Public Information Public Information ActAct

Chapter 52 – Texas Chapter 52 – Texas Government CodeGovernment Code

Region 5 Clerk’s Conference Region 5 Clerk’s Conference 20112011Grant BrennaGrant Brenna

Assistant Criminal District AttorneyAssistant Criminal District Attorney

Dallas CountyDallas County

What is “Public What is “Public Information?”Information?”

Public Information means information that is Public Information means information that is collected, assembled, or maintained by or for collected, assembled, or maintained by or for a governmental body under a law or a governmental body under a law or ordinance or in connection with the ordinance or in connection with the transaction of official business. 552.002(a)transaction of official business. 552.002(a)

““Public Information” may be in a book, Public Information” may be in a book, paper, letter, document, printout, paper, letter, document, printout, photograph, film, tape, microfilm, video or photograph, film, tape, microfilm, video or audio recording, map, computer, etc…, and audio recording, map, computer, etc…, and etc…etc…

Examples of Public Examples of Public InformationInformation

Information on the computerInformation on the computer ReportsReports Handwritten NotesHandwritten Notes Emails/Instant MessagesEmails/Instant Messages Photographs/MapsPhotographs/Maps Video or Audio Tapes (Digital or Video or Audio Tapes (Digital or

Analogue)Analogue) Documentary EvidenceDocumentary Evidence

NOT Covered by the PIANOT Covered by the PIA

Litigation Discovery Requests Litigation Discovery Requests (552.0055)(552.0055)

Subpoenas (552.0055)Subpoenas (552.0055) Inmate Requests (552.028)Inmate Requests (552.028) Requests for Answers to Questions or Requests for Answers to Questions or

to Create Informationto Create Information Continuing RequestsContinuing Requests Judicial Records (552.003 &552.0035)Judicial Records (552.003 &552.0035)

See also Rule of Judicial Administration 12See also Rule of Judicial Administration 12 Non-Documentary Tangible ItemsNon-Documentary Tangible Items

Judicial RecordsJudicial Records

Records maintained by District Clerk Records maintained by District Clerk on behalf of the judiciary are not on behalf of the judiciary are not covered by the PIA (ORD 671)covered by the PIA (ORD 671)

Records maintained by the District Records maintained by the District Attorney on behalf of the Grand Jury Attorney on behalf of the Grand Jury are not covered by the PIA (ORD 513)are not covered by the PIA (ORD 513)

Records of the Justice of the Peace Records of the Justice of the Peace are not covered by the PIA (ORD 25)are not covered by the PIA (ORD 25)

Judicial Records (cont)Judicial Records (cont)

Court case records are governed by Court case records are governed by statutory and common law right to access statutory and common law right to access and are generally considered accessible by and are generally considered accessible by the public.the public.

Other judicial records are governed by Rule Other judicial records are governed by Rule 12 of the Rules of Judicial Administration12 of the Rules of Judicial Administration Similar rules as the PIA except there is no Similar rules as the PIA except there is no

requirement to request an AG rulingrequirement to request an AG ruling There are additional exceptions to release There are additional exceptions to release

records and rights to deny a request if it records and rights to deny a request if it impedes operationsimpedes operations

General RuleGeneral Rule

Public Information is available to the public Public Information is available to the public at a minimum during the normal business at a minimum during the normal business hours of the governmental body. (552.021)hours of the governmental body. (552.021)

The governmental body must provide The governmental body must provide access or copies of requested documents access or copies of requested documents promptly.promptly. Promptly means as soon as possiblePromptly means as soon as possible Within a reasonable timeWithin a reasonable time Without delayWithout delay See 552.221(a) and (ORD 664)See 552.221(a) and (ORD 664)

Posting of a Sign (552.205)Posting of a Sign (552.205)

The Public Information Officer must post a The Public Information Officer must post a sign containing basic information about sign containing basic information about the rights, responsibilities and procedures the rights, responsibilities and procedures for obtaining information.for obtaining information.

The sign must be plainly visible to the The sign must be plainly visible to the public and employees.public and employees.

The Attorney General has designed a sign The Attorney General has designed a sign and prescribed a size, shape, and content.and prescribed a size, shape, and content.

PIA Request FormatPIA Request Format

May be written or verbalMay be written or verbal But only a written request triggers the But only a written request triggers the

PIA timelinesPIA timelines Email and Fax count as written requestsEmail and Fax count as written requests

It does not need to cite the PIA.It does not need to cite the PIA. It must include the name, address, It must include the name, address,

and phone number of the requester.and phone number of the requester. It must adequately describe the It must adequately describe the

records being requested.records being requested.

Permissible Inquiries to the Permissible Inquiries to the Requestor (552.222)Requestor (552.222)

Identification questionsIdentification questions Clarification questions concerning what Clarification questions concerning what

is being requestedis being requested Questions concerning cost and the Questions concerning cost and the

requesters willingness to pay costsrequesters willingness to pay costs Questions concerning where to send Questions concerning where to send

records and the format of the recordsrecords and the format of the records Cannot ask “Why?” they want the Cannot ask “Why?” they want the

recordsrecords

Cost IssuesCost IssuesSubchapter F - 552.261 through Subchapter F - 552.261 through

552.275552.275 50 or fewer pages of paper records 50 or fewer pages of paper records

at cents per page unless:at cents per page unless: The documents are in two or more The documents are in two or more

separate buildings or a remote facilityseparate buildings or a remote facility May charge for labor and overhead if:May charge for labor and overhead if:

Over 50 pagesOver 50 pages Electronic InformationElectronic Information Contained in separate or remote Contained in separate or remote

facilitiesfacilities

Cost Issues (cont)Cost Issues (cont)

Charges accrue at the time the Charges accrue at the time the governmental body advises the requestor governmental body advises the requestor that the records are ready. 552.261that the records are ready. 552.261

If over $40, then need to send a cost If over $40, then need to send a cost estimate. 552.2615(a)estimate. 552.2615(a)

May require a deposit from the requester if:May require a deposit from the requester if: Cost exceeds $100 and government has more Cost exceeds $100 and government has more

than 15 employeesthan 15 employees Exceeds $50 if under 16 employeesExceeds $50 if under 16 employees There is an unpaid balance from previous There is an unpaid balance from previous

requestsrequests See 552.263See 552.263

Access v. CopiesAccess v. Copies

Cannot charge for access to records. Cannot charge for access to records. 552.271(a)552.271(a)

Exceptions (552.271 and 552.272):Exceptions (552.271 and 552.272): Confidential information must be redactedConfidential information must be redacted Documents are older than five years or Documents are older than five years or

completely fill six or more archival boxes and it completely fill six or more archival boxes and it takes more than five hours to make available.takes more than five hours to make available.

If under 16 employees AND the documents are If under 16 employees AND the documents are older than three years old or completely fill older than three years old or completely fill more than three or more archival boxes and it more than three or more archival boxes and it takes two hours to make availabletakes two hours to make available

Electronic information that requires computer Electronic information that requires computer manipulation or programming.manipulation or programming.

Offensive Requestors Offensive Requestors (552.275)(552.275)

The governmental body may establish a The governmental body may establish a reasonable limit of time per requestor of not reasonable limit of time per requestor of not less than 36 hours during a 12 month period. less than 36 hours during a 12 month period. 552.275(a).552.275(a).

Must track and give notice of time used. Must track and give notice of time used. 552.275(d).552.275(d).

Once the limit is exceeded, then must give a Once the limit is exceeded, then must give a cost estimate. 552.275(e)cost estimate. 552.275(e)

The requestor is then required to commit to The requestor is then required to commit to pay costs.pay costs.

Exceptions to the Release of Exceptions to the Release of RecordsRecords

There are exceptions where the There are exceptions where the governmental body is permitted or governmental body is permitted or required to withhold certain required to withhold certain information.information.

But Remember:But Remember: The governmental body cannot refuse to The governmental body cannot refuse to

release documents.release documents. It can only request an Attorney General It can only request an Attorney General

opinion.opinion.

““Super” Public InformationSuper” Public Information

Must be released unless confidential Must be released unless confidential by law. See 552.022.by law. See 552.022.

Examples:Examples: Completed reports, audits, evaluations, Completed reports, audits, evaluations,

or investigations (except for 552.108 or investigations (except for 552.108 material)material)

Name, sex, ethnicity, salary, title and Name, sex, ethnicity, salary, title and dates of employment of employeesdates of employment of employees

Information relating to the receipt or Information relating to the receipt or expenditure of fundsexpenditure of funds

Super Public Information Super Public Information (cont)(cont)

Name of officials and voting recordsName of officials and voting records Description of organization, rules, Description of organization, rules,

policies, and procedurespolicies, and procedures Staff manuals and instructions that Staff manuals and instructions that

affect the public.affect the public. Final opinions in adjudicated casesFinal opinions in adjudicated cases Public court recordsPublic court records Settlement agreementsSettlement agreements

Permissive Exception – Permissive Exception – Litigation 552.103Litigation 552.103

Information related to civil or criminal Information related to civil or criminal litigation that is either pending or reasonably litigation that is either pending or reasonably anticipated where the state or a political anticipated where the state or a political subdivision is a party is excepted from subdivision is a party is excepted from release.release.

The state is considered to be a party to The state is considered to be a party to litigation of a criminal nature until the litigation of a criminal nature until the applicable statute of limitations has expired applicable statute of limitations has expired or until the defendant has exhausted all or until the defendant has exhausted all appellate and post-conviction remedies in appellate and post-conviction remedies in state and federal court.state and federal court.

Permissive ExceptionPermissive ExceptionLaw Enforcement – 552.108Law Enforcement – 552.108

Includes (ie., NOT public):Includes (ie., NOT public): Criminal investigations or prosecutions Criminal investigations or prosecutions

that resulted in something other than that resulted in something other than conviction or deferred adjudicationsconviction or deferred adjudications

All attorney work productAll attorney work product All pending criminal investigations or All pending criminal investigations or

prosecutionsprosecutions BUT:BUT:

You must release the basic information You must release the basic information in a police reportin a police report

Other Permissive ExceptionsOther Permissive Exceptions

552.104 – Bidding information552.104 – Bidding information Protected as long as the bid is still pendingProtected as long as the bid is still pending

552.105 – Location or Price of Property552.105 – Location or Price of Property Protects appraisals prior to award or Protects appraisals prior to award or

contractcontract 552.107 – Attorney/Client Information552.107 – Attorney/Client Information 552.111 – Agency Memoranda552.111 – Agency Memoranda

Protects work product and the deliberative Protects work product and the deliberative processprocess

Mandatory ExceptionsMandatory ExceptionsConfidential By Law – 552.101Confidential By Law – 552.101

Criminal HistoriesCriminal Histories Juvenile RecordsJuvenile Records Social Security number informationSocial Security number information Grand Jury RecordsGrand Jury Records Driver’s License and personal identification recordsDriver’s License and personal identification records Child Neglect/Abuse InvestigationsChild Neglect/Abuse Investigations Child Welfare and protective services informationChild Welfare and protective services information Medical Records and physician/client communicationsMedical Records and physician/client communications Biometric Identifiers (fingerprints)Biometric Identifiers (fingerprints) Autopsy Photographs/X-RaysAutopsy Photographs/X-Rays Police and Fire fighter personnel filesPolice and Fire fighter personnel files 911 CAD/Tape Address & Telephone information911 CAD/Tape Address & Telephone information Sexual assault victim pseudonymSexual assault victim pseudonym W-2 and W-4 formsW-2 and W-4 forms Americans with Disability Act informationAmericans with Disability Act information

Mandatory ExceptionsMandatory ExceptionsIn the Public Information ActIn the Public Information Act

552.102 – Personnel Information552.102 – Personnel Information If “unwarranted invasion of privacy.”If “unwarranted invasion of privacy.” EXCEPT for employees of Governmental UnitsEXCEPT for employees of Governmental Units

552.110 – Trade Secrets/Commercial 552.110 – Trade Secrets/Commercial InformationInformation

552.115 – Birth/Death Records552.115 – Birth/Death Records 552.117 & 552.1175 – Law Enforcement 552.117 & 552.1175 – Law Enforcement

InformationInformation ie., addresses, telephone numbers, family ie., addresses, telephone numbers, family

information, etc…information, etc… 552.119 – Photograph of Peace Officers552.119 – Photograph of Peace Officers 552.130 – Motor Vehicle Driver’s License552.130 – Motor Vehicle Driver’s License

Mandatory Exceptions in the Mandatory Exceptions in the PIA (cont)PIA (cont)

552.131 – Economic Development 552.131 – Economic Development Information of a governmental bodyInformation of a governmental body

552.132 – Crime Victim Information552.132 – Crime Victim Information 552.1325 – Victim Impact Statements552.1325 – Victim Impact Statements 552.136 – Credit/Debit Card 552.136 – Credit/Debit Card

InformationInformation 552.137 – Private e-mail Addresses552.137 – Private e-mail Addresses 552.142 – Non-Disclosure Orders552.142 – Non-Disclosure Orders 552.147 – Social Security Numbers552.147 – Social Security Numbers

Special Right to Access to Special Right to Access to Confidential Information – Confidential Information –

552.023552.023 A person has a special right to access to A person has a special right to access to

information held by a governmental body information held by a governmental body that relates to that person and that is that relates to that person and that is protected from public disclosure by laws protected from public disclosure by laws intended to protect that person’s privacy intended to protect that person’s privacy interests.interests.

This rule does not prohibit the This rule does not prohibit the governmental body from asserting governmental body from asserting exceptions that are not based on privacyexceptions that are not based on privacy e.g., litigation and law enforcement exceptionse.g., litigation and law enforcement exceptions

Attorney General RequestAttorney General Request552.301552.301

The governmental body must request The governmental body must request a decision from the AG within 10 a decision from the AG within 10 business days of receipt of the written business days of receipt of the written request if they wish to withhold request if they wish to withhold information from public disclosure information from public disclosure unless there has been a previous unless there has been a previous determination from the AG concerning determination from the AG concerning the requested information.the requested information.

Previous DeterminationPrevious Determination(Type One)(Type One)

The requested information is precisely the The requested information is precisely the same information previously submitted to same information previously submitted to the AG, ANDthe AG, AND

The same governmental body is involved The same governmental body is involved in both requests, ANDin both requests, AND

The AG ruled that the information is The AG ruled that the information is excepted from release, ANDexcepted from release, AND

The law, facts, and circumstances have The law, facts, and circumstances have not changed.not changed.

Previous DeterminationPrevious Determination(Type Two)(Type Two)

The requested information falls within a clearly The requested information falls within a clearly delineated category of information on which the delineated category of information on which the AG has ruled, ANDAG has ruled, AND

The previous determination is applicable to the The previous determination is applicable to the particular governmental body which is subject to particular governmental body which is subject to the current request, ANDthe current request, AND

The previous decision concludes that the specific, The previous decision concludes that the specific, clearly delineated category of information is clearly delineated category of information is excepted from disclosure, ANDexcepted from disclosure, AND

The elements of law, fact, and circumstances are The elements of law, fact, and circumstances are the same, ANDthe same, AND

The previous decision explicitly provides that the The previous decision explicitly provides that the governmental body may withhold the information governmental body may withhold the information without again seeking an AG decision.without again seeking an AG decision.

10 Day Deadline10 Day Deadline552.301552.301

Within ten business days of receipt of Within ten business days of receipt of a written request, the governmental a written request, the governmental body must:body must: Provide the AG with a written request to Provide the AG with a written request to

withholdwithhold Including the statutory exceptions assertedIncluding the statutory exceptions asserted

Provide the requestor with:Provide the requestor with: A written statement that an AG request has A written statement that an AG request has

been made, andbeen made, and A copy of the AG request.A copy of the AG request.

15 Day Deadline15 Day Deadline552.301552.301

Within 15 business days of receipt of Within 15 business days of receipt of a written request, the governmental a written request, the governmental body must submit to the AG:body must submit to the AG: Written comments stating the reasons Written comments stating the reasons

why the exceptions applywhy the exceptions apply Send a copy of this to the requesterSend a copy of this to the requester

A copy of the written request for A copy of the written request for informationinformation

A signed statement or evidence as to A signed statement or evidence as to when the request was received, andwhen the request was received, and

A copy of the requested informationA copy of the requested information

Failing to Meet the DeadlinesFailing to Meet the Deadlines552.302552.302

Failure to meet the 10 or 15 year deadline Failure to meet the 10 or 15 year deadline results in a presumption that the results in a presumption that the information is public and must be released.information is public and must be released.

Only a compelling reason will overcome Only a compelling reason will overcome this presumption.this presumption. e.g., the information is confidential by law, ore.g., the information is confidential by law, or Morales v. EllenMorales v. Ellen, 840 S.W.2d 519 (Tex.App. – El , 840 S.W.2d 519 (Tex.App. – El

Paso 1992, writ denied)Paso 1992, writ denied) 1. Information is highly intimate or embarrassing 1. Information is highly intimate or embarrassing

facts objectionable to a reasonable person, ANDfacts objectionable to a reasonable person, AND 2. Information is not of legitimate public concern2. Information is not of legitimate public concern

Civil Enforcement of PIACivil Enforcement of PIA

552.321 - The requestor or the AG can seek 552.321 - The requestor or the AG can seek a writ of mandamus against the a writ of mandamus against the governmental body.governmental body. If by the Requestor – then in the county of the If by the Requestor – then in the county of the

governmental bodygovernmental body If by the AG – Travis CountyIf by the AG – Travis County

552.3215(c) - The AG, district attorney, or 552.3215(c) - The AG, district attorney, or county attorney can seek a declaratory county attorney can seek a declaratory judgment or injunctive relief.judgment or injunctive relief.

552.3215(e) - The requestor may file a 552.3215(e) - The requestor may file a complaint with the district or county complaint with the district or county attorney.attorney.

Requestor May File a Requestor May File a Complaint in Several Places – Complaint in Several Places –

552.3215552.3215 Against a state agency – he must file Against a state agency – he must file

it with the Travis County DA, or the it with the Travis County DA, or the AGAG

Against a district or county attorney – Against a district or county attorney – he may file it with the AGhe may file it with the AG

Against any other governmental Against any other governmental body – he may file it with the DA or body – he may file it with the DA or CA of that countyCA of that county

Requirements of a Requestor Requirements of a Requestor Complaint – 552.3215(e)Complaint – 552.3215(e)

In writing and signed by the complainantIn writing and signed by the complainant State the name of the governmental bodyState the name of the governmental body State the time and place of the violationState the time and place of the violation Describe the violationDescribe the violation

NOTE: the DA or CA must indicate on the NOTE: the DA or CA must indicate on the complaint the date that the complaint complaint the date that the complaint was received. 552.3215(f).was received. 552.3215(f).

Duties of the District or County Duties of the District or County Attorney that Receives a Attorney that Receives a Complaint 552.3215(g)Complaint 552.3215(g)

Before the 31Before the 31stst day after the receipt day after the receipt of the complaint the DA or CA must:of the complaint the DA or CA must: Determine whetherDetermine whether

The alleged violation occurred, ANDThe alleged violation occurred, AND If the DA or CA will bring action against the If the DA or CA will bring action against the

governmental bodygovernmental body Notify the complainant of those Notify the complainant of those

determinationsdeterminations

DA or CA Duties if there is a DA or CA Duties if there is a Conflict of Interest – Conflict of Interest –

552.3215(h)552.3215(h) Before the 31Before the 31stst day after receiving day after receiving

the complaint:the complaint: Inform the complainant of the conflictInform the complainant of the conflict Inform the complainant his right to file a Inform the complainant his right to file a

complaint with the AGcomplaint with the AG A statement of the basis of the conflictA statement of the basis of the conflict Return the complaint to the complainantReturn the complaint to the complainant

Suit to Withhold InformationSuit to Withhold Information

552.324 - A governmental body may file 552.324 - A governmental body may file suit against the AG to contest an AG ruling suit against the AG to contest an AG ruling to release informationto release information

552.324(b) – After the AG has ruled there 552.324(b) – After the AG has ruled there is a 30 day limitation to file the suitis a 30 day limitation to file the suit

552.325(b) – IF there is such a suit, the 552.325(b) – IF there is such a suit, the governmental body must notify the governmental body must notify the requestor of the suitrequestor of the suit The Requestor may intervene. 552.325(a).The Requestor may intervene. 552.325(a). But DO NOT SUE THE REQUESTORBut DO NOT SUE THE REQUESTOR

Criminal PenaltiesCriminal Penalties

Willfully destroying, mutilating, Willfully destroying, mutilating, removing, or altering public removing, or altering public information.information.

A misdemeanor punishable by:A misdemeanor punishable by: Fine – $25 to $4,000Fine – $25 to $4,000 County Jail – three days to three monthsCounty Jail – three days to three months

552.351552.351

Criminal Penalties (cont)Criminal Penalties (cont) Knowingly distributing or misusing Knowingly distributing or misusing

confidential information – 552.352(a-1)confidential information – 552.352(a-1) With criminal negligence:With criminal negligence:

Failing or refusing to give access to, or provide Failing or refusing to give access to, or provide copies of, public informationcopies of, public information

552.353552.353 Misdemeanor punishable by:Misdemeanor punishable by:

Fine – no more than $1,000Fine – no more than $1,000 County Jail – no more than six months, orCounty Jail – no more than six months, or Both.Both.

Open Records TrainingOpen Records Training552.012552.012

Elected/appointed officials and officers Elected/appointed officials and officers for public information must attendfor public information must attend One to two hour training that has been One to two hour training that has been

approved by the AGapproved by the AG Videotape can be viewed online at the AG Videotape can be viewed online at the AG

websitewebsite The AG can also provide CDs or DVDsThe AG can also provide CDs or DVDs AG issues certificates of completionAG issues certificates of completion

Attorney General Contact Attorney General Contact InformationInformation

Website:Website: www.oag.state.tx.uswww.oag.state.tx.us

Open Government Hotline:Open Government Hotline: 877-OPEN TEX [877-673-6839]877-OPEN TEX [877-673-6839]

Cost Questions:Cost Questions: AG Cost Hotline - 512-475-2497AG Cost Hotline - 512-475-2497

Special thank you….Special thank you….

Holly C. LytleHolly C. Lytle

Assistant County AttorneyAssistant County Attorney

El Paso County Attorney’s OfficeEl Paso County Attorney’s Office

Contact InformationContact Information

Grant BrennaGrant Brenna

Assistant District AttorneyAssistant District Attorney

Administration Building, 5Administration Building, 5thth Floor Floor

411 Elm Street, Suite 500411 Elm Street, Suite 500

Dallas, Texas 75202-3384Dallas, Texas 75202-3384

(214) 653-7358(214) 653-7358

gbrenna@dallascounty.orggbrenna@dallascounty.org

The end.The end.

Thank you.Thank you.