COVID-19 and the Public Information Act

by Holly James

The Office of the Attorney General (OAG) has issued the following guidance concerning the calculation of business days under the Public Information Act (PIA) during the response to COVID-19:

  1. Holidays observed by the governmental body are not business days.
  2. Weekends are not business days.
  3. Skeleton crew days are not business days.
  4. A day on which a governmental body’s administrative offices are closed is not a business day.
  5. If a governmental body has closed its physical offices for purposes of a public health or epidemic response or if a governmental body is unable to access its records on a calendar day, then such 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.

Most school districts will benefit from at least one of the points above due to the current epidemic.  Specifically, the fifth point will allow districts to not worry about PIA timelines as those are deferred until normal business days begin to occur again.  Districts should evaluate current in-house requests, as well as any new requests, and keep an accurate calendar to track response dates.

Additionally, Senate Bill 944 amended the Government Code last summer to allow for a temporary suspension of PIA requirements for governmental bodies impacted by a catastrophe.  Under the new section 552.233 of the Government Code, a school district may suspend the requirements of the PIA for up to 14 days if the district is currently impacted by a catastrophe and provides the required notice to the OAG.  The new provision defines a catastrophe as “a condition or occurrence that interferes with the ability of a governmental body to comply with the requirements of [the PIA].”  The statute lists several examples of catastrophes and specifically includes an epidemic.  To invoke this provision, the district must provide notice to the OAG, and the OAG will in turn post that notice on its website.  Districts must also provide notice to the public of the suspension in a place readily accessible to the public and in any other posting location required by the Open Meetings Act.

The required catastrophe notice is available for download here and may be electronically submitted to the OAG here.  The OAG has compiled instructions to assist with the completion of the notice.

The initial suspension period may begin up to two days before the governmental body provides notice to the OAG but may not be longer than seven consecutive days.  The initial suspension period may be extended one time for an additional seven consecutive days, and the extension must begin on the day following the end date of the initial suspension.  The total timeframe of the suspension should not exceed fourteen (14) days.  Districts seeking an extension beyond the initial suspension period must submit an updated notice to the OAG.

Any PIA request that a district receives during a suspension period is considered to have been received on the first business day after the date the suspension ends.  As for PIA requests received before an initial suspension period begins, the deadlines under the PIA are tolled until the first business day after the date the suspension period ends.  When calculating deadlines, districts should be mindful to include any business days prior to the initial suspension period in their calculations.

The OAG’s guidance issued in light of COVID-19 explains that the suspension process under section 552.233 is appropriate where a district is open for business but determines that a catastrophe has interfered with the district’s ability to comply with the PIA.  On the other hand, if the district is not open for business due to COVID-19, or if the applicable suspension period does not encompass a business day, then the suspension process is not necessary.

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