Despite assertions from state leadership that Texas is again open for business, delayed access to public records through the Texas Public Information Act from some local governments will continue indefinitely while the use of “skeleton crews” remains in place.

The El Paso City Attorney’s Office, in charge of processing open records requests, has been operating under a “skeleton crew” since March 16, 2020, when the city began issuing emergency ordinances to help slow the spread of COVID-19.

The practice has led to some excessive delays in the release of public information.

A leading attorney on First Amendment and government transparency laws said the use of “skeleton crews” is an outdated part of the Public Information Act.

“El Paso is the worst. The truth is there’s egregious examples all across the state and there’s really no — there’s no good reason for it,” said Joseph Larsen, a Houston-based lawyer with the firm Gregor Wynne Arney.

Larsen said government entities are supposedly following guidance from Texas Attorney General Ken Paxton regarding when an office is open, when it’s closed and when they have a skeleton crew. He said that portion of the Public Information Act is archaic because most documents are stored electronically and can be accessed from any location.

During the pandemic, several city departments and other government agencies have been working remotely. Prior to the pandemic, the Texas Public Information Act required government entities to produce or respond to records requests promptly, or within 10 business days.

“They’re doing it, quite frankly, because they see it to their advantage to slow down the speed at which information flows to the public,” Larsen said. “The city could change this in a minute, if they wanted to.”

City officials did not respond to El Paso Matters’ interview requests, but said in an emailed response that “the (reopening) date is updated each month after Council approves the emergency ordinance.”

The City Attorney’s Office is currently scheduled to work with skeleton crews through July 21, 2021.

El Paso Matters has placed numerous public information requests with various local government entities throughout the pandemic. Most requests placed with school districts, El Paso County, city of Horizon, the El Paso County Sheriff’s Office and the Rio Grande Council of Governments have been fulfilled promptly. Records requests made with the city of El Paso have been fulfilled sporadically with some completed within days, while others have taken weeks and months to fulfill.

Kelley Shannon, executive director of the Freedom of Information Foundation of Texas, sent Paxton a letter requesting that he update the Public Information Act to provide new definitions of “closed” and “skeleton crew” days at government offices in light of the pandemic.

Shannon stated in the letter that deadlines for compliance with the Texas Public Information Act are calculated in terms of “business days.” Through several different administrations including Paxton’s, the attorney general’s office has interpreted that term to exclude from the calculation legal holidays, but also days on which the specific governmental body to whom a request is addressed is either closed for business or operating with only a “skeleton crew.”

“Since the COVID-19 pandemic commenced in March (2020), however, many government offices have their administrative and office employees working remotely indefinitely while stating that the office is therefore ‘closed’ or on ‘skeleton crew,’” Shannon said in the letter. “We believe these days should be treated as business days for TPIA purposes if regular staff are on duty and performing their normal duties, but simply working away from the physical office.”

She also said skeleton crew days were previously used in instances such as natural disasters like hurricanes or tornadoes and were only meant to be brief and temporary.

Paxton’s office did not respond to a request for comment. 

The city of El Paso issues a standard response with every open records request submitted that states, in part, that “the City Attorney’s Office and other City Departments will be operating with a skeleton crew. Under the Texas Public Information Act and in accordance with the Texas Attorney General’s guidelines, skeleton crew days are not considered business days when calculating deadlines under the Act.”

The city’s public information center website updates the anticipated date for when the city attorney’s office will be fully staffed, but the date continues to be pushed back.

Gov. Greg Abbott has said multiple times, including in a recent tweet, that the state has fully reopened “100% without any restrictions or limitations or requirements.” But the emergency orders also allow for the suspension of a number of open meetings laws.

“Texas has been and remains 100% open. Governmental bodies have had the ability to hold in-person meetings for months,” Renae Eze, Abbott’s press secretary, said in an emailed statement to El Paso Matters. “The suspension of certain open-meeting provisions allowed them the option to hold virtual meetings if deemed necessary.” 

City officials have said there will likely be more staff returning to work in person in mid to late August, but it is unclear which departments will be fully staffed.