Transcript Slide 1

Public Information Act
Chapter 52 – Texas Government
Code
Region 5 Clerk’s Conference 2011
Grant Brenna
Assistant Criminal District Attorney
Dallas County
What is “Public Information?”
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Public Information means information that is
collected, assembled, or maintained by or for a
governmental body under a law or ordinance or
in connection with the transaction of official
business. 552.002(a)
“Public Information” may be in a book, paper,
letter, document, printout, photograph, film,
tape, microfilm, video or audio recording, map,
computer, etc…, and etc…
Examples of Public Information
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Information on the computer
Reports
Handwritten Notes
Emails/Instant Messages
Photographs/Maps
Video or Audio Tapes (Digital or Analogue)
Documentary Evidence
NOT Covered by the PIA
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Litigation Discovery Requests (552.0055)
Subpoenas (552.0055)
Inmate Requests (552.028)
Requests for Answers to Questions or to
Create Information
Continuing Requests
Judicial Records (552.003 &552.0035)
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See also Rule of Judicial Administration 12
Non-Documentary Tangible Items
Judicial Records
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Records maintained by District Clerk on
behalf of the judiciary are not covered by
the PIA (ORD 671)
Records maintained by the District
Attorney on behalf of the Grand Jury are
not covered by the PIA (ORD 513)
Records of the Justice of the Peace are not
covered by the PIA (ORD 25)
Judicial Records (cont)
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Court case records are governed by statutory
and common law right to access and are
generally considered accessible by the public.
Other judicial records are governed by Rule 12
of the Rules of Judicial Administration
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Similar rules as the PIA except there is no
requirement to request an AG ruling
There are additional exceptions to release records
and rights to deny a request if it impedes operations
General Rule
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Public Information is available to the public at a
minimum during the normal business hours of
the governmental body. (552.021)
The governmental body must provide access or
copies of requested documents promptly.
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Promptly means as soon as possible
Within a reasonable time
Without delay
See 552.221(a) and (ORD 664)
Posting of a Sign (552.205)
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The Public Information Officer must post a sign
containing basic information about the rights,
responsibilities and procedures for obtaining
information.
The sign must be plainly visible to the public and
employees.
The Attorney General has designed a sign and
prescribed a size, shape, and content.
PIA Request Format
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May be written or verbal
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But only a written request triggers the PIA
timelines
Email and Fax count as written requests
It does not need to cite the PIA.
It must include the name, address, and
phone number of the requester.
It must adequately describe the records
being requested.
Permissible Inquiries to the
Requestor (552.222)
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Identification questions
Clarification questions concerning what is
being requested
Questions concerning cost and the
requesters willingness to pay costs
Questions concerning where to send
records and the format of the records
Cannot ask “Why?” they want the records
Cost Issues
Subchapter F - 552.261 through 552.275
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50 or fewer pages of paper records at
cents per page unless:
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The documents are in two or more separate
buildings or a remote facility
May charge for labor and overhead if:
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Over 50 pages
Electronic Information
Contained in separate or remote facilities
Cost Issues (cont)
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Charges accrue at the time the governmental
body advises the requestor that the records are
ready. 552.261
If over $40, then need to send a cost estimate.
552.2615(a)
May require a deposit from the requester if:
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Cost exceeds $100 and government has more than 15
employees
Exceeds $50 if under 16 employees
There is an unpaid balance from previous requests
See 552.263
Access v. Copies
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Cannot charge for access to records. 552.271(a)
Exceptions (552.271 and 552.272):
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Confidential information must be redacted
Documents are older than five years or completely fill
six or more archival boxes and it takes more than five
hours to make available.
If under 16 employees AND the documents are older
than three years old or completely fill more than three
or more archival boxes and it takes two hours to
make available
Electronic information that requires computer
manipulation or programming.
Offensive Requestors (552.275)
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The governmental body may establish a reasonable
limit of time per requestor of not less than 36 hours
during a 12 month period. 552.275(a).
Must track and give notice of time used.
552.275(d).
Once the limit is exceeded, then must give a cost
estimate. 552.275(e)
The requestor is then required to commit to pay
costs.
Exceptions to the Release of
Records
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There are exceptions where the
governmental body is permitted or
required to withhold certain information.
But Remember:
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The governmental body cannot refuse to
release documents.
It can only request an Attorney General
opinion.
“Super” Public Information
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Must be released unless confidential by
law. See 552.022.
Examples:
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Completed reports, audits, evaluations, or
investigations (except for 552.108 material)
Name, sex, ethnicity, salary, title and dates of
employment of employees
Information relating to the receipt or
expenditure of funds
Super Public Information (cont)
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Name of officials and voting records
Description of organization, rules, policies,
and procedures
Staff manuals and instructions that affect
the public.
Final opinions in adjudicated cases
Public court records
Settlement agreements
Permissive Exception – Litigation
552.103
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Information related to civil or criminal litigation
that is either pending or reasonably anticipated
where the state or a political subdivision is a
party is excepted from release.
The state is considered to be a party to litigation
of a criminal nature until the applicable statute
of limitations has expired or until the defendant
has exhausted all appellate and post-conviction
remedies in state and federal court.
Permissive Exception
Law Enforcement – 552.108
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Includes (ie., NOT public):
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Criminal investigations or prosecutions that
resulted in something other than conviction or
deferred adjudications
All attorney work product
All pending criminal investigations or
prosecutions
BUT:
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You must release the basic information in a
police report
Other Permissive Exceptions
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552.104 – Bidding information
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552.105 – Location or Price of Property
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Protected as long as the bid is still pending
Protects appraisals prior to award or contract
552.107 – Attorney/Client Information
552.111 – Agency Memoranda
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Protects work product and the deliberative
process
Mandatory Exceptions
Confidential By Law – 552.101
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Criminal Histories
Juvenile Records
Social Security number information
Grand Jury Records
Driver’s License and personal identification records
Child Neglect/Abuse Investigations
Child Welfare and protective services information
Medical Records and physician/client communications
Biometric Identifiers (fingerprints)
Autopsy Photographs/X-Rays
Police and Fire fighter personnel files
911 CAD/Tape Address & Telephone information
Sexual assault victim pseudonym
W-2 and W-4 forms
Americans with Disability Act information
Mandatory Exceptions
In the Public Information Act
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552.102 – Personnel Information
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552.110 – Trade Secrets/Commercial
Information
552.115 – Birth/Death Records
552.117 & 552.1175 – Law Enforcement
Information
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If “unwarranted invasion of privacy.”
EXCEPT for employees of Governmental Units
ie., addresses, telephone numbers, family
information, etc…
552.119 – Photograph of Peace Officers
552.130 – Motor Vehicle Driver’s License
Mandatory Exceptions in the PIA
(cont)
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552.131 – Economic Development
Information of a governmental body
552.132 – Crime Victim Information
552.1325 – Victim Impact Statements
552.136 – Credit/Debit Card Information
552.137 – Private e-mail Addresses
552.142 – Non-Disclosure Orders
552.147 – Social Security Numbers
Special Right to Access to
Confidential Information – 552.023
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A person has a special right to access to
information held by a governmental body that
relates to that person and that is protected from
public disclosure by laws intended to protect
that person’s privacy interests.
This rule does not prohibit the governmental
body from asserting exceptions that are not
based on privacy
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e.g., litigation and law enforcement exceptions
Attorney General Request
552.301
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The governmental body must request a
decision from the AG within 10 business
days of receipt of the written request if
they wish to withhold information from
public disclosure unless there has been a
previous determination from the AG
concerning the requested information.
Previous Determination
(Type One)
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The requested information is precisely the same
information previously submitted to the AG, AND
The same governmental body is involved in both
requests, AND
The AG ruled that the information is excepted
from release, AND
The law, facts, and circumstances have not
changed.
Previous Determination
(Type Two)
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The requested information falls within a clearly
delineated category of information on which the AG has
ruled, AND
The previous determination is applicable to the particular
governmental body which is subject to the current
request, AND
The previous decision concludes that the specific, clearly
delineated category of information is excepted from
disclosure, AND
The elements of law, fact, and circumstances are the
same, AND
The previous decision explicitly provides that the
governmental body may withhold the information
without again seeking an AG decision.
10 Day Deadline
552.301
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Within ten business days of receipt of a
written request, the governmental body
must:
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Provide the AG with a written request to
withhold
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Including the statutory exceptions asserted
Provide the requestor with:
A written statement that an AG request has been
made, and
 A copy of the AG request.
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15 Day Deadline
552.301
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Within 15 business days of receipt of a
written request, the governmental body
must submit to the AG:
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Written comments stating the reasons why
the exceptions apply
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Send a copy of this to the requester
A copy of the written request for information
A signed statement or evidence as to when
the request was received, and
A copy of the requested information
Failing to Meet the Deadlines
552.302
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Failure to meet the 10 or 15 year deadline
results in a presumption that the information is
public and must be released.
Only a compelling reason will overcome this
presumption.
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e.g., the information is confidential by law, or
Morales v. Ellen, 840 S.W.2d 519 (Tex.App. – El Paso
1992, writ denied)
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1. Information is highly intimate or embarrassing facts
objectionable to a reasonable person, AND
2. Information is not of legitimate public concern
Civil Enforcement of PIA
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552.321 - The requestor or the AG can seek a
writ of mandamus against the governmental
body.
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If by the Requestor – then in the county of the
governmental body
If by the AG – Travis County
552.3215(c) - The AG, district attorney, or
county attorney can seek a declaratory
judgment or injunctive relief.
552.3215(e) - The requestor may file a
complaint with the district or county attorney.
Requestor May File a Complaint in
Several Places – 552.3215
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Against a state agency – he must file it
with the Travis County DA, or the AG
Against a district or county attorney – he
may file it with the AG
Against any other governmental body – he
may file it with the DA or CA of that
county
Requirements of a Requestor
Complaint – 552.3215(e)
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In writing and signed by the complainant
State the name of the governmental body
State the time and place of the violation
Describe the violation
NOTE: the DA or CA must indicate on the
complaint the date that the complaint was
received. 552.3215(f).
Duties of the District or County
Attorney that Receives a Complaint
552.3215(g)
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Before the 31st day after the receipt of the
complaint the DA or CA must:
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Determine whether
The alleged violation occurred, AND
 If the DA or CA will bring action against the
governmental body
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Notify the complainant of those
determinations
DA or CA Duties if there is a
Conflict of Interest – 552.3215(h)
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Before the 31st day after receiving the
complaint:
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Inform the complainant of the conflict
Inform the complainant his right to file a
complaint with the AG
A statement of the basis of the conflict
Return the complaint to the complainant
Suit to Withhold Information
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552.324 - A governmental body may file suit
against the AG to contest an AG ruling to release
information
552.324(b) – After the AG has ruled there is a
30 day limitation to file the suit
552.325(b) – IF there is such a suit, the
governmental body must notify the requestor of
the suit
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The Requestor may intervene. 552.325(a).
But DO NOT SUE THE REQUESTOR
Criminal Penalties
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Willfully destroying, mutilating, removing,
or altering public information.
A misdemeanor punishable by:
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Fine – $25 to $4,000
County Jail – three days to three months
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552.351
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Criminal Penalties (cont)
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Knowingly distributing or misusing confidential
information – 552.352(a-1)
With criminal negligence:
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Failing or refusing to give access to, or provide copies
of, public information
552.353
Misdemeanor punishable by:
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Fine – no more than $1,000
County Jail – no more than six months, or
Both.
Open Records Training
552.012
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Elected/appointed officials and officers for
public information must attend
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One to two hour training that has been
approved by the AG
Videotape can be viewed online at the AG
website
The AG can also provide CDs or DVDs
AG issues certificates of completion
Attorney General Contact
Information
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Website:
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Open Government Hotline:
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www.oag.state.tx.us
877-OPEN TEX [877-673-6839]
Cost Questions:
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AG Cost Hotline - 512-475-2497
Special thank you….
Holly C. Lytle
Assistant County Attorney
El Paso County Attorney’s Office
Contact Information
Grant Brenna
Assistant District Attorney
Administration Building, 5th Floor
411 Elm Street, Suite 500
Dallas, Texas 75202-3384
(214) 653-7358
[email protected]
The end.
Thank you.