public official training: public information -- open...
TRANSCRIPT
PUBLIC OFFICIAL TRAINING: PUBLIC INFORMATION -- OPEN RECORDS
By:
Charles R. Kimbrough and Gunnar P. Seaquist
Bickerstaff Heath Delgado Acosta LLP
3711 South Mo-Pac Expressway
Building One, Suite 300
Austin, Texas 78746
(512) 472-8021 Telephone
(512) 320-5638 Facsimile
www.bickerstaff.com
APPROVED FOR TRAINING BY THE OFFICE OF THE TEXAS
ATTORNEY GENERAL ON SEPTEMBER 3, 2014
© Bickerstaff Heath Delgado Acosta LLP 2014
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TABLE OF CONTENTS
Page
A. TEXAS ATTORNEY GENERAL HANDBOOK ...........................................................1
B. REQUIRED TRAINING...................................................................................................1
C. LEGISLATIVE UPDATE.................................................................................................2
D. STATUTORY ANALYSIS ...............................................................................................4
1. History and Policy Goals .........................................................................................4
2. Public Information Defined .....................................................................................5
(a) General Definition .......................................................................................5
(b) Public Information Contained in Personal Records or on
Personal Devices ..........................................................................................5
(c) Third-Party Information ...............................................................................6
3. Governmental Bodies Subject to TPIA ....................................................................6
4. Judicial Records Excepted .......................................................................................8
5. Public Information Request .....................................................................................8
(a) Written Request ...........................................................................................8
(b) Receipt Documentation ................................................................................8
(c) Improper Requests .......................................................................................9
(d) Prompt Response .........................................................................................9
(e) Clarification of Request ...............................................................................9
(f) Public Information Officer .........................................................................10
6. Sign Required.........................................................................................................10
7. Record Retention Policy ........................................................................................10
8. Special Rights of Access or Transfer .....................................................................10
9. Response of Governmental Entity .........................................................................11
(a) 10 Day Response for Government .............................................................11
(b) 10 Day Review for Requestor ....................................................................12
(c) Personal Copying by Requestor .................................................................12
(d) Copyright Compliance ...............................................................................12
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(e) TXOAG Approval Required to Withhold Information .............................12
(f) TXOAG Open Government Hotline ..........................................................13
(g) Privacy or Property Interests of a Third-Party ...........................................13
(h) Redactions ..................................................................................................14
(i) Repetitious/Redundant Requests ...............................................................15
(j) Clarification Procedure ..............................................................................15
(k) Computer/Electronic Information ..............................................................16
(l) Key Deadlines ............................................................................................16
(m) Repetitious Requests for TXOAG Rulings ................................................18
10. Suit to Challenge TXOAG Ruling .........................................................................18
11. Exceptions/Exemptions to Disclosure ...................................................................19
(a) General Considerations ..............................................................................19
(b) Exemptions ................................................................................................20
(c) Exceptions ..................................................................................................20
(d) “Super Public Information” Not Excepted ................................................22
12. Cost Assessments and Recovery ............................................................................23
(a) General Considerations ..............................................................................23
(b) Labor Charges ............................................................................................23
(c) Electronic Medium Information ................................................................24
(d) Overhead Charges ......................................................................................25
(e) Statement of Estimated Charges ................................................................25
(f) Deposit or Bond .........................................................................................25
(g) Cost Waiver or Reduction ..........................................................................26
(h) Time Consuming Requests by Single Requestor .......................................26
(i) Overcharges ...............................................................................................27
13. Civil Enforcement Suits .........................................................................................27
(a) Suits to Compel Disclosure of Information ...............................................27
(b) Suits to Prevent Disclosure of Information ................................................28
14. Criminal Prosecution of TPIA Violators ...............................................................28
(a) Destruction, Removal, or Alteration of Public Information ......................28
(b) Distribution or Misuse of Confidential Information ..................................29
(c) Failure to Allow Access/Copying of Public Information ..........................29
E. CONCLUDING REMARKS ..........................................................................................29
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PUBLIC OFFICIAL TRAINING: PUBLIC INFORMATION -- OPEN RECORDS1
A. TEXAS ATTORNEY GENERAL HANDBOOK
The Texas Public Information Act, Chapter 552 of the Texas Government Code
(Chapter 552, TPIA, or Act) is the subject of frequent legislative changes, case law, and
opinions of the Office of the Texas Attorney General (TXOAG). TXOAG publishes a
valuable resource tool regarding TPIA and open record issues -- 2014 Public Information
Handbook of the Attorney General of Texas.
The current version of the handbook -- complete with interpretive commentary and
cites to the latest TPIA amendments, case law, and TXOAG opinions -- may be downloaded
from the TXOAG website. All public officials subject to TPIA requirements should acquire
and read this handbook.
B. REQUIRED TRAINING
The stakes are high for those who handle public information (open record) requests.
A TPIA violation may lead to risky, expensive, and time consuming civil litigation for the
governmental body -- and in certain circumstances, criminal prosecution for the violator.
TEX. GOV’T CODE §§ 552.321-552.353 (civil and criminal enforcement remedies). For these
reasons, the implementation of an open records training program regarding the TPIA is a
cautious, well advised risk management tool for all local governments.
Also, TPIA currently requires certain public officials to complete an open records
training course. This requirement extends to each elected or appointed member of a
governmental body, the governing officers of the entity, and other public officials listed in
TPIA. This training requirement is an important element of elected or appointed public
service in Texas, and should not be disregarded. The training course must be not less than
one or more than two hours. A public official must complete the training within 90 days
after (i) taking the oath of office, if the member is required to take an oath of office to assume
the person's duties as a member of the governmental body, or (ii) otherwise assumes
responsibilities of office. TEX. GOV’T CODE § 552.012.
A certificate of course completion shall be provided to each person who attends and
completes the training. Each governmental body must maintain and make available for
public inspection the record of its members’ completion of the training. Id. Completion of
the training satisfies the requirements of TPIA, and the training course may be used to satisfy
any corresponding training requirements concerning Chapter 552 or open records required by
law. Once completed, there is no requirement for additional TPIA training; however, yearly
1 This paper was initiated years ago by Myra A. McDaniel (1932-2010), a former Secretary of State, noted
legal scholar, champion for human rights and the ethical practice of the law, and beloved partner and colleague
of our law firm. Whatever we accomplish as a firm regarding open government and ethics training, we owe in
large part to her.
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TPIA training should occur due to statutory changes and the issuance of new case law and
TXOAG opinions on open records issues.
Failure to complete the training by members of a governing body does not affect the
validity of an action taken by the body. A certificate of course completion is admissible as
evidence in a criminal prosecution under TPIA. Course completion may not later be used as
prima facie evidence of a “knowing” violation of TPIA; however, the failure to complete the
required training and to file the completion certificate with the governmental entity in many
cases will present a serious public issue for a government official and the entity in which he
serves.
C. LEGISLATIVE UPDATE
Some important changes were made by the Texas Legislature to TPIA in the 2013
legislative sessions. Some noteworthy amendments or revisions are summarized below:
(1) The Legislature amended the TPIA to clarify the definitions of
“public information” and “official business.” Under the amended
statute, public information includes all information, in any type of
media-form, which is written, produced, collected, assembled, or
maintained under a law or ordinance or in connection with the
transaction of official business. TEX. GOV’T CODE § 552.002.
“Official business” means “any matter over which a governmental
body has any authority, administrative duties, or advisory duties.”
TEX. GOV’T CODE § 552.003(2-a).
(2) Information is “in connection with the transaction of official
business,” and thus public, if the information is created by, transmitted
to, received by, or maintained by an officer or employee of the
governmental body in his/her 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. TEX. GOV’T CODE § 552.002(a-1). This 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. Id. at §
552.002(a-2).
(3) A governmental body may, subject to the requirements of
Chapter 730 of the Texas Transportation Code, redact information
relating to 1) a motor vehicle operator's or driver's license or permit
issued by an agency of this state or another state or country; 2) a motor
vehicle title or registration issued by an agency of this state or another
state or country; or 3) a personal identification document issued by an
agency of this state or another state or country or a local agency
authorized to issue an identification document, without the necessity of
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requesting a decision from the attorney general. The governmental
entity informs the requestor that information is being withheld by
providing a description of the withheld information and instructions on
how to seek a decision of the attorney general in the form prescribed
by the TXOAG, should they wish to do so. TEX. GOV’T CODE §
552.130(e).
(4) The Legislature added state and federal judges to the list of
individuals who may elect to have certain private information withheld
by a governmental entity subject to the TPIA. Additionally, the
Legislature expanded the list of information excepted from disclosure
on the basis of an election pursuant to section 552.1175 to include date
of birth. TEX. GOV’T CODE § 552.1175.
(5) A party in a contested TPIA suit may file contested information
with the trial court for an in-camera inspection. The court must enter
an order preventing access to information by third parties (other than a
reviewing court or party permitted to inspect that information pursuant
to a protective order). TEX. GOV’T CODE § 552.3221.
(6) The social security number of an employee of a school district
in the custody of the district is confidential. A school district may not
require an employee or former employee of the district to choose
whether to allow the public access to the employee or former
employee’s social security number. TEX. GOV’T CODE §§ 552.024;
552.147.
(7) The Legislature added Texas Government Code section
552.1085, which makes certain crime scene photographs and video
recordings confidential. Under the amendment, a “sensitive crime
scene image” means a photograph or video taken at a crime scene,
contained in or part of a closed criminal case that depicts a deceased
person in a state of dismemberment, decapitation, or similar mutilation
or that depicts the deceased person’s genitalia. A governmental body
may not permit any person to view or copy the image, except certain
individuals expressly identified in the statute, including, among others:
1) next of kin; 2) the criminal defendant or the defendant’s attorney; 3)
an agency of the federal government; or 4) a local governmental entity.
If a governmental body receives a request for a sensitive crime scene
image, it must notify the decedent’s next of kin within 10 business
days. Further, the governmental body must permit the requestor to
view or copy the image within 10 business days unless it requests a
decision of the attorney general. TEX. GOV’T CODE § 552.1085.
(8) The Legislature also amended the Texas Code of Criminal
Procedure to allow a governmental body to withhold photographs and
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x-rays taken during an autopsy, unless a subpoena is issued for the
images or if the photograph and/or x-rays are of a body of a person
who died while in the custody of law enforcement. A governmental
body may withhold information under this section without the
necessity of requesting a decision from the attorney general.
D. STATUTORY ANALYSIS
1. History and Policy Goals
TPIA (formerly the Texas Open Records Act) was enacted by the Texas Legislature
in 1973 in part as a response to the famous Sharpstown stock-fraud scandal of 1969-72. See
Mutscher v. State, 514 S.W.2d 905, 909-13 (Tex. Crim. App. 1974). This scandal involved a
conspiracy involving two elected members of the Texas House of Representatives and a state
employee to accept bribes to ensure passage of legislation. Id. Other state officials also were
implicated. The scandal effectively ended or altered the public service careers of a number
of these officials and caused new legislation to be enacted by the Legislature in 1973
regarding campaign finance, lobbyist disclosures, and open government. See Charles
Deaton, The Year They Threw the Rascals Out (Shoal Creek Publishers 1973). The
enactment of TPIA also was part of a national trend toward government that was more
accessible to the people by requiring actions more open to public view.
Under TPIA, all records of a governmental body are presumed open to the public
unless an authorized exception to disclosure exists. TEX. GOV’T CODE §§ 552.001, 552.302.
TPIA serves as the mechanism for citizens to inspect or copy public information maintained
by a governmental body. TPIA also provides exceptions and exemptions for certain types of
information which governmental bodies may lawfully withhold, and provides the procedures,
deadlines, and costs associated with a public information request and response.
The public policy goals of TPIA are stridently phrased by the Legislature in the
introductory words of the statute:
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 people, in delegating authority, do not give their
public servants the right to decide what is good for the people to know
and what is not good for them to know. The people insist on
remaining informed so that they may retain control over the
instruments they have created. The provisions of this chapter shall be
liberally construed to implement this policy.
TEX. GOV’T CODE § 552.001.
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2. Public Information Defined
(a) General Definition
Public information means all 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 – where the
governmental body owns the information, has a right of access to it, or used public money to
pay for the information to be created, collected, or maintained; or (3) by an individual officer
or employee of a governmental body in the officer’s or employee’s official capacity and the
information pertains to official business of the governmental body. TEX. GOV’T CODE §
552.002.
Official business means any matter over which a governmental body has any
authority, administrative duties, or advisory duties. TEX. GOV’T CODE § 552.003(2-a).
Under the TPIA, 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 officer’s or employee’s 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. TEX. GOV’T
CODE § 552.002(a-1). This includes any electronic communication created, transmitted,
received, or maintained on any device if the communication is in connection with the
transaction of official business. TEX. GOV’T CODE § 552.002(a-2).
Under the TPIA, public information encompasses all formats, media, or types of
information, including the original or copy of a: book; paper; letter; document; e-mail,
Internet posting, text message, instant message, other electronic communication, printout;
photograph; film; tape; microfiche; microfilm; photostat; sound recording; map; drawing;
voice, data, or video representation held in computer memory; and any of these items
maintained by a magnetic, optical, or solid state device that can store an electronic signal.
TEX. GOV’T CODE § 552.002(b).
(b) Public Information Contained in Personal Records or on Personal
Devices.
Governmental entities and employees need to be aware that information created or
contained in personal records or on a personal electronic device is likely public information
subject to the TPIA, where the information pertains to the official business of the
governmental body. The TPIA’s amended definition of “public information” expressly
includes information created or maintained by an individual officer or employee of a
governmental body in his or her official capacity. TEX. GOV’T CODE § 552.002.
Furthermore, in defining the types of communications and media that are subject to
disclosure under the act, the Legislature adopted broad language encompassing “any
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communication…on any device,” and created no exception for communications held in
personal files or on personal devices. Id
To determine whether an employee or officer’s communications are public
information under the TPIA, a governmental body must analyze whether a particular
communication was made in the employee or officer’s official capacity and was made in
connection with the transaction of official business of the governmental body. TEX. GOV’T
CODE § 552.002(a)(3). In the context of the TPIA, a communication is made in an employee
or officer’s official capacity when it relates to the individual’s position, character, or role as
an employee or official of the governmental body. Adkisson, ____S.W. 3d.____, No. 03-12-
535-CV, 2014 WL 270824 at *6-8 (Tex.App. -- Austin June 13, 2014, no pet. h.). Similarly,
a communication is made in connection with the transaction of official business when it
relates to the transaction of any matter over which the governmental body has authority,
administrative duties, or advisory duties. Id.; see also TEX. GOV’T CODE § 552.003(2-a).
Therefore, where an individual communicates in their role as a public employee or
officer on a matter within the official business of the governmental body, those
communications are public information subject to disclosure under the TPIA, even if the
communications are stored on an employee or officer’s personal device. As such, to ensure
compliance with the TPIA, governmental bodies should establish a system to identify and
obtain public information stored on personal devices so that the governmental body may
either disclose that information or request a decision from the attorney general allowing the
information to be withheld.
(c) Third-Party Information
Government information held by an outside agent or consultant may be subject to
disclosure if the facts described in section 552.002 exist. Information held by the third-party
is considered public information if the governmental body owns the information, has a right
of access to it, or expended public money for the purpose of writing, producing, collecting,
assembling, or maintaining the information. TEX. GOV’T CODE § 552.002.
In 2013, the Legislature amended section 2252.907 of the Texas Government Code
to require that a contract between a state governmental entity and a nongovernmental vendor
involving the exchange or creation of public information that the state governmental entity
collects, assembles, or maintains, or has a right of access to must contain a provision that
requires the vendor to make the information that is not otherwise excepted from disclosure
under the TPIA available to the public.
3. Governmental Bodies Subject to TPIA
“Governmental bodies” are subject to TPIA, including:
(a) a board, commission, department, committee, institution,
agency, or office that is within or is created by the executive or
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legislative branch of state government and that is directed by one or
more appointed members;
(b) a county commissioners court;
(c) a municipal governing body;
(d) a deliberative body that has rulemaking or quasi-judicial power
and that is classified as a department, agency, or political subdivision
of a county or municipality;
(e) a school district board of trustees;
(f) a county board of school trustees;
(g) a county board of education;
(h) the governing board of a special district;
(i) the governing body of a nonprofit corporation organized under
Chapter 67 of the Texas Water Code, that provides water supply or
wastewater service, or both, and is exempt from ad valorem taxation
under section 11.30 of the Texas Tax Code;
(j) a local workforce development board;
(k) a nonprofit corporation that is eligible to receive funds under
the federal community services block grant program and that is
authorized by the state to serve a geographic area of the state; and
(l) 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.
TEX. GOV’T CODE § 552.003.
If a private entity receives support in whole or in part by public funds, the records of
that entity are subject to TPIA. “Public funds” means the funds of the state or of a
governmental subdivision of the state. TEX. GOV’T CODE § 552.003. The determination of
whether an entity is a governmental body under TPIA requires a factual analysis on the
public support issue. If public funding is received for general support -- TPIA applies to the
information of the private entity. However, if public funding is received in an arms-length
transaction in return for specific, measurable services performed by the private entity -- TPIA
does not apply to the information of the private entity. See Op. Tex. Att’y. Gen. No. MW-
373 (1981) at 9-10 (records of private law school foundation subject to open records statute -
- it received general financial support from public university); compare Open Records Letter
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No. 2011-05663 (2011) at 2-4 (records of private alumni association not subject to TPIA -- it
provided specific, measurable services to public university in exchange for definite
consideration).
4. Judicial Records Excepted
Records of the judiciary are not subject to TPIA. TEX. GOV’T CODE §§ 552.003,
552.0035. Many court records are available for inspection and copying at the office of a
court clerk. Access to information collected, assembled or maintained by or for the judiciary
is governed by rules adopted by the Supreme Court of Texas or by other applicable laws and
rules.
5. Public Information Request
(a) Written Request
Public information is available to any person upon submission of a proper request.
TEX. GOV’T CODE §§ 552.001, 552.021, 552.221. A public information request (PIR) should
be submitted in writing and should request information in existence at the time of the request.
TEX. GOV’T CODE § 552.301. The request may seek inspection or review of the public
information, and/or copying of the information. TEX. GOV’T CODE § 552.221.
Under TPIA, no requirement exists for the government to provide public information
in response to a verbal request. Some governments provide information in response to a
verbal request in the interest of public service. Should that occur, care must be exercised to
be consistent regarding the treatment of all requestors. For example, a government should
not produce public information for the news media upon a verbal request -- while requiring
the general public to make a written request. TEX. GOV’T CODE §§ 552.223-552.224
(requiring uniform treatment -- and the provision of all reasonable comfort and facility -- to
each requestor without regard to position, occupation, or status).
Governmental entities should consider approving a standard form to be used for
public information requests; however, requestors cannot be compelled to use the form. At
minimum, the form should include sufficient blanks for the following matters to be legibly
described on the request document: (1) the requestor’s correct name; (2) the requestor’s
correct mailing address, telephone/facsimile numbers, and email address to be used in all
communication with the requestor; (3) the date of the request; (4) the method of the
transmittal of the request to the government; and (5) sufficient space for a detailed
description of the public information requested.
(b) Receipt Documentation
Upon receipt of a PIR, the government should immediately endorse or stamp (legibly)
the following information on the request document -- or attach the information to the request
document: (1) the date and time of actual receipt; (2) the method of receipt; and (3) the
correct name of the person who received the request.
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This PIR receipt information is critical. All time periods for a correct and timely
government response to the PIR initiate from the date of receipt. Therefore, an accurate,
legible receipt record is necessary.
(c) Improper Requests
Public information not in existence at the time of the request is not required to be
produced. Also, a governmental body is not required to create new information, do legal
research, answer questions -- or treat a request as a continuing duty to provide information as
it later occurs. A&T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 676 (Tex. 1995) (request
for information not existing at time of request); Op. Tex. Att’y Gen. No. JM-48 (1983) at 2
(request for continuing duty of disclosure); Tex. Att’y Gen. No. ORD-563 (1990) at 8
(request for legal research or answering of questions).
The governing body must make a good faith effort to correlate a PIR to existing
information. For example, misspelled words or other errors should not be used as a rationale
for non-disclosure if the correct meaning can be determined.
(d) Prompt Response
TPIA requires the production of public information “promptly” upon request --
meaning as soon as possible under the circumstances, within a reasonable time, and without
delay. TEX. GOV’T CODE § 552.221.
If the information is not available because it is in active use or in storage, the officer
must certify that the record is unavailable and set a date and time within which the record
will be available for inspection. As later discussed, a timely response under TPIA is ten (10)
business days from the government’s receipt of the request.
(e) Clarification of Request
No magic language is required for the request -- however, it must specify the
information sought with sufficient particularity for the governmental body to properly
respond. If overbroad or unclear, the government may seek a good faith clarification of the
request -- and that clarification request must inform the requestor of the consequences of a
failure to timely respond within 61 days. Tex. Gov’t Code § 552.222(b); Tex. Att’y Gen. No.
ORD-304 (1982) at 1.
If no clarification occurs by the 61st day after the government sends the clarification
request, the underlying request for public information is considered withdrawn. Tex. Gov’t
Code § 552.222(d). When a good faith clarification request is made by the government, the
10 business day period for the government to answer the request is effectively “reset” -- the
response period begins anew and is measured from the clarification date. City of Dallas v.
Abbott, 304 S.W.3d 380, 381, 384-87 (Tex. 2010).
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(f) Public Information Officer
The chief administrative officer of a governmental body is the officer for public
information for the governmental entity; however, each elected county officer is the officer
for public information (and the custodian of the information) created or received by that
county office. Moore, 897 S.W.2d at 499; TEX. GOV’T CODE §§ 552.201-552.205.
The public information officer shall: (1) make public information available for
inspection and copying; (2) carefully protect public information from deterioration,
alteration, mutilation, loss, or unlawful removal; and (3) repair, renovate, or rebind
information as necessary to maintain it properly. Upon receipt of a PIR, the officer may not
inquire regarding the requestor’s motive or intended use of the information. Also, the
government is not legally responsible for any later use made of information provided. TEX.
GOV’T CODE §§ 552.204, 552.222.
Except for emailed or faxed requests, TPIA does not require that the requestor submit
the request to any specific officer. A request can be addressed to a specific person or to the
governmental body itself. However, TPIA permits a governmental body to designate a
specific person as the recipient of fax or email requests. TEX. GOV’T CODE § 552.301.
6. Sign Required
TPIA requires the public information officer to display -- at one or more plainly
visible locations in the administrative office of the governmental entity -- a sign (in a form
prescribed by TXOAG) that contains the basic TPIA information about the: (a) rights of the
requestor; (b) the responsibilities of the governmental body; and (c) procedures for inspecting
or copying public information. TEX. GOV’T CODE § 552.205. Copies of the approved
TXOAG sign (in English and Spanish) may be downloaded from the TXOAG website.
7. Record Retention Policy
Each governmental entity should have a record retention policy enacted pursuant to
the Texas Local Government Records Act. See TEX. LOC. GOV’T CODE Chs. 201-205. This
policy should require that: (a) a records management program be adopted by the governing
body; and (b) a records management officer be appointed to supervise the program. TEX.
LOC. GOV’T CODE §§ 203.025, 203.026. The plan must include directions for lawfully filing,
storing, maintaining and destroying public documents.
8. Special Rights of Access or Transfer
TPIA prohibits the selective disclosure of information to the public. In other words,
once information is disclosed to one person, it must be disclosed to other members of the
public upon request unless prohibited by law. TEX. GOV’T CODE § 552.007. Exceptions
exist regarding disclosure occurring through special rights of access recognized by TPIA.
When these exceptions occur, no general release of information to the public has occurred.
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The transfer of information within a governmental body -- or a transfer of information
between government agencies -- usually is not subject to the requirements of TPIA.
Members of the governing body and the staff of the governmental entity are allowed to
access information without submitting a PIR, when the access is requested in an official
capacity. Op. Tex. Att’y Gen. JM-119 (1983) at 2; Tex. Att’y Gen. No. ORD-464 (1987) at
5. TXOAG has drawn a distinction regarding transfers of non-disclosable information from
state governmental entities to federal government agencies -- this due to the difference
between TPIA and the federal Freedom of Information Act governing the public information
of federal agencies. See 5 U.S.C. § 552. TXOAG advises that a state governmental body
should not transfer non-disclosable information to a federal agency unless required to do so
by an existing federal or state law. Tex. Att’y Gen. No. ORD-650 (1996) at 4; Public
Information Handbook of the Attorney General of Texas (2012) at 32.
When an entity mistakenly releases private or confidential information to the public,
no general release of information to the public has occurred. Thereafter, the entity may
withhold the information (using proper TPIA response procedures) when other requests are
made for the same information. Tex. Att’y Gen. No. ORD-400 (1983) at 2-3.
9. Response of Governmental Entity
(a) 10 Day Response for Government
As stated, TPIA requires the governmental entity to respond to any written request,
including those made by email or facsimile. The entity must respond in good faith and
promptly produce the requested information for review and/or copying -- meaning “as soon
as possible under the circumstances, that is, within a reasonable time, without delay.” TEX.
GOV’T CODE § 552.221. The reasonableness of the response period will depend upon the
complexity of the request for information. The availability or amount of information may
delay the response time -- however, the governmental entity must produce the information to
the requestor as soon as reasonably possible under the circumstances.
The basic rule for the government’s PIR response under TPIA is this: a response
(called 10 Day Notice Letter to Requestor) must be transmitted to the requestor within 10
business days from PIR receipt. This notice letter will provide a variety of information to the
requestor regarding the pending PIR -- and its content will depend on whether the
government: (1) has information responsive to the PIR; (2) shall withhold all or a part of the
responsive information while seeking a TXOAG approval decision; or (3) shall produce all
or a part of the responsive information for inspection and/or copying at a specific date, time,
and location. Id. If the governmental entity cannot produce the information within 10
business days after PIR receipt, the entity shall certify that fact in writing to the requestor and
set a date and hour within a reasonable time when the information will be made available.
The 10 business day rule does not include weekends or holidays of the governmental entity.
Id. The entity must provide the information to the requestor for inspection or copying in its
offices or send copies by first class United States mail. Id. The entity may not refer the
requestor to information on a government website unless the requestor agrees to that result.
Tex. Att’y Gen. No. ORD-682 (2005) at 2.
12
(b) 10 Day Review for Requestor
The requestor must complete the review of the information within 10 business days
after the information is made available -- if not, the request is deemed withdrawn. TEX.
GOV’T CODE § 552.225. An extension must be granted for an additional 10 days of requestor
review time if requested. Id; Tex. Att’y Gen. No. ORD-512 (1988) at 1-2.
(c) Personal Copying by Requestor
A requestor may bring personal copying equipment to the government office to copy
the information, unless it will be unreasonably disruptive of working conditions or will
interfere with others’ rights to inspect and copy information. TEX. GOV’T CODE §§ 552.228-
552.230; Op. Tex. Att’y Gen. JM-757 (1987) at 2. TPIA’s requirement that each person
requesting information receive all comfort and facility for exercising statutory rights does not
impose a duty to transport records to that person or to make transported records available at
sites outside government offices. Conely v. Peck, 929 S.W.2d 630, 632 (Tex. App. -- Austin
1996, no writ); TEX. GOV’T CODE §§ 552.223, 552.224. Reasonable policies for information
access and copying, consistent with TPIA requirements, may be ordered by the governmental
entity. TEX. GOV’T CODE § 552.230.
(d) Copyright Compliance
Regarding the copying of copyrighted material in response to a PIR, the
governmental body must comply with federal copyright law. Tex. Att’y Gen. No. ORD-660
(1999) at 5.
(e) TXOAG Approval Required to Withhold Information
A governmental entity may not refuse a proper PIR. The government response must
be submitted to the requestor under TPIA requirements in a timely manner. Should the
government choose to withhold the requested information, TXOAG approval is required.
TEX. GOV’T CODE §§ 552.301-552.303. Exceptions to this rule exist in limited
circumstances when TPIA allows a physical redaction of the information, as hereafter
described. To obtain a ruling from TXOAG, the governmental entity must submit a timely
request for a TXOAG decision if the government has a good faith belief that the information
is excepted from disclosure pursuant to TPIA or other law. TEX. GOV’T CODE § 552.301.
The government’s request for a decision from TXOAG has two parts. First (called
the 10 Business Day Notice Letter to TXOAG), within 10 business days from receipt of the
PIR, the government must notify TXOAG in writing that responsive information has been
withheld. This notice must raise all exceptions that apply to support the government’s
withholding position; the failure to do so generally means the omitted exception is waived.
A copy of this 10 business day letter to TXOAG must be provided to the requestor. Id.
13
Second (called the 15 Business Day Letter Brief to TXOAG), within 15 business days
from receipt of the PIR, the government must file with TXOAG written comments (i.e., a
letter brief), including: (1) all reasons to support the withholding of the information; (2) a
copy of the request for information; (3) a signed statement to confirm the date of PIR receipt,
or evidence sufficient to establish that date; and (4) a copy of the specific information being
withheld, or representative samples of the information if voluminous. A copy of this 15
business day letter brief to TXOAG must be provided to the requestor within the same time
period; however, the copy may be redacted to remove the information withheld from
disclosure. Id. Governmental bodies that withhold information may timely submit a request
for decision to TXOAG’s electronic filing system. TXOAG may charge and collect a fee for
the use of the system. TEX. GOV’T CODE § 552.309.
Should the governmental body fail to request a TXOAG decision in compliance with
TPIA, the requested information is presumed subject to disclosure and must be released
unless a compelling reason exists for non-disclosure. TEX. GOV’T CODE § 552.302. “In the
great majority of cases, the governmental body will not be able to overcome that presumption
and must promptly release the requested information.” Public Information Handbook of the
Attorney General of Texas (2012) at 43. The protection of third-party privacy interests or
confidential information are viewed as compelling reasons to overcome the presumption. Id.
at 44; see also Tex. Att’y Gen. No. ORD-150 (1977) at 2.
TXOAG may ask the government for the additional information. If so, the
government must provide the information within 7 calendar days of the TXOAG request.
Tex. Gov’t Code § 552.303. TXOAG usually will issue a decision within 45 business days
after receipt of the entity’s request for a decision. A 10 business day extension is authorized
for TXOAG to issue its decision. Tex. Gov’t Code § 552.306.
(f) TXOAG Open Government Hotline
TXOAG operates an Open Government Hotline for answering questions related to
public information and TPIA procedures -- or receiving complaints against persons or entities
that violate TPIA. Although TXOAG will not give legal advice, its attorneys and staff are
available to answer most questions. The hotline numbers are: (512) 478-6736; or toll-free at
(877) OPEN TEX [numerically (877) 673-6839].
TXOAG seeks to resolve informally any disputes that arise between a requestor and a
governmental entity through education, investigation and mediation. Complaints should be
addressed to the Open Records Division, Office of the Attorney General of Texas, P.O. Box
12548, Austin, TX 78711-2548.
(g) Privacy or Property Interests of a Third Party
When a PIR involves information relating to a protected privacy or property interest
of a third-party, special procedures apply. TEX. GOV’T CODE § 552.305. The interests that
trigger the special procedures are those that are protected by the following exceptions: TEX.
GOV’T CODE §§ 552.110 (trade secrets and certain commercial or financial information),
14
552.113 (geological or geophysical information), 552.131 (economic development
information); 552.114 (student records), or 552.101 (general catch all for information that is
made confidential under a statutory or constitutional provision, or by judicial decision).
When information responsive to a PIR relates to a protected third-party interest, the
governmental body must withhold the information for the purpose of requesting a TXOAG
decision.2 In this circumstance, the governmental body must make a good faith attempt to
provide written notification to the affected third-party, not later than the 10th business day
after the governmental body receives the request. That notice must include (a) a copy of the
written request for information, and (b) a statement indicating that the third-party is entitled
(within 10 days of receiving the notice) to submit in writing to TXOAG a letter,
memorandum or brief citing each reason why the information should be withheld. TEX.
GOV’T CODE §§ 552.305. Although a governmental body is not required to submit
arguments to support withholding proprietary information, it must request a ruling and
comply with all other procedural requirements including the submission of documents to the
Office of the Attorney General. That office will not rule on information submitted by the
third party. Furthermore, the Office of the Attorney General will not allow the third party to
review the documents that were submitted to their office.
(h) Redactions
Unless otherwise prohibited by law, the government may redact certain data from
public information prior to production to the requestor without obtaining TXOAG approval,
including the following:
(1) information regarding a current or former government
employee’s home address, home telephone number, emergency
contact information, or social security number, or that reveals whether
the person has family members -- if that person previously has elected
to keep such information confidential (TEX. GOV’T CODE §§ 552.024,
552.117);
(2) the same categories of personal information, and also date of
birth for a peace officer, probation officer, certain correctional officers,
state and federal judges, a volunteer worker of a family violence
shelter center/sexual assault program, or a client of such a
program/shelter (TEX. GOV’T CODE §§ 552.117, 552.1175, 552.138);
(3) information regarding a credit card, debit card, charge card, or
access device number that is collected, assembled, or maintained by or
for a governmental body (TEX. GOV’T CODE § 552.136);
2 In this type of situation, the government should not release the protected information without obtaining a
TXOAG decision -- to do so can result in criminal prosecution. TEX. GOV’T CODE § 552.352.
15
(4) information regarding a motor vehicle operator's or driver's
license or permit issued by an agency of this state or another state or
country, motor vehicle title or registration issued by an agency of this
state or another state or country, a personal identification document
issued by an agency of this state or another state or country or a local
agency authorized to issue an identification document. (Tex. Gov’t
Code § 552.130(a)(1-3));
(5) social security numbers of living persons (Tex. Gov’t Code §
552.147).
Regarding items 1-4 above, when the redaction occurs, the government must provide
the following information to the requestor in the forms prescribed by the Texas Attorney
General and may be found on the TXOAG website: (1) a generic description of the redacted
information; (2) a citation to the applicable law allowing the redaction; and (3) instructions
regarding how to seek a TXOAG ruling on the redaction.
(i) Repetitious/Redundant Requests
The government may refuse to process repetitious or redundant requests for
information only when the entity has previously furnished copies or has made copies
available to the requestor, although the entity is not prohibited from furnishing the
information again. TEX. GOV’T CODE § 552.232. In refusing a repetitious or redundant
request, the government must certify to the requestor that copies of all or part of the
requested information were previously furnished or made available.
The certification must include: (1) a description of the information for which copies
have been previously furnished or made available to the requestor; (2) the date that the
governmental body received the requestor’s original request for that information; (3) the date
that the governmental body previously furnished copies of or made available copies of the
information to the requestor; (4) a certification that no subsequent additions, deletions, or
corrections have been made to that information; and (5) the name, title and signature of the
officer for public information (or agent) making the certification. Id. No charge may be
imposed for making and furnishing the certification. If an earlier request was made for
information that is currently available, but was not available at the time of the first request,
the governmental entity cannot refuse to provide the information. Id.
(j) Clarification Procedure
As discussed, the government in good faith may seek a clarification of an overbroad
or unclear request. If sought, the government’s clarification request must inform the
requestor of the consequences of a failure to timely respond within 61 days. TEX. GOV’T
CODE § 552.222.
If no clarification occurs by the 61st day after the government sends the clarification
request, the PIR is considered withdrawn. When the requestor makes a clarification, the 10-
16
business day period for the government to answer begins anew and is measured from the
clarification date. Abbott, 304 S.W.3d at 384-87.
(k) Computer/Electronic Information
If public information exists in an electronic or magnetic medium (or format), the PIR
may seek production of the information in an electronic medium, such as on a diskette or
magnetic tape. The governmental body must provide the information in the requested format
if: (1) it has the technical ability to do so; (2) it is not required to purchase software or
hardware to accommodate the request; and (3) production will not violate the terms of a
copyright agreement. TEX. GOV’T CODE § 552.228.
A PIR that requires a governmental entity to program or manipulate existing data is
not considered an improper request to create new data. TEX. GOV’T CODE §§ 552.003,
552.231. If compliance with such a request regarding existing data is not feasible or will
result in substantial interference with ongoing operations -- or if the information could be
made available in the requested form only at a cost that covers the
programming/manipulation of the data -- the government must provide the requestor with a
written statement describing: (1) the format in which the information is available; (2) what is
required to provide the information in the requested format; and (3) the estimated cost and
time to provide the information in the requested format. TEX. GOV’T CODE § 552.231.
This statement must be provided by the government within 20 days of PIR receipt. If
the government gives written notice within the 20 days that additional time is needed, an
additional 10 days is granted to the government for the statement. Once the statement is
provided, the government has no obligation to produce information -- unless within 30 days
the requestor responds in writing. If no requestor response occurs within 30 days, the PIR is
considered withdrawn. Id.
(l) Key Deadlines
The amount and type of information requested by a PIR will determine the time
needed to produce the information. Under TPIA, eight key deadlines exist as traps for the
unwary -- as summarized below:
(1) 10 Business Day Letter to Requestor: Within 10 business days
from PIR receipt, the governmental entity must respond regarding
responsive information, the date and time for inspection and copying
of disclosed information, and whether any information is being
withheld pursuant to a request for a TXOAG decision. TEX. GOV’T
CODE §§ 552.221, 552.301.
(2) Notice of Additional Time Needed: If the entity will need
longer than 10 business days to provide the information, the entity
must certify that fact in writing to the requestor. In this notice, a
specific date and hour, within a reasonable time, must be stated for the
17
information to be produced. This notice must be transmitted to the
requestor within 10 business days from the receipt of the PIR. Id.
(3) Notice of Additional Time Needed for Records in Active
Use/Storage: If the entity will need longer than 10 business days to
produce the information because of active use or storage, this fact must
be sent to the requestor in writing. In this notice, a specific date and
hour, within a reasonable time, must be stated for the information to be
produced. This notice must be transmitted to the requestor within 10
business days from PIR receipt. The fact that the document has not
been formally approved by the governing body usually will not justify
a delay under the “active use” provision. Id.
(4) Notice of Programming/Manipulation Costs: If the production
of existing information is requested in a particular format and will
require additional programming or manipulation to produce it in the
requested format, the entity must provide a written notice of this fact
to the requestor. The notice must contain the following: (a) a
statement that the information is not available in the requested format;
(b) a description of the form in which it is available; (c) a description
of any contract or services that would be required to provide the
information in the requested form; and (d) an estimated cost and time
of providing the information as requested. Generally, this notice must
be provided within 20 business days after PIR receipt. After providing
the written statement, the government does not have an obligation to
provide the information unless within 30 business days the requestor
states in writing that the requestor wants the information in the form
according to the cost and time parameters, or wants the information in
its available form. TEX. GOV’T CODE § 552.231.
(5) Request for TXOAG Ruling: If the entity withholds
information (except for permissible redactions), it must timely request
a TXOAG ruling for authority to withhold the information. This
written notice must be transmitted to TXOAG within 10 business days
of receipt of the PIR. TEX. GOV’T CODE § 552.301.
(6) Notice of TXOAG Ruling Being Sought: If the entity seeks a
TXOAG ruling, a written notice must be sent to the requestor within
10 business days of receipt of the PIR. The notice must contain a copy
of the written communication that outlines the rationale for
withholding the information. If providing the written communication
would disclose the information that is alleged to be confidential, a
redacted copy may be substituted. TEX. GOV’T CODE §§ 552.221,
552.301.
18
(7) 15 Business Day Letter Brief to TXOAG: The entity
requesting a TXOAG ruling must file its letter brief (written comments
with all required attachments) with TXOAG within 15 business days
of receipt of the PIR. TEX. GOV’T CODE § 552.301.
(8) 10 Business Day/15 Business Day Notices to Third-Party with
Protected Privacy/Property Interest: Should the PIR seek disclosure of
the protected privacy/property information of a third-party -- and
should a TXOAG ruling be sought regarding that matter, as previously
discussed -- the entity must send (a) a 10 business day notice (from
PIR receipt) to the third-party indicating that the information has been
withheld and that a TXOAG ruling is being sought; and (b) a 15
business day notice (from PIR receipt) regarding the filing of the
entity’s letter brief with TXOAG. TEX. GOV’T CODE § 552.305.
(m) Repetitious Requests for TXOAG Rulings
It is not necessary for the government to request a decision from TXOAG if a
previous determination already has been made regarding the documents requested in a
pending PIR. TEX. GOV’T CODE § 552.301(a). However, to take advantage of this time
saving tool requires careful analysis by government staff. Only two types of “previous
determinations” are recognized under TPIA requirements.
The first occurs when: (1) the government previously requested and received a
TXOAG ruling concerning the precise information at issue in the pending PIR; (2) the
governmental body that received the request for information is the same governmental body
that previously requested and received a ruling from the TXOAG; (3) TXOAG determined
that the precise information was or was not public information under TPIA; and (4) the law,
facts, and circumstances on which the prior TXOAG ruling was based have not changed.
Under these circumstances, the government is prohibited from seeking a TXOAG ruling and
must release the responsive information. The second type occurs when: (1) the information
at issue falls within a specific, clearly delineated category of information about which the
TXOAG has previously rendered a decision; (2) the previous decision is applicable to the
particular governmental body or type of governmental body from which the information is
requested; (3) the previous decision concludes that the specific, clearly delineated category of
information is or is not excepted from disclosure under the TPIA; (4) the elements of law,
fact, and circumstances are met to support the previous decision’s conclusion that the
requested records or information at issue is or is not excepted from required disclosure; and
(5) the previous decision explicitly provides that the governmental body or bodies to which
the decision applies may withhold the information without the necessity of again seeking a
decision from the TXOAG.
10. Suit to Challenge TXOAG Ruling
A favorable decision by TXOAG means that the government may withhold the
information. An unfavorable decision means that the government must release the
19
information immediately -- or challenge the ruling by filing suit against TXOAG. TEX.
GOV’T CODE §§ 552.324-552.325.
A suit by the governmental body against TXOAG must be filed in Travis County,
Texas within 30 days after receipt of the TXOAG decision in order to preserve the
withholding position -- but also within 10 days after receipt of the TXOAG decision in order
to preserve the affirmative defense to prosecution under TPIA section 552.353. TEX. GOV’T
CODE §§ 552.324, 552.353. A party who substantially prevails may recover its costs and
reasonable attorney’s fees -- with some exceptions relating to the reasonable reliance of the
governmental body on a court judgment or order, a published judicial decision from an
appellate court, or a written TXOAG decision. TEX. GOV’T CODE § 552.323. The
government cannot file suit against the requestor -- although the requestor may intervene in a
suit filed by the government against TXOAG.
The government may ask TXOAG to reconsider its ruling after a lawsuit has been
filed if: (a) a suit challenging the prior decision was timely filed concerning the precise
information at issue; (b) TXOAG determines that the requestor has voluntarily withdrawn the
PIR in writing or has abandoned it; and (c) the parties agree to dismiss the lawsuit. TEX.
GOV’T CODE § 552.301.
11. Exceptions/Exemptions to Disclosure
(a) General Considerations
As discussed, when a PIR is submitted, a timely government response is required.
TEX. GOV’T CODE §§ 552.221, 552.301. The government’s response may state that all
responsive information will be produced for inspection and copying -- or it may state that all
or part of the information is being withheld, and (regarding the withheld parts) that a
TXOAG ruling is being sought. Any information withheld must be supported by a proper
and timely exemption or exception argument asserted by the government to TXOAG under
the notice and briefing rules of TPIA. TEX. GOV’T CODE §§ 552.221, 552.301-552.306.
The government’s PIR analysis within the 10 business day response period is critical
-- that is when the government must address the following, time-sensitive issues:
(1) Does the PIR seek “public information” from a “governmental
body” as defined by TPIA? If not, the entity is exempt from TPIA
compliance. In order to avoid required disclosure, the government
must assert and brief the exemption to TXOAG in a timely manner.
(2) Is the information sought by the PIR “excepted” from
disclosure by TPIA or other law? If so, the exception may be applied
to prevent disclosure. In order to avoid the required disclosure, the
government must assert and brief the exception to TXOAG in a timely
manner.
20
TEX. GOV’T CODE §§ 552.002-552.003, 552.101-552.153.
(b) Exemptions
If an entity does not fit the “governmental body” definition of TPIA, compliance with
the statute is not required and the entity is exempt. TEX. GOV’T CODE §§ 552.003. Exempt
entities include, but are not limited to, the following: (1) the judiciary; and (2) private
organizations not supported in whole or part by public funds.
(c) Exceptions
More than 50 sections of TPIA describe certain types of information that are excepted
from disclosure. TEX. GOV’T CODE §§ 552.101-552.154. Additionally, other non-TPIA
statutes except information from disclosure.
Most of the TPIA disclosure exceptions are considered discretionary -- the
government may choose to withhold information provided that proper TPIA procedures are
followed. A discussion of all TPIA disclosure exceptions is beyond the scope of this paper.
However, some commonly encountered exception categories are listed below:
● information subject to the attorney-client privilege (TEX.
GOV’T CODE § 552.107);
● information regarding a government employee’s home address,
home phone number, emergency contact information, social security
number and family members (TEX. GOV’T CODE § 552.117);
● the same categories of personal information as described
immediately above, and the date of birth for a peace officer, probation
officer, certain correctional officers, state and federal judges, a
volunteer worker of a family violence shelter center/sexual assault
program, or a client of such a program/shelter (TEX. GOV’T CODE §§
552.117, 552.1175, 552.138);
● trade secrets and/or commercial information of a third party
(TEX. GOV’T CODE § 552.110);
● memoranda of advice, recommendations, or opinions that
relate to the governmental body’s policymaking process (TEX. GOV’T
CODE § 552.111);
● information relating to economic development negotiations
(TEX. GOV’T CODE § 552.131);
21
● audit work papers, including audits required by city ordinance
or charter, and any audit relating to the criminal history background
check of a public school employee (TEX. GOV’T CODE § 552.116);
● the social security number of a living person (TEX. GOV’T
CODE § 552.147)3;
● information that relates to an employee or officer of the
governmental entity if the disclosure of that information would subject
the employee or officer to a substantial threat of imminent harm (TEX.
GOV’T CODE § 552.152);
● information that relates to litigation (TEX. GOV’T CODE §
552.103);
● information that relates to competition or bidding (Tex. Gov’t
Code § 552.104);
● information that relates to the location or price of property
(TEX. GOV’T CODE § 552.105);
● information that relates to the certain law enforcement records
(TEX. GOV’T CODE § 552.108);
● information that relates to geological or geophysical
information (TEX. GOV’T CODE § 552.113);
● information that relates to a credit card, debit card, charge card,
or access device number that is collected, assembled, or maintained by
or for a governmental body (TEX. GOV’T CODE § 552.136);
● information that relates to a driver’s license number or vehicle
registration number issued by the state (Tex. Gov’t Code § 552.130);
● information that relates to security issues for computers (TEX.
GOV’T CODE § 552.139); and
● information that relates to certain email addresses (TEX. GOV’T
CODE § 552.137).
TPIA does not affect the scope of discovery conducted in civil litigation under the
Texas Rules of Civil Procedure. Also, TPIA exceptions do not create new privileges from
discovery. TEX. GOV’T CODE § 552.005.
3 Note that the social security number of an employee or former employee of a school district in the custody of
the district is made confidential by the TPIA, and may not be disclosed. TEX. GOV’T CODE § 552.147(a-1).
22
(d) “Super Public Information” Not Excepted
TPIA lists 18 categories of information (informally called “super public information”)
that are not excepted from disclosure unless deemed confidential by TPIA or other law. TEX.
GOV’T CODE § 552.022. These categories always are considered public information, and
may not be used to support an exception argument unless considered confidential by TPIA or
other law (including a constitution, statute, or judicial decision or rule).
Some items of the “super public information” list are described below:
● a completed report, audit, evaluation, or investigation made of,
for, or by a governmental body -- except regarding certain law
enforcement, corrections, and prosecutorial information;
● the name, sex, ethnicity, salary, title, and dates of employment
of each employee and officer of a governmental body;
● information in an account, voucher, or contract relating to the
receipt or expenditure of public or other funds by a governmental
body;
● the name of each official and the final record of voting on all
proceedings in a governmental body;
● 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;
● a policy statement or interpretation that has been adopted or
issued by an agency;
● staff manuals and instructions to staff that affect a member of
the public;
● information regarded as open to the public under an agency’s
policies;
● information in a bill for attorney’s fees and that is not
privileged under the attorney-client privilege;
● information that is also contained in a public court record;
● final opinions, including concurring and dissenting opinions,
and orders issued in the adjudication of cases; and
23
● a settlement agreement to which a governmental body is a
party.
12. Cost Assessments and Recovery
(a) General Considerations
A governmental body may recover all costs related to reproducing public information,
according to the cost assessment and recovery regulations provided in TPIA and other law.
TEX. GOV’T CODE §§ 552.022-552.275. However, the government generally may not charge
a requestor for simply providing access to the public records. TEX. GOV’T CODE § 552.261.
If the entity must remove information from the records before providing access to
them, it may recover the cost of a photocopy, unless the information is only covered by a
permissive exception to TPIA. Charges may be made for copies, and in some instances, the
government may recover labor costs.
Specific cost assessment and recovery rules have been promulgated by TXOAG. 1
Tex. Admin. Code § 70.1-70.12. These rules may be downloaded from the TXOAG website,
and also are attached to the TXOAG Handbook. Public Information Handbook of the
Attorney General of Texas (2014) at 260-85. The TXOAG regulations provide that the cost
of a standard paper copy reproduced by means of an office machine copier or a computer
printer is ten ($.10) cents per page. Each side that has recorded information is considered a
page. Charges for nonstandard copies include: diskette--$1.00; magnetic tapes, data
cartridges and tape cartridges--actual cost; rewritable CD (CD-RW) and non-rewritable CD
(CD-R)--$1.00; digital video disc (DVD)--$3.00; JAZ drive--actual cost. Questions
regarding costs of copies of public information may be directed to the TXOAG Cost Rules
Administrator at: Open Records Division, Office of the Attorney General, P.O. Box 12548,
Austin, Texas 78711-2548; (toll free) 888-672-6787. Also, the TXOAG provides a free,
online tool to assist with generating cost estimate letters
(www.texasattorneygeneral.gov/open/cost_page.shtml).
Governmental bodies other than state agencies may determine their own charges for
providing copies of public information and for a charge, deposit, or bond for making public
information that exists in a paper record available for inspection. However, these bodies may
not charge an amount that is greater than 25% more than the amount established by TXOAG,
unless the entity requests approval for an exemption from TXOAG in writing, setting out the
reason for the exemption. If a governmental agency decides to set its own charges, it should
achieve this by approving a fee schedule.
(b) Labor Charges
A governmental entity may recover labor charges to handle a PIR for paper copies if:
(1) more than 50 pages of paper records are to be copied; or (2) the records are located in
more than one building or in a remote storage facility; and (3) all specifications listed in the
immediately following paragraph are met. If the requestor seeks fewer than 50 pages of
24
copies -- but they are stored in more than two buildings that are not connected by a covered
or open sidewalk, or by an elevated or underground walkway, the entity may charge for the
labor cost of retrieving the records. TEX. GOV’T CODE § 552.261.
If the entity has more than 15 full-time employees, it may charge labor costs to
provide access to public information only when both of the following criteria are met: (1) the
requested documents are more than five years old or the requested documents fill (or will fill)
six or more archival boxes; and (2) the entity’s public records officer estimates that it will
take more than five hours to provide access to the requested documents. TEX. GOV’T CODE § 552.271.
If the entity has less than 16 full-time employees, it may charge labor costs to provide
access if both of the following criteria are met: (1) the requested documents are more than
three years old or the requested documents fill or will fill three or more archival boxes, and
(2) if the estimated time it will take to provide access to the requested information is more
than two hours. Id.
(c) Electronic Medium Information
Requests for information stored in certain electronic medium may result in reasonable
charges requested by the governmental entity. Regarding a request to inspect information
that exists in an electronic medium, and that is not available directly on-line to the requestor,
a charge may not be imposed for access -- unless complying with the request will require
programming or manipulation of the existing data. TEX. GOV’T CODE § 552.272.
If so, the governmental body shall notify the requestor before assembling the
information and provide the requestor with an estimate of charges that will be imposed to
make the information available. If the information is in an electronic form and stored on a
computer owned or leased by the governmental body, and if the public has access to that
information through a computer network or other means, the information may be
electronically copied from the computer without charge – if to do so does not require
processing, programming, or manipulation on the government owned/leased computer before
the information is copied. Otherwise, charges may be imposed in accordance with TPIA and
TXOAG’s promulgated cost rules. Id.
As discussed, if a PIR requests programming/manipulation of existing data to produce
that data in a requested format -- and compliance with such a request is not feasible or will
result in substantial interference with ongoing operations, or if the information could be made
available in the requested format only at a cost that covers the programming/manipulation of
the data -- the government must provide the requestor with a written statement describing:
(1) the format in which the information is available; (2) what is required to provide the
information in the requested format; and (3) the estimated cost and time to provide the
information in the requested format. TEX. GOV’T CODE § 552.231.
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Once the statement is provided to the requestor, the government has no obligation to
provide the information -- unless within 30 days the requestor responds in writing. If no
requestor response occurs within 30 days, the PIR is considered withdrawn. Id.
(d) Overhead Charges
Whenever a labor charge is applicable for a PIR response, the government may
impose a charge for overhead -- but not for mere requests to inspect information. This
charge cannot exceed 20% of the personnel/labor charge. 1 Tex. Admin. Code §
70.3(d)(e)(i). If the requestor asks that the information be mailed, the entity can send the
information by first class mail and can require the requestor to pay in advance for postage,
along with any other permitted charges.
(e) Statement of Estimated Charges
If the charges for a PIR response are likely to exceed $40.00, the governmental entity
is required to provide detailed information to the requestor in an itemized cost statement --
and must notify the requestor if another, less expensive way exists to inspect the information.
TEX. GOV’T CODE § 552.2615. If the actual charges are more, then an entity may only charge
the amount estimated in the latest itemized statement that was provided. If the entity does
not provide the requestor with an updated itemized statement, it is limited to charging no
more than 20% more than the amount of the original itemized statement.
Regarding this notice letter (sometimes called the “$40 Letter”), the entity must: (1)
furnish the requestor an itemized estimate of the expected costs and keep a copy of the
statement; (2) inform the requestor if there is an alternative method for supplying the
requested records that is less costly; (3) notify the requestor that he has 10 business days to
provide the governmental entity with a written response (which may be hand-delivered,
mailed, faxed or emailed) regarding whether the requestor will accept the estimated charges,
will modify the request in response to the itemized statement, or is sending a complaint to
TXOAG alleging an overcharge; (4) give notice that the failure to respond to the statement
within 10 business days results in the automatic withdrawal of the PIR; and (5) if the
governmental entity finds that the costs will exceed more than 20% of the original estimate, it
must provide the requestor with an updated itemized statement -- whereupon the requestor
again has 10 business days to provide the entity with a written response to the updated
statement, or the request will be considered to be withdrawn. Id.
(f) Deposit or Bond
Before the governmental entity can require a deposit, it must provide the requestor
with an estimated itemized statement. TEX. GOV’T CODE § 552.263. If the entity has more
than 15 full-time employees, it may require a deposit or bond if the estimated charge for
producing the requested copies exceeds $100. If there are fewer than 16 full-time employees,
the entity may require a deposit if the estimated charges are more than $50.
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In certain situations, a deposit may be required for providing access to public records,
if the costs of providing access would exceed the above described thresholds. A request for
public information is considered withdrawn if the estimate was provided and accepted, but
the requestor fails to make a deposit or bond (for unpaid amounts related to previous
requests) within 10 business days after the deposit or bond due date. Applicable state law
and TXOAG guidelines must be followed for any charges imposed.
(g) Cost Waiver or Reduction
A governmental entity may reduce or waive the charges for copies of public
information if to do so would benefit the public. TEX. GOV’T CODE § 552.267. If the cost of
collecting the fee would exceed the amount of the charge, the charge for such copies may be
waived. Many times the government’s attorney will review requested information to
determine if it should be withheld from disclosure. In that situation, a charge cannot be made
for the cost associated with the review by the attorney or paralegal.
(h) Time Consuming Requests by Single Requestor
Under TPIA, a governmental body may establish a reasonable limit on the amount of
time its employees spend providing public information to a single requestor without
recovering its labor or personnel costs. If a government chooses to follow this statute, the
requestor will be required to compensate the government for the costs incurred relating to
multiple PIR activity, once the time limit threshold has been reached. In order to take
advantage of this TPIA procedure, the governmental body must complete a series of
preliminary requirements. TEX. GOV’T CODE § 552.275.
The government must establish a “reasonable time limit” that may not be less than 36
hours for a requestor during the 12-month period that corresponds to the fiscal year of the
governmental body. Each time the governmental body seeks to exercise its rights under this
statute, it must provide the requestor with a written statement of the amount of personnel
time spent complying with each request and the cumulative amount of time spent complying
with requests for public information from that requestor during the applicable 12-month
period. The amount of time spent preparing the written statement may not be included in the
amount of time included in the statement provided to the requestor. Id.
If the cumulative amount of personnel time spent complying with requests for public
information meets or exceeds the reasonable time limit established by the governmental
body, the governmental body must provide the requestor with a written estimate of the total
cost necessary to comply with a request -- including materials, personnel time, and overhead
expenses. The written estimate must be provided to the requestor on or before the 10th day
after the date on which the PIR was requested. Id.
The requestor then has 10 days to submit a written statement to the governmental
body in which the requestor agrees to pay the lesser of: (1) the actual costs incurred in
complying with the request; or (2) the amount stated in the governmental body’s written
estimate. If the requestor fails or refuses to submit the written statement, then the requestor
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is considered to have withdrawn the pending PIR. Id. This procedure does not apply to
requests from radio stations, television stations, newspapers, elected officials, or certain
publicly funded legal services organizations.
(i) Overcharges
If the requestor believes an overcharge occurred, the requestor may file a written
complaint with TXOAG. TEX. GOV’T CODE § 552.269. TXOAG will review the complaint
and make a written determination regarding the appropriate charge for providing the
information. The governmental body shall respond to any written questions by TXOAG
within 10 business days after the date the TXOAG questions are received. If TXOAG
determines that an overcharge occurred, the government must promptly adjust its charges to
pay the requestor the amount of any overcharge. If TXOAG finds that the requestor overpaid
because the governmental body refused to comply with TXOAG’s cost rules, the requestor is
entitled to recover three times the amount of the overcharge, provided the governmental body
did not act in good faith in computing the costs. Id.
13. Civil Enforcement Suits
(a) Suits to Compel Disclosure of Information
TPIA violators may be sued to compel disclosure of public information, and in certain
circumstances, the claimant may recover attorney’s fees and costs. TEX. GOV’T CODE §§
552.321-552.325.
Under section 552.321, the requestor may bring a mandamus action against a
governmental entity for TPIA violations. City of Houston v. Houston Chronicle Publishing.
Co., 673 S.W.2d 316, 319 (Tex. App. -- Houston [1st Dist.] 1984, no writ); TEX. GOV’T
CODE § 552.321. The requestor suit must be filed in the district court for the county in which
the main office of the governmental body is located. TXOAG also may file suit against the
governmental entity under section 552.321. The TXOAG suit must be filed in the district
court of Travis County, Texas; however, such a suit against a city with less than 100,000 in
population must be filed in the district court for the county in which the main office of the
city is located.
Under section 552.3215, a declaratory judgment or injunction suit may be filed
against a governmental entity by TXOAG or the local district or county attorney. TEX.
GOV’T CODE § 552.3215. As a predicate to such suit, the requestor may file a written
complaint regarding the TPIA violation with: (1) the district or county attorney in the county
where the governmental entity is located; or (2) TXOAG/Open Records Division. A suit
filed by TXOAG or the local prosecutor may be warranted if the governmental body refuses
to: (1) provide copies or access to information that is clearly public; (2) request a TXOAG
ruling; or (3) release information as required by an unchallenged TXOAG ruling. Id.
Under section 552.3215, the local prosecutor must (within 31 days of complaint
receipt) do the following: (1) determine whether a violation occurred; (2) determine whether
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to take action; and (3) notify the complainant of the decisions. If the prosecutor declines to
proceed, the complainant has 31 days to file a complaint with TXOAG. Thereafter, TXOAG
has 31 days to notify the complainant of its decision whether to proceed with an action
against the governmental entity. If either TXOAG or the local prosecutor brings suit, notice
must be given to the entity prior to filing the suit. After receiving the notification, the entity
has three days to remedy the problem. A party who substantially prevails in a section
552.3215 suit may recover its costs of litigation and reasonable attorney’s fees -- with some
exceptions relating to the reasonable reliance of the governmental body on a court judgment
or order, a published judicial decision from an appellate court, or a written TXOAG decision.
TEX. GOV’T CODE §§ 552.3215-552.325.
(b) Suits to Prevent Disclosure of Information
If TXOAG issues an unfavorable ruling, the only remedy suit available to a
government is an action against TXOAG to challenge the ruling. The governmental body
may not file suit against the requestor. TEX. GOV’T CODE §§ 552.324, 552.325. The
challenge suit by the governmental body against TXOAG must be filed in the district court of
Travis County, Texas within 30 days after receipt of the TXOAG decision in order to
preserve the withholding position. TEX. GOV’T CODE § 552.324.
In order to preserve the affirmative defense to prosecution under section 552.353, it is
very important to note that a government’s section 552.324 suit against TXOAG also must be
filed within 10 days after receipt of the TXOAG decision. TEX. GOV’T CODE §§ 552.324,
552.353. A party who substantially prevails in the section 552.324 suit may recover its costs
of litigation and reasonable attorney’s fees -- with some exceptions relating to whether: (a)
the governmental body’s conduct had a reasonable basis on law; and (b) the suit was brought
in good faith. TEX. GOV’T CODE §§ 552.323, 552.324.
A protected third-party also may file suit to prevent the disclosure of information.
When TXOAG issues an unfavorable ruling which requires disclosure of the protected
information of a third-party, a civil suit may be filed by the third-party against TXOAG to
prevent the disclosure. Morales v. Ellen, 840 S.W.2d 519, 522-23 (Tex. App. -- El Paso
1992, writ denied); Boeing Co. v. Abbott, 412 S.W.3d 1, 5 (Tex.App. -- Austin 2012, pet.
filed); TEX. GOV’T CODE § 552.325. However, the TPIA does not permit a third-party to sue
the requestor directly. TEX. GOV’T CODE § 552.325.
14. Criminal Prosecution of TPIA Violators
Criminal prosecution and conviction can occur to persons who violate TPIA.
Ignorance of the statute’s requirements is not a defense to prosecution. Criminal convictions
under TPIA constitute official misconduct for which elected public officials may be removed
from office. The TPIA criminal statutes should be read and thoroughly understood upon the
completion of the TPIA training course. TEX. GOV’T CODE §§ 552.351-552.353.
(a) Destruction, Removal, or Alteration of Public Information
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A person commits a special misdemeanor offense if he willfully destroys, mutilates,
removes without permission, or alters public information. TEX. GOV’T CODE § 552.351.
This misdemeanor is punishable by a fine of not less than $25 or more than $4,000,
confinement in the county jail for not less than three days or more than three months, or both
the fine and the confinement.
It is important to note that other criminal statutes exist outside TPIA that deal with
tampering, destroying, removing, or concealing governmental records. See TEX. PENAL
CODE §§ 37.01, 37.10 (tampering with governmental record). Their punishment
classification is dependent on: (1) the type of governmental record used; and (2) the
defendant’s level of intent. Usually, the punishment designated for these penal code offenses
is a class A misdemeanor (maximum punishment being 1 year in jail and a $4,000 fine). If
the defendant’s intent is to defraud or harm another, the offense is designated as a state jail
felony (maximum punishment being 2 years in a state jail and a $10,000 fine), but more
serious felony punishments exist (with prison confinement) for cases involving certain types
of governmental records or repeat offenses. Id.
(b) Distribution or Misuse of Confidential Information
A person commits a special misdemeanor offense if he distributes information
considered confidential under TPIA. TEX. GOV’T CODE § 552.352. This misdemeanor is
punishable by a fine of not more than $1,000, confinement in the county jail for not more
than six months, or both the fine and the confinement.
(c) Failure to Allow Access/Copying of Public Information
A public information officer, or agent thereof, commits a special misdemeanor
offense if, with criminal negligence, he fails to give access to, or permit the copying of,
public information as required by TPIA. TEX. GOV’T CODE § 552.353. This misdemeanor is
punishable by a fine of more than $1,000, confinement in the county jail for not more than
six months, or both the fine and the confinement.
Regarding this offense, it is an affirmative defense to prosecution if the defendant
reasonably believed that public access was not required -- and: (1) he acted in reasonable
reliance on a court order, opinion of a court of record, or TXOAG opinion; (2) he requested a
TXOAG decision and the decision is pending; and (3) not later than the 10th calendar days
after receipt of a TXOAG decision, a civil suit was filed against TXOAG under TPIA
sections 552.324 or 552.325, and the suit remains pending; or (4) he is the agent of the public
information officer, and he reasonably relied on the written instruction of the officer not to
disclose the information requested. Id.
E. CONCLUDING REMARKS
You work as a public servant -- you serve in challenging times.
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Contentious circumstances often exist regarding important, complex issues within the
scope of your official duties. Traps exist for the public servant who is unaware of the latest
developments in the open government laws of Texas -- including the Texas Open Meetings
Act (TOMA) and the Texas Public Information Act (TPIA). TEX. GOV’T CODE Chs. 551,
552.
Being a public servant today is hard work. You should acknowledge the challenging
environment and try hard each day to succeed at three seemingly simple but often difficult
tasks in the performance of your official duties: be right on the law, right on the ethics, and
avoid even the appearance of an impropriety.
A clear understanding of the Texas open government laws -- resulting from your
continued efforts to pursue and complete regular training -- will provide the best opportunity
for you to avoid the serious problems associated with an alleged open government violation.
We wish you the best of success in your work as a public servant.