More Lessons in Open Government

The Inside Scoop

Ray Quiroga

DECEMBER 7-13, 2018


Several years ago, at the onset of what was a brief but intense public fervor over the West Nile Virus, it was discovered that there was at least one case of the virus reported here in San Benito and possibly more around the Resaca area in the vicinity of what was not-so-affectionately dubbed as La Cuadra (Skid Row).
The problem came when we attempted to confirm the report with the Texas Department of Health. Understanding that the Health Insurance Portability and Accountability Act of 1996 (HIPPA) limited access and information regarding the specific individual or individuals who were infected, we asked and were denied mere confirmation that a confirmed case of West Nile had been recorded in the Resaca City. HIPPA is legislation that provides data privacy and security provisions for safeguarding medical information. The law has emerged into greater prominence with the proliferation of health data breaches caused by cyberattacks and ransomware attacks on health insurers and providers. In a response to a Freedom of Information (FOI) request, the state claimed that even the confirmation of West Nile in this city would subject the state agency to a HIPPA violation. With our request firmly denied, our next move was to appeal to the Texas Attorney General’s office, which sided in our favor, not only forcing the department of health to grant our request but also publically chastising the state agency and penalizing it monetarily.
I mention this to illustrate my firm belief that relatively few things, in a relatively free society, should be kept from the public, outside of information hindering national security, or, regarding local matters, issues that would put public entities at a disadvantage pertaining to normal business dealings.
A few editions back, I touched on open meetings of our local board of trustees and how the San Benito school district redacted the record of their most recent school board meeting to edit comments made by a citizen and business owner regarding to the treatment of district employees. But another phenomenon well practiced by multiple public entities and jurisdictions pertains to closed door, as called executive sessions. The first common misnomer is that officials taking part in the closed door session are barred from publicly commenting on said session. That’s simply not true. No one can stop anyone from making such a comment. Rather that would be advised or even smart, may be another question, but elicit? Not necessarily.
Then there’s the practice of vaguely wording agendas as they pertain to employee actions behind closed doors. For example, rarely will an executive session agenda item specifically reference an employee by name and position, as deemed by law. Instead, the public is more likely to see wording in more general terms. The difference comes down to the employee’s right to know he or she is on the agenda and whose future may be discussed before the governing body. The employee also has the right to have the item pertaining to him or her in open session. That’s hard to have happen if the public and that specific employee doesn’t even know he or she is up for discussion behind closed doors. Yet another typical practice is for the governing body to come out of Executive Session and taking action on the item or items discussed in Executive Session without specifying what those items were. In other words, if the governing body discussed the resignation of City Manager Joe Smith, that governing body is required to come out of executive session and vote or take no action (“table”) the “resignation of City Manager Joe Smith” and not just say something to the effect, “We vote on the item(s) discussed in Executive Session,” as occurs all too often. The caveat to all this is if a class of employees is up for discussion such as if the teachers or custodians are up for a pay raise or disciplinary action as a group. In that case, the discussion and decisions need to be in open session.


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