TPIA Exceptions to Disclosure & The Attorney General Process

Presenter: Carol Longoria Public Information Coordinator U. T. System Office of General Counsel © U. T. System Office of General Counsel

Goals and Agenda:

 Key points about TPIA from the OGC perspective  Discussion of Exceptions likely applicable to University research and Intellectual Property

Information Not Public Fwd to OGC OGC Briefs AG By 10 th Working Day AG Issues Ruling By 45 th Working Day OGC Receives & Returns Ruling to Campus Requestor Submits Inquiry Campus Determines Campus Receives Ruling & Complies Info. Is Public Requestor Receives Response

What OGC Does:

 Assure campus compliance with TPIA    Ask questions Double check processes Confirm that cases to AG are procedurally compliant so that we can…  Protect University’s interests and IP    Review confidential information Draft all legal briefs to make arguments against disclosure Obtain best case result for campus

When OGC Can’t Help:

     Request seeks only public information Request is not valid Missed deadline for a discretionary exception Procedural non-compliance Legislative request

Useful Information:

   WHEN and HOW the request was received WHAT is being requested WHERE the material can be found

“Valid” Requests Comply With the Law and Trigger the Act:

 A request must be in writing and sent to the PIO or their designee.

 Requests can be hand-delivered, faxed, mailed, or emailed directly to the PIO or his designee.  They need not mention TPIA specifically.

Real Time Compliance

 Requests must be handled in good faith and within a “reasonable” time.

 “Prompt” production does not necessarily mean 10 business days from the request date.

 For OGC purposes, the 10 business day deadline more accurately refers to the time in which we must notify the AG of our request for an opinion and/or notify the requestor as to the status of their inquiry.

A Word on Personal Communications

    Incidental use of resources Non-business calendar entries Private email accounts Phone records of personal calls

Whether or not this type of information is available under the Act depends on its connection to “official business” not on the medium in which it is stored or its physical location.

When Can The Campus Skip the AG?

 When no exceptions are claimed or none apply  When the requestor agrees to exclude confidential information  Express permission in statute  When an existing ruling applies to the documents at issue or there is an applicable Previous Determination

Exceptions & Tests

      Attorney/Client (§552.107, Gov’t. Code) Donor Identities (§552.1235, Gov’t. Code) Intellectual Property (§51.914, Educ. Code) Agency Memoranda (§552.111, Gov’t. Code) Competition/Bidding (§552.104, Gov’t. Code) Third Party (§552.101, 552.110, Gov’t. Code)

Attorney/Client—TEST

      Communicated Created to render legal services Subject matter pertains to the performance of employment duties by each individual Kept confidential, not intended for disclosure Fully identify & explain roles of all included in communication Protects documents in their entirety

    Section 552.1235, Texas Govt. Code Mandatory-University cannot waive Must release donation amount or value Request cannot identify donor on its face

Intellectual Property--TEST

     Education Code applies to IP information in our possession May also protect 3rd party collaborative research Product need not be patentable, or capable of being registered under copyright or trademark laws No test for demonstrating that information is “research”-reliance on University’s assertion Generally a piecemeal protection

Inter-agency Memoranda- §552.111—Test

    Exchanges within University only Advice, recommendations and opinions on broad-based policy decisions Drafts protected in their entirety only if final will be released at some point Generally a piecemeal exception

Intra-agency Memoranda- §552.111—TEST

     Communications shared outside agency High burden of proof to demonstrate “privity” of interest- little analysis exists OGC secured exception—OR2006-06185 University’s exception to assert; 3 rd support position party can Drafts fully protected if to be released, generally a piecemeal exception

Competitive Bidding—TEST

    Temporary exception, easy to secure Protects all documents associated with bidding process— timing issue, not content based Have protected large research project bids    Los Alamos National Lab UTPB High Temperature Teaching and Test Reactor (“HT3R”) FutureGen AG has not yet recognized grant bidding as “competitive”

Protecting Market Interests

 Must prove University is a market competitor – permanent exception  Protects our ability to market technology or research, including inventions, copyrighted, and patented material. (Non-temporary §552.104)  Higher burden of proof  Tends to parallel with IP protection in Education Code

Third Party Exceptions

 “Other law”   Copyright Patents  IP (§552.110, Texas Gov’t. Code)   Trade secrets Proprietary

TPIA Questions— UT System Contact

 Office of General Counsel Carol Longoria –Public Information Coordinator PH: (512) 499-4521 FX: (512) 499-4523

Email:

[email protected]