Public Information Act Training Video Transcript
Centuries ago, our nation was founded like no other: free, democratic and open. Spelled out in the Declaration of Independence and the Bill of Rights, Government derives their just powers from the consent of the governedĖ powers entrusted to them by the populous.
GENERAL ABBOTT: The publicís right to know is essential to accountability in government. We have the right to know what occurs in government meetings, and what is contained in public records.
Itís openness, mandated by state and federal law.
Itís only natural that elected officials and government leaders want recognition for their successes, but not their failures. But we as a healthy democracy need to know the good, the bad, and the ugly.
Today we carry on the ideals and sacrifice of our countryís founders.
Openness and accountability, not secrecy and concealment, is what keeps our democracy strong and enduring.
Thatís what a free democratic government is all about, and you canít have one unless people know what is going on behind government doors.
The Texas Attorney Generalís Office presents, ďOpen Government Training: Open Records.Ē
GENERAL ABBOTT: Hello, Iím Texas Attorney General, Greg Abbott. A democracy depends on fully informed citizens and they in turn depend upon a government that is open and accessible. In a state as large as Texas, thatís a big job, both for citizens and for government. The public sometimes has to wade through the bureaucracy to find the information it needs and government representatives sometimes struggle to understand the law. We expect this video will help everyone. As Attorney General, Iím committed to protecting open government in Texas. To get that job done we have streamlined the way we issue open records rulings and weíve added a team of prosecutors to help county and district attorneys enforce the law. Education also plays a big role by making sure that everyone understands the importance of open government. By watching this video you are helping us, help you keep government open for everyone and thatís a job we all share. Thanks in advance for your attention.
NANCY:: Hello and welcome to the Open Records training video developed by the Texas Attorney Generalís Office. My name is Nancy Fuller, and I am the chair of the Opinion Committee at the Attorney Generalís Office. This training is going to cover the basics of the Public Information Act. Weíll begin with some general background.
Announcer: Information is Presumed Open
Under the Public Information Act, all information of a governmental body is presumed to be open to the public unless there is a specific exception to disclosure.
NANCY: Itís important to start with the presumption of openness, and if you want to withhold information from a requestor, it is imperative that you show how the information is confidential or excepted from disclosure. It doesnít work the other way around. Itís not that the information is closed and the public needs to demonstrate that itís open. You begin with the presumption that the information is open and that you need to show that itís closed if you want to withhold it from the public.
What is Public Information?
Public information under the Public Information Act applies to information that is collected, assembled or maintained under a law or ordinance or in connection with a transaction of official business by a governmental body that is subject to the Public Information Act.
NANCY: Public information can exist in virtually any format. It can be paper, microfilm, video, audiotapes, e-mails, computer data. Just because itís not printed out on paper doesnít mean itís not public information. If itís created by your government body; if youíve obtained it from an outside source and now you have it at your agency, it is public info that is subject to the Public Information Act, and it can be requested through an Open Records request by the public.
I sometimes work out of my house. Are e-mails and documents on my home computer public information, subject to the Public Information Act?
NANCY: Thatís a question we get asked quite frequently, and the answer is, potentially, yes. Information is generally considered "public information" when it relates to official business of a governmental body or is maintained by a public official or employee in the performance of official duties, even though it may only be in the possession of one person. In addition, the Public Information Act states that 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 characterization of information as "public information" doesnít rest with where the information is being stored or kept.
Who is a "governmental body" subject to the Public Information Act?
NANCY:: A governmental body subject to the Public Information Act includes and most often means, entities within the executive or legislative branches of state government, County Commissioners Courts, Municipalities, School districts, Counties, and non-governmental entity or a part of such an entity that is supported by public funds. It does not include the judicial branch of government.
How can I request records of the judiciary?
NANCY: Records of the judiciary are not governed by the Public Information Act. Many court records are available for inspection or copying at the court clerk's office. To request records of the judiciary, the request must be in writing and must be addressed to the court's custodian of records.
What is a Public Information Request?
NANCY: Under the Public Information Act, there are really only two requirements for something to qualify as a Public Information request.
NANCY: First of all, it has to be in writing. A request thatís made verbally, either over the telephone or in person, doesnít trigger the Public Information Act. The second requirement is that it asks for information or records already in existence. To help illustrate this point, letís take a look at a scenario similar to something that you may encounter.
Woman Bureaucrat: May I help you?
Man: Yeah, I think so. Iím actually looking for a few things
Woman Bureaucrat: Whatchaí need?
Man: Well first Iíd like to get a copy of the arrest warrant for the guy the police picked up yesterday for the homicide, and then Iíd like to get a copy of the autopsy report for the victim from last week.
Woman Bureaucrat: Okay, I need your request in writing, that way I know exactly what youíre looking for and it clearly activates the protections of the Public Information Act.
Man: Actually I have that right here and I was also wondering if I could get the minutes from last weeks city council meeting and a copy of the certified agenda from the executive...
Male Requestor: You know what we want.
Woman Bureaucrat: Oh excuse me sir, just a moment, let me just take care of this real quick. These people are in here every day it seems like I just keep that file waiting for them.
Man: Whatís their story?
Woman Bureaucrat: Theyíre determined to prove that Texasville is the true capitol of our great state. They think the answer is in the original city charter but theyíve been over it so many times I donít know what they possibly hope to find at this point.
Youíll notice the clerk correctly asked for the requestor to make his request in writing. Under the Public Information Act, if a requestor does not put their request in writing, the Public Information Act and its protections are not triggered. However, there are some items you may have readily available in your offices. Customer service is always a best practice in responding to requests for information. There are some instances where you can choose to provide the information or requested items within a few minutes or hours. In other instances you will need more time to provide the documents to the requestor or seek a ruling from the Attorney General ís office Ė youíll learn more about that process in a few moments.
NANCY: Go ahead.
QUESTION: If someone asks for public information during a conversation, can I answer that request?
NANCY: Yes, you may answer an oral request for information. It is important to point out though, that answering an oral request does not invoke the Public Information Act, but it can be a public service. It is important to remember that if your governmental body answers oral requests, it is the Attorney Generalí s position that all requestors should get fair and equitable treatment. Generally speaking, a public information request does not need to be addressed to any particular person. If the request comes in by mail, a delivery service, or hand delivery, it doesnít have to be addressed to a specific person at the governmental body. It can be addressed to any employee at a governmental body, or to the governmental body itself. There are a few exceptions, though, that are very important. The law allows an agency to designate a specific person to be the recipient of fax or e-mail requests for public information, and in those cases, these requests must be addressed to that specific employee, who is responsible for fulfilling those requests for information. In addition, a governmental body typically designates a particular employee to receive public information requests, often known as the Public Information Coordinator. It is also important to note, that after receiving a public information request, a governmental body does not have to create new information, do legal research, or answer questions. A governmental body does, however, have to make a good faith effort to relate information it does have to a public information request that it receives.
What do you do or not do in responding to a request?
NANCY: Lets take a look at some examples of correspondence you might receive at your governmental body and talk about whether or not they qualify as public information requests that trigger the requirements of the Public Information Act. The first example here is a letter from a law firm and it says, "To whom it may concern: please be advised that we represent Bad Company, Inc. a defendant in an upcoming lawsuit. We are requesting all documents related to Bad Company, Inc. Please forward those documents to us as soon as possible, and we will, of course, be happy to reimburse you for any expenses associated with this request. Very truly yours, a named partner in the firm." So how many of you think that this is a Public Information request that triggers the requirements of the Public Information Act? Okay, its always best to start by asking yourself a few questions. Is it in writing? Yes, this one obviously is in writing. Second, does it ask for information in existence? Well letís assume that it does. So, in other words, itís not asking us to create new information; its not asking us to perform legal research; and its not asking us to answer specific questions. So yes, most of you were correct; this is a valid public information request. Well letís move on to our second example. Here we have a hand-written letter and it says, " I want all records involved in report #225436," and itís signed ďBob Scrawl.Ē How many of your think that this is a public information request that triggers the Public Information Act? Hmm, I see a few of you arenít so sure this time. But again, letís ask ourselves the two important questions: Is it in writing, and does it ask for information that is already in existence? And the answer to both of those questions is yes. So it is a valid public information request. A public information request doesnít need to be typed up, it doesnít need to be on somebodyís letterhead. It doesnít need any specific or magic words like "this is a request under the Public Information Act". It doesnít need to cite any particular laws. If it is in writing and it asks for information that is in existence, or may be in existence, then it is a public information request and it triggers the Public Information Act. Lets go on to our third example. It says, "To whom it may concern: please send me all documents you have regarding your receptionist Joan Crawford. Man is she a doll. Sincerely, Mel Gibson. So, how many of you think this is a Public Information Request that triggers the Public Information Act? Ok, I see some of you with doubts. But again, itís in writing and it asks for information already in existence. Itís really not your role to worry about whatís being asked for. So donít be concerned whether it seems odd or strange, because what you need to focus on is whether this is a public information request and then, if it is, how do you need to respond accordingly. So those of you that raised your hands, you were correct. Yes, this is a legitimate open records request. But letís say that Mel Gibson had gotten it wrong, just a little bit wrong, and he had asked for information regarding your receptionist Joan Crawford but, actually, your receptionistís name is Jane Crawford. Again, you have to make a good faith effort to relate a request for information to information that you do have. Donít be hyper technical about how you interpret requests for information. So if you know you have a receptionist named Jane Crawford and that Mel Gibson probably just mistyped his request or got her name wrong then go ahead and relate that request to information that you do have about Jane Crawford.
Promptly produce public information
A governmental body must promptly produce Public Information to a requestor that canít be withheld by law. This means that information should be given as soon as possible without delay, which is a reasonable time under the circumstances.
I work for a governmental body that is very small and is only open for business one day a week. If I take several weeks to respond to a request for information is that promptly?
NANCY: You must promptly produce Public Information in response to a public information request "Promptly" means that a governmental body may take a reasonable amount of time to produce the information. Now, your response will likely hinge on the availability of the information requested. In some instances, the amount of information that is being requested is very large and voluminous, and so it may depend on how much information is being requested, and it may depend on where the information is located. Do you have it in storage and do you need to pull it from the warehouse? No matter how much information is at play, and no matter where itís being stored, youíre going to get the information to the requester as soon as reasonably possible under the circumstances. Something else thatís very important and sometimes an issue: donít ask the requestor why they want this information. The law prohibits asking why a requestor wants the information or what the requestor intends to do with it. No matter how curious you are, never ask a requestor why they want Public Information.
Lets take a look at a scenario:
Man: Alright where was I? I need the minutes from last weekís city council meeting and the certified agenda from the executive session, as well.
Woman Bureaucrat: What do you need with this stuff?
Man: Well, I donít think you can legally ask me that.
Female Requestor: Thatís right, its no concern of the governmentís what you want that information for.
Woman Bureaucrat: Sorry. Youíre absolutely right. Okay, I can get you the autopsy report, that should just take a second to find and I can get you the probably cause affidavit for the arrest but I canít give you the certified agenda.
Man: Why not?
Woman Bureaucrat: Well as I understand it, certified agendas are confidential under the Open Meetingís Act.. I would have to check with the Attorney Generalís office for a ruling on that before I could release those documents.
Man: If youíre sure, why do you need to ask?
Woman Bureaucrat: Under the law, anytime I want to withhold information I have to get an AGís ruling.
Man: Well how long does that take?
Woman Bureaucrat: Generally speaking, the AG is supposed to respond within 45 business days.
Man: Ok, lets do that.
Woman Bureaucrat: Ok, Iíll send you a copy of the letter we send to the AGís office asking for the ruling.
Man: How will I know when the AG has made a decision?
Woman Bureaucrat: They will send you a copy of their decision
Man: If Iím entitled to the documents when the AGís office send them to me?
Woman Bureaucrat: No only the governmental body in question can send out the documents.
Youíll notice the requestor correctly pointed out to the woman that she CANNOT ask why he wanted the information. No matter how bad you want to know why the request was made, it is against the law to ask a requestor. Additionally, you are not liable for what the requestor does with the information once it is released.
You can, however, ask a requestor to clarify what they are asking for if you donít understand a request, or you can ask them to narrow their request if the amount of information might be voluminous. So if youíre not sure what a requestor is asking for, or if you just have a lot of information and you think the requestor may just not understand that you have such a large amount of information, feel free to contact the requestor. Weíve found that the easiest way to do this is to simply pick up the phone and contact the requestor to talk about these issues. Most requesters are very willing to speak with you and discuss their requests because they understand that the easiest way to get a good response to their request, and to get it efficiently, is to make sure that you understand what their request is.
Can a governmental body and a requestor come to an agreement to release more or less than what was originally requested?
Yes, a governmental body and a requestor can agree that what is to be released pursuant to a request is more or less than what was originally requested. However, the best practice is to document in writing any changes to the original request.
All requesters must be treated equally.
NANCY: Keep in mind that it is really vital to treat all requesters equally. Regardless of who the requestor is, you need to treat them the same as any other requestor. For example, in fairness, youíre going to want to address requests in the order you receive them, and youíre not going to want to show any preferential treatment to one requestor over another. Also remember, governmental bodies are not responsible under the law for a requestorís later use of information that you provided to them. That is simply not something you need to worry about and itís certainly not a reason to deny or delay your response to a public information request.
QUESTION: We have a great web page where I work, and the staff at my governmental body works hard to keep it up to date and keep the information current. If a requestor asks for something I know is on the web page can I just send the requestor to the web to answer the request?
Under the Act, a governmental body must either provide the information for inspection or duplication in its offices or send copies of the information by first class United States mail. The Attorney General has determined that a public information officer does not fulfill his or her duty under the law by simply referring a requestor to a governmental bodyís website for requested public information. A requestor may, however, agree to accept information on a governmental bodyís website in fulfillment of the request and, in that situation, the governmental body must inform the requestor of the Internet address of the requested information.
Can I charge for my time and documents?
NANCY: The answer to that question is yes. You can charge for the amount of time it takes for you to gather the information and you can charge for the copies you make for the requestor. But there are established rules you need to follow when you charge a requestor and those rules are available on the attorney generalís website.
Letís return to our scenario for a look at a situation you may encounter.
Woman Bureaucrat: If you want to make copies you can use that machine right over there, itís only ten cents a copy.
Man: Thank you
Woman Bureaucrat: Lets see. You want copies of all the land contracts from Texasville for the last twenty years and all the minutes from every city council meeting since its conception. And whatís this?
Female Requestor: Oh, every registered voter in the history of city and weíd like that by the ten business day deadline, thank you very much. And that means starting today youíll have about two weeks.
Woman Bureaucrat: I donít know...
Female Requestor: No, the law says you have ten days
Woman Bureaucrat: Actually, hon, the ten days starts the first business day after I receive your request and then they give me that much time to respond to you. With this kind of volume, the law does give me a little leeway.
Male Requestor: Is there a problem here?
Woman Bureaucrat: Listen, it takes time and money to locate the kind of information youíre looking for, and this is going to get pretty costly for you.
Male Requestor: Howís that?
Woman Bureaucrat: We can charge you, and besides, I think weíre going to need an opinion from the Attorney Generalís on some of this stuff. That could take another 45 days. Now, If you want to narrow your focus clarify some of this request, that would save you additional delays or costs. If you donít want to, I will certify in writing, within the 10 business days, exactly when the information will be available to you.
Male Requestor: Give me that list. Iíll see if I can get it down to specifics.
Man: You handled that really well.
Woman Bureaucrat: Well, Iím happy to give Ďem whatever they want, but I do have to follow the law.
Man: I have everything I need, thanks.
Woman Bureaucrat: Okay, you have a nice day.
Nancy: Did you have a question?
Can a requestor bring their own copying equipment to avoid charges?
In Texas Attorney General Opinion JM-757, from 1987, this office determined that members of the public have some degree of authority to copy public records themselves. However, this opinion also determined that a governmental body may refuse to allow members of the public to use their own equipment under some circumstances. These include, for example, when it is unreasonably disruptive of working conditions; when the records contain confidential information; when it would cause safety hazards; or when it would interfere with other personsí rights to inspect and copy records. The reasonableness and safety of each request should be assessed independently.
It is important to remember that in assessing charges, the governmental body is required to follow the guidelines established by the Texas Attorney Generalís Office.
If you ever have any questions about those fees you can find that information on the attorney generalís Web site at www.oag.state.tx.us or you can contact the Attorney Generalís Open Government Hotline at 1(877) OPEN-TEX.
Promptly Providing Information to the Requestor
In most cases, you will be providing the information to the requestor. This can be done in several different ways. A governmental body can send a letter detailing charges that need to be paid to receive the public information. Also, the governmental body can simply release the information or send a letter regarding additional time needed to compile information thatís being released.
What should I do when I believe information should not be given to a requestor?
Can I say no to a requestor?
NANCY: I see you have a question.
If Iím sure information is confidential by law, can I just tell the requester that, and not ask for a ruling?
NANCY: A governmental body, on its own, may not refuse a proper request for information. The law requires that you ask the Attorney Generalís Office for an open records ruling within 10 business days from having received the request. You have another option, you can speak to the requestor about the information you feel should be withheld, and ask them if theyíre interested in receiving that particular information, or that information with a few changes. You may be able to get an agreement from the requestor to narrow the request to exclude the information that you want to withhold and in that case you wouldnít need to seek a ruling from the Attorney Generalís Open Records Division. But if you canít get that agreement from the requestor, and the requestor is just adamant that they need that information; and if you have a good faith belief that the information is confidential or excluded from open records according to the Public Information Act, then you need to request a ruling from the Open Records Division that would allow you to withhold that information, and you need to do that within 10 business days.
How do you count 10-business days?
NANCY: Letís take a look at a calendar. Youíll notice that the request for information was received on a Tuesday. Youíll also notice that you do not start counting on Tuesday. You start counting on the next business dayĖ that is day one. Any day of the week that you are open for business, is a business day and you count that toward your ten business days. When you get to the weekend, the weekends are not business days. As you get down towards Ė between day 8 and day 9 Ė youíll notice that we have holidays. Any holiday that your office is closed for business is not considered a business day under the Public Information Act. And finally, you get down here to January 2nd and thatís your 10th business day deadline. Thatí s the day by which you need to respond to the public information request or seek a ruling form the Open Records Division if you need to withhold information from the requestor.
Please remember, in counting 10 business days, you start counting the day AFTER the written request is received. Saturdayís, Sundays and holidays DO NOT count towards the ten days: you skip over those days and resume your counting on the next business day. Also optional holidays, skeleton crew days, or days when your office is closed, and NOT open for business, do not count towards the 10 day total.
How do I request a ruling from the Texas Attorney Generalís Office?
You must send a letter to the Open Records Division asking for a ruling. The letter must detail what exceptions to disclosure apply.
NANCY: So the first step in the process is to send a letter to the Open Records Division seeking a ruling by the 10th business day after youíve received the request for information.
The second thing you want to do by the 10th business day is to notify the requestor that you are seeking a ruling from the Attorney Generalís Open Records Division. You need to let the requestor know; you canít just keep them in the dark. The requestor needs to know that youíre seeking a ruling from the OR division, and the easiest and most efficient way to do that is simply to send them a copy of the request for a ruling that you sent to the Open Records Division by the 10th business day.
Finally, you must notify any third parties who has a trade secret interest or a commercial financial interest in the information thatís been requested.
NANCY: So those are the three things you need to do. Seek a ruling from the Open Records Division. Let the requestor know about it. And also let any interested third party know about your request for a ruling.
Once youíve completed all those steps, youíre still not finished. The bulk of the work that youíre going to need to do is to seek a ruling from the OR Division; Youíll need to do by the 15th business day after youíve received the request for information. By that day, you need to provide the OR Division with arguments about why you think the information should be withheld from disclosure. You need to provide legal arguments showing why the exceptions you raised in your 10 business day letter apply to the information that you are wanting to withhold. By the 15th business day, youíre also going to need to provide the OR Division with a copy of the request that you received from the requestor. The OR Division will need to see a copy of the actual request, and the best way to do that is to attach the letter to the arguments that you submit to the Attorney Generalís Office. Youíre also going to need to let the OR Division know the exact date that your office received the Public Information request. You can do that very easily by just putting a statement in the arguments that you received on the 10th business day, or the 15th business day, or if you have a copy of the public information request that is date stamped, that is also a good way to let the OR Division know the exact date you received the request.
By the 15th business day, youíll also need to provide the OR division with copies of the documents that you want to withhold from the requestor. The Division will need to see these documents so they can determine whether or not the exceptions that youíve raised, and the arguments that youíve made apply to the information that youíre seeking to withhold. If you have a large amount of information, and itís essentially the same information, you can provide the OR Division with a representative sample of those documents. You donít need to provide page after page, box after box of the same type of information. You can provide a representative sample under these circumstances.
Can a governmental body always submit a representative sample of the information requested when requesting a ruling from the Attorney General?
NANCY: Not always. There are some instances, such as when third party proprietary information is at issue, where a mere sample cannot be submitted and the Open Records Division needs each and every document requested. If you ever have any questions about how much information to send, itís always a good idea to err on the side of caution, or contact us before you send the sample to us.
You also need to be sure to label the documents to show which exceptions apply to which documents or which sections of the documents. Please be sure that you mark them in such a way that the Open Records Division can still see the information youíre wanting to withhold, rather than blacking them out, for example. You need to make sure you label it clearly and that there is no confusion between the labels you are making, and the markings on the documents.
So remember, if you think some of the information being requested should not be released under the Public Information Act, it is up to you to ask for a ruling. By the 10th business day you must ask Ė in writing Ė the Open Records Division of the Office of the Attorney General for a ruling and state the exceptions that you believe apply. You must also notify the requestor that you have asked for a ruling, supplying the requestor with a copy of the letter youíve sent to the Attorney Generalís office. This is a very easy way to let them know. And finally, you must also notify any Third Parties with proprietary interest in the information concerned with the requested ruling.
By the 15th business day you must then submit to the Open Records Division of the Texas Attorney Generalís Office:
a) Written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld;
b) A copy of the written request;
c) By the 15th day, a signed statement as to the date on which the written request for information was received or evidence sufficient to establish that date; also,
d) A copy of the specific information requested, or a representative sample of the information if a voluminous amount of information was requested needs to be sent into the Attorney Generalís Office by the 15th day..
e) When submitting these items please label that copy of the specific information, or representative samples, to indicate which exception apply to which parts of the copy.
f) You must also send a copy of written comments to requestor, redacted if necessary.
Withholding information without seeking a ruling
NANCY: Say you disregard the 10 day rule, what happens? If you donít request a ruling from the Attorney Generalís Office and just decide to withhold the information without seeking a ruling? The information that youíre wanting to withhold is going to be presumed to open to the public and itís going to have to be realist unless it is confidential by law.
Letís now take a look at a scenario that we hope will assist you in reviewing the procedures for requesting an Attorney Generalís ruling.
Todayís the day we need to put together our brief to send to the Attorney Generalís Office, so letís put it together and go back through what we have done and what we need to do so we can get it right.
Well, this is our 10th business day, and weíve raised our exceptions in our 10th business day letter as well as sent them a copy of the original request with the date received on it.
Did we send a copy of this written communication and a copy of the original request back to the requestor?
Yeah, we did. We CCíd them.
So all we need to do today is put together our 15 day letter to the Attorney Generalís Office.
Correct. So we met our legal requirements for the 10 day and so today weíre gonna put the 15 day together to send it off to the Attorney Generalís Office. Our first part of the 15 day is our brief, so hereís our letter and our brief to the Attorney Generalís Office explaining our exceptions, ok? Then what weíre gonna have to add, is weíre gonna have to add the original request.
Didnít we already send that on the 10th business day?
We did, but the law requires that we send the original request with the 15 day also. We also need to add the letter that we sent to the requestor showing that we did tell them about us asking for a ruling.
So essentially weíre re-sending our 10 day letter and our 15 day to the Attorney Generalís Office.
Correct. Thatís what weíre doing. So after all that, weíre still not done. We need to send a representative sample or the actual documents to the Attorney Generalís Office. They need to be bracketed and labeled with the exception that we want to use to withhold that information.
So what youíve done is make copies of the documents youíve released to the requestor, but bracketed the information that you want to withhold and labeled next to the brackets the exceptions to disclosure that youíve raised.
That is correct.
So weíre gonna send this to the Attorney Generalís Office, and then weíre also gonna send a copy to the requestor. We actually CCíd her with our brief that explains the exceptions we are using.
I noticed this says ďwithout all enclosures.Ē
Thatís right. Weíre not sending her a copy of the actually documents we want to withhold.
What if the brief itself reveals the information at issue?
Then we can black that information out.
So the requestor is going to get a CC of our correspondence to the Attorney Generalís Office of the brief without the enclosures.
When is a ruling issued by the Texas Attorney General?
NANCY: The Office of the Attorney General has 45 business days to issue a ruling in response to a request for a ruling. If the Attorney General needs more time, the Office can extend that once by 10 business days. And if that happens, you will be notified in writing. If the Office of the Attorney General rules that an exception applies, the governmental body will not release the information. If the Office of the Attorney General rules that no exception applies, then the governmental body, and not the Office of the Attorney General must release the information.
Enforcement and Penalties
What does the PIA provide for in the way of enforcement and penalties?
Informal dispute resolution
The Public Information Act authorizes the Attorney General to enforce certain provisions of the Act. Through education, investigation, and mediation, the Open Records Division seeks to resolve informally any disputes that arise between citizens and governmental bodies regarding access to public information. If a dispute cannot be resolved informally, the office will pursue legal action on the Stateís behalf when warranted and authorized.
Challenging a ruling
Requests to reconsider rulings issued by the Open Records Division are prohibited by law. However, if you believe that a factual mistake has been made by the Open Records Division in a ruling you have received then please contact the Hotline staff to discuss the situation. That number will again be displayed later in this video.
If a governmental body disagrees with the legal interpretation of a ruling then it must file suit against the Attorney General in Travis County challenging the ruling. This suit must be filed within thirty calendar days from the date the ruling is received. The procedures for filing such a lawsuit are found in section 552.324 of the Public Information Act.
The Texas Attorney Generalís office is committed to keeping government open and accessible to the public.... the Open Government Hotline is available to help you make informed decisions about Open Government issues. Sometimes, though, no matter how much guidance is provided there continues to be people who are not doing what is required. When that happens there are remedies we can take to bring those who disobey the Public Information Act into compliance. Our Assistant Attorney General in charge of Open Government is responsible for prosecuting cases where a clear violation has occurred.
Hello Iím Harry White, Assistant Attorney General, if there is one thing we can all agree on, itís the importance of open government. Without transparent operations, our government will lose the faith of the public. We can all do our part by working hard to comply with the standards set by the public information laws.
My duties with the Attorney Generalís Office consist of both assisting Texas prosecutors in investigating and prosecuting Public Information Act criminal violations and, with consent, prosecuting those violations myself.
Formal Complaints about a violation of the Public Information Act
A person who alleges a violation of the Act may seek to have a civil suit for declaratory judgment or injunctive relief brought on their behalf. This person, otherwise know as the complainant, can file a formal civil or criminal complaint in writing with the district or county attorney of the county where the governmental body is located. If the governmental body is a state agency, the complaint may be filed with the Travis County District Attorney. If the governmental body is the district or county attorney, the complaint must then be filed with the Attorney General. These prosecutors or the Attorney General may initiate an action if it is deemed appropriate and warranted. The procedures for filing such a formal complaint are found in section 552.3215 of the Public Information Act.
A requestor or the Attorney General may also file a writ of mandamus to compel a governmental bodyís officials to make information available to the public. This can be done in three instances:
1) when a governmental body refuses to provide copies or access to information that is clearly public;
2) when a governmental body refuses to request an Attorney Generalís ruling; or
3) when a governmental body refuses to release information as required by an unchallenged Attorney Generalís ruling.
The requestor may file a written complaint with the Open Records Division if they are faced with any of the three situations weíve described and they do not wish to file suit themselves. Please keep in mind that in taking complaints it is the Attorney Generalís role to ensuring that governmental bodies comply with the Public Information Act. We do not represent individuals as their attorney.
The requestor cannot be sued but may intervene
The Public Information Act specifically states that a governmental body or other person that sues to withhold information cannot file suit against the person requesting the information. The law also provides that the requestor may sue to intervene in any such suit against the Attorney General.
Texas prosecutors have a range of statutory responsibilities under the Public Information Act and other laws governing access to public information, and can sometimes be in a difficult position when having to enforce them. The county attorney and the district attorney are governmental bodies themselves, and are subject to the Public Information Act. At the same time, many prosecutorís offices are the statutory attorney for the county and are responsible for advising other county officials on Public Information Act legal issues.
In my experience, many governmental bodies that have failed to comply with the requirements of the Act, do so because they simply donít know the law. However, as we all know, ignorance of the law is no excuse.
Failure or Refusal to Provide Access to Public Information
If an officer for public information, or the officerís agent with criminal negligence fails or refuses to give, or to permit, or provide copying of public information to a requestor as provided by the Public Information Act, an offense has been committed.
The punishment range for this charge is a fine of up to $1,000, up to six months in the county jail or both. This crime is considered a misdemeanor.
A defense to this charge may exist if the officer reasonably believed that public access to the information was not required AND the officer acted in reliance on a court order or an opinion of a court or an open records decision of the Attorney General.
It may also be possible that the officer has requested an open records decision of the Attorney General and no decision has been issued. Another defense may be that the public officer filed suit in Travis County district court seeking relief from the attorney generals ruling and the suit is still pending Ė but remember, that suit has to be filed no later than the 10th calendar day after the open records decision has been issued by the Attorney General declaring the information public.
An officerís agent has a defense if the agent reasonably relied upon the written instruction of the officer for public information.
Failing to provide information under this law is official misconduct. Possible ramifications of a conviction include removal from office for elected officials.
Itís also important to remember another very serious issue relating to the Public Information Act. It is a crime under to destroy, remove or alter Public Information. To be guilty of this crime a person must wilfully destroy, mutilate, remove without permission or alter public information.
The punishment range for this charge is a fine from $25 to $4,000, from 3 days up to three months in the county jail or both. This crime is considered a misdemeanor.
The third criminal charge under the Public Information Act is Distribution or Misuse of Confidential Information. A person violates this statute if he distributes information considered to by confidential by the Public Information Act. Additionally, if confidential information is released to member, agency or committee of the legislature for legislative purposes, an officer or employee of that governmental body commits an offense if he knowingly:
- Uses the confidential information for a purpose other than the purpose for which the information was received
- Permits inspection of the confidential information by a person who is not authorized to inspect the information;
- Discloses the confidential information to a person who is not authorized to receive the information.
The punishment range for this charge is a fine of up to $1,000, up to six months in the county jail or both. This crime is considered a misdemeanor.
Like Failure or Refusal to Provide Access to Public Information, this crime constitutes official misconduct.
Criminal sanctions serve as a reminder of how important it is to comply with not just the letter of the Public Information Act, but also its spirit.
A goal of every person who works for the State, a county, a city, school district or any other governmental entity should be to foster not only the appearance of openness, but of real openness.
An electorate educated in the goings on of our stateís government is one of Texasís greatest assets. As public servants of this state, we should do all we can to keep the public well informed. At the Attorney Generalís office we appreciate all you do to effectively create an open and fair system of government.
What happens if a requestor or governmental body needs help with the process?
Open Government Hotline
The Texas Attorney Generalís office realizes there will be questions about the Public Information Act, and what information is deemed public óby law. (ďOpen Government Hotline...Ē) The Attorney General Open Government Hotline provides a valuable service both to the public and to governmental entities. The Hotline is staffed by personnel trained in answering general questions pertaining to open government issues. The Hotline also operates to facilitate the resolution of disputes between governmental bodies and private citizens as controversies arise. They are not your personal attorney, but they can help educate you about the process.
For More Information about the Public Information Act or the Open Meetings Act, you can call the Open Government Hotline toll free at 1 877- OPEN TEX, thatís 1-877-673-6839 or write the Attorney General directly at:
Office of the Attorney General
Open Records Division
P. O. Box 12548
Austin, Texas 78711-2548
You can also get valuable information on the Attorney Generalís Website at www.oag.state.tx.us
From the homepage, go to the Left Navigation column and click on ďOpen GovernmentĒ. Tab down to ďFrequently Asked Questions,Ē where you will find information about the Public Information Act and the Open Meetings Act.
Another helpful resource can be found on the Website under the heading "What Requestors Should know" .... there youíll find tips for successful Open Records Requests and some of the things Requesters expect after making such a request. While accessing the Texas Attorney Generalís Officeís website at www.oag.state.tx.us, you can also click on the ďOpen Government ResourcesĒ tab and find helpful resources that include: Open Records Letter Ruling; Open Record Decisions; Copies of both the Public Information handbook and Open meeting handbook; you can also find a sample of 3rd party notification letters.
This video obviously doesnít include everything you need to know. The rules and regulations that govern Open Meetings and Open Records are lengthy and sometimes complicated . . . and the task of getting to know them can be intimidating. Thatís why my office also produces a handbook for each act, and those handbooks are available both in printed form and online
Thomas Jefferson said, "A public office is a public trust" . . . and in that spirit, the work of government must be open to the people. It is a principle written into Texas law . . . and upheld by the courts. The publicís right to know is essential to accountability in government. We have the right to know what occurs in government meetings and what is contained in public records. We wouldnít have it any other way. I am pleased to make the resources of my office available to all who need them . . . so that public officials and private citizens can join me in my commitment to government in sunshine. Thank you for your time and more importantly, thank you for your service to the State of Texas.
You have now finished a certified training of the Public Information Act. To print a certificate saying that you have completed this Public Information Act training, please go to our website at www.oag.state.tx.us. Once youíre there, access the open Government training link, and type the code listed on the screen right now. (TXPIA921) If you are required to go through this training by law, a copy of the certificate must be on file with your governmental agency. A copy of this certificate will not be kept by the Attorney Generalís Office.