Open Records Questions
Related to Hurricane Ike
Disaster conditions in the areas impacted by Hurricane Ike prevent some governmental bodies from responding to requests for public information.
When a governmental body's offices are closed due to a natural disaster, closure dates are not considered "business days" for the purposes of calculating statutory deadlines under the Public Information Act (PIA). The PIA's deadlines are therefore delayed until the governmental body reopens for business.
PIA deadlines that are delayed by disasters include:
- the time within which governmental entities must respond to public information requests; and
- the time within which governmental entities seeking to withhold information must request a ruling from the Office of the Attorney General's Open Records Division.
When governmental bodies resume business, their duties under the Public Information Act resume, as well. Thus when governments reopen, they must begin responding to open records requests that were received during the emergency closure.
Anytime governmental bodies wish to withhold requested information from disclosure, they must seek a ruling and submit legal briefing to the Open Records Division. That briefing must explain why the requested information can be withheld from the public.
Under the Public Information Act, governmental bodies only have ten business days to inform the requestor and the Open Records Division of their intent to seek a ruling. Failing to properly respond within ten business days largely waives exceptions that might otherwise allow governments to withhold information under the Act. Thus, when governmental bodies miss deadlines under ordinary circumstances, the Public Information Act requires the Open Records Division to rule that information cannot be withheld. In short, a missed deadline can effectively waive exceptions to the Act that might otherwise allow governments to withhold information from the public.
With that in mind, governmental bodies that are closed for business during disasters must make sure that the Open Records Division is aware of the disaster, the closure, and any applicable extended deadlines. Unless the Open Records Division is specifically informed about disaster-related office closures, the division has to enforce the PIA's ordinary deadlines.
To ensure that the Open Records Division has adequate information to apply the extended deadlines, governmental bodies seeking to withhold information should include disaster-related details in their legal briefing. Relevant information includes the exact dates and times the government or its office was closed, along with any other situation-specific information the governmental body deems important. For example, if a governmental body's main office remained open for business while its field offices were closed due to the hurricane, that detail should be provided to the Open Records Division. Without those details, the Open Records Division will not know to apply the extended deadlines provided for under the PIA.
Finally, in some of the worst hit areas the U.S. Postal Service has been unable to resume mail service and power has not yet been restored. It is therefore difficult or impossible for the Open Records Division to contact certain governmental bodies about their pending files. Thus, while the Open Records Division ordinarily returns documents that governmental bodies submit with their ruling requests, the agency will temporarily retain that information until delivery service resumes. Once the Open Records Division is notified that mail service has been restored and the governmental body is capable of receiving its documents, that information will promptly returned.
Any questions or concerns concerning deadlines under the Public Information Act related to Hurricane Ike can be directed to the Open Records Hotline at 877-OPENTEX. You may also fax your concerns to the Open Records Division at (512) 463-2092. We are here to assist in whatever way we can.