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Municipalities and record requests: When is a delay a violation of the law?

On Behalf of | Feb 5, 2024 | Municipal Law |

The balance is not an easy one. On the one side timely compliance. On the other: legal hot water. When it comes to Texas transparency laws, particularly the Texas Open Meetings Act (TOMA) and the Texas Public Information Act (TPIA), it is essential for municipal employees to discern between an acceptable hiccup in operations and a full-blown legal misstep. It is important for employees to know and adhere to the process. A failure to do so can result in allegations of intentionally stalling and a violation of TOMA or TPIA.

What laws govern these questions?

Municipal employees can benefit from a basic understanding of the two primary laws that govern these matters: TOMA and TPIA. Both help to ensure government transparency and keep the public informed about government operations. Three ways these laws help achieve this goal include the following:

  • Openness in meetings: TOMA requires that every regular, special, or called meetings of governmental bodies must be open to the public, except for expressly authorized executive sessions.
  • Notice of meetings: The law usually requires governmental bodies give advance notice of the date, hour, place, and subject of each meeting held.
  • Recording of meetings: Officials generally must keep either written or recordings of open meetings and post on the city website if available.

Government agencies may charge fees for copies of public information, but they must be reasonable.

What if we cannot immediately fulfil a request?

There are situations when a delay fulfilling a record request is reasonable. This could include unforeseen events like a natural disaster or the need to have additional executive sessions. Executive sessions can include meetings to discuss purchase of property, discussions with legal counsel, discussions on economic development, and security matters. These sessions are not open to the public.

However, ignoring the need for public meeting notices or withholding information that is not confidential under TPIA is likely a violation. Time is of the essence. Let the clock run out on a public information request, and you have likely ventured into violation territory unless there is a valid explanation. Additional errors that could rise to the level of a violation can include an attempt to mask discussions that should be public under the guise of an executive session.

Reviewing bodies will often meet honest efforts to comply, even if delayed, with understanding. However, play fast and loose with the rules, and you might find yourself facing fines or stricter penalties.

What happens if there is a violation?

Non-compliance with TOMA or TPIA can result in legal penalties, including civil suits, misdemeanor charges, fines, and potential imprisonment for officials who knowingly circumvent the acts. Municipal employees are wise to stay informed about the requirements of TOMA and TPIA to ensure transparency and to maintain the public’s trust. Regular training, diligent record-keeping, and a commitment to openness can help avoid legal issues and reinforce the integrity of our public institutions.

Unfortunately, even when these steps are taken municipal entities might find themselves in disputes with those who claim they did not timely deliver a records request. Some of these accusations are best addressed with negotiation while others could rise to the level of litigation.



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