Education Lawyers | Leasor Crass, P.C.

Welcome to Leasor Crass, P.C. Leasor Crass, P.C. is a boutique law firm located in Mansfield, Texas, with a main focus on the representation of public schools. The firm is managed by Mike Leasor and Rhonda Crass, seasoned attorneys with …

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March 17, 2020 By LeasorCrass

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.

Filed Under: Blog, COVID-19, Public Information Act

August 12, 2019 By LeasorCrass

Public Information Overload

Felicia Webb
by Felicia Webb

The 86th Legislature was hard at work this year drafting and pushing bills affecting school districts across Texas. One such bill you should be aware of may affect the way school districts handle the all too familiar Public Information Act request. Senate Bill 944 is effective September 1, 2019 and makes several changes to the Public Information Act. Most notably, the bill adds a definition for temporary custodians and sets forth the duties and penalties for any violations.

What is a temporary custodian and why should you care?

A temporary custodian can be any current or former employee or trustee who created or received public information in the transaction of official business or in their official capacity and who has not provided the information to the school district. In other words, if you have ever sent or received a text message on your personal cell phone regarding district business, you may be a temporary custodian.

Any information held by a temporary custodian is subject to records preservation, retention, and disposition laws under the Texas Government Code and Texas Local Government Code. This means any public information, even if located on a personal device, must be retained and preserved in accordance with the mandatory retention laws of the State.

Additionally, the bill makes clear temporary custodians have no personal or property rights in public information. Therefore, all current or former employees or trustees who maintain public information on their personal devices are required to (1) forward the information to the school district or the school district’s server; or (2) preserve and retain the information, in its original form, on the personal device for the legally mandated retention period.

School districts’ public information officers have a duty to use reasonable efforts to obtain requested information from temporary custodians if a public information officer is aware of facts amounting to a reasonable belief that a temporary custodian has possession, custody, or control of requested information. A temporary custodian is required to surrender and return any requested information in their possession, within ten (10) days of a request from a public information officer.

A violation under this law may result in disciplinary actions by the school district against the temporary custodian, if employed, and any penalties under the Public Information Act or other law. Penalties under the Public Information Act include criminal remedies, such as official misconduct and criminal negligence, and civil remedies.

What else should you know about Senate Bill 944?

Assuming a school district receives a public information request and is seeking an Attorney General decision, an original request from a requestor for information in the possession of a temporary custodian is not considered received by the school district until the date the information is surrendered or returned by the temporary custodian. Because temporary custodians are required to return or surrender such information within ten (10) days of a request from the public information officer, this results in the tolling of certain Public Information Act timelines.

Lastly, the bill allows school districts to designate one mailing address and one email address for receiving public information requests. Such addresses must be provided upon request. However, a school district that designates and posts the designated mailing and email address on its website or its Public Information Act sign is not required to respond to a request until it is properly submitted at one of the designated addresses, by hand delivery, or by another method properly approved by the school district. Please note a method is only considered approved by a school district if the district includes a statement indicating that a request for public information may be made by that method on its required Public Information Act sign or the district’s website. For example, a district may require all public information requests be submitted via email at a designated email address, by hand delivery at a physical address, or mailed to the department that handles all public information requests.

If you have any questions or concerns about how Senate Bill 944 may affect your district or need any policy recommendations for the future, please do not hesitate to contact the attorneys at Leasor Crass.

Filed Under: Blog, Legislative Update, Public Information Act

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