Since 1973, the Texas Public Information Act (“Act”) has provided citizens with access to information maintained by governmental bodies. Prior to the Act, citizens were “kept in the dark” and government officials were able to work behind the scenes without any transparency to the public. The Act represents “the American constitutional form of representative government” and “the principle that government is the servant and not the master of the people.” Under the Act, most information in the possession of a governmental body should be generally accessible to the public. If a governmental body wishes to withhold information requested by a member of the public, it must apply one of the exceptions to public disclosure found in the Act.
The Texas Government Code, Chapter 552, contains the relevant sections of law which collectively embody the Act. All governmental bodies subject to the Act are required to comply with Act’s training requirements. Elected and appointed officials must complete a training course or designate a public information coordinator to attend training in their place, so long as the designated coordinator will be the person responsible for processing public information requests.
The Texas Public Information Act applies to information of every Texas governmental body and the term “governmental body” is defined in the Act to include most branches of state government, commissioners courts, municipal governing bodies, school district boards of trustees, and other entities supported by public funds, including certain private entities. Both governmental bodies and private entities maintain and create public information subject to the Act.
When public information exists in the possession of the governmental body, the public has the right to request the information unless it is excepted from disclosure. Information in practically any medium is applicable to the Act, including but not limited to documents, emails, text messages, photographs, and recordings. The Act also applies to information on a privately owned device of a current or former governmental body employee or official. Despite the assumption that the Act applies to physical evidence, the prevailing view is that tangible items such as a tool or a key are not public information, even though they may be used to produce public information.
The Act requires a governmental body to display a sign, in the form required by the attorney general, that contains basic information about (1.) the rights of a requestor, (2.) the responsibilities of a governmental body, and (3.) the procedures for inspecting or obtaining a copy of public information under the Act. The sign is to be displayed at one or more places in the administrative offices of the governmental body where it is plainly visible. Requests submitted in accordance with the Act require immediate attention and the Act contains specific procedures for the governmental body to follow.
A governmental body that receives a verbal request for information may require the requestor to submit that request in writing because the governmental body’s duty under the Act to request a ruling from the attorney general arises only after it receives a written request. A properly submitted request for public information (also known as an open records request) pursuant to the Act requires a written request be submitted to the governmental body’s officer for public information or person designated by that officer. A governmental body will make a good faith effort to relate a request to information that it holds. However, a governmental body may ask a requestor to clarify their request for information if the request is unclear.
It is implicit in several provisions of the Act that it applies only to information already in existence. The Act does not require a governmental body to prepare new information in response to a request. Furthermore, the Act does not require a governmental body to inform a requester if the requested information comes into existence after the request has been made. The Act does not require a governmental body to prepare answers to questions or to do legal research. If the information requested is not readily available or it does not exist, the governmental body does not need to create information in response to the request. The Act is fair because it allows access to readily available information without imposing excess duties on the governmental body to create new information upon request. However, the Act prohibits a governmental body from inquiring into a requestor’s reasons or motives for requesting information. A governmental body must treat all requests for information uniformly and equally.
A governmental body must act promptly upon receiving a request for information. If the information must be withheld, the Act establishes a deadline of ten business days for the governmental body to request a decision from the attorney general and state the exceptions that apply. Also within ten business days, the governmental body must inform the requester that it is seeking an attorney general decision as to whether the information may be withheld. Next, the Act establishes a deadline of fifteen business days for the governmental body to provide arguments or comments regarding why the information should be excepted from public disclosure.
The Act provides a list of exceptions applicable to various documents and situations in which information may be withheld from public disclosure. A frequently used exception applies to information that is considered to be confidential by law, either constitutional, statutory, or by judicial decision. For example, the Family Educational Rights and Privacy Act (“FERPA”) protects student records from public disclosure and although FERPA is not listed within the Act, the protection afforded by FERPA will apply to an open records request. Most laws pertaining to confidentiality of information will be applicable under the Act. Another example is protected health information, as defined by the Health and Safety Code. Protected health information is defined as “any information that reflects that an individual received health care from a covered entity;” such information is excluded from the requirements of the Act.
The majority of the exceptions to public disclosure are found in the Texas Government Code sections 552.101 through 552.160. Each exception provides a unique policy reason for withholding information and a governmental body wishing to withhold information must apply the exception by providing comments or argument to the attorney general. The attorney general will consider their comment or argument, make a decision and issue an opinion. Ultimately, the attorney general’s opinion will determine whether or not the information shall be released to the requestor.
