The pieces of legislation lifted protections on government contracts with private vendors, like RFPs, from scrutiny and clarified that official communications, even on state workers’ personal devices, is now public record.
Sen. Kirk Watson, D-Austin, authored Senate Bill 943 and Senate Bill 944, which represent a welcome update to the state’s Public Information Act (PIA) that has sat untouched by the Legislature for two decades, according to legislative analysis.
Texas Supreme Court decisions in 2015 allowed for contracts to be withheld if it would cause competitive harm, but with the passage of SB 943, agreements after Jan. 1 will be available for public review.
SB 944 is a holistic update of the PIA and gives government entities the power to obtain public information stored on employees’ private devices, which took effect on Sept. 1.
“Government transparency is critical for accountability and to prevent waste, fraud, and abuse,” Watson said in an email to Government Technology. “… SB 943 and SB 944 made many changes to restore the public's right to know, including changes to ensure government officials cannot hide public information on their private devices and that the public can obtain critical contracting information like total price, deliverables and deadlines.”
Smarsh, an electronic communications capture company based in Portland, Ore., partners with state, county and city governments as a vendor solution that copies and stores official messages in emails, texts and other formats.
Robert Cruz, the senior director of information governance at Smarsh, said agencies in the public sector and companies in the private sector seek out his company to expedite responses to public records requests and litigation.
“This is not a new area of technology, if you look at mobile device management and all the different containerization approaches that have been around for a long time,” Cruz said. “But I think there’s a lot of lack of information as to how you would be able to do simple things like be able to separate what’s personal communication versus what’s communication for business or government purposes.”
Cruz explained the two common methods deployed to monitor official communications include “bring your own device (BYOD)” or agreements with service providers, such as AT&T. He said his company's solution can see all communication on an agency-owned device in near real time, but for personal devices Smarsh works with telecommunications companies to deploy a capture method that sits behind the message traffic to grab a full copy of exchanges for storage on servers at Smarsh or the agency.
“The regulated industries are all in sort of similar situations as far as their retention policies and just the desire to want to retain records,” Cruz said. “I think that the notion of making sure the retention policies are including devices, we’ve seen a lot of firms take that step and essentially we’re just providing them a mechanism to automate it on the back end so that we can be confident that it’s all there.”
Daxton Stewart, a media law professor at Texas Christian University, co-wrote a legal analysis on the alleged competitive harm clause used to stop contract public records requests. Stewart said previous attempts to close these loopholes failed to make headway during the 2017 legislative session and that the bills’ passage in 2019 was long overdue.
“[SB 944 is] a recognition of what it’s like in the modern age and how people communicate, particularly our public officials, they have private devices and they can text on them, email on them, they might be using encrypted chat apps on them,” Stewart said. “If you’re doing any of those things, you need to be finding a way to document and keep those records for request.”
Cruz said from his vantage point in the private sector, the additions to the Texas Public Information Act eliminates ambiguity and clearly identifies government agencies’ responsibilities.
“I think it’s a very explicit step, but I think it’s one where we’ve seen from other states that open records requirements, and parallel requirements on the commercial side, they imply that any communication device is fair game,” Cruz said. “What constitutes a record is really about the content and the context of the communication, whether it’s email or social media or face-to-face. We’re talking about the business of the agency’s work or its ongoing activities then that obligation applies.”
