Texas Open Government Presentation

Texas Open Government LawsTexas Open Government Laws

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Texas Open Government LawsTexas Open Government Laws

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O p en G o v ern m en t Law s

P u b lic I n fo rm atio nAc t

O p en M eetin g sAc t

J u d ic ia l O p in io n sAtto r n ey G en er a lO p in io n s

O th er S ta teS ta tu tes

O th er F ed era lS ta tu tes

F o u n d atio n Law s

Texas Public Information ActTexas Public Information ActAn OverviewAn Overview

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Outline of PIAOutline of PIA

Overview of the lawOverview of the law

DefinitionsDefinitions General RuleGeneral Rule ExceptionsExceptions PenaltiesPenalties

Overview of the processOverview of the process

QuestionsQuestions

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Public PolicyPublic Policy

Under the fundamental philosophy of the American constitutional Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principal form of representative government that adheres to the principal that that government is the servant and not the master of the peoplegovernment is the servant and not the master of the people, it is the , it is the policy of this state that each person is entitled . . at all times to policy of this state that each person is entitled . . at all times to complete information about the affairs of government and the complete information about the affairs of government and the official acts of public officials and employees. The people, in official acts of public officials and employees. The people, in delegating authority, do not give their public servants to decide what delegating authority, do not give their public servants to decide what is good for the people to know and what is not good for them to 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 know. The people insist on remaining informed so that they may retain control of the instruments they have created. The provisions retain control of the instruments they have created. The provisions of this [law] shall be liberally construed to implement this policy.of this [law] shall be liberally construed to implement this policy.

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Under the fundamental philosophy of the American constitutional Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principal that form of representative government that adheres to the principal that government is the servant and not the master of the people, government is the servant and not the master of the people, it is the it is the policy of this statepolicy of this state that each person is entitled . . at all times to that each person is entitled . . at all times to complete information about the affairs of government and the complete information about the affairs of government and the official acts of public officials and employees. The people, in official acts of public officials and employees. The people, in delegating authority, do not give their public servants to decide what delegating authority, do not give their public servants to decide what is good for the people to know and what is not good for them to 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 know. The people insist on remaining informed so that they may retain control of the instruments they have created. The provisions retain control of the instruments they have created. The provisions of this [law] shall be liberally construed to implement this policy.of this [law] shall be liberally construed to implement this policy.

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Under the fundamental philosophy of the American constitutional Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principal that form of representative government that adheres to the principal that government is the servant and not the master of the people, it is the government is the servant and not the master of the people, it is the policy of this state that policy of this state that each person is entitled . . each person is entitled . . at all times to at all times to complete information about the affairs of government and the complete information about the affairs of government and the official acts of public officials and employees. The people, in official acts of public officials and employees. The people, in delegating authority, do not give their public servants to decide what delegating authority, do not give their public servants to decide what is good for the people to know and what is not good for them to 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 know. The people insist on remaining informed so that they may retain control of the instruments they have created. The provisions retain control of the instruments they have created. The provisions of this [law] shall be liberally construed to implement this policy.of this [law] shall be liberally construed to implement this policy.

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Under the fundamental philosophy of the American constitutional Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principal that form of representative government that adheres to the principal that government is the servant and not the master of the people, it is the government is the servant and not the master of the people, it is the policy of this state that each person is entitled . .policy of this state that each person is entitled . . at all times to at all times to complete information about the affairs of governmentcomplete information about the affairs of government and the and the official acts of public officials and employees. The people, in official acts of public officials and employees. The people, in delegating authority, do not give their public servants to decide what delegating authority, do not give their public servants to decide what is good for the people to know and what is not good for them to 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 know. The people insist on remaining informed so that they may retain control of the instruments they have created. The provisions retain control of the instruments they have created. The provisions of this [law] shall be liberally construed to implement this policy.of this [law] shall be liberally construed to implement this policy.

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Under the fundamental philosophy of the American constitutional Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principal that form of representative government that adheres to the principal that government is the servant and not the master of the people, it is the government is the servant and not the master of the people, it is the policy of this state that each person is entitled . . at all times to policy of this state that each person is entitled . . at all times to complete information about the affairs of government and the complete information about the affairs of government and the official acts of public officials and employees. The people, in official acts of public officials and employees. The people, in delegating authority, do not give their public servants to decide what delegating authority, do not give their public servants to decide what is good for the people to know and what is not good for them to 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 know. The people insist on remaining informed so that they may retain control of the instruments they have created. The provisions retain control of the instruments they have created. The provisions of this [law] shall be of this [law] shall be liberally construedliberally construed to implement this policy. to implement this policy.

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Definition of Public InformationDefinition of Public Information ALL Information that is ALL Information that is

collected, assembled, or collected, assembled, or maintained by, or for, a maintained by, or for, a governmental body.governmental body.

Includes paper, film, computer Includes paper, film, computer data, disks, tape, microfilm, data, disks, tape, microfilm, maps, drawings, voice maps, drawings, voice recordings, and video recordings, and video presentations. presentations.

Existing information only. No Existing information only. No requirement to create.requirement to create.

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Definition of Governmental BodyDefinition of Governmental Body

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

A school district board of trustees.A school district board of trustees.

Can include any entity receiving government funds.Can include any entity receiving government funds.

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General RuleGeneral Rule

ALLALL

INFORMATIONINFORMATION

Collected, stored or used by a governmental entity Collected, stored or used by a governmental entity

IS public information.IS public information.

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Typical RequestorsTypical Requestors

News mediaNews media

Concerned citizen groups.Concerned citizen groups.

People interested in a single issue.People interested in a single issue.

““Watch dogs.”Watch dogs.”

Vendors.Vendors.

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Examples of Public InformationExamples of Public Information A completed audit or report or investigation.A completed audit or report or investigation.

Name, sex, ethnicity, salary, title and dates of employment of each Name, sex, ethnicity, salary, title and dates of employment of each employee.employee.

Email.Email.

Information about expenditures of public funds.Information about expenditures of public funds.

All working papers, research material, and information used to All working papers, research material, and information used to estimate the need for a public expenditure or imposition of taxes.estimate the need for a public expenditure or imposition of taxes.

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Examples of Public InformationExamples of Public Information Administrative staff manuals and instructions to staff that affect a Administrative staff manuals and instructions to staff that affect a

member of the public.member of the public.

Formal and informal polices and procedures.Formal and informal polices and procedures.

Correspondence.Correspondence.

A litigation settlement agreement to which the governmental body is A litigation settlement agreement to which the governmental body is a party.a party.

Name of each official and final voting record. Name of each official and final voting record.

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Items Which are Not Public InformationItems Which are Not Public Information

Tangible items such as a tool or a key.Tangible items such as a tool or a key.

Computer source codes, documentation and program Computer source codes, documentation and program documentation standards.documentation standards.

Some personal notes and e-mails of public employees.Some personal notes and e-mails of public employees.

Commercially available information.Commercially available information.

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Statutory Exceptions to DisclosureStatutory Exceptions to Disclosure

Information Confidential by LawInformation Confidential by Law Social security numbersSocial security numbers Child abuse investigation recordsChild abuse investigation records Medical records Medical records Individually identifiable health informationIndividually identifiable health information Medical history given pursuant to ADAMedical history given pursuant to ADA Common law privacyCommon law privacy Participants in a deferred compensation planParticipants in a deferred compensation plan Information within the informer’s privilegeInformation within the informer’s privilege

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Personal information (invasion of personal privacy)Personal information (invasion of personal privacy) Employee college transcripts Employee college transcripts Evaluations of teachers and administratorsEvaluations of teachers and administrators Litigation informationLitigation information Competitive bidding informationCompetitive bidding information Location and price of propertyLocation and price of property Military discharge recordsMilitary discharge records Third-party trade secrets, commercial and financial Third-party trade secrets, commercial and financial

informationinformation

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Attorney client privileged communicationsAttorney client privileged communications Court-ordered confidential informationCourt-ordered confidential information Some private communications of an elected office-holder Some private communications of an elected office-holder

that would constitute an invasion of privacythat would constitute an invasion of privacy Agency memorandum (limited)Agency memorandum (limited) Student recordsStudent records Computer security informationComputer security information Credit card numbersCredit card numbers

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Home addresses and telephone numbersHome addresses and telephone numbers Information about an employee’s family membersInformation about an employee’s family members Test itemsTest items Records of a library Records of a library Names of school superintendent applicantsNames of school superintendent applicants School district informersSchool district informers E-mail addresses provided to the governmental entity by E-mail addresses provided to the governmental entity by

members of the publicmembers of the public

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PenaltiesPenalties Criminal:Criminal:

Failure to release informationFailure to release information Releasing information not subject to disclosureReleasing information not subject to disclosure Destroying or altering public informationDestroying or altering public information

Civil:Civil:

Writ of mandamusWrit of mandamus Declaratory JudgmentDeclaratory Judgment Injunctive ReliefInjunctive Relief Attorneys fees and costsAttorneys fees and costs

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1. Comments on why exception applies.

2. Copy of written request.

3. Signed statement as to when request received.

4. Copy of the information requested.

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SummarySummary

Public policy is to make all records available.Public policy is to make all records available.

Limited time period in which to respond.Limited time period in which to respond.

Resources need to be dedicated to process.Resources need to be dedicated to process.

Texas Open Meetings ActTexas Open Meetings ActAn OverviewAn Overview

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OutlineOutline

Overview of LawOverview of Law

DefinitionsDefinitions General RulesGeneral Rules ExceptionsExceptions PenaltiesPenalties

ProcessProcess

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Definition of Governmental BodyDefinition of Governmental Body

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

A school district board of trustees.A school district board of trustees.

Unlike the PIA, the OMA does not apply to Unlike the PIA, the OMA does not apply to governmentatl entities supported by public funds.governmentatl entities supported by public funds.

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Definition of MeetingDefinition of Meeting A A deliberationdeliberation between a between a quorumquorum of a governmental body, of a governmental body,

or between a a quorum of a governmental body and or between a a quorum of a governmental body and another person, during which public business or public another person, during which public business or public policy which the governmental body has supervision or policy which the governmental body has supervision or control is discussed or considered or during which the control is discussed or considered or during which the governmental body takes formal action.governmental body takes formal action.

““Deliberation” and “discussion” are synonymous for the Deliberation” and “discussion” are synonymous for the purposes of the act. Includes a verbal exchange as well as purposes of the act. Includes a verbal exchange as well as written or non-spoken exchange.written or non-spoken exchange.

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Definition of MeetingDefinition of Meeting

Q u o r u m

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+

Q u o r u m

D elib er a tio n

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+

Q u o r u m

D elib er a tio n

+G o v er n m en t b u s in es s es

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+ =

Q u o r u m

D elib er a tio n


M eetin g T o n ig h t

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+ =

Q u o r u m

D elib er a tio n



D o es n o t in c lu d e s o c ia lf u n c tio n s o r a t ten d an c e

a t w o r k s h o p s

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+ =

Q u o r u m

D elib er a tio n



D o es n o t in c lu d e s o c ia lf u n c tio n s o r a t ten d an c e

a t w o r k s h o p s

C o m m ittee M eetin g s

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A “gathering”A “gathering” That is conducted by the governmental body or for which the That is conducted by the governmental body or for which the

governmental body is responsible; governmental body is responsible; At which a quorum of the governmental body is presentAt which a quorum of the governmental body is present That has been called by the governmental body; andThat has been called by the governmental body; and At which members receive information from, give information At which members receive information from, give information

to, ask questions of, or receive questions from any third person, to, ask questions of, or receive questions from any third person, including an employee of the governmental body, about public including an employee of the governmental body, about public business.business.

Does not include social functions or attendance at Does not include social functions or attendance at conventions or workshops.conventions or workshops.

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Committee MeetingsCommittee Meetings

Generally meetings of less than quorum are not subject to Generally meetings of less than quorum are not subject to act.act.

BUT, if committee decisions of are in fact “rubber BUT, if committee decisions of are in fact “rubber stamped” by quorum of parent body, then committee stamped” by quorum of parent body, then committee meetings may be subject to act.meetings may be subject to act.

An purely advisory committee is not subject to the act, An purely advisory committee is not subject to the act, even if it includes members of the governmental body (as even if it includes members of the governmental body (as long as less than quorum).long as less than quorum).

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Video, Telephone, Internet MeetingsVideo, Telephone, Internet Meetings

Generally prohibited.Generally prohibited. Emergency telephone meetings are permitted.Emergency telephone meetings are permitted. Video conference permitted under very limited Video conference permitted under very limited

conditions, although governmental body may allow conditions, although governmental body may allow public to participate by video.public to participate by video.

Consultation with outside legal counsel permitted by Consultation with outside legal counsel permitted by conference call.conference call.

Governmental body my broadcast meeting over Internet, Governmental body my broadcast meeting over Internet, but broadcast does not substitute for in-person meeting.but broadcast does not substitute for in-person meeting.

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Notice RequirementsNotice Requirements Written notice of all meetings required.Written notice of all meetings required. Date, hour, place and subject.Date, hour, place and subject. Must be sufficient to apprise the general public of the subjects to be Must be sufficient to apprise the general public of the subjects to be

considered during the meeting.considered during the meeting. Posted at a place “readily accessible to public.” For school districts, Posted at a place “readily accessible to public.” For school districts,

this means on a bulletin board at the central administrative office.this means on a bulletin board at the central administrative office. At least 72 hours before meeting.At least 72 hours before meeting. School districts must also notify News Media if News Media has School districts must also notify News Media if News Media has

requested special notice and agrees to pay for special notice.requested special notice and agrees to pay for special notice.

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Emergency PostingEmergency Posting

Allows two hour notice when,Allows two hour notice when,

Immediate action required of a governmental body Immediate action required of a governmental body because of:because of:

An imminent threat to public health and safety orAn imminent threat to public health and safety or A reasonably unforeseeable situation.A reasonably unforeseeable situation.

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ConsequencesConsequences

Actions taken in violation of notice requirements are Actions taken in violation of notice requirements are voidable.voidable.

Governmental body may ratify an invalid act in a Governmental body may ratify an invalid act in a subsequent open meeting held in compliance with act. subsequent open meeting held in compliance with act. Ratification only effective from the date the valid action Ratification only effective from the date the valid action was taken.was taken.

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Open MeetingsOpen Meetings

Convened only when quorum is physically present in Convened only when quorum is physically present in meeting room. meeting room.

Must convene in open meeting even if agenda calls for an Must convene in open meeting even if agenda calls for an immediate closed meeting.immediate closed meeting.

Meeting room must be accessible to public.Meeting room must be accessible to public. Public may record meeting.Public may record meeting.

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Closed MeetingsClosed Meetings

ProcessProcess Convene meeting in open session.Convene meeting in open session. Announce that a closed meeting will be heldAnnounce that a closed meeting will be held Identify the section of the OMA under which the closed meeting Identify the section of the OMA under which the closed meeting

is to be held.is to be held.

RecordRecord Certified agenda.Certified agenda. Tape recording.Tape recording. Kept a minimum of two years.Kept a minimum of two years. ConfidentialConfidential

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Closed MeetingsClosed Meetings

Can only deliberate in closed meetings. Cannot vote.Can only deliberate in closed meetings. Cannot vote.

““A final action, decision, or vote on a matter deliberated A final action, decision, or vote on a matter deliberated in a closed meeting . . . may only be made in an open in a closed meeting . . . may only be made in an open meeting . . ..”meeting . . ..”

Must reconvene in open meeting to take vote.Must reconvene in open meeting to take vote.

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Closed Meetings: AuthorizedClosed Meetings: Authorized Consultations with Attorney.Consultations with Attorney. Purchase, sale or exchange of real property.Purchase, sale or exchange of real property. Gift or Donations.Gift or Donations. Personnel Matters. Employee may request open meeting.Personnel Matters. Employee may request open meeting. Deployment of security personnel or devices.Deployment of security personnel or devices. Discipline of public school child. Parent may request open meeting Discipline of public school child. Parent may request open meeting

in writing.in writing. Deliberations that would reveal “personally identifiable” student Deliberations that would reveal “personally identifiable” student

information. Parent may request open meeting in writing.information. Parent may request open meeting in writing.

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Closed Sessions: Who may attendClosed Sessions: Who may attend

Members of governmental body.Members of governmental body. Employees of governmental body whose participation is Employees of governmental body whose participation is

necessary.necessary. Governmental body’s attorney.Governmental body’s attorney. Cannot allow attendance of person whose interests are Cannot allow attendance of person whose interests are

adverse to the governmental body.adverse to the governmental body.

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Civil RemediesCivil Remedies

An interested person, including a member of the news An interested person, including a member of the news media, may sue to stop, prevent, or reverse a threatened media, may sue to stop, prevent, or reverse a threatened violation of the OMA.violation of the OMA.

Governmental body may be assessed costs of litigation Governmental body may be assessed costs of litigation and reasonable attorneys fees.and reasonable attorneys fees.

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Criminal PenaltiesCriminal Penalties

Participation in closed meeting knowing that a certified Participation in closed meeting knowing that a certified agenda or tape recording is not being kept is a class C agenda or tape recording is not being kept is a class C misdemeanor.misdemeanor.

Knowingly disclosing the certified agenda or tape Knowingly disclosing the certified agenda or tape recording of closed meeting is a class B misdemeanor. recording of closed meeting is a class B misdemeanor. Damages to persons injured by disclosure also available, Damages to persons injured by disclosure also available, along with attorneys fees and exemplary damages.along with attorneys fees and exemplary damages.

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Criminal PenaltiesCriminal Penalties

Knowingly calling, aiding or participating in a closed Knowingly calling, aiding or participating in a closed meeting not permitted under the OMA is punishable by a meeting not permitted under the OMA is punishable by a fine up to $500 and a jail term of up to six months.fine up to $500 and a jail term of up to six months.

Knowingly conspiring to circumvent the OMA by Knowingly conspiring to circumvent the OMA by meeting in numbers less than a quorum for the purpose meeting in numbers less than a quorum for the purpose of secret deliberations is punishable by a fine up to $500 of secret deliberations is punishable by a fine up to $500 and a jail term up to 6 months.and a jail term up to 6 months.

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Questions?Questions?

William L. BanowskyWilliam L. BanowskyBoard Certified - Civil Trial Law Board Certified - Civil Trial Law

Texas Board of Legal SpecializationTexas Board of Legal Specialization

Thompson & Knight, LLPThompson & Knight, LLP1722 Routh Street1722 Routh Street

Suite 1500Suite 1500Dallas, Texas 75201Dallas, Texas 75201214-969-1231 phone214-969-1231 phone

214-880-3254 fax214-880-3254 fax469-569-9402 cell469-569-9402 cell

Texas Open Government Presentation

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Transcript of Texas Open Government Presentation