freedom of information laws in texas: an overview by paul watler

FREEDOM OF INFORMATION LAWS IN TEXAS:

An Overview of the Texas Public Information Act

andthe Texas Open Meetings Act

______________

2009

Paul C. WatlerJackson Walker, LLP,

901 Main Street, Suite 6000Dallas, TX 75202(214) [email protected]

FOI Laws in Texas, Page 15580853v.1 999900/15069

By Paul C. Watler1

Jackson Walker, L.L.P.901 Main Street, Suite 6000

Dallas, TX 75202(214) 953-6000

PART ONE:2

TEXAS PUBLIC INFORMATION ACT, § 552.001 et seq., TEXAS GOVERNMENT CODE

A. Policy - § 552.001

1. “[I]t 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.” (§ 552.001(a))

2. TPIA shall be liberally construed in favor of granting a request for information.

B. Definition of Public Information (§ 552.002)

1. a. “Public information” is defined as information collected, assembled or maintained under a law or ordinance or in connection with the transaction of official business;

b. by a governmental body; or

c. for a governmental body and the governmental body owns the information or has a right of access to it:

i. Salary information of a contractor of a governmental body is public information where the contractor has agreed to maintain records for inspection by the governmental body. Baytown Sun v. City of Mont Belvieu, 145 S.W.3d 268, 271 (Tex. App.—Houston [14th Dist.] 2004, no pet. h.).

ii. However, if the private entity maintains records for its own purposes and has control over its own methods and details of work, then the records are not public information because the records are

1 Mr. Watler, a partner in the litigation section of Jackson Walker, LLP, is a board certified civil trial lawyer and former president of the Freedom of Information Foundation of Texas, 1996 - 1999. He is listed in the Best Lawyersin America in the categories of First Amendment law, bet-the-company litigation and commercial litigation.2 This paper includes developments through July 31, 2009, including acts of the 81st regular session in 2009 of the Texas Legislature.


not maintained for the government. Murphy v. City of Austin, 2005 WL 309203, at *3 (Tex. App.—Austin March 24, 2005, no pet.) (mem.).

2. applies to electronic, digital and all types of media on which information can be recorded (§ 552.002(b) and (c));

3. TPIA requires disclosure only of existing information and does not require governmental body to prepare or assemble new information in response to a request. A&T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 676 (Tex. 1995).

a. Substituting numerical coding for confidential student names amounted to manipulation of existing data, not creation of new information, and therefore was required to comply with request pursuant to § 552.231. Fish v. Dallas I.S.D., 31 S.W.3d 678, 681-82 (Tex. App.—Eastland 2000, pet. denied).

C. Definition of Governmental Body (§ 552.003)

The definition of governmental body includes:

1. a board, commission, department, committee, institution, agency or office that is within or is created by the executive or legislative branch of state government and that is directed by one or more elected or appointed members;

2. a county commissioners court in the state;

3. a municipal governing body in the state/city Parish governments;

4. a deliberative body that has rule making or quasi-judicial power and that is classified as a department, agency, or political subdivision of a county or municipality;

5. a school district board of trustees;

6. the part, section or portion of an organization, corporation, commission, committee, institution or agency that spends or that is supported in whole or in part by public funds:

a. public funds means funds of the state or of a governmental subdivision of the state (§ 552.003(5));

b. excludes entities receiving a quid pro quo, in sufficiently identifiable and measurable quantities of services, for any public fund expenditures (Kneeland v. Nat’l Collegiate Athletic Ass’n, 850 F.2d 224, 230 (5th Cir. 1988), cert. denied, 488 U.S. 1042 (1989); see also Tex. Att’y. Gen. ORD-602 (1992), regarding Dallas Museum of Art); Cooper v. Circle Ten


Council, 254 S.W.3d 689 (Tex. App.—Dallas 2008) (Boy Scouts governing council was not a governmental body).

7. a nonprofit corporation that is eligible to receive funds under the federal community services block grant program;

8. “governmental body” does not include the judiciary (§ 552.003(l)(B)):

a. County district attorney’s office is not part of the judiciary. Holmes v. Morales, 924 S.W.2d 920, 922-23 (Tex. 1996).

b. The Texas Supreme Court has adopted a special rule governing public access to “judicial records.” Rule 12, Texas Rules of Judicial Administration. Judicial records exclude those pertaining to the adjudicative function of courts; thus, only certain administrative records of the judiciary are within the scope of the rule.

State Bar of Texas maintains membership records “for the judiciary,” and therefore, access to such records is governed by Rule 12 rather than the TPIA. Abbott v. State Bar of Texas, 214 S.W.3d 604 (Tex. App.—Austin 2007) (citing TPIA § 552.0035).

c. Grand jury is an extension of the judiciary, which is expressly exempt from mandatory disclosure under the TPIA. See State v. Newton, 179 S.W.3d 104, 111 (Tex. App.—San Antonio 2005, no pet.).

d. Open records act does not affect scope of civil discovery; exceptions do not create new privileges from discovery (§ 552.005).

D. Authority to Withhold Public Information Must be Express

1. TPIA does not authorize the withholding of public information or limit availability of information to the public except as expressly provided by the Act (§ 552.006).

E. Open Records Training

1. Elected or appointed members of governmental bodies and public information officers must complete 1-2 hours of training not later than 90 days after taking office (§ 552.012).

F. Examples of Categories of Public Information (§ 552.022)

The following categories are public information not excepted from disclosure unless expressly confidential under the law:


1. a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by Section 552.108 (the law enforcement exception);

2. the name, sex, ethnicity, salary, title, and dates of employment of each employee and officer of a governmental body;

3. information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body, if the information is not otherwise made confidential by law;

4. the name of each official and the final record of voting on all proceedings in a governmental body;

5. all working papers, research material, and information used to estimate the need for or expenditure of public funds or taxes by a governmental body, on completion of the estimate;

6. the name, place of business, and the name of the municipality to which local sales and use taxes are credited, if any, for the named person, of a person reporting or paying sales and use taxes under Chapter 151, Tax Code;

7. a description of an agency’s central and field organization, including:

a. the established places at which the public may obtain information, submit information or requests, or obtain decisions;

b. the employees from whom the public may obtain information, submit information or requests, or obtain decisions;

c. in the case of a uniformed service, the members from whom the public may obtain information, submit information or requests, or obtain decisions; and

d. the methods by which the public may obtain information, submit information or requests, or obtain decisions.

8. a statement of the general course and method by which an agency’s functions are channeled and determined, including the nature and requirements of all formal and informal procedures;

9. a rule of procedure, a description of forms available or the place at which forms may be obtained and instructions relating to the scope and content of all papers, reports, or examinations;

10. a substantive rule of general applicability adopted or issued by an agency as authorized by law, and a statement of general policy or interpretation of general applicability formulated and adopted by an agency;


11. each amendment, revision, or repeal of information described by subdivisions (7)-(10);

12. final opinions, including concurring and dissenting opinions, and orders issued in the adjudication of cases;

13. a policy statement or interpretation that has been adopted by an agency;

14. administrative staff manuals and instructions to staff that affect a member of the public;

15. information regarded as open to the public under an agency’s policies;

16. information that is in a bill for attorney’s fees and that is not privileged under the attorney/client privilege or confidential under other law;

17. information that is also contained in a public court record; and

18. a settlement agreement to which a governmental body is a party unless the agreement is confidential under other law.

a. A settlement agreement is not excepted from disclosure even if the governmental body and a party agree to make it confidential. Thomas v. El Paso County Cmty. College District, 68 S.W.3d 722, 726-27 (Tex. App.—El Paso 2001, no pet.).

b. Although TPIA was not binding on federal district court’s ability to issue confidentiality order regarding settlement agreement to which governmental body was a party, federal court was obliged to consider effect of order on state law, and failure to do so was abuse of discretion. Ford v. City of Huntsville, 242 F.3d 235, 241-42 (5th Cir. 2001).

19. a. No court may order a governmental body to withhold information unless the information is expressly confidential under other law (§ 552.022(b)).

b. Discovery privileges under the Texas Rules of Civil Procedure and Texas Rules of Evidence are “other law” that may render items listed in Section 552.022(a) “expressly confidential.” In re City of Georgetown, 53 S.W.3d 328, 331-36 (Tex. 2001); see also N.N. v. Institute for Rehabilitation and Research, 234 S.W.3d 1 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (rules of procedure are binding in the same manner as statutes).

c. Section 552.022(b) does not deprive trial court of jurisdiction to issue temporary injunctions maintaining the status quo in “a public information” mandamus action. Ctr. for Econ. Justice v. American Ins. Assoc., 39 S.W.3d 337, 344 (Tex. App.—Austin 2001, no pet.).


20. Information regarding employees and trustees of a public employee pension system, including relating to their income, salary, benefits and bonuses, is public information (§ 552.022).

21. Basic information held by a governmental body relating to its investments is public information and not excepted from disclosure (§ 552.0225).

G. Right of Access for Particular Individuals

1. Person has special right of access to information that relates to that person (§ 552.023).

2. Governmental body is not required to accept or comply with a request for information from an individual who is imprisoned or confined in a correctional facility (§ 552.027).

H. Contact Information for Public Employee or Official.

1. Employees and officials may opt-out of allowing public access to information held by governmental body relating to home address, telephone, etc. (§ 552.024).

I. Access to Information of Judiciary

1. Access to judicial records is governed by rules promulgated by the Supreme Court of Texas. See Rule 12, Texas Rules of Judicial Administration. TPIA does not address whether info is considered to be a judicial record (§ 552.0035).

2. A subpoena duces tecum or a discovery request is not considered to be an open record request (§ 552.0055).

J. Information Excepted from Required Disclosure - Commonly Used Exceptions

1. Confidential information (§ 552.101):

information considered to be confidential by law, either constitutional, statutory, or by judicial decision

a. includes information the disclosure of which would constitute the common law tort of invasion of privacy through the public disclosure of private facts (Indus. Found. of the South v. Texas Indus. Accident Bd., 540 S.W.2d 668, 682-83 (Tex. 1976), cert. denied, 430 U.S. 930 (1977)) - Information is protected by common law privacy if 1) it contains highly intimate or embarrassing facts about a person’s private affairs the publication of which would be highly objectionable to a reasonable person and 2) the information is not of legitimate concern to the public. Id.

b. also excepts information protected by constitutional privacy --Constitutional privacy encompasses two types of privacy: (1) the right to


make certain kinds of decisions independently and (2) a person’s interest in avoiding disclosure of personal matters. Tex. Att’y. Gen. ORD-455 (1987). The first addresses matters within “zones of privacy” while the second balances privacy interests versus the public’s need to know about matters of public concern. Id. at 4. Information must concern “the most intimate aspects of human affairs.” Id. at 5; see also Ramie v. City of Hedmg Village, Texas, 765 F.2d 490, 492 (5th Cir. 1985), cert. denied474 U.S. 1062 (1986).

c. does not include attorney work product (Tex. Att’y Gen. ORD-574 and ORD-575 (1990));

d. nursing home entitled to injunction against release by Department of Human Services of “peer review” materials regarding accident investigations, as materials probably confidential by law (Ebony Lake Healthcare v. Texas Dep’t. of Human Serv., 62 S.W.3d 867, 870-75 (Tex. App.—Austin 2001, no pet.);

e. HIPAA does not preempt state TPIA. Where a request for protected health information is made under the TPIA, the exception to non-disclosure found in the HIPAA privacy rule Section 164.512(a) applies, and the governmental body must determine whether the TPIA compels disclosure or whether the information is excepted from disclosure under the TPIA. Abott v. Texas Dep’t. of Mental Health and Mental Retardation, 212 S.W.3d 648, 662 (Tex. App.—Austin 2006, no pet.).

f. state employee date of birth information is not excepted from disclosure by common law or constitutional privacy. Texas Comptroller of Public Accounts v. Abbott, 244 S.W.3d 629 (Tex. App.—Austin 2008, review pending).

g. Settlement letters between bingo device manufacturer and Lottery Commission were not excepted as confidential alternative dispute resolution documents. Abbott v. Gametech International, Inc., 2009 WL 1708815 (Tex. App.—Austin 2009).

h. Travel expense vouchers of governor’s security detail not excepted under common law right of privacy. Texas Department of Public Safety vs. Cox Newspapers, Inc., ___ S.W.3d ___, 2009 WL 1491880 (Tex. App.—Austin 2009)(but see subsequent amendment at § 552.151 regarding exception for information relating to “substantial threat of physical harm”).

2. Personnel information (§ 552.102):

information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy:


a. Industrial Foundation of the South, supra, standard, would apply. Hubert v. Harte-Hanks Texas Newspaper, Inc., 652 S.W.2d 546, 550 (Tex. App.—Austin 1983, writ ref’d n.r.e.).

b. Employee can choose whether to allow public access to information that relates to person’s home address, home telephone number or social security number, or that reveals whether person has family members (§ 552.024 and § 552.117).

3. Information relating to litigation, civil or criminal, to which the state or a political subdivision may be a party (§ 552.103):

a. includes matters to which an officer or employee of the state or political subdivision is or may be a party;

b. information not excepted if other parties to litigation have had access to it (Tex. Att’y Gen. ORD-551 (1990));

c. Litigation of a criminal nature continues until defendant has exhausted all appellate and post conviction remedies in state and federal court (§ 552.103(b));

d. Information relating to litigation is excepted from disclosure only if it is pending or anticipated on the date of the public information request (§ 552.103(c));

e. Governmental body bears burden to prove applicability of litigation exception. Thomas v. Cornyn, 71 S.W.3d 473 (Tex. App.—Austin 2002, no pet.); see also Abbott v. Texas Dep’t. of Mental Health and Mental Retardation, 212 S.W.3d 648, 655 (Tex. App.—Austin 2006, no pet.).

4. Information related to competition or bidding (§ 552.104):

a. excepts information that if released would give advantage to a competitor or a bidder;

b. exemption continues until government contract is awarded (Tex. Att’y Gen. ORD-541 (1990));

c. protects interests of government body not private parties (ORD 592 (1991)).

5. Information related to location or price of property prior to public announcement or formal award of contracts (§ 552.105);

6. Certain legal matters (§ 552.107):


information that the attorney general or an attorney of a political subdivision is prohibited from disclosing because of a duty to the client under the Texas Rules of Civil Evidence, the Texas Rules of Criminal Evidence or the Texas Disciplinary Rules of Professional Conduct, or of which a court by order has prohibited disclosure

a. Distinct factual summary included with legal analysis in report of attorney hired to conduct independent investigation of sexual assault allegations was excepted from disclosure under Section 552.107(1) as confidential under the attorney-client privilege. Harlandale I.S.D. v. Cornyn, 25 S.W.3d 328, 331-35 (Tex. App.—Austin 2000, pet. denied).

7. Law enforcement and prosecutorial records that deal with the detection, investigation or prosecution of crime (§ 552.108):

a. In Holmes v. Morales, 924 S.W.2d 920 (Tex. 1996), the Texas Supreme Court refused access to records even after case closed.

b. 1997 amendment somewhat alleviates effect of Holmes v. Morales. Information held by a law enforcement agency may be withheld if release would interfere with the detection, investigation or prosecution of crime.

c. Information may be withheld in case of investigation that does not result in conviction or deferred adjudication.

d. Information prepared by attorney representing state in a criminal case is also protected.

e. Basic information about an arrested person, an arrest or a crime is not excepted (§ 552.108(c)).

f. Local Govt. Code § 143.089(g) prohibits the release of documents relating to unsubstantiated allegations of misconduct by a police officer in a civil service municipality. City of San Antonio v. Texas Att’y Gen., 851 S.W.2d 946, 949-52 (Tex. App.—Austin 1993, writ denied). But § 143.089(g) does not prohibit the release of information about a police officer not reasonably related to the officer’s employment status. City of San Antonio v. San Antonio Express News, 47 S.W.3d 556, 562-65 (Tex. App.—San Antonio 2000, pet. denied).

g. Court should refuse to apply law enforcement exception when governmental body fails to produce evidence or to submit documents in camera establishing exception. Thomas v. Cornyn, 71 S.W.3d 473 (Tex. App.—Austin 2002, no pet.).

h. Information and references collected in evaluating applicant for job as a police officer were not protected from disclosure by law-enforcement exception to the TPIA; records sought would not divulge police


department’s methods, techniques, and strategies for preventing and predicting crime. City of Fort Worth v. Cornyn, 86 S.W.3d 320, 322-29(Tex. App.—Austin 2002, no pet.).

8. Trade secrets, commercial information, or financial information (§ 552.110):

a. Trade Secret Exception. Attorney General and Texas courts look to six factors in considering whether information is a trade secret:

i. extent to which the information is known outside of the company’s business;

ii. the extent to which it is known by employees and others involved in the company’s business;

iii. the extent of measures taken by the company to guard the secrecy of the information;

iv. the value of the information to the company and to its competitors;

v. the amount of effort or money expended in developing the information; and

vi. the ease or difficulty with which the information could be properly acquired or duplicated by others.

b. Commercial or financial information is excepted if it is demonstrated, based on specific factual evidence, that disclosure would cause substantial competitive harm (§ 552.110(b)).

9. Agency memoranda (§ 552.111):

a. protects advice, opinions or recommendations, but not factual information (Tex. Att’y Gen. ORD-293 (1981));

b. protects only those agency communications that relate to the agency’s policy making function (City of Garland v. The Dallas Morning News 22 S.W.3d 351, 364 (Tex. 2000));

c. Compiled results of annual teacher effectiveness survey were purely factual and not excepted by the agency memoranda exception (Arlington I.S.D. v. Texas Atty. Gen., 37 S.W.3d 152, 160-61 (Tex. App.—Austin 2001, no pet.));

d. routine internal administrative and personnel matters not exempt. Documents reflecting implementation of existing policy, rather than relating to development of new policy, are not exempt (Lott v. Klein ISD,917 S.W.2d 455 (Tex. App.—Houston [14th Dist.] 1996, writ denied));


e. Portions of a consultant’s report concerning a university’s overall faculty hiring and retention policies may be excepted (Tex. Att’y Gen. ORD-631 (1995)).

10. Student records (§ 552.114). Excepts student records at institutions funded by State revenues. Section 552.026 incorporates federal Family Educational Rights Privacy Act which excepts student records at institutions receiving federal funds.

11. Birth and death records (§ 552.115):

a. birth records available on and after the 75th anniversary of the filing of the record with the bureau of vital statistics or local registration official;

b. death record available on and after the 25th anniversary of the date on which the record is filed with the bureau of vital statistics or local registration official;

c. Section 552.115 applies only to local registration officials and Texas Department of State Health Services, not other governmental bodies.

12. Audit working paper or draft audit report of the state auditor or of another state agency, institution of higher education, a county, a municipality, a joint board operating under Section 22.074, Transportation Code, or a school district is excepted (§ 552.116):

a. Section 552.116(a) – “audit working papers” include papers prepared by “a school district” including “any audit relating to the criminal history background check of a public school employee.”

b. Section 552.116(b) – “audit” for purposes of the audit working papers exception includes “a resolution or other action of a board of trustees of a school district, including an audit by the district relating to the criminal history background check of a public school employee.”

13. Addresses, phone numbers, social security numbers and personal family information of certain public officials or employees:

a. excepts personal information of officials or employees who have “opted out” pursuant to § 552.024 (§ 552.117(a));

b. excepts personal information of most law enforcement and corrections officials, regardless of “opt out” (§ 552.117(a)(2)-(5); § 552.1175);

c. No Attorney General opinion is necessary to redact information excepted under this exception, but the governmental body must provide written notice to the requestor that the information has been redacted, a description of the withheld or redacted information, citation of the applicable basis for the redaction, and notice to the requestor and


instructions on the right to seek an Attorney General’s opinion (§ 552.1175).

14. Members of the State Bar of Texas:

a. Texas attorneys may “opt-out” of disclosure of personal records maintained by the State Bar of Texas (§ 552.1176).

15. Photographs of peace officers:

a. Release prohibited if it would endanger the life or safety of the officer (§ 552.119(a)).

b. Photos may be released of indicted officer, officer who is a party to a civil service case or if photo offered in court (§ 552.119(a)(1)-(3)).

16. Name of applicant for state university CEO:

a. Governing board must identify finalists at least 21 days before date of meeting at which a final action or vote is to be taken (§ 552.123).

17. Name of applicant for superintendent of public school district:

a. Board of trustees must identify finalists at least 21 days before date of meeting at which a final action or vote is to be taken (§ 552.126).

18. Information identifying a person as a participant in a neighborhood crime watch organization and relating to the person’s name, home address, business address, home telephone number or business telephone number (§ 552.127);

19. Information relating to motor vehicle operator’s or driver’s license or permit issued by an agency of this state, a motor vehicle title or registration issued by an agency of this state or a personal identification document issued by a state or local agency is exempt and may be released only in the manner authorized by Chapter 730, Transportation Code (§ 552.130):

a. Chapter 730, Transportation Code, permits disclosure of such information only to certain persons or entities and only for certain purposes.

b. If recipient of information is other than the individual to whom the information pertains or that individual’s agent, recipient must agree in writing that the person will not disseminate or publish the information on the Internet or permit another to do so (§ 731.002, Transportation Code).

i. Class A misdemeanor to disseminate or publish information obtained from an agency’s motor vehicle records on the Internet (§ 731.007, Transportation Code)


c. Requestor must be eligible under Chapter 730 to receive a certified abstract of the record of conviction of a person for violation of a law relating to the operation of a motor vehicle or the record of any injury or damage caused by the person’s operation of a motor vehicle (§ 601.022, Transportation Code).

d. Transportation Code also prohibits release of accident reports and certain information relating to accidents unless person can provide name of any person involved in accident and either date or specific location of accident (§ 550.065, Transportation Code):

information relating to motor vehicle accident includes information required to be reported by law as well as information contained in a dispatcher log, towing record or record of a 911 service provider.

20. Economic Development Information Exception - includes information related to economic development negotiations between the government and a business prospect if the information relates to trade secrets of the business prospect. Includes financial and other incentives offered to the business prospect until an agreement is made (§ 552.131);

21. Crime victim information exception (§ 552.132) and family violence shelter center and sexual assault program information (§ 552.136);

22. Information regarding credit card, debit card, charge card, and access device numbers (§ 552.136);

23. a. Email address of member of the public used to communicate with governmental body is confidential (§ 552.137).

b. An email address is not confidential when used by a member of the public for the purpose of providing public comment on or receiving notices related to an application for a state license, or receiving orders or decisions from a governmental body (§ 552.137).

24. a. Family violence shelter and sexual assault program information (§ 552.138).

b. No Attorney General opinion is necessary to redact information excepted under this exception, but the governmental body must provide written notice to the requestor that the information has been redacted, a description of the withheld or redacted information, citation of the applicable basis for the redaction, and notice to the requestor and instructions on the right to seek an Attorney General’s opinion (§ 552.138).


25. The social security number of a living person is excepted. A governmental body may redact the social security number of a living person from any information disclosed without requesting a decision from the attorney general:

a. Social security number is not confidential under this section and this section does not make the social security number of a living person confidential under another provision of this chapter or other law (§ 552.147).

26. Records received from private multiple listing agencies and maintained by a comptroller or appraisal district:

a. Information relating to real property sales prices, descriptions, characteristics, and other related information received from a private entity by the comptroller or the chief appraiser of an appraisal district under Chapter 6, Tax Code, is excepted from the requirements of Section 552.021;

b. Exceptions to exception permit property owner protesting an appraisal to obtain certain data from the chief appraiser or property owner or appraisal district to obtain data from comptroller (§ 552.148).

27. Certain records maintained by a municipality related to a minor:

a. Information below maintained by a municipality for purposes related to the participation by a minor in a recreational program or activity is excepted from disclosure:

i. the name, age, home address, home telephone number, or social security number of the minor;

ii. a photograph of the minor; and

iii. the name of the minor's parent or legal guardian (§ 552.148).

28. Information that could reasonably be expected to compromise the safety of an employee or officer of a hospital district where the employee submits a request in writing with specifics on why the information should be withheld is excepted (§ 552.150). (This amendment was subject to a sunset provision terminating its effectiveness in 2013.)

29. Information related to a biological agent or toxin identified or listed as a select agent under federal law is excepted, specifically: (a) location of select agent; (b) people in chain of custody for the select agent; and (c) identity of people authorized to possess select agents (§ 552.151).

30. Information regarding government employee or officer is excepted if, under specific circumstances pertaining to the employee or officer, disclosure of the


information would subject the employee or officer to a substantial threat of physical harm (§ 552.151).

K. Procedure for Requesting Information

1. Request should be directed to “officer for public information” (§ 552.221):

a. officer for public information is the chief administrative officer of a governmental body (§ 552.201);

b. each elected county officer is the officer for public information for the records created or received by that county officer’s office (§ 552.201);

c. each department head is an agent of the officer for public information (§ 552.202).

2. Request can be oral or in writing; however, protections of act are not triggered unless request is in writing (see § 552.301);

3. Officer for public information shall promptly produce public information for inspection, duplication, or both on application by any person:

a. If information cannot be produced within 10 business days, officer shall certify fact in writing and set a date and hour within a reasonable time.

4. a. Governmental body may make no inquiry of person requesting information except to establish proper identification and the public information requested (§ 552.222).

b. Requestor’s failure to respond in writing to a request for clarification within 60 days allows governmental body to consider that the request has been withdrawn.

c. The 60 day period is triggered by a governmental body request for clarification that:

i. includes “a statement as to the consequences of the failure by the requestor to timely respond to the request for clarification, discussion, or additional information”; and

ii. sent by certified mail to physical or mailing address provided by requestor.

5. Officer shall treat all requests for information uniformly (§ 552.223);

6. Governmental body shall provide a suitable copy within a reasonable time, but shall provide a copy in the requested medium if (§ 552.228):


a. governmental body has technological ability to produce copy in requested medium;

b. governmental body is not required to purchase software or hardware to accommodate request; and

c. provision of copy in requested medium will not violate copyright agreement between governmental body and third party.

7. A governmental body does not comply with TPIA if it simply refers a requestor of information to its website containing the information sought unless the requestor agrees to accept access to the information via the website. Tex. Att’y Gen. ORD-682 (2005).

8. Governmental body can be required to respond to a request that requires programming or manipulation of data if requestor, after receiving statement of form and cost, advises governmental body within 30 days that requestor wants information in either requested or available form. (§ 552.231)

9. a. Substituting numerical coding for confidential student names amounted to manipulation of existing data, not creation of new information, and therefore was required to comply with request pursuant to § 552.231. Fish v. Dallas I.S.D., 31 S.W.3d 678, 681-82 (Tex. App.—Eastland 2000, pet. denied).

10. Costs:

a. charge for copies of first 50 pages is limited to photocopying costs unless records are located in more than one building or a remote storage facility (§ 552.261);

b. state agency shall use rules adopted by the Attorney General in determining charges for copies (§ 552.262);

c. other governmental bodies shall not charge an amount more than 25 percent greater than the charges set out in the Attorney General rules (§ 552.262);

d. charges for public information may not be excessive and may not exceed the actual cost of producing the information (§ 552.262);

e. governmental body may request an exemption from part or all of the rules adopted by the Attorney General;

f. no charge for inspection of paper record if copies not requested, unless copies made to redact confidential information (§ 552.271);

g. no charge to inspect electronic record if copy not requested (§ 552.272);


h. use of computerized electronic judicial information system is excepted;

i. charge for copies from district or county clerk shall be the charge provided by law (§ 552.265).

11. Governmental body may cap research time:

a. Governmental body may establish a reasonable limit on time spent producing information for inspection or duplication for a single requestor without recovering personnel costs.

b. Limit may not be less than 36 hours per twelve-month period.

c. Exceptions for representative of newspaper (including on-line newspapers), magazines, radio or television station, elected officials, and non-profit publicly-funded legal services organizations (§ 552.275).

L. Oversight

1. Section 552.009 – Establishes an open records steering committee made up of representatives from five government agencies and members of the public and representatives from local governments appointed by the Attorney General. The Committee shall study and determine the types of public info that should be made available by the Internet or other electronic means. The Committee shall report is findings and recommendations to the governor, the each house of the legislature.

2. State governmental bodies shall report to the Legislative Budget Board information regarding the number and nature of open records requests they process, the cost of processing such requests and of making information available to the public via the Internet (§ 552.010).

M. Attorney General Decisions

The Attorney General shall maintain uniformity in applying and interpreting the Act (§ 552.011).

1. Governmental body which intends to withhold information must seek attorney general decision and state exceptions that apply within 10 business days of receipt of written request for information and must provide the requestor within 10 business days of the written request: 1) a written statement that the governmental body wishes to withhold the requested information and has sought an attorney general decision as to whether the information falls within an exception to public disclosure; and 2) a copy of the governmental body’s written communication to the attorney general asking for the decision (§ 552.301).

2. If a governmental body does not request an attorney general decision and provide the requestor with the information as required by Section 552.301, the information requested is presumed to be public information and must be released


unless there is a compelling reason to except the information from disclosure. (§ 552.302)

A compelling reason is something more than just showing that the information falls within one of the statutory exceptions to disclosure. Simmons v. Kuzmich, 166 S.W.3d 342, 346 (Tex. App.—Fort Worth 2005, no pet.).

Requirement to demonstrate “compelling reason” applies even where information is privileged. City of Dallas v. Abbott, 279 S.W.3d 806 (Tex. App.—Amarillo 2007, review pending).

3. Governmental body has 15 business days to: 1) submit written comments to attorney general; 2) submit copy of written request; 3) submit copy of information requested; and 4) indicate which exceptions apply to which documents (§ 552.301(e)).

4. Information is presumed to be public if governmental body fails to submit specific information to attorney general within seven days after receiving notice from attorney general that governmental body has failed to supply attorney general all of the specific information that is necessary to render a decision (§ 552.303(e)).

5. Third parties are permitted to protect privacy or property interests (§ 552.305).

6. Attorney general shall issue written opinion - either informal letter ruling or open records decision - not later than the 60th working day after receiving the request for a decision (§ 552.306):

a. period can be extended by additional 20 working days.

7. In order to avoid criminal violation of the act, governmental body must file cause of action seeking relief from compliance with an attorney general decision requiring disclosure within 10 days after the date of receipt of a decision by the attorney general that the information is public (§ 552.353):

a. Governmental body may not sue requestor (§ 552.324 and § 552.325);

TPIA §§ 552.324-325 prohibit school district from bringing public nuisance and abuse of government process action against requestors. Lake Travis Ind. School District v. Lovelace, 243S.W.3d 244, (Tex. App.—Austin 2007).

b. Requestor must be notified of suit filed by governmental body and allowed to intervene (§ 552.325).


N. Civil Enforcement

1. Suit for writ of mandamus for refusal to request attorney general’s decision or refusal to supply public information or information that the attorney general has determined is a public record (§ 552.321):

a. In such a suit, the burden to produce disputed information to the court for in camera inspection and to preserve it of record for the appeal lies with the governmental body seeking to assert an exception to the Act. Dominguez v. Gilbert, 48 S.W.3d 789, 795 (Tex. App.—Austin 2001, no pet.).

b. Requestor may intervene to seek mandamus in suit by governmental body to challenge AG opinion. Thomas v. Cornyn, 71 S.W.3d 473, 481-84(Tex. App.—Austin 2002, no pet.).

2. Court may assess costs of litigation and reasonable attorney fees incurred by a plaintiff or defendant who substantially prevails (§ 552.323).

O. Criminal Violations

1. Destruction, removal or alteration of public record (§ 552.351);

2. Distribution of confidential information (§ 552.352);

3. Failure or refusal of officer for public records to provide access to or copying of public record (§ 552.353):

a. affirmative defense to prosecution;

acted in reasonable reliance on a court order or a written interpretation of the act;

b. requested an attorney general decision and decision is pending; or

c. within 10 days of receipt of attorney general decision, filed petition for declaratory judgment, mandamus or both against the attorney general in Travis County district court seeking relief from compliance with attorney general decision.


Sample TEXAS PUBLIC INFORMATION ACT Request Letter(Courtesy of FOI Foundation of Texas, Inc.)

Your NameReturn AddressTele. No. (business hours)Date

[Name of government agency][Address of government agency]

Dear Officer for Public Records:

This request is made under the Texas Public Information Act, Chapter 552, Texas Government Code, which guarantees the public’s access to information in the custody of governmental agencies. I respectfully request [copies of, access to] the following information:

[List here as specifically as possible the information you are seeking: documents, letters, memoranda, reports etc. If you know the dates, report numbers, titles or even the specific governmental subdivision that produced the information, list it.]

[Optional, when time is a factor.] In the interest of expediency, and to minimize the research and/or duplication burden on your staff, I would be pleased to personally examine the relevant records if you would grant me immediate access to the requested material. Additionally, and since time is a factor, please communicate with me by telephone rather than by mail. My telephone number is: [insert telephone number].

[If applicable, add.] Disclosure of this information is in the public interest because providing a copy of the information primarily benefits the general public. I therefore request a waiver of all fees and charges pursuant to Section 552.267 of the act.

I shall look forward to hearing from you promptly, as specified in the law. Thank you for your cooperation.

Sincerely,

[signature]


PART TWO:

THE TEXAS OPEN MEETINGS ACT

A. Introduction

1. The Texas Open Meetings Act, TEX. GOV’T CODE ANN. § 551.001 et seq., provides that meetings of governmental bodies must be open to the public, except for expressly authorized executive sessions. The Act also provides that the public be given notice of the time and place of meetings as well as the subject(s) to be discussed.

B. Constitutionality of TOMA

1. The issue of whether the Texas Open Meetings Act improperly infringes the free speech rights of elected public officials is pending before the courts as of August, 2009. In Ranga v. Brown, ___ F.3d ___, 566 F.3d 515 (5th Cir. 2009) (en banc review granted, July 27, 2009), a three-judge panel of the Fifth Circuit held TOMA is a content-based speech restriction subject to strict scrutiny. The panel remanded the case for further review in the district court; however, subsequently, the case has been granted en banc review, which remains pending.

C. When does the Act apply?

1. The Act applies to “meetings” held by “governmental bodies,” as those terms are defined in the Act. Thus, it must first be determined there is a “governmental body.” If so, the next step is to determine whether there is a “meeting.”

2. Definition of a “governmental body” - § 551.001(3)

a. The following entities qualify as “governmental bodies”:

i. a board, commission, department, committee or agency within the executive or legislative branch of state government that is directed by one or more elected or appointed members;

ii. A county commissioners court;

iii. a municipal governing body;

iv. a deliberative body that has rule making or quasi-judicial power and that is classified as a department, agency, or political subdivision of a county or municipality;

v. a school district board of trustees; county board of school trustees; or county board of education;


vi. the governing body of a special district created by law; or

vii. certain nonprofit corporations that provide a water supply or a wastewater service; or

viii. a Local workforce development boards that plan and oversee workforce training; or

ix. a nonprofit corporation that is eligible to receive funds under the federal community services block grant program and that is authorized by this state to serve a geographic area of the state.

b. Advisory boards - a purely advisory board, which has no authority over public business or policy, is not subject to the Open Meetings Act. SeeOp. Tex. Att’y Gen. No. H-994 (1977) (committee appointed to study process of choosing university president and make recommendations to board of regents is not subject to Open Meetings Act); Op. Tex. Att’y Gen. No. H-772 (1976) (meeting of group of employees, such as general faculty of university, is not subject to Open Meetings Act).

c. A county election commission is not a county commissioners court, a committee thereof, or a deliberative body with rulemaking or quasi-judicial power nor is it a governmental body for purposes of Section 551.001(3). Thus, it need not comply with TOMA requirements. Op. Tex. Att’y. Gen. No. GA-0361 (2005).

3. Definition of “meeting” - § 551.001(4)

a. Definition of a “meeting” - a meeting means a deliberation between a quorum of a governmental body, or between a quorum of a governmental body and another person, during which (1) public business or public policy over which the governmental body has supervision or control is discussed or considered; or (2) the governmental body takes formal action. See § 551.001(4).

i. Informal or social meetings - A social function, convention, workshop, ceremonial event or press conference attended by a quorum of a governmental body does not qualify as a “meeting” under the Act unless formal action is taken or unless discussion of public business is more than “incidental” to the function. See Op. Tex. Att’y Gen. No. H-785 (1976) (breakfast meetings of commissioners court are subject to the requirements of the Act unless the breakfasts are purely social in nature and do not in any way involve discussion or consideration of public business or policy).

ii. “Quorum” is defined as a majority of members of the governmental body. § 551.001(6). Thus, anytime a majority of


members discuss public business, there is a meeting that must meet the requirements of the Act. See Acker v. Texas Water Comm’n, 790 S.W.2d 299, 302 (Tex. 1990) (where two members of three-member governmental body discussed public business in bathroom, that discussion constituted a “meeting” that violated the Open Meetings Act).

A quorum not required if entity located in a disaster area and majority unable to attend due to disaster. Govt. Code § 418.112.

D. Exceptions to the requirement that meetings be open to the public

1. The Open Meetings Act provides that meetings shall be open to the public unless the subject to be discussed falls under one of several expressly authorized exceptions. Exceptions to the requirement that meetings be open are set forth at sections 551.071 - .085 of the Act. The following are some of the most frequently invoked exceptions:

a. Litigation exception, § 551.071 - governmental bodies are permitted to meet in executive session to consult with the governmental body’s attorney with respect to pending or contemplated litigation or a settlement offer.

i. Litigation exception does not permit a governmental body to meet in executive session to discuss general policy matters just because an attorney is present. Rather, the exception authorizes executive sessions only if the governmental body is seeking the attorney’s legal advice regarding a legal proceeding or legal matters. See Op. Tex. Att’y Gen. No. JM-100 (1983).

Exception did not allow council to discuss bids from prospective vendors in closed session, even through advice sought from legal counsel. Olympic Waste Services vs. City of Grand Sabine, 204 S.W.3d 496, 503-504 (Tex. App.—Tyler 2006).

ii. Since the attorney-client privilege can be waived by communicating privileged matters in the presence of third parties, third parties whose presence would prevent a privileged communication from taking place may not attend a meeting that is closed pursuant to the litigation exception. Thus, two governmental bodies may not meet in executive session for discussions intended to avoid litigation between them. Op. Tex. Att’y Gen. No. MW-417 (1981).


b. Real property, § 551.072 - governmental bodies may meet in closed session to discuss the purchase, exchange, lease or value of real property if deliberation in an open meeting would have a detrimental effect on the position of the governmental body in negotiations with a third person. SeeCity of Laredo v. Escamilla, 219 S.W.3d 14 (Tex. App.—San Antonio 2006).

i. Executive session is permitted only where public discussion of the subject would have a detrimental effect on the governmental body’s negotiating position with respect to a third party. Op. Tex. Att’y Gen. No. MW-417 (1981).

ii. Executive session violated TOMA where city council had already made an offer to purchase real estate. City of Laredo, 219 S.W.3d at 20-21.

c. Texas Building and Procurement Commission, § 551.0726 – may conduct a closed meeting to deliberate business and financial issues relating to a contract being negotiated if the commission votes unanimously that an open meeting would have a detrimental effect on negotiations and the attorney advising the commission issues a written determination finding that deliberation in an open meeting would have a detrimental effect on the negotiations.

d. Personnel matters, § 551.074 - closed meetings are permitted where the governmental body is deliberating the appointment, employment, evaluation, reassignment, duties, discipline or dismissal of a public officer or employee or to hear a complaint or charge against the officer or employee.

i. Officer or employee may request a public hearing. If a public hearing is requested, Section 551.074 does not apply. Op. Tex. Att’y Gen. No. DM-251 (1993).

ii. This section permits closed meetings for deliberations regarding individual employees or officers. Deliberations about a class of employees must be held in open session. For example, when a governmental body discusses salary scales without referring to a specific employee, it must meet in open session. Op. Tex. Att’y Gen. No. H-496 (1975).

e. Repeal of staff briefing exception - TOMA formerly permitted governmental bodies to meet in closed sessions for “staff briefings.” SeeAct of May 4, 1993, 73d. Legis., R.S., Ch. 268, § 1, 1993 Tex. Gen. Laws 583, 590. Former Section 551.075 permitted a governmental body to meet in closed session for the limited purposes of (1) receiving information from governmental employees; and/or (2) questioning employees. These


“briefing sessions” could be closed provided the governmental body did not engage in “deliberation.” Id.; see also Dallas Morning News v. Bd. of Trustees, 861 S.W.2d 532 (Tex. App.—Dallas 1993, writ denied). However, in 1999, the Legislature repealed the staff briefing exception for all governmental bodies except the board of the Texas Growth Fund.

§ 551.075.

E. Procedures related to closed meetings

1. Requirement to first convene in open session - even when the Act permits a governmental body to meet in closed session, the governmental body must first convene at an open meeting for which proper notice has been given, at which time the presiding officer must publicly announce that a closed meeting will be held and identify the particular exception under the Act which authorizes the closed session (§ 551.101).

2. Final Actions - when the authority to make a decision is vested in the governmental body, the governmental body must act in open session. Even if a matter is properly discussed during a closed hearing, a governmental body’s final action, decision, or vote on any matter within its jurisdiction may be made only during an open session held in compliance with the notice requirements of the Act. § 551.102. However, if authority to make the decision is vested in an employee of the governmental body rather than the governmental body itself, the decision need not be made at an open meeting. See City of San Antonio v. Aguilar, 670 S.W.2d 681, 686 (Tex. App.—San Antonio 1984, writ ref’d n.r.e. in part, writ dism’d w.o.j., in part) (where city attorney had authority under city charter to bring lawsuit and did not need city council approval to appeal, a discussion of the appeal did not involve a final action).

3. No straw votes in closed session - governmental body should not take a “straw vote” or otherwise attempt to count votes in executive session. See Bd. of Trustees v. Cox Enter., Inc. 679 S.W.2d 86, 89-90 (Tex. App.—Texarkana 1984), aff’d in part, rev’d in part on other grounds, 706 S.W.2d 956 (Tex. 1986) (school board violated statutory predecessor to Section 551.102 where board took written vote on which member would serve as president during closed session; then convened in open session and voted unanimously for the individual who won the vote in closed session); but, see, Poder v. City of Austin, 2008 WL 4603569 (Tex. App.—Austin 2008) (city council did not violate straw vote prohibition).

4. Certified agenda or tape recording - governmental body must keep either a certified agenda or a tape recording of its closed meetings, except for meetings closed for consultations between the governmental body and its attorney pursuant to the litigation exception. In the event of litigation challenging the validity of the closed meeting, the certified agenda or tape recording provides evidence of what transpired during the closed meeting. If the court determines that the meeting


should not have been closed, it may make the certified agenda or tape recording available to the public (§§ 551.103 - .104).

F. Posting and notice requirements

1. All meetings, both open and closed, must be preceded by written public notice (§ 551.041).

a. A governmental body that recesses an open meeting to the following regular business day is not required to post notice of the continued meeting if the action is taken in good faith. If the open meeting is continued to the following business day and is then continued again to another day, the governmental body must give written notice (§ 551.0411).

b. Section 551.0415 exempt from agenda notice requirements municipal governing body discussions regarding expressions of thanks, congratulations, or condolence; information regarding holiday schedules; an honorary or salutary recognition of a public official, public employee, or other citizen; a reminder about an upcoming event organized or sponsored by the governing body; information regarding a social, ceremonial, or community event; and an imminent threat to the public health and safety that has arisen after the posting of the agenda.

2. Time of posting:

a. Notice must be posted 72 hours in advance - Notice must be posted “in a place readily accessible to the general public” for at least 72 hours preceding the scheduled time of the meeting, unless the meeting qualifies as an “emergency” meeting. The requirement is satisfied by making a good-faith attempt to continuously post the notice on the Internet during the prescribed period. The governmental body must still comply with any duty imposed by this chapter to physically post the notice at a particular location (§ 551.043).

b. Emergency meetings - Governmental bodies may meet on as little as two hours’ notice in cases of an “emergency or urgent public necessity.”(§ 551.045).

i. An “emergency or urgent public necessity” exists only if immediate action is required by a governmental body because of (1) an imminent threat to public health or safety; or (2) a reasonably unforeseen situation.

ii. The term “emergency” “generally refers to an unforeseen combination of circumstances that calls for immediate action; a sudden or unexpected occasion for action. The mere necessity for quick action does not constitute an emergency where the situation


calling for such action is one which reasonably should have been anticipated.” River Road Neighborhood Ass’n v. South Texas Sports, Inc., 720 S.W.2d 551, 557 (Tex. App.—San Antonio 1986, writ dism’d w.o.j.); see also Op. Tex. Att’y Gen. No. JM-985 (1988) (no “emergency” under Section 551.045 where school board held emergency session to discuss real estate purchased and stated as reason for “emergency” that “the land is now available but [the fact that] a decision must be made immediately makes it necessary to hold an emergency meeting”).

iii. Notice of the emergency session must clearly identify the emergency or urgent public necessity (§ 551.045(c)).

iv. In addition to posting requirement, governmental body must give personal notice by telephone, fax or e-mail to any news media that has requested such notice (§ 551.047).

3. Content of posting:

a. The written notice must give the date, place and time of the meeting (§ 551.041).

b. Notice must also include a description of subjects to be discussed that is sufficient to apprize the general public of the subjects to be considered during the meeting. Op. Tex. Att’y Gen. No. H-1045 (1977).

c. Whether a particular notice is sufficient is generally fact-specific. A particular subject requires more specific treatment where it is of special interest to the community. See Cox Enter., Inc. v. Bd. of Trustees, 706 S.W.2d 956, 959 (Tex. 1986); Op. Tex. Att’y Gen. No. H-1045 (1977).

d. In Cox Enterprises, the Texas Supreme Court held that notice of a school board executive session which listed only general topics such as “litigation” and “personnel” was insufficient to meet the notice requirement of the Open Meetings Act. One of the items considered at the closed session was the appointment of a new school superintendent. The court noted that the appointment of a new superintendent was not in the same category as ordinary personnel matters, since it was a matter of special interest to the public; thus, the use of the descriptor “personnel” was not sufficient to apprize the general public of the board’s proposed selection of the new superintendent. The court also noted that “litigation” would not sufficiently describe a major desegregation suit that had occupied the district’s time for a number of years. Cox Enter., 706 S.W.2d at 959. See also Point Isabel I.S.D v. Hinojosa, 797 S.W.2d 176, 182 (Tex. App.—Corpus Christi 1990, writ denied) (“employment of personnel” is insufficient to describe hiring of principals, but is sufficient for hiring school librarian, part-time counselor, band director or school


teacher); Op. Tex. Att’y Gen. No. H-1045 (1977) (“discussion of personnel changes” insufficient to describe selection of university system chancellor or university president).

Violation probably occurred, warranting injunction, when posted school board agenda gave notice of discussion of superintendent’s performance but meeting resulted in award of $500,000 severance pay. Salazar v. Gallardo, 57 S.W.3d 629 (Tex. App.—Corpus Christi 2001, no pet.).

City’s agenda notice of water development agreement was sufficient. Save Our Springs Alliance, Inc. vs. City of Dripping Springs, 2009 WL 1896070 (Tex. App.—Austin 2009).

G. Enforcement and remedies for violation of Open Meetings Act

1. Any action taken by a governmental body in violation of the Act is voidable. § 551.141. For example, action taken at a meeting held in violation of the Act’s notice requirements subjects that action to judicial invalidation. Lower Colorado River Auth. v. City of San Marcos, 523 S.W.2d 641, 646 (Tex. 1975).

2. Mandamus or injunction - An “interested person” (including a member of the news media) may bring an action by mandamus or injunction to stop, prevent or reverse a violation or a threatened violation of the Act (§ 551.142(a)).

a. Governmental body is an “interested person” with standing to challenge another governmental body’s alleged TOMA violations. City of Port Isabell v. Pinnell, 161 S.W.3d 233, 241 (Tex. App.—Corpus Christi 2005).

b. TOMA is a “school law” of the State such that educator must exhaust administrative remedies from Commissioner of Education before bringing suit in court. Harrison v. Neely, 229 S.W.3d 745 (Tex. App.—San Antonio 2007).

c. Court has discretion to award costs and reasonable attorneys fees to a plaintiff or defendant who “substantially prevails” (§ 551.142(b)).

3. Criminal penalties - it is a misdemeanor to:

a. Knowingly conspire to circumvent the open meetings act by meeting in numbers less than a quorum for the purposes of secret deliberations;

b. Call or aid in calling a closed meeting that is not permitted under the Act or to close or aid in closing the meeting or to participate in the closed meeting; or


c. Participate in a closed meeting knowing that a certified agenda of the closed meeting is not being kept or that a tape recording of the closed meeting is not being made (§§ 551.143-.145).