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El Paso city government ends use of pandemic loophole in government transparency obligations

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The El Paso City Attorney’s Office use of a provision of the Texas Public Information Act that allowed it to delay responding to open records requests has ended.

The move comes after state lawmakers made amendments during the 87th Legislature to portions of the Texas Public Information Act that took effect Sept. 1.

The changes limit when a governmental body can consider itself under a “catastrophe,” a designation that includes the COVID-19 pandemic.

According to Texas Attorney General Ken Paxton’s website, the law clarifies that a “catastrophe” does not mean a period when staff is required to work remotely but can still access information responsive to an application for information electronically, but the physical office of the governmental body is closed.

It also clarifies that governmental bodies can only suspend the applicability of the requirements once for each catastrophe for a period of up to 14 business days. A governmental body must also submit a public catastrophe notice with the attorney general’s office if it aims to use the exemption.

City spokeswoman Laura Cruz Acosta said the city does not plan to submit a catastrophe notice.

“The city anticipates being able to meet the legal requirements and timelines moving forward; however, we are still in a very active pandemic and the overall organization continues to be impacted by COVID-19,” Acosta said.

Since the COVID-19 pandemic reached El Paso in March 2020, the City Attorney’s Office was using what’s called a “skeleton crew” provision of the open records law.

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.

Under normal circumstances, the 10-day mark is the deadline for a governmental body to either release documents to the public or seek an attorney general’s decision to withhold the records. If a governmental body fails to seek an attorney general’s opinion in time, the information is presumed to be public and the governmental body has to release the documents, according to the Freedom of Information Foundation of Texas.

Acosta said the City Attorney’s Office is also transitioning to a hybrid work schedule. The move comes as the City Council plans to revert to in-person meetings beginning mid-September.

The city has been holding meetings virtually since last March due to a suspension of provisions of the Texas Open Meetings Act. The suspension has since been reversed however, and all governing bodies in the state must return to in-person meetings.

The city’s practice of the skeleton crew provision meant inconsistent response times for access to public records. El Paso Matters has requested multiple documents from the city during the pandemic, with some being released promptly and others taking months to fulfill.

The City Attorney’s Office, according to the public information website, is no longer on a “skeleton crew” as of Sep. 1.

City Attorney Karla Nieman said in emails to El Paso Matters that the City Attorney’s Office has been calculating days that would be counted typically as non-weekends and non-holidays for records requests, but has had staff working remotely under the city’s telecommuting policy five days a week.

Joseph Larsen, a Houston-based lawyer with the firm Gregor Wynne Arney, said there was no need to use the skeleton crew provision if city staff have been working full-time.

“The fact of the matter is they’re not working with the skeleton crew at all. They’re just working with a full crew off site and the access to the documents is almost entirely electronic,” he said. “There is no impediment whatsoever to continuing to function as a normal government body.”

The use of the skeleton crew provision was originally designed in response to natural disasters and not meant for long periods of time. The City Attorney’s Office used the provision for about 17 months.

Nieman said despite the challenges of the pandemic, the City Attorney’s Office has reduced the average number of days it takes to respond to open records requests by 23%, or two fewer days in 2021 when compared to 2020. She said, on average, the response time is 6.76 days, compared to 8.83 days in 2020.

“This was also accomplished while experiencing a 36.4 percent increase in ORR requests in Calendar Year (CY) 2021. Over the last eight months the department recorded more than 13,000 ORRs compared to about 9,500 at the same time last year,” Nieman said.

Nieman said there is no backlog of requests since the majority of requests are handled within 10 days, but there are at least eight requests pending documentation from departments that are short-staffed due to the pandemic and have been open for 19 or fewer days.

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Elida S. Perez

Elida S. Perez is a longtime community and investigative reporter. Her experience includes work as city government watchdog reporter for the El Paso Times, investigative reporter for El Paso Newspaper Tree and communities reporter with the Salem, Oregon, Statesman Journal.

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