The Open Records Division (ORD) recognizes that open government works best when rulings are promptly issued. When the ORD receives a request for a ruling, it is assessed to determine its level of complexity. The more complex the situation, the more time is needed to rule. Every request requires a complete examination of the circumstances involved, but some involve more records to review and more law to analyze.
However, requests that relate to types of information that are often requested and present no new or difficult issues are ruled on as quickly as possible. For those situations, the ORD issues a shortened memorandum ruling. Memorandum rulings result in the efficient use of resources and allow the ORD to issue a ruling quickly—often within 10 or 20 days.
Memorandum rulings concisely identify the ruling requested, the documents at issue, and the determination as to the availability of the information.
What do Memorandum Rulings apply to?
Letter rulings are limited to the submitted records at issue in a request and limited to the facts presented to us. A governmental body cannot rely upon a memorandum ruling as a previous determination regarding any other records or circumstances.
Deadlines and Remedies
Issuance of a ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor.
- Governmental bodies cannot ask the ORD to reconsider a ruling. Gov’t Code § 552.301(f).
- If the governmental body wants to challenge a ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. § 552.324(b).
- To get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3), (c).
- If the governmental body does not appeal a ruling and the governmental body does not comply with it, then both the requestor and the Office of the Attorney General have the right to file suit against the governmental body to enforce this ruling. Id. § 552.321(a).
- If a ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. The ORD expects that, within 10 calendar days of this ruling, the governmental body will:
- release the public records;
- notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or
- notify the requestor of the governmental body’s intent to challenge a letter ruling in court.
- If the governmental body fails to do one of these three things within 10 calendar days of a ruling, then the requestor should report that failure to the ORD’s Open Government Hotline, toll free, at (877) 673-6839. The requestor may also file a complaint with the district or county attorney. Id. § 552.3215(e).
- If a ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. §552.321(a); Tex. Dep’t of Pub. Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.--Austin 1992, no writ).
Remember that the release of information under the Public Information Act (the “Act”) triggers certain procedures for costs and charges to the requestor.
A governmental body, the requestor, or any other person with questions or comments about a ruling may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of the ruling at issue.
What laws are most often at issue in Memorandum Rulings?
The following information lists the laws most often referenced in Memorandum Rulings and provides an explanation and background on these PIA exceptions. Additional information is also available in the Public Information Handbook (PDF).
Section 552.101 of the Government Code
Section 552.101 excepts from disclosure “information considered to be confidential by law, either constitutional, statutory, or by judicial decision.” This section encompasses information protected by the doctrines of common-law and constitutional privacy, the common-law informer’s privilege, and other statutes outside of the Act. Section 552.101 works in conjunction with, among others, the following provisions to require a governmental body to withhold information under the Act.
Common-law privacy protects information that is (1) highly intimate or embarrassing, the publication of which would be highly objectionable to a reasonable person, and (2) not of legitimate concern to the public. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). To demonstrate the applicability of common-law privacy, both prongs of this test must be satisfied. Id. at 681-82. Types of information considered intimate or embarrassing by the Texas Supreme Court are delineated in Industrial Foundation. Id. at 683. Generally, only highly intimate information that implicates the privacy of an individual is withheld. However, in certain instances, an entire law enforcement report must be withheld under common-law privacy pursuant to section 552.101 to protect the individual’s privacy.
The Third Court of Appeals concluded public citizens’ dates of birth are protected by common-law privacy pursuant to section 552.101. Paxton v. City of Dallas, No. 03-13-00546-CV, 2015 WL 3394061, at *3 (Tex. App.—Austin May 22, 2015, pet. denied) (mem. op.).
A compilation of an individual’s criminal history is highly embarrassing information, the publication of which would be highly objectionable to a reasonable person. Cf. United States Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 764 (1989) (when considering prong regarding individual’s privacy interest, court recognized distinction between public records found in courthouse files and local police stations and compiled summary of information and noted that individual has significant privacy interest in compilation of one’s criminal history). Furthermore, a compilation of a private citizen’s criminal history is generally not of legitimate concern to the public. In instances in which a requestor seeks unspecified law enforcement records concerning a named person, that named person’s right to privacy is implicated. Therefore, to the extent the law enforcement records depict the named individual as a suspect, arrestee, or criminal defendant, a governmental body must withhold such information under section 552.101 in conjunction with common-law privacy.
Constitutional privacy consists of two interrelated types of privacy: (1) the right to make certain kinds of decisions independently, and (2) an individual’s interest in avoiding disclosure of personal matters. Open Records Decision No. 455 at 4 (1987). The first type protects an individual’s autonomy within “zones of privacy” which include matters related to marriage, procreation, contraception, family relationships, and child rearing and education. Id. The second type of constitutional privacy requires a balancing between the individual’s privacy interests and the public’s need to know information of public concern. Id. The scope of information protected is narrower than that under the common law doctrine of privacy; the information must concern the “most intimate aspects of human affairs.” Id. at 5 (citing Ramie v. City of Hedwig Village, Texas, 765 F.2d 490 (5th Cir. 1985)). This office has applied privacy to protect certain information about incarcerated individuals, including inmate visitor and mail logs which identify inmates and those who choose to visit or correspond with inmates. See Open Records Decision Nos. 430 (1985), 428 (1985), 185 (1978).
The informer’s privilege protects from disclosure the identities of persons who report activities over which the governmental body has criminal or quasi-criminal law enforcement authority, provided the subject of the information does not already know the informer’s identity. Open Records Decision Nos. 515 at 3 (1988), 208 at 1-2 (1978). The privilege protects the identities of individuals who report violations of statutes to the police or similar law-enforcement agencies, as well as those who report violations of statutes with civil or criminal penalties to “administrative officials having a duty of inspection or of law enforcement within their particular spheres.” Open Records Decision No. 279 at 2 (1981).
Section 58.008 of the Family Code
Juvenile law enforcement records are confidential under section 58.008(b) of the Family Code, which reads as follows
(b) Except as provided by Subsection (d), law enforcement records concerning a child and information concerning a child that are stored by electronic means or otherwise and from which a record could be generated may not be disclosed to the public and shall be:
Section 58.008(b) applies to records created before, on, or after September 1, 2017.
If the exceptions in section 58.008 do not apply, then the requested information is confidential pursuant to section 58.008(b) of the Family Code.
Section 58.008(d) states, in part, juvenile law enforcement records may be inspected or copied by the child or the child’s parent or guardian. However, pursuant to section 58.008(e), before a child or a child’s parent or guardian may inspect or copy such a record concerning the child, the governmental body must redact any personally identifiable information about a juvenile suspect, offender, victim, or witness who is not the child and any information that is excepted from required disclosure under the Act or any other law.
Section 261.201 of the Family Code
Section 261.201(a) of the Family Code reads as follows:
(a) Except as provided by Section 261.203, the following information is confidential, is not subject to public release under Chapter 552, Government Code, and may be disclosed only for purposes consistent with this code and applicable federal or state law or under rules adopted by an investigating agency:
(1) a report of alleged or suspected abuse or neglect made under this chapter and the identity of the person making the report; and
(2) except as otherwise provided in this section, the files, reports, records, communications, audiotapes, videotapes, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation.
If the requested information consists of reports, records, and working papers used or developed in an investigation made under chapter 261 of the Family Code, and the investigating agency has not cited to a rule it has adopted regarding the release of this type of information, the information is confidential under section 261.201(a) of the Family Code.
Section 261.201(k) states an investigating agency, other than the Texas Department of Family and Protective Services or the Texas Juvenile Justice Department, on request, shall provide to the parent, managing conservator, or other legal representative of a child who is the subject of reported abuse or neglect, or to the child if the child is at least 18 years of age, information concerning the reported abuse or neglect that would otherwise be confidential under this section. The investigating agency shall withhold information under section 261.201(k) if the parent, managing conservator, or other legal representative of the child requesting the information is alleged to have committed the abuse or neglect. Pursuant to section 261.201(l), before a child or a parent, managing conservator, or other legal representative of a child may inspect or copy a record or file concerning the child, the governmental body must redact any personally identifiable information about a victim or witness under 18 years of age unless that victim or witness is the child who is the subject of the report or another child of the parent, managing conservator, or other legal representative requesting the information; any information that is excepted from required disclosure under the Act or other law; and the identity of the person who made the report.
Section 411.083 of the Government Code
Section 411.083 makes confidential criminal history record information (“CHRI”) that the Texas Department of Public Safety (“DPS”) maintains, except that DPS may disseminate this information as provided in chapter 411, subchapter F, or subchapter E-1 of the Government Code. Sections 411.083(b)(1) and 411.089(a) of the Government Code authorize a criminal justice agency to obtain CHRI; however, a criminal justice agency may not release CHRI except to another criminal justice agency for a criminal justice purpose. Other entities specified in chapter 411 of the Government Code are entitled to obtain CHRI from DPS or another criminal justice agency; however, those entities may not release CHRI except as provided by chapter 411. Thus, any CHRI obtained from DPS or any other criminal justice agency must be withheld under section 552.101 in conjunction with chapter 411, subchapter F, of the Government Code. We note section 411.083 does not apply to active warrant information or other information relating to one’s current involvement with the criminal justice system nor to driving record information. Additionally, we note Federal Bureau of Investigation (“FBI”) numbers constitute CHRI generated by the FBI.
Section 550.065 of the Transportation Code
Section 550.065(b) makes confidential a written report of an accident required under section 550.061, section 550.062, or section 601.004 of the Transportation Code. However, a governmental entity shall release an accident report to an individual or entity identified in section 550.065(c) or a redacted accident report pursuant to section 550.065(c-1).
Section 773.091 of the Health and Safety Code
Section 773.091(b) makes confidential records of the identity, evaluation or treatment of a patient by emergency medical services personnel or by a physician providing medical supervision that are created by the emergency medical services personnel or physician or maintained by an emergency medical services provider. However, pursuant to section 773.091(g), this confidentiality does not extend to information regarding the presence, nature of injury or illness, age, sex, occupation, and city of residence of a patient who is receiving emergency medical services.
Section 1701.454 of the Occupations Code
Section 1701.454 makes confidential F-5 forms submitted to TCOLE pursuant to subchapter J of chapter 1701 of the Occupations Code unless the officer who is the subject of the form resigned or was terminated due to substantiated incidents of excessive force or violations of the law other than traffic offenses.
Section 1701.661 of the Occupations Code
Body worn cameras are subject to chapter 1701 of the Occupations Code. Chapter 1701 provides the procedures a requestor must follow when seeking a body worn camera recording. Section 1701.661(a) provides:
A member of the public is required to provide the following information when submitting a written request to a law enforcement agency for information recorded by a body worn camera:
(1) the date and approximate time of the recording;
(2) the specific location where the recording occurred; and
(3) the name of one or more persons known to be a subject of the recording.
If the requestor does not properly request the body worn camera recording at issue pursuant to chapter 1701, the body worn camera recording need not be released
In the event a body worn camera is properly requested under section 1701.661(a), section 1701.661(f) makes confidential a body worn camera recording involving the investigation of conduct that constitutes a misdemeanor punishable by fine only and does not result in arrest.
Section 552.104 of the Government Code
Section 552.104(a) excepts from disclosure information if its release “would harm [a governmental body’s interest] by providing an advantage to a competitor or bidder in a particular ongoing competitive situation or in a particular competitive situation where the governmental body establishes the situation at issue is set to reoccur or there is a specific and demonstrable intent to enter into the competitive situation again in the future.”
Section 552.105 of the Government Code
Section 552.105 excepts from disclosure information relating to “the location of real or personal property for a public purpose prior to public announcement of the project” or “appraisals or purchase price of real or personal property for a public purpose prior to the formal award of contracts for the property.” Section 552.105 is designed to protect a governmental body’s planning and negotiating position with respect to particular transactions. The question of whether specific information, if publicly released, would impair a governmental body's planning and negotiating position with regard to particular transactions is a question of fact. Accordingly, this office will accept a governmental body’s good-faith determination in this regard, unless the contrary is clearly shown as a matter of law.
Section 552.107 of the Government Code
Section 552.107(1) excepts from disclosure information coming within the attorney-client privilege. A governmental body must demonstrate that the information constitutes or documents a communication; the communication was made to facilitate the rendition of professional legal services to the client governmental body; the communication was between or among only clients, client representatives, lawyers, and lawyer representatives; and the communication was intended to be, and has remained, confidential.
Section 552.108 of the Government Code
Section 552.108(a)(1) excepts from disclosure information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime if “release of the information would interfere with the detection, investigation, or prosecution of crime.” Information pertaining to a pending case is one example where release of that information would interfere with the detection, investigation, or prosecution of crime and may therefore be withheld.
Section 552.108(a)(2) excepts from disclosure information concerning an investigation that concluded in a result other than conviction or deferred adjudication. A governmental body claiming section 552.108(a)(2) must demonstrate the requested information relates to a criminal investigation that has concluded and the final result was something other than a conviction or deferred adjudication.
Section 724.018 of the Transportation Code provides that, on the request of the person who has given a specimen at the request of a peace officer, full information concerning the analysis of the specimen must be made available to that person or the person’s attorney. Therefore, in instances when the requestor is the individual who gave the specimen, or the individual’s attorney, full information concerning the analysis of the specimen must be released to the requestor, notwithstanding the applicability of section 552.108.
Section 552.111 of the Government Code
Section 552.111, in part, excepts from disclosure intraagency communications of a governmental body, interagency communications between governmental bodies, and communications of a governmental body with a third party that consist of advice, recommendations, opinions, and other material reflecting the policymaking processes of the governmental body so long as the parties involved in the communication share a privity of interest or common deliberative process with regard to the policy matter at issue. This office has concluded section 552.111 encompasses the entire contents, including comments, underlining, deletions, and proofreading marks, of a preliminary draft of a policymaking document that will be released to the public in its final form.
Section 552.116 of the Government Code
Section 552.116(a) excepts from disclosure “an audit working paper of an audit of the state auditor or the auditor of a state agency, an institution of higher education as defined by Section 61.003, Education Code, a county, a municipality, a school district, a hospital district, or a joint board operating under Section 22.074, Transportation Code, including any audit relating to the criminal history background check of a public school employee[.]”
Section 552.130 of the Government Code
Section 552.130 provides in relevant part:
(a) Information is excepted from the requirement of Section 552.021 if the information relates to:
(1) a motor vehicle operator's or driver's license or permit issued by an agency of this state or another state or country; [or]
(2) a motor vehicle title or registration issued by an agency of this state or another state or country[.]
This exception requires a governmental body to withhold motor vehicle information such as the driver's license number, vehicle identification number, the type/class of license, copy of the license and license plate number under section 552.130.
Section 552.136 of the Government Code
Section 552.136(b) makes confidential “a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body[.]” Bank account numbers, bank routing numbers, credit card numbers, and insurance policy numbers are common examples of information a government body is required to withhold under section 552.136.
Section 552.137 of the Government Code
Section 552.137(a) makes confidential “an e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body[.]” Pursuant to section 552.137(b), section 552.137(a) does not make confidential an e-mail address provided to a governmental body by a person who has a contractual relationship with the governmental body or by the contractor’s agent; provided to a governmental body by a vendor who seeks to contract with the governmental body or by the vendor’s agent; contained in a response to a request for bids or proposals, contained in a response to similar invitations soliciting offers or information relating to a potential contract, or provided to a governmental body in the course of negotiating the terms of a contract or potential contract; provided to a governmental body on a letterhead, coversheet, printed document, or other document made available to the public; or provided to a governmental body for the purpose of providing public comment on or receiving notices related to an application for a license as defined by Section 2001.003(2) of the Government Code, or receiving orders or decisions from a governmental body.
Government Code Section 552.147
Section 552.147 excepts from public disclosure the social security number of a living person.