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.