Texas Public Information Act: An Overview

Texas Public Information Act: An Overview

Texas Public Information Act: An Overview Tamara Smith Open Records Division Office of the Attorney General Elements of Training Background of the legal requirements for open records and public information Applicability of the Public Information Act Procedures and requirements regarding complying with a public information request The role of the Attorney General under the Public Information Act

Penalties and other consequences for failure to comply with the Public Information Act Background of the Legal Requirements for Open Records and Public Information Open Records Letter Rulings Issued in Fiscal Years 2001-2019 35,000 30,000 25,000 20,000 15,000 10,000

5,000 0 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 Public Information by the Numbers Originally Adopted as the Open Records Act in 1973 Found in Chapter 552 of the Government Code 34,911 Open Records Letter Rulings issued in fiscal year2019 688 Open Records Decisions issued since 1973 Chapters 63 and 70 of title 1 of the Texas Administrative Code have rules related to administration of the Act

Texas Government Code Chapter 552 Section 552.001. Policy; Construction (a) Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees . . . The provisions of this chapter shall be liberally construed to implement this policy. (b) This chapter shall be liberally construed in favor of granting a request for information.

Applicability of the Public Information Act Public Information Defined (Slide 1 of 2) Govt Code 552.002(a) Public Information means information that is written, produced, collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business: 1) by a governmental body; 2) for a governmental body and the governmental body owns the information, has a right of access to it, or spends or contributes public money for the purpose of

writing, producing, collecting, assembling, or maintaining the information; or 3) by an individual officer or employee of a governmental body in the officers or employees official capacity and the information pertains to official business of the governmental body. Public Information Defined (Slide 2 of 2) Govt Code 552.002(a-1), (a-2) Information is in connection with the transaction of official business if the information is created by, transmitted to, received by, or maintained by an officer or employee of the governmental body in the officers or employees official

capacity, or a person or entity performing official business or a governmental function on behalf of a governmental body, and pertains to official business of the governmental body. The definition of public information provided by Subsection (a) applies to and includes any electronic communication created, transmitted, received, or maintained on any device if the communication is in connection with the transaction of official business. Official Business Defined Govt Code 552.003(2-a) Official business means any matter over which a governmental body has any authority, administrative duties,

or advisory duties. Temporary Custodian Govt Code 552.003(7) Temporary custodian means an officer or employee of a governmental body who, in the transaction of official business, creates or receives public information that the officer or employee has not provided to the officer for public information of the governmental body or the officer's agent[.] Govt Code 552.004(b) Requires current and former officers or employees of a governmental body who maintain public information on a privately owned device to either forward or transfer the public information to the governmental body, or preserve the public information in its

original form in a backup or archive. Forms of Public Information Govt Code 552.002(b)-(c) Information recorded on physical media: Paper, film, or tape Magnetic, optical, or solid state storage And in any form: Audio or video recordings Photographs Maps Drawings Emails, Internet postings, text messages, instant messages, or other electronic communications

Governmental Body Defined Govt Code 552.003 The definition of governmental body encompasses all public entities supported in whole or in part by public funds, including: State agencies Cities and counties Public school districts and school boards Utility districts Police departments and sheriffs offices Public universities County commissioners courts

Municipal governing bodies Local workforce development boards Does not include the judiciary Procedures and Requirements Regarding Complying With a Public Information Request What is a Public Information Request? Must be in writing to trigger the PIA Must ask for information in existence as of the date the request was received No requirement to create new documents No requirement to answer questions No requirement to perform legal research

No magic words required No requirement to label it as an open records request or public information request Can be typed or handwritten Proper Methods to Submit a Request Govt Code 552.234 Request may be submitted by: U.S. Mail E-mail Hand Delivery Other methods approved by the governmental body Section 552.234(a) clarifies that the request must be delivered to the officer for public information on their

designee How Do Requestors Know Govt Code 552.221 Requires a governmental body to post a sign containing: The rights of requestors The responsibilities of governmental bodies

Procedures for inspecting and obtaining a copy of information Public Information Request Form Govt Code 552.235 Requires the Office of the Attorney General to create a public information request form that allows a requestor the option of excluding confidential information or information subject to an exception to disclosure that the governmental body would assert. A governmental body that uses the form and maintains an Internet website must post the form on its website.

Sample Requests What if the Request . . . (Slide 1 of 5) Was sent to the designated mailing address and asked for. . . John Smiths personnel file pursuant to the U.S. Freedom of Information Act. What if the Request . . . (Slide 2 of 5)

was handed to the front desk on a napkin? What if the Request . . . (Slide 3 of 5) Was e-mailed to the human resources department and asked for. . . any and all documents pertaining to Jane Smith, including, but not limited to, communications sent or received by her in the past five years.

What if the Request . . . (Slide 4 of 5) Was sent to the designated email and asked for. . . any and all communications Jane Smith sends or receives over the next 30 days starting tomorrow. What if the Request . . . (Slide 5 of 5) Was submitted through the governmental bodys approved online portal and

asked for . . . all of Jane Smiths evaluations because I am considering going into business with her and would like to know about her personal background. What if the Request is Unclear or Unduly Broad? Govt Code 552.222 Cannot ask requestors why they want the information Can ask requestor to clarify request and/or discuss with requestor how scope of request might be narrowed When a governmental body, acting in good faith, requests

clarification or narrowing of an unclear or over-broad request, the 10-business-day period to request an Attorney General decision is measured from the date the request is clarified or narrowed. City of Dallas v. Abbott, 304 S.W. 3d 380, 387 (Tex. 2010) What Do You Do When You Receive a Request? Govt Code 552.221, 552.301 A governmental body must: Promptly produce information for inspection, duplication or both;

Ask for a decision from the Attorney General about whether the information is excepted from disclosure, unless there has been a previous determination that the information is excepted. or How Much Time Do You Have to Produce Information? Govt Code 552.221 Promptly means as soon as possible under the

circumstances, that is, within a reasonable time, without delay. If you cannot produce information within 10 business days after the date the information is requested, you must certify that fact in writing to the requestor and set a date and hour within a reasonable time when the information will be available. The Role of the Attorney General Under the Public Information Act Role of the OAG: Decisions Govt Code 552.011 Authorizes the attorney general to prepare, distribute and

publish materials, including detailed and comprehensive written decisions and opinions, in order to maintain uniformity in the application, operation and interpretation of the Act. Govt Code 552.306 Authorizes the attorney general to issue decisions on whether the requested information is subject to the exceptions to disclosure found in the Act. Role of the OAG: Education and Enforcement Govt Code 552.321, 552.3215 Authorizes the attorney general to file a writ of mandamus or an action for declaratory judgment or injunctive relief to compel

compliance with the Act. Govt Code 552.012 Requires the attorney general to ensure training is available. Govt Code 552.269 Authorizes the attorney general to issue determinations on costs to provide information. How Much Time Do You Have to Request a Decision from the Attorney General? Govt Code 552.301(a)-(b) If you wish to withhold information from the requestor, you must request a decision from the OAG not later than 10 th business day after the date of receiving the public information request.

You must request a decision within 10 business days, unless you have a previous determination. What is a Previous Determination? Open Records Decision No. 673 (2001) Type 1 Most common Applicable to only a particular governmental body Applicable only to specific information or records Applies when the information previously ruled upon is requested again Type 2 May be applicable to: All governmental bodies

All governmental bodies of a certain type Only a particular governmental body Applicable to a precise, clearly delineated category of information or records Language of ruling or decision will state it is a previous determination ORD 684 Open Records Decision No. 684 (2009) covers several types of information: Direct deposit authorization forms Form I-9 and attachments W-2 and W-4 forms Certified agenda and tape of closed meeting

Fingerprints L-2 and L-3 declarations Certain email addresses Military discharge records Procedures for Requesting a Decision from the OAG (Slide 1 of 3) Govt Code 552.301, 552.305 Not later than the 10th business day, you must:

Ask the OAG for a ruling and state the exceptions that apply; Notify the requestor in writing that you have asked for a ruling; Provide the requestor a copy of your letter to the OAG requesting a ruling; and Notify any third parties with proprietary interests in the requested information that they may submit written comments to the OAG stating why the information should be withheld (third party notice must be in the form prescribed by the OAG). Procedures for Requesting a Decision from the OAG (Slide 2 of 3)

Govt Code 552.301(e)-(e-1) Not later than the 15th business day, you must: Submit written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld. Submit a copy of the written request for information.

Submit a signed statement as to the date on which the request for information was received by the GB or evidence sufficient to establish that date. Procedures for Requesting a Decision from the OAG (Slide 3 of 3) Govt Code 552.301(e)-(e-1) (continued) Not later than the 15th business day, you must: Submit a copy (not your original) of the specific information requested, or submit representative samples of the information if a voluminous amount of information was requested.

Label that copy of the specific information, or representative samples, to indicate which exceptions apply to which parts of the copy. Send a copy of your written comments to the requestor. Counting Business Days General Rules for Counting Business Days Start counting the next business day after receiving a

written request. Received means when it is physically received, not when it is finally opened or read (this includes email). What is a Business Day? Counts as a Business Day Not a Business Day Regular Work Day Schedule Holiday Office Closed Early

Closed for Bad Weather Delayed Opening for Inclement Weather Weekend Staff on Vacation Skeleton Crew Day Counting to 10 Can Be Simple

Sunday 1 Monday 2 Tuesday 3 Written Request Received 8

9 4 1 10 5 15 16 Thursday 5

2 11 6 17 10 Wednesday 6 3

12 7 18 Friday 7 4 13 8 19

Saturday 14 9 20 21 Counting to 10 Can Be Tricky Sunday 15

Monday 16 Tuesday 17 Wednesday 18 Thursday 19 Written Request

Received 22 23 3 29 30 4 5 6

Delayed Open 7 Friday 20 1 21 2 24

25 26 27 State Closed Christmas Eve State Closed Christmas Day State Closed

Day After Christmas Skeleton Crew Day 31 1 2 3

Half Skeleton/ Half Holiday State Closed New Years Day 7 8 8 5 9

9 28 4 6 10 10 Saturday

11 Consequences for Missing Deadlines Mandatory exceptions are not waived. Permissive exceptions are waived. Potential Criminal Penalties Civil Penalties that may be initiated by either the local district or county attorneys office, the Office of the Attorney General, or the requestor After Requesting a Ruling The Attorney Generals Office will issue an informal letter ruling in response to the governmental bodys request for a ruling.

Rulings are issued within 45 business-days unless the Attorney Generals Office extends the deadline, in which case the ruling will be issued within 55 business-days. The Attorney Generals Office will issue the ruling to the governmental body, will return the records at issue to the governmental body, and will provide a copy of the ruling to the requestor and any notified third party. Ruling will determine whether records may be withheld, must be withheld, or must be released. Basic Process for Governmental Bodies GB receives request Presumption of Openness

GB promptly releases requested info GB withholds info, seeks a decision from the OAG within 10 business days GB withholds info based on a previous determination or as explicitly allowed by statute OAG issues a decision within 45 business days after receiving

request from GB Info MUST be withheld Info MAY NOT BE withheld. Info MUST be released GB, Requestor, or 3rd Party may file suit for judicial review Info MAY be withheld Challenging a Ruling Section 552.301(f) prohibits a governmental body from

requesting a reconsideration. If a governmental body disagrees with the legal interpretation set forth in a ruling, it may file suit against the OAG in accordance with the PIA. No later than the 30th calendar day after the receipt of OAG decision When Can You Redact Without First Seeking a Ruling? General Rule: If you want to withhold information from the public, you must request a ruling from the Attorney Generals Office. Exceptions to the general rule, some specific circumstances allow a

governmental body to withhold information without requesting a ruling. Examples: Govt Code 552.130 Information related to drivers license, motor vehicle title or registration, or personal identification document Govt Code 552.136 Credit card, debit card and access device numbers

Govt Code 552.024, 552.1175 and 552.138 Personal information of certain public employees Penalties and Other Consequences for Failure to Comply With the Public Information Act Formal Complaints Govt Code 552.3215 Declaratory Judgment or Injunctive Relief Complaint filed by requestor with district attorney or county attorney in county where governmental body is located Local governmental bodies: district attorney or county attorney for the county may bring action only in district

court for that county where the governmental body is located State agencies: Travis County District Attorney or OAG may bring action only in district court in Travis County Writ of Mandamus Govt Code 552.321 Writ of Mandamus Used to compel a GB to make information available for public inspection Filed by requestor or Attorney General Examples of potential mandamus situations GB refuses to provide copies or access to information that is clearly public.

GB refuses to request an OAG ruling. GB refuses to release information as required by an unchallenged AG ruling. Failure or Refusal to Provide Access or Copying Govt Code 552.353 Fails or refuses to give access, permit copying, or provide copies of public information with criminal negligence Misdemeanor with a fine not more than $1,000 and/or county jail for not more than six months Constitutes official misconduct Affirmative Defense for Failure to

Provide Access Govt Code 552.353(b)-(d) Affirmative defense against prosecution Reasonable belief that public access to information not required and relied on court order court opinion, or OAG decision

OAG decision sought and no decision issued Suit filed in Travis County challenging OAG decision and suit pending Officers agent reasonably relied upon written instruction from the officer of public information Destruction, Removal, or Alteration of Public Information Govt Code 552.351 A person commits an offense if the person willfully destroys, mutilates, removes without permission as provided by this chapter, or alters public information. Misdemeanor offense with a fine not less than $25 or more than $4,000 and/or county jail not less than three days or

more than three months Govt Code 552.352(a) A person commits an offense if the person distributes information considered confidential under the terms of chapter 552 of the Government Code Fine not more than $1,000 and/or county jail for not more than six months Distribution or Misuse of Confidential Information Govt Code 552.352(a) Distribution or Misuse of Confidential Information A person commits an offense if the person distributes information considered confidential under the terms of

chapter 552 of the Government Code Fine not more than $1,000 and/or county jail for not more than six months Constitutes official misconduct Additional Resources Available Resources from the OAG The OAGs website The Public Information Act Handbook The Open Government and Cost Hotlines Additional Resources for Open Government

Freedom of Information Foundation (800) 580-6651 for questions regarding FOIA State Library and Archives Commission (512) 463-7610 Records Management Assistance for records retention questions U.S. Department of Education (800) 872-5327 Family Policy Compliance Office for questions regarding FERPA and education records U.S. Department of Health and Human Services (800) 368-1019 Office for Civil Rights For questions regarding the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and protected health information

OAGs Website Resources for Governmental Bodies Resources for Requestors PIA Electronic Filing System https://apps2.portal.texas.gov/OAGPIAeFiling/ Public Information Cost Estimate Model https://www.texasattorneygeneral.gov/og/public-information-cost-estimate-model Open Records Division Forms

Questions? OAGs Open Government Hotline (877) OPEN TEX (512) 478-6736 Cost Questions OAG Cost Rules Administrator (888) OR-COSTS (512) 475-2497 OAG website http://www.texasattorneygeneral.gov

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