Savvy public officials should familiarize themselves with the sweeping implications of the Texas Open Meetings Act ("TOMA"). Even innocent communications on a Facebook wall can violate TOMA. However, public officials often find themselves in a quandary of how to reconcile TOMA with technological advances such as online community boards that permit pragmatic, real-time discourse on a public issue.

In what has been dubbed as the "Endless Summer" legislative session, the 83rd Legislative Session brought us a tech bill that amends TOMA to begin to address 21st Century technological advances. Recognizing the need for communications and discussions to be held virtually, the Texas Legislature amended Texas Government Code § 551.006 to permit public official communications to take place on online community message boards without running afoul of TOMA.

So what does this TOMA exception mean for governmental entities? Section 551.006 exempts from TOMA those communications and exchanges of information between members of a governmental body about a public business or public policy over which the governmental body has supervision or control if:

  1. the communication is in writing;
  2. the writing is posted to an online message board or similar Internet application that is viewable and searchable by the public; and
  3. the communication is displayed in real time and displayed on the online message board or similar Internet application for no less than 30 days after the communication is posted.

Now, governmental entities can host their own online message boards. Public officials can chime-in on and debate public topics without fear of TOMA violations. But don't get too social media trigger-happy. Facebook, Twitter, and Instagram are not permissible online forums under Section 551.006.

The online board contemplated by Section 551.006 must be hosted by the governmental entity. While the online board may offer a great way for public officials to discuss topics, there are certain statutory limitations. For instance, no vote may take place on the online message board. Required action must still take place at a meeting and not on the online board. Only members of the governmental body or staff members are permitted to post communications to the message board. Finally, posts to the online board fall within the purview of the Texas Public Information Act ("PIA"). As such, posts are subject to PIA requests, and deleted and/or removed posts must be retained for six years.

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