Public Information Act Chapter 52 – Texas Government Code Region 5 Clerks Conference 2011 Grant Brenna Assistant Criminal District Attorney Dallas County

What is Public Information? 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 (a) 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 (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… 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 Information on the computer Information on the computer Reports Reports Handwritten Notes Handwritten Notes s/Instant Messages s/Instant Messages Photographs/Maps Photographs/Maps Video or Audio Tapes (Digital or Analogue) Video or Audio Tapes (Digital or Analogue) Documentary Evidence Documentary Evidence

NOT Covered by the PIA Litigation Discovery Requests ( ) Litigation Discovery Requests ( ) Subpoenas ( ) Subpoenas ( ) Inmate Requests ( ) Inmate Requests ( ) Requests for Answers to Questions or to Create Information Requests for Answers to Questions or to Create Information Continuing Requests Continuing Requests Judicial Records ( & ) Judicial Records ( & ) See also Rule of Judicial Administration 12 See also Rule of Judicial Administration 12 Non-Documentary Tangible Items Non-Documentary Tangible Items

Judicial Records Records maintained by District Clerk on behalf of the judiciary are not covered by the PIA (ORD 671) 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 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) Records of the Justice of the Peace are not covered by the PIA (ORD 25)

Judicial Records (cont) Court case records are governed by statutory and common law right to access and are generally considered accessible by the public. 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 Other judicial records are governed by Rule 12 of the Rules of Judicial Administration Similar rules as the PIA except there is no requirement to request an AG ruling 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 There are additional exceptions to release records and rights to deny a request if it impedes operations

General Rule Public Information is available to the public at a minimum during the normal business hours of the governmental body. ( ) Public Information is available to the public at a minimum during the normal business hours of the governmental body. ( ) The governmental body must provide access or copies of requested documents promptly. The governmental body must provide access or copies of requested documents promptly. Promptly means as soon as possible Promptly means as soon as possible Within a reasonable time Within a reasonable time Without delay Without delay See (a) and (ORD 664) See (a) and (ORD 664)

Posting of a Sign ( ) The Public Information Officer must post a sign containing basic information about the rights, responsibilities and procedures for obtaining information. 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 sign must be plainly visible to the public and employees. The Attorney General has designed a sign and prescribed a size, shape, and content. The Attorney General has designed a sign and prescribed a size, shape, and content.

PIA Request Format May be written or verbal May be written or verbal But only a written request triggers the PIA timelines But only a written request triggers the PIA timelines and Fax count as written requests 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, and phone number of the requester. It must include the name, address, and phone number of the requester. It must adequately describe the records being requested. It must adequately describe the records being requested.

Permissible Inquiries to the Requestor ( ) Identification questions Identification questions Clarification questions concerning what is being requested Clarification questions concerning what is being requested Questions concerning cost and the requesters willingness to pay costs Questions concerning cost and the requesters willingness to pay costs Questions concerning where to send records and the format of the records Questions concerning where to send records and the format of the records Cannot ask Why? they want the records Cannot ask Why? they want the records

Cost Issues Subchapter F through or fewer pages of paper records at cents per page unless: 50 or fewer pages of paper records at cents per page unless: The documents are in two or more separate buildings or a remote facility The documents are in two or more separate buildings or a remote facility May charge for labor and overhead if: May charge for labor and overhead if: Over 50 pages Over 50 pages Electronic Information Electronic Information Contained in separate or remote facilities Contained in separate or remote facilities

Cost Issues (cont) Charges accrue at the time the governmental body advises the requestor that the records are ready Charges accrue at the time the governmental body advises the requestor that the records are ready If over $40, then need to send a cost estimate (a) If over $40, then need to send a cost estimate (a) May require a deposit from the requester if: May require a deposit from the requester if: Cost exceeds $100 and government has more than 15 employees Cost exceeds $100 and government has more than 15 employees Exceeds $50 if under 16 employees Exceeds $50 if under 16 employees There is an unpaid balance from previous requests There is an unpaid balance from previous requests See See

Access v. Copies Cannot charge for access to records (a) Cannot charge for access to records (a) Exceptions ( and ): Exceptions ( and ): Confidential information must be redacted 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. 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 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. Electronic information that requires computer manipulation or programming.

Offensive Requestors ( ) The governmental body may establish a reasonable limit of time per requestor of not less than 36 hours during a 12 month period (a). The governmental body may establish a reasonable limit of time per requestor of not less than 36 hours during a 12 month period (a). Must track and give notice of time used (d). Must track and give notice of time used (d). Once the limit is exceeded, then must give a cost estimate (e) Once the limit is exceeded, then must give a cost estimate (e) The requestor is then required to commit to pay costs. The requestor is then required to commit to pay costs.

Exceptions to the Release of Records There are exceptions where the governmental body is permitted or required to withhold certain information. There are exceptions where the governmental body is permitted or required to withhold certain information. But Remember: But Remember: The governmental body cannot refuse to release documents. The governmental body cannot refuse to release documents. It can only request an Attorney General opinion. It can only request an Attorney General opinion.

Super Public Information Must be released unless confidential by law. See Must be released unless confidential by law. See Examples: Examples: Completed reports, audits, evaluations, or investigations (except for material) Completed reports, audits, evaluations, or investigations (except for material) Name, sex, ethnicity, salary, title and dates of employment of employees Name, sex, ethnicity, salary, title and dates of employment of employees Information relating to the receipt or expenditure of funds Information relating to the receipt or expenditure of funds

Super Public Information (cont) Name of officials and voting records Name of officials and voting records Description of organization, rules, policies, and procedures Description of organization, rules, policies, and procedures Staff manuals and instructions that affect the public. Staff manuals and instructions that affect the public. Final opinions in adjudicated cases Final opinions in adjudicated cases Public court records Public court records Settlement agreements Settlement agreements

Permissive Exception – Litigation 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. 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. 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 – Includes (ie., NOT public): Includes (ie., NOT public): Criminal investigations or prosecutions that resulted in something other than conviction or deferred adjudications Criminal investigations or prosecutions that resulted in something other than conviction or deferred adjudications All attorney work product All attorney work product All pending criminal investigations or prosecutions All pending criminal investigations or prosecutions BUT: BUT: You must release the basic information in a police report You must release the basic information in a police report

Other Permissive Exceptions – Bidding information – Bidding information Protected as long as the bid is still pending Protected as long as the bid is still pending – Location or Price of Property – Location or Price of Property Protects appraisals prior to award or contract Protects appraisals prior to award or contract – Attorney/Client Information – Attorney/Client Information – Agency Memoranda – Agency Memoranda Protects work product and the deliberative process Protects work product and the deliberative process

Mandatory Exceptions Confidential By Law – Criminal Histories Criminal Histories Juvenile Records Juvenile Records Social Security number information Social Security number information Grand Jury Records Grand Jury Records Drivers License and personal identification records Drivers License and personal identification records Child Neglect/Abuse Investigations Child Neglect/Abuse Investigations Child Welfare and protective services information Child Welfare and protective services information Medical Records and physician/client communications Medical Records and physician/client communications Biometric Identifiers (fingerprints) Biometric Identifiers (fingerprints) Autopsy Photographs/X-Rays Autopsy Photographs/X-Rays Police and Fire fighter personnel files Police and Fire fighter personnel files 911 CAD/Tape Address & Telephone information 911 CAD/Tape Address & Telephone information Sexual assault victim pseudonym Sexual assault victim pseudonym W-2 and W-4 forms W-2 and W-4 forms Americans with Disability Act information Americans with Disability Act information

Mandatory Exceptions In the Public Information Act – Personnel Information – Personnel Information If unwarranted invasion of privacy. If unwarranted invasion of privacy. EXCEPT for employees of Governmental Units EXCEPT for employees of Governmental Units – Trade Secrets/Commercial Information – Trade Secrets/Commercial Information – Birth/Death Records – Birth/Death Records & – Law Enforcement Information & – Law Enforcement Information ie., addresses, telephone numbers, family information, etc… ie., addresses, telephone numbers, family information, etc… – Photograph of Peace Officers – Photograph of Peace Officers – Motor Vehicle Drivers License – Motor Vehicle Drivers License

Mandatory Exceptions in the PIA (cont) – Economic Development Information of a governmental body – Economic Development Information of a governmental body – Crime Victim Information – Crime Victim Information – Victim Impact Statements – Victim Impact Statements – Credit/Debit Card Information – Credit/Debit Card Information – Private Addresses – Private Addresses – Non-Disclosure Orders – Non-Disclosure Orders – Social Security Numbers – Social Security Numbers

Special Right to Access to Confidential Information – 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 persons privacy interests. 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 persons privacy interests. This rule does not prohibit the governmental body from asserting exceptions that are not based on privacy This rule does not prohibit the governmental body from asserting exceptions that are not based on privacy e.g., litigation and law enforcement exceptions e.g., litigation and law enforcement exceptions

Attorney General Request 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. 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) The requested information is precisely the same information previously submitted to the AG, AND 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 same governmental body is involved in both requests, AND The AG ruled that the information is excepted from release, AND The AG ruled that the information is excepted from release, AND The law, facts, and circumstances have not changed. The law, facts, and circumstances have not changed.

Previous Determination (Type Two) The requested information falls within a clearly delineated category of information on which the AG has ruled, AND 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 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 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 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. The previous decision explicitly provides that the governmental body may withhold the information without again seeking an AG decision.

10 Day Deadline Within ten business days of receipt of a written request, the governmental body must: Within ten business days of receipt of a written request, the governmental body must: Provide the AG with a written request to withhold Provide the AG with a written request to withhold Including the statutory exceptions asserted Including the statutory exceptions asserted Provide the requestor with: Provide the requestor with: A written statement that an AG request has been made, and A written statement that an AG request has been made, and A copy of the AG request. A copy of the AG request.

15 Day Deadline Within 15 business days of receipt of a written request, the governmental body must submit to the AG: Within 15 business days of receipt of a written request, the governmental body must submit to the AG: Written comments stating the reasons why the exceptions apply Written comments stating the reasons why the exceptions apply Send a copy of this to the requester Send a copy of this to the requester A copy of the written request for information A copy of the written request for information A signed statement or evidence as to when the request was received, and A signed statement or evidence as to when the request was received, and A copy of the requested information A copy of the requested information

Failing to Meet the Deadlines Failure to meet the 10 or 15 year deadline results in a presumption that the information is public and must be released. 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. Only a compelling reason will overcome this presumption. e.g., the information is confidential by law, or e.g., the information is confidential by law, or Morales v. Ellen, 840 S.W.2d 519 (Tex.App. – El Paso 1992, writ denied) Morales v. Ellen, 840 S.W.2d 519 (Tex.App. – El Paso 1992, writ denied) 1. Information is highly intimate or embarrassing facts objectionable to a reasonable person, AND 1. Information is highly intimate or embarrassing facts objectionable to a reasonable person, AND 2. Information is not of legitimate public concern 2. Information is not of legitimate public concern

Civil Enforcement of PIA The requestor or the AG can seek a writ of mandamus against the governmental body The requestor or the AG can seek a writ of mandamus against the governmental body. If by the Requestor – then in the county of the governmental body If by the Requestor – then in the county of the governmental body If by the AG – Travis County If by the AG – Travis County (c) - The AG, district attorney, or county attorney can seek a declaratory judgment or injunctive relief (c) - The AG, district attorney, or county attorney can seek a declaratory judgment or injunctive relief (e) - The requestor may file a complaint with the district or county attorney (e) - The requestor may file a complaint with the district or county attorney.

Requestor May File a Complaint in Several Places – Against a state agency – he must file it with the Travis County DA, or the AG 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 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 Against any other governmental body – he may file it with the DA or CA of that county

Requirements of a Requestor Complaint – (e) In writing and signed by the complainant In writing and signed by the complainant State the name of the governmental body State the name of the governmental body State the time and place of the violation State the time and place of the violation Describe the violation Describe the violation NOTE: the DA or CA must indicate on the complaint the date that the complaint was received (f). NOTE: the DA or CA must indicate on the complaint the date that the complaint was received (f).

Duties of the District or County Attorney that Receives a Complaint (g) Before the 31 st day after the receipt of the complaint the DA or CA must: Before the 31 st day after the receipt of the complaint the DA or CA must: Determine whether Determine whether The alleged violation occurred, AND The alleged violation occurred, AND If the DA or CA will bring action against the governmental body If the DA or CA will bring action against the governmental body Notify the complainant of those determinations Notify the complainant of those determinations

DA or CA Duties if there is a Conflict of Interest – (h) Before the 31 st day after receiving the complaint: Before the 31 st day after receiving the complaint: Inform the complainant of the conflict Inform the complainant of the conflict Inform the complainant his right to file a complaint with the AG Inform the complainant his right to file a complaint with the AG A statement of the basis of the conflict A statement of the basis of the conflict Return the complaint to the complainant Return the complaint to the complainant

Suit to Withhold Information A governmental body may file suit against the AG to contest an AG ruling to release information A governmental body may file suit against the AG to contest an AG ruling to release information (b) – After the AG has ruled there is a 30 day limitation to file the suit (b) – After the AG has ruled there is a 30 day limitation to file the suit (b) – IF there is such a suit, the governmental body must notify the requestor of the suit (b) – IF there is such a suit, the governmental body must notify the requestor of the suit The Requestor may intervene (a). The Requestor may intervene (a). But DO NOT SUE THE REQUESTOR But DO NOT SUE THE REQUESTOR

Criminal Penalties Willfully destroying, mutilating, removing, or altering public information. Willfully destroying, mutilating, removing, or altering public information. A misdemeanor punishable by: A misdemeanor punishable by: Fine – $25 to $4,000 Fine – $25 to $4,000 County Jail – three days to three months County Jail – three days to three months

Criminal Penalties (cont) Knowingly distributing or misusing confidential information – (a-1) Knowingly distributing or misusing confidential information – (a-1) With criminal negligence: With criminal negligence: Failing or refusing to give access to, or provide copies of, public information Failing or refusing to give access to, or provide copies of, public information Misdemeanor punishable by: Misdemeanor punishable by: Fine – no more than $1,000 Fine – no more than $1,000 County Jail – no more than six months, or County Jail – no more than six months, or Both. Both.

Open Records Training Elected/appointed officials and officers for public information must attend Elected/appointed officials and officers for public information must attend One to two hour training that has been approved by the AG One to two hour training that has been approved by the AG Videotape can be viewed online at the AG website Videotape can be viewed online at the AG website The AG can also provide CDs or DVDs The AG can also provide CDs or DVDs AG issues certificates of completion AG issues certificates of completion

Attorney General Contact Information Website: Website: Open Government Hotline: Open Government Hotline: 877-OPEN TEX [ ] 877-OPEN TEX [ ] Cost Questions: Cost Questions: AG Cost Hotline AG Cost Hotline

Special thank you…. Holly C. Lytle Assistant County Attorney El Paso County Attorneys Office

Contact Information Grant Brenna Assistant District Attorney Administration Building, 5 th Floor 411 Elm Street, Suite 500 Dallas, Texas (214)

The end. Thank you.