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Sunshine Week turns eyes of Texas to government transparency

The eyes of Texas are upon you. That indeed is the reminder regarding open government this Sunshine Week (March 16-22, 2014). Here in the Lone Star State, government transparency is supported by Chapter 552 of the Texas Government Code, also known as the Texas Public Information Act (TPIA), which specifies the public’s right to access government records. Open government – which includes access to public information and activities – is critical for the functioning of a free society and is one of the principles upon which this country was founded.

Government records

Per the Texas Attorney General, public information includes any information that is collected, assembled, or maintained by or for a governmental entity in connection with the transaction of official business.

The TPIA applies to records regardless of their format. It includes information that is maintained in paper, tape, microfilm, video, electronic data held in a computer memory, as well as other mediums specified under law.

Disclosure exceptions

All government information is presumed to be public information although certain exceptions may apply to the information’s disclosure. Exceptions include information considered to be confidential by law, either constitutional, statutory or by judicial decision. Section 552.101 of the Government Code provides a detailed explanation of public disclosure exceptions.

Judicial records are not subject to the TPIA. While the public has a right to inspect and copy judicial records subject to the court’s inherent power to control access to such records in order to preserve justice,  the public’s right of access to court documents is not an absolute right.

Information release

Governmental bodies are to promptly release requested information that is not exempted and for which an exception to disclosure has not been sought. A public information officer or the officer’s agent may not ask the purpose of an information request.

The governmental body has a duty to respond to any written requests for open records including those that are made via e-mail or by fax.

Timeframes

A common misconception is that TPIA requests must be fulfilled within 10 business days of the written request submission.  The TPIA actually requires the governmental body to “promptly”produce the public information and states that all open records requests must be handled with good faith and must be accomplished within a reasonable time period.

Reasonable and prompt can be impacted by the number of documents sought. The TPIA says if it will take a governmental body longer than 10 business days to provide the records, the governmental body must certify that fact in writing to the requestor. The Act further requires the governmental body to set date and hour within a reasonable time that the information will be available for inspection or duplication.

Six situations, however, do present specific timing deadlines on the part of governmental bodies in response to handling open records requests:

  • Notice to requestor that the governmental body needs additional time to produce records.
  • Notice to requestor that the governmental body needs additional time to produce records that are in active use or in storage.
  • Notice to requestor of programming or manipulation costs.
  • Request by the governmental body for an open records ruling from the Attorney General.
  • Notice to requestor that the governmental body sought an Attorney General’s open records ruling.
  • Notice to person or entity with proprietary interest in information of Attorney General’s open records ruling request.

Information clarifications

If a governmental entity determines the request for information is unclear or the scope is unduly broad, the governmental body can ask the requestor to clarify or narrow the scope of the request. The 10 business days in which to request an Attorney General’s open records ruling then runs from the date the request is clarified or narrowed as long as the governmental body is acting in good faith. The written clarification request must include a statement as to the consequence of failing to timely respond to the request for clarification, discussion or additional information. If the requestor does not send a written response in 60 days, the open records request is considered withdrawn.

Withholding information

A governmental entity can request a ruling from the Attorney General regarding any information the entity wishes to withhold. It has 10 business days from the date the request is received to do so. It must also send a copy of the request for ruling to the requestor. The governmental entity is to also make a good faith attempt to notify any affected third parties of the request.

Attorney General open records rulings can also be sought should a governmental entity wish to release redacted copies of requested information. If such a ruling is pursued, the entity is to segregate the public information from information that may be withheld and provide that public information promptly.

The governmental body has an additional five business days (a total of 15 business days from the date the governmental body received the original request for the record) to provide the Attorney General additional written documentation in support of withholding the requested information. See the documentation that must be included here.

The requestor must also be provided with a copy of the written comments submitted to the Attorney General.

If the Attorney General asks the governmental body for additional information, the body must respond within seven calendar days. If the governmental body fails to respond, the information will be presumed as open and must be released unless a compelling reason to withhold is identified.

The Attorney General has 45 business days from the date the request for ruling was received from the governmental body in which to respond. The Attorney General may extend the response time for an additional 10 business days if the Attorney General is unable to issue the decision within the prescribed 45 business-day period. Such an extension requires the Attorney General notifying the governmental body and the requestor of the delay reason. This notification must take place within the original 45 business-day time period.

If the Attorney General or a court rules the exact information at issue in a particular request is open to the public, the governmental body must release the information and is prohibited from seeking a reconsideration of that issue from the Attorney General. The ruling can be challenged though by the governmental body filing suit in Travis County district court within 30 calendar days of receiving the ruling.

Charges

A governmental body is required to provide detailed information to the requestor if the charges for an open records request are likely to exceed $40. The governmental body must provide the requestor with a written statement that contains an itemized estimate of the expected cost and inform the requestor to contact the governmental body if an alternative or less expensive method for supplying the requested records might exist. The governmental body must also note that failure to respond to the statement within 10 business days results in the automatic withdrawal of the open records request.

The requestor then has 10 business days to provide written response stating whether the charges are accepted, the request is modified or a complaint has been lodged with the Attorney General’s office alleging overcharges for providing the copies.

If the governmental body finds that the costs will exceed more than 20% of the original estimate, the governmental body must provide the requestor with an updated itemized statement and the requestor again has 10 business days to provide written response to the updated statement or the request will be considered to be withdrawn.

If the actual charges are more than $40, a governmental body may only charge the amount estimated in the latest itemized statement provided to the requestor. If the governmental body did not provide the requestor with an updated itemized statement, the governmental body is limited to charging no more than 20% more than the amount of the original itemized statement.

Per the Attorney General, a governmental body shall reduce or waive the normal charge for copies of public information if providing the copies would benefit the public. The body may also waive a charge for such copies if the cost of collecting the fee exceeds the amount of the charge.

Complaints

A requestor may bring certain actions against a governmental body for violations of the Public Information Act. The requestor may file a complaint against a governmental body with the local county or district attorney. The complaint must be in writing and signed by the complainant. It must also state the name of the governmental body that allegedly committed the violation, as accurately as can be done by the complainant and state the time and place of the alleged commission of the violation, as definitely as can be done by the complainant. A description of the violation, in general terms, is also required.

The local prosecuting attorney must determine if a violation has been committed, decide whether to take action against the governmental body and notify the person who filed the complaint of that decision prior to the 31st day after receiving the complaint. If the local prosecutor declines to proceed with an action, the complainant can file a complaint with the Attorney General before the 31st day after the local prosecuting attorney returns the complaint to the complainant.

The Attorney General also must determine if a violation has been committed, decide whether to take action against the governmental body and notify the person who filed the complaint of that decision. This determination must also be made and the complainant notified before the 31st day after receiving the complaint.

If either the local prosecuting attorney or the Attorney General decides to bring a lawsuit against a governmental body, the governmental body must be notified prior to the lawsuit filing with the governmental body having three days to remedy the problem.

Filing a request

For tips on how to successfully file an open records request from the Attorney General, click here.

Click here for a sample TPIA request letter.

The 2012 Texas Public Information Act Made Easy guide offers answers to frequently asked questions regarding the TPIA while the 2012 Public Information Handbook provides comprehensive information on the Act.

Check out our transparency watchdog tip sheet to get your start in citizen journalism. For story ideas, tips and questions, contact me at Texas@WatchdogWire.com. To start reporting for Watchdog Wire – Texas, sign up here!

Lou Ann Anderson

Lou Ann Anderson is an information activist, a contributor at Raging Elephants Radio and a policy analyst with Americans for Prosperity - Texas, she writes and speaks on a variety of public policy topics. Lou Ann is the Creator and Online Producer at EstateofDenial.com, a web site that addresses the growing issue of probate abuse in which wills, trusts, guardianships and powers of attorney are used to loot assets from intended beneficiaries or heirs.

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