a Williamson County sheriff's deputy following a 20-minute chase. The alleged offense was Ambler's failure to dim his headlights to oncoming traffic. A film crew for Live PD accompanied the deputy and captured the entire ordeal, a factor that bill sponsors cite as the reason for the heightened response leading to Ambler's death. While well-meaning, the bill when first introduced did not define what constituted a "reality television show" and thus could have been construed to include legitimate broadcast news reporting. TAB successfully added language to the bill that defines "reality television show" as one primarily for entertainment, and clarifies that it does not apply to newsgathering by a journalist as defined by the state reporter shield law.
In a disturbing trend, several bills enacted into law added to the growing list of local, state, and federal officials whose personal identifying information can be withheld from public records, further frustrating the ability of journalists to confirm the accuracy of their stories. Other bills which would have regulated the location of wind energy towers without regard to their proximity to (and interference with) television and radio broadcast antennas failed.
Because the governor has already called two special sessions and a third is planned, the defenders of public access and a robustly free press in Texas will have to remain vigilant during the dog days of summer.
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