For Your Information

Open Records and the Texas Public Information Act.
By nhudson35 / June 28, 2008

The following post on public information in Texas -- what it is and how to get it -- was published in the Burnt Orange Report. It is chock-full of useful stuff.

I got to sit in on a great meeting several months ago with Attorney Joe Larsen, a Freedom of Information Act of Texas Board Member who has worked on open records cases. Mr. Larsen gave us some and useful information on the Texas Public Information Act. For more information on Open Records Requests, I recommend going to the Freedom of Information Foundation of Texas website here.

Here are some rough notes from the meeting. I am not a lawyer, and this is not legal advice.

What is public information?

Public information is information created, assembled, or maintained by or on behalf of a governmental body, or in transaction of governmental business. Public information may be kept on behalf of a governmental body, and it may extend to the hand of a vendor who maintains a governmental body's records. A governmental body may delegate responsibility of recordkeeping to an outside body.

You can request public information in any format, but a governmental body does not have to create new information for you.
In a previous age, notes were not public information. Today, most notes created, assembled, or maintained by or on behalf of a governmental body, or in transaction of governmental business, are considered public information.

Emails from a governmental body are generally considered public information, but the Texas Attorney General's opinions have not kept up with technology. The Attorney General has ruled that emails dealing with personal activities are not public information.

Governor Perry's office has taken advantage of the Attorney General's ruling, and open government advocates are upset about it. Perry's office has a procedure where his and his staffer's emails are destroyed after seven days. The seven-day period is arbitrary, and it is much shorter than the one to three year period required by law for paper correspondence. Dallas Morning News reported earlier this month:

Since this issue arose last year, the governor's office has maintained that staffers may delete e-mail from in boxes, but messages dealing with government business is printed and filed.

But government transparency advocates worry that some information may slip through the cracks.

"There's simply no way that all the e-mails are being printed and filed," Mr. Larsen said. "In addition to your daily work activity, you have to make sure you're printing out your emails so that it doesn't get deleted."

Rick Perry's contention that he is printing emails to conform to FOIA requirements seems to be a crock of you-know-what. Public information retention requirements shouldn't change because the information is kept in different mediums. A policy of deleting emails every seven days will inevitably destroy public information.

Retention requirements depend, instead, upon subject matter. State Libraries, which are charged with retention, have different retention policies for different subject matters. State Libraries have never had a policy that requires them to purge their shelves or electronic files after seven days.

What is a governmental body?

Governmental bodies are specifically defined in theTexas Public Information Act.

Some important notes:

Governmental bodies include DAs, school districts, and any entity supported all or in part by public funds.

The Judiciary is not included.

Case files are subject to common law access and first amendment right access, and you can access case files using Rule 12 of the Texas Rules of Judicial Administration's

The fact that you receive public funds does not necessarily mean you are subject to public information act. If, however, the Austin Chamber of Commerce gets a grant for their operations, that's not a quid pro quo. It's a general grant, and because many chambers of commerce take such grants, they have been found to be governmental bodies.

As a general rule, if a group has a contract with a governmental body, you should assess the relationship and argue that the information the body has should be made public.

Once a governmental body always a governmental body?
No. A group or organization with multiple divisions may have some aspects of their operations subject to FOIA requests, while other operations are not.

Who can request information?

Anyone. And the governmental body may not ask what it is for. You have a right to access the information, and you can be an agent of undisclosed principle.

How do you make a request?

You must put it in writing. Above and beyond that, not much is necessary. Generally, all you must do is mail it to the governmental body. If, however, you make it via email or fax, you should make that request directly to the public information officer. Most entities have a designated public information officer, and you can usually find his or her contact information at the governmental body's website. It is a good idea to call the public information officer of the governmental body to make sure you're communicating with the right person.

How do you write it?

Ask specifically for what you're looking for. Make requests as narrow as you can, consistent with what you're looking for. This costs less, and is easier to brief for the Attorney General. Be as eloquent and polite as possible. Sidebar snooty comments are not appropriate. Deal professionally with governmental bodies even if they don't deal professionally with you.

The process

Once a governmental body receives a public information act request, it has ten days to request an Attorney General ruling. In order to withhold the information from the requesting body, the governmental body must show that the requested information falls within an area exception.

A governmental body does not have ten days to turn over the information you've requested. The governmental body is required by law to get the information to you promptly. Promptly means as quickly as reasonably possible, and in many cases it may be on the very same day.

If the Governmental Body Claims the requested information falls within a FOIA area of exception

If the governmental body requests a ruling from the Attorney General, they write him a letter. The governmental body must copy the requester when requesting and Attorney General ruling. As soon as possible, submit comments to the Attorney General's office rebutting the governmental body's claim that the information falls within an area of exception.

Ask for a copy of a 15 day brief from the Attorney General's office, and submit comments rebutting the governmental body's argument for excepting the information you've requested.

The Attorney General has 45 working days to issue his ruling, and his office rarely issues a ruling before 45 days. The earlier you get your comments to the Attorney General's office, the better.

The Attorney General can rule in two ways. He can rule that the information falls within the area of exception, or that it does not. If the Attorney General's office rules in the requester's favor, the governmental body has two choices. It can turn over the information, or if the governmental body disagrees with the decision, it can sue the Attorney General.

More on the process

Take the high road. Don't try anything sneaky.

Put everything in writing.

Develop a relationship with the public information officer you are dealing with.
If you don't get a response from the Governmental Body, after reasonable attempts to contact them, get in touch with the Attorney General's office. Style a letter formally as a complaint to the Attorney General, and carbon copy or send a copy of the letter to the governmental body.

There is not a deadline for the cost estimate. If they send you the documents, you don't owe them a penny.

If they do not request and AG opinion within 10 days, the information is considered public.

A city will sometimes ask for an Attorney General ruling for a discreet part of a request. In instances like that, it may be easier to break down a request into separate requests.

Cost issues
If you have a dispute about the cost estimate, get in touch with the cost administrator at the Attorney General's office.

Exceptions

Superpublic information
We can't talk about exceptions without talking about "superpublic" information, which can be found in Chapter 552.022 of government code. Superpublic information is information that must be released, unless confidential by other law: Superpublic information includes budget information, information on vouchers, agency rules, and final reports (with the exception of law enforcement addressed below).

If the governmental body makes a third party settlement, confidentially, the amount of money in the settlement is superpublic information. Items on the list are superpublic, unless confidential by law. The difference between "confidential by law" and the other forms or confidentiality is that confidentiality by law is legally and mandatorily confidential. "Confidential by law" encompasses all confidential laws in Vernon's Texas Civil Statutes. Examples of information that is confidential by law arein medical records and information a judge rules should be confidential. Information that is confidential by law can never be superpublic. Information submitted in open court cannot be considered confidential under the open records act, and confidentiality statutes must be interpreted narrowly.

Autopsy reports
Autopsy reports were, forever, expressly public. The Attorney General issued a ruling that Autopsy reports included Autopsy photographs. Some schmucks posted the photographs on the web, and an amendment was made to the criminal code of procedure intended to prohibit release of autopsy report photographs unless the individual was in police custody.

The Attorney General issued a ruling that effectively changed the law. Now, in almost all homicides, you cannot get autopsies. You can get the autopsy photographs for individuals in custody, but not the reports.

Law enforcement
You are entitled to basic information about law enforcement. This right has its origins in caselaw. In a Houston chronicle case in the 1970s, the law was revised to says basic information about an arrested person, a crime, and an officer must be released upon request

If you request and incident report from a law enforcement agency, you may be given a synopsis of an incident report. You are entitled to detailed information even if it isn't on the front page of the incident report.

Personnel records exception. The Public information act does not reach anything that isn't already covered by common law and constitutional privacy. Will get 95% of personnel files. You can get evaluations and an officer's salary history.

If you wish to find out about an officer's case, it must result in deferred adjudication or a conviction before it is public information. Investigations can go on ad infinitum.

The Attorney General is subject to the act. To the extent the Attorney General rules against law enforcement, he rules against himself.

Court Records
Not subject to public information. You need significant cause to seal or close off court records.

Source. / Burnt Orange Report

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