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1 THE OFFICE OF THE ATTORNEY GENERAL OF TEXAS PUBLIC INFORMATION ACT Handbook 2018

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3 Dear Fellow Texans: As the Texas Constitution states, “All political powe r is inherent in the pe ople,” and that means a e people, not the other way around free government should work for th . One of my priorities when I became Texas Attorney General in 2015 was to encour age open government – and to enforce our laws that mandate it when necessary. The Texas P ublic Information Act se ts requirements for the ability of citizens to access information on action taken by governmental bodies. Such transparency r government wo rks, and, when lete understanding of how thei provides Texans with a more comp necessary, provides them an opportunity to hold their public officials accountable. ide will help both public Open government is vital to a free and informed society, and this updated gu officials and the people they serve understand and co mply with the Texas Public Information Act. You files/og/publicinfo_hb.pdf . can view or download the handbook by visiting www.texasattorneygeneral.gov/ What’s more, my office’s Open Go vernment Hotline is available to answer any questions about open government in Texas. The toll-free nu mber is 877-OPEN TEX (877-673-6839). Texans have a right to know how their government is spending their tax dollars and exercising the g are fundamental principles sparency and open decision-makin powers granted by the people. Tran n Act, and they are essential to ensuring continued trust and of the Texas Public Informatio confidence in officials and our government. Best regards, Ken Paxton Attorney General of Texas • ( 5 1 2 ) 4 6 3 - 2 1 0 0 • www.texasattor neygeneral.go v Post Of fice Box 12548, Austin, Texas 7 8 7 1 1 - 2 5 4 8

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5 T ABLE OF C ONTENTS H P UBLIC I NFORMATION A CT P ANDBOOK ... I REFACE TO THE A O NE : H OW THE P UBLIC I NFORMATION P CT W ORKS ... 1 ART A VERVIEW ... .. 1 I. O Historical B ackground ... 1 A. tructio n ... 1 B. Policy; Cons Attorney General to Maintain Unifor mity in Application, Operation and C. Interpretation of the Act ... 2 Section 55 D. 2.021 ... 2 Open Records Training ... 3 E. E NTITIES S UBJECT TO THE P II. I NFORMATION A CT ... 7 UBLIC A. mental Bodies ... 8 State and Local Govern B. Private En tities ... 8 1. Private Entities Supported by Public Funds ...8 Private Entities Deemed Governmental Bodies by Statute ...8 2. A Governmental Body Holding Records for Anothe r Governmental Body ... 10 D. E. Private Entities Holding Records for Governmental Bodies ... 10 F. Judiciary Excluded from the Public Inform ation Act ... 11 III. NFORMATION S UBJECT TO THE P UBLIC I NFORMATION A CT ... 14 I d in Records of All Forms ... 14 A. Public Information is Containe B. Exclusion of Tangible Items ... 14 Personal Notes and E-mail in Personal Accounts or Devices... 15 C. P ROCEDURES FOR A CCESS TO IV. UBLIC I NFORMATION ... 17 P A. and Responsibilities Under the Act ... 17 Informing the Public of Basic Rights B. The Request for Pub lic Inform ation ... 17 C. The Governmental Body’s Duty to Produce Public Information Promptly ... 19 D. The Requestor’s Right of Access... 22 1. Right to Inspect ...24 Right to Obtain Copies ...24 2. Computer and Electro nic Inform ation ... 25 E. V. D ISCLOSURE TO S ELECTED P ERSONS ... 27 A. General Rule: Under the Public Info rmation Act, Public Information is Available to All Member s of the Public ... 27 B. Some Disclosures of Information to Se lected Individuals or Entities Do Not Constitute Disclosures to the P tion 552.0 07 ... 27 ublic Under Sec 1. Special Rights of Access: Excep tions to Disclosure Expressly Inapplicable to a Specific Class of Persons ...28 Special Rights of Access Under the Public Information Act ... 28 a.

6 i. Information for Legislative Use ... 28 Information About the Person Who Is Requesting the ii. Information ... 29 iii. Information in a Student or Education Record ... 30 Special Rights of Access Creat b. ed by Other Statutes ... 31 Intra- or Intergovernmental Transfers ...31 2. Other Limited Disclosures That Do Not Implicate Section 552.007 ...32 3. NFORMATION TTORNEY G ENERAL D ETERMINES W HETHER I A I S S UBJECT TO AN VI. E XCEPTION ... 33 A. Duties of the Governmental Body an d of the Attorney General Under Subchapter G ... 33 Submit to the Attorney General ... 37 B. Items the Governmental Body Must Written Communication from the Person Requesting the Information ...38 1. Information Requested from the Governmental Body ...38 2. 3. Labeling Requested Information to Indicate Which Exceptions Apply to Which Parts of the Requested Information ...38 4. Statement or Evidence as to Date Governmental Body Received Written Request ...39 5. Letter from the Governmental B ody Stating Which Exceptions Apply and Why ...39 C. Section 552.302: Information Pres umed Public if Submissions and Notification Required by Sectio n 552.301 Are No t Timely ... 40 D. Determination that Information in Section 552.303: Attorney General Addition to that Required by Section 552.301 Is Necessary to Render a on ... 41 Decisi Section 552.305: When the Requested Information Involves a Third Party’s E. Privacy or Propert y Interests ... 42 Section 552.3035: Attorney Genera l Must Not Disclose Information F. .. 44 at Issue ... G. of Public Comments ... 44 Section 552.304: Submission sion ... 44 General Deci H. Rendition of Attorney Timeliness of Action ... 44 I. VII. C OST OF C OPIES AND A CCESS ... 45 A. nd Printouts of Electronic Records ... 45 Charges for Copies of Paper Records a cords and Electr onic Records ... 48 B. Charges for Inspection of Paper Re Waivers or Reduction of C. Estimated Charges ... 49 D. Providing a Statement of Estimate d Charges as Required by Law ... 49 E. Cost Provisions Regarding Requ ests Requiring a Large Amount of Personnel Time ... 51 F. Complaints Regarding Alleged Overcharges ... 52 G. Cost Provisions Outside the Public Information Act ... 52 VIII. P ENALTIES AND R EMEDIES ... 53 of Complaints ... 53 A. Informal Resolution

7 B. Criminal Penalties ... 53 Civil Remedies ... 54 C. Writ of Mandamus ...54 1. Violations of the Act: Declarator y Judgment or Injunctive Relief; 2. Formal Complaints ...54 a. Venue and Proper Party to Bring Suit ... 55 Suit Pursuant to Formal Complaint ... 55 b. c. Procedures for Formal Complaint ... 55 d. Governmental Body Must Be Given Opportunity to Cure Violation ... 56 Cumulative Remedy ... 56 e. 3. Suits Over an Open Records Ruling ...56 4. Discovery and Court’s In Camera Review of Information Under Protective Order ...57 D. Assessment of Costs of Litigation an d Reasonable Attorney’s Fees ... 58 IX. P RESERVATION AND D ESTRUCTION OF R ECORDS ... 58 X. P UBLIC I NFORMATION A CT D ISTINGUISHED FROM C ERTAIN O THER S TATUTES ... 59 A. Authority of the Attorney General to Issue Attorney General Opinions ... 59 B. Texas Open Meetings Act ... 60 C. Discovery Pro ceedings ... 60 P T ART WO : E XCEPTIONS TO D ISCLOSURE ... 61 I. NFORMATION G ENERALLY C ONSIDERED TO BE P UBLIC ... 61 I of Information... 61 A. Section 552.022 Categories 1. Discovery Privileges ...61 Court Order ...62 2. Certain Investment Information ... 62 B. at May Not Be Withheld ... 64 C. Other Kinds of Information th II. E XCEPTIONS ... 64 A. Section 552.101: Confid ential Inform ation ... 64 1. Information Confidential Under Specific Statutes ...65 a. State Statutes ... 65 Federal Statutes ... 67 b. Information Confidential by Judicial Decision ...68 2. a. Information Confidential Under Common Law or Constitutional Privacy Doctrine ... 68 i. Common-Law Privacy ... 68 (a) Generally ...68 (b) Financial Information ...70 ii. Constitutional Privacy ... 71 Privacy Rights Lapse upon Death of the Subject ... 72 iii.

8 iv. False-Light Privacy ... 72 Special Circumstances ... 72 v. Dates of Birth of Members of the Public ... 73 vi. Informer’s Privilege ... 73 b. Section 552.102: Confid entiality of Certain Pe rsonnel Information ... 74 B. 1. Dates of Birth of Public Employees ...75 2. Transcripts of Professional Public School Employees ...75 ment Negotiations Involving the State C. Section 552.103: Litigation or Settle Subdivision ... 75 or a Political 1. Governmental Body’s Burden ...76 2. Only Circumstances Existing at the Time of the Request ...77 3. Temporal Nature of Section 552.103 ...77 4. Scope of Section 552.103 ...78 Duration of Section 552.103 for Criminal Litigation ...78 5. Section 552.104: Information Rela ting to Competition or Bidding ... 79 D. E. Section 552.105: Information Related to Location or Price of Property ... 79 F. Section 552.106: Certain Legislative Documents ... 80 G. Section 552.107: Cert ain Legal Ma tters ... 82 1. Information Within the Attorney-Client Privilege ...82 a. Attorney Fee Bills ... 84 b. Information a Private Attorney Holds for the Governmental Body ... 84 Waiver of the Attorney-Client Privilege ... 85 c. Information Protected by Court Order ...85 2. Section 552.108: Certain Law Enforcem H. ent, Corrections, and Prosecutorial 85 Information ... The Meaning of “Law Enforcement Agency” and the Applicability of 1. Section 552.108 to Other Units of Government ...86 2. Application of Section 552.108 ...88 Interference with Detection, I nvestigation, or Prosecution of a. Crime ... 88 i. Information Relating to the Detection, Investigation, or Prosecution of Crime ... 89 ii. Internal Records of a Law Enforcement Agency ... 89 b. Concluded Cases ... 91 Against a Peace Officer or c. Information Relating to a Threat Detention Officer ... 91 d. Prosecutor Information ... 91 3. Limitations on Scope of Section 552.108 ...92 4. Application of Section 552.108 to Information Relating to Police Officers and Complaints Against Police Officers ...93 a. Personnel Files of Police Officers Serv ing in Civil Service Cities ... 94 5. Other Related Law Enforcement Records ...95 a. Criminal History Information ... 95 Juvenile Law Enforcement Records ... 96 b.

9 c. Child Abuse and Neglect Records ... 97 Sex Offender Registration Information ... 99 d. Records of 9-1-1 Calls ... 99 e. Certain Information Related to Te rrorism and Homeland Security ... 99 f. Body Worn Camera Program ... 101 g. h. Video Recordings of Arrests for Intoxication ... 102 I. Section 552.1081: Confidentiality of Certain Information Regarding Execution of Convict ... 102 Section 552.1085: Confidentiality of Sensitive Crime Scene Image ... 103 J. K. Section 552.109: Confiden tiality of Certain Private Communications of an Elected Office Holder ... 105 L. entiality of Trade Secret s and Confidentiality of Section 552.110: Confid nancial Info Certain Commercial or Fi rmation ... 106 Trade Secrets ...107 1. Commercial or Financial Informati on Privileged or Confidential by 2. Law ...108 M. Section 552.111: Ag ency Memoranda ... 108 1. Deliberative Process Privilege ...109 2. Work Product Privilege ...110 N. Section 552.112: Certain Information Relating to Regulation of Financial Institutions or Securities ... 111 O. Section 552.113: Confidentiality of Geol ogical or Geophysic al Information ... 113 P. Sections 552.026 and 552.114: Conf identiality of Student Records ... 117 Family Educational Rights and Privacy Act of 1974 ...117 1. Section 552.114: Confidentiali ty of Student Records ...120 2. Section 552.115: Confidentiality of Birth and Death Records ... 121 Q. Section 552.116: Aud it Working Papers ... 125 R. tiality of Certain Addres ses, Telephone Numbers, Section 552.117: Confiden S. Social Security Numbers, and Pe rsonal Family Information ... 126 Subsections (a)(1), (11), and (12): Public Officials and Employees, 1. rces, and Federal or State Judges Members of the Texas Military Fo and their Spouses ...128 2. ), (7), (8), (9), (10), (12), (12), Subsections (a)(2), (3), (4), (5), (6 and(13): Other Categories of Officers and Employees ...131 Section 552.1175: Confidentiality of Ce rtain Personal Information of Peace T. Officers, County Jailers, Security O fficers, Employees of Certain State Agencies or Certain Criminal or Juven ile Justice Agencies or Offices, and Federal and State Judges. ... 131 U. Section 552.1176: Confidentiality of Certain Information Maintained by State Bar ... 1 35 V. Section 552.118: Conf identiality of Official Prescription Program Information ... 135 W. Section 552.119: Confiden tiality of Certain Photographs of Peace Officers ... 136 X. Section 552.120: Confid entiality of Certain Rare Books and Original Manuscripts ... 137

10 Y. s Held for Historical Section 552.121: Confiden tiality of Certain Document Research... 13 7 Test Items ... 138 Z. Section 552.122: tiality of Name of Applicant for Chief Executive AA. Section 552.123: Confiden Higher Education ... 138 Officer of Institution of Section 552.1235: Confiden BB. tiality of Identity of Private Donor to Institution of Higher Education ... 139 Section 552.124: Confidentia CC. lity of Records of Library or Library System ... 139 DD. rtain Aud its ... 140 Section 552.125: Ce Section 552.126: Confiden tiality of Name of Applicant for Superintendent EE. District ... 141 of Public School FF. entiality of Personal In formation Relating to Section 552.127: Confid Crime Watch Organization ... 141 Participants in Neighborhood GG. Section 552.128: Conf identiality of Certain Information Submitted by Potential Vendor or Contractor ... 142 HH. entiality of Certain Motor Vehicle Inspection Section 552.129: Confid Information ... 143 entiality of Certain Motor Vehicle Records ... 143 II. Section 552.130: Confid JJ. identiality of Certain Economic Development Section 552.131: Conf Information ... 145 KK. Section 552.132: Confidentia lity of Crime Victim or Claimant Information ... 146 LL. Section 552.1325: Crime Victim Impact Statement: Certain Information Confidential ... 148 Section 552.133: Conf Power Utility Competitive MM. identiality of Public 148 Matters ... NN. Section 552.134: Confiden tiality of Certain Information Relating to Inmate of Department of Criminal Justice ... 151 Section 552.135: Confid OO. entiality of Certain Information Held by School District ... 152 tiality of Credit Card, Debit Card, Charge Card, PP. Section 552.136: Confiden and Access Device Numbers ... 153 Section 552.137: Confidentiality of Certain E-mail Addresses ... 155 QQ. RR. Section 552.138: Confid entiality of Family Vi olence Shelter Center, Victims of Trafficking Shelter Ce nter, and Sexual Assault Program Information ... 156 Section 552.139: Confid entiality of Government Information Related to SS. Issues for Computers ... 158 Security or Infrastructure TT. Section 552.140: Conf identiality of Military Discharge Records ... 159 UU. Section 552.141: Confid entiality of Information in Application for Marriage License ... 160 VV. Section 552.142: Conf identiality of Records Subject to Order of Nondisclosure ... 161 WW. Section 552.1425: Civil Penalty: Di ssemination of Certain Criminal History Info rmation ... 161 entiality of Certain Investment Information ... 162 XX. Section 552.143: Confid

11 YY. and Electronic Communications of Section 552.144: Working Papers fice of Administrative Hearings ... 163 Administrative Law Judges at State Of Section 552.145: Confidentiality of Texas No-Call List ... 163 ZZ. ons with Assistant Section 552.146: Certain Communicati or Employee of AAA. Legislative Budget Board ... 164 Security Numbers ... 164 BBB. Section 552.147: Social of Certain Personal Information Section 552.148: Confidentiality CCC. Maintained by Municipality Pe rtaining to a Minor ... 165 Section 552.149: Confiden tiality of Records of Co mptroller or Appraisal DDD. om Private District Received fr Entity ... 165 Section 552.150: Confidentiality of EEE. Information That Could Compromise District ... 167 Safety of Officer or Employ ee of Hospital Section 552.151: Confidentiality of In formation Regarding Select Agents ... 168 FFF. Section 552.152: Confid entiality of Information Concerning Public GGG. Employee or Officer Personal Safety ... 169 Section 552.153: Proprietary Record HHH. s and Trade Secrets Involved in Certain Partnerships ... 169 III. Section 552.154: Name of Appli cant for Executive Director, Chief Investment Officer, or Chief Audit Ex ecutive of Teacher Retirement System of Texas ... 1 70 Section 552.155: Confid entiality of Certain Property Tax Appraisal JJJ. Photographs ... 171 Section 552.156: Confiden tiality of Continuity of Operations Plan ... 171 KKK. LLL. identiality of Personal Information Regarding Section 552.158: Conf nt by Governor ... 172 Applicant for Appointme ART T HREE : T EXT OF THE P EXAS P UBLIC I NFORMATION A CT ... 173 T P ART F OUR : R ULES P ROMULGATED BY THE A TTORNEY G ENERAL ... 259 P ART IVE : T ABLE OF C ASES ... 285 F ... 290 ART IX : T ABLE OF S TATUTES , P ULES , R EGULATIONS S R P S EVEN : R ART J UDICIAL A DMINISTRATION ... 294 ULES OF P ART E IGHT : P UBLIC I NFORMATION A CT D EADLINES FOR G OVERNMENTAL B ODIES ... 303 W P INE : N OTICE S TATEMENT TO P ERSONS N HOSE P ROPRIETARY I NFORMATION IS ART R EQUESTED ... 305 P ART T EN : T EXAS G OVERNMENT C ODE S ECTION 552.024 P UBLIC A CCESS O PTION F ORM ... 308

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13 REFACE TO THE P UBLIC I P A CT H ANDBOOK NFORMATION A lic Information Act” or the “Act”) gives the The Act . The Texas Public Information Act (the “Pub on. Below is a description of the basic government informati public the right to request access to procedures, rights and responsibilities under the Act. Making a Request . The Act is triggered when a person su bmits a written request to a governmental cords or information already in existence. The Act does not body. The request must ask for re to create new information, to do legal research, or to answer questions. require a governmental body e governmental body what information is available. In preparing a request, a person may want to ask th . A person may ask to view the information, get copies of the Charges to the Requestor st is for copies of information, information, or both. If a reque the governmental body may charge for the copies. If a request is only for an opportunity to inspec t information, then usually the e requestor. However, under certain limited governmental body may not impose a charge on th arge for access to information. All charges circumstances a governmental body may impose a ch opies or for access to informatio n must comply with the rules imposed by a governmental body for c prescribed by the Office of th e Attorney General (“ OAG”), unless another statute authorizes a governmental body to set its own charges. Exceptions to the Act . Although the Act makes most govern ment information available to the public, some exceptions exist. If an exception might apply and the governmental body wishes to rnmental body generally must, w ithin ten business days of withhold the information, the gove whether an exception receiving the open records request, refer the matter to the OAG for a ruling on applies. If the OAG rules that an exception ap body will not release the plies, the governmental information. If a governmental bo dy improperly fails to release information, the Act authorizes the civil lawsuit to compel the go requestor or the OAG to file a vernmental body to release the information. Questions or Complaints . To reach the OAG’s Open Go vernment Hotline, call toll-free Hotline staff can answer questions about the proper procedures (877) 673-6839 (877-OPEN TEX). for using and complying with the Act and can assi st both governmental bodies and people requesting information from a governmental body. Hotline staff al so review written comp laints about alleged violations of the Act. If a co mplaint relates to charges, contac Hotline toll-free t the OAG’s Cost forward a written complaint. at (888) 672-6787 (888-ORCOSTS) or Certain violations of the Act may involve possible criminal penalties. Those viola tions must be reported to the appropriate county attorney or criminal district attorney. . The Act does not apply to the federal government or to any of its departments Federal Agencies or agencies. If you are seeking information from the federal govern ment, the appropriate law is the federal Freedom of Information Act (“FOIA”). FOIA’s rules and pro cedures are different from those of the Public Information Act. i

14 Rights of Requestors formation have the right to: All people who request public in Receive treatment equal to all other requestors   Receive a statement of esti mated charges in advance Choose whether to inspect the requested inform ation, receive a copy of the information, or  both mental body asks the OAG for a ruling on whether the  Be notified when the govern information may or must be withheld  Be copied on the governmental body’s written comments to th e OAG stating the reason why the stated exceptions apply  s for responding to a public Lodge a complaint with the OAG regarding any improper charge information request  the OAG or the co unty attorney or criminal district attorney, as Lodge a complaint with appropriate, regarding any alleged violation of the Act Responsibilities of Requestors ation have the responsibility to: All people who request public inform Submit a written request acco rding to a governmental bod y’s reasonable procedures  quested information so Include enough description and detail of the re the governmental body  can accurately identify and locate the requested items  Cooperate with the governmental body’s reasonabl e requests to clarify the type or amount of information requested  Respond promptly in writing to all written communicati ons from the g overnmental body timate of charges) (including any written es Make a timely payment for all valid charges   r inspection of records or for pick-up of copies Keep all appointments fo Rights of Governmental Bodies All governmental bodies re sponding to information requests have the right to:  Establish reasonable procedures for inspecting or copying information Request and receive clarification of  vague or overly broad requests  Request an OAG ruling regard ing whether any information may or must be withheld  Receive timely payment for all copy charges or other charges  Obtain payment of overdue balances exceedi ng $100 or obtain a security deposit before processing additional requests from the same requestor  Request a bond, prepayment or deposit if estimated costs exceed $100 (or, if the governmental body has fewer than 16 employees, $50) ii

15 Responsibilities of Governmental Bodies All governmental bodies res ponding to information requests have the responsibility to:  Treat all requestors equally  Complete open records training as required by law Be informed of open records laws and educate employees on the requirements of those laws  Inform the requestor of cost estima tes and any changes in the estimates   Confirm the requestor agrees to pay the costs before incurring the costs  Provide requested information promptly  Inform the requestor if the in formation will not be provided within ten business days and which it will be provided give an estimated date on Cooperate with the requestor to schedule reasonable times for inspecting or copying  information Follow attorney general rules on charges; do  not overcharge on any items; do not bill for items that must be provided without charge  Inform third parties if their pr oprietary information is being requested from the governmental body  Inform the requestor when the OAG has been as ked to rule on whether information may or must be withheld  Copy the requestor on written comments submitted to the OAG stating the reasons why the stated exceptions apply  Comply with any OAG ruling on wh ether an exception applies or file suit ag ainst the OAG within 30 days Respond in writing to all written communications from the OAG regard ing complaints about  violations of the Act This Handbook is available on the OAG’s website at http://www.texasattorneygeneral.gov . The website also provides access to the following:  Attorney General Opinions datin g from 1939 through the present;  all formal Open Record s Decisions (ORDs); and  most informal Open Records letter ruli ngs (ORLs) issued since January 1989. Additional tools found on the site include the Open Meetings Act Handbook , the text of the Public Information and Open Meetings Acts, and ot her valuable publications and resources for governmental bodies and citizens. iii

16 The following is a list of telephone numbers that may be helpfu l to those needing answers to open government questions. Open Government Hotline T OLL -F REE (877) OPEN TEX for questions regarding the Act and (512) 478-6736 or the Texas Open Meetings Act Cost Hotline T OLL -F REE (888) ORCOSTS for questions regarding charges under the Act or (512) 475-2497 Freedom of Information Foundation (800) 580-6651 for questions regarding FOIA State Library and Archives Comm ission (512) 463-7610 Records Management Assistance for records retention questions U.S. Department of Education (800) 872-5327 Family Policy Co mpliance Office for questions regarding F ERPA and education records U.S. Department of Health and Hu man Services (800) 368-1019 Office for Civil Rights for questions regardi ng the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and protect ed health information iv

17 How the Public Information Act Works Note on Terminology In previous publications and rulin gs, the OAG has referred to chapte r 552 of the Government Code as the “Open Records Act.” The O AG, in conformity with the statut e, has adopted the term “Public apter 552. However, the OAG will continue, in this Information Act” to refer to the provisions of ch Handbook and elsewhere, to use the term “open record s” in other contexts, such as “open records request” and “open records decision.” to indicate sections that discuss significant The symbol is used throughout the Handbook . Handbook curred since publication of the 2016 changes in the law that have oc OW THE ORKS UBLIC P ART O NE : H W P CT I NFORMATION A I. O VERVIEW A. Historical Background rmation Act” or the “Act”) was adopted in 1973 The Texas Public Information Act (the “Public Info 1 ich occurred in 1969 and came The Sharpstown scandal, wh by the reform-minded 63rd Legislature. to light in 1971, provided the opening up government to the motivation for several enactments 2 people. 3 e 6252-17a, which was repealed in 1993 The Act was initially codified as V.T.C.S. articl and 4 Code at chapter 552. the Texas Government replaced by the Public Informatio n Act now codified in 5 The codification of the Act was a nonsubstantive revision. B. Policy; Construction The preamble of the Public Inform ation Act is codified at section 552.001 of the Government Code. the Public Inform y of open government expressed in ation Act. It It declares the basis for the polic finds that basis in “the Amer esentative government” and “the ican constitutional form of repr principle that government is the servant and not the master of the people.” It further explains this principle in terms of the need for an informed citizenry: 1 Act of May 19, 1973, 63rd Leg., R.S., ch. 424, 1973 Tex. Gen. Laws 1112. 2 Mutscher v. State See generally , 514 S.W.2d 905 (Tex. Crim. App. 1974) (summarizing events of Sharpstown Handbook of Texas Online “Sharpstown Stock-Fraud Scandal,” see also , published by the Texas State scandal); ook/online/articles/mqs01. Historical Association, at http://www.tshaonline.org/handb 3 Act of May 4, 1993, 73rd Leg., R.S., ch. 268, § 46, 1993 Tex. Gen. Laws 583, 986. 4 § 1, 1993 Tex. Gen. Laws 583, 594–607. Act of May 4, 1993, 73rd Leg., R.S., ch. 268, 5 Act of May 4, 1993, 73rd Leg., R.S., ch. 268, § 47, 1993 Tex. Gen. Laws 583, 986. 201 8 Public Information Act Handbook • Office of the Attorney General 1

18 How the Public Information Act Works The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what to know. The people is not good for them insist on remaining in formed so that they may retain control over the instruments they have created. tion Act is to maintain the peopl The purpose of the Public Informa e’s control “over the instruments they have created.” The Act requi res the attorney general to constr ue the Act liberally in favor of 6 open government. C. iformity in Application, Operation Attorney General to Maintain Un and Interpretation of the Act Code authorizes the attorney general to prepare, distribute and Section 552.011 of the Government ive written decisions and opinions, in order to publish materials, including detaile d and comprehens 7 maintain uniformity in the application, operation and interpretation of the Act. D. Section 552.021 Code is the starting point for Section 552.021 of the Government understanding the operation of the Public Information Act. It provides as follows: Public information is available to the pub lic at a minimum during the normal business hours of the governmental body. This provision tells us information in the possessi on of a governmental body is generally available nes “public information” as: to the public. Section 552.002(a) of the Government Code defi information that is written, or maintained under a law or produced, collected, assembled, ordinance or in connection with the transaction of official business: (1) by a governmental body; and the governmental body: (2) for a governmental body (A) owns the information; (B) has a right of access to the information; or for the purpose of writing, producing, (C) spends or contributes public money collecting, assembling, or main taining the information; or 6 Gov’t Code § 552.001(b); A & T Consultants v. Sharp see Abbott v. City of , 904 S.W.2d 668, 675 (Tex. 1995); Thomas v. Cornyn Corpus Christi , 71 S.W.3d 473, 480 , 109 S.W.3d 113, 118 (Tex. App.—Austin 2003, no pet.); (Tex. App.—Austin 2002, no pet.). 7 Gov’t Code § 552.011. 201 8 Public Information Act Handbook • Office of the Attorney General 2

19 How the Public Information Act Works (3) by an individual officer or employee of a governmental body in the officer’s or and the information pertains to official business of the employee’s official capacity governmental body. If the governmental body wishes to withhold information from a memb er of the public, it must show 8 that the requested information is w ithin at least one of the excepti ons to required public disclosure. 552.101 through Subchapter C of the Act, sections 552.158, lists the specific exceptions to required public disclosure; these exceptions ar e discussed in Part Two of this Handbook . Open Records Training E. to 2006 there was no uniform ntal body in Texas, yet prior The Act applies to every governme requirement or mechanism for public officials to receive training in how to comply with the law. The 79th Legislature enacted section 552.012 of the Government Code, which requires public of the Public Information Act. The training officials to receive training in the requirements tion 552.012, provides: requirement of the Public Information Ac t, codified at sec or appointed public official who is: (a) This section applies to an elected (1) a member of a multimember governmental body; dy that is headed (2) the governing officer of a governmental bo by a single officer rather than by a multimem ber governing body; or (3) the officer for public information of a governmental body, without regard to whether the officer is elected or appointed to a specific term. (b) Each public official shall complete a course of training of not less than one and not more than two hours regarding the responsib ilities of the governmental body with and employees under this chapter not later which the official serves and its officers date the public official: than the 90th day after the (1) takes the oath of office, if the person is required to take an oath of office to assume the person’s duties as a public official; or (2) otherwise assumes the person ’s duties as a public offi cial, if the person is not required to take an oath of office to assume the person’s duties. formation coordinator to satisfy the training (c) A public official may designate a public in requirements of this section for the public o fficial if the public information coordinator is primarily responsible for ad ministering the responsibilities of the public official or Designation of a public information governmental body under this chapter. lieve a public official from the duty to coordinator under this subsection does not re e public official. comply with any other requirement of this chap ter that applies to th The designated public inform ation coordinator shall complete the training course mental body with which the coordinator regarding the responsibilities of the govern 8 Open Records Decision No. 363 (1983) (information is public unless it falls within specific exception). 201 8 Public Information Act Handbook • Office of the Attorney General 3

20 How the Public Information Act Works r not later than the 90th day d employees under this chapte serves and of its officers an after the date the coordinator assumes the person’s duties as coordinator. (d) The attorney general shall en sure that the training is made available. The office of the attorney general may provide the training and may also ap prove any acceptable course attorney general shall or other entity. The of training offered by a governmental body ng approved or provided by the attorney ensure that at least one course of traini tionally similar and widely available medium general is available on videotape or a func at no cost. The training must include instruction in: (1) the general background of the legal requirements for open records and public information; apter to governmental bodies; (2) the applicability of this ch (3) procedures and requirements regarding complying with a request for information under this chapter; (4) the role of the attorney general under this chapter; and th this chapter. failure to comply wi (5) penalties and other consequences for general or other entity providing the training shall provide (e) The office of the attorney ons who complete the training required by a certificate of course completion to pers this section. A governmental body sha ll maintain and make available for public inspection the record of its public officials’ or, if applicable, th e public information coordinator’s completion of the training. (f) Completing the required training as a public official of the governmental body satisfies the public official’s service on a the requirements of this sect ion with regard to committee or subcommittee of the government al body and the public official’s ex officio service on any other governmental body. (g) The training required by this section may be used to satisfy any corresponding training requirements concerning this quired by law for a public chapter or open records re ral shall attempt to The attorney gene official or public information coordinator. ion with training required by other law to coordinate the training required by this sect the extent practicable. (h) A certificate of course comp letion is admissible as eviden ce in a criminal prosecution a defendant completed a course of training under this chapter. However, evidence that defendant knowingly offered under this section is not prima faci e evidence that the violated this chapter. The law requires elected and appointed officials to attend, at a Minimum Training Requirement: Act. This is a one-time-only urse on the Public Information minimum, a one-hour educational co training requirement; no refresher courses are required. 201 8 Public Information Act Handbook • Office of the Attorney General 4

21 How the Public Information Act Works Compliance Deadlines: The law took effect on January 1, 2006. Officials who were in office 2007—to complete the required training. e year—until January 1, before January 1, 2006 had on Officials who were elected or ap pointed after January 1, 2006, ha ve 90 days within which to complete the required training. Who Must Obtain the Training: The requirement app lies to all governmental bodies subject to the Act. It requires the top elected and appointed bodies subject to these officials from governmental laws to complete a training course on the Act. Alternatively, public officials may designate a public as the designee is the person training in their place so long information coordinator to attend primarily responsible for the processing of open r ecords requests for the governmental body. It is presumed most governmental bodi es already have a designated public information coordinator; therefore, officials may choose to opt out of the training provided they designate their public cials are encouraged to information coordinator to receive the training in th eir place. However, offi complete the required training, a ation coordinator to complete nd designation of a public inform training on their behalf does not relieve public offi cials of the responsibility to comply with the law. May Not Opt Out of Training if Required by Other Law: Open government training is already et Laws. The opt-out provisions many state agencies under the Suns required for the top officials of of the training requirement would not apply to offi cials who are already required by another law to receive open government training. do not need to attend training Judicial Officials and Employees: Judicial officials and employees regarding the Act because public access to informa tion maintained by the judiciary is governed by Rule 12 of the Judicial Admini stration Rules of the Texas Suprem e Court and by other applicable 9 laws and rules. The basic topics to be covered by the training include: Training Curriculum: rds and public information; e legal requirements for open reco 1. the general background of th 2. the applicability of the Ac t to governmental bodies; 3. procedures and requirements regarding complying with open records requests; 4. the role of the attorney general under the Act; and 5. penalties and other consequences fo r failure to comply with the Act. that training is widely available and free The law contains provisions to ensure Training Options: training courses are available so all officials in th e state can have easy access to the training. The OAG provides a training video and “live” training courses. Governmental entities that already provide their Governmental Entities May Provide Training: own internal training on the Act may continue to do so provided the curri culum meets the minimum 10 requirements set forth by section 552.012 and is reviewed and approved by the OAG. 9 Gov’t Code § 552.0035. 10 Gov’t Code § 552.012(d). 201 8 Public Information Act Handbook • Office of the Attorney General 5

22 How the Public Information Act Works Other Entities May Provide Training: Officials may obtain the requ ired training from any entity OAG. This encompasses that offers a training course that has been revi ewed and approved by the organizations, and continuing education providers. courses by various interest groups, professional The trainer is required to provide Evidence of Cour se Completion: the participant with a certificate tor’s governmental body is then al or public information coordina of course completion. The offici available for public inspection. The OAG does not required to maintain the certificate and make it maintain certificates for governmental bodies. government to foster open The purpose of the law is to Receive Training: No Penalty for Failure by making open government educati on a recognized obligation of public service. The purpose is not ere are no specific penalties for failure to comply to create a new civil or criminal violation, so th nalty provision, officials should ment. Despite the lack of a pe with the mandatory training require to attend training may result in be cautioned that a deliberate failure an increased risk of criminal conviction should they be accused of violating the Act. cate training requirements To avoid imposing dupli Will Be Harmonized: Training Requirements on public officials, the attorney general is required to harmonize the training required by section on public officials. ts that may be imposed 552.012 with any other statutory training requiremen general’s website at for more http://www.texasattorneygeneral.gov Please visit the attorney information on s ection 552.012. 201 8 Public Information Act Handbook • Office of the Attorney General 6

23 How the Public Information Act Works CT II. E NTITIES S UBJECT TO THE P UBLIC I NFORMATION A The Public Information Act applies to informatio n of every “governmental body.” “Governmental ) of the Government Code to mean: body” is defined in section 552.003(1)(A a board, commission, department, committee, institution, agency, or office that is (i) within or is created by the executive or legislative branch of state government and that is directed by one or more elected or appointed members; a county commissioners court in the state; (ii) (iii) a municipal governing body in the state; (iv) a deliberative body that has rulemaking or quasi-judicial power and that is classified vision of a county or municipality; as a department, agency, or political subdi a school district board of trustees; (v) (vi) a county board of school trustees; a county board of education; (vii) the governing board of a special district; (viii) (ix) the governing body of a nonprofit corpor ation organized under Chapter 67, Water Code, that provides a water su pply or wastewater service, or both, and is exempt from ad valorem taxation und er Section 11.30, Tax Code; (x) a local workforce development boar d created under Section 2308.253; is eligible to receive fund a nonprofit corporation that (xi) s under the federal community services block grant program and that is authorized by this state to serve a geographic area of the state; and commission, committee, (xii) the part, section, or portion of an organ ization, corporation, whole or in part by public institution, or agency that spen ds or that is supported in funds[.] 11 The required The judiciary is expressly excluded from the definition of “g overnmental body.” Texas Rules of Judicial rned by Rule 12 of the public release of records of the judiciary is gove 12 Administration. 11 Gov’t Code § 552.003(1)(B). 12 . Handbook Rule 12 of the Texas Rules of Judicial Administration is located in Part Seven of this 201 8 Public Information Act Handbook • Office of the Attorney General 7

24 How the Public Information Act Works nition may make a timely An entity that does not believe it is a “governmental body” within this defi of the Act if there has been no ttorney general under Subchapter G request for a decision from the a 13 previous determination regarding this issue and it wishes to withhold th e requested information. A. State and Local Go vernmental Bodies compasses all public entities in the executive and The definition of the term “governmental body” en legislative branches of government at the state and local levels. Although a sheriff’s office, for example, is not within the scope of section 552. 003(1)(A)(i)–(xi), it is supported by public funds and 14 within section 552.003(1)(A)(xii). is therefore a “governmental body” B. Private Entities 1. Private Entities Supported by Public Funds An entity that is supported in whole or in part by public funds or that spends public funds is a governmental body under section 552.003(1)(A)(xii) of the Governme nt Code. Public funds are 15 The Texas Supreme Court has bdivision of the state.” of a governmental su “funds of the state or those private entities or their rt by public funds’ to include only defined “‘supported in whole or pa ey could not perform the same or part, by public funds, meaning th sub-parts sustained, at least in 16 (A)(xii) encompasses only Thus, section 552.003(1) similar services without the public funds.” 17 and only those private entities that are dependent on public funds to operate as a going concern, 18 those entities acting as the functiona the government. l equivalent of 2. Private Entities Deemed G overnmental Bodies by Statute Section 51.212 of the Education Code provides: education is a law institution of higher (f) A campus police department of a private enforcement agency and a governmental bo dy for purposes of Chapter 552, respect to information relating solely to law enforcement Government Code, only with 19 activities. There are no cases or formal opinions interp reting this subsection of the Education Code. 13 See Blankenship v. Brazos Higher Educ. Auth., Inc. , 975 S.W.2d 353, 362 (Tex. App.—Waco 1998, pet. denied) ue of request for opinion from attorney general). (entity does not admit it is governmental body by virt 14 see Open Records Decision No. 78 (1975) (discussing statutory predecessor to Gov’t Code § 552.003(1)(A)(xii)); Permian Report v. Lacy , 817 S.W.2d 175 (Tex. App.—El Paso 1991, writ denied) (suggesting county clerk’s office is subject to Act as agency supported by public funds). 15 Gov’t Code § 552.003(5). 16 , 468 S.W. 3d 51, 63 (Tex. 2015). Greater Houston P’ship v. Paxton 17 , 468 S.W. 3d 51, 61 (Tex. 2015). Greater Houston P’ship v. Paxton 18 , 468 S.W. 3d 51, 62 (Tex. 2015). Greater Houston P’ship v. Paxton 19 Educ. Code § 51.212(f). 201 8 Public Information Act Handbook • Office of the Attorney General 8

25 How the Public Information Act Works C. Certain Property Owners’ Associations Subject to Act Section 552.0036 provides: A property owners’ association is subject to [the Act] in the same manner as a governmental body: (1) if: (A) ation is mandatory for owners or for membership in the property owners’ associ a defined class of owners of private rea l property in a defined geographic area in a county adjacent to a in a county with a populati on of 2.8 million or more or county with a population of 2.8 million or more; (B) the property owners’ associ ation has the power to make mandatory special assessments for capital improvements or mandatory regular assessments; and the amount of the mandatory special or regular assessment s is or has ever (C) e value at which the state or a local been based in whole or in part on th governmental body assesses the property for purposes of ad valorem taxation II, Texas Constitution; or under Section 20, Article VI owners’ association: (2) if the property (A) provides maintenance, preservation, and architectural control of residential geographic area in a county with a and commercial property within a defined or more or in a county ad population of 2.8 million jacent to a county with a population of 2.8 million or more; and is a corporation that: (B) who may employ a general manager to (i) is governed by a board of trustees execute the association’s bylaws an d administer the business of the corporation; (ii) does not require membership in the corporation by the owners of the property within the defined area; and (iii) was incorporated be fore January 1, 2006. ulation of 2.8 million or more The only county in Texas with a pop is Harris County. The counties adjoining Harris County are Waller, Fort Ben d, Brazoria, Galveston, Chambers, Liberty, and Montgomery. Thus, property owners’ associations located in those counties and otherwise within to be governmental bodies for purposes of the the parameters of section 552.0036 are considered Act. 201 8 Public Information Act Handbook • Office of the Attorney General 9

26 How the Public Information Act Works D. A Governmental Body Holding Records for Another Governmental Body information on behalf of anot One governmental body may hold her governmental body. For example, state agencies may transfer noncurrent r ecords to the Records Management Division of the 20 Texas State Library and Archiv es Commission for storage. State agency records held by the state should be requested from the originating state library under the state records management program rmation is collected, by or for which info e governmental body agency, not the state library. Th assembled, or maintained pursuant to section 552.002(a) retains ulti mate responsibility for disclosing ation Act, even though or withholding information in response to a request under the Public Inform 21 s physical custody of it. another governmental body ha E. Private Entities Holding Records for Governmental Bodies ivate consultant to prepare On occasion, when a government al body has contracted with a pr y, the consultant keeps the report and data in the consultant’s information for the governmental bod body reviews it there. e physical is not in th Although the information office, and the governmental custody of the governmental in the constructive custody of the governmental body, the information is 22 The private consultant is acting as the governmental body and is therefore subject to the Act. was amended in 1989 to codify body’s agent in holding the records. Section 552.002(a) of the Act 23 this interpretation of the Act. 002 read as follows: The definition of “public information” in Govern ment Code Section 552. n, produced, collected, assemble (a) information that is writte d, or maintained under a law or ordinance or in connection with th e transaction of official business: (1) by a governmental body; and the governmental body: (2) for a governmental body (A) owns the information; to the information; or (B) has a right of access y for the purpose of writing, producing, (C) spends or contributes public mone collecting, assembling, or main taining the information; or of a governmental body in the officer’s (3) by an individual officer or employee the information pertains to official or employee’s official capacity and business of the governmental body 20 see Open Records Decision No. 674 (2001). Open Records Decision No. 617 (1993); 21 Open Records Decision No. 576 (1990). 22 Open Records Decision No. 462 (1987). 23 Act of May 29, 1989, 71st Leg., R.S., ch. 1248, § 9, 1989 Tex. Gen. Laws 4996, 5023. 201 8 Public Information Act Handbook • Office of the Attorney General 10

27 How the Public Information Act Works (a-1) Information is in conn ection with the transaction of official business if the information is created by, transmitted to, recei ved by, or maintained by an officer or dy in the officer’s or employee’s official capacity, or employee of the governmental bo a person or entity performing official busi ness or a governmental function on behalf rtains to official business of a governmental body, and pe of the governmental body. governmental bodies by private that various records held for The following decisions recognize entities are subject to the Act: 991) — the city manager may not Open Records Decision No. 585 (1 contract away the right to inspect the list of applican ts maintained by a privat e consultant for the city; Open Records Decision No. 499 (1 988) — the records held by a private attorney employed by a performed at the request of the municipality; municipality that relate to legal services Open Records Decision No. 462 investigation of a university (1987) — records regarding the football program prepared by a law firm on behalf of the university and kept at the law firm’s office; and ed by bond underwriters and Open Records Decision No. 437 (1986) — the records prepar 24 nd kept in an attorney’s office. attorneys for a utility district a Code contains specific requirements for a contract between a Section 2252.907 of the Government state governmental entity and a nongovernmental vendor involving the exchange or creation of public information. F. the Public Information Act Judiciary Excluded from Section 552.003(1)(B) of the Govern ment Code excludes the judiciar y from the Public Information Act. Section 552.0035 of the Government Code specifically pr ovides that access to judicial records 25 is governed by rules adopted by the Supreme Court of Texas or by other applicable laws and rules. ( See Part Seven of this Handbook for Rule 12 of the Texas Rules of Judicial Administration.) This provision, however, expressl y provides that it does not address whet her particular records are judicial records. 26 At issue in n 552.003(1)(B) were discussed in The purposes and limits of sectio Benavides v. Lee . e position of chief juve nile probation officer submitted to the Webb that case were applications for th County Juvenile Board. The cour t determined that the board was not “an extension of the judiciary” 24 , 145 S.W.3d 268 (Tex. App.—Houston [14th Dist.] 2004, no pet.) See also Baytown Sun v. City of Mont Belvieu ployee salary information of compan (municipality had right of access to em y it contracted with to manage recreational complex); Open Records Decision No. 585 (19 91) (overruling Open Records Decision Nos. 499 (1988), 462 (1987), 437 (1986) to extent they suggest govern mental body can waive its right of access to information gathered on its behalf). 25 , see also, e.g. R. Jud. Admin. 12; see , 778 S.W.2d 169, 170 (Tex. App.— Ashpole v. Millard Gov’t Code § 552.0035; Houston [1st Dist.] 1989, no writ) (public has right to inspec t and copy judicial records subject to court’s inherent power to control public access to its records); Attorney General Opinion DM-166 (1992); Open Records Decision No. 25 (1974). 26 Benavides v. Lee , 665 S.W.2d 151 (Tex. App.—San Antonio 1983, no writ). 201 8 Public Information Act Handbook • Office of the Attorney General 11

28 How the Public Information Act Works for purposes of the Public Information Act, even though the board consisted of members of the judiciary and the county judge. The court stated as follows: The Board is not a court. A separate entity, the j uvenile court, not the Boar d, exists to adjudicate matters concerning juveniles. Nor is the Board directly controlled or supervised by a court. Moreover, simply because the legislature chose ju dges as Board members, art. 5139JJJ, § 1, does not in itself indicate they perform on the Board as members of the judiciary. . . . [C]lassification functions of the Board, of the Board as judicial or not depends on the not on members’ service 27 elsewhere in government. The decisions made by the board were administrative, not judicial, and the selection of a probation n system, not a judicial act by officer was part of the board’s ad ministration of the juvenile probatio a judicial body. The court continued: The judiciary exception, § 2(1)(G) [now secti on 552.003(1)(B) of the G overnment Code], is important to safeguard judicial pr oceedings and maintain the independence of the judicial branch of government, preserving statutory and case law al ready governing access to judicial records. ntal entity having any connection with the But it must not be extended to every governme 28 judiciary. 29 The Texas Supreme Court also addr . In that Holmes v. Morales essed the judiciary exception in case, the court found that “judicial power” as provi ded for in article V, section 1, of the Texas Constitution “embraces powers to hear facts, to decide issu es of fact made by pleadings, to decide questions of law involved, to render and enter judgment on facts in accordance with law as 30 Because the court found the Harris determined by the court, and to execute judgment or sentence.” County District Attorney did not pe rform these functions, it held the di strict attorney is not a member the Public Information Act. of the judiciary, but is a governme ntal body within the meaning of 7 (1997), the attorney general concluded telephone billing records In Open Records Decision No. 65 te to the exercise of judicial powers but rather to routine of the Supreme Court did not rela of the Public In of the judiciary” for purposes administration and were not “records formation Act. No. 657 (1997), finding Open Records Decision The Texas Supreme Court subsequently overruled body under the Act and its records were therefore not subject to the court was not a governmental 31 the Act. 27 Benavides v. Lee , 665 S.W.2d 151, 151–52 (Tex. App.—San Antonio 1983, no writ) (footnote omitted). 28 , 665 S.W.2d 151, 152 (Tex. App.—San Antonio 1983, no writ). Benavides v. Lee 29 , 924 S.W.2d 920 (Tex. 1996). Holmes v. Morales 30 , 924 S.W.2d 920, 923 (Tex. 1996). Holmes v. Morales 31 Order and Opinion Denying Request Under Open Records Act , No. 97-9141, 1997 WL 583726 (Tex. August 21, 1997) (not reported in S.W.2d). 201 8 Public Information Act Handbook • Office of the Attorney General 12

29 How the Public Information Act Works The State Bar of Texas is a “publ ic corporation and an administrative agency of the judicial 32 Section 81.033 of the G overnment Code provides that, with certain department of government.” 33 exceptions, all records of th e State Bar are subject to the Public Information Act. The following decisions address the judiciary exclusion: Open Records Decision No. 671 (20 01) — the information contained in the weekly index reports ct Clerk’s office is derived fr produced by the Ellis County Distri om a case disposition database that is “collected, assembled, or maintained . . . for the judiciary.” Go v’t Code § 552.0035(a). Therefore, the information contained in weekly index reports is not public information under the Act; ity supervision and corrections department Open Records Decision No. 646 (1996) — a commun diciary for purposes of is a governmental body and is not part of the ju the Public Information as personnel files and other records reflecting the day-to-day Act. Administrative records such ections department are subject to the Public management of a community supervision and corr 34 Information Act. On the other hand, specific record s regarding individuals on probation and mmunity supervision and subject to the direct supervision of a court that are held by a co corrections department are not subject to the Pu ecause such records are blic Information Act b held on behalf of the judiciary; ooks and records of an insurance company Open Records Decision No. 610 (1992) — the b of the Insurance Code are excluded from the placed in receivership pursuant to article 21.28 Public Information Act as records of the judiciary; Open Records Decision No. 572 (1990) — certain records of th e Bexar County Personal Bond Program are within the judiciary exclusion; Open Records Decision No. 513 (198 8) — records held by a district attorney on behalf of a grand jury are in the grand jury’s constructive possession and are not subject to the Public Information Act. However, records a district attorney collect s, prepares, and submits to grand jury are not in the constructive possession of the grand jury when th at information is held by the district attorney. county judge as a member of 978) — information held by a Open Records Decision No. 204 (1 the county commissioners court is subject to the Public In formation Act; and Open Records Decision No. 25 (1974) — the records of a justice of the peace are not subject to ected under statutory and common-law rights of the Public Information Act but may be insp access. 32 Gov’t Code § 81.011(a); rds of state bar grievance committee were see Open Records Decision No. 47 (1974) (reco confidential pursuant to Texas Supreme Court rule; not deciding whether state bar was part of judiciary). 33 Compare Open Records Decision No. 604 (1992) (considering request for list of registrants for Professional Development Programs) , 991 S.W.2d 768 (Tex. 1999) (Unauthorized Practice with In re Nolo Press/Folk Law, Inc. of Law Committee of state bar is judicial agency and therefore subject to Rule 12 of Texas Rules of Judicial Administration). 34 Gov’t Code § 76.006(g) (document evaluating perform But see ance of officer of community supervision and aced on community supervision is confidential). corrections department who supervises defendants pl 201 8 Public Information Act Handbook • Office of the Attorney General 13

30 How the Public Information Act Works NFORMATION I III. I NFORMATION S UBJECT TO THE P UBLIC A CT Public Information is Contained in Records of All Forms A. Information Act applies to recorded Government Code states the Public Section 552.002(b) of the information in practically any medium, including: paper; film; a magnetic, optical, solid state or other device that can store an electronic signal; ta pe; Mylar; and any physical material on which 35 information may be recorded, in cluding linen, silk, and vellum. Section 552.002(c) specifies that “[t]he general forms in which the media containi ng public information exist include a book, paper, letter, document, e-mail, Inte rnet posting, text message, instant message, other electronic otograph, film, tape, microfiche, micr communication, printout, ph ofilm, photostat, sound recording, map, and drawing and a voice, data, or vide o representation held in computer memory.” B. Exclusion of Tangible Items Despite the assumption in Open Re at the Public Information Act cords Decision No. 252 (1980) th at tangible items such as a tool or a key are not applies to physical evidence, the prevailing view is th alyzed to produce information. though they may be copied or an “information” within the Act, even In Open Records Decision No. 581 t with a request for the source (1990), the attorney general deal tation standards of computer programs used code, documentation, and computer program documen by a state university. The request ed codes, documenta tion, and documentation standards contained records. The attorney general security measures designed to pr event unauthorized access to student noted the sole significance of the computer source code, documentation, and documentation 36 While standards was “as a tool for th e storage, manipulation, and s ecurity of other information.” scope of the term “information,” the attorney general acknowledging the comprehensive t have intended that the nevertheless determined the legislature could no Public Information Act compromise the physical security of information management systems or other government 37 uded that information used sole The attorney general concl ly as a tool to maintain, property. manipulate, or protect public property was not the kind of information made public by the statutory 38 the Public Information Act. predecessor to section 552.021 of 35 Open Records Decision Nos. 660 (1999) (Section 52(a) of article III of Texas Constitution does not prohibit See also Port of Corpus Christi Authority from releasing computer generated digital map), 492 (1988) (raw data collected by link and stored on comptroller’s computer system), 432 outside consultant, but accessed by comptroller through data (1985) (photographic negatives), 413 (1984) (sketches), 364 (1983) (videotapes), 352 (1982) (computer tapes), 32 (1974) (tape recordings). 36 Open Records Decision No. 581 at 6 (1990). 37 Open Records Decision No. 581 at 5–6 (1990) (drawing comparison to door key, whose sole significance as “information” is its utility as tool in matching internal mechanism of lock). 38 Open Records Decision No. 581 at 6 (1990) (overruling in part Open Records Decision No. 401 (1983), which had see also losure applied to requested computer programs); suggested implied exception to required public disc Attorney General Opinion DM-41 (1991) (formatting codes are not “information” subject to Act). 201 8 Public Information Act Handbook • Office of the Attorney General 14

31 How the Public Information Act Works C. Personal Notes and E-mail in Personal Accounts or Devices public employees were A few early decisions of the attorney general found certain personal notes of not “information collected, assembled, or maintain ed by governmental bodies pursuant to law or 39 ordinance or in connection with the transaction of official business.” Thus, such personal notes 40 were not considered subject to the Public Information Act. Governmental bodies are advised to use caution in relying on early open records decisions that address “personal notes.” notes are not necessarily excluded from the More recent decisions have concluded personal 41 The characterization of and may be subject to the Act. definition of “public information” information as “public in formation” under the Act is not depend ent on whether the requested records whether a governmental are in the possession of an individual, rather than a governmental body, or establishes a governmental body’s access to the body has a particular policy or procedure that 42 information. tained, or received in connection with a If information was made, transmitted, main governmental body’s official business, the mere fact that the governmental body does not possess 43 rmation outside the scope of the Act. Adkisson v. Paxton , the information does not take the info In the court of appeals considered a request for correspondence related to a county commissioner’s mail accounts. The court concluded the information official capacity from his personal and county e- in the commissioner’s official-capacity e-mails is n ecessarily connected with the transaction of the nd the county owns the information regardless of whether the county’s official business, a in a personal e-mail account or an information is created or received official county e-mail account. Thus, the court held the requested in formation is “public information” subject to the Ac t. This case construes a prior version section 552.002 of the Act, which the 83 rd Legislature amended, along 44 with section 552.003, in 2013. The amended definition of “public information” in section 552.002(a-2) now specifically includes: any electronic communication created, transmitte d, received, or mainta ined on any device transaction of official business. if the communication is in connection with the 39 Open Records Decision No. 77 (1975) (quoting statutory predecessor to Gov’t Code § 552.021). 40 Open Records Decision No. 116 (1975) (portions of desk See calendar kept by governor’s aide comprising notes of private activities and aide’s notes made solely for his own informational purposes are not public information); see also Open Records Decision No. 145 (1976) (handwritten notes on university president’s calendar are not public information). 41 See, e.g. , Open Records Decision Nos. 635 (1995) (public official’s or employee’s appointment calendar, including andwritten notes taken during oral interview by Texas personal entries, may be subject to Act), 626 (1994) (h Department of Public Safety promotion board members are subject to Act), 450 (1986) (handwritten notes taken by appraiser while observing teacher’s classroom performan ce are subject to Act), 120 (1976) (faculty members’ written evaluations of doctoral student’s qualifying exam are subject to Act). 42 See Open Records Decision No. 635 at 3-4 (1995) (information does not fall outside definition of “public information” in Act merely because individual member of government al body possesses information rather than governmental see also Open Records Decision No. 425 (1985) (information sent to individual school trustees’ body as whole); related to official business of gove homes was public information because it rruled on other rnmental body) (ove grounds by Open Records Decision No. 439 (1986)). 43 See Open Records Decision No. 635 at 6-8 (1995) (information maintained on privately-owned medium and actually used in connection with transaction of official business would be subject to Act). 44 Adkisson v. Paxton , 459 S.W.3d 761 (Tex. App.—Austin 2015, no pet.). 201 8 Public Information Act Handbook • Office of the Attorney General 15

32 How the Public Information Act Works Section 552.002(a-1) further defines “information . . . in connection with the transaction of official business” as: intained by an officer or information . . . created by, tr ansmitted to, received by, or ma employee of the governmental body in the offi cer’s or employee’s official capacity, or a person or entity performing o fficial business or a governmental function on behalf of a governmental body, and pertains to offi cial business of the governmental body. “public information” Adopting the attorney general’s long-standing interp retation, the definition of now takes into account the use of electronic de vices and cellular phones by public employees and officials in the transaction of of ficial business. The Act does not distinguish between personal or employer-issued devices, but rather focuses on the na ture of the communication or document. If the information was created, transmitted, received, or ma intained in connection w ith the transaction of which a governmental body has any authority, “official business,” meaning, “any matter over administrative duties, or advisory duties,” the info rmation constitutes public information subject to 45 disclosure under the Act. 2.002 or 552.003. There are no cases or formal d ecisions applying these amendments to section 55 D. Commercially Available Information Section 552.027 provides: (a) the inspection of or to quired under the Act to allow A governmental body is not re ercial book or public ation purchased or provide a copy of information in a comm acquired by the governmental body for resea rch purposes if the book or publication is commercially available to the public. (b) Although information in a book or publicat ion may be made ava ilable to the public as a resource material, such as a library book, a governmental bo dy is not required public information. nse to a request for to make a copy of the information in respo (c) A governmental body shall formation in a book or allow the inspection of in publication that is made part of, incorporated into, or refe rred to in a rule or policy of a governmental body. providing copies of commercially available books, This section is designed to alleviate the burden of publications, and resource materi als maintained by governmental bodies, such as telephone directories, dictionaries, encyclopedias, statut es, and periodicals. Therefore, section 552.027 definition of “public information” under section 552.002 for provides exemptions from the commercially available research ma ubsection (c) of section 552.027, terial. However, pursuant to s a governmental body must of, or referred to in, cation that is made a part allow inspection of a publi a rule or policy of the governmental body. 45 Gov’t Code § 552.003(2-a). 201 8 Public Information Act Handbook • Office of the Attorney General 16

33 How the Public Information Act Works NFORMATION I IV. P ROCEDURES FOR A CCESS TO P UBLIC A. Informing the Public of Basic Rig hts and Responsibilities Under the Act Section 552.205 of the Government Code requi res the officer for pub lic information of a red by the attorney general, that contains basic y a sign, in the form requi governmental body to displa e responsibilities of a gove rnmental body, and the information about the rights of a requestor, th procedures for inspecting or obtai tion under the Public Information ning a copy of public informa 46 Act. d at one or more places in th The sign is to be displaye e administrative offices of the governmental body where it is plai nly visible to members of the p ublic requesting information and employees of the governmental body whose duties i nvolve receiving or responding to requests under the Act. The sign’s format as prescribed by the atto rney general is available on the attorney general’s website. In addition, a chart ou tlining various deadlines to which governmental bodi es are subject can be found in Part Eight of this Handbook . The Request for Public Information B. rmation may require the requestor to A governmental body that receives a verbal request for info ntal body’s duty unde submit that request in writing because the governme r section 552.301(a) to 47 ey general arises only after Open written request. it receives a request a ruling from the attorn Records Decision No. 654 (1997) held the Public Information Act did not require a governmental body to respond to a request for information sent by electronic mail. Howeve r, the 75th Legislature amended section 552.301 by defining a written request for info rmation to include “a request made designated by that officer, formation, or the person the officer for public in in writing that is sent to 48 Therefore, Open Record s Decision No. 654 (1997) by electronic mail or facsimile transmission.” is superseded by the 1997 am endment of section 552.301. e Act or be addressed to the officer for public Generally, a request for information need not name th 49 An overly technical reading of the Act do es not effectuate the purpose of the Act; a information. d to be a request for public information is a written communication that reasonably can be judge 50 However, a request made by electronic request for information under the Public Information Act. be sent to the officer for pub lic information or the officer’s mail or facsimile transmission must 51 are stored in the Texas State Library and Requests for a state agency’s records that designee. Archives Commission’s State a nd Local Records Management Divi sion should be directed to the 52 originating agency, rather than to the state library. 53 rmation that it holds. late a request to info ood faith effort to re A governmental body must make a g A governmental body may ask a requ information if the request is estor to clarify a request for 46 Gov’t Code § 552.205(a). 47 Open Records Decision No. 304 at 2 (1982). 48 Gov’t Code § 552.301(c). 49 Open Records Decision Nos. 497 at 3 (1988), 44 at 2 (1974). See 50 Open Records Decision No. 44 at 2 (1974). 51 Gov’t Code § 552.301(c). 52 Open Records Decision No. 617 (1993). 53 Open Records Decision No. 561 at 8 (1990). 201 8 Public Information Act Handbook • Office of the Attorney General 17

34 How the Public Information Act Works 54 amount of information has been requested, the Section 552.222(b) provides that if a large unclear. the requestor how the scope of the request might be narrowed, governmental body may discuss with 55 but the governmental body may not inquire into the purpose for which information will be used. ered withdrawn if the requestor a request for information is consid Section 552.222 also provides that s written request for clarification or additional does not respond in writing to a governmental body’ 56 information within 61 days. request for clarification or The governmental body’s written of the failure by the requestor a statement as to the consequences additional information must include 57 r information was sent by electronic mail, to timely respond. If the requestor’s original request fo a governmental body may consider the request for information w ithdrawn if the governmental body c mail address from which the original request was sends its request for clarification to the electroni overnmental body does not receive a timely written sent or another electronic mail address, and the g 58 onic mail from the requestor. response or response by electr If the requestor’s original request for information was not sent by electronic mail, a g overnmental body may cons ider the request for information withdrawn if the govern clarification by certified mail to mental body sent its request for body does not receive a timely g address, and the governmental the requestor’s physical or mailin 59 written response from the requestor. When a governme good faith, requests ntal body, acting in clear or overbroad request, the ten business day period to request clarification or narrowing of an un e date the requestor responds to the request for an attorney general ruling is measured from th 60 clarification or narrowing. rtain inquiries of a may, however, make ce A governmental body requestor who seeks information re lating to motor vehicle records to determine if the requestor is 61 authorized to receive the information under the governing statute. Similarly, a governmental body may require a requestor seeking an interior photogra ph taken by an appraisal district for property tax whether the requestor is appraisal purposes to provide additional information sufficient to determine 62 make inquiries of a vernmental body may In addition, a go eligible to receive the photograph. 63 requestor in order to establish proper identification. 64 it applies only to informat ion already in existence. It is implicit in several provisions of the Act that Thus, the Act does not require a governmental body to prepare new information in response to a 65 a requestor if the Furthermore, the Act does not require a govern mental body to inform request. 66 requested information comes into existe nce after the request has been made. Consequently, a st to supply information on a comply with a continuing reque governmental body is not required to 54 Gov’t Code § 552.222(b). 55 Gov’t Code § 552.222(b). 56 Gov’t Code § 552.222(d). 57 Gov’t Code § 552.222(e). 58 Gov’t Code § 552.222(g). 59 Gov’t Code § 552.222(f). 60 City of Dallas v. Abbott , 304 S.W.3d 380, 387 (Tex. 2010). 61 Gov’t Code § 552.222(c) (referencing Transp. Code ch. 730). 62 Gov’t Code § 552.222(c-1). 63 Gov’t Code § 552.222(a). 64 See Gov’t Code §§ 552.002, .021, .227, .351. 65 Fish v. Dallas Indep. Sch. Dist. A & T Consultants, Inc. v. Sharp , 31 S.W.3d 678, , 904 S.W.2d 668, 676 (Tex. 1995); 681 (Tex. App.—Eastland 2000, pet. denied); Attorney General Opinion H-90 (1973); Open Records Decision Nos. 452 at 2–3 (1986), 342 at 3 (1982), 87 (1975). 66 Open Records Decision No. 452 at 3 (1986). 201 8 Public Information Act Handbook • Office of the Attorney General 18

35 How the Public Information Act Works 67 Moreover, the Act does not require a periodic basis as such informati on is prepared in the future. 68 Section 552.227 states governmental body to prepare answers to questions or to do legal research. officer’s agent is not required to perform general that “[a]n officer for public information or the archives and holdings of state libraries.” research within the reference and research 69 Section 552.232 provides for the handling of repetitious or redundant requests. Under this section, a governmental body that receives a request for info rmation for which it determines it has already furnished or made copies available to the requestor upon payment of applicable charges under Subchapter F may respond to the re quest by certifying to the request or that it has already made the tion must include a descri information available to the person. The certifica ption of the information already made available; the date of the governmental body’s receipt of the original request for the information; the date it fu rnished or made the information availa ble; a certification that no changes have been made to the informa tion; and the name, title, and signatu re of the officer for public information, or his agent, who makes the certification. Section 552.0055 provides that a or request for discovery issued in subpoena duces tecum civil or criminal procedure is not considered to be a request for compliance with a statute or rule of lic Information Act. information under the Pub C. The Governmental Body’s Duty to Produce Public Information Promptly The Act designates the chief administrative officer a nd each elected county offi cer as the officer for 70 In general, the officer public information for a governmental body. for public information must 71 protect public information and promptly make it available to the public for copying or inspecting. Section 552.221 specifies the dutie s of the officer for public information upon receiving a request ection 552.221 reads in part: for public information. S (a) An officer for public information of a governmental body shall promptly produce public information for inspectio n, duplication, or both on application by any person mptly” means as soon as possible under the to the officer. In this subsection, “pro circumstances, that is, within a reasonable time, without delay. (b) An officer for public informatio n complies with Subsection (a) by: or duplication in the offices of the (1) providing the public inform ation for inspection governmental body; or 67 Attorney General Opinion JM-48 at 2 (1983); Open Records Decision Nos. 476 at 1 (1987), 465 at 1 (1987). 68 e laws and regulations), request for federal and stat See Open Records Decision Nos. 563 at 8 (1990) (considering 555 at 1–2 (1990) (considering request for answers to fact questions). 69 Gov’t Code § 552.232. 70 Gov’t Code §§ 552.201, .202 (designating officer for public information and identifying department heads as See see also Keever v. Finlan , 988 S.W.2d 300, 301 (Tex. App.—Dallas 1999, pet. dism’d) agents for that officer); (school district superintendent, rather than school board member, is chief administrative officer and custodian of public records). 71 See Gov’t Code § 552.203 (listing general duties of officer for public information). 201 8 Public Information Act Handbook • Office of the Attorney General 19

36 How the Public Information Act Works (2) sending copies of the public informatio n by first class United States mail if the person requesting the information requests that copies be provided and pays the r has accrued under s that the requesto postage and any other applicable charge Subchapter F. (b-1) In addition to the method s of production described by Su bsection (b), an officer for public information for a governmental body of this state complies with Subsection (a) by referring a requestor to an exact Intern et location or uniform resource locator intained by the government (URL) address on a website ma al body and accessible to the public if the requested information is identifiable and readily available on that website. If the person re questing the information prefer s a manner other than access e information in the manner ntal body must supply th through the URL, the governme required by Subsection (b). (b-2) If an officer for public information for a governmental body provides by e-mail an Internet location or unifo rm resource locator (URL) address as permitted by st contain a statement in a conspicuous font clearly Subsection (b-1), the e-mail mu eless access the request ed information by indicating that the requestor may noneth ugh United States mail, as provided by inspection or duplication or by receipt thro 72 Subsection (b). generally a governmental body must either provide Thus, in order to comply with section 552.221, the information for inspection or d opies of the information by first uplication in its offices or send c class United States mail. The 84th Legislature am ended section 552.221 to provide an additional 73 The 85th Legislature expanded this option to apply to all option for a “political subdivision.” 74 A governmental body may comply wi governmental bodies. th section 552.221 by referring the requestor to an exact Internet location or UR L address maintained by the governmental body and accessible to the public, if the re quested information is identifiable and readily accessible on the 75 e-mail to refer the requestor to an Internet location or URL If the governmental body uses website. conspicuous font indicating the requestor may still address, the e-mail must contain a statement in a 76 If the requestor prefers to choose to inspect the information or receive copies of the information. inspect the information or receive copies inst ation on the governmental ead of accessing the inform body’s website, the governmental body must either provide the information for inspection or 77 Although the attorney duplication in its offices or send copies of the information by first class mail. al decision that a public informa tion officer does not fulfill his or general has determined in a form her duty under section 55 2.221 by simply referring a requestor to a governmental body’s website, this decision is superseded by th e amendment to section 552.221. 72 Gov’t Code § 552.221(b-1), (b-2). 73 See Act of May 27, 2015, 84th Leg., R.S., ch. 692, § 1, 2015 Tex. Gen. Laws 2167. 74 Gov’t Code § 552.221(b-1), (b-2). 75 Gov’t Code § 552.221(b-1). 76 Gov’t Code § 552.221 (b-2). 77 Gov’t Code § 552.221(b-1). 201 8 Public Information Act Handbook • Office of the Attorney General 20

37 How the Public Information Act Works An officer for public information information or estor uses public is not responsible for how a requ result of an update, a correction, it is removed from a record as a for the release of information after 78 on to whom the information pertains. or a change of status of the pers The officer for public information must “promptl y” produce public information in response to an 79 open records request. “Promptly” means that a government al body may take a reasonable amount 80 It is a common misconception that a of time to produce the information, but may not delay. governmental body may wait ten busine ss days before releasing the info rmation. In fact, as discussed above, the requirement is to produce information “p romptly.” What constitutes a reasonable amount of time depends on the fact ation requested is highly relevant s in each case. The volume of inform 81 to what constitutes a reas onable period of time. If the request is to inspect the information, the P ublic Information Act requires only that the officer ices of the governmental in charge of public inform r review within the “off ation make it available fo 82 body.” does not trigger a duty office for official use Temporarily transporting records outside the 83 the public wherever they may be. to make the records available to Subsection 552.221(c) states: If the requested information is unavailable at the time of the request to examine because it is in active use or in storage, the officer for public information shall certify this fact in writing to the requestor and set a date and hour within a reasonable ti me when the information will be available fo r inspection or duplication. sted information is in “active use”: The following decisions discuss when reque ary’s handwritten notes are in active use while Open Records Decision No. 225 (1979) — a secret the secretary is typing minutes of a meeting from them; Open Records Decision No. 148 (1 976) — a faculty member’s file is not in active use the entire time the member’s promotion is under consideration; Open Records Decision No. 96 (1975) — directory information about students is in active use while the notice required by the federal Family Educational Rights and Privacy Act of 1974 is being given; and Open Records Decision No. 57 (1 974) — a file containing st udent names, addresses, and telephone numbers is in active use during registration. 78 Gov’t Code § 552.204; Open Records Decision No. 660 at 4 (1999). 79 see Dominguez v. Gilbert Gov’t Code § 552.221(a); , 48 S.W.3d 789, 792 (Tex. App.—Austin 2001, no pet.); Open Records Decision No. 665 (2000). 80 Open Records Decision No. 467 at 6 (1987). Gov’t Code § 552.221(a); see 81 Open Records Decision No. 467 at 6 (1987). 82 Gov’t Code § 552.221(b). 83 , 929 S.W.2d 630, 632 (Tex. App.—Austin 1996, no writ). Conely v. Peck 201 8 Public Information Act Handbook • Office of the Attorney General 21

38 How the Public Information Act Works spection or duplication lic information for in ation cannot produce pub If an officer for public inform within ten business days after the date the inform ation is requested, section 552.221(d) requires the officer to “certify that fact in writing to the requ estor and set a date and hour within a reasonable spection or duplication.” on will be available for in time when the informati tion 552.221(e) of the Govern ment Code, which provides: The 85th Legislature added sec A request is considered to have been withdrawn if inspect or duplicate the the requestor fails to public information in the office of the governmental body on or be fore the 60th day after the date the information is made available or fails to pay the postage and any other applicable charges accrued under Subchapter F on or be r the date the requestor is informed of fore the 60th day afte 84 the charges. withdrawn if, after the 60th day, the requestor does not appear to A request may now be considered inspect the information, fails to pick up the informa tion, or fails to pay any applicable charges for the information. The Requestor’s Right of Access D. from inquiring into a requestor’s reasons The Public Information Act prohibits a governmental body or motives for requesting informa treat all requests for rnmental body must tion. In addition, a gove .222 and 552.223 provide as follows: information uniformly. Sections 552 § 552.222. Permissible Inquiry by Governmental Body to Requestor ion and the officer’s agent m ay not make an inquiry of The officer for public informat (a) a requestor except to esta blish proper identification or except as provided by 85 Subsection (b), (c), or (c-1). unclear to the gover If what information is requested is nmental body, the (b) arify the request. If a large amount of governmental body may ask the requestor to cl ernmental body may discuss with the information has been requested, the gov be narrowed, but the governmental body requestor how the scope of a request might r which information will be used. may not inquire into the purpose fo (c) If the information requested relates to a mo tor vehicle record, the officer for public provide additional information or the officer’s agent may requ ire the requestor to ficer’s agent to determine identifying information suffici ent for the officer or the of whether the requestor is eligible to receive the information under Chapter 730, Transportation Code. In this subsection, “motor vehicle record” has the meaning assigned that term by Sectio n 730.003, Transp ortation Code. photograph described by Section 552.155(a), (c-1) If the information requested includes a requestor to ion or the officer’s agent ma the officer for public informat y require the r the officer or the officer’s agent to provide additional information sufficient fo 84 Gov’t Code § 552.221(e). 85 Gov’t Code § 552.222(a). 201 8 Public Information Act Handbook • Office of the Attorney General 22

39 How the Public Information Act Works determine whether the requestor is elig ible to receive the information under 86 Section 552.155(b). § 552.223. Uniform Treatment of Requests for Information The officer for public inform ation or the officer’s agent shall treat all requests for information uniformly without re gard to the position or occu pation of the requestor, the the individual as a member of st is made, or the status of person on whose behalf the reque the media. Although section 552.223 requires an officer for public inform ation to treat all requests for 552.028 provides as follows: information uniformly, section accept or comply with a request for A governmental body is not required to (a) information from: (1) an individual who is im prisoned or confined in a correctional facility; or vidual’s attorney when the (2) an agent of that indivi dual, other than that indi losure under this chapter. attorney is requesting informat ion that is subject to disc a governmental body from disclosing to an individual This section does not prohibit (b) described by Subsection (a)(1), or that indi vidual’s agent, information held by the governmental body pertaining to that individual. (c) In this section, “corr ectional facility” means: .07, Penal Code; (1) a secure correctional facility, as de fined by Section 1 (2) a secure correctional facility and a se cure detention fac ility, as defined by Section 51.02, Family Code; and (3) a place designated by the law of this stat e, another state, or the federal government for, charged with, or convicted of a for the confinement of a person arrested criminal offense. rnmental body is not requi Under section 552.028, a gove red to comply with a request for information from an inmate or his agent, other than the inma te’s attorney, even if the requested information 87 pertains to the inmate. prohibit a governmental body from While subsection (b) does not 88 st, it does not mandate compliance. complying with an inmate’s reque 86 Gov’t Code § 552.222(c-1). 87 , 976 S.W.2d See Harrison v. Vance , 34 S.W.3d 660, 662–63 (Tex. App.—Dallas 2000, no pet.); Hickman v. Moya Moore v. Henry 360, 361 (Tex. App.—Waco 1998, pet. denied); , 960 S.W.2d 82, 84 (Tex. App.—Houston [1st Dist.] 1996, no writ). 88 , 960 S.W.2d 82, 84 (Tex. App.—Houston [1st Dist.] 1996, no writ); Open Records Decision No. 656 Moore v. Henry for voter registration information under ov’t Code § 552.028 applies to request at 3 (1997) (statutory predecessor to G Elec. Code § 18.008 when request is from incarcerated individual). 201 8 Public Information Act Handbook • Office of the Attorney General 23

40 How the Public Information Act Works Generally, a requestor may choose to inspect or co py public information, or to both inspect and copy 89 al body may charge the requestor for public information. In certain circumstances, a government e requested information. access to or copies of th 1. Right to Inspect Generally, if a requestor chooses to inspect publ ic information, the requestor must complete the inspection within ten business days after the da te the governmental body makes the information 90 available or the request will be eration of law. withdrawn by op However, a governmental body is required to extend the inspection period by an a upon receiving a written dditional 10 business days 91 request for additional time. If the information is needed by the governmental body, the officer for 92 When a public information may interrupt a request or’s inspection of public information. tion of public information, the period of governmental body interrupts a requestor’s inspec 93 interruption is not part of the ten business day inspection period. A governmental body may promulgate policies that are consis tent with the Public Information Act for efficient, safe, and speedy 94 inspection and copying of public information. 2. Right to Obtain Copies ntal body must provide “a suitable copy . . . If a copy of public information is requested, a governme 95 However, the Act does te on which the copy is requested.” within a reasonable time after the da not authorize the removal of an original copy of a public record from the office of a governmental 96 body. If the requested records are copyrighted, th e governmental body must comply with federal 97 copyright law. y may receive a request for a public record A governmental bod that contains both publicly available ontained both publicly volved a document that c and excepted information. In a decision that in re by the statutory predecessor n that was excepted from disclosu available information and informatio the Act did not permit the governmental body to to section 552.111, the attorney general determined provide the requestor with a new document created in response to the request on which the publicly available information had been co nsolidated and retyped, unless th e requestor agreed to receive a 98 Rather, the attorney general concl uded that the statutory predecessor to retyped document. 89 Gov’t Code §§ 552.221, .225, .228, .230. 90 . 512 (1988) (statutory pr edecessor to Gov’t Code § Open Records Decision No see also Gov’t Code § 552.225(a); rmation or authorize governmental body to deny repeated 552.225 did not apply to requests for copies of public info requests for copies of public records). 91 Gov’t Code § 552.225(b). 92 Gov’t Code § 552.225(c). 93 Gov’t Code § 552.225(c). 94 Attorney General Opinion JM-757 (1987) (governmental bodies may deny requests for see Gov’t Code § 552.230; safety or unreasonable disruption of business). information when requests raise questions of 95 Gov’t Code § 552.228(a). 96 Gov’t Code § 552.226. 97 Open Records Decision No. 660 at 5 (1999) (Federal Copyright Act “may not be used to deny access to or copies See of the information sought by the requestor under the Public Information Act,” but a governmental body may place ation consistent with rights of copyright owner). reasonable restrictions on use of copyrighted inform 98 Open Records Decision No. 606 at 2–3 (1992). 201 8 Public Information Act Handbook • Office of the Attorney General 24

41 How the Public Information Act Works section 552.228 required the governme ntal body to make av ailable to the public copies of the actual public records the governmental body had collecte d, assembled, or maintained, with the excepted 99 information excised. The public’s right to suitable co pies of public information has be en considered in the following decisions: Attorney General Opinion JM-757 to allow members al body may refuse (1987) — a government of the public to duplicate public records by means of portable copying equipment when it is unreasonably disruptive of working conditions , when the records contain confidential or when it would interf ere with other persons’ information, when it would cause safety hazards, rights to inspect and copy records; Open Records Decision No. 660 (1999) — section 52(a) of artic le III of the Texas Constitution thority from releasing a computer generated does not prohibit the Port of Corpus Christi Au digital map, created by the Port with public funds, in response to a request made under Chapter 552 of the Government Code; Open Records Decision No. 633 ( not comply with the Public 1995) — a governmental body does y specifically a substitute for an the requestor another record as Information Act by releasing to e report that are not excepted from required public disclosure, requested portions of an offens unless the requestor agrees to the substitution; Open Records Decision No. 571 on Act does not give a member (1990) — the Public Informati public records; and of the public a right to use a computer term inal to search for mental body is not required to compile or Open Records Decision No. 243 (1980) — a govern extract information if the inform giving the requestor access to ation can be made available by 100 the records themselves. E. Computer and Electronic Information Section 552.228(b) provides: If public information exists in an electro nic or magnetic medium, the requestor may request a copy in an electronic medium, such magnetic tape. A as on diskette or on governmental body shall provide a co py in the requested medium if: ogical ability to produce a copy of the (1) the governmental body has the technol requested information in the requested medium; (2) the governmental body is not required to purchase any software or hardware to accommodate the request; and 99 Open Records Decision No. 606 at 2–3 (1992). 100 Open Records Decision Nos. 512 (1988), 465 (1987), 144 (1976). See also 201 8 Public Information Act Handbook • Office of the Attorney General 25

42 How the Public Information Act Works in the requested medium will not violate (3) provision of a copy of the information een the governmental body and a third the terms of any copyright agreement betw 101 party. If a governmental body is unable to provide the info rmation in the requested medium for any of the reasons described by section 55 2.228(b), the governmental body sh all provide the information in 102 another medium that is a cceptable to the requestor. A governmental body is not required to use material provided by a requestor, such as a diske tte, but rather may use its own supplies to comply 103 with a request. A request for public informatio body to program or manipulate n that requires a governmental 104 existing data is not consid ered a request for the creation of new information. If a request for public 105 ng or manipulation of data,” information requires “programmi and “compliance with the request 106 is not feasible or will result in substa ntial interference with its ongoing operations,” or “the form only at a cost that information could be made available in the requested covers the programming 107 and manipulation of data,” a governmental body is required to provide the requestor with a written statement describing the form in wh ich the information is available, a description of what would be required to provide the information in the requested form, and a statement of the estimated cost and 108 body shall provide the The governmental time to provide the informa tion in the requested form. after the date the governmental body received the statement to the requestor within twenty days 109 n notice within the al body gives writte If, however, the government twenty days that request. additional time is needed, the governmental b ody has an additional ten days to provide the 110 Once the governmental body provides the stat ement to the requestor, the governmental statement. body has no obligation to provide the requested information in th e requested form unless within 111 to the governmental thirty days the requestor responds If the requestor does not body in writing. 112 request is considered withdrawn. respond within thirty days, the 101 Gov’t Code § 552.228(b). 102 Gov’t Code § 552.228(b). 103 Gov’t Code § 552.228(c). 104 , 31 S.W.3d 678, 681–82 (Tex. App.—Eastland 2000, pet. denied); Fish v. Dallas Indep. Sch. Dist. Gov’t Code see § 552.231; Attorney General Opinion H-90 (1973); Open Records Decision Nos. 452 at 2–3 (1986), 87 (1975). 105 Gov’t Code § 552.231(a)(1); see Gov’t Code § 552.003(2), (4) (defining “manipulation” and “programming”). 106 Gov’t Code § 552.231(a)(2)(A). 107 Gov’t Code § 552.231(a)(2)(B). 108 Fish v. Dallas Indep. Sch. Dist. Gov’t Code § 552.231(a), (b); see , 31 S.W.3d 678, 682 (Tex. App.—Eastland 2000, pet. denied); Open Records Decision No. 661 at 6–8 (1999). 109 Gov’t Code § 552.231(c). 110 Gov’t Code § 552.231(c). 111 , 31 S.W.3d 678, 682 (Tex. App.—Eastland 2000, Fish v. Dallas Indep. Sch. Dist. See also Gov’t Code § 552.231(d). pet. denied); Open Records Decision No. 661 (1999) (Gov’t Code § 552.231 enables governmental body and requestor to reach agreement as to requiring programming or of responding to request cost, time and other terms manipulation of data). 112 Gov’t Code § 552.231(d-1). 201 8 Public Information Act Handbook • Office of the Attorney General 26

43 How the Public Information Act Works V. D ISCLOSURE TO S ELECTED P ERSONS A. General Rule: Under the Public Information Act, Public Information is Available to All Members of the Public ailable to “the The Public Information Act states in several provisions that public information is av 113 tion Act deals primarily with people,” “the public,” and “any person.” Thus, the Public Informa the general public’s access to info rmation; it does not, as a general matter, give an individual a ng that individual that is not otherwise public “special right of access” to information concerni 114 information. Information that a governme ntal body collects, assembles or maintains is, in general, either open to all members of the public or closed to all members of the public. Additionally, section 552.007 prohibi ts a governmental body from se lectively disclosing information that is not confidential by law but that a govern mental body may withhol d under an exception to 2.007 provides as follows: disclosure. Section 55 (a) This chapter does not prohibit a govern mental body or its officer for public all of its informat ion available to the information from voluntarily making part or prohibited by law or the information is public, unless the disclosure is expressly confidential under law. (b) bsection (a) must be made available to Public information made available under Su 115 any person. y releases to a member If, therefore, a governmental bod idential information, of the public nonconf mbers of the public who request release the information to all me then the governmental body must it. For example, in rendering an open records decision under section 552.306, the attorney general ized the governmental would not consider a governmental body’s claim th at section 552.111 author al body had already disclosed the body to withhold a report fr om a requestor when the government 116 report to another member of the public. Selected Individuals or Entities Do Some Disclosures of Information to B. Not Constitute Disclosures to the Public Under Section 552.007 As noted, the Public Information Act prohibits the selective disclo sure of information to members ody may, however, have authority to disclose records to certain of the public. A governmental b sclosures being voluntary disclosu res to “the public” within the persons or entities without those di 113 , Gov’t Code §§ 552.001, .021, .221(a). The Act does not require a requestor be a Texas resident or an See, e.g. American citizen. 114 Attorney General Opinion JM-590 at 4 (1986); Open Records see also Open Records Decision No. 507 at 3 (1988); Decision No. 330 at 2 (1982). 115 See also Open Records Decision No. 463 at 1–2 (1987). 116 see Open Records Decision No. 400 at 2 (1983) (construi ng statutory predecessor to Gov’t Code § 552.111); See , 994 S.W.2d 258, 265 (Tex. App.—Austin 1999, no pet.) (information released also Cornyn v. City of Garland pursuant to discovery in litigation was not voluntarily rel eased and thus was excepted from disclosure under Public Information Act). 201 8 Public Information Act Handbook • Office of the Attorney General 27

44 How the Public Information Act Works meaning of section 552.007 of th e Government Code. In these cases, the governmental body or disclosing the records losure by transferring normally does not waive applicable exceptions to disc to these specific persons or entities. ssly Inapplicable to a Specific 1. Special Rights of Access: Exceptions to Disclosure Expre Class of Persons nder the Public Information Act a. Special Rights of Access U blic Information Act pr ovide an individual with special rights of The following provisions in the Pu ation is unavailable to members of the general access to certain information even though the inform public: sections 552.008, 552.023, 552.026, and 552.114. i. Information for Legislative Use Section 552.008 of the Government Code states in pertinent part: (a) withhold information from individual This chapter does not grant authority to members, agencies, or committees of the legi slature to use for legislative purposes. A governmental body on request by an individual member, agency, or committee of (b) public information, includin the legislature shall provide g confidential information, agency, or committee for insp ection or duplication in to the requesting member, questing member, agency, or committee states accordance with this chapter if the re ter for legislative purposes. is requested under this chap that the public information Section 552.008 provides that a go vernmental body shall provide co pies of information, including tion, to an individual member, agency, or committee of the legislature if confidential informa 117 requested for legislative purposes. The section provides that disclo sure of excepted or confidential information to a legislator does no t waive or affect the confidentiality of the information or the right information, and provides specific procedures to assert exceptions in the future regarding that 118 obtains confidential relating to the confidential treatment of the information. An individual who mmits an offense if that pers on misuses the information or information under section 552.008 co 119 discloses it to an unauthorized person. Subsections (b-1) and (b-2) of section 552.008 provide: (b-1) A member, committee, or agency of the legislature required by a governmental body agreement under Subsection (b ) may seek a decision as to sign a confidentiality provided by Subsection (b-2) about whether the information covered by the confidentiality agreement is confidential under law. A confid entiality agreement signed under Subsection (b ) is void to the extent that the agreement covers 117 See , 311 S.W.3d 663 (Tex. App.—Austin 2010, pet. denied) (Gov’t Code Tex. Comm’n on Envtl. Quality v. Abbott legislative purposes attorney-client privileged documents § 552.008 required commission to release to legislator for subject to confidentiality agreement). 118 Gov’t Code § 552.008(b). 119 Gov’t Code § 552.352(a-1). 201 8 Public Information Act Handbook • Office of the Attorney General 28

45 How the Public Information Act Works information that is finally determined und er Subsection (b-2) to not be confidential under law. (b-2) The member, committee, or agency of the legislature may seek a decision from the tter. The attorney general by rule shall establish attorney general about the ma procedures and deadlines for receiving info rmation necessary to decide the matter mental body, and any other interested and briefs from the requestor, the govern person. The attorney genera l shall promptly render a decision requested under this subsection, determining whether the info rmation covered by the confidentiality ter than the 45th bu siness day after the agreement is confidential under law, not la on under this subsection. date the attorney general r eceived the request for a decisi sue a written decision on th e matter and provide a copy The attorney general shall is mental body, and any interested person of the decision to the requestor, the govern who submitted necessary information or a brief to the attorney general about the body may appeal a decision of the matter. The requestor or the governmental attorney general under this su bsection to a Travis County district court. A person may appeal a decision of th e attorney general under this subsection to a Travis a proprietary interest in the information County district court if the person claims ation that a confidentiality affected by the decision or a privacy interest in the inform 120 law or judicial decision is designed to protect. If a member of the legislature signs a confiden bsequently believes the tiality agreement but su has released pursuant to secti on 552.008 is not confidential, the information the governmental body 121 st an attorney general decision regard member may reque ing the confidentiality of the information. the information is not confiden tial, any confiden tiality agreement If the attorney general determines the member signed is void. The attorney general promulgated rules relating to its decisions under 122 section 552.008(b-2). These rules are available on the attorn ey general’s website and in Part Four Handbook of this . ii. Information About the Person Who Is Requesting the Information Section 552.023 of the Government Code provides an individual with a limited special right of access to information about that individual . It states in pertinent part: tive has a special right of access, beyond A person or a person’s authorized representa (a) the right of the general public, to inform ation held by a governmental body that relates to the person and that is protected from public disclosure by laws intended to protect that person’s privacy interests. (b) A governmental body may not deny access to informatio n to the person, or the whom the information relates on the grounds that the person’s representative, to information is considered confidential by privacy principles under this chapter but may assert as gr ounds for denial of a ccess other provisions of this chapter or other law that are not intended to protec t the person’s privacy interests. 120 Gov’t Code § 552.008(b-1), (b-2). 121 , Open Records Letter No. 2013-08637 (2013). , e.g. See 122 1 T.A.C. §§ 63.1–.6. See 201 8 Public Information Act Handbook • Office of the Attorney General 29

46 How the Public Information Act Works ent a governmental body from asserting an Subsections (a) and (b) of section 552.023 prev at individual. However, the on for withholding records from th individual’s own privacy as a reas under section 552.023 does individual’s right of access to private informatio n about that individual or confidentiality laws protecting re in the Public Information Act not override exceptions to disclosu 123 some interest other than that individual’s privacy. The following decisions consider the statutory predecessor to section 552.023: Open Records Decision No. 684 (2009) — when requestor is a person whose privacy interests are protected under section 552.13 0, concerning certain motor vehicle information, or section ce information, requestor has a ri ght of access to the information 552.136, concerning access devi under section 552.023; ly Code section 34.08, which Open Records Decision No. 587 (1991) — because former Fami made confidential reports, records, and working pape rs used or developed in an investigation of enforcement interests as well as privacy interests, the statutory alleged child abuse, protected law predecessor to section 552.023 did not provide the subject of the information a special right of e investigation file; access to the child abus 7 (1990) — under the Communica ble Disease Prevention and Open Records Decision No. 57 hority relating to disease or health the possession of a local health aut Control Act, information in the person identified in the be released with the consent of conditions is confidential but may information; because this confid designed to protec t the privacy of the entiality provision is subject of the information, the statutory predecess or to section 552.023 auth orized a local health authority to release to the subj ect medical or epidemiological in formation relating to the person who signed the consent. iii. Information in a Stud ent or Education Record Section 552.114 of the Government Code, which defines “student record” and deems such records body must make such confidential, states a governmental the information is information available if volved or the student’s parent, titution personnel; 2) the student in requested by: 1) educational ins legal guardian, or spouse; or 3) a person cond ucting a child abuse investigation pursuant to 124 Subchapter D of Chapter 261 of the Family Code. the Government Code, Section 552.026 of quirements of the federal Family Educational Rights and Privacy which conforms the Act to the re 123 See Open Records Decision No. 556 (1990) (predecessor statute to section 552.111 applied to requestor’s claim , 391 S.W.3d 253, 260 (Tex. App.—Austin 2012, no pet.) see also Abbott v. Tex. State Bd. of Pharmacy information); y provision protected integrity of boa rd’s regulatory process, board’s (because Pharmacy Act confidentialit withholding of requestor’s records was based on law not inte nded solely to protect requestor’s privacy interest); Tex. State Bd. of Chiropractic Exam’rs v. Abbott , 391 S.W.3d 343, 351 (Tex. App.—Austin 2013, no pet.) (because provision making board’s investigation records confidential protected integrity of board’s regulatory process rather than requestor’s privacy interest rd from denying access to requested , section 552.023 did not prevent boa information). 124 Gov’t Code § 552.114(a), (b), (c). 201 8 Public Information Act Handbook • Office of the Attorney General 30

47 How the Public Information Act Works 125 126 Act of 1974 (“FERPA”), also incorporates the rights of access established by that federal law. 127128 To the extent FERPA conflicts with st ate law, the federal statute prevails. b. Special Rights of Access Created by Other Statutes Statutes other than the Act grant specific entities or individuals a spec ial right of access to specific kes information about a information. For example, section 901.160 of the Occupations Code ma d of Public Accountancy available licensee held by the Texas State Boar for inspection by the licensee. Exceptions in the Act cannot authorize the board ation from the licensee to withhold this inform 129 because the licensee has a statutory right to the specific information requested. As is true for the right of access provided under section 552.023 of the Ac t, a statutory right of access does not affect the governmental body’s authority to rely on applicable exceptions to disclosure when the information is requested by someone other than an individual with a special right of access. 2. Intra- or Intergovernmental Transfers The transfer of information within a government al body or between governmental bodies is not necessarily a release to the public fo r purposes of the Act. For exam ple, a member of a governmental body, acting in his or her official capacity, is not a member of the public for purposes of access to ed official may review records ’s possession. Thus, an authoriz information in the governmental body 130 e Act’s prohibition against selective disclosure. of the governmental body without implicating th Additionally, a state agency may ordi agency or to another ation to another state narily transfer inform governmental body subject to the Public Information Act without vi olating the confidentiality of the 131 information or waiving exceptions to disclosure. an open records law that differs from the Texas On the other hand, a federal agency is subject to Public Information Act. A state governmental b ody, therefore, should not transfer non-disclosable information to a federal agency unless some law requires or authorizes the state governmental body 125 20 U.S.C. § 1232g. 126 Open Records Decision No. 431 at 2–3 (1985). 127 Open Records Decision No. 431 at 3 (1985). 128 Open Records Decision No. 431 at 3 (1985). 129 Open Records Decision No. 451 at 4 (1986); see also Open Records Decision Nos. 500 at 4–5 (1988) (considering property owner’s right of access to appraisal records under Ta x Code), 478 at 3 (1987) (c onsidering int oxilyzer test atutory predecessor to Transp. Code § 724.018). subject’s right of access to test results under st 130 see also See Attorney General Opinions JC-0283 at 3–4 (2000), JM-119 at 2 (1983); Open Records Decision Nos. 678 at 4 (2003) (transfer of county registrar’s list of registered voters to secretary of state and election officials is not release to public prohibited by Gov’t Code § 552.1175), 674 at 4 (2001) (information in archival state records that was confidential in custody of originating governmental body remains confidential upon transfer to commission), 666 at 4 (2000) (municipality’s disclosure to municipally appoi nted citizen advisory board of information pertaining release to public as contemplated under Gov’t Code § to municipally owned power utility does not constitute 552.007), 464 at 5 (1987) (distribution of evaluations by university faculty members among faculty members does neral public) (overruled on other grounds by Open Records not waive exceptions to disclosure with respect to ge Decision No. 615 (1993)). 131 Attorney General Opinions H-917 at 1 (1976), H-242 at 4 (1974); Open Records Decision Nos. 667 at 3–4 See Attorney General Opinion JM-590 at 4–5 (1986) (comptroller’s release to city But see (2000), 661 at 3 (1999). prohibited where Tax Code made information confidential, enumerated entities to which information may be disclosed, and did not include city among enumerated entities). 201 8 Public Information Act Handbook • Office of the Attorney General 31

48 How the Public Information Act Works 132 state records with the “same eye towards A federal agency may not maintain the to do so. 133 be bound to do under the laws of Texas.” confidentiality that state agencies would atute specifically enumerates the entities to which Where information is confidential by statute, the st ed, and the governmental body is the information may be releas not among those entities, the 134 information may not be transfe rred to the governmental body. 3. Other Limited Disclosures That Do Not Implicate Section 552.007 contexts in which a governmental body’s limited The attorney general has recognized other specific not constitute a release to “the public” under release of information to certain persons does section 552.007: — exchanging information among litigants in Open Records Decision No. 579 at 7 (1990) nder the statutory predecessor to section 552.007; informal discovery was not a voluntary release u Open Records Decision No. 501 (1988) — while former article 9.39 of the Insurance Code asing escrow reports to prohibited the State Board of Insurance from rele the public, the Board could release the report to the title co mpany to which the report related; Open Records Decision No. 454 at ntal body that disclosed information it 2 (1986) — governme reasonably concluded it had a constitutional obl igation to do so could still invoke statutory predecessor to section 552.108; and Open Records Decision nst selective disclosure does not No. 400 (1983) — the prohibition agai apply when a governmental body releases confidential information to the public. 132 , Open Records Letter No. 2017-09880 (2017) (United States e.g. , Open Records Decision No. 650 at 4 (1996); See formation in certain city police records). Army provided right of access unde r federal law to criminal history record in 133 Attorney General Opinion H-242 at 4 (1974); Attorney General Opinion MW-565 at 4 (1982); Open Records accord Decision No. 561 at 6 (1990) (quoting with approval Attorney General Opinion H-242 (1974)). 134 Attorney General Opinion JM-590 at 5 (1986); Open Records Decision Nos. 661 at 3 (1999), 655 at 8 See generally (1997), 650 at 3 (1996). 201 8 Public Information Act Handbook • Office of the Attorney General 32

49 How the Public Information Act Works HETHER W ETERMINES D ENERAL G VI. A TTORNEY I E S S I XCEPTION NFORMATION UBJECT TO AN Duties of the Governmental Body and of the Attorney General Under A. Subchapter G mental body to seek the attorney Sections 552.301, 552.302, and 552.303 set out the duty of a govern general’s decision on whether information is excepted from disclosure to the public. Section 552.301, subsections (a), (b), and (c), pr ovide that when a governmental body receives a wishes to withhold, it must seek an attorney written request for information the governmental body general decision within ten business days of its r eceipt of the request and state the exceptions to disclosure that it believes are applicable . Subsections (a), (b), and (c) read: that it wishes to (a) A governmental body that receives a written request for information withhold from public disclo to be within one of the sure and that it considers exceptions under Subchapter C must ask fo r a decision from the attorney general that exception if th about whether the information is within ere has not been a t whether the information one of the falls within previous determination abou exceptions. . . . (b) ask for the attorney genera l’s decision and state the The governmental body must a reasonable time but not la ter than the 10th business exceptions that apply within iving the written request. day after the date of rece (c) For purposes of this subchapt er, a written request includes a request made in writing that is sent to the officer for public information, or th e person designated by that officer, by electronic mail or facsimile transmission. information from the pub Thus, a governmental body that wishes to withhold lic on the ground of an exception generally must seek the de to the applicability of that cision of the attorney general as 135 exception. the Act may timely request a nding that it is not subject to In addition, an entity conte decision from the attorney gene ral to avoid the conseq uences of noncomplia nce if the entity is 136 Therefore, when requesting su ch a decision, the entity should determined to be subject to the Act. not only present its arguments as to why it is not subject to the Act, but should also raise any s apply to the requested information. exceptions to required disclosure it believe 135 , 71 S.W.3d 473, 480 (Tex. App.—Austin 2002, no pet.); , 48 S.W.3d 789, Dominguez v. Gilbert Thomas v. Cornyn 792 (Tex. App.—Austin 2001, no pet.); Open Records Decision Nos. 452 at 4 (1986), 435 (1986) (referring specifically to statutory predecessors to Gov’t Code §§ 552.103 and 552.111, respectively); see Conely v. Peck , 929 S.W.2d 630, 632 (Tex. App.—Austin 1996, no writ) (requireme nt to request open records decision within ten days requested information or asserts exception to public comes into play when governmental body denies access to disclosure of information). 136 See Blankenship v. Brazos Higher Educ. Auth., Inc. , 975 S.W.2d 353, 362 (Tex. App.—Waco 1998, pet. denied) (entity does not admit it is governmental body by virt ue of request for opinion from attorney general). 201 8 Public Information Act Handbook • Office of the Attorney General 33

50 How the Public Information Act Works general decision if there has been a previous A governmental body need not request an attorney 137 What determination that the requested material falls within one of the exce ptions to disclosure. constitutes a “previous determination” is narrow in scope, and governmental bodies are cautioned against treating most published attorney general deci sions as “previous determinations” to avoid the ral has determined that there are two types of requirements of section 552.301(a). The attorney gene 138 previous determinations. common instance of a previous The first and by far the most determination pertains to specific information that a governmental body is again requested from when the attorney general has prev aluates the public availability of iously issued a decision that ev of a previous determination does not the precise information or records at issue. This first instance submitted to the attorney general apply to records that are substantia lly similar to records previously for review, nor does it apply to information that ma category as any given y fall within the same ruled. The first type of previous determination records on which the attorney general has previously a be met: llowing criteri requires that all of the fo 1. previously submitted to information that was the information at issue is precisely the same the attorney general pursuant to secti on 552.301(e)(1)(D) of the Government Code; 2. ved the request for the informa the governmental body that recei tion is the same governmental ved a ruling from the attorney general; body that previously requested and recei e precise information is or is not excepted the attorney general’s prior ruling concluded th 3. from disclosure under the Act; and the law, facts, and circumstan ces on which the prio r attorney general ruling was based have 4. 139 not changed since the issuance of the ruling. e second type of previous Absent all four of the above criteria, and unless th determination applies, a governmental body must ask for a deci sion from the attorney general if it wishes to withhold from the public information that is requested under the Act. The second type of previous determination requir es that all of the follo wing criteria be met: within a specific, clearly delin the information at issue falls eated category of information 1. about which the attorney general has previously rendered a decision; e particular governmental body or type of the previous decision is applicable to th 2. 140 governmental body from which th e information is requested; 137 , 48 S.W.3d 789, 792–93 (Tex. App.—Austin 2001, no pet.). Dominguez v. Gilbert Gov’t Code § 552.301(a); 138 Open Records Decision No. 673 (2001). 139 A governmental body should request a decision from the atto rney general if it is unclear to the governmental body whether there has been a change in the law, facts or circumstances on which the prior decision was based. 140 See, to all governmental bodies if the decision so provides. Previous determinations of the second type can apply , Open Records Decision No. 670 (2001) (all governmental bodies may withhold information subject to e.g. ey general decision). On the other predecessor of Gov’t Code § 552.117(a)(2 ) without necessity of seeking attorn hand, if the decision is addressed to a particular governmental body and does not explicitly provide that it also applies to other governmental bodies or to all governmental bodies of a certain type, then only the particular governmental , Open See, e.g. body to which the decision is addressed may rely on the decision as a previous determination. rmination but only with respect to ting second type of previous dete Records Decision No. 662 (1999) (constitu information held by Texas Department of Health). 201 8 Public Information Act Handbook • Office of the Attorney General 34

51 How the Public Information Act Works the specific, clearly delineated the previous decision concludes category of information is or 3. is not excepted from disclosure under the Act; 4. the elements of law, fact, and circumstance s are met to support the previous decision’s ation at issue is or is not excepted from conclusion that the requested records or inform 141 required disclosure; and 5. e governmental body or bodies to which the the previous decision explicitly provides that th decision applies may withhold th e information without the necessity of again seeking a decision from the attorney general. ria, and unless the firs termination applies, a t type of previous de Absent all five of the above crite general if it wishes to withhold k for a decision from the attorney governmental body must as requested information from the public under the Act. termination is found in Open Records Decision An example of this second type of previous de termined that pursuant to the statutory predecessor No. 670. In that decision, the attorney general de of section 552.117(a)(2) of the Government Co may withhold the home de, a governmental body personal cellular telephone number, personal pager number, social address, home telephone number, security number, and information that reveals wh ether the individual has family members, of any ng a decision from the ficer” without requesti individual who meets the definition of “peace of attorney general. The governmental body ma y not unilaterally decide to withhold information on the basis of a prior legal standard for an ex ception, as established open records decision merely because it believes the 142 in the prior decision, applies to the recently requested information. When in doubt, a governmental body should consult with the Open Records Division of the Office of the Attorney General prior to the ten business day deadline to determine whether requested 143 a previous determination. information is subject to A request for an open records decision pursuant to section 552.301 must come from the 144 Otherwise, the attorney a written request for information. governmental body that has received general does not have jurisdiction under the Act to determine whether the information is excepted from disclosure to the public. seeking an attorney general Section 552.301(f) expressly prohi bits a governmental body from decision where the attorney general or a court has al ready determined that th e same information must 141 Thus, in addition to the law remaining unchanged, the fact s and circumstances must also have remained unchanged to the extent necessary for all of the requisite elements to be met. With respect to previous determinations of the request a decision from the attorney general if it is unclear to the second type, a governmental body should e previous decision’s conclusion was based have been governmental body whether all of the elements on which th ed records or information. met with respect to the request 142 on under litigation exception). Open Records Decision No. 511 (1988) (no unilatera l withholding of informati 143 See ey general has broad discretion to determine whether Open Records Decision No. 435 at 2–3 (1986) (attorn information is subject to previous determination). 144 Open Records Decision Nos. 542 at 3 (1990), 449 (1986). 201 8 Public Information Act Handbook • Office of the Attorney General 35

52 How the Public Information Act Works om asking for be released. Among other thin gs, this provision precludes a gove rnmental body fr neral decision that concluded th reconsideration of an attorney ge e governmental body must release information. Subsection (f) provides: ease the requested informatio A governmental body must rel n and is prohibited from (f) general about whether information requested asking for a decision from the attorney within an exception under Subchapter C if: under this chapter is (1) the governmental body has previously requested and received a determination from the attorney general concer ning the precise information at issue in a pending request; and (2) the attorney general or the information is public a court determined that apter that is not except information under this ch ed by Subchapter C. Section 552.301(g) authorizes a governmental body to ask for another attorney general decision if: ttorney general; (2) the attorney (1) a suit challenging the prior decisi on was timely filed against the a e request for the information in general determines that the requ estor has voluntarily withdrawn th 145 writing or has abandoned the request; and (3) the parties agree to dismiss the lawsuit. general decision as to l body seeks an attorney Section 552.301(d) provides that if the governmenta questor not later than the 10th formation, it must notify the re whether it may withhold requested in business day after its receipt of th e written request that it is seeking an attorney general decision. Section 552.301(d) reads: (d) ests an attorney general decision under Subsection (a) A governmental body that requ must provide to the requestor within a re asonable time but no t later than the 10th s written request: business day after the date of receivi ng the requestor’ body wishes to withhold the requested (1) a written statement that the governmental neral about whether information and has asked for a decision from the attorney ge ublic disclosure; and in an exception to p the information is with (2) a copy of the governmental body’s wri tten communication to the attorney general ntal body’s written communication to the asking for a decision or, if the governme information, a redacted copy of that attorney general discloses the requested written communication. to mean that a governme The attorney general interprets section 552.301(d)(1) ntal body substantially estor a copy of the governmental body’s written complies with subsection (d)(1) by sending the requ on. Because governme ral requesting a decisi communication to the attorney gene ntal bodies may be ce of their compliance with subsec tion (d), government al bodies are required to submit eviden en seeking an attorney general decision. If a encouraged to submit evidence of their compliance wh ), the requested information is presumed public governmental body fails to comply with subsection (d pursuant to section 552.302. 145 Gov’t Code § 552.301(g). 201 8 Public Information Act Handbook • Office of the Attorney General 36

53 How the Public Information Act Works B. Items the Governmental Body Must Submit to the Attorney General Sections 552.301(e) and (e-1) read: at requests an attorney general A governmental body th decision under Subsection (a) (e) er than the 15th busine must within a reasonable time but not lat ss day after the date of receiving the written request: (1) submit to the attorney general: (A) written comments stating the reasons wh y the stated exceptions apply that would allow the information to be withheld; a copy of the written request for information; (B) (C) a signed statement as to the date on which the written request for ntal body or evidence sufficient information was received by the governme to establish that date; and quested, or submit representative (D) a copy of the specific information re samples of the informatio nt of information was n if a voluminous amou requested; and (2) label that copy of the specific informatio n, or of the representative samples, to indicate which exceptions apply to which parts of the copy. (e-1) A governmental body that submits written comments to the attorney general under rson who requested Subsection (e)(1)(A) shall send a copy of th ose comments to the pe the information from the governmental body th business day after not later than the 15 the date of receiving the wri tten request. If th e written comments di sclose or contain the copy of the comments provided to the the substance of the information requested, person must be a redacted copy. governmental body seeking an attorney general Thus, subsection (e) of section 552.301 requires a decision as to whether it may w ithhold requested inform attorney general, no ation to submit to the later than the fifteenth business day after recei ving the written request, wr itten comments stating why statement as to the date of its the claimed exceptions apply, a copy of the written request, a signed receipt of the request or sufficie opy of the specific information it nt evidence of that date, and a c seeks to withhold, or representative samples thereof, labeled to indicate which exceptions are of the information. Within fift claimed to apply to which parts een business days, a governmental any portion of the comments that requestor on those comments, redacting body must also copy the on. Governmental bodies are cautioned against contains the substance of the requested informati substance of the information requested from the redacting more than that which would reveal the mply with the re quirements of section 552.301 can comments sent to the requestor. A failure to co result in the information being 2.302 of the Government Code. presumed public under section 55 201 8 Public Information Act Handbook • Office of the Attorney General 37

54 How the Public Information Act Works esting the Information from the Person Requ 1. Written Communication A written request includes a request sent by electr onic mail or facsimile transmission to the public 146 information officer or the officer’s designee. A copy of the written request from the member of e attorney general know the public seeking access to the records lets th what information was ine whether the governmental body met its statutory requested, permits the attorney general to determ ttorney general to inform the requestor of the deadlines in requesting a decision, and enables the a 148 147 ruling. These written communications ar e generally public information. om the Governmental Body 2. Information Requested fr Section 552.303(a) provides: A governmental body that requests an attorney general decision under this subchapter shall supply to the attorney general, in ac cordance with Section 552.301, the specific n requested is confidential by law, the information requested. Unless the informatio or to the requestor formation to the public governmental body may disclose the requested in the requested information is kes a final determination that before the attorney general ma public or, if suit is filed un determination that the requested der this chapter, before a final information is public has been iction over the suit, except as made by the court with jurisd otherwise provided by Section 552.322. opy of the information at issue. Original Governmental bodies should submit a clean, legible c records should not be submitte d. If the requested records are voluminous and repetitive, a 149 governmental body may submit representative samples. If, however, each document contains n, a copy of each and every requested document or all information substantially different informatio 150 For example, it is not appropriate to submit a must be submitted to the attorney general. third parties is at issue. In representative sample of information when the proprietary information of ation of each third party with a potential that circumstance, it is necessary to submit the inform formation of one third party as a representative proprietary interest rather than submitting the in sample. The attorney general mu st not disclose the submitted info rmation to the requestor or the 151 public. 3. Labeling Requested Information to Indicate Which Exceptions Apply to Which Parts of the Requested Information When a governmental body raises an exception applicable to only pa rt of the information, it must mark the records to identify the in that exception. A general claim formation it believes is subject to that an exception applies to an entire report or document, when the exception clearly does not apply 146 Gov’t Code § 552.301(c). 147 See Gov’t Code § 552.306(b); Open Records Decision No. 150 (1977). 148 Cf to provide requestor copies of its written ) (requiring governmental body . Gov’t Code § 552.301(d)(2), (e-1 communications to attorney general); Open Records Decision No. 459 (1987) (considering public availability of governmental body’s letter to attorney general). 149 Gov’t Code § 552.301(e)(1)(d). 150 Open Records Decision Nos. 499 at 6 (1988), 497 at 4 (1988). 151 Gov’t Code § 552.3035. 201 8 Public Information Act Handbook • Office of the Attorney General 38

55 How the Public Information Act Works 152 to all information in that report or document, does not conform to the Act. When labeling requested information, a go that all of the rds in such a way vernmental body should mark the reco requested information remains visible for the attorn ey general’s review. For obvious reasons, the attorney general cannot make a determ ination on information it cannot read. overnmental Body Received Written Request 4. Statement or Evidence as to Date G The governmental body, in its subm general, must certify or provide sufficient ission to the attorney 153 evidence of the date it r eceived the written request. This will enable the attorney general to determine whether the government al body has timely requested the attorney general’s decision n request, as required by section 552.301(b), and within ten business days of receiving the writte timely submitted the other materials that are requ to be submitted by the ired by section 552.301(e) fifteenth business day after receipt of the request. Section 552. 301 provides that if a governmental body receives a written request by Unit ed States mail and cannot adequa tely establish the actual date e written request is considered to have been on which the governmental body received the request, th received by the government after the date of the postmark on a al body on the third business day 154 properly addressed request. crew days observed by a governmental body as The attorney general does not count skeleton lines under the Public governmental body’s dead business days for the purpose of calculating that neral under section 552.301 must body briefing the attorney ge Information Act. A governmental inform the attorney gene ral in the briefing of any holiday, including skeleton crew days, observed not notify the attorney general of holidays the by the governmental body. If the briefing does ill be calculated to include those days. governmental body observes, the deadlines w 5. Letter from the Governmental Body Stating Which Exceptions Apply and Why h exceptions apply to the information and why The letter from the governmental body stating whic umes that governmental records are they apply is necessary because the Public Information Act pres 155 open to the public unless the reco rds are within one of the excep tions set out in Subchapter C. This presumption is based on the language of sect ion 552.021, which makes vi rtually all information in the custody of a governmental body available to the public. This language places on the governmental body the burden of proving that an ex ception applies to the records requested from 156 it. Thus, if the governmental b ody wishes to withhold particular information, it must establish must mark the records to identify the portion to the information and that a particular exception applies the governmental body believes is excepted from disclo sure. Conclusory assertions that a particular formation will not suffice. exception applies to requested in The burden for establishing the ation Act is discussed in detail in Part Two of applicability of each exception in the Public Inform 152 Gov’t Code § 552.301(e)(2); Open Records Decision Nos. 419 at 3 (1984), 252 at 3 (1980), 150 at 2 (1977). 153 Gov’t Code § 552.301(e)(1)(c). 154 Gov’t Code § 552.301(a-1). 155 Attorney General Opinion H-436 (1974); Open Records Decision Nos. 363 (1983), 150 (1977), 91 (1975). See 156 See , 71 S.W.3d 473, 480–81 (Tex. App.—Austin 2002, no pet.); Open Records Decision Nos. 542 Thomas v. Cornyn at 2–3 (1990) (burden is placed on governmental body when it requests ruling pursuant to statutory predecessor to Gov’t Code § 552.301), 532 at 1 (1989), 363 (1983), 197 at 1 (1978). 201 8 Public Information Act Handbook • Office of the Attorney General 39

56 How the Public Information Act Works an exception applies to the es not establish how and why . If a governmental body do Handbook this 157 no basis on which to requested information, the attorney general has pronounce it protected. the requestor a copy of its lette r to the attorney general stating The governmental body must send to 158 why information is excepted from public disclosure. In order to explain how a particular exception applies to the informat ion in dispute, the governmenta l body may find it necessary to reveal the content of the requested in formation in its letter to the attorn ey general. In such cases, the mments containing the substance of the requested information in governmental body must redact co 159 the copy of its letter it sends to the requestor. C. Section 552.302: Information Presumed Public if Submissions and Notification Required by Section 552.301 Are Not Timely Section 552.302 provides: l decision as provided by t request an attorney genera If a governmental body does no e requestor with the inform ation required by Sections Section 552.301 and provide th in writing is presumed to be subject to 552.301(d) and (e-1), the information requested required public disclosure an is a compelling reason to d must be released unless there withhold the information. Section 552.301(b) establishes a deadline of ten busi ness days for the governmental body to request 160 Subsection (d) of and state the exceptions that apply. a decision from the attorney general section 552.301 requires that the gove rnmental body notify the requestor within ten business days if it is seeking an attorney genera l decision as to whether the information may be withheld. Section 552.301(e) establishes a de for the governme adline of fifteen business days ntal body to ral. Subsection (e-1) tion to the attorney gene provide the other materials required under that subsec body copy the requesto of section 552.301 requires that the governmental r on its written comments, that contains the substance of within fifteen business days, red acting any portion of the comments the information requested. timely request for a decision, Section 552.302 provides that if th e governmental body does not make a notify and copy the requestor, and make the requisite submissions to the attorn ey general as required formation will be presumed to be open to the public, and only by section 552.301, the requested in the demonstration of a “compellin g reason” for withholding the information can overcome that 157 Open Records Decision No. 363 (1983). 158 Gov’t Code § 552.301(e-1). 159 Gov’t Code § 552.301(e-1). 160 Gov’t Code §§ 552.308 (timeliness of action by United States mail, interagency mail, or common or contract See also carrier), .309 (timeliness of action by electronic submission). 201 8 Public Information Act Handbook • Office of the Attorney General 40

57 How the Public Information Act Works 161 presumption. In the great majority of cases, the gove rnmental body will not be able to overcome her failure to meet the that presumption and must promptly release the requ ested information. Whet nd submit the requisite in formation within those respective ten and fifteen business day deadlines, a depends on whether the g deadlines, has the effect of requiring disclosure overnmental body asserts a compelling reason that would overcome the presumption of openness arising from the meet the submission deadlines. governmental body’s failure to In (1) the failure of a governmental , the Texas Supreme Court determined Paxton v. City of Dallas body to timely seek a ruling from the OAG to withhold information subject to the attorney-client privilege does not constitute a waiver of the privile ge, and (2) the attorney-c lient privilege constitutes 162 the Government Code. a compelling reason to withhold information un der section 552.302 of The supreme court’s decision overrules a long line of attorney general decisions discussing the burden a governmental body must meet in order to overcome the lega l presumption that the requested be released unless there is a co mpelling reason to withhold the information is public and must Paxton v. City of Dallas information from disclosure. However, notwithstanding , the section fails to meet any of 552.302 presumption of openness is triggered as so on as the governmental body the requisite deadlines for submissions or notific vernmental on 552.301. Go ation set out in secti Paxton v. City of Dallas bodies should review the determination in when considering the consequences of failing to comply with th e procedures set out in section 552.301. D. Section 552.303: Attorney Genera l Determination that Information in Addition to that Required by Sect ion 552.301 Is Necessary to Render a Decision Section 552.303 provides for instances when the atto rney general determines information other than 163 that required to be submitted by section 552.301 is necessary to render a decision. If the attorney decision, it must so notify the general determines more informa tion is necessary to render a 164 If the additional material is not provided by the governmental body and the requestor. endar days of its receipt of the attorney general’s notice, the governmental body within seven cal is presumed public and must be disclosed unless a compelling information sought to be withheld 165 formation is demonstrated. reason for withholding the in 161 Gov’t Code § 552.302; see Hancock v. State Bd. of Ins ., 797 S.W.2d 379 (Tex. App.—Austin 1990, no writ); Open see also Records Decision Nos. 515 at 6 (1988), 452 (1986), 319 (1982); Simmons v. Kuzmich , 166 S.W.3d 342, 348-49 (Tex. App.—Fort Worth 2005, no pet.) (party seeking to withhold information has burden in trial court of ute to seek and preserve proving exception from disclosure and presumably must comply with steps mandated by stat , 109 S.W.3d 113, 122 n.6 (Tex. App.—Austin such exception from disclosure); Abbott v. City of Corpus Christi e city never submitted any ement exception applies becaus 2003, no pet.) (court need not decide whether law enforc e was not before it because city failed to meet Act’s reasons or comments as to how exception applied, and issu procedural requirements). 162 , 509 S.W.3d 247, 262, 271 (Tex. 2017). Paxton v. City of Dallas 163 Gov’t Code § 552.303(b)–(e). 164 Gov’t Code § 552.303(c). 165 Gov’t Code § 552.303(d)–(e). 201 8 Public Information Act Handbook • Office of the Attorney General 41

58 How the Public Information Act Works sted Information Involves a Third E. Section 552.305: When the Reque Property Interests Party’s Privacy or Section 552.305 reads as follows: (a) In a case in which informatio n is requested under this ch apter and a person’s privacy including a case under Section 552.101, or property interests may be involved, al body may decline to release the 552.114, a government 552.104, 552.110, or ting an attorney general decision. information for the purpose of reques (b) A person whose interests may be involved under Subsection (a), or any other person, may submit in writing to the attorney general the person’s reasons why the withheld or released. information should be its reasons why the (c) The governmental body may, but is not re quired to, submit information should be withheld or released. t to exception under rmation may be subjec (d) If release of a person’s proprietary info 552.131, the governmental 110, 552.113, or body that requests Section 552.101, 552. ion 552.301 shall make a good faith attempt an attorney general decision under Sect to notify that person of th ral decision. Notice under e request for the attorney gene this subsection must: (1) be in writing and sent within a reasonab le time not later than the 10th business day after the date the governmental body receives the request for the information; and (2) include: (A) a copy of the written reque st for the information, if any, received by the governmental body; and general, that the person prescribed by the attorney a statement, in the form (B) neral within a reasonable writing to the attorney ge is entitled to submit in time not later than the 10t h business day after the date the person receives the notice: each reason the person ha ion should be withheld; s as to why the informat (i) and (ii) a letter, memorandum, or brief in support of that reason. (e) memorandum, or brief to the attorney general under A person who submits a letter, Subsection (d) shall send a copy of that le tter, memorandum, or brief to the person If the letter, e governmental body. who requested the information from th memorandum, or brief submitted to the atto rney general contains the substance of e letter, memorandum, the information requested, the copy of th or brief may be a redacted copy. 201 8 Public Information Act Handbook • Office of the Attorney General 42

59 How the Public Information Act Works Section 552.305 relieves the govern mental body of its duty under se ction 552.301(b) to state which pply when (1) a third party’s privacy or property exceptions apply to the information and why they a interests may be implicated, (2) the governmental body has requested a ru ling from the attorney general, and (3) the third party or any other party has submitted reas ons for withholding or releasing 166 the information. 05 does not relieve a govern mental body of its duty to However, section 552.3 request a ruling within ten business information, notify the requestor days of receiving a request for in accordance with section 552.301(d) , or provide the attorney general’s office with the information 167 required in section 552.301(e). The language of section 552.305( b) is permissive and does not seek relief from the a require a third party with a property or privacy interest to ttorney general before filing suit against the attorney general under sec submit comments tion 552.325. Th e opportunity to third party must still during the ruling process does not automatically provide access to the courts. A a ruling that orders meet jurisdictional requirements for standing befo re it may file suit over information to be disclosed. Section 552.305(d) requires the govern mental body to make a good faith effort to notify a person formation where the information implicated by a request for in whose proprietary interests may be 113, or 552.131. The ection 552.101, 552.110, 552. may be excepted from disclosure under s ivacy, as opposed to notify a party whose pr governmental body is generally not required to e of information. The gove rnmental body may itself proprietary, interest is implicated by a releas argue that the privacy interests of a third pa rty except the information from disclosure. The required notice must be in writing and sent with in ten business days of the governmental body’s the written request for in receipt of the request. It must include a copy of formation and a statement that the person may, within ten bus iness days of receiving the notice, submit to the attorney general reasons why the information in question should be w ithheld and explanations in support thereof. The form of the statement required by section 552.305(d)(2)(B), as pres cribed by the attorney general, on 552.305 requires a person Handbook . Subsection (e) of secti can be found in Part Nine of this holding information to send a copy of such who submits reasons under subsection (d) for with communication to the requestor of the information, unless the commu nication reveals the substance of the information at issue, in which case the copy sent to the requestor may be redacted. ted the statutory predecessor to section 552.305: The following open records decisions have interpre governmental body takes Open Records Decision No. 652 (1997) — if a no position pursuant to Code or has determined that requested information is not section 552.305 of the Government sion, the attorney general will issue a decision protected under a specific confidentiality provi rmation provided to the e and on any other info based on a review of the information at issu attorney general by the governmental body or third parties; Open Records Decision No. 609 (1 992) — the attorney general is unable to resolve a factual rty disagree on whether information is excepted dispute when a governmental body and a third pa from disclosure based on the third party’s property interests; 166 Open Records Decision No. 542 at 3 (1990). 167 Gov’t Code §§ 552.301(a)–(b), (e), .305. See 201 8 Public Information Act Handbook • Office of the Attorney General 43

60 How the Public Information Act Works on Act does not require a third (1990) — the Public Informati Open Records Decision No. 575 party to substantiate its claims of confidentiality at the time it submits mate rial to a governmental body; Open Records Decision No. 552 (1 990) — explanation of how the attorney general deals with a the Public Information to section 552.305 of request when, pursuant to the statutory predecessor Act, a governmental body takes no position on a th ird party’s claim that in formation is excepted from public disclosure by the third party’s proper ty interests and when relevant facts are in dispute; and Open Records Decision No. 542 (1 r to section 552.305 did not 990) — the statutory predecesso permit a third party to request a ru ling from the atto rney general. F. Section 552.3035: Attorney Gene ral Must Not Disclose Information at Issue Section 552.3035 expressly prohibits the attorney ge neral from disclosing information that is the subject of a request for an attorney general decision. G. Section 552.304: Submission of Public Comments bmit written comments as to why information at Section 552.304 of the Act permits any person to su issue in a request for an attorney general decision should or should not be released. In order to be general renders a decision under be received before the attorney considered, such comments must .308 and 552.309, as discussed section 552.306, and must be su bmitted pursuant to sections 552 below. H. Rendition of Attorn ey General Decision e Act, the attorney general must Pursuant to section 552.306 of th render an open records decision the attorney general re “not later than the 45th business day after the date ceived the request for a 168 decision by the 45 day deadline, the attorney If the attorney general cannot render a decision.” general may extend the deadline by ten business da ys by informing the go vernmental body and the 169 The attorney general must provide a copy of the decision to requestor of the reason for the delay. 170 ection in Open Records Decision No. 687 The attorney general addressed this s the requestor. poses a duty on the attorney general to rule on a claimed (2011), concluding section 552.306 im a party has brought an action r to the issuance of the decision, exception to disclosure when, prio before a Texas court posing the same open records question. I. Timeliness of Action Pursuant to section 552.308, wh en the Act requires a request, notice or other document to be rson within a specified period, the requirement is met in a timely submitted or otherwise given to a pe 168 Gov’t Code § 552.306(a). 169 Gov’t Code § 552.306(a). 170 Gov’t Code § 552.306(b). 201 8 Public Information Act Handbook • Office of the Attorney General 44

61 How the Public Information Act Works fashion if the document is sent by first class United States mail or common or contract carrier bears a post office cancellation properly addressed with postage or handling charges prepaid and: (1) period; or (2) the submitting person rrier indicating a time within that mark or a receipt mark of the ca furnishes satisfactory proof the do cument was deposited in the mail or with the carrier within that 171 period. general, the timeliness rmation to the attorney If a state agency is required to submit info requirement is met if the inform ation is sent by interagency mail and the state agency provides 172 ation was deposited within the proper period. sufficient evidence to establish the inform The attorney general has established an electronic filing system that allows governmental bodies and 173 interested third parties to submit information electronically for a fee. Information submitted through this designated system will be considered timely if it is electronically submitted within the 174 proper time period. The attorney general has promulgated rules to administer the designated 175 system. These rules are available on the attorney general’s website and in Part Four of this Handbook . The creation of the electroni c filing system does not aff ect the right of a person or 176 governmental body to submit information to the attorney general under section 552.308. OST OF A OPIES AND CCESS VII. C C ections 552.261 through 55 Subchapter F of the Public Information Act, s 2.275, generally provides for allowable charges for copies of and access to public information. All charges must be calculated 177 The in accordance with the rules promulgated by the attorney general under section 552.262. calculation for those char rules establish the charges, as well as methods of ges. The rules also e agency may exceed the costs established by the provide that a governmental body that is not a stat 178 rules of the attorney general by up to 25 percent. The cost rules are available on the attorney general’s website and in Part Four of this Handbook . Also available on th e website is the Public Information Cost Estimate Model, a tool designe d to assist the public and governmental bodies in 179 estimating costs associated with public information requests. A. Charges for Copies of Paper Record s and Printouts of Electronic Records s related to reproducing public rnmental body to recover cost Section 552.261(a) allows a gove information. A request for copies that results in more than fift y pages may be assessed charges for 180 labor, overhead (which is calculated as a perc entage of the total labor), and materials. 171 Gov’t Code § 552.308(a). 172 Gov’t Code § 552.308(b). 173 See Gov’t Code § 402.006(d). 174 Gov’t Code § 552.309(a). 175 . Handbook 1 T.A.C. §§ 63.21–.24. These rules are available on the attorney general’s website and in Part Four of this 176 Gov’t Code § 552.309(c). 177 See 1 T.A.C. §§ 70.1–.12. 178 Gov’t Code § 552.262(a), (b). 179 al.gov/open/cost_page.shtml. http://www.texasattorneygener 180 1 T.A.C. § 70.3(d), (e), (i). 201 8 Public Information Act Handbook • Office of the Attorney General 45

62 How the Public Information Act Works lation of data may be assessed charges for those Requests that require programming and/or manipu 181 tasks also, as well as computer time to process the request. The law defines “programming” as 182 nce of coded instructions that can be executed by a computer.” “the process of producing a seque ocess of modifying, reordering, or decoding of “Manipulation” of data is defined as “the pr 183 human intervention.” information with Finally, “processing” means “the execution of a sequence 184 The amount allowed for computer computer producing a result.” of coded instructions by a processing depends on the type of computer used and the time need ed for the computer to process ed in CPU minutes for mainframe and mid-range computers, and in the request. The time is calculat clock hours for client servers and PC s. Computer processing time is not charged for the same time computer during this that a governmental body is chargi ng for labor or program ming. The use of a time period is covered by the overhead charge. Code to allow requests to be The 85th Legislature amended sec tion 552.261 of the Government instances. Section 552.261(e) states: combined in some tion, all requests received in one calendar day (e) Except as otherwise provided by this subsec as a single request for purposes of calculating costs under from an individual may be treated mbine multiple requests under this subsection this chapter. A governmental body may not co 185 from separate individuals who submit requests on behalf of an organization. Therefore, a governmental body ma y now combine separate requests from one individual received within one calendar day when calculating costs. Examples: 1. A governmental body receives a request for copies of the la st 12 months’ worth of travel expenditures for employees, including reimburseme nts and backup documentation. The records mental body’s main office. Th are maintained in the govern e governmental body determines there are 120 pages, and it will take one and a ha ation together, redact lf hours to put the inform numbers pursuant to drivers’ license numbers pursuant to secti on 552.130 and credit card s for this request would be: es. The total allowable charge section 552.136, and make copi Copies, 120 pages @ $.10/page $12.00 $22.50 @ $15.00/hour Labor, 1.5 hours Overhead, $22.50 x .20 $4.50 Total for copies & labor (paper records) $39.00 2. In addition to the above request, the requestor se nds a separate request fo r copies of all e-mails r the same 12 month period. and members of the public fo between two named individuals Pursuant to section 552 body will redact any e-ma il addresses of members .137, the governmental of the public. The governmental body’s e-mail sy stem allows electronic redaction of e-mail 181 1 T.A.C. § 70.3(c), (d), (h). 182 Gov’t Code § 552.003(4). 183 Gov’t Code § 552.003(2). 184 Gov’t Code § 552.003(3). 185 Gov’t Code § 552.261(e). 201 8 Public Information Act Handbook • Office of the Attorney General 46

63 How the Public Information Act Works is written it will take half of an hour to addresses by writing a program. Once the program The total charges for this request would be: execute. The requestor wants the e-mails on a CD. Labor, .50 hours to locate/compile responsive e-mails, $7.50 @ $15.00/hour ogram to redact, @ $28.50/hour $14.25 Labor, .50 hours to write pr Labor, .50 hours to prepare $7.50 for and download to CD, @ $15.00/hour $5.85 Overhead, $29.25 x .20 $1.10 Client Server, .50 hours to pr ocess program and make copy, @ $2.20/hour Materials, 1 CD @ $1.00/each $1.00 ctronic redaction/electronic $37.20 Total for materials & labor (ele records) questor wants the CD sent by mail. Postage charges may be added if the re 3. The governmental body’s system does not allow electronic redac tion of e-mail addresses. To provide the requestor the records in electronic medium, the governmental body must print the e- mails, manually redact the e-mail addresses, and scan the redacted e-mails into a file. The dact the e-mails that will be scanned. The governmental body may charge to print out and re total charges for this request would be: requestor wants the e-mails on a CD. The $8.00 d, 80 pages, @ $.10/page Printouts to be scanne Labor, .50 hours to lo cate/compile/print responsive e-mails, $7.50 @ $15.00/hour Labor, .50 hours to redact, @ $15.00/hour $7.50 Labor, .25 hours to scan re dacted copies, @ $15.00/hour $3.75 $3.75 Overhead, $18.75 x .20 Client Server, .05 hours to $0.18 copy to CD, @ $2.20/hour Materials, 1 CD @ $1.00/each $1.00 Total for materials and labor $31.68 (manual redaction/electronic records questor wants the CD sent by mail. Postage charges may be added if the re 201 8 Public Information Act Handbook • Office of the Attorney General 47

64 How the Public Information Act Works B. Charges for Inspection of Pap er Records and Electronic Records Charges for inspection of paper records are regulat ed by section 552.271, and charges for inspection of electronic records are discusse d in section 552.272. Section 5 52.271 allows charges for copies for any page that must be copied may be redacted to enable the so that confidential information 187 186 requestor to inspect the info rmation subject to release. (a) No other charges are allowed unless the records to be inspected are ol records completely fill, or when der than five years, or (b) the assembled will completely fill, six or more archival boxe s, and (c) the governme ntal body estimates 188 If a governmental body to prepare the reco it will require more than five hours rds for inspection. reduced to: (a) the reco has fewer than 16 full-time employees, the criteria are rds are older than three ill, three or more archival boxes, when assembled will completely f years, or (b) the records fill, or and (c) the governmental body estimates it will require more than two hours to prepare the records 189 for inspection. An “archival box” is a box that measures approxi mately 12.5” W x 15.5” L x 190 10” H. Only records responsive to the request ma y be counted towards the number of boxes. tion includes the time 1(c) or (d) for inspec Preparing records that fall under subsections 552.27 needed to locate and compile the records, redact the confidential information, and make copies of pages that require redaction. Overhead charges are not allowed on requests for inspection of paper 191 records. Section 552.272 allows charges for labor when providing access to electroni c information requires programming and/or manipulation of data, regardless of whether or not the information is available 192 directly on-line to the requestor. Searching and/or printing electronic records is neither is not allowed on requests for inspection of programming nor manipulation of data. Overhead 193 electronic records. Example: e past year, and then The requestor states she wants to inspect travel expenditure records for th decide whether or not she wants copies. Of th e 120 pages that are responsive, 112 pages have information that must be redacted, as requi red by sections 552.130 and 552.136, before the s for this request would be: s. The total allowable charge requestor may inspect the record $11.20 Redacted copies, 112 @ $.10/page Labor & Overhead $0.00 $11.20 Total for inspection (redacted copies) 186 Gov’t Code § 552.271(b). 187 Gov’t Code § 552.271(b). 188 Gov’t Code § 552.271(c). 189 Gov’t Code § 552.271(d). 190 1 T.A.C. § 70.2(10). 191 Gov’t Code § 552.271(c), (d). 192 Gov’t Code § 552.271(a), (b). 193 Gov’t Code § 552.271(a), (b). 201 8 Public Information Act Handbook • Office of the Attorney General 48

65 How the Public Information Act Works C. Waivers or Reduction of Estimated Charges at producing the information requested is in the “public interest” If a governmental body determines th e general public, the governmental because it will primarily benefit th body shall waive or reduce the 194 charges. formation is in the “public interest” rests The determination of whether providing in 195 solely with the governmental body whose records are requested. Additionally, the law allows a governmental body to waive charges if the cost of collecting the amount owed exceeds the actual 196 amount charged. D. Providing a Statement of Estima ted Charges as Required by Law If a governmental body estimates that charges will exceed $40.00, the governmental body is required written itemized statement of estima to provide the requestor with a ted charges before any work is 197 undertaken. requestor if there is a less costly method Additionally, the statement must advise the 198 n a notice that the request will be of viewing the records. The statement must also contai considered automatically withdrawn if the request or does not respond in writing within ten business (b) modifies the request days of the date of the statement that the requestor : (a) accepts the charges, in response to the estimate, or (c) has sent, or is sending, a complaint regarding the charges to the 199 with the general public has the ability to communicate If the governmental body attorney general. by electronic mail and/or facsimile, the requestor that a response may the statement must also advise 200 be sent by either of those methods, as well as by regular mail or in person. Governmental bodies are cautioned that an itemized statement lacking any of the required elements is considered to be “deficient” because it does The consequences of not comply with the law. ) limiting the amount the providing a deficient statement may result in (a governmental body may 201 considering the ntal body from and/or (b) preventing the governme recover through charges, 202 request withdrawn by operation of law. If after receiving agreement from the requestor fo r the charges, but before completing the request, the governmental body determines the actual charges will exceed the agreed-upon charges by more ntal body must provide the reque stor an updated statement of than 20 percent, the governme 203 requirements as the initial statement. If This updated statement has the same estimated charges. the governmental body fails to pr ovide the updated statement of estimated charges, charges for the 204 If the requestor does agreed-upon estimate plus 20 percent. entire request are limited to the initial the request is considered withdrawn. not respond to the updated statement, 194 Gov’t Code § 552.267(a). 195 Gov’t Code § 552.267(a). 196 Gov’t Code § 552.267(b). 197 Gov’t Code § 552.2615(a). 198 Gov’t Code § 552.2615(a). 199 Gov’t Code § 552.2615(b). 200 Gov’t Code § 552.2615(a)(3). 201 1 T.A.C. § 70.7(a). 202 Gov’t Code § 552.2615. 203 Gov’t Code § 552.2615(c). 204 Gov’t Code § 552.2615(c). 201 8 Public Information Act Handbook • Office of the Attorney General 49

66 How the Public Information Act Works If a request is estimated to exceed $100.00 ($50.0 0 if a governmental body has fewer than 16 full- the statement of estima time employees), a governmental body that provides ted charges with all its required elements may also require that the requestor prepay, deposit a percentage of the total amount, 205 or provide a bond for the total amount. Decisions about method of payment rest with the governmental body. A gove rnmental body that requires a deposit or bond may consider the request business days of the date the governmental body withdrawn if payment is not received within ten 206 If the requestor makes payment within the required time, the requested the deposit or bond. 207 yment is made. request is considered received on the date the pa Additionally, a governmental $100.00 on unpaid owes more than body is not required to co mply with a new request if a requestor charges for previous requests for which the requ estor was provided, and accepted, an appropriate 208 statement of estimated charges. In such cases, the governmental body may require the requestor to pay the unpaid amounts before complying with that request. All unpaid charges must be duly 209 documented. ges required when a requ est will exceed $40.00, a In addition to the statement of estimated char atement when it determines that a request will governmental body is also required to provide a st g with the request require programming and/or is not feasible manipulation of data and (1) complyin al body’s ongoing operation, or (2) the request can or will substantially interfere with the government 210 only be fulfilled at a cost that covers the programming and/or manipulation of data. Governmental tion 552.231, unlike s ection 552.2615, is not bodies are cautioned that a statement under sec contingent on the charges being over a certain am ount. Rather, the statem ent is mandated if the The statement must include that th requisite conditions are present. e information is not available in the form requested, in which form it is available, any contracts or services needed to put the information in the form requested , the estimated charges calculated in accordance with the rules ted time of completion to promulgated by the attorney general, and the estima provide the information 211 On provision of the statement, th e governmental body is not required to in the form requested. provide the information in the form requested unl ess the requestor states that the , in writing, requestor agrees with the estimate d charges and time parameters, or that the reques tor will accept 212 If the requestor fails to respond to the the information in the form that is currently available. 213 the request is considered withdrawn. statement in writing within 30 days, 205 Gov’t Code § 552.263(c); 1 T.A.C. § 70.7(d), (e). 206 Gov’t Code § 552.263(f). 207 Gov’t Code § 552.263(e). 208 Gov’t Code § 552.263(c); 1 T.A.C. § 70.7(f). 209 Gov’t Code § 552.263(c); 1 T.A.C. § 70.7(f). 210 Gov’t Code § 552.231(a). 211 Gov’t Code § 552.231(b). 212 Gov’t Code § 552.231(d). 213 Gov’t Code § 552.231(d-1). 201 8 Public Information Act Handbook • Office of the Attorney General 50

67 How the Public Information Act Works E. Cost Provisions Regarding Re quests Requiring a Large Amount of Personnel Time onable limit, not less than 15 mental body to establish a reas Section 552.275 authorizes a govern hours for a one month period or 36 hours in a 12 month period, on the amount of time that personnel are required to spend producing publ ic information for inspection or copies to a requestor, without 214 recovering the costs attributable to the personnel time related to that requestor. If a governmental ction, a requestor will be required to compensate body chooses to establish a time limit under this se requests once the time limit s incurred in satisfying subsequent the governmental body for the cost has been reached. The 85th Legislature amended section 552.275 to allow county officials who have designated the same officer for publ ic information to calculate time for purposes of this section 215 collectively. A limit under this section does not apply if the requestor is an elected official of the or a political subdivision of the St ate of Texas; or an individual United States, the State of Texas, who, for a substantial portion of th e individual’s livelihood or for subs tantial financial gain is seeking the information for (a) dissemination by a new medi um or communication service provider, or (b) 2501.004 of the Insurance described by section creation or maintenance of an abstract plant as 216 Code. , and it does not preclude a Section 552.275 does not repl ace or supersede other sections governmental body from charging n or copies for inspection for labor for a request for inspectio which a charge is authorized under other sections of this law. must make it clear to all requestors that the limit On establishing the time limit, a governmental body the exemptions of subsectio applies to all requestors equally, except as provided by ns (j), (k), and (l). A governmental body that avails its elf of section 552.275 must provide a requestor with a statement e cumulative amount of time the detailing the time spent in complyin g with the instant request and th 217 may not charge for the A governmental body requestor has accrued towards the established limit. 218 time spent preparing the statement. If a requestor meets or ex ceeds the established limit, the d, and material for all subsequent requests. governmental body may assess charges for labor, overhea written estimate within ten is required to provide a The governmental body business days of receipt ill not exceed $40.00. of the request, even if the estimated total w All charges assessed under 219 If a section 552.275 must be in comp liance with the rules promulgated by the attorney general. governmental body provides the re questor with a written statement un der this section, and the time ntal body is not required to respond unless the limits prescribed have been met, the governme 220 If a requestor fails to submit pa requestor submits payment. yment, the request is considered 221 withdrawn. 214 Gov’t Code §552.275(a), (b). 215 Gov’t Code §552.275(a-1). 216 Gov’t Code §552.275(j). 217 Gov’t Code § 552.275(d). 218 Gov’t Code § 552.275(d). 219 Gov’t Code § 552.275(e). 220 Gov’t Code § 552.275(g). 221 Gov’t Code § 52.275(h). 201 8 Public Information Act Handbook • Office of the Attorney General 51

68 How the Public Information Act Works F. Complaints Regarding Alleged Overcharges Estimates are, by their very nature, imperfect. bodies are encouraged to Therefore, governmental run tests on sample data and to rely on the results of those tests in calculating future charges. However, even when a g overnmental body has taken steps to ensu re that a charge is appropriate, a that a requestor who requestor may still believe that the charges are to o high. Section 552.269 states 222 lodge a complaint with the attorney general. believes he or she has been overcharged may The ints of overcharges. determinations on compla attorney general reviews, investigates, and makes Complaints must be rece ived within ten business days afte r the requestor know s of the alleged of the original request, and any amendments thereto, as well as overcharge, and must include a copy e charges. If a complainant the governmental body stating th a copy of any correspondence from the established time fr does not provide the required information within ame, the complaint is 223 dismissed. When a complaint is lodged against a governmental body, the attorney general will contact the mail, to obtain information on ho w the charges were calculated, governmental body, generally by The governmental body may also be asked to and the physical location and state of the records. 224 provide copies of invoices, contract s, and any other relevant documents. The attorney general , require the issuance of an amended statement may uphold the charges as presented to the requestor require the issuance of a refund questor has already paid the charges, of estimated charges, or, if the re 225 for the difference between what was paid and the charges that are determined to be appropriate. A governmental body may be required to pay three times the diff erence if it is determined that a ow the attorney general refused or failed to foll requestor overpaid because the governmental body 226 rules and the charges were not calculated in good faith. G. Cost Provisions Outside the Public Information Act The provisions of section 552.262 do not apply if charges for copies are established by another 227 tablishes a charge of $6.00 of the Transportation Code es statute. For example, section 550.065 228 Section 118.011 of the Local ed by a governmental entity. for an accident report maintain -certified copy of informa tion obtained from the Government Code establishes the charge for a non 229 Government Code also establishes a charge for copies Section 118.144 of the Local county clerk. 230 obtained from the county treasurer. general has determined that Additionally, the attorney section 191.008 of the Local Gove ection 552.272, by giving a county rnment Code prevails over s commissioners court the right to set charges rega rding access to certain information held by the 231 county. 222 Gov’t Code § 552.269(a). 223 1 T.A.C. § 70.8(b). 224 1 T.A.C. § 70.8(c), (d), (e). 225 1 T.A.C. § 70.8(f). 226 Gov’t Code § 552.269(b); 1 T.A.C. § 70.8(h). 227 Gov’t Code § 552.262(a). 228 Transp. Code § 550.065(d). 229 Local Gov’t Code § 118.011(a)(4). 230 Local Gov’t Code § 118.144. 231 Local Gov’t Code § 191.008; Open Records Decision No. 668 at 9 (2000). 201 8 Public Information Act Handbook • Office of the Attorney General 52

69 How the Public Information Act Works EMEDIES R VIII. P ENALTIES AND A. Informal Resolution of Complaints The Office of the Attorney General maintains an Open Government Hotline staffed by personnel trained to answer questions about answering substantive the Public Information Act. In addition to and procedural questions posed by governmental bodies and requestors, the Hotline staff handles r information. While not meant as a substitute written, informal complaints concerning requests fo for the remedies provided in s ections 552.321 and 552 .3215, the Hotline provides an informal alternative for complaint resolution. In most cases, Ho tline staff are able to resolve complaints and misunderstandings informally. Th e Hotline can be reached toll-free at (877) 673-6839 (877-OPEN TEX) or in the Austin area at (512) 478-6736 ( 478-OPEN). Questions concerning charges for s toll-free Cost Hotline providing public information should be directed to the attorney general’ at (888) 672-6787 (888-ORCOSTS) or in the Austin area at (512) 475-2497. B. Criminal Penalties The Public Information Act estab lishes criminal penalties for both th e release of information that be released. Section 552.352(a) holding of information that must must not be disclosed and the with stributes information considered mmits an offense if the person di of the Act provides: “A person co chapter.” This section applies confidential under the terms of this to information made confidential 232 by law. Section 552.353(a) provides: An officer for public information, or the officer’s agent, commits an offense if, with criminal negligence, the officer or the officer’s agent fails or refuses to give access to, or to permit or provide copying of, public informatio n to a requestor as provided by this chapter. Subsections (b) through (d) of s ection 552.353 set out various affirm ative defenses to prosecution under subsection (a), including, for example, that a timely request for a decision from the attorney information is pursuing judicial relief from general is pending or that the officer for public 233 A violation of compliance with a decision of the attorn ey general pursuant to section 552.324. 234 ion 552.353 constitutes and is a misdemeanor section 552.352 or sect official misconduct exceed $1,000, hs, a fine not to y jail for not more than six mont punishable by confinement in a count 235 or both confinement and the fine. tion or concealment of public records. Section The Act also criminalizes the destruction, altera ilation, removal without permission, or alteration 552.351 provides that the willful destruction, mut by confinement in a county jail for a minimum of of public records is a misdemeanor punishable 232 See Open Records Decision No. 490 (1988). 233 See generally Hubert v. Harte-Hanks Tex. Newspapers, Inc. , 652 S.W.2d 546, 548– Gov’t Code § 552.353(b)(2-3). 49 (Tex. App.—Austin 1983, writ ref’d n.r.e.). 234 Gov’t Code §§ 552.352(c), .353(f). 235 Gov’t Code §§ 552.352(b), .353(e). 201 8 Public Information Act Handbook • Office of the Attorney General 53

70 How the Public Information Act Works three days and a maximum of th ree months, a fine of a minimu m of $25.00 and a maximum of 236 $4,000, or both confinement and the fine. C. Civil Remedies 1. Writ of Mandamus Section 552.321 of the Act provides for a suit fo r a writ of mandamus to compel a governmental body to release requested information. A requestor or the attorney general may seek a writ of al body to release requested in formation if the governmental mandamus to compel a government information or if the refuses to release public body refuses to seek an attorney general decision, 237 governmental body refuses to release information in accordance with an attorney general decision. Section 552.321(b) provides that a mandamus action filed by a request or under section 552.321 must which the main offices of the governmental body are be filed in a district court of the county in located. A mandamus suit filed by the attorney ge neral under section 552.32 1 must be filed in a district court in Travis County, except if the su it is against a municipality with a population of 100,000 or less, in which case the suit must be file the county where the main d in a district court of 238 offices of the municipality are located. Section 552.321 authorizes a mandamus suit to compel the release of informatio n even if the attorney 239 The courts have general has ruled such information is not subject to required public disclosure. held a requestor may bring a mandamus action rega rney general decision rdless of whether an atto 240 Further, the Texas Supreme Court c onsidered a requestor’s mandamus action has been requested. filed after the governmental body requested an attorney general decision, but prior to the attorney 241 The supreme court held a requestor is not required to defer a suit general’s issuance of a decision. 242 for mandamus until the attorney general issues a decision. A requestor may counterclaim for mandamus as part of his or her intervention in a suit by a governmental b ody or third party over a 243 ruling that orders information to be disclosed. 2. Violations of the Act: De claratory Judgment or Injunctive Relief; Formal Complaints judgment or injunctive relief brought by a local Section 552.3215 provides for a suit for declaratory prosecutor or the attorney general against a governmental body that violates the Public Information Act. 236 Penal Code § 37.10 (tampering with governmental record). see also Gov’t Code § 552.351(a); 237 Gov’t Code § 552.321(a); see Thomas v. Cornyn , 71 S.W.3d 473, 482 (Tex. App.—Austin 2002, no pet.). 238 Gov’t Code § 552.321(b). 239 , 71 S.W.3d 473, 483 (Tex. App.—Austin 2002, no pet.); Thomas v. Cornyn Tex. Dep’t of Pub. Safety v. Gilbreath , 842 S.W.2d 408, 411 (Tex. App.—Austin 1992, no writ). 240 , Tex. Dep’t of Pub. Safety v. Gilbreath Thomas v. Cornyn , 71 S.W.3d 473, 483 (Tex. App.—Austin 2002, no pet.); Open Records Decision No. 687 (2011) (attorney 842 S.W.2d 408, 411 (Tex. App.—Austin 1992, no writ); see prior to issuance of open records decision, party brings general will rule on claimed exceptions to disclosure when, action before Texas court posing same open records question). 241 , 462 S.W. 3d 25 (Tex. 2015). . Kallinen v. City of Houston 242 , 462 S.W. 3d 25 (Tex. 2015). Kallinen v. City of Houston 243 , 71 S.W.3d 473, 482 (Tex. App.—Austin 2002, no pet.). Thomas v. Cornyn 201 8 Public Information Act Handbook • Office of the Attorney General 54

71 How the Public Information Act Works a. Venue and Proper Party to Bring Suit y located in only one county may be brought only in a district An action against a governmental bod y be brought either by the distri court in that county. The action ma ct or county attorney on behalf of that county, or by the attorney general on behalf of the state. If the governmental body is located in more than one county, such a suit must be bro ught in the county where the governmental body’s 244 administrative offices are located. a state agency, the Travis County If the governmental body is in a district court of Travis general may bring such suit only district attorney or the attorney 245 County. b. Suit Pursuant to Formal Complaint Before suit may be filed under s ection 552.3215, a person must first file a complaint alleging a violation of the Act. The complain e district or county a t must be filed with th ttorney of the county is located in more than one where the governmental body is lo cated. If the governmental body attorney of the county where the county, the complaint must be file d with the district or county mental body is a state agency, fices are located. If the govern governmental body’s administrative of the complaint may be filed with th e Travis County district attorney. If the governmental body is the 246 district or county attorney, the complaint must be filed with the attorney general. c. Procedures for Formal Complaint and signed by the complainant A complaint must be in writing and include the name of the governmental body complained of, the time and place of the alleged violation, and a general 247 The district or county attorney r eceiving a complaint must note on its description of the violation. face the date it was filed and must , before the 31st day after the complaint was filed, determine whether the alleged violation wa s committed, determine whether an action will be brought under the 248 If the district or county section, and notify the complainant in writing of those determinations. or determines that a conflict of interest exists attorney determines not to bring suit under the section, that precludes his bringing suit, th atement giving the basis for such en he or she must include a st determination and return the co mplaint to the complainant by th e 31st day after receipt of the 249 complaint. If the county or district attorney decides not to br ing an action in response to a complaint filed with that office, the complainant may, before the 31st day after the complaint is returned, file the complaint with the attorney genera the attorney general within the l. On receipt of the complaint, determinations and notification re same time frame must make the quired of a district or county attorney. The 85th Legislature amended section 55 2.3215 of the Government Code to also allow the if on or after the 90th ith the attorney general laint under this section w complainant to file a comp y attorney, the district or county day after the complainant files a co mplaint with the district or count 244 Gov’t Code § 552.3215(c). 245 Gov’t Code § 552.3215(d). 246 Gov’t Code § 552.3215(e). 247 Gov’t Code § 552.3215(e). 248 Gov’t Code § 552.3215(f)–(g). 249 Gov’t Code § 552.3215(h). 201 8 Public Information Act Handbook • Office of the Attorney General 55

72 How the Public Information Act Works 250 If the attorney general decides to bring an action in response attorney has not brought an action. to a complaint against a governmental body located in only one county, the attorney general must 251 file such action in a district court of that county. d. Governmental Body Must Be Giv en Opportunity to Cure Violation Actions for declaratory judgment or injunctive reli ef under section 552.3215 may be brought only if in writing of the ies the governmental body the official proposing to bring the action notif determination that the alleged violation was co mmitted and the governmental body does not cure the 252 violation before the fourth day after the date it receives the notice. e. Cumulative Remedy Actions for declaratory judgment or injunctive relief authorized under section 552.3215 are in 253 addition to any other civil, administrative, or criminal actions authorized by law. 3. Suits Over an Open Records Ruling rnmental body seeking to withhold requested The Act provides judicial remedies for a gove information or a third party asserting a privacy or proprietary interest in requested information when 254 the attorney general orders such information to be disclosed. The venue for these suits against the ether the information is subject to disclosure is attorney general is Travis County. The issue of wh decided by the court anew. The court is not bound ey general. However, by the ruling of the attorn body may raise before the court are exceptions that the only exceptions to disclosure a governmental it properly raised in a request for an attorney general decision under section 552.301, unless the exception is one based on a requirement of federa l law or one involving the property or privacy 255 interests of another person. Morales v. Ellen affirmed that the district c The court of appeals in ourt had jurisdiction to decide a declaratory judgment action brou ght against a governmental body by a third party which asserted 256 The court held privacy interests in documents the attorn ey general had ruled should be released. the statutory predecessor to section 552.305(b)—whi ch permitted a third party whose privacy or sure of the requested in formation to “submit in property interests would be implicated by the disclo ons why the information should be withheld or writing to the attorney general the party’s reas ird party with a property or privacy interest to released”—is permissive and does not require a th 257 The legislature then enacted exhaust this remedy before seeking relief in the courts. section 552.325 which recognizes the legal interests of third parties and their right to sue the attorney general to challenge a ruling that information must be released. 250 Gov’t Code §552.3215(i). 251 Gov’t Code § 552.3215(i). 252 Gov’t Code § 552.3215(j). 253 Gov’t Code § 552.3215(k). 254 Gov’t Code §§ 552.324, .325. 255 City of Dallas v. Abbott Gov’t Code § 552.326; Tex. Comptroller of Pub. , 304 S.W.3d 380, 392 (Tex. 2010); Accounts v. Attorney General of Tex ., 354 S.W.3d 336, 340 (Tex. 2010). 256 , 840 S.W.2d 519, 523 (Tex. App.—El Paso 1992, writ denied). Morales v. Ellen 257 , 840 S.W.2d 519, 523 (Tex. App.—El Paso 1992, writ denied). Morales v. Ellen 201 8 Public Information Act Handbook • Office of the Attorney General 56

73 How the Public Information Act Works body, officer for public .325 prohibit a governmental Sections 552.324 and 552 information, or other filing a lawsuit against a requestor. The person or entity that wishes to w ithhold information from only suit a governmental body or offi cer for public information may br ing is one against the attorney 258 general. brought no later than a governmental body be Section 552.324(b) requires that a suit by ves the decision it seeks to challenge. If suit the 30th calendar day after the governmental body recei dy must comply with the attorney general’s n, the governmental bo is not timely filed under the sectio g suit under section 552.324 does not affect the earlier ten day decision. The deadline for filin body to file suit in order to es deadline required of a governmental tablish an affirmative defense to 259 on officer under section 552.353(b)(3). prosecution of a public informati vernmental body or a suit filed by a go questor may intervene in Section 552.325 provides that a re includes procedures for no another entity to prevent disclosure. The section tice to the requestor of rney general and a plaintiff by proposed settlement between the atto the right to intervene and of any information should be withheld. which the parties agree that the nging a ruling, the requestor will voluntarily Sometimes during the pendency of a suit challe longer be found. Sect withdraw his or her request, or the requestor may no ion 552.327 authorizes a an attorney general ru the suit agree to the ling if all parties to court to dismiss a suit challenging the court that the requestor has l determines and represents to dismissal and the attorney genera 260 ion in writing, or has abandoned the request. voluntarily withdrawn the request for informat In such cases, a governmental body will not be precluded from asking for another ruling on the same 261 information at issue after the su it is dismissed by the court. 4. Discovery and Court’s In Camera Revi ew of Information Under Protective Order Section 552.322 authorizes a court to order that in formation at issue in a suit under the Act may be discovered only under a protective order until a fina l determination is made . When suit is filed ither informally ess to the inform challenging a ruling, the a ttorney general will seek acc ation at issue e the governmental e information to e the attorney general returns th or by way of this section, becaus body upon issuance of a ruling. Section 552.3221 permits a party to file the info rmation at issue with the court for in camera 262 When the court receiv es the information for inspection as necessary for the adjudication of cases. information by any person other order that prevents access to the review, the court must enter an t the information pursuant than the court, a reviewing court of appeals or parties permitted to inspec 263 under section 552.3221 does not constitute Information filed with the court to a protective order. e Texas Rules of Civil Procedure an court records under Rule 76a of th d shall not be available by the 264 ecord for public disclosure. clerk or any custodian of r 258 Gov’t Code § 552.324(a). 259 Gov’t Code § 552.324(b). 260 Gov’t Code § 552.327. 261 Gov’t Code § 552.327. 262 Gov’t Code § 552.3221(a). 263 Gov’t Code § 552.3221(b). 264 Gov’t Code § 552.3221(c). 201 8 Public Information Act Handbook • Office of the Attorney General 57

74 How the Public Information Act Works and Reasonable Attorney’s Fees D. Assessment of Costs of Litigation section 552.321 or for Section 552.323 of the Act provides that in a suit for mandamus under declaratory judgment or injunc tive relief under section 552.3215, the court shall assess costs of 265 ed by a plaintiff who substantially prevails. litigation and reasonable attorney’s fees incurr However, a court may not assess such costs and a e governmental body if the ttorney’s fees against th court finds that it acted in reasonable reliance on ourt applicable to that a judgment or order of a c hed opinion of an appellate court, or governmental body, the publis a written decision of the attorney 266 general. In addition, a requestor who is an attorney representing himself in a suit to require a d to attorney’s fees governmental body to disclose requested information under the Act is not entitle 267 because the requestor did not incur attorney’s fees. The court may assess attorney’s fees and co sts in a suit brought u nder section 552.324 by a nging a ruling that orde red information to be governmental body against the attorney general challe 268 disclosed. The trial court has discretion to award atto rney’s fees and costs incurred by a plaintiff 269 or defendant who substantially prevails in a suit brought under section 552.324. In exercising its discretion as to the assessment of such costs and a ttorney’s fees, a court mu st consider whether the conduct of the officer for public information of th e governmental body had a reasonable basis in law 270 brought in good faith. and whether the suit was ESTRUCTION OF D RESERVATION AND IX. P ECORDS R of state and local government records, section Subject to state laws governing the destruction s. Sections 441.180 552.004 of the Act addresses the preservation pe riod of noncurrent record through 441.205 of the G overnment Code provide for the mana gement, preservation, and destruction 271 xas State Library and Archives Commission. of state records under the guidance of the Te Provisions for the preservation, re tention, and destruction of local government records under the oversight of the Texas State Library and Archives Commission are set out in chapters 201 through 205 of the Local Government Code. Section 552.0215 of the Act provide s that with the exception of information subject to section ential but merely excepted from , information that is not confid 552.147 or a confidentiality provision e public on or after d is available to th required disclosure under the Act is public information an the 75th anniversary of the date the informati on was originally created or received by the 265 Gov’t Code § 552.323(a). 266 Gov’t Code § 552.323(a). 267 Jackson v. State Office of Admin. Hearings , 351 S.W.3d 290, 300 (Tex. 2011). 268 Gov’t Code § 552.323(b). 269 , No. 03-13-00368-CV, 2015 WL 739605 (Tex. App.—Austin Feb. 20, Gov’t Code § 552.323(b); Hudson v. Paxton in suit filed by governmental body under section 552.324 2015, pet. denied) (mem. op.) (when requestor intervened ring controversy moot, requestor did not “substantially and governmental body voluntarily released documents rende ttorney’s fees under section 552.323(b)); Dallas Morning News v. City of Arlington , prevail” so as to be eligible for a No. 03-10-00192-CV, 2011 WL 182886, at *4 (Tex. App.—Austin, Jan. 21, 2011, no pet.) (mem. op., not designated for publication) (city’s voluntary release of requested public information does not make requestor prevailing party). 270 , 22 S.W.3d 351, 367 (Tex. 2000). see City of Garland v. Dallas Morning News Gov’t Code § 552.323(b); 271 , Attorney General Opinions DM-181 at 3 (1992), JM-1013 at 2, 5–6 (1989), JM-229 at 5 (1984). See, e.g. 201 8 Public Information Act Handbook • Office of the Attorney General 58

75 How the Public Information Act Works 272 it the authority of a governmental body This section does not, however, lim governmental body. 273 r records under applicable law. to establish retention periods fo Section 552.203 provides that the officer for pub lic information, “subject to penalties provided in this chapter,” has the duty to see that public reco rds are protected from deterioration, alteration, 274 mutilation, loss, or unlawful removal and that they are repaired as necessary. Public records may 275 A governmental body may not destroy records even be destroyed only as provided by statute. 276 pursuant to statutory authority while they are subject to an open records request. X. P UBLIC I NFORMATION A CT D ISTINGUISHED FROM O THER TATUTES C ERTAIN S A. Authority of the Attorney Genera l to Issue Attorney General Opinions The attorney general has authority pursuant to ar ticle IV, section 22, of the Texas Constitution and sections 402.041 through 402 .045 of the Government Code to issu e legal opinions to certain public officers. These officers are identified in sectio 02.043 of the Government Code. ns 402.042 and 4 277 dvice or a written opinion to any other person. The attorney general may not give legal a body to request a ruling from formation Act requires a governmental On the other hand, the Public In t for records that it belie ves to be within an the attorney general if it receives a written reques exception set out in subchapter C of the Act, s ections 552.101 through 552.158, and there has not 278 Thus, all the information falls been a previous determination about whether within the exception. governmental bodies have a duty to request a ruling from the attorney general under the blic officers has discretionary circumstances set out in section 552.301. A much smaller group of pu authority to request attorney general opinions pursu ant to chapter 402 of th e Government Code. A body that must request open records rulings as school district, for example, is a governmental required by section 552.301 of the authority to seek legal advice Public Information Act, but has no 279 on other matters from the attorney general. Additionally, the Public Informati l the authority to issue written on Act gives the attorney genera decisions and opinions in order to maintain uni formity in the applica tion, operation, and 280 interpretation of the Act. 272 Gov’t Code § 552.0215(a). 273 Gov’t Code § 552.0215(b). 274 Gov’t Code § 552.351 (penalty for willful destruction, mutilation, removal without permission or alteration See also of public records). 275 Attorney General Opinions DM-40 (1991) (deleting records), JM-830 (1987) (sealing records), MW- See generally 327 (1981) (expunging or altering public records). 276 Local Gov’t Code § 202.002(b); Open Records Decision No. 505 at 4 (1988). 277 Gov’t Code § 402.045. 278 see Gov’t Code § 552.301(a); Open Records Decision No. 673 (2001) (defining previous determination). 279 Attorney General Opinion DM-20 at 3–6 (1991). See generally 280 Gov’t Code § 552.011. 201 8 Public Information Act Handbook • Office of the Attorney General 59

76 How the Public Information Act Works B. Texas Open Meetings Act de chapter 552, and the Open Meetings Act, The Public Information Act, Government Co ment to the people. Government Code chapter 551, both serve the pu rpose of opening govern ceptions. The exceptions in the and each has a different set of ex However, they operate differently, utive session meetings to discuss do not furnish a basis for holding exec Public Information Act 281 confidential records. Furthermore, the mere fact that a document was discussed in an executive 282 Since the Open Meetings session does not make it confidential under the Public Information Act. to section 552.301 of the Public Act has no provision comparable Information Act, the attorney general may address questions about the Open Meetings Act only wh en such questions are submitted by a public officer with authority to request attorn ey general opinions pursuant to chapter 402 of the Open Meetings Act Handbook , the , is mpanion volume to this Handbook Government Code. (A co the Attorney General.) In Op en Records Decision No. 684 (2009), also available from the Office of n to all governmental bodies authorizing them to the attorney general issued a previous determinatio s of closed meetings under sec withhold certified agendas and tape tion 552.101 in conjunction with section 551.104 of the Government Code, without the necessity of requesting an attorney general 283 decision. C. Discovery Proceedings procedural rules providing for The Public Information Act differ s in purpose from statutes and 284 The Act’s exceptions to discovery of documents in admini strative and judicial proceedings. nts in administrative or required public disclosure do not create privileges from discovery of docume 285 judicial proceedings. t be privileged from discovery is not Furthermore, information that migh 286 public disclosure under the Act. necessarily protected from required 281 See Attorney General Opinion JM-595 at 4 (1986). 282 , 22 S.W.3d 351, 367 (Tex. 2000); Open Records Decision No. 485 at 9– City of Garland v. Dallas Morning News see also Open Records Decision No. 605 at 2–3 (1992). 10 (1987); 283 Open Records Decision No. 684 at 5 (2009). 284 Attorney General Opinion JM-1048 at 2 (1989); Open Records Decision Nos. 551 at 4 (1990), 108 (1975). 285 Gov’t Code § 552.005. 286 See Open Records Decision No. 575 at 2 (1990) (discovery privileges in Texas Rules of Evidence not confidentiality But see Open Records Decision Nos. 677 (2002) (analyzing work provisions for purpose of Gov’t Code § 552.101). product privilege in context of Act), 676 (2002) (analyzing attorney-client privilege in context of Act). 201 8 Public Information Act Handbook • Office of the Attorney General 60

77 Exceptions to Disclosure ART T WO : E P D ISCLOSURE XCEPTIONS TO UBLIC ENERALLY I. I NFORMATION G C ONSIDERED TO BE P A. Section 552.022 Categories of Information Section 552.022 of the Public Info rmation Act provides that “[w]ithout limiting the amount or kind of information that is public in formation under this chapter, the fo llowing categories of information cepted from required disclosure unless made confidential under are public information and not ex 287 this chapter or other law . . . .” ghteen categories of information. Section 552.022(a) then lists ei information subject to the Public Section 552.022(a) is not an exhaustive list of the types of 288 Information Act. Rather, it is a list of information that generally may be w ithheld only if it is 289 Thus, the Act’s permissive exceptions to disclosure generally do expressly confidential by law. 290 not apply to the categories of info rmation contained in section 552.022. 1. Discovery Privileges The laws under which information may be considered confidential for the purpose of section 552.022 statutes and judicial decisions that expressly ma ke information are not limited simply to 291 discovery privileges included in the Texas The Texas Supreme Court has held that confidential. Rules of Civil Procedure and the Texas Rules of Evidence are also “other law” that may make 292 if information is information confidential for th e purpose of section 552.022. Therefore, even included in one of the eighteen categories of information listed in section 552.022(a), and as a result under an exception listed in th the information cannot be withheld e Act, the information is still vernmental body can demo nstrate that the information is privileged protected from disclosure if a go 293 under the Texas Rules of Evidence or the Texas Rules of Civil Procedure. Accordingly, a governmental body ivilege for a document that is claiming the attorney-client pr e Government Code should raise Te subject to section 552.022 of th xas Rule of Evidence 503 in If the governmental body demonstr ates that rule 503 applies to order to withhold the information. 294 However, a fee part of a communication, generally the entire communication will be protected. 287 Gov’t Code § 552.022. 288 See City of Garland v. Dallas Morning News , 22 S.W.3d 351, 359 (Tex. 2000). 289 Gov’t Code § 552.022(a); Thomas v. Cornyn , 71 S.W.3d 473, 480 (Tex. App.—Austin 2002, no pet.). 290 See In re City of Georgetown , 53 S.W.3d 328, 331 (Tex. 2001). But see Gov’t Code §§ 552.022(a)(1) (completed report, audit or evaluation may be withheld under G ov’t Code § 552.108), .104(b) (information subject to Gov’t Code § 552.022 may be withheld under Gov’t Code § 552.104(a)), .133(c) (information subject to Gov’t Code § 552.022 may be withheld under Gov’t Code § 552.133). 291 Gov’t Code § 552.022(a); See , 53 S.W.3d 328, 332–37 (Tex. 2001). In re City of Georgetown 292 In re City of Georgetown , 53 S.W.3d 328, 337 (Tex. 2001); see Open Records Decision Nos. 677 at 9 (2002), 676 at 2 (2002); see generally T . EX . R. E VID 501–513; T EX . R. C IV . P. 192.5. 293 In re City of Georgetown , 53 S.W.3d 328, 333–34, 337 (Tex. 2001). 294 See Huie v. DeShazo , 922 S.W.2d 920, 923 (Tex. 1996) (privilege extends to entire communication, including facts , 973 S.W.2d 453, 457 (Tex. App.—Houston [14th Dist.] 1998, orig. In re Valero Energy Corp. contained therein); communication, including proceeding) (privilege attaches to complete factual information). 2018 Public Information Act Handbook • Office of the Attorney General 61

78 Exceptions to Disclosure demonstrates that a portion of the fee bill bill is not excepted in its entirety if a governmental body 295 attorney-client communication. Rather, information in an attorney fee contains or consists of an the extent the particular information demonstrated to bill may only be withheld to in the fee bill is 296 be subject to the atto rney-client privilege. oduct privilege for a document that is subject Similarly, a governmental body claiming the work pr to section 552.022 of the Government Code should raise Rule 192.5 of the Texas Rules of Civil 297 Procedure in order to withhold the information. Moreover, information is confidential for the the extent the informati on implicates the core purpose of section 552.022 under rule 192.5 only to 298 work product aspect of the privilege. Other work product is discoverable under some tial for the purpose of section circumstances and therefore is not considered to be confiden 299 552.022. 2. Court Order Section 552.022(b) prohibits a court in this st nmental body to withhold ate from ordering a gover ation in the section 552.022 cate from public disclosure inform gories unless the information is 300 confidential under the Act or other law. Thus, although section 552.1 07(2) of the Act excepts from disclosure information that a court has or dered to be kept confid ential, section 552.022 effectively limits the applicab ility of that subsection and the authority of a court to order 301 confidentiality. B. Certain Investment Information information is public and not excepted from Section 552.0225 provides that certain investment disclosure under the Act. The section provides: (a) Under the fundamental philosophy of American government described by Section investments of government are investments 552.001, it is the policy of this state that of and for the people and the people are entitled to information regarding those investments. The provisions of this sectio n shall be liberally construed to implement this policy. ld by a governmental body relating to its (b) The following categories of information he investments are public information and not excepted from disclosure under this chapter: entity the governmental body is or has (1) the name of any fund or investment invested in; 295 Open Records Decision No. 676 at 5 (2002). 296 Open Records Decision No. 676 at 5–6 (2002). 297 Open Records Decision No. 677 at 9 (2002). 298 Open Records Decision No. 677 at 10 (2002). 299 Open Records Decision No. 677 at 9–10 (2002). 300 Gov’t Code § 552.022(b). 301 , 242 F.3d 235, 241 (5th Cir. 2001). See Ford v. City of Huntsville 2018 Public Information Act Handbook • Office of the Attorney General 62

79 Exceptions to Disclosure (2) the date that a fund or investment entity described by Subdivision (1) was established; (3) each date the governmental body in vested in a fund or investment entity described by Subdivision (1); (4) the amount of money, expressed in dollars, the governmental body has investment entity; committed to a fund or (5) the amount of money, ex pressed in dollars, the governmental body is investing or has invested in any fund or investment entity; (6) the total amount of money, expressed in dollars, the governmental body received from any fund or investment entity in connection with an investment; by a governmental body in urn or other standard used (7) the internal rate of ret connection with each fund or investment entity it is or has invested in and the date on which the return or ot her standard was calculated; stment entity the g (8) the remaining value of any fund or inve overnmental body is or has invested in; (9) the total amount of fees, including expenses, charges, and other compensation, , or paid by the governmental body assessed against the governmental body by to, any fund or investment entity or prin investment entity cipal of any fund or in which the governmental bo dy is or has invested; le for managing any fund or investment (10) the names of the principals responsib entity in which the governmental body is or has invested; e governing board in connection with a (11) each recusal filed by a member of th al body relating to an investment; deliberation or action of the government businesses a governmental body is or has (12) a description of all of the types of invested in through a fund or investment entity; (13) the minutes and audio or video recording s of each open portion of a meeting of described by this subsection was the governmental body at which an item discussed; nership interest in a fund or investment (14) the governmental body’s percentage ow entity the governmental body is or has invested in; the governmental body by a losure report submitted to (15) any annual ethics disc tal body is or has invested in; and fund or investment entity the governmen 2018 Public Information Act Handbook • Office of the Attorney General 63

80 Exceptions to Disclosure n realized by the governmental body for a fund or (16) the cash-on-cash retur body is or has invested in. investment entity the governmental (c) This section does not apply to the Texas Mutual Insurance Company or a successor to the company. y to a private investment fund (d) This section does not appl ’s investment in restricted 302 securities, as defined in Section 552.143. There are no cases or formal opinions interpreti ng this section. Section 552.143 excepts certain 303 public under section 552.0225. investment information from di sclosure that is not made The letter ruling that section 552.143 is subject to the attorney general has determined in an informal 304 public disclosure requirem ents of section 552.0225. C. Other Kinds of Information that May Not Be Withheld ptions in the Act to withhold body may not use one of the exce As a general rule, a governmental 305 For example, a governmental information that a statute other th an the Act expressly makes public. eeting under the Act’s ex ceptions since such body may not withhold the minutes of an open m 306 minutes are made public by statute. II. E XCEPTIONS A. Section 552.101: Confidential Information nt Code provides as follows: Section 552.101 of the Governme Information is excepted from [required public di sclosure] if it is info rmation considered to be confidential by law, ei ther constitutional, statutory, or by judicial decision. rmation Act does not mandate the disclosure of This section makes clear that the Public Info information that other law requires be kept confid ential. Section 552.352(a) states: “A person ential under the terms of commits an offense if the person distributes info rmation considered confid 307 A violation under sectio n 552.352 is a misdemea nor constituting official this chapter.” 302 Gov’t Code § 552.0225. 303 Gov’t Code § 552.143. 304 Open Records Letter No. 2005-6095 (2005). 305 Open Records Decision No. 623 (1994); see also Open Records Decision Nos. 675 (2001) (federal statute requiring claim that information is excepted from disclosure under release of cost reports of nursing facilities prevails over Gov’t Code § 552.110), 451 (1986) (specific statute that affirmatively requires release of information at issue prevails cf. Houston Chronicle Publ’g Co. v. Woods over litigation exception of Public Information Act); , 949 S.W.2d 492 (Tex. App.—Beaumont 1997, orig. proceeding) (concerning pub ts in support of executed lic disclosure of affidavi search warrants). 306 Gov’t Code § 551.022; Open Records Decision No. 225 (1979). see 307 Gov’t Code § 552.352(a). 2018 Public Information Act Handbook • Office of the Attorney General 64

81 Exceptions to Disclosure 308 misconduct. In its discretion, a governmental body may release to the public information 309 protected under the Act’s exceptions to disc losure but not deemed confidential by law. On the confidential by information deemed other hand, a governmental body has no discretion to release 310 law. d because its improper Because the Act prohibits the release of co nfidential information an release constitutes a misdemeanor, section 552.101 on behalf of a the attorney general may raise not raise other exceptions that a governmental body, although the attorney general ordinarily will 311 governmental body has failed to claim. ssembles, or maintains is public n a governmental body collects, a By providing that all informatio unless expressly excepted from disclosure, the Act prevents a government al body from making an ation confidential unless the govern enforceable promise to keep inform mental body is authorized by 312 law to do so. al body may rely on its promise of confidentiality to withhold Thus, a government tal body has specific statutory authority to make information from disclosure only if the governmen such a promise. Unless a governmental body is explic itly authorized to make an enforceable promise to keep information confidential, it may not make such a promise in a confiden tiality agreement such 313 314 as a contract al body may not pass an or a settlement agreement. In addition, a government formation confidential unle ss the governmental body ordinance or rule purporting to make certain in 315 is statutorily authorized to do so. 1. Information Confidential Under Specific Statutes tion from public disclosure. The c statutes that protect informa Section 552.101 incorporates specifi following points are important for the proper appl ication of this aspect of section 552.101: 316 1) The language of the relevant confidentiality st atute controls the scope of the protection. st explicitly require confidentiality; a To fall within section 552.101, a statute mu 2) 317 confidentiality requirement the statutory structure. will not be inferred from a. State Statutes es. Examples of information The attorney general must interp ret numerous confidentiality statut made confidential by statute includ eworthy examples: e the following not 308 Gov’t Code § 552.352(b), (c). 309 , 48 S.W.3d 789, 793 (Tex. App.—Austin 2001, no pet.). Gov’t Code § 552.007; see Dominguez v. Gilbert 310 Dominguez v. Gilbert , 48 S.W.3d 789, 793 (Tex. App.—Austin 2001, no pet.) . But see Gov’t Code § 552.007; See discussion of informer’s privilege in Part Two, Section II, Subsection A.2.b of this Handbook . 311 Open Records Decision Nos. 455 at 3 (1987), 325 at 1 (1982). See 312 Attorney General Opinions JM-672 at 1–2 (1987), JM-37 at 2 see Attorney General Opinion H-258 at 3 (1974); (1983); Open Records Decision Nos. 585 at 2 (1991), 514 at 1 (1988), 55A at 2 (1975). 313 See Attorney General Opinion JM-672 at 2 (1987); Open Records Decision No. 514 at 1 (1988). 314 See Open Records Decision No. 114 at 1 (1975). 315 , 540 S.W.2d 668, 677 (Tex. 1976), cert. denied , 430 U.S. 931 (1977); See Indus. Found. v. Tex. Indus. Accident Bd. , 108 S.W.3d 333, 337 (Tex. App.—Austin 2003, no pet.); Open Records Decision No. 594 Envoy Med. Sys. v. State at 3 (1991). 316 See Open Records Decision No. 478 at 2 (1987). 317 See, e.g. , Open Records Decision No. 465 at 4–5 (1987). 2018 Public Information Act Handbook • Office of the Attorney General 65

82 Exceptions to Disclosure medical records that a physician creates or  maintains regarding the identity, diagnosis, 318 evaluation, or treatment of a patient; veloped in an investigation of alleged child reports, records, and working papers used or de  319 abuse or neglect under Family Code chapter 261; 320 certain information relating to the prov ision of emergency medical services;  s of the identity, essional and record  communications betwee n a patient and a mental health prof diagnosis, or treatment of a mental health patie nt created or maintained by a mental health 321 professional; and rated utility customer’s account records if the  certain personal information in a government-ope 322 keep the information confidential. customer has requested that the utility In the following examples, the attorney general has confidentiality provided interpreted the scope of by Texas statutes under section 552.101: (1998) — section 154.073 of th e Civil Practice and Remedies Open Records Decision No. 658 323 al body’s mediated final settlement agreement; Code does not make confidential a government 97) — concerning confidentiality of criminal history record Open Records Decision No. 655 (19 information and permissible interagenc y transfer of such information; Open Records Decision No. 649 (1996) — originating tele phone numbers and addresses furnished on a call-by-call basis by a service supplier to a 9-1-1 emergency communication district established under subchapter D of ch apter 772 of the Health and Safety Code are confidential under section 772.318 of the Health Section 772.318 does not and Safety Code. except from disclosure any other information cont ained on a computer-aided dispatch report that was obtained during a 9-1-1 call; Open Records Decision No. 643 (1996) — sec tion 21.355 of the Education Code makes confidential any document that evaluates, as th at term is commonly understood, the performance 318 , 391 S.W.3d 253, 258 (Tex. App.—Austin 2012, Abbott v. Tex. State Bd. of Pharmacy see Occ. Code § 159.002(b); no pet.) (Medical Practice Act does not provide patient ge neral right of access to medical records from governmental body responding to request for information under Public Information Act); Open Records Decision No. 681 at 16– 17 (2004). 319 Fam. Code § 261.201(a). 320 Health & Safety Code § 773.091; Open Records Decision No. 681 at 17–18 (2004). see 321 Health & Safety Code § 611.002. 322 Util. Code § 182.052(a). 323 The 76th Legislature amended section 154.073 of the Civi l Practice and Remedies Code by adding subsection (d), which provides that a final written agreement to which a governmental body subject to the Act is a signatory and apter 154 of that code is subject to pute resolution procedure conducted under ch that was reached as a result of a dis accordance with the Act. Act of Ma y 30, 1999, 76th Leg., R.S., ch. 1352, or excepted from required disclosure in see § 6, 1999 Tex. Gen. Laws 4578, 4582; Gov’t Code § 552.022(a)(18) (settlement agreement to which governmental body is party may not be withheld unl ess it is confidential under the Act or other law). 2018 Public Information Act Handbook • Office of the Attorney General 66

83 Exceptions to Disclosure The term “teacher,” as used in se ction 21.355, mean s an individual of a teacher or administrator. rtificate or school district teaching permit who is required to hold and does hold a teaching ce under subchapter B of chapter 21, and who is engaged in teaching at the time of the evaluation; an “administrator” is a person who is required to hold and does hold an administrator’s certificate the functions of an administrator at the time under subchapter B of chapter 21 and is performing of the evaluation; (1996) — section 143. Open Records Decision No. 642 1214(b) of the Local Government Code requires the City of Houston Police Departme nt to withhold documents relating to an ity of Houston Police investigation of a City of Houston fire fi ghter conducted by the C Department’s Public Integrity Review Group when the Public Integrity Review Group has concluded that the allega tions were unfounded; and Open Records Decision No. 640 (1996) (replaci ng Open Records Decision No. 637 (1996)) — the Texas Department of Insurance must withho ld any information obtai ned from audit “work papers” that are “pertinent to the accountant’s ex amination of the financial statements of an ; former section 9 of insurer” under former section 8 of article 1. 15 of the Insurance Code article 1.15 makes confidential th e examination reports and related work papers obtained during the course of an examination of a carrier; section 9 of article 1.15 did not apply to examination reports and work papers of carrier s under liquidation or receivership. b. Federal Statutes Section 552.101 also incorporates the confidentiality provisions of federal statutes and regulations. In Open Records Decision No. 641 (1996), the atto rney general ruled that information collected ilities Act, 42 U.S.C. §§ 12101 et seq ., from an applicant or under the Americans with Disab dual’s medical condition employee concerning that indivi confidential under and medical history is section 552.101 of the Government Code, in conj unction with provisions of the Americans with Disabilities Act. This type of in formation must be colle cted and maintained se parately from other only as provided by the Am ericans with Disabilities Act. information and may be released In Open Records Decision No. 681 (2004), the attorney general addressed whether the Health 324 Insurance Portability and Account ability Act of 1996 (“HIPAA”) and the related Privacy Rule adopted by the United States Department of ces make information Health and Human Servi confidential for the purpose of section 552.101. The attorney general de termined that when a 325 subject to the Privacy Rule, receives a request for governmental body that is a “covered entity” 326 “protected health information” from a member of the public, it must evaluate the disclosure under that the Privacy Rule does not the Act rather than the Privacy Ru le. The decision also determined 324 The United States Department of Health and Human Services promulgated the Privacy Rule under HIPAA to 42 implement HIPAA’s privacy requirements for setting national privacy standards for health information. See U.S.C. § 1320d-2; 45 C.F.R. pts. 160, 164. 325 ng three entities defined in the Privacy The Privacy Rule only applies to a cove red entity, that is, one of the followi Rule: (1) a health plan; (2) a health care clearinghouse; and (3) a health care provider who transmits any health sactions covered by subchapter C, subtitle A of title 45 information in electronic form in connection with certain tran of the Code of Federal Regulations. 42 U.S.C. § 1320d-1(a); 45 C.F.R. § 160.103. See 326 45 C.F.R. § 160.103 (defining “protected health inform ation”); Open Records Decision No. 681 at 5–7 (2004) See (determination of whether requested information is protec ted health information subject to Privacy Rule requires consideration of definitions of three terms in rule). 2018 Public Information Act Handbook • Office of the Attorney General 67

84 Exceptions to Disclosure make information confidential fo r purposes of section 552.101 of the Government Code. In Abbott , the Third Court of Ap alth & Mental Retardation peals agreed with the v. Tex. Dep’t of Mental He 327 attorney general’s analysis of the inte rplay of the Act and the Privacy Rule. lds certain information that is that a governmental body in Texas ho As a general rule, the mere fact on Act or the federal Privacy Act will not bring confidential under the federal Freedom of Informati the information within the section 552.101 excep tion, as those acts govern disclosure only of 328 information that federal agencies hold. However, if an agency of the federal government shares rnmental entity, the Texas entity its information with a Texas gove must withhold the information 329 that the federal agency determined to be confidential under federal law. by Judicial Decision 2. Information Confidential a. Information Confidential Under Common Law or Constitutional Privacy Doctrine i. Common-Law Privacy (a) Generally Section 552.101 also excepts from required public disclosure information held confidential under xas Supreme Court decision in case law. Pursuant to the Te Indus. Found. v. Tex. Indus. Accident 330 section 552.101 applies to inform d constitute the common-law ation when its disclosure woul Bd. , tort of invasion of privacy through To be within this common-law the disclosure of private facts. te or embarrassing facts about a person’s private tort, the information must (1) contain highly intima affairs such that its release would be highly objec tionable to a reasonable pe rson and (2) be of no 331 Because much of the informati on that a governmental body holds legitimate concern to the public. is of legitimate concern to the public, the doctrine of common-law pr ivacy frequently will not exempt information that might be considered “private.” For example, information about public employees’ 332 conduct on the job is generally not protected from disclosure. The attorney general has found that ect the specific information at issue in the the doctrine of common-law privacy does not prot following decisions: Open Records Decision No. 625 (1994) — a company’s address and telephone number; a corporation’s financial information; Open Records Decision No. 620 (1993) — 327 Abbott v. Tex. Dep’t of Mental Health & Mental Retardation , 212 S.W.3d 648 (Tex. App.—Austin 2006, no pet.). 328 Attorney General Opinion MW-95 at 2 (1979); Open Records Decision No. 124 at 1 (1976). 329 , 887 F.2d 1528, 1530 (11th Cir. See Open Records Decision No. 561 at 6–7 (1990); accord United States v. Napper 1989) (documents that Federal Bureau of Investigation lent to city police department remained property of Bureau and were subject to any restrictions on dissemination of Bureau -placed documents). 330 Indus. Found. v. Tex. Indus. Accident Bd. , 540 S.W.2d 668 (Tex. 1976), cert. denied , 430 U.S. 931 (1977). 331 , 540 S.W.2d 668, 685 (Tex. 1976), Indus. Found. v. Tex. Indus. Accident Bd. , 430 U.S. 931 (1977); see cert. denied Open Records Decision No. 659 (1999). 332 See Open Records Decision No. 455 (1987). 2018 Public Information Act Handbook • Office of the Attorney General 68

85 Exceptions to Disclosure Open Records Decision No. 616 (1993) — a “mug shot,” unrel ated to any active criminal rrest for which an arrestee subsequently was investigation, taken in connection with an a convicted and is serving time; Open Records Decision No. 611 (1992) — records held by law enforcement agencies regarding highly intimate and embarrassing violence between family members unless the information is and of no legitimate public interest; garding a city’s drug testing (1991) — certain information re Open Records Decision No. 594 program for employees; and Open Records Decision No. 441 (1 986) — job-related examination scores of public employees or applicants for public employment. 333 The attorney general has concluded that, with the exception of victims of sexual assault, section 552.101 does not categoric ally except from required public disclosure, on common-law 334 privacy grounds, the names of crime victims. courts in Industrial Foundation, Information Act privacy case of In addition to the seminal Public other cases have considered the common-law right to privacy in the contex t of section 552.101 of newspaper, the Texas Supreme Court the Act. In two cases involving the Fort Worth Star-Telegram e right of the press to publish certain embarrassing weighed an individual’s right to privacy against th 335 a rape victim sued the information concerning an individual. In Star-Telegram, Inc. v. Doe , e age of the victim, the relative location of her newspaper, which had published articles disclosing th system, that she took me residence, the fact that she owned a home security dication, that she owned bile, and that she owned a travel ag ency. The newspaper did not reveal a 1984 black Jaguar automo her actual identity. The court held that the newspape r in this case could not be held liable for invasion of privacy for public disclosure of embarrassing private facts because, although the information ctim identifiable by disclosed by the articles made the vi her acquaintances, it could not be said that the articles disclosed facts which we re not of legitimate public concern. 336 the court addressed another case involving the identity of a rape In Star-Telegram, Inc. v. Walker , victim. In this case, the victim’s true identity c ould be gleaned from the criminal court records and that because trial proceedings are pub lic information, the order entered testimony. The court found by the criminal court closing the true identity from the criminal files and expunging the victim’s records (more than three months following the crim inal trial) could not retroactively abrogate the press’s right to publish public in formation properly obtained from open records. Once information is in the public domain, the court stated, the law cannot recall the information. Therefore, the court 333 Open Records Decision No. 339 at 2 (1982). See 334 see also Open Records Decision No. 409 at 2 (1984); Open Records Decision Nos. 628 (1994) (identities of juvenile protected from disclosure by common-law privacy), 611 (1992) (determining whether per se victims of crime are not records held by law-enforcement agency regarding viol ence between family members are confidential under doctrine of common-law privacy must be done on case-by-case basis). But see Gov’t Code §§ 552.132 (excepting information about certain crime victims), .1325 (excepting information held by governmental body or files with court contained in victim impact statement or submitted for purpose of preparing such statement). 335 , 915 S.W.2d 471 (Tex. 1995). Star-Telegram, Inc. v. Doe 336 Star-Telegram, Inc. v. Walker , 834 S.W.2d 54 (Tex. 1992). 2018 Public Information Act Handbook • Office of the Attorney General 69

86 Exceptions to Disclosure found that the newspaper could not be held liabl e for invasion of privacy for publication of information appearing in public court documents. 337 In Morales v. Ellen , ether the statements and names of the court of appeals considered wh an employment context were public information witnesses to and victims of sexual harassment in under the Act. In Open Records Decision No. 579 (1990), the attorn ey general had concluded that an investigative file co ncerning a sexual harassment compla int was not protected by common-law court found that the names of privacy. The decision in Ellen modified that interpretation. The Ellen witnesses and their detailed affidavits were “hig hly intimate or embarrassing.” Furthermore, the court found that, because information pertinent to the sexual harassment charges and investigation already had been released to the public in summary form, the legitimate public interest in the matter had been satisfied. Therefore, the court determin ed that, in this instance, the public did not possess a legitimate interest in the names of witnesses to or victims of the sexual harassment, in their statements, or in any other information that would tend to identify them. The Ellen court did not protect from public disclosure th e identity of the alleged perpet rator of the sexual harassment. 338 In Abbott v. Dallas Ar ea Rapid Transit , the court of appeals cons idered a request for the investigation report pertaining to a claim of r acial discrimination. The court concluded this nd is not comparable to the information at issue information is in no way intimate or embarrassing a Morales v. Ellen in report was not protected by common-law . The court of appeals determined the privacy and must be rele ased without redaction. (b) Financial Information aim that financial information pertaining to an individual is Governmental bodies frequently cl common-law privacy as incorpor protected under the doctrine of ated into section 552.101. Resolution of these claims hinges up on the role the information play s in the relationship between the individual and the governmental body. Information regarding a financial transaction between an individua l and a governme ntal body is a acy does not generally matter of legitimate public interest; thus, the doct rine of common-law priv 339 An example of protect from required public disclosure information regarding such a transaction. a governmental body is a financial transaction between a person and a public employee’s 340 participation in an insurance program funded wholly or partially by his or her employer. In contrast, a public employee’s participation in a voluntary investment program or deferred compensation plan that the employer offers but does not fund is not co nsidered a financial transaction information regarding such participation is between the individual and the governmental body; 341 Consequently, the doctrine of common- considered intimate and of no legitimate public interest. law privacy generally excepts such financial information from required public disclosure. 337 , 840 S.W.2d 519, 524–25 (Tex. App.—El Paso 1992, writ denied). Morales v. Ellen 338 , 410 S.W.3d 876 (Tex. App.—Austin 2013, no pet.). Abbott v. Dallas Area Rapid Transit 339 Open Records Decision Nos. 590 at 3 (1991), 523 at 3–4 (1989). See 340 Open Records Decision No. 600 at 9 (1992). See 341 Open Records Decision No. 545 at 3–5 (1990). See 2018 Public Information Act Handbook • Office of the Attorney General 70

87 Exceptions to Disclosure The doctrine of common-law privac y does not except from disclosure the basic facts concerning a 342 On the other hand, financial transaction between an in dividual and a governmental body. common-law privacy generally protects the “backgrou nd” financial information of the individual, 343 that is, information about the individual’s over all financial status and past financial history. However, certain circumstances may justify the public disclosure of background financial kground financial information under ation of the availability of bac information; therefore, a determin 344 the Act must be made on a case-by-case basis. ii. Constitutional Privacy 345 Section 552.101 also incorporates constitutional privacy. The United States Constitution protects two kinds of individual privacy interests: (1) an individual’s interest in independently making certain important personal decisions about matters th at the United States Su preme Court has stated 346 347 are within the “zones of pr ivacy,” as described in Roe v. Wade and and (2) an Paul v. Davis individual’s interest in avoiding the disclosure of personal matters to the public or to the 348 The “zones of privacy” imp government. licated in the individual’s interest in independently related to marriage, procreation, contraception, making certain kinds of decisions include matters 349 family relationships, and child rearing and education. licates constitutional privacy involves matters outside The second individual privacy interest that imp the “zones of privacy.” To determ nal right of privacy protects particular ine whether the constitutio ding the disclosure of personal plicates a person’s interest in avoi information, the release of which im that weighs the individual’s interest in privacy matters, the attorney general applies a balancing test against the public’s right to kno w the information. Although such a test might appear more protective of privacy interests than the common-law test, the scope of information considered private under the constitutional doctrine is far narrower than that under the common law; the material must 350 aspects of human affairs.” concern the “most intimate 342 See, e.g. , Open Records Decision Nos. 523 at 3–4 (1989), 385 at 2 (1983) (hospital’s accounts receivable showing patients’ names and amounts they owed were subject to public disclosure). 343 ports and financial statements of individual veterans See Open Records Decision Nos. 523 at 3–4 (1989) (credit re participating in Veterans Land Program are protected from disclosure as “background” financial information), 373 at 3 (1983) (sources of income, salary, mortgage payments, assets, and credit history of applicant for housing But see Open Records Decision No. 620 at 4 (1993) rehabilitation grant are protected by common-law privacy). (background financial information regarding corporation is not protected by privacy). 344 Open Records Decision No. 373 at 4 (1983). 345 Indus. Found . v. Tex. Indus. Accident Bd. , 540 S.W.2d 668, 678 (Tex. 1976), cert. denied , 430 U.S. 931 (1977). 346 Roe v. Wade , 410 U.S. 113, 152 (1973). 347 Paul v. Davis , 424 U.S. 693, 712–13 (1976). 348 Open Records Decision No. 600 at 4–5 (1992); see also Whalen v. Roe , 429 U.S. 589, 599–600 (1977). 349 Indus. Found , 540 S.W.2d 668, 678, 679 (Tex. 1976), v. Tex. Indus. Accident Bd. , 430 U.S. 931 (1977). . cert. denied 350 , 765 F.2d 490, 492 (5th Cir. Ramie v. City of Hedwig Village Open Records Decision No. 455 at 5 (1987) (citing See 1985)). 2018 Public Information Act Handbook • Office of the Attorney General 71

88 Exceptions to Disclosure on Death of the Subject iii. Privacy Rights Lapse up 351 Common-law and constitutional privacy right s lapse upon the death of the subject. Consequently, common-law and constitutional privacy family members of a deceased can be asserted on behalf of individual only on the basis of their own privacy interests, not on the basis of the deceased 352 individual’s privacy. the release of information will If a governmental body believes that ed individual, the governmental the family members of a deceas implicate the privacy interests of ght to submit comments to the attorney general body should notify the deceased’s family of their ri 353 fect their privacy interests. explaining how release will af In this regard, governmental bodies tion 552.1085 of the Government should also be aware of sec Code, which pertains to the cases, as discussed confidentiality and release of sens itive crime scene images from closed criminal tion II, Subsection J of this . Handbook more fully in Part Two, Sec iv. False-Light Privacy 354 an actionable tort in Texas. false-light privacy is not The Texas Supreme Court has held In addition, in Open Records Decisi on No. 579 (1990), the attorney ge neral determined the statutory predecessor to section 552.101 did not incorporate the common-law to rt of false-light privacy, 355 overruling prior decisions to the contrary. information is not relevant Thus, the truth or falsity of under the Public Information Act. v. Special Circumstances developed the “special circumstances” test under Through formal decisions, the attorney general 356 “Special circumstances” common-law privacy to withhold cert ain information from disclosure. refers to a very narrow set of situations in wh ich the release of information would likely cause 357 someone to face “an imminent threat of physical danger.” Such “special circumstances” do not 358 fear of harassment or retribution.” Tex. Dep’t of Pub. In include “a generalized and speculative Safety v. Cox Tex. Newspapers, L. wspapers, L.P. , the Third Court of Appeals P. & Hearst Ne concluded it could not adopt the speci al circumstances analysis because it directly conflicts with the two-part test articulated in Industrial Foundation , which is the sole criteria for determining whether 351 , 589 S.W.2d 489, 491 (Tex. Civ. App.—Texarkana 1979, writ ref’d Moore v. Charles B. Pierce Film Enters., Inc. x. 1979) (“action Justice v. Belo Broadcasting Corp. n.r.e.); , 472 F. Supp. 145, 146–47 (N.D. Te for invasion of privacy can be maintained only by a living individual whose privacy is invaded”) (quoting Restatement of Torts 2d); Attorney General Opinion H-917 at 3–4 (1976); Open Records Decision No. 272 at 1 (1981); see United States v. Amalgamated Life Ins. Co. , 534 F. Supp. 676, 679 (S.D.N.Y. 1982) (cons titutional right to privacy terminates upon death and does not descend to heirs of deceased). 352 Moore v. Charles B. Pierce Film Enters., Inc. , 589 S.W.2d 489, 491 (Tex. Civ. App.—Texarkana 1979, writ ref’d , Justice v. Belo Broadcasting Corp. , 541 U.S. 157 (2004); Records Admin. v. Favish see also Nat’l Archives & n.r.e.); 472 F. Supp. 145, 146–47 (N.D. Tex. 1979); , 534 F. Supp. 676, 679 United States v. Amalgamated Life Ins. Co. (S.D.N.Y. 1982). 353 Gov’t Code § 552.304 (any interested person may submit comments explaining why records should or should See not be released). 354 ., 878 S.W.2d 577, 579 (Tex. 1994). Cain v. Hearst Corp 355 Open Records Decision No. 579 at 3–8 (1990). 356 Open Records Decision Nos. 169 (1977), 123 (1976). 357 Open Records Decision No. 169 at 6 (1977). 358 Open Records Decision No. 169 at 6 (1997). 2018 Public Information Act Handbook • Office of the Attorney General 72

89 Exceptions to Disclosure 359 under the common law. The Texas Supreme Court, information is private however, reversed the 360 court of appeals’ opinion. The supreme court concluded fr eedom from physical harm is an Thus, the supreme court to the right of privacy. independent interest protected under law, untethered for the first time announced a comm on-law right of physical safety exception under the Act. The in section 552.152 requi supreme court adopted the standard enunciated ring the withholding of 361 information if disclosure would create a “substantial threat of physical harm.” As articulated by more than vague assertions of potential harm. the court, the new common-law exception requires vi. Dates of Birth of Members of the Public Dates of birth of members of the public are contai ned in a wide variety of public records. The attorney general has historically concluded that dates of birth of member s of the public are not 363 362 protected under common-law privacy. Paxton v. City of Dallas However, in the Third Court , rth are protected by common-law privacy pursuant of Appeals concluded public citizens’ dates of bi to section 552.101 of the Governme nt Code. In its opinion, the court of appeals looked to the 364 supreme court’s rationale in Texas Comptroller of Public Account s v. Attorney General of Texas , where the supreme court concluded public employees’ dates of birth are private under section acy interest substantially outweighed ment Code because the employees’ priv 552.102 of the Govern 365 the negligible public interest in disclosure. Texas Comptroller Based on , the court of appeals concluded the privacy rights of pu qually to public citizen s, and thus, public blic employees apply e citizens’ dates of birth are also protected by comm on-law privacy. Consequently, dates of birth of members of the public are generally protected under common-law privacy. b. Informer’s Privilege 552.101 of the Government As interpreted by the attorney general, section Code incorporates the 366 the United States Supreme Court explained “informer’s privilege.” In , Roviaro v. United States the rationale underlying the informer’s privilege: What is usually referred to as the informer’s pr ivilege is in reality th e Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of The purpose of the privilege is the law to officers charged with enforcement of that law. in effective law enforc furtherance and protection of the public interest ement. The privilege recognizes the obligation of citizens to commun icate their knowledge of the commission of 359 Tex. Dep’t of Pub. Safety v. Cox Tex. Newspapers, L.P. & Hearst Newspapers, L.P. , 287 S.W.3d 390, 394-95 , 343 S.W.3d 112 (Tex. 2011). rev’d (Tex. App.—Austin 2009), 360 Tex. Dep’t of Pub. Safety v. Cox Tex. Newspapers, L.P. & Hearst Newspapers, L.P. , 343 S.W.3d 112 (Tex. 2011). 361 See Gov’t Code § 552.152 (information in custody of governmental body that relates to employee or officer of umstances pertaining to employee or officer, disclosure governmental body is excepted from disclosure if, under circ would subject employee or officer to substantial threat of physical harm). 362 See Open Records Decision No. 455 at 7 (1987). 363 , No. 03-13-00546-CV, 2015 WL 3394061, at *3 (Tex. App.—Austin May 22, 2015, Paxton v. City of Dallas pet. denied) (mem. op.). 364 , 354 S.W.3d 336 (Tex. 2010). Texas Comptroller of Public Accounts v. Attorney General of Texas 365 , 354 S.W.3d 336, 347-348 (Tex. 2010). Texas Comptroller of Public Accounts v. Attorney General of Texas 366 , 353 U.S. 53 (1957). Roviaro v. United States 2018 Public Information Act Handbook • Office of the Attorney General 73

90 Exceptions to Disclosure crimes to law-enforcement offi cials and, by preserving their a nonymity, encourages them to 367 perform that obligation. is policy, the attorney general has constr In accordance with th ued the informer’s privilege aspect of a person who (1) reports a violation or possible section 552.101 as protecting the identity only of violation of the law (2) to officials charged with the duty of enforcing the particular law. The 368 informer’s privilege facet of section 552.101 does not protect information about lawful conduct. ministrative agency officials having a duty to The privilege protects information reported to ad 369 enforce statutes with civil or criminal penalties, as well as to law enforcement officers. The informer’s privilege protects not only the in former’s identity, but also any portion of the 370 informer’s statement that might tend to reveal the in former’s identity. Of course, protecting an under the informer’s privilege serves no purpose informer’s identity and any identifying information ey general has held that the if the accused already knows the informer’s identity. The attorn 371 informer’s privilege does not apply in such a situation. section 552.101 of the G overnment Code serves to protect the flow The informer’s privilege facet of 372 of information to a governme ntal body; it does not serve to protect a third person. Thus, because st, this privilege, unlike other section 552.101 it exists to protect the governmental body’s intere 373 claims, may be waived by the governmental body. B. Section 552.102: Confidentiality of Certain Personnel Information Section 552.102 of the Governme nt Code provides as follows: Information is excepted from [required public disclosure] if (a) it is information in a personnel file, the disclosu re of which would constitu te a clearly unwarranted invasion of personal privacy, except that all information in the personnel file of an employee of a governmental body is to be made available to that employee or the lic information is ma de available under employee’s designated representative as pub sclosure created by this subsection is in this chapter. The exception to public di access to personnel ion 552.024. Public addition to any exception created by Sect denied to the extent provided by that information covered by Section 552.024 is section. required public disclosure] if it is a transcript from an (b) Information is excepted from [ n maintained in the personne l file of a professional institution of higher educatio public school employee, except that this section does not exempt from disclosure the onnel file of the degree obtained or the curriculum on a tr anscript in the pers employee. 367 , 353 U.S. 53, 59 (1957) (emphasis added) (citations omitted). Roviaro v. United States 368 See Open Records Decision Nos. 515 at 4–5 (1988), 191 at 1 (1978). 369 See Open Records Decision No. 515 at 2 (1988). 370 Open Records Decision No. 515 at 2 (1988). 371 Open Records Decision No. 208 at 1–2 (1978). 372 Open Records Decision No. 549 at 5 (1990). 373 Open Records Decision No. 549 at 6 (1990). 2018 Public Information Act Handbook • Office of the Attorney General 74

91 Exceptions to Disclosure 1. Dates of Birth of Public Employees 374 In 1983, the Third Court of Appeals in Hubert v. Harte-Hanks Tex. Newspapers, Inc. ruled the test to be applied under section 552.102 is the same as the test formulated by the Texas Supreme Court in Industrial Foundation for applying the doctrine of comm on-law privacy as incorporated by ld section 552.102(a) excepts from section 552.101. Howeve r, the Texas Supreme Court has he disclosure only the dates of birth of state employee of the Texas Comptroller s in the payroll database 375 of Public Accounts. In light of the court’s determinati on, a governmental body should not raise section 552.102(a) if it seeks to withhold its employees’ personnel information under common-law privacy. The appropriate exception a governmental body should raise to protect its employees’ n-law privacy is section 552.101 . Section 552.102(a) only personnel information under commo that is contained in re cords maintained by the excepts from disclosure a public employee’s birth date employment context. governmental body in an 376 Section 552.102 applies to former as well as current public employees. However, section 552.102 377 52.102 applies only to the does not apply to applicants for employment. In addition, section 5 personnel records of public employees, not the records of private employees. 2. Transcripts of Professional Public School Employees ects from required public disclosure mo Section 552.102 also prot st information on a transcript from an institution of higher education maintained in the personnel files of pr ofessional public school employees. Section 552.102(b) does not except from disclosure info rmation on a transcript detailing 378 Moreover, the attorney general has interpreted the degree obtained an d the curriculum pursued. section 552.102(b) to apply only to public schools providing public the transcripts of employees of education under title 2 of the Education Code, not to employees of colleges and universities 379 providing higher educat ion under title 3 of the Education Code. Settlement Negotiations Involving the C. Section 552.103: Litigation or State or a Political Subdivision ation exception,” excepts from mmonly referred to as the “litig Section 552.103(a) of the Act, co required public disclosure: [I]nformation relating to litigation of a civil or criminal nature to which the state or a be a party or to which an offi cer or employee of the state or political subdivision is or may or employment, is or may be nsequence of the person’s office a political subdivision, as a co a party. 374 , 652 S.W.2d 546, 550 (Tex. App.—Austin 1983, writ ref’d n.r.e.). Hubert v. Harte-Hanks Tex. Newspapers, Inc. 375 ., 354 S.W. 3d 336 (Tex. 2010). Tex. Comptroller of Pub. Accounts v. Attorney General of Tex 376 Attorney General Opinion JM-229 at 2 (1984). 377 Open Records Decision No. 455 at 8 (1987). 378 See Open Records Decision No. 526 (1989). 379 See, e.g. , Open Records Letter Nos. 2013-11312 (2013), 2009-18243 (2009), 2008-10363 (2008), 2008-08137 (2008). 2018 Public Information Act Handbook • Office of the Attorney General 75

92 Exceptions to Disclosure Section 552.103(a) was intended to prevent the use of the Public Informa tion Act as a method of 380 avoiding the rules of discovery used in litigation. This exception enables a governmental body to seeking information relati ng to that litigation to protect its position in litigation “by forcing parties 381 obtain it through discovery” procedures. Section 552.103 is a di scretionary exception to 382 As such, section 552.103 disclosure and does not make info rmation confidential under the Act. does not make information confidential for the purposes of section 552.022. Fu rther, a governmental body waives section 552.103 ocedural requirements of section by failing to comply with the pr 383 552.301. 1. Governmental Body’s Burden losure by section 552.103(a), (1) litigation involving For information to be excepted from public disc the governmental body must be pending or reasonably anticipated and (2) the information must relate 384 to that litigation. Therefore, a governmental body that seeks an attorney general decision has the burden of clearly establishi ng both prongs of this test. a contested case under the Admini For purposes of section 552.103(a), strative Procedure Act (APA), 385 Government Code chapter 2001, constitutes “litigation.” Questions remain regarding whether may be considered litiga tion within the meaning administrative proceedings not subject to the APA 386 In determining whether an administrative proceeding should be considered of section 552.103(a). 552.103, the attorney general will consider the following factors: litigation for the purpose of section an administrative ll practical purposes, litigated in (1) whether the dispute is, for a proceeding where ence is heard, (c) factual questions are resolved, and (d) a record (a) discovery takes place, (b) evid 387 is made; and (2) whether the proceeding is an adjudicative forum of first jurisdiction. 388 Section be determined on a case-by-case basis. Whether litigation is reasonably anticipated must 552.103(a) requires concrete evidence that litigation is realistically contemplated; it must be more 389 390 than conjecture. The mere chance of litiga tion is not sufficient to trigger section 552.103(a). The fact that a governmental body received a claim le tter that it represents to the attorney general to the Texas Tort Claims Act, Civil Practice and be in compliance with the notice requirements of Remedies Code chapter 101, or ap plicable municipal ordinance, sh ows that litigation is reasonably 380 Thomas v. Cornyn , 71 S.W.3d 473, 487 (Tex. App.—Austin 2002, no pet.); Attorney General Opinion JM-1048 at 4 (1989). 381 Open Records Decision No. 551 at 3 (1990). 382 Dallas Area Rapid Transit v. Dallas Morning News , 4 S.W.3d 469, 475–76 (Tex. App.—Dallas 1999, no pet.); Open Records Decision No. 665 at 2 n.5 (2000). 383 Open Records Decision Nos. 663 at 5 (1999), 542 at 4 (1990). 384 Univ. of Tex. Law Sch. v. Tex. Legal Found. , 958 S.W.2d 479, 481 (Tex. App.—A ustin 1997, orig. proceeding); ., 684 S.W.2d 210, 212 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.). Heard v. Houston Post Co 385 (construing statutory predecessor to APA). Open Records Decision No. 588 at 7 (1991) 386 Open Records Decision No. 588 at 6–7 (1991). 387 Open Records Decision No. 588 (1991). See 388 Open Records Decision No. 452 at 4 (1986). 389 Attorney General Opinion JM-266 at 4 (1984); Open Records Decision Nos. 677 at 3 (2002), 518 at 5 (1989), 328 at 2 (1982). 390 Open Records Decision Nos. 677 at 3 (2002), 518 at 5 (1989), 397 at 2 (1983), 361 at 2 (1983), 359 at 2 (1983). 2018 Public Information Act Handbook • Office of the Attorney General 76

93 Exceptions to Disclosure 391 anticipated. If a governmental body does not make this representation, the claim letter is a factor in determining from the totality of the circumstances presented the attorney general will consider whether the governmental body has established that litigation is reasonably anticipated. general had concluded th In previous open records decisions, the attorney at a governmental body could claim the litigation exception only if it established that withholding the information was 392 necessary to protect the governmental body’s strate gy or position in litigation. However, Open d this test and concluded that the governmental Records Decision No. 551 (1990) significantly revise formation to the subject matter of the pending or body need only establish the relatedness of the in 393 anticipated litigation. Therefore, to meet its burden unde r section 552.103(a) in requesting an attorney general decision under the Act, the go vernmental body must iden tify the issues in the 394 litigation and explain how the inform ation relates to those issues. When the litigation is actually pending, the governmental body should also provide the attorney general a copy of the relevant pleadings. 2. Only Circumstances Existing at the Time of the Request 103 provides as follows: Subsection (c) of section 552. or an officer or employee Information relating to litigatio n involving a governmental body of a governmental body is excepted from di on (a) only if the sclosure under Subsecti questor applies to the the date that the re litigation is pending or reasonably anticipated on the information. or duplication of officer for public information for access to Consequently, in determining whether a govern mental body has met its burden under section 552.103, the attorney general or a court can only consider the circumstances that existed on the date the governmental body received th e request for information, not info rmation about oc currences after 395 est for information. the date of the requ 3. Temporal Nature of Section 552.103 d the records pursuant to court order, discovery, Generally, when parties to litigation have inspecte 396 or through any other means, section 552.103(a) may no longer be invoked. In addition, once 397 no longer applicable. nding, section 552.103(a) is litigation is neither reasonably anticipated nor pe Once a governmental body has disclosed inform ation relating to litigation, the governmental body is ordinarily precluded from invoking section 552. 103(a) to withhold the same information. This is not the case, however, when a gove rnmental body has disclosed info rmation to a co-defendant in 391 Open Records Decision No. 638 at 4 (1996). 392 See Open Records Decision Nos. 518 at 5 (1989), 474 at 5 (1987). 393 Open Records Decision No. 551 at 5 (1990). 394 Open Records Decision No. 551 at 5 (1990). 395 Open Records Decision No. 677 at 2–3 (2002). 396 Open Records Decision No. 597 (1991) (statutory predecessor to Gov’t Code § 552.103 did not except basic see disclosed to defendant in criminal litigation); Open Records information in offense report that was previously Decision Nos. 551 at 4 (1990), 511 at 5 (1988), 493 at 2 (1988), 349 (1982), 320 (1982). 397 see Thomas v. El Paso County Cmty. Coll. Dist. Open Records Decision Nos. 551 at 4 (1990), 350 (1982); , 68 S.W.3d 722, 726 (Tex. App.—El Paso 2001, no pet.). 2018 Public Information Act Handbook • Office of the Attorney General 77

94 Exceptions to Disclosure litigation, where the governmental body believes in good faith that it has a constitutional obligation 398 to disclose it. 4. Scope of Section 552.103 Section 552.103 applies to information that relates to pending or reasonably antic ipated litigation, 399 which is a very broad category of information. The protection of se ction 552.103 may overlap with that of other exceptions that encompass discovery privilege s. However, the standard for proving that section 552.103 applie the information rdless of whether s to information is the same rega is also subject to a discovery privilege. For example, information excepted from disclo sure under the litigation exception may also be 400 subject to the work product privilege. However, the standard for proving that the litigation exception applies is wholly distinct from the standard for proving that the work product privilege 401 The work product privilege is incorpor applies. ated into the Act by section 552.111 of the 402 If both section 552.103 and the work product privilege Government Code, not section 552.103. could apply to requested informat ion, the governmental body has the discretion to choose to assert 403 However, the governmental bod y must meet distinct burdens either or both of the exceptions. 404 Under section 552.103, th e governmental body must depending on the exception it is asserting. 405 demonstrate that the requested in formation relates to pending or reasonably anticipated litigation. Under the work product privilege, the government al body must demonstrate that the requested information was created for trial or in anticipatio n of civil litigation by or for a party or a party’s 406 representative. 5. Duration of Section 552 .103 for Criminal Litigation Subsection (b) of section 552.103 provides as follows: For purposes of this section, th is considered to be a party e state or a political subdivision to litigation of a criminal nature until the applicable statute of limitations has expired or and postconviction remedies in state and until the defendant has exhausted all appellate federal court. 398 Open Records Decision No. 454 at 3 (1986). 399 Univ. of Tex. Law Sch. v. Tex. Legal Found. , 958 S.W.2d 479, 483 (Tex. App.—Aus tin 1997, orig. proceeding). 400 See Open Records Decision No. 677 at 2 (2002). 401 See Open Records Decision No. 677 at 2 (2002). 402 See Open Records Decision No. 677 at 4 (2002). 403 Open Records Decision No. 677 at 2 (2002); Open Records Decision No. 647 at 3 (1996). See 404 Open Records Decision No. 677 at 2 (2002). 405 See Univ. of Tex. Law Sch. v. Tex. Legal Found. , Open Records Decision No. 677 at 2 (2002); Gov’t Code § 552.103; Heard v. Houston Post Co ., 684 S.W.2d 210, 212 (Tex. 958 S.W.2d 479, 481 (Tex. App.—Austin 1997, no pet.); App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.). 406 Open Records Decision No. 677 at 5–8 (2002). 2018 Public Information Act Handbook • Office of the Attorney General 78

95 Exceptions to Disclosure The attorney general has determined that section 5 52.103(b) is not a separate exception to disclosure; it merely provides a time frame within which the litig ation exception excepts information from 407 disclosure. D. Section 552.104: Information Re lating to Competition or Bidding Section 552.104 of the Governme nt Code provides as follows: Information is excepted from the requirements of Section 552.021 if it is information (a) ntage to a competitor or bidder. that, if released, would give adva (b) The requirement of Sectio n 552.022 that a category of information listed under Section 552.022(a) is public information a nd not excepted from required disclosure under this chapter unless ex pressly confidential unde r law does not apply to information that is excepted from re quired disclosure under this section. Section 552.104(a) of the Governme nt Code excepts from disclosure information that, if released, s Supreme Court co a competitor or bidder. The Texa would give advantage to nsidered section section 552.104 is whether kn owing another bidder’s [or 552.104 and held the “test under 408 an advantage, not whether it w competitor’s information] would be ould be a decisive advantage.” The supreme court further held s ection 552.104 protection is not li mited to governmental bodies, 409 The supreme court’s decision and therefore a private third part y may also invoke this exception. s limiting the application of section 552.104 to overrules a long line of attorney general decision governmental bodies and discussing the burden a governmental body must meet in order to withhold information under section 552.104. Both governmental bodies and th ird parties should therefore exercise caution in relying on prior attorney general decisions regarding the applicability of 552.104(b) provides that information excepted from disclo sure under this section 552.104. Section section may be withheld even if gories of information listed in it falls within one of the cate section 552.022(a). E. Section 552.105: Information Relate d to Location or Price of Property Section 552.105 of the Government Code excepts from required public disclosure information relating to: the location of real or p (1) ersonal property for a public purpose prior to public announcement of the project; or (2) appraisals or purchase price of real or pe rsonal property for a public purpose prior to the formal award of co ntracts for the property. 407 Open Records Decision No. 518 at 5 (1989). 408 Boeing Co. v. Paxton , 466 S.W. 3d 831, 841 (Tex. 2015). 409 Boeing Co. v. Paxton , 466 S.W. 3d 831, 833 (Tex. 2015). 2018 Public Information Act Handbook • Office of the Attorney General 79

96 Exceptions to Disclosure ting position with respect to ntal body’s planning and negotia This exception protects a governme 410 and its protection is therefore limited in duration. particular real or personal property transactions, ement of the project for which The protection of section 552.105(1) expires upon the public announc otection of section 552.105(2) expires upon the the property is being acquired, while the pr 411 governmental body’s acquisition of the property in question. Because section 552.105(2) extends it may protect more than hase price of property, to “information relating to” the appraisals and purc 412 For example, the attorney just the purchase price or appraisa l of a specific pi ece of property. general has held that appraisal information about parc els of land acquired in advance of others to be acquired for the same project could be withhe ation would harm the ld where this inform 413 governmental body’s negotiating position with respect to the remaining parcels. Similarly, the location of property to be purchased may be wit hheld under section 552.105(2) if releasing the operty. The exception for information pertaining to location could affect the purchase price of the pr 414 “purchase price” in section 552.105(2) also applie s to information pertaining to a lease price. on that the release of information has made a good faith determinati When a governmental body property, the attorney general with respect to the acquisition of would damage its negotiating position in issuing a ruling under the Ac unless the records or other t will accept that determination, 415 information show the cont rary as a matter of law. F. Section 552.106: Certain Legislative Documents Section 552.106 of the Governme nt Code provides as follows: (a) A draft or working paper in volved in the preparation of proposed legislation is excepted from [required public disclosure]. (b) prepared by the governor’s office for the An internal bill analysis or working paper purpose of evaluating proposed legislation is excepted from [required public disclosure]. Section 552.106(a) protects documents concerning the deliberative processes of a governmental 416 The purpose of this excep tion is to encourage frank body relevant to the enactment of legislation. tes or advisors of a legislative body and the discussion on policy matters between the subordina 418 417 However, section 552.106(a) does not protect purely factual material. If a legislative body. draft or working paper contains purely factual ma terial that can be disclosed without revealing protected judgments or recommendations, such factual material must be disclosed unless another 410 Open Records Decision No. 357 at 3 (1982). 411 see Gov’t Code § 552.105; Open Records Decision No. 222 at 1–2 (1979). 412 No. 03-02-00187-CV, 2003 WL 124248, at *2 (Tex. App.—Austin See Heidenheimer v. Tex. Dep’t of Transp., Jan. 16, 2003, pet. denied) (mem. op., not designated for publication); Open Records Decision No. 564 (1990) (construing statutory predecessor to Gov’t Code § 552.105). 413 Open Records Decision No. 564 (1990). 414 Open Records Decision No. 348 (1982). 415 Open Records Decision No. 564 at 2 (1990). 416 See Open Records Decision No. 429 at 5 (1985). 417 Open Records Decision No. 460 at 2 (1987). 418 Open Records Decision Nos. 460 at 2 (1987), 344 at 3–4 (1982), 197 at 3 (1978), 140 at 4 (1976). 2018 Public Information Act Handbook • Office of the Attorney General 80

97 Exceptions to Disclosure 419 Section 552.106(a) protects drafts of legislation that reflect policy exception to disclosure applies. by persons with some judgments, recommendations, and proposals prepared official responsibility 420 to prepare them for the legislative body. In addition to documents actually created by the e term “legislation” to include certain documents legislature, the attorney general has construed th 421 created by a city or a state agency. The following open records decisions have held cer tain information to be excepted from required public disclosure under the statutor y predecessor to section 552.106(a): Open Records Decision No. 460 (1987) — a c ity manager’s proposed budget prior to its e city manager to prepare such ere the city charter directed th presentation to the city council, wh a proposal and the proposal was comprise d of recommendations rather than facts; the executive committee of the Open Records Decision No. 367 (1983) — recommendations of Accountancy Act; and Texas State Board of Public Accountancy for am endments to the Public of a municipal ordinance and resolution that Open Records Decision No. 248 (1980) — drafts ussion purposes and that reflected policy ff study group for disc were prepared by a city sta ons, and proposals. judgments, recommendati The following open records decision s have held informatio n not to be excepted from required public disclosure under the statutory pr edecessor to section 552.106(a): Open Records Decision No. 482 (1987) — drafts and working papers incor porated into materials that are disclosed to the public; Open Records Decision No. 429 (198 5) — documents relating to the Texas Turnpike Authority’s to enact ordinances, as the agen cy had no official authority to efforts to persuade various cities ird party to the legislative process; and do so and acted merely as an interested th 1982) — certain information rela Open Records Decision No. 344 ( ting to the State Property Tax Board’s biennial study of taxable property in ea ch school district, for the reason that the nature of the requested information compiled by the board was factual. rnal bill analysis or Section 552.106(b) excepts from disclosure “[a]n inte working paper prepared by 422 The purpose of section the governor’s office for the purpose of evaluating proposed legislation[.]” 552.106(b) is also to encourage frank discussion on policy matters; however, this section applies to information created or used by employees of th e governor’s office for the purpose of evaluating proposed legislation. Furthermore, like section 552.106(a), section 552.106 (b) only protects policy 419 Open Records Decision No. 460 at 2 (1987). 420 Open Records Decision No. 429 at 5 (1985). 421 Open Records Decision Nos. 460 at 2–3 (1987), 367 (1983), 248 (1980). See 422 Gov’t Code § 552.106(b). 2018 Public Information Act Handbook • Office of the Attorney General 81

98 Exceptions to Disclosure judgments, advice, opinions, an d recommendations involved in the preparation or evaluation of 423 proposed legislation; it does not except purely factual information from public disclosure. 424 achieve the same goals in different contexts. Sections 552.106 and 552.111 were designed to The purpose of section 552.111 is “to protect from p ublic disclosure advice and opinions on policy matters and to encourage frank an d open discussion within the agency in conne ction with its 425 decision-making processes.” of each exceptio Because the policies and objectives n are the same, some decisions applying section ining how section 552.106 should 552.111 may be helpful in determ 426 be construed. me type of information, section 552.106 is Although the provisions protect the sa 427 ifically to the legislative process. narrower in scope because it applies spec G. Section 552.107: Certain Legal Matters Section 552.107 of the Gove rnment Code states that information is excepted from required public disclosure if: rney general or an attorney (1) it is information that the atto of a political subdivision is prohibited from disclosing because of a dut y to the client under the Texas Rules of Rules of Professional Conduct; or Evidence or the Texas Disciplinary (2) disclosure of the information. a court by order has prohibited This section has two distinct aspects: subsection (1) protects information w ithin the attorney-client privilege, and subsection (2) protects information a court has ordered to be kept confidential. 1. Information Within the Attorney-Client Privilege information not subject to section 55 When seeking to withhold 2.022 of the Government Code based 428 In Open on the attorney-client privilege, a governme ntal body should asse rt section 552.107(1). 52.107 to protect the the attorney general interpreted section 5 Records Decision No. 676 (2002), 429 Thus, the standard for same information as protected un der Texas Rule of Evidence 503. me as the standard used in privilege under the Act is the sa demonstrating the attorney-client andard, a governmental body bears the burden of discovery under rule 503. In meeting this st 430 providing the necessary facts to demonstrate th e elements of the attorney-client privilege. th 423 Leg. (1997) (protection given to House Comm. on State Affairs, Public Hearing, May 6, 1997, H.B. 3157, 75 See legislative documents under Gov’t Code § 552.106(a) is comparable with protection given to governor’s legislative documents under Gov’t Code § 552.106(b)). 424 Open Records Decision No. 482 at 9 (1987). 425 Austin v. City of San Antonio , 630 S.W.2d 391, 394 (Tex. App.—San Antonio 1982, writ ref’d n.r.e.); Open Records Decision No. 222 (1979). 426 Open Records Decision No. 482 at 9 (1987). Open Records Decision No. 615 at 5 (1993) (agency’s But see policymaking functions protected by statutory predecessor to section 552.111 do not encompass routine internal administrative and personnel matters). 427 See Open Records Decision Nos. 460 at 3 (1987), 429 at 5 (1985). 428 Open Records Decision Nos. 676 at 1–3 (2002), 574 at 2 (1990). 429 Open Records Decision No. 676 at 4 (2002). 430 Open Records Decision No. 676 at 6 (2002). 2018 Public Information Act Handbook • Office of the Attorney General 82

99 Exceptions to Disclosure First, the governmental body must demonstrate that the informa tion constitutes or documents a 431 communication. Second, the communication must have been made “to facilitate the rendition of 432 the client governmental body. mental body must Third, the govern professional legal services” to demonstrate that the communicati on was between or among clients, client representatives, lawyers, 433 and lawyer representatives. Fourth, the governmental body must show that the communication was confidential; that is, the communication was “not intended to be disclosed to third persons other than those: to (A) whom disclosure is made to furtherance the rendition of professional legal services 434 to the clients; or (B) reasonably n ecessary to transmit the communication.” Finally, because the client can waive the attorney-client privilege at body must demonstrate any time, the governmental 435 that the communication ha s remained confidential. The privilege will not apply if the attorney or the attorney’s representative was acting in a capacity 436 “other than that of providing or facilitating professional le gal services to the client.” In 437 the Third Court of Appeals addressed whether an Harlandale Indep. Sch. District v. Cornyn , ey when she conducted a factual investigation, thus attorney was working in her capacity as an attorn rendering factual information fr om the attorney’s report except ed from public disclosure under nt Code. There, the Harlanda section 552.107(1) of the Governme le Independent School District hired an attorney to conduct an investigation into an alleged assault and render a legal analysis of the 438 situation upon completion of the investigation. The attorney produced a report that included a 439 While the court of appeals held summary of the factual investig ation as well as legal opinions. mmunications between an attorney and a client the attorney-client privilege does not apply to co “when the attorney is employed in a non-legal capac ity, for instance as an accountant, escrow agency, negotiator, or notary public,” the co ting in a legal that case was ac urt also held the attorney in capacity in gathering the facts beca use the ultimate purpose of her investigation was the rendition of 440 hired to conduct an investigation in his or her capacity as Thus, when an attorney is legal advice. aining both factual information and legal advice is an attorney, a report produced by an attorney cont excepted from disclosure in its entirety under section 552.107(1). If a governmental body de monstrates that any portion of a co mmunication is protected under the attorney-client privilege, then th e entire communication will be gene rally excepted from disclosure 431 Open Records Decision No. 676 at 7 (2002). 432 Open Records Decision No. 676 at 7 (2002); T EX . 503(b)(1). R. E VID . 433 . R. . 503(b)(1)(A)–(E); Open Records Decision No. 676 at 8–10 (2002). VID E T EX 434 Osborne v. Johnson see , 954 S.W.2d 180, T EX . R. E VID . 503(a)(5); Open Records Decision No. 676 at 10 (2002); 184 (Tex. App.—Waco 1997, orig. proceeding) (whether co mmunication was confidential depends on intent of parties involved at time information was communicated). 435 Open Records Decision No. 676 at 10–11 (2002). 436 Open Records Decision No. 676 at 7 (2002); see also In re Tex. Farmers Ins. Exch. , 990 S.W.2d 337, 340 (Tex. ivilege does not apply if a ttorney acting in capacity App.—Texarkana 1999, orig. proceeding) (attorney-client pr other than that of attorney). 437 , 25 S.W.3d 328 (Tex. App.—Austin 2000, pet. denied). Harlandale Indep. Sch. Dist. v. Cornyn 438 , 25 S.W.3d 328, 330 (Tex. App.—Austin 2000, pet. denied). Harlandale Indep. Sch. Dist. v. Cornyn 439 , 25 S.W.3d 328, 330–331 (Tex. App.—Austin 2000, pet. denied). Harlandale Indep. Sch. Dist. v. Cornyn 440 Harlandale Indep. Sch. Dist. v. Cornyn , 25 S.W.3d 328, 332–35 (Tex. App.—Austin 2000, pet. denied). 2018 Public Information Act Handbook • Office of the Attorney General 83

100 Exceptions to Disclosure 441 under section 552.107. However, section 552.107 does not apply to a non-privileged communication within a privileged communication, if the non-privileged communication is maintained by the governmental body separate and apart from the otherwise privileged communication. For example, if an e-mail string in cludes an e-mail or attachment that was received from or sent to a non-privileged pa rty, and the e-mail or attachment that was received from or sent to the non-privileged party is separately responsive to the request for information when it is removed mental body may not withhold the non-privileged from the e-mail string and stands alone, the govern 442 e-mail or attachment under section 552.107. The scope of the attorney-client privilege and th e work product privilege, which is encompassed by section 552.111 of the Government Code, are often confused. The a ttorney-client privilege covers certain communications made in fu rtherance of the rendition of professional legal services, while the 443 work product privilege covers work prepared for the client’s lawsuit. For materials to be covered by the attorney-client privilege, they need not be prepared for litigation. a. Attorney Fee Bills us may not be withheld under Attorney fee bills are subject to section 552.022(a)(16) and th section 552.107. Nonethele ss, information contained in attorney fee bills may be withheld if it is fined in rule 503 of the Texas Rules of Evidence, protected under the attorney-client privilege as de 444 pose of section 552.022. other law for the pur or is made confidential under the Act or Because a)(16) provides “information that is a bill for attorney’s in the express language of section 552.022( nder the Act or other law, the entirety disclosure unless it is confidential u fees” is not excepted from of an attorney fee bill cannot be withheld on the basis that it contains or is an attorney-client 445 communication. b. Information a Private Attorney Holds for the Governmental Body If a governmental body engages a private attorney to perform le gal services, information in the 446 attorney’s possession relating to the legal services is subject to the Public Information Act. 441 See Huie v. DeShazo , 922 S.W.2d 920, 923 (Tex. 1996) (privilege extends to entire communication, including facts , 973 S.W.2d 453, 457 (Tex. App.—Houston [14th Dist.] 1998, orig. contained therein); In re Valero Energy Corp. proceeding) (privilege attaches to complete communication, including factual information). 442 See , e.g. , Open Records Letter Nos. 2013-12509 (2013), 2013-12111 (2013). 443 s Corp. v. Caldwell , Owens-Corning Fibergla , 851 S.W.2d 193, 200 (Tex. 1993); See Nat’l Tank Co. v. Brotherton 818 S.W.2d 749, 750 (Tex. 1991). 444 , 53 S.W.3d 328, 337 (Tex. 2001); Open Records Decision No. 676 at 5–6 (2002). See In re City of Georgetown 445 Open Records Decision Nos. 676 at 5 (2002) (attorney fee see also Gov’t Code §552.022(a)(16) (emphasis added); bill cannot be withheld in entirety on basis it contains or is attorney-client communication pursuant to language in section 552.022(a)(16)), 589 (1991) (information in attorney fee bill excepted only to extent information reveals client confidences or attorney’s legal advice). 446 inition of public information includes information pertaining to official Gov’t Code § 552.002(a)(2), (a-1) (def is maintained by person or entity ted by, transmitted to, received by, or business of governmental body that was crea performing official business on behalf of governmental body); Open Records Decision Nos. 663 at 7–8 (1999), 499 at 5 (1988), 462 at 7 (1987). 2018 Public Information Act Handbook • Office of the Attorney General 84

101 Exceptions to Disclosure c. Waiver of the Attorney-Client Privilege Texas Rule of Evidence 511 provides that, except where a disclosure is itself privileged, the attorney- client privilege is waived if a ho lder of the privilege voluntarily di scloses or consents to disclosure 447 of any significant part of the matter. In , the Texas Supreme Court determined (1) the failure of a governmental Paxton v. City of Dallas body to timely seek a ruling from the OAG to withhold information subject to the attorney-client privilege does not constitute a waiver of the privile ge, and (2) the attorney-c lient privilege constitutes 448 a compelling reason to withhold information un the Government Code. der section 552.302 of 2. Information Protected by Court Order Section 552.107(2) excepts from disclosure informa tion a court has ordered a governmental body to keep confidential. Prior to th e amendment of section 552.022 in 1999, governmental bodies often ) to withhold from disc losure the terms of a se relied on section 552.107(2 ttlement agreement if a court had issued an order expressly prohibiting th e parties to the settleme nt agreement or their 449 attorneys from disclosing th e terms of the agreement. Under the current version of section may not order a governmental b 552.022, however, a state court ody or an officer for public y category of information listed in section 552.022 information to withhold from public disclosure an 450 A settlement agreement to l under this chapter or other law. unless the information is confidentia 451 which a governmental body is a party is one ca tegory of information listed in section 552.022. With the exception of information subject to section 552.022, section 552.107(2) excepts from 452 disclosure information that is subject to a protective order duri ng the pendency of the litigation. As with any other exception to disclosure, a gov ernmental body must reque st a ruling from the attorney general if it wishes to withhold information under secti on 552.107(2) and should submit a copy of the protective order for the attorney gene ral’s review. A governme ntal body may not use a e exception once the co urt has dismissed the suit from which it protective order as grounds for th 453 arose. H. Section 552.108: Certain Law Enfor cement, Corrections, and Prosecutorial Information Code, sometimes referred to as the “law enforcement” exception, Section 552.108 of the Government provides as follows: 447 R. VID , 701 S.W.2d 644, Jordan v. Court of Appeals for Fourth Supreme Judicial Dist. T EX . see also E . 511(a)(1); 649 (Tex. 1985) (if matter for which privilege is sought has been disclosed to third party, thus raising question of waiver of privilege, party asserting privilege has burden of proving no waiver has occurred). 448 Paxton v. City of Dallas , 509 S.W.3d 247, 262, 271 (Tex. 2017). 449 Open Records Decision No. 415 at 2 (1984). See 450 Gov’t Code § 552.022(b). 451 Gov’t Code § 552.022(a)(18). 452 Open Records Decision No. 143 at 1 (1976). 453 Open Records Decision No. 309 at 5 (1982). 2018 Public Information Act Handbook • Office of the Attorney General 85

102 Exceptions to Disclosure utor that deals with the forcement agency or prosec Information held by a law en (a) detection, investigation, or prosecution of crime is excepted from the requirements of Section 552.021 if: (1) release of the information would interfere with the detection, investigation, or prosecution of crime; or prosecution of (2) it is information that deals with the de tection, investigation, crime only in relation to an investigation that did not result in conviction or deferred adjudication; (3) it is information relating to a threat against a peace officer or detention officer under Section 411.048; or collected or disseminated (4) it is information that: the state in anticipation of or in is prepared by an attorney representing (A) the course of preparing for criminal litigation; or (B) legal reasoning of an attorney reflects the mental impressions or representing the state. (b) An internal record or notation of a law en forcement agency or prosecutor that is maintained for internal use in matters relating to law en forcement or prosecution is excepted from the requirements of Section 552.021 if: (1) release of the internal record or nota tion would interfere with law enforcement or prosecution; (2) the internal record ement only in relation to an or notation relates to law enforc iction or deferred adjudication; or investigation that did not result in conv rd or notation: (3) the internal reco the state in anticipation of or in is prepared by an attorney representing (A) the course of preparing for criminal litigation; or (B) reflects the mental impressions or legal reasoning of an attorney representing the state. 552.021 information This section does not except from the re quirements of Section (c) about an arrested person, an arrest, or a crime. that is basic information and the Applicability of Section 552.108 to 1. The Meaning of “Law Enforcement Agency” Other Units of Government 2018 Public Information Act Handbook • Office of the Attorney General 86

103 Exceptions to Disclosure Section 552.108 generally applies to the records created by an agen cy, or a portion of an agency, 454 whose primary function is to investigate crimes and enforce the criminal laws. It generally does by an agency whose chief function is essentially regulatory in not apply to the records created 455 nature. For example, an agency that employs peace officers to investigate crime and enforce criminal laws may claim that section 552.108 excep ts portions of its records from required public disclosure. On the other hand, an agency involved primarily in licensing certain professionals or use section 552.108 to ex cept its records from regulating a particular industry generally may not 456 disclosure. criminal violations of law but lacks criminal An agency that investigates both civil and 457 enforcement authority is not a law enforcem of section 552.108. ent agency for purposes Entities that have been found to be law enforcement agencies for purposes of section 552.108 include: 458 the Texas Department of Criminal Justice (formerly the Texas Department of Corrections); the 459 460 a fire the Attorney General’s Or ganized Crime Task Force; Texas National Guard; 461 462 department’s arson investigation division; the El Paso Special Commission on Crime; the 463 Texas Lottery Commission; the Texas Alcoholic Bevera ge Commission’s Enforcement 464 and the Texas Comptroller of Public A Division; ccounts for purposes of enforcing the Tax 465 Code. es for purposes of sect The following entities are not law enforcement agenci ion 552.108: the Texas 466 the Texas Board of Private Inve stigators and Private Security Department of Agriculture; 469 467 468 and the Texas Real Agencies; the Texas Board of Pharmacy; Estate Commission. 454 See Open Records Decision Nos. 493 at 2 (1988), 287 at 2 (1981). 455 Open Records Decision No. 199 (1978). 456 See Open Records Decision No. 199 (1978). But see Attorney General Opinion MW-575 at 1–2 (1982) (former Gov’t Code § 552.108 may apply to information gathered by administrative agency when its release would unduly interfere with law enforcement); Open Records Decision No. 493 at 2 (1988). 457 Open Records Letter No. 99-1907 (1999) (Medicaid Program Integrity Division of Health and Human Services Medicaid fraud laws and refers criminal violations to Commission investigates both civil and criminal violations of attorney general for criminal enforcement). 458 Attorney General Opinion MW-381 at 3 (1981); Open Records Decision No. 413 at 1 (1984). 459 Open Records Decision No. 320 at 1 (1982). 460 Open Records Decision Nos. 211 at 3 (1978), 126 at 5 (1976). 461 Open Records Decision No. 127 at 8 (1976). 462 Open Records Decision No. 129 (1976). See 463 Gov’t Code §§ 466.019(b) (Lottery Commission is authorized to enforce violations of lottery laws and See intain department of security staffed by commissioned rules), .020(a)-(b) (Lottery Commission is authorized to ma peace officers or investigators). 464 See Alco. Bev. Code §§ 5.14 (Texas Alcoholic Beverage Commission may commission inspectors with police powers to enforce Alcoholic Beverage Code), .31 (pow ers and duties of commission), .36 (commission shall her laws relating to alcoholic beverages), .361 (commission investigate violations of Alcoholic Beverage Code and ot shall develop risk-based a pproach to enforcement). 465 A & T Consultants, Inc. v. Sharp , 904 S.W.2d 668, 679 (Tex. 1995) (section 552.108 excepts records generated by comptroller in process of enforcing tax laws). 466 Attorney General Opinion MW-575 at 1 (1982). 467 Open Records Decision No. 199 (1978). 468 Open Records Decision No. 493 (1988). 469 Open Records Decision No. 80 (1975). 2018 Public Information Act Handbook • Office of the Attorney General 87

104 Exceptions to Disclosure An agency that does not qualify as a law enforcem ent agency may, under limited circumstances, claim that section 552.108 excepts records in its possession from required public disclosure. For exception, such as documentary e qualify for the section 552.108 example, records that otherwis in the custody of evidence in a police file on a pending case, do not necessarily lose that status while 470 an agency not directly in volved with law enforcement. Where a non-law enforcement agency has would otherwise qualify for exce ption under section 552.108 as in its custody information that stodian of the records enforcement agency, the cu information relating to the pending case of a law may withhold the information if it provides the attorney general with a demonstration that the information relates to the pendin g case and a representa tion from the law enfo rcement entity that it 471 wishes to withhold the information. to section 552.108, the attorney general concluded Similarly, in construing the statutory predecessor uct the agency ble criminal cond that if an investigation by an administrative agency reveals possi intends to report to the appropriate law enforcem ent agency, then section 552.108 will apply to the information gathered by the administrative agency if the information relates to an open investigation 472 or if the release would inte rfere with law enforcement. 2. Application of Section 552.108 Section 552.108 excepts from required public disc losure four categories of information: 1) information the release of wh ich would interfere with law enforcement or prosecution; 2) information relating to an investigation that did not result in a conviction or deferred adjudication; 3) information relating to a threat against a peace officer or detention officer collected or disseminated under section 411.048; and or that reflects the prosecutor’s mental information that is prepared by a prosecutor 4) impressions or legal reasoning. stigation, or Prosecution of Crime a. Interference with Detection, Inve In order to establish the applicability of sec tions 552.108(a)(1) and 552.108(b)(1) to a requested criminal file, a law enforcement agency should info rm the attorney general how and why release of 473 The law enforcement agency must inform the information would interf ere with law enforcement. the attorney general of the status of the case the information conc erns. Information relating to a pending criminal investigation or prosecution is on e example of information that is excepted under 470 Open Records Decision No. 272 at 1–2 (1981). 471 see, e.g. Open Records Decision No. 474 at 4–5 (1987); , Open Records Letter No. 2004-1811 (2004). 472 truing statutory predecessor); Open Records Decision Attorney General Opinion MW-575 at 1–2 (1982) (cons See No. 493 at 2 (1988) (same). 473 See Ex parte Pruitt , 551 S.W.2d 706, 710 (Tex. 1977). 2018 Public Information Act Handbook • Office of the Attorney General 88

105 Exceptions to Disclosure sections 552.108(a)(1) an d 552.108(b)(1) because release of such information would presumptively 474 interfere with the detection, investigation, or prosecution of crime. exception considered the reting the law enforcement All of the formal open records decisions interp predecessor statute rather than section 552.108 as it now reads. In these decisions, the attorney cies to withhold information in a closed criminal case only general permitted law enforcement agen 475 if its release would “unduly interfere” with law enforc ement or crime prevention. The following is a discussion of the “undue interference” standard under the predecessor statute. The reader may e to the attorney general s of information to provid find this information useful in determining the type when seeking to withho ld information under the current provision’s “interference” standard. i. Information Relating to the Detection, Investigation, or Prosecution of Crime To withhold information under former section body had to demonstrate 552.108, a governmental 476 how release of the information would “unduly interfere” with law enforcement or prosecution. For example, the names and statemen ts of witnesses could be withheld if the law enforcement agency demonstrated that disclosure might either (1) subject the witnesses to possible intimidation or 477 However, to prevail of future cooperation by the witnesses. harassment or (2) harm the prospects on its claim that section 552.108 excepted the in formation from disclosu re, a law enforcement ry assertion that releas agency had to do more than ing the information would merely make a concluso the release of particular records would unduly unduly interfere with law enforcement. Whether 478 interfere with law enforcement was determined on a case-by-case basis. a Law Enforcement Agency ii. Internal Records of agencies and prosecutors under To withhold internal records an d notations of law enforcement governmental body had to demonstrat e how release of the information former section 552.108, a 479 enforcement and crime prevention. would unduly interfere with law For example, the Department of Public Safety was permitted to withhold a list of stations that issue drivers’ licenses and the 480 corresponding code that designates each station on the drivers’ licenses issued by that station. on its face suggest that its rele Although the information did not ase would unduly interfere with law codes are used by officers to blic Safety explained that the enforcement, the Department of Pu at releasing the list of stations and codes would determine whether a license is forged and argued th 481 reduce the value of the codes for de tecting forged drivers’ licenses. The attorney general previously held that release of routine investigative procedures, techniques that are commonly 474 , 531 S.W.2d 177, 184–85 (Tex. Civ. App.—Houston [14th See Houston Chronicle Publ’g Co. v. City of Houston terests that are present in active cases), , writ ref’d n.r.e. per curiam Dist.] 1975) (court delineates law enforcement in 536 S.W.2d 559 (Tex. 1976). 475 Open Records Decision Nos. 628 at 2 (1994), 313 at 2 (1982), 297 at 2 (1981). See 476 see Ex parte Pruitt Open Records Decision Nos. 616 at 1 (1993), 434 at 2–3 (1986); , 551 S.W.2d 706, 710 (Tex. 1977). 477 Open Records Decision No. 297 at 2 (1981). See 478 Open Records Decision No. 409 at 2 (1984). 479 Open Records Decision No. 508 at 2–4 (1988). See 480 Open Records Decision No. 341 at 2 (1982). 481 Open Records Decision No. 341 at 1–2 (1982). 2018 Public Information Act Handbook • Office of the Attorney General 89

106 Exceptions to Disclosure unduly interfere with law enforcement and known, and routine personnel information would not 482 crime prevention. section 552.108 to the internal sed the applicability of former The Texas Supreme Court has addres 483 records and notations of the comptroller’s office. In A & T Consultants, Inc. v. Sharp , the supreme section 552(b)(7) of the federal on 552.108 has the same scope as court stated that former secti 484 which prevents the disclosure of investigatory records that would Freedom of Information Act, reveal law enforcement methods, techniques, and st rategies, including those the Internal Revenue 485 Service uses to collect federal taxes. Some information, such as the date a taxpayer’s name assignment date and codes in aud its, is excepted from disclosure appeared on a generation list and the al deliberations within the comptroller’s office by former section 552.108 because it reflects the intern 486 ller’s office’s law enforcement efforts. and would interfere with the comptro For audits that have 487 The audit method and releasing some of this information. been concluded, there is little harm in re, during, and after the comptroller undertakes a audit group remain excepted from disclosure befo 488 taxpayer audit under former section 552.108. al records and notations could be withheld under The attorney general also addressed whether intern wing decisions: 552.108 in the follo the statutory predecessor to section guidelines regarding a police department’s Open Records Decision No. 531 (1989) — detailed use of force policy may be withheld, but not t hose portions of the procedures that restate generally known common-l aw rules, constitutional limitations , or Penal Code provisions; the officer’s ability to arrest a suspect and would release of the detailed guidelines would impair an place individuals at an advantage in confrontations with police; Open Records Decision No. 508 (1988) — the da tes on which specific prisoners are to be transferred from a county jail to the Texas Department of Criminal Justice (formerly the Texas Department of Corrections) may be withheld pr ior to the transfer because release of this tes may not be withheld after the prisoner is information could impair security, but these da transferred because the public has a legitimate interest in the information; Open Records Decision No. 506 (1988) — the cellular telephone numbers assigned to county may be withheld; w enforcement duties officials and employees with specific la Open Records Decision No. 413 (1 984) — a sketch showing the secu rity measures that the Texas Department of Criminal Justice (formerly the Te xas Department of Corrections plans to use for lease may make crowd control its next scheduled execution ma y be withheld because its re unreasonably difficult; 482 See Open Records Decision Nos. 216 at 4 (1978), 133 at 3 (1976). 483 A & T Consultants, Inc. v. Sharp , 904 S.W.2d 668 (Tex. 1995). 484 5 U.S.C. § 552(b)(7). 485 , 904 S.W.2d 668, 678 (Tex. 1995). A & T Consultants, Inc. v. Sharp 486 , 904 S.W.2d 668, 679–681 (Tex. 1995). A & T Consultants, Inc. v. Sharp 487 A & T Consultants, Inc. v. Sharp it generation and assignment dates not , 904 S.W.2d 668, 678 (Tex. 1995) (pre-aud excepted under Gov’t Code § 552.108 once audit completed). 488 , 904 S.W.2d 668, 679 (Tex. 1995). A & T Consultants, Inc. v. Sharp 2018 Public Information Act Handbook • Office of the Attorney General 90

107 Exceptions to Disclosure Open Records Decision No. 394 (1983) — except for information regarding juveniles, a jail roster may not be withheld; a jail roster is an internal record that reveals information specifically made public in other forms, such as the names of persons arrested; Open Records Decision No. 369 (1983) — notes recording a pr osecutor’s subjective comments about former jurors may be withheld; releasi ng these comments would tend to reveal future prosecutorial strategy; and Open Records Decision Nos. 211 (1978), 143 (1976) — information that would reveal the identities of undercover agents sensitive assignments may be or where employees travel on withheld. b. Concluded Cases With regard to the second categor y of information, information rela ting to a criminal investigation conviction or deferred adjudication may be withheld or prosecution that ended in a result other than a under sections 552.108(a)(2) and a)(2) and 552.108(b)(2) cannot 552.108(b)(2). Sections 552.108( apply to an open criminal file because the inves tigation or prosecution fo r such a file has not concluded. If a case is still open and pending, either at the investigative or prosecution level, the sections that can apply are sections 552.108(a)(1 ) and 552.108(b)(1), not sections 552.108(a)(2) and 552.108(b)(2). To establish the applicability of sections 55 2.108(a)(2) and 552.108(b)(2), a governmental body a criminal investiga d information relates to must demonstrate that the requeste tion that concluded in a final result other than a convi ction or deferred adjudication. c. Information Relating to a Threat Agai nst a Peace Officer or Detention Officer The third category of information protected under section 552.108(a)(3) consists of information relating to a threat against a peace officer or dete ntion officer that is collected or disseminated under section 411.048 of the Government C ode. Under section 411.048, the De partment of Public Safety’s in an index for the purpose of s is required to create and mainta Bureau of Identification and Record collecting and disseminating information regarding th reats of serious bodily injury or death made 489 against a peace officer. in an informal letter ruling that The attorney general determined cation and Records for potential inclusion in its information provided to the Bureau of Identifi database regarding threats made against a peace officer was exce pted from disclosure under 490 section 552.108(a)(3). d. Prosecutor Information Under the fourth category of information, se d 552.108(b)(3) protect ctions 552.108(a)(4) an in anticipation of or on, prepared by a prosecutor information, including an internal record or notati the prosecutor’s mental in the course of preparing for criminal litigation information that reflects or at the information reflects the en a governmental body asserts th impressions or legal reasoning. Wh 489 Gov’t Code § 411.048(b). 490 Open Records Letter No. 2003-3988 (2003). 2018 Public Information Act Handbook • Office of the Attorney General 91

108 Exceptions to Disclosure prosecutor’s mental impressions or legal reasoning, the governmental body shoul d, in its request for a ruling, explain how the information does so. 3. Limitations on Scop e of Section 552.108 Section 552.108(c) provides that basic information a bout an arrested person, an arrest, or a crime 491 may not be withheld under section 552.108. The kinds of basic info rmation not excepted from disclosure by section 552.108 are th ose that were deemed public in Houston Chronicle Publ’g Co. 492 v. City of Houston cords Decision No. 127 (1976). and catalogued in Open Re Basic information is information that ordinarily appears on the first page of an offe nse report, such as: cial security number, police (a) the name, age, address, race, sex, occupation, alias, so department identification nu of the arrested person; mber, and physical condition (b) the date and time of the arrest; (c) the place of the arrest; the offense charged and the co urt in which it is filed; (d) the details of the arrest; (e) (f) booking information; the notation of any release or transfer; (g) (h) bonding information; (i) the location of the crime; ption of the complainant; the identification and descri (j) the premises involved; (k) (l) the time of occurre nce of the crime; the property involved, if any; (m) the vehicles involved, if any; (n) a description of the weather; (o) (p) a detailed description of the offense; and 491 Gov’t Code § 552.108(c). 492 , 531 S.W.2d 177 (Tex. Civ. App.—Houston [14th Dist.] 1975), Houston Chronicle Publ’g Co. v. City of Houston , 536 S.W.2d 559 (Tex. 1976). writ ref’d n.r.e. per curiam 2018 Public Information Act Handbook • Office of the Attorney General 92

109 Exceptions to Disclosure (q) the names of the arresting and investigating officers.493 Generally, the identity of the co mplainant may not be withheld from disclo sure under section 552.108. However, the identity of the complainant may be withheld in certain instances under other provisions of the law. For example, where the co ctim of a serious sexual mplainant is also the vi offense, the identity of the complainant must be w ithheld from public disclosure pursuant to section 494 rmation is protected by common-law privacy. 552.101 because such info The attorney general has also determined that, where the complainant is al so an informer for purpos es of the informer’s may be withheld under section privilege, the complainant’s identity ction with the 552.101 in conjun 495 common-law informer’s privilege. Although basic information not ex cepted from disclosure by secti on 552.108 often is described by of the informatio its location (“first-page offense report information”), the location n or the label ample, radio dispatch placed on it is not determinative of its status un der section 552.108. For ex logs or radio cards maintained by a police departme nt that contain the type of information deemed 496 public generally may not be withheld. Likewise, basic information appearing in other records of law enforcement agencies, such as bl otters, arrest sheets, and “show-up sheets,” is not excepted from 497 Conversely, a video of a disclosure by section 552.108. booking that conveys information excepted from disclosure is not subject to disclosu is practically impossible re when editing the tape 498 and the public information on the tape is available in written form. Section 552.108 generally does not apply to informa tion made public by statute or to information to 499 For example, even if an accident report which a statute grants certain individuals a right of access. 550 of the Transportation Code relates to a pending criminal completed pursuant to Chapter entity must release the accident investigation, a law enforcement report to a requestor given a 500 statutory right of access to the report under s ection 550.065(c) of th e Transportation Code. formation Relating to Polic e Officers and Complaints 4. Application of Sect ion 552.108 to In Against Police Officers the safety of the general public, law enforcement officers generally Because of their role in protecting 501 General information privacy than other public employees. can expect a lesser degree of personal about a police officer usually is not excepted from required public disclosure by section 552.108. 493 Open Records Decision No. 127 at 3–5 (1976). 494 Open Records Decision Nos. 440 (1986), 393 (1983), 339 (1982). See 495 Open Records Letter No. 2004-8297 (2004). See 496 see City of Lubbock v. Cornyn Open Records Decision No. 394 at 3–4 (1983); , 993 S.W.2d 461 (Tex. App.—Austin 1999, no pet.). 497 Open Records Decision No. 127 at 3–4 (1976). See 498 Open Records Decision No. 364 (1983). 499 Open Records Decision Nos. 613 at 4 (1993), see also Open Records Decision Nos. 161 (1977), 146 at 2 (1976); 451 at 4 (1986). 500 Transp. Code § 550.065(c). 501 p’t of Mental Health & Mental Retardation See Tex. State Employees Union v. Tex. De , 746 S.W.2d 203, 206 (Tex. 1987); Open Records Decision No. 562 at 9 n.2 (1990). 2018 Public Information Act Handbook • Office of the Attorney General 93

110 Exceptions to Disclosure For example, a police officer’s age, law enforc ement background, and previous experience and 502 employment usually are not excepted from disclosure by section 552.108. Similarly, information about complaints against police officers generally may not be withheld under section 552.108. For example, th e names of complainants, the na mes of the officers who are the e to a complaint, and the final disposition of a subjects of complaints, an officer’s written respons 503 complaint generally are not excepted from disclosure by section 552.108. Information about s may be withheld under section 552.108 if the police department complaints against public officer formation will interfere with the detection, investigation, or can demonstrate release of the in section 552.108 is inapplicable prosecution of crime. However, where a complaint against a law 504 criminal investigation or prosecution. enforcement officer does not result in a a. Personnel Files of Police Officers Serving in Civil Service Cities rs serving in cities that have The disclosure of information from the personnel files of police office adopted chapter 143 of the Local G ers’ and police officers’ civil overnment Code (the fire fight 505 service law) is governed by section 143.089 of the Local Government Code. Section 143.089 contemplates two different types of personnel files: (1) a police offi cer’s civil service file that the to maintain pursuant to (2) an internal file section 143.089(a) and civil service director is required 506 its own use pursuant to section 143.089(g). A police that the police department may maintain for ecified items, including commendations, documents officer’s civil service file must contain sp relating to misconduct that resulted in disciplinar y action and periodic evaluations by the officer’s 507 In cases in which a police department investigates a police officer’s misconduct and supervisor. 508 takes disciplinary action against a police officer, it is re quired by section 143.089(a)(2) to place all investigatory records relating to the investig ation and disciplinary action, including background documents such as compla ints, witness statements, and documents of like nature from individuals who were not in a supervisory cap acity, in the police officer’s civ il service file maintained under 509 the police officer’s civil service file are subject to Records maintained in section 143.089(a). 510 of the Government Code. release under chapter 552 Furthermore, pursuant to section 143.089(e), 511 the police officer has a right of access to the r ecords maintained in his civil service file. However, 502 City of Fort Worth v. Cornyn , 86 S.W.3d 320, 326–28 (Tex. App.—Austin 2002, no pet.); Open Records Decision Nos. 562 at 10 (1990), 329 at 1 (1982). 503 Open Records Decision Nos. 350 at 3 (1982), 342 at 2 (1982), 329 at 2 (1982). 504 Morales v. Ellen , 840 S.W.2d 519, 525–26 (Tex. App.—El Paso 1992, writ denied) (construing statutory predecessor). 505 , 47 S.W.3d 556 (Tex. App.— see City of San Antonio v. San Antonio Express-News Local Gov’t Code § 143.089; , 851 S.W.2d 946 (Tex. App.—Austin San Antonio 2000, pet. denied); City of San Antonio v. Tex. Attorney Gen. 1993, writ denied). 506 Local Gov’t Code § 143.089(a), (g). 507 Local Gov’t Code § 143.089(a). 508 For the purpose of section 143.089 of the Local Government Code, the term “disciplinary action” includes removal, suspension, demotion, and uncompensated duty. Local Gov’t Code §§ 143.051–.055. “Disciplinary action” does See not include a written reprimand. Attorney General Opinion JC-0257 at 5 (2000). 509 Abbott v. City of Corpus Christi , 109 S.W.3d 113, 122 (Tex. App.—Austin 2003, no pet.). 510 Local Gov’t Code § 143.089(f); Open Records Decision No. 562 at 6 (1990). See 511 Local Gov’t Code § 143.089(e). 2018 Public Information Act Handbook • Office of the Attorney General 94

111 Exceptions to Disclosure information maintained in a police department’s internal file pursuant to section 143.089(g) is 512 confidential and must not be released. Absent federal authority, a police department must not release to a federal law enforcement agency 513 l under section 143.089(g). information made confidentia A city police department should refer a ile to the civil service director or the director’s request for information in a police officer’s personnel f 514 designee. 5. Other Related Law Enforcement Records a. Criminal History Information Where an individual’s crimin al history information has b een compiled or summarized by a governmental entity, the information takes on a charact er that implicates the individual’s right of 515 privacy in a manner that th e same individual’s records in an uncompiled state do not. Thus, when a requestor asks for all information concerning a ce rtain named individual and that individual is a t agency must suspect, arrestee, or criminal defe ndant in the information at issue, a law enforcemen rnment Code as that individual’s privacy withhold this information under s ection 552.101 of the Gove 516 right has been implicated. limitations on the Federal law also imposes dissemination of criminal history information obtained er (NCIC) and its Texas counterpart, the Texas from the federal National Crime Information Cent 517 In essence, federal law requires each state to observe its own Crime Information Center (TCIC). information it generates, but requires a state to laws regarding the dissemination of criminal history maintain as confidential any inform ation from other states or the federal government that the state 518 obtains by access to the Interstate Identif ication Index, a comp onent of the NCIC. atutes that govern the ode contains the Texas st Chapter 411, subchapter F, of the Government C confidentiality and release of TC IC information obtained from th e Texas Department of Public e agency from disclosing to the Safety. However, subchapter F “ does not prohibit a criminal justic e for which a person is involved public criminal history record inform ation that is related to the offens 519 Moreover, the protection in subchapter F does not extend to in the criminal justice system.” fety pursuant to subchapter C ed by the Department of Public Sa driving record information maintain 512 See Local Gov’t Code § 143.089(g); City of San Antonio v. Tex. Attorney Gen. , 851 S.W.2d 946, 949 (Tex. App.— Austin 1993, writ denied). 513 Open Records Decision No. 650 (1996). 514 Local Gov’t Code § 143.089(g). 515 , 489 U.S. 749, 764 (1989) (when Cf. United States Dep’t of Justice v. Reporters Comm. for Freedom of the Press tinction between public records found privacy interest, court recognized dis considering prong regarding individual’s in courthouse files and local police stations and compiled summary of information and noted individual has significant privacy interest in compilation of one’s criminal history). 516 See United States Dep’t of Justice v. Reporters Comm. for Freedom of the Press Gov’t cf. , 489 U.S. 749, 764 (1989); Code § 411.083. 517 See Open Records Decision No. 655 (1997). 518 28 C.F.R. pt. 20; Open Records Decision No. 565 at 10–12 (1990). See 519 Gov’t Code § 411.081(b). 2018 Public Information Act Handbook • Office of the Attorney General 95

112 Exceptions to Disclosure 520 Any person is entitled to obtain from the Department of chapter 521 of the Transportation Code. garding convictions and deferred ad of Public Safety information re judications and the person’s own 521 criminal history information. b. Juvenile Law Enforcement Records d repealed sections 58.007(c), on 58.008 of the Family Code an The 85th Legislature added Secti 522 58.007(d), 58.007(e), and 58.007(f) of the Family Code. Section 58.008 applies to records created 523 ons 51.14(d) and 58.007(c) of Accordingly, former secti before, on, or after September 1, 2017. analysis of juvenile law enforcement records. the Family Code are no longer applicable to the The relevant language of Family Code section 58.008(b) provides as follows: (b) Except as provided by Subsection (d), law enforcemen t records concerning a child stored by electronic means or otherwise and information concerning a child that are and from which a record could be generated to the public and may not be disclosed shall be: er or microfilm, kept separate from adult records; (1) if maintained on pap same computer system as adult records (2) if maintained electronically in the parate and distinct from controls to accessible only under controls that are se ncerning adults; and access electronic data co not sent to a central state or federal (3) maintained on a local basis only and 524 depository, except as provided by Subs ection C or Subchapters B, D, and E. 525 Section 58.008(b) applies onl y to the records of a child who is alleged to have engaged in 526 delinquent conduct or conduct indi cating a need for supervision. Section 58.008(b) does not apply where the information in question in volves a juvenile as only a complainant, witness, or individual party and not a juvenile as a suspect or offender. Section 58.008(b) applies to entire law enforcement ement entity is generally prohib ited from releasing even basic records; therefore, a law enforc information from an investigation f .008(b) applies. ile when section 58 However, section 58.008 provides: (d) inspected or copied by: Law enforcement records co ncerning a child may be 520 Gov’t Code § 411.082(2)(B). 521 Gov’t Code §§ 411.083(b)(3), .135(a)(2). 522 See Act of May 28, 2017, 85th Leg. R.S., S.B. 1304, §§ 13, 21. 523 Act of May 28, 2017, 85th Leg. R.S., S.B. 1304, § 22. See 524 Fam. Code § 58.008(b). 525 Section 51.02 of the Family Code defines “child” as “a person who is: (A) ten years of age or older and under 17 years of age; or (B) seventeen years of age or older and under 18 years of age who is alleged or found to have engaged in delinquent conduct or conduct indicating a need for supervision as a result of acts committed before becoming 17 years of age.” Fam. Code § 51.02(2). 526 Fam. Code § 51.03(b); Open Records Decision No. 680 at 4 (2003). see 2018 Public Information Act Handbook • Office of the Attorney General 96

113 Exceptions to Disclosure (1) a juvenile justice agency, as defined by Section 58.101; vernment Code; (2) a criminal justice agency as defined by Section 411.082, Go (3) the child; or (4) the child’s parent or guardian. (e) Before a child or a child’s parent or guardian may inspect or copy a record concerning the child under Su bsection (d), the custodian of the record shall redact: (1) any personally identifiab ile suspect, offender, victim, le information about a juven or witness who is not the child; and (2) any information that is excepted from required disclosure under Chapter 552, 527 Government Code, or any other law. hhold a child’s law enforcement Pursuant to section 58.008(d), a governmental body may not wit records from the child’s parent, guardian, or th b). However, pursuant e child under section 58.008( nmental body may raise other exce to section 58.008(e)(2), a gover ptions to disclosure. Also, le information of a juve nile suspect, offender, pursuant to section 58.008(e)(1), personally identifiab witness, or victim who is not the child must be withheld. For purposes of section 58.008(e)(1), a juvenile victim or witness is a person under eighteen years of age. c. Child Abuse and Neglect Records The relevant language of Family Code section 261.201(a) provides: (a) Except as provided by Sect ion 261.203, the following information is confidential, is not subject to public release under Chap ter 552, Government Code, and may be this code and applicable federal or state disclosed only for purposes consistent with an investigating agency: law or under rules adopted by neglect made under this chapter and the (1) a report of alleged or suspected abuse or identity of the person making the report; and (2) except as otherwise provided in this section, the files, reports, records, communications, audiotapes, videotapes, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation. t of and information used or de Section 261.201(a) applies to a repor veloped in an investigation of 528 529 vidual who made the report of and the identity of the indi of a child suspected abuse or neglect 527 Fam. Code § 58.008(d), (e). 528 Fam. Code § 261.001(1), (4). 529 ild” for section 261.201 purposes). Fam. Code § 101.003(a) (defining “ch See 2018 Public Information Act Handbook • Office of the Attorney General 97

114 Exceptions to Disclosure 530 Section 261.201(h), however, stat abuse or neglect. es section 261.201 does not apply to regulated under chapter 42 of the Human in a home or facility investigations of abuse or neglect Resources Code, such as a childcare facility. Moreover, sections 261.201( k) and 261.201(l) provide: stigating agency, other than the [Department (k) Notwithstanding Subsection (a), an inve of Family and Protective Services] or th e Texas Juvenile Justice Department, on request, shall provide to the parent, managing conservator, or other legal reported abuse or ne glect, or to the child representative of a child who is the subject of if the child is at least 18 years of age, information concerning the reported abuse or under this section. neglect that would otherwise be confidential The investigating is subsection if the parent, managing agency shall withhold information under th the information is conservator, or other legal representative of the child requesting alleged to have committed the abuse or neglect. ervator, or other legal representative of a Before a child or a parent, managing cons (l) ecord or file concerning the child under Subsection (k), child may inspect or copy a r or file must redact: the custodian of the record (1) any personally identifiable information tness under 18 years about a victim or wi of age unless that victim or witness is: (A) the child who is the subject of the report; or (B) another child of the parent, managing conservator, or other legal representative requesting the information; (2) any information that is excepted from required disclosure under Chapter 552, Government Code, or other law; and (3) the identity of the p erson who made the report. Pursuant to section 261.201(k), a governmental body may not withhold child abuse or neglect tative of the child records from the parent, managing co nservator, or other legal represen , if the parent, committing the abuse or neglect, gal representative is not accused of managing conservator, or other le to section 261.201(l)(2), a or from the child if the child is at least eighteen years of age. Pursuant governmental body may raise other exceptions to disclo sure for the child abuse or neglect records. Further, pursuant to sections 261.201(l)(1) and 26 1.201(l)(3), personally iden tifiable information of years of age who is not the child a victim or witness under eighteen or another child of the parent, e and the identity of the managing conservator, or other legal representativ reporting party must be withheld. 530 struing statutory predecessors). . 440 (1986) (con Open Records Decision No 2018 Public Information Act Handbook • Office of the Attorney General 98

115 Exceptions to Disclosure d. Sex Offender Registration Information Under article 62.005 of the Code of tion contained in either an adult Criminal Procedure, all informa e Department of Public or juvenile sex offender registration form and subs equently entered into th Safety database is public information and must be released upon written request, except for the k, or cellular telephone license number, home, wor registrant’s social security number, driver’s ) or required by the Department of Public number, information described by article 62.051(c)(7 531 Safety under article 62.051(c)(9), and any inform ation that would reveal the victim’s identity. Local law enforcement authorities are required unde r article 62.053 of th e Code of Criminal Procedure to provide school offici als with “any information the author ity determines is necessary to the person’s social security number, driver’s protect the public” regarding sex offenders except number, and any information that would identify license number, home, work, or cellular telephone 532 the victim of the offense. public is authorized to receive from local law Neither a school district official nor the general enforcement authorities sex offender registrati to individuals whose on information pertaining 533 reportable convictions or adjudication occurred prior to September 1, 1970. e. Records of 9-1-1 Calls Originating telephone numbers and addresses of 9-1- 1 callers furnished on a call-by-call basis by a y communication district established under telephone service supplier to a 9-1-1 emergenc subchapter B, C, or D of chapter 772 of the Health and Safety Code are confidential under 534 sections 772.118, 772.218, and 772.318 of the Health and Safety Code, respectively. Chapter 772 does not except from disclosure any other informati on contained on a computer aided dispatch report 535 Subchapter E, which applie ith populations s to counties w that was obtained during a 9-1-1 call. over 2 million, does not contain a similar confidenti ality provision. Other exceptions to disclosure in the Public Information Ac t may apply to information no t otherwise confidential under 536 section 772.118, section 772.218 , or section 772.318 of the Health and Safety Code. f. Certain Information Related to Terrorism and Homeland Security 418.182 of the Governme nt Code, part of the Texas Homeland Security Sections 418.176 through Act, make confidential certain info rmation related to terrorism or re lated criminal activity. The fact that information may relate to a governmental body’s security concerns does not make the per se Homeland Security Act. As with any exception to confidential under the Texas information onfidentiality provisi disclosure, a govern mental body asserting one of the c ons of the Texas 531 Crim. Proc. Code art. 62.005(b); Open Records Decision No. 645 at 3 (1996) (construing statutory predecessor). 532 leased if restrictions under Crim. Proc. Code art. 62.054 Crim. Proc. Code art. 62.053(e), (f) (information must be re are met). 533 See Crim. Proc. Code art. 62.002(a). 534 Open Records Decision No. 649 at 2–3 (1996). 535 Open Records Decision No. 649 at 3 (1996). 536 Open Records Decision No. 649 at 4 (1996). 2018 Public Information Act Handbook • Office of the Attorney General 99

116 Exceptions to Disclosure Homeland Security Act must expl ain how the responsive records fall within the scope of the claimed 537 provision. In Texas Department of P ublic Safety v. Abbott , the Texas Department of Public Safety challenged the conclusion of the attorney genera recorded by security cameras in l and the trial court that videos 538 der section 418.182 of the Government Code. a Texas Capitol hallway were not confidential un In reversing this conclusion, the Third Court of Appeals found the Texas Department of Public late to the specificatio Safety demonstrated the videos re rity system used to ns of the capitol secu protect public property from an act of terrorism or related criminal activity because the legislature’s use of “relates to” is a plain legislative choice to broadly protect information regarding security systems designed to protect public property. Thus, the court concluded the recorded images necessarily relate to the specifications of the security system that recorded them. 539 governed by federal law. d maritime security is Release of certain information about aviation an The attorney general has determined in several informal letter rulings that the decision to withhold the federal Transportation Security Administration or release such information rests with the head of n should be referred to the TSA (the “TSA”) or the Coast Guard an d that requests for such informatio 540 or Coast Guard for their decision con cerning disclosure of the information. vernment Code provides a voucher or other expense reimbursement form, Section 660.2035 of the Go voucher or other expense reimbursement form, and any receipt or other document supporting that tial for 18 months following that is submitted under section 660.027 is confiden the date of travel if the voucher or other expense reimbursement form is or reimbursement of a submitted for payment travel expense incurred by a peace officer while assigned to provide protection for an elected official 541 At the expiration of th e 18 months, the voucher or ed official’s family. or a member of the elect other expense reimbursement form and any suppor ting documents become subject to disclosure under the Public Information Act and are not except ed from public disclosure or confidential under 542 However, subsection 660.2035(b) specifically lists seven exceptions in the the Act or other law. Act that can apply to withhold information within a voucher, expense reimbursement form, and any 543 supporting document. In an informal letter ruling, the attorney general considered the Texas nfidentiality period, Safety’s claims that, after the expiratio n of the 18-month co Department of Public travel vouchers and supporting sections 552.101 and 552.152 of the Government Code protected reau for reimbursement of travel documentation submitted by ag ents of the Executive Protection Bu 544 Because section 552 .101 is not one of the enumerat ed exceptions in subsection expenses. apply to travel vouchers and 660.2035(b), the attorney general de termined section 552.101 did not 545 supporting documentation. However, as section 552.152 is an exception listed in subsection 660.2035(b), the attorney general considered the claim to withhold the information under section 537 Gov’t Code § 552.301(e)(1)(A) (governmental body must explain how claimed exception to disclosure applies). See 538 , 310 S.W.3d 670 (Tex. App.—Austin 2010, no pet.). Tex. Dep’t of Pub. Safety v. Abbott 539 49 U.S.C. § 114(r); 49 C.F.R. pt. 1520. 540 Open Records Letter Nos. 2013-09028 (2013), 2009-11201 (2009), 2005-07525 (2005). 541 Gov’t Code § 660.2035(a). 542 Gov’t Code § 660.2035(b). 543 Gov’t Code § 660.2035(b). 544 Open Records Letter No. 2014-02048 (2014). 545 Open Records Letter No. 2014-02048 at 3 (2014). 2018 Public Information Act Handbook • Office of the Attorney General 100

117 Exceptions to Disclosure travel vouchers and supporting claim had merit, concluded the 552.152, and finding the 546, 547 documentation were excepted from disclosure under section 552.152. g. Body Worn Camera Program Subchapter N of chapter 1701 of th e Occupations Code pertains to body worn cameras. Subchapter public information requests for body worn camera N revises the procedures associated with ors need not use “magic word s” when making requests to recordings. Generally, request seek access to body worn camera recordings, governmental bodies; however, when requestors requestors must provide: (1) the date and approximate time of the recording; (2) the specific location wher e the recording occurred; and 548 (3) the name of one or more persons known to be a subject of the recording. preclude a requestor from requesting the same Failure to provide this information does not 549 When properly requested, chapter 1701 information again. provides for the confidentiality of stances. A body worn camera recording is body worn camera recordings under certain circum confidential if it was not policy adopted by the relevant law required to be made under a law or 550 enforcement agency. from a body-worn camera that documents the Section 1701.660 makes confidential any recording use of deadly force or that is related to an admini strative or criminal investigation of an officer until 551 d all administrative investigations completed. all criminal matters are finally adjudicated an However, a law enforcement agency may choose to release such information if doing so furthers a 552 Before a law enforcement agen cy releases a body-worn camera law enforcement interest. misdemeanor, the agency recording that was made in a private place or in co nnection with a fine-only must receive authorization from the cording, or if that person is person who is the subject of the re 553 deceased, from the person’s authorized representative. A governmental body may continue to tion to disclosure or la w for a body-worn camera raise section 552.108 or any other applicable excep 554 recording. ten and fifteen business day deadlin Section 1701.662 also extends the es associated with requesting 555 a ruling from the attorney gene ral to twenty and twenty-five business days, respectively. l body that receives a “volumin y-worn camera ous request” for bod Additionally, a governmenta 546 Open Records Letter No. 2014-02048 at 3-4 (2014). 547 Open Records Letter No. 2014-02048 at 3-4 (2014). 548 Occ. Code § 1701.661(a). 549 Occ. Code § 1701.661(b). 550 Occ. Code § 1701.661(h). 551 Occ. Code § 1701.660(a). 552 Occ. Code § 1701.660(b). 553 Occ. Code § 1701.661(f). 554 Occ. Code § 1701.661(e). 555 Occ. Code § 1701.662. 2018 Public Information Act Handbook • Office of the Attorney General 101

118 Exceptions to Disclosure recordings is considered to have complied with the request if it provides the information no later 556 than twenty-one business days after it receives the request. h. Video Recordings of Arrests for Intoxication Article 2.1396 of the Code of Criminal Procedure, redesignated by the 85th Legislature, provides as follows: A person stopped or arrested on suspicion of an offense under S ection 49.04, 49.045, 49.07, or 49.08, Penal Code, is entitled to receive from a law enforcement agency employing the peace officer who made the stop or arrest a copy of any video made by or at the direction of the officer that contains footage of: (1) the stop; (2) the arrest; (3) the conduct of the person stopped during any interaction with the officer, including during the administration of a field sobriety test; or 557 (4) a procedure in which a specimen of th e person’s breath or blood is taken. 558 recording of conduct that occurs Article 2.1396 applies only to a on or after September 1, 2015. A requestor’s right of acc ticle 2.1396 will gene rally prevail over ess to a video recording subject to ar 559 the Act’s general exceptions to disclosure. I. Section 552.1081: Confidentiality of Certain Information Regarding Execution of Convict Section 552.1081 of th e Government Code provides as follows: Information is excepted from the requirements of Section 552.021 if it contains identifying Criminal Procedure, including that of: information under Article 43.14, Code of (1) any person who participates in an execut ion procedure, including a person who uses, supplies, or administers a substance during the execution; and (2) any person or entity that manufactures , transports, tests, procures, compounds, prescribes, dispenses, or provides a substance or supplies used in an execution. There are no cases or formal opi nions interpretin g this section. 556 Occ. Code § 1701.663. 557 Crim. Proc. Code art. 2.1396. 558 5 Tex. Gen. Laws 3804, 3805 redesignated by Act of May Act of May 30, 2015, 84th Leg., R.S., H.B. 3791, § 2, 201 30, 2017, 85th Leg., R.S., H.B. 245, § 4. 559 Open Records Decision Nos. 613 at 4 (1993), 451 (1986). See 2018 Public Information Act Handbook • Office of the Attorney General 102

119 Exceptions to Disclosure J. Section 552.1085: Confidentialit y of Sensitive Crime Scene Image (a) In this section: (1) “Deceased person’s next of kin” means: (A) the surviving spouse of the deceased person; rviving spouse of the deceased, (B) if there is no su an adult child of the deceased person; or spouse or adult child of th e deceased, a parent of the (C) if there is no surviving deceased person. (2) “Defendant” means a person being pros ecuted for the death of the deceased to that death and appealing d of an offense in relation person or a person convicte that conviction. (3) “Expressive work” means: ent, dramatic, literary, or musical work (A) a fictional or nonfictional entertainm composition, audiovisu that is a play, book, article, musical al work, radio or television program, work of art, or work of political, educational, or newsworthy value; (B) a work the primary func tion of which is the deliv ery of news, information, public interest or concern; or current events, or other matters of (C) an advertisement or commercial an nouncement of a work described by Paragraph (A) or (B). a county, municipality, school district, (4) “Local governmental entity” means other political subdivision of this state. charter school, junior college district, or n of higher education” means: (5) “Public or private institutio as defined by Section 61.003, Education (A) an institution of higher education, Code; or (B) a private or independent institution of higher education, as defined by Section 61.003, Education Code. otograph or video recording taken at a (6) “Sensitive crime scene image” means a ph ed criminal case, that depicts a deceased crime scene, contained in or part of a clos milar mutilation or that berment, decapitation, or si person in a state of dismem person’s genitalia. depicts the deceased 2018 Public Information Act Handbook • Office of the Attorney General 103

120 Exceptions to Disclosure (7) “State agency” means a de partment, commission, board, office, or other agency at is created by the constitution or a that is a part of state government and th statute of this state. The term includes an institution of higher education as defined by Section 61 .003, Education Code. (b) For purposes of this sectio n, an Internet website, the primary function of which is not the delivery of news, information, current even public interest or ts, or other matters of concern, is not an expressive work. y of a governmental body is confidential and (c) A sensitive crime scene image in the custod n 552.021 and a governmental body may not excepted from the requirements of Sectio permit a person to view or copy the image except as provided by this section. This ess of the date that the image section applies to any sensitive crime scene image regardl was taken or recorded. (d) Notwithstanding Subsection (c) and subject to Subsection (e), the following persons tutes a sensitive crime scene image from a may view or copy information that consti governmental body: (1) the deceased person’s next of kin; the deceased person’s next of kin; (2) a person authorized in writing by (3) a defendant or the defendant’s attorney; the governmental body an in (4) a person who establishes to terest in a sensitive crime scene image that is based on, connected with , or in support of the creation, in any medium, of an expressive work; (5) a person performing bona fide rese arch sponsored by a public or private isor of the research or a n with approval of a superv institution of higher educatio supervising faculty member; (6) a state agency; (7) an agency of the federal government; or (8) a local governmental entity. (e) This section does not prohibit a governme ntal body from asserting an exception to disclosure of a sensitive crime scene image to a person identified in Subsection (d) on the grounds that the image is excepted fr om the requirements of Section 552.021 under another provision of this chapter or another law. (f) Not later than the 10th business day aft al body receives a er the date a government request for a sensitive crime scene image from a person described by Subsection (d)(4) the deceased person’s next of kin of the or (5), the governmental body shall notify request in writing. The notice of kin’s last known address. must be sent to the next 2018 Public Information Act Handbook • Office of the Attorney General 104

121 Exceptions to Disclosure (g) A governmental body that receives a request for information that constitutes a sensitive crime scene image shall allow a person descri bed in Subsection (d) to view or copy the after the date the image not later than the 10th business day governmental body receives the request unless the governmental body files a request for an attorney general decision under Subchapter G regar ding whether an exception to public disclosure applies to the information. rmal opinions interpreting section 552.1085 . However, in an informal letter There are no cases or fo ruling, the attorney general determined a government al body failed to establish the applicability of section 552.1085 to the information at issue because the governmental body stated the information 560 pertained to unresolved criminal cases that were ongoing. In a separate letter ruling, the attorney general concluded the next of kin of the deceased person depicted in the ph otographs at issue would have a right to view or copy the photographs pursuant to section 552.1085(d)(1), because the ion 552.1085(c)(1) to withhold the photogr governmental body may not use sect aphs from the next 561 of kin and raised no other excep tions to withhold the photographs. K. Section 552.109: Confidentiality of Certain Private Communications of an Elected Office Holder cepts from required public disclosure: Section 552.109 of the Government Code ex ffice holder relating to matters Private correspondenc e or communications of an elected o the disclosure of which would constitu te an invasion of privacy . . . . the common-law privacy ection 552.109 is the same as The test to be applied to information under s standard under section 552.101 and its statutory predecessor and decisions under section 552.109 562 The common-law privacy standard is licable under section 552.101. rely on the same tests app laid out in Indus. Found. v. Tex. Indus. Accident Bd. , and protects information if it (1) contains highly the publication of which would be highly objectionably to a intimate or embarrassing facts, 563 legitimate concern to the public. Both prongs of this test must reasonable person, and (2) is not of 564 565 It Section 552.109 only prot ects the privacy interests of elected office holders. be established. 566 rests of their correspondents. Certain records of communications does not protect the privacy inte between citizens and members of th rnor may not be subject to the e legislature or the lieutenant gove 567 Act. at certain information general determined th In the following open records decisions, the attorney was not excepted from required public disclosure under the statutory predecessor to section 552.109: 560 Open Records Letter No. 2014-04454 at 13 (2014). 561 Open Records Letter No. 2013-21155 at 4 (2013). 562 Open Records Decision Nos. 506 at 3 (1988), 241 (1980), 212 (1978). 563 , 430 U.S. 931 (1977). cert. denied , 540 S.W.2d 668, 685 (Tex. 1976), Indus. Found. v. Tex. Indus. Accident Bd. 564 Indus. Found. v. Tex. Indus. Accident Bd. , 430 U.S. 931 (1977). cert. denied , 540 S.W.2d 668, 681–685 (Tex. 1976), 565 Open Records Decision No. 473 at 3 (1987). 566 Open Records Decision No. 332 at 2 (1982). See 567 See Gov’t Code §§ 306.003, .004; Open Records Decision No. 648 (1996); Open Records Letter Nos. 2012-14193 (2012), 2012-06238 (2012). 2018 Public Information Act Handbook • Office of the Attorney General 105

122 Exceptions to Disclosure Open Records Decision No. 506 (1988) — cellula r telephone numbers of county officials where d which service was intended to service and for telephone bills, an county paid for installation of be used by officials in conducting official public business, because public has a legitimate interest in the performance of official public duties; nce evaluations of city council appointees, Open Records Decision No. 473 (1987) — performa because this section was intended to protect the privacy only of elected office holders; although city council members prepared the evaluations, the evaluations did not implicate their privacy interests; Open Records Decision No. 332 (1982) — letters concerning a teacher’s performance written tees, because nothing in by parents to school trus invasion of privacy of the letters constituted an the trustees; Open Records Decision No. 241 (1980) — corres pondence of the governor regarding potential was not protected by a constitutional right of nominees for public office, because the material privacy; furthermore, the material was not protect ed by common-law right of privacy because it s a legitimate public mate facts and there wa did not contain any highly embarrassing or inti 568 interest in the appointment process; and ce calls made by legislators 974) — itemized list of long distan Open Records Decision No. 40 (1 because such a list is not a “communication.” and charged to their contingent expense accounts, L. Section 552.110: Confidentiality of Trade Secrets and Confidentiality of Certain Commercial or Financial Information nt Code provides as follows: Section 552.110 of the Governme (a) A trade secret obtained from a person and privileged or confidential by statute or judicial decision is excepted fr om [required public disclosure]. h it is demonstrated based on specific Commercial or financial information for whic (b) use substantial competitive harm to the factual evidence that disclosure would ca ined is excepted from [required public person from whom the information was obta disclosure]. confidential commercial Section 552.110 refers to two type s of information: (1 ) trade secrets and (2) The Act requires a governmental body to make a or financial information obtained from a person. information may be subject to writing a person whose proprietary good faith attempt to notify in 569 A person section 552.110 within ten business days afte r receiving the request for the information. 570 hing the applicability of section 552.110. A copy of the so notified bears the burden of establis to a person whose information may be subject form the Act requires the governmental body to send 568 Open Records Decision No. 212 at 4 (1978). See 569 Gov’t Code § 552.305. 570 Gov’t Code § 552.305. 2018 Public Information Act Handbook • Office of the Attorney General 106

123 Exceptions to Disclosure to section 552.110, as well as s ection 552.101, section 55 2.113, or section 552.1 31, can be found in . Part Nine of this Handbook 1. Trade Secrets de secret” from the Restatement The Texas Supreme Court has adopted the definition of the term “tra 571 of Torts, section 757 (1939). The determination of whether any particular information is a trade 572 secret is a determination of fact. a trade secret is not possible, Noting that an exact definition of the Restatement lists six factors to be considered in determinin g whether particular information constitutes a trade secret: formation is known outside of (1) the extent to which the in [the company’s] business; d in [the company’s oyees and others involve (2) the extent to which it is known by empl business]; (3) the extent of measures taken by [the comp any] to guard the secrecy of the information; [its] competitors; (4) the value of the information to [t he company] and to in developing the information; money expended by [the company] (5) the amount of effort or [and] which the information could be properly acquired or duplicated (6) the ease or difficulty with 573 by others. A party asserting the trade secret prong of sectio n 552.110 is not required to satisfy all six factors 574 In addition, other circumstances may be der to prevail on its claim. listed in the Restatement in or 575 Open Records Decision rmation qualifies as a trade secret. relevant in determining whether info No. 552 (1990) noted that the attorney general is unable to resolve disputes of fact regarding the rely upon the facts alleged or upon those facts that status of information as “trade secrets” and must are discernible from the documents submitted for inspection. For th is reason, the attorney general will accept a claim for exception as a trade secret when a prima facie case is made that the at rebuts that assertion information in questio n constitutes a trade secret a nd no argument is made th 576 2), there was a factual dispute between In Open Records Decision No. 609 (199 as a matter of law. the governmental body and the proponent of the trade secret protection as to certain elements of a resolve such factual disputes, the matter was case. Because the attorney general cannot prima facie referred back to the governme ntal body for fact-finding. 571 , 358 U.S. 898 (1958). Hyde Corp. v. Huffines , 314 S.W.2d 763, 776 (Tex.), cert. denied 572 Open Records Decision No. 552 at 2 (1990); see Envoy Med. Sys. v. State , 108 S.W.3d 333, 337 (Tex. App.—Austin 2003, no pet.). 573 § 757 cmt. b (1939); , 39 S.W.3d 337, 344–45 ORTS see Ctr. for Econ. Justice v. Am. Ins. Ass’n T R ESTATEMENT OF (Tex. App.—Austin 2001, no pet.); , 994 S.W.2d 766, 783 (Tex. App.—Austin Birnbaum v. Alliance of Am. Insurers 1999, pet. denied). 574 See In re Bass , 113 S.W.3d 735, 740 (Tex. 2003). 575 , 113 S.W.3d 735, 740 (Tex. 2003). See In re Bass 576 Open Records Decision Nos. 669 at 2 (2000), 552 at 5 (1990). 2018 Public Information Act Handbook • Office of the Attorney General 107

124 Exceptions to Disclosure 2. Commercial or Financial Informatio n Privileged or Conf idential by Law Section 552.110 now expressly incl udes the standard for excepting from disclosure commercial and 577 financial information. e “based on specific factual evidence An interested person must demonstrat rson from whom the information tantial competitive harm to the pe that disclosure would cause subs e test for applying the co rrelative exemption in the was obtained.” This standard resembles part of th federal Freedom of Inform ation Act, 5 U.S.C. § 5 52(b)(4), as set out in Nat’l Parks & Conservation 578 Ass’n v. Morton . National Parks That part of the mmercial or financial test states that co losure of the information is likely to cause substan tial harm to the information is confidential if disc 579 whom the informat competitive position of the person from ion was obtained. The current n branch of section 552.110 does commercial and financial informatio not incorporate the part of the is likely to impair the gove National Parks test for information that rnment’s ability to obtain necessary information in the future. Like the federal standard, section 552.110(b) requires the business enterprise whose informatio factual or evidentiary showing, n is at issue to make a specific bstantial competitive injury not conclusory or generalized allegations, that su would likely result from 580 disclosure. M. Section 552.111: Agency Memoranda Section 552.111 of the Government Code ex cepts from required public disclosure: An interagency or intraagency memorandum or letter that would not be available by law with the agency . . . . to a party in litigation To be protected under section 552.111, information must consist of interagency or intraagency information protected by section 5 52.111 is most commonly generated communications. Although by agency personnel, information created for an ag ency by outside consultants acting on behalf of 581 An agency’s communications the agency in an official capac ity may be within section 552.111. with other agencies and third parties, however, ar e not protected unless the agency demonstrates that 582 For example, correspondence the parties to the communications share a privity of interest. 583 ee is not excepted under section 552.111. between a licensing agency and a licens 577 The former section 552.110 excepted “commercial and financial information . . . privileged or confidential by statute or judicial decision.” It did not set out the standard for excepting commercial or financial information. In 1996, the (b)(4) of the federal Freedom of Information Act as set attorney general followed the test for applying section 552 Nat’l Parks & Conservation Ass’n v. Morton See Open Records Decision , 498 F.2d 765 (D.C. Cir. 1974). forth in No. 639 at 2–3 (1996). However, the Third Court of Appeals held that was not a judicial decision National Parks within the meaning of the former section 552.110. Birnbaum v. Alliance of Am. Insurers , 994 S.W.2d 766 (Tex. App.—Austin 1999, pet. denied). Consequently, after the Birnbaum decision, the attorney general no longer used the National Parks standard for excepting commercial or financial information under former section 552.110. 578 Nat’l Parks & Conservation Ass’n v. Morton , 498 F.2d 765 (D.C. Cir. 1974). 579 See Nat’l Parks & Conservation Ass’n v. Morton , 498 F.2d 765, 770 (D.C. Cir. 1974). 580 See Open Records Decision No. 661 at 6 (1999). 581 Open Records Decision No. 462 (1987) (construi ng statutory predecessor). 582 nce from Federal Bureau of Investigation officer to Open Records Decision No. 561 at 9 (1990) (corresponde See city was not protected by statutory predecessor to Gov’t Code § 552.111, where no privity of interest or common deliberative process existed betw een federal agency and city). 583 1987) (construing stat Open Records Decision No. 474 at 5 ( utory predecessor). 2018 Public Information Act Handbook • Office of the Attorney General 108

125 Exceptions to Disclosure Also, to be protected under sec tion 552.111, an interagency or in traagency communi cation must be 584 privileged from discovery in civi l litigation involving the agency. The attorney general has interpreted section 552.111 to in corporate both the deliberative process privilege and the work 585 product privilege. 1. Deliberative Pr ocess Privilege Section 552.111 has been read to incorporate the deliberative pro cess privilege into the Public 586 The deliberative process Information Act for intraagency and interagency communications. from disclosure e Public Information Act, protects privilege, as incorporated into th intraagency and ce, opinion or recommendations on policymaking interagency communications consisting of advi 587 matters of the governme ntal body at issue. The purpose of withholding advice, opinion or recommendations under section 5 52.111 is “to encourage frank an d open discussion within the 588 agency in connection with its decision-maki ng processes” pertaining to policy matters. “An agency’s policymaking functions do not encompass routine intern al administrative and personnel matters; disclosure of informatio n relating to such matters will not inhibit free discussion among 589 An agency’s policymaking agency personnel as to policy issues.” functions do include, however, administrative and personnel matters of broad sc ope that affect the governmental body’s policy 590 ssue in Open Records De mission. cision No. 615 (1993) For example, because the information at i concerned the evaluation of a university professor’ atutory predecessor to s job performance, the st section 552.111 did not except this sclosure. On the other hand, information from required public di the information at issue in Open Records D s a report addressing ecision No. 631 (1995) wa African-American and Hispan ic faculty members in allegations of systematic discrimination against the retention, tenure, and promotio n process at a university. Rather than pertaining solely to the versity, the scope of the report wa s much broader and involved the internal administration of the uni section 552.111 excepted from required public university’s educational mission. Accordingly, 591 disclosure the portions of the report that mmendations or opinions. constituted advice, reco Even when an internal memora ndum relates to a governmental body’s policy functions, the deliberative process privilege excepts from di sclosure only the advice, recommendations, and 584 Open Records Decision Nos. 677 at 4 (2002), 615 at 2–3 (1993). 585 , 22 see City of Garland v. Dallas Morning News Open Records Decision Nos. 647 at 5–6 (1996), 615 at 5 (1993); S.W.3d 351, 360 (Tex. 2000). 586 City of Garland v. Dallas Morning News Lett v. Klein Indep. Sch. Dist., 917 , 22 S.W.3d 351, 360 (Tex. 2000); S.W.2d 455, 456 (Tex. App.—Houston [14th Dist.] 1996, writ denied); Tex. Dep’t of Pub. Safety v. Gilbreath , 842 S.W.2d 408, 412–13 (Tex. App.—Austin 1992, no writ); Open Records Decision No. 615 at 5 (1993). 587 City of Garland v. Dallas Morning News , 22 S.W.3d 351, 361, 364 (Tex. 2000); Arlington Indep. Sch. Dist. v. Tex. Attorney Gen. , 37 S.W.3d 152, 158 (Tex. App.—Austin 2001, no pet.); Open Records Decision No. 615 at 5 (1993). 588 , 630 S.W.2d 391, 394 (Tex. App.—San Antonio 1982, writ ref’d n.r.e.); Austin v. City of San Antonio see also City of Garland v. Dallas Morning News , 22 S.W.3d 351, 361 (Tex. 2000); Lett v. Klein Indep. Sch. Dist., 917 S.W.2d Tex. Dep’t of Pub. Safety v. Gilbreath 455, 456, 457 (Tex. App.—Houston [14th Dist.] 1996, writ denied); , 842 S.W.2d 408, 412 (Tex. App.—Austin 1992, no writ). 589 see , 22 S.W.3d 364 (Tex. City of Garland v. Dallas Morning News Open Records Decision No. 615 at 5 (1993); 917 S.W.2d 455, 456 (Tex. App.—Houston [14th Dist.] 1996, writ denied). 2000); Lett v. Klein Indep. Sch. Dist., 590 City of Garland v. Dallas Morning News , 969 S.W.2d 548, 557 (Tex. Open Records Decision No. 631 at 3 (1995); , 22 S.W.3d 351 (Tex. 2000). aff’d App.—Dallas 1998), 591 Open Records Decision No. 631 at 3 (1995). 2018 Public Information Act Handbook • Office of the Attorney General 109

126 Exceptions to Disclosure memorandum. The deliberative proce opinions found in that ss privilege does not except from disclosure purely factual inform ation that is severable from the opinion portions of the 592 memorandum. confine the application of the statutory predecessor Before June 29, 1993, the attorney general did not mmunications relating to agencies’ policymaking functions. Given to section 552.111 solely to co section 552.111, a government al body that receives the change in the interpretation of the scope of a request for information should exer cise caution in relyin g on attorney general decisions regarding the applicability of this exception written before June 29, 1993. For example, in Open Records Decision No. 559 (1990), the attorney general held that the predecessor statute to section 552.111 will be released in final document that has been or also protects drafts of a form to the public and cause they necessarily re present advice, opinion, any comments or other notations on the drafts be document. However, the and recommendations of the drafter as to the form and content of the final rationale and scope of this open records decision have been modified im plicitly to apply only to those records involving an agency’s policy matters. 2. Work Product Privilege The attorney general has also concluded that s ection 552.111 incorporates the privilege for work 593 of Civil Procedure 192.5. product found in Texas Rule Rule 192.5 define s work product as: loped in anticipation of litigation or for material prepared or mental impressions deve (1) tatives, including the party’s attorneys, trial by or for a party or a party’s represen consultants, sureties, indemnitors, insurers, employees, or agents; or (2) litigation or for trial between a party and a communication made in anticipation of the party’s representatives or among a part y’s representatives, including the party’s 594 reties, indemnitors, insurers, employees, or agents. attorneys, consultants, su A governmental body raising the work product priv ilege under section 552.111 bears the burden of 595 One element e elements of the privilege. providing the relevant facts in each case to demonstrate th the information must have been ma de or developed for trial or in of the work product test is that 596 anticipation of litigation. In order for the attorney general to conclude that information was created for trial or in anticipation of litigation, the governmental body must demonstrate that at the time the information was created or acquired: a) a reasonable person would have concluded from the totality of the circumstances . . . that d ensue; and b) the party resisting discovery there was a substantial chance that litigation woul 592 See Open Records Decision No. 615 at 4–5 (1993); City of Garland v. Dallas Morning News , 22 S.W.3d 351 (Tex. 2000). 593 Open Records Decision No. 677 at 4–8 (2002). 594 T EX . R. C IV . P. 192.5(a). 595 See Open Records Decision No. 677 at 6 (2002). 596 IV C R. P. 192.5(a); Open Records Decision No. 677 at 6 (2002) . T EX . 2018 Public Information Act Handbook • Office of the Attorney General 110

127 Exceptions to Disclosure believed in good faith that there was a substantial chance that litigation would ensue and [created 597 rpose of preparing for such litigation. or obtained the information] for the pu A “substantial chance” of litigation does not mean a statistical probability, but rather “that litigation 598 is more than merely an abstract possibility or unwarranted fear.” on must have been prepared or test, material or a mental impressi Also, as part of the work product 599 Similarly, in the case of a communication, developed by or for a party or a party’s representatives. 600 the communication must have been betwee n a party and the party’s representatives. Thus, a governmental body claiming the work product privilege must iden tify the parties or potential parties the information, and any individual with whom to the litigation, the person or entity that prepared 601 the information was shared. If a requestor seeks a governmental body’s entire litig ation file, the governmental body may assert the file is excepted from disclosu re in its entirety because such a request implicates the core work 602 product aspect of the attorney work product privilege. In such an instance, if the governmental body demonstrates the file was created in anticipati on of litigation or for trial, the attorney general 603 will presume the entire fi le is within the scope of the privilege. Relating to Regulation of Financial N. Section 552.112: Certain Information Institutions or Securities Section 552.112 of the Governme nt Code provides as follows: (a) Information is excepted from the requirements of Section 552.021 if it is information contained in or relating to examination, operating, or condition reports prepared by for the regulation or supervision of financial institutions or for an agency responsible or securities, or both. (b) rities Act (Article g assigned by The Secu In this section, “securities” has the meanin 581-1 et seq., Vernon’s Texas Civil Statutes). of Section 552.021 if it is information (c) Information is excepted from the requirements other entity to the Texas Le submitted by an individual or gislative Council, or to any state agency or department overseen by the Finance Commission of Texas and the 597 Nat’l Tank Co. v. Brotherton In re Monsanto Co ., 998 S.W.2d 917, 923–24 (Tex. , 851 S.W.2d 193, 207 (Tex. 1993); App.—Waco 1999, orig. proceeding). 598 Nat’l Tank Co. v. Brotherton , 851 S.W.2d 193, 204, 207 (Tex. 1993); see Open Records Decision No. 677 at 7 (2002). 599 T . IV P. 192.5(a)(1); Open Records Decision No. 677 at 7 (2002). C EX . R. 600 IV EX . R. C T . P. 192.5(a)(2); Open Records Decision No. 677 at 7–8 (2002). 601 Open Records Decision No. 677 at 8 (2002). 602 Open Records Decision No. 677 at 5–6 (2002). 603 Nat’l Union Fire Ins. Co. v. Valdez See Open Records Decision No. 647 at 5 (1996) (citing , 863 S.W.2d 458, 461 ey’s thought processes); see also ’s litigation file neces (Tex. 1993)) (organization of attorney sarily reflects attorn what to include in [the file] necessarily , 873 S.W.2d 379, 380 (Tex. 1994) (“the decision as to Curry v. Walker reveals the attorney’s thought processes concerning the prosecution or defense of the case”). 2018 Public Information Act Handbook • Office of the Attorney General 111

128 Exceptions to Disclosure information has been or will be sent to the Texas Legisl ative Council, for the purpose of performing a statistical or demographic analysis of information subject to Section 323.020. However, this subsect ion does not except from th e requirements of Section tend to identify an individual or other 552.021 information that does not identify or public disclosure under Section 323.020(e). entity and that is subject to required reports prepared or obtained by This section protects specific ex amination, operating, or condition agencies in regulating or supervisin g financial institutions or securitie s or information that indirectly 604 reveals the contents of such reports. Such reports typically disclose the financial status and dealings of the institutions that protect general information about file them. Section 552.112 does not the overall condition of an industry if the information does not identify particular institutions under 605 investigation or supervision. An entity must be a “financial institution” for its examination, operating, or condition reports to be excepted by sec tion 552.112; it is not suff icient that the entity 606 es financial institutions. that regulates or supervis is regulated by an agency The attorney general has stated that the term “financial institution” means “any banking corporation or trust company, building and loan association, governmental agenc y, insurance company, or related corporation, 607 ngaged primarily in lending or investing funds.” partnership, foundation, or the other institutions e 608 held that insurance Notably, a Texas appeals court decision, Birnbaum v. Allian ce of Am. Insurers , section 552.112, overruling the determination in companies are not “financial institutions” under re “financial institutions” under 977) that insurance companies we Open Records Decision No. 158 (1 the statutory predecessor to the section. Secti on 552.112 is a permissive exception that a 609 ly protects the interests Thus, section 552.112 on governmental body may wa ive at its discretion. the interests of third parties. of a governmental body, rather than The following open records decisions have considered whether information is excepted from required public disclosure under section 552.112: Open Records Decision No. 483 (1987) — Texas Savings an d Loan Department report containing a general discussion of the condition of the industry that does not identify particular from disclosure; institutions under investiga tion or supervisi on is not excepted rial collected by the Consumer Credit Open Records Decision No. 392 (1983) — mate n of loan transactions was not protected by the statutory Commissioner in an investigatio en the requested information did not consist of a detailed predecessor to section 552.112 wh of the company being in vestigated but rather description of the complete financial status of the company’s particular transact consisted of the records ions with persons filing consumer complaints; by bank board of directors Open Records Decision No. 261 (1980) — form acknowledgment that Department of Banking examination report ha pted from disclosure d been received is exce where acknowledgment would reveal the conclusions reached by the department; 604 See generally Open Records Decision Nos. 261 (1980), 29 (1974). 605 Open Records Decision No. 483 at 9 (1987). 606 Open Records Decision No. 158 at 4–5 (1977). 607 see also Open Records Decision No. 158 at 5 (1977); Open Records Decision No. 392 at 3 (1983). 608 , 994 S.W.2d 766 (Tex. App.—Austin 1999, pet. denied). Birnbaum v. Alliance of Am. Insurers 609 Birnbaum v. Alliance of Am. Insurers , 994 S.W.2d 766 (Tex. App.—Austin 1999, pet. denied). 2018 Public Information Act Handbook • Office of the Attorney General 112

129 Exceptions to Disclosure Open Records Decision No. 194 (1978) — pawn shop license application that includes information about applicant’s net assets to a ssess compliance with Texas Pawnshop Act is not excepted from disclosure because such informati on does not qualify as an examination, operating, or condition report; Open Records Decision No. 187 (1978) — prope rty development plans submitted by a credit disclosure by the statutory union to the Credit Un ion Department were excepted from on included detailed presentation of credit predecessor to section 552.112 because submissi particular proposed investment; and union’s conditions and operations and the Open Records Decision No. 130 (1 976) — investigative file of the enforcement division of the excepted from disclosure. State Securities Board is O. Section 552.113: Confidentiality of Geological or Geophysical Information Section 552.113 makes confidential electric logs unde r Subchapter M, Chapter 91, of the Natural ta, including maps concerning Resources Code, and geological or geophysical information or da ceeding before an agency. This wells, except when filed in connect ion with an application or pro exception also applies to geological, geophysical, and geochemical information, including electric Office, and includes provisions fo logs, filed with the General Land confidentiality r the expiration of of “confidential material,” as that term is defined, an d the use of such material in administrative proceedings before the General Land Office. Section 552.113 of the Governme nt Code provides as follows: (a) Information is excepted from the requi rements of Section 552.021 if it is: (1) an electric log confidential under S ubchapter M, Chapter 91, Natural Resources Code; ps concerning wells, or data, including ma (2) geological or geophysical information except information filed in connection with an application or proceeding before an agency; or (3) confidential under Subsections (c) through (f). (b) Information that is shown to or examined by an employee of the General Land Office, but not retained in the land office, is not co nsidered to be filed wi th the land office. (c) In this section: ll logs, geological, geophysical, “Confidential material” includes all we (1) interpretations of uding maps and other geochemical, and other similar data, incl the General Land Office: the material filed in 2018 Public Information Act Handbook • Office of the Attorney General 113

130 Exceptions to Disclosure application or proceeding before the in connection with any administrative (A) land commissioner, the school land bo ard, any board for lease, or the commissioner’s or board’s staff; or any law, rule, lease, or agreement. in compliance with the requirements of (B) it has in Chapter 91, Natural Resources “Electric logs” has the same meaning as (2) Code. (3) “Administrative applications” and “a dministrative proceedings” include n royalty payments, review unitization, review of shut-i applications for pooling or of leases or other agreements to determ ine their validity, review of any plan of or an application to pay operations, review of the oblig ation to drill offset wells, compensatory royalty. Confidential material, except electric logs, Land Office on or filed in the General (d) to the public under ation and is available after September 1, 1985, is public inform after the later of: Section 552.021 on and of the confidential material; or (1) five years from the filing date (2) one year from the expiration, termination, or forfeiture of the lease in connection al material was filed. with which the confidenti Electric logs filed in the General Land Offi (e) ce on or after September 1, 1985, are either public information or confidential materi al to the same extent and for the same periods provided for the same logs by Chapter 91, Natural Resources Code. A person may request that an electric log that has been filed in the General Land Office be made confidential by filing of the written request for with the land office a copy Texas for the same log. confidentiality made to the Railroad Commission of The following are public information: (f) (1) electric logs filed in the General La nd Office before September 1, 1985; and (2) confidential material, except electric logs , filed in the General Land Office before on (d) governs the disclosure of that September 1, 1985, provided, that Subsecti is a valid and subsisting confidential material filed in connection with a lease that lease on September 1, 1995. (g) Confidential material may be disclosed at any time if th e person filing the material, or the person’s suc e in connection with which the cessor in interest in the leas writing to its release. confidential material was filed, consents in A party consenting tial material may restrict the manner of disclosure and to the disclosure of confiden the person or persons to whom the disclosure may be made. 2018 Public Information Act Handbook • Office of the Attorney General 114

131 Exceptions to Disclosure (h) Notwithstanding the confidential nature of th e material described in this section, the Land Office in the enforcement, by material may be used by the General administrative proceeding or litigation, of the laws governing the sale and lease of public lands and minerals, the regulations of the land offi ce, the school land board, or of any board for lease, or the terms of any lease, pooling or unitization agreement, or any other agreement or grant. (i) r that confidential material introduced An administrative hearings officer may orde in an administrative proceeding remain confidential until the proceeding is finally concluded, or for the period provided in Subsection (d), whichever is later. Confidential material examined by an administrative hearings officer during the (j) course of an administrative proceedin g for the purpose of determining its admissibility as evidence shall not be considered to have been filed in the General Land Office to the extent that the confidential material is not intr oduced into evidence at the proceeding. This section does not prevent (k) a person from asserting that any confidential material is exempt from disclosure as a trade secret or commercial information under der any other basis permitted by law. Section 552.110 or un (1994) interpreted the predecessor to the current version of Open Records Decision No. 627 section 552.113 as follows: disclosure all “geological or geophysical [S]ection 552.113 excepts from required public information or data including maps concerning wells,” unless the information is filed in interpret “geological or connection with an applica tion or proceeding before an agency . . . . We geophysical information” as section 552.113(2) uses the term to refer only to geological and geophysical information regarding the explora tion or development of natural resources. [Footnote omitted] Furthermore, we reaffirm our prior determination that section 552.113 See protects only geological and geophysical info rmation that is comm ercially valuable. Open Records Decision Nos. 504 (1988) at 2; 479 (1987) at 2. Thus, we conclude that section 552.113(2) protects from public di sclosure only (i) geological and geophysical lopment of natural res information regarding the exploration or deve ources that is (ii) 610 commercially valuable. The decision explained that the phrase “informati on regarding the exploration or development of e presence or absence of natural resources in natural resources” signifies “information indicating th g the extent of a particular deposit or information indicatin a particular location, as well as 611 accumulation.” Open Records Decision No . 627 (1994) overruled Open Record s Decision No. 504 (1988) to the 504 (1988), the attorney extent the two decisions are inconsistent. In Op en Records Decision No. general had interpreted the statutory predecessor to e Government Code to section 552.113 of th require the application of a test similar to the test used at that time to determine whether the statutory 610 Open Records Decision No. 627 at 3–4 (1994) (footnote omitted). 611 Open Records Decision No. 627 at 4 n.4 (1994). 2018 Public Information Act Handbook • Office of the Attorney General 115

132 Exceptions to Disclosure predecessor to section 552.110 prot ected commercial information (including trade secrets) from required public disclosure. Under that test, comm ercial information was “c onfidential” for purposes s likely to have either of the following effects: of the exemption if disclosure of the information wa ssary information in the future; or (2) to cause (1) to impair the government’s ability to obtain nece substantial harm to the competitive position of the person from whom the information was 612 obtained. 04 (1988), the attorney general articulated Following the issuance of Open Records Decision No. 5 Code protects trade secret section 552.110 of the Government new tests for determining whether 613 formation from required public disclosure. information and commercial and financial in Thus, Open Records Decision No. 627 (1994) re-examined the attorney general’s reliance upon the former e the applicability of section 552.11 tests for section 552.110 to determin 3. That decision noted that 614 section 552.113, as the legislature originally en acted it, differed from its federal counterpart in that the statutory predecessor to section 552.113 excepted tion filed in connection from its scope “informa 615 oceeding before any agency.” with an application or pr Thus, the state exception to required public 616 information than did the federal exemption. disclosure exempted a more limited class of limit the scope of the Consequently, the decision determined that grafting th e balancing test used to 617 federal exemption to the plain langua Since the current 3 was unnecessary. ge of section 552.11 fect on September 1, 1995, there have been no published court version of section 552.113 took ef rds Decision No. 627 (1994) e validity of Open Reco decisions interpreting the amended statute or th in light of the amendm ents to the statute. ially valuable” in a subsequent has interpreted the term “commerc The attorney general, however, decision. In Open Records Deci sion No. 669 (2000), the attorney general applied section 552.113 to digital mapping information supp a third party. The specific lied to the General Land Office by 618 d party allowed to be di sclosed to the public. information at issue was information that the thir The attorney general held that the information was not protected under section 552.113 because the 619 Therefore, in order information was publicly available an d thus was not commercially valuable. . 627 (1994) and section en Records Decision No to be commercially valuable for purposes of Op 620 552.113, information must not be publicly available. When a governmental body believes requested information of a third party may be excepted under this exception, the governme ntal body must notify the th ird party in accordance with third party is found in Part ernmental body must send to the section 552.305. The notice the gov Handbook . Nine of this 612 Open Records Decision No. 504 at 4 (1988). 613 Open Records Decision Nos. 592 at 2–8 (1991), 552 at 2–5 (1990). See 614 5 U.S.C. § 552(b)(9). 615 Open Records Decision No. 627 at 2–3 (1994). 616 Open Records Decision No. 627 at 2–3 (1994). 617 Open Records Decision No. 627 at 2–3 (1994). 618 Open Records Decision No. 669 at 6 (2000). 619 Open Records Decision No. 627 at 2–3 (1994). 620 Open Records Decision No. 627 at 2–3 (1994). 2018 Public Information Act Handbook • Office of the Attorney General 116

133 Exceptions to Disclosure Confidentiality of Student Records P. Sections 552.026 and 552.114: s two provisions relating to stude The Public Information Act include nt records, sections 552.026 Government Code. and 552.114 of the 1. Family Educational Righ ts and Privacy Act of 1974 Information Act the federal Family Educational Section 552.026 incorporates into the Texas Public 622 621 Rights and Privacy Act of 1974, also known as “FERPA” or the “Buckley Amendment.” l institutions or agencies that student records held by educationa FERPA governs the availability of s administered by the federal govern receive federal funds under program ment. It prohibits, in most circumstances, the release of personally identifiabl e information contained in a student’s education 623 records without a parent’s written consent. It also gives parents a right to inspect the education 624 stitution of post- If a student has reached age 18 or is attending an in records of their children. secondary education, the rights established by FERPA attach to the student rather than to the 625 student’s parents. “Education records” for purposes of FERPA are records that contain are maintained by an educational institution or information directly related to a student and that 626 agency. Information must be withheld from required pub lic disclosure under FERPA only to the extent 627 “reasonable and necessary to avoid pers onally identifying a particular student.” Personally identifying information is defined as including, following information: but not limited to, the (a) The student’s name; (b) The name of the student’s parent or other family members; (c) The address of the student or student’s family; (d) A personal identifier, such as the student’s social security number, student number, or biometric record; ’s date of birth, place of birth, and mother’s (e) Other indirect identifiers, such as the student maiden name; linkable to a specific student or in combination, is linked or Other information that, alone (f) that would allow a reasonable person in the school community, who does not have ces, to identify the student with reasonable personal knowledge of the relevant circumstan certainty; or 621 20 U.S.C. § 1232g. 622 See Open Records Decision No. 72 (1975) (compliance with federal law was required before enactment of statutory predecessor to Gov’t Code § 552.026). 623 20 U.S.C. § 1232g(b)(1). 624 20 U.S.C. § 1232g(a)(1). 625 20 U.S.C. § 1232g(d). 626 20 U.S.C. § 1232g(a)(4)(A). 627 Open Records Decision Nos. 332 (1982), 206 (1978). 2018 Public Information Act Handbook • Office of the Attorney General 117

134 Exceptions to Disclosure (g) Information requested by a person who the educ ational agency or institution reasonably on record relates.628 believes knows the identity of the student to whom the educati An educational institution or agency may, however, release “directory information” to the public if 629 the educational institution or agency complies with certain procedures. Directory information includes, but is not limited to, th e following information: “the student’s name; address; telephone jor field of study; grade level; ograph; date and place of birth; ma listing; electronic mail address; phot enrollment status ( , undergraduate or graduate, full-time or part-time); dates of attendance; e.g. participation in officially recognized activities and s ports; weight and height of members of athletic received; and the most recent teams; degrees, honors, and awards educational agency or institution 630 attended.” The attorney general has dete rmined that marital status and expected date of graduation 631 also constitute directory information. University police department records concerning students previously were held to be education 632 records for the purposes of FERPA. However, FERPA was amende d, effective July 23, 1992, to include “records maintain ed by a law enforcement provide that the term “education records” does not were created by that law enforcement unit for the unit of the educational agency or institution that 633 purpose of law enforcement.” records created by a campus police On the basis of this provision, department are not excepted from required public 2.026 of the Government disclosure by section 55 634 Code. FERPA applies only to records at educational institutions or agencies receiving federal funds and odies that are not educational does not govern access to records in the custody of governmental b 635 on” is “any public or private agency An “educational agency or instituti institutions or agencies. 636 or institution” that receives federal funds under an applicable program. Thus, an agency or agency or institution under qualify as an educational institution need not instruct students in order to FERPA. If education records are transferred by a school district or state institution of higher education to a state administrative agency concerne d with education, federal regulations provide that 637 the education records in the administrativ e agency’s possession are subject to FERPA. lic Information Act and FERPA, the If there is a conflict betw een the provisions of the state Pub 638 the Family Policy However, the attorney general ha s been informed by federal statute prevails. 628 34 C.F.R. § 99.3. 629 20 U.S.C. § 1232g(a)(5)(B). See 630 34 C.F.R. § 99.3. 631 Open Records Decision No. 96 (1975); see also Open Records Decision Nos. 244 (1980) (student rosters public), 242 (1980) (student insurance claims paid to parking permit information public ), 193 (1978) (report of accident identifiable students not public). 632 See Open Records Decision Nos. 342 at 2–3 (1982), 205 at 2 (1978). 633 20 U.S.C. § 1232g(a)(4)(B)(ii). 634 Open Records Decision No. 612 at 2 (1992) (campus police department records were not excepted by statutory predecessor to Gov’t Code § 552.101, incorporating FERPA, or statutory predecessor to Gov’t Code § 552.114). 635 Open Records Decision No. 390 at 3 (1983) (City of Fort Worth is not “educational agency” within FERPA). See 636 20 U.S.C. § 1232g(a)(3). 637 20 U.S.C. § 1232g(b)(1)(E), (b)(4)(B); 34 C.F.R. §§ 99.31, .33, .35. 638 Open Records Decision No. 431 (1985). 2018 Public Information Act Handbook • Office of the Attorney General 118

135 Exceptions to Disclosure Compliance Office of the United Stat es Department of Education that parents’ rights to information rights to assert the attorney- about their children under FERPA do not prevail over school districts’ 639 client and work product privileges. As a general rule, however, ex ceptions to disclosure under the by a student or parent Public Information Act do not apply to a request for the student’s own 640 education records pursuant to FERPA. that an educational agency or (1995), the attorney general stated In Open Records Decision No. 634 formation Act should, be institution that seeks a ruling under the Public In fore submitting “education records” to the attorney general, either obtain parental consent to the disclosure of personally identifiable nondirectory information in the records or edit the records to make sure that they contain no personally identifiable nondirectory informati on. Subsequent corresp ondence from the United ducation advised that educational ag encies and institutions may submit States Department of E personally identifiable information subject to FE RPA to the attorney general for purposes of ned therein must be w obtaining rulings as to whether information contai ithheld under FERPA or 641 partment of Education Family Policy In 2006, however, the United States De state law. Compliance Office informed the attorney genera l that FERPA does not permit state and local educational authorities to disclose consent, unredacted, to the attorney gene ral, without parental personally identifiable information contained in e r the purpose of our review in ducation records fo 642 Consequently, state and local the open records ruling process under the Public Information Act. education records from a member of the public educational authorities that receive a request for under the Public Information Act must not submit education records to the attorney general in 643 unredacted form, that is, in a fo rm in which “persona lly identifiable information” is disclosed. Because the attorney general is prohibited from reviewing these education records to determine whether appropriate redactions under FERPA have be en made, the attorney general will not address d as part of a request for decision. Such the applicability of FERPA to any records submitte determinations under FERPA must be made by the educational authority in possession of the 644 Questions about FERPA should be directed to the following agency: education records. Family Policy Co mpliance Office U.S. Department of Education 400 Maryland Ave., S.W. Washington, D.C. 20202-5920 1-800-USA-LEARN (1-800-872-5327) 639 Letter from LeRoy S. Rooker, Director, Family Policy Compliance Office, United States Dep’t of Educ., to Keith B. Kyle (July 1999) (on file with the Open Records Division, Office of the Attorney General). 640 Open Records Decision No. 431 at 3 (1985). 641 Compliance Office, United States Dep’t of Educ., to See Letter from LeRoy S. Rooker, Director, Family Policy David Anderson, Chief Counsel, Tex. Educ. Agency (April 29, 1998) (on file with the Open Records Division, Office of the Attorney General). 642 . This letter is available on the attorney general’s website at: https://www.texasattorneygeneral.gov/files/og/20060725usdoe.pdf 643 See 34 C.F.R. § 99.3 (defining “personally identifiable information”). 644 In the future, if an educational authority does obtain pa rental consent to submit unredacted education records and the educational authority seeks a ruling from the attorney general on the proper redaction of those education records in compliance with FERPA, we will rule accordingly. 2018 Public Information Act Handbook • Office of the Attorney General 119

136 Exceptions to Disclosure 2. Section 552.114: Confiden tiality of Student Records (a) In this section, “student record” means: (1) information that constitutes education records as that term is defined by the Family Educational Rights and Priv acy Act of 1974 (2 0 U.S.C. Section 1232g(a)(4)); or an educational institution, an applicant for admission to (2) information in a record of including a transfer applicant. of Section 552.021 if (b) Information is confidential and excepted from the requirements it is information in a student record at an educational institutio n funded wholly or es not prohibit the disclosure or provision partly by state revenue. This subsection do record if the disclosure or provision is of information included in an education n 1232g or other federal law. authorized by 20 U.S.C. Sectio (c) A record covered by Subs vailable on the request of: ection (b) shall be made a itution personnel; (1) educational inst parent, legal guardian, or spouse; or (2) the student involved or the student’s vestigation required by Subchapter D, (3) a person conducting a child abuse in Chapter 261, Family Code. (d) Except as provided by Subsection (e), an educational institution may redact information covered under Subsection (b) fr om information disclosed under Section 552.021 without requesting a decision from the attorney general. ion described by Subsection (b) on to an educational institut (e) If an applicant for admissi or a parent or legal guardian of a mino ucational institution r applicant to an ed described by Subsection (b) requests informat ion in the record of the applicant, the sclose any information that: educational institution shall di (1) is related to the applicant’s application for admission; and (2) was provided to the educational institution by the applicant. “Student record” means both information that constitutes an education record under FERPA and information in the record of an applicant for admission to an e ducational institution, including a 645 transfer applicant. Section 552.114(b) deems information in a student record confidential and of an education record authorized by FERPA or states subsection (b) does not prohibit the release 646 other federal law. udent records for certain zes a right of access to st Section 552.114(c) recogni 645 Gov’t Code § 552.114(a). 646 Gov’t Code § 552.114(b). 2018 Public Information Act Handbook • Office of the Attorney General 120

137 Exceptions to Disclosure 647 Subsection (d) permits an educatio nal institution to redact information enumerated individuals. 648 in a student record without reques ting an attorney general decision. Subsection (e) gives an nt or legal guardian of a minor applicant, a right of access to applicant for admission, or the pare information that is related to ation and was provided to the the applicant’s admission applic 649 educational institution by the applicant. Q. Section 552.115: Confidentiality of Birth and Death Records Section 552.115 of the Governme nt Code provides as follows: (a) A birth or death record maintained by the vital statistics unit of the Texas Department of State Health Services or a local registration official is excepted from [required public disclosure], except that: (1) a birth record is public in formation and available to th e public on and after the ecord filed with the bureau 75th anniversary of the date of birth as shown on the r of vital statistics or local registration official; (2) a death record is public information and lic on and after the available to the pub shown on the record 25th anniversary of the date of death as filed with the vital cial, except that if the decedent is statistics unit or local registration offi unidentified, the death record is public in formation and availabl e to the public on and after the first anniversar y of the date of death; (3) a general birth index or a general deat h index established or maintained by the tion official is public information and vital statistics unit or a local registra a birth record or death e extent the index relates to available to the public to th record that is public information and availa ble to the public under Subdivision (1) or (2); (4) a summary birth index or a summary deat h index prepared or maintained by the vital statistics unit or a local registra tion official is public information and available to the public; and (5) a birth or death record is utive officer of a home-rule available to the chief exec municipality or the officer’s designee if: a property owner or other person to whom (A) the record is used only to identify ce when enforcing a state statute or the municipality is required to give noti an ordinance; iligence in the manner described by (B) the municipality has exercised due d Code, to identify the person; and Section 54.035(e), Local Government 647 Gov’t Code § 552.114(c). 648 Gov’t Code § 552.114(d). 649 Gov’t Code § 552.114(e). 2018 Public Information Act Handbook • Office of the Attorney General 121

138 Exceptions to Disclosure identiality agreement that requires that: (C) the officer or designee signs a conf (i) the information not be disclosed ou tside the office of the officer or designee, or within th e office for a purpose ot her than the purpose described by Paragraph (A); (ii) the information be labeled as confidential; (iii) the information be kept securely; and information or the notes taken from (iv) the number of copies made of the e confidential nature of the the information that implicate th information be controlled, with a ll copies or notes that are not destroyed or returned remaining confidential and subject to the confidentiality agreement. Notwithstanding Subsection (a), a general (b) birth index or a summary birth index is not public information and is no t available to the public if: (1) the fact of an adoption or paternity determination can be revealed by the index; or ic identifying information re (2) the index contains specif lating to the parents of a an adoption placement. child who is the subject of (c) eement entered into by the ply to the microfilming agr Subsection (a)(1) does not ap corporation organized under the laws of Genealogical Society of Utah, a nonprofit the State of Utah, and the Archives and In formation Services Division of the Texas State Library and Archives Commission. (d) g the terms of the agreemen For the purposes of fulfillin t in Subsection (c), the Genealogical Society of Utah shall have a ccess to birth records on and after the 50th anniversary of the date of birth as shown on the record filed with the bureau of vital statistics or local registration official, but such birth records shall not be made e 75th anniversary of the date of birth as shown on the available to the public until th record. records of a local regist ration official as well Section 552.115 specifically applies to birth and death 650 as to those of the Texas Depart ment of State Health Services. This section does not apply to birth 651 Until the time limits set out above or death records maintained by other governmental bodies. ed from the Vital Statis tics Unit (the “Unit”) of have passed, a birth or death record may be obtain ly in accordance with ch the Texas Department of State Health Services on apter 192 of the Health 652 While birth records over seventy-five years old and death records over twenty- and Safety Code. r the Public Information Ac t, a local registrar of five years old are not excepted from disclosure unde 650 Gov’t Code § 552.115(a). 651 Open Records Decision No. 338 (1982). See 652 See generally Open Records Decision No. 596 (1991) (regarding availability of adoption records). 2018 Public Information Act Handbook • Office of the Attorney General 122

139 Exceptions to Disclosure 653 ty Code and rules promulgated thereunder to is required by title 3 of the Health and Safe the Unit 654 records and to provide copies of them for a certain fee. These deny physical access to these l provisions in the Act regarding inspection and specific provisions prevail over the more genera 655 copying of public records. Section 552.115 specifically makes public a summar y birth index and summary death index and also relates to birth or death makes public a general birth index or general death in dex to the extent that it 656 records that would be public information under the section. However, a general or summary birth index is not public information if it reveals the fact of an adopti on or paternity determination or contains identifying information relating to the pare nts of a child who is the subject of an adoption 657 placement. Although the Act contains no language that defines the categories of information that nt of State Health Se rvices has promulgated comprise each type of index, the Texas Departme 658 administrative rules that define each type of index. In pertinent part, the current rule, which took provides as follows: effect August 11, 2013, (b) Birth indexes. ed or established by the Vi tal Statistics Unit or a (1) General birth indexes maintain by event year, in alphabetical order by local registration official shall be prepared rant, followed by any given names e date of the or initials, th surname of the regist number, the name of the ce, the state or local file event, the county of occurren ther, and sex of the registrant. father, the maiden name of the mo (2) A general birth index is public informat ion and available to the public to the that is public on extent the index relates to a birth record or after the 75th anniversary of the date of birth as show n on the record unles s the fact of an adoption or paternity determination can be revealed or broken or if the index contains specific identifying information relating to the parents of the child who is the subject of an adoption placemen t. The Vital Statistics Unit and local local file numbers registration officials shall expunge or de lete any state or because such file included in any general birth index made a vailable to the public numbers may be used to discover inform ation concerning specific adoptions, of the parents of children who are the paternity determinations, or the identity subjects of adoption placements. 653 See Health & Safety Code § 191.022(c), (f). 654 Attorney General Opinion MW-163 (1980). Attorney General Opinion DM-146 at 2 (1992); See see also 655 Attorney General Opinion DM-146 at 5 (1992). 656 Gov’t Code § 552.115(a). 657 Gov’t Code § 552.115(b). 658 Absent specific authority, a governmental body may not generally promulgate a rule that makes information confidential so as to except the information from required pub lic disclosure pursuant to section 552.101 of the Act. see also Gov’t Code § 552.101; Open Records Decision Nos. 484 (1987), 392 (1983), 216 (1978). In the instant See Texas Department of State Health s found the predecessor agency to the case, however, the attorney general ha Services has been granted specific aut hority by the legislature to promulgate administrative rules that dictate the public availability of information contai See ned in and derived from vital records. Open Records Decision No. 596 (1991). 2018 Public Information Act Handbook • Office of the Attorney General 123

140 Exceptions to Disclosure lished by the Vital Statistics Unit or A summary birth index maintained or estab (3) red by event year, in alphabetical order a local registration official shall be prepa by surname of the registrant, followed by any given names or initials, the date of d sex of the registrant. A summary birth the event, the county of occurrence, an not available to the public for searching index or any listings of birth records are paternity determination can be revealed or inspection if the fact of adoption or from specific identifying information. (c) Death indexes. (1) A general death index maintained or esta blished by the Vital St atistics Unit or a local registration official shall be prepared by event year, in alphabetical order by ls; the date of the given names or initia surname of the registrant, followed by any event; the county of occurrence; the registr ant’s social security number, sex, and marital status; the name of the registrant’s spouse, if applicable; and the state or local file number. ble to the public to the (2) A general death index is public information and availa that is public on or after the 25th extent the index relates to a death record ath as shown on the record. anniversary of the date of de blished by the Vital Statistics Unit or (3) A summary death index maintained or esta a local registration official shall be prepa red by event year, in alphabetical order by surname of the registrant, followed by any given names or initials, the date of 659 the event, the county of occur rence, and sex of the registrant. Thus, the term “summary birth index” as used in se ction 552.115 refers to a li st in alphabetical order by surname of the child, and its contents are limited to the child’s name, date of birth, county of birth, and sex. Additionally, the term “g eneral birth index” refers to a list containing only those categories ndex,” with the additional categories of the file of information that comprise a “summary birth i The term “summary death index” as used in section 552.115 refers number and the parents’ names. contents are limited to the to a list in alphabetical order by surname of the deceased, and its deceased’s name or initials, date of death, county of death, and sex. Furthermore, the term “general a “summary death index,” formation that comprise death index” refers to the same categories of in rital status, name of the deceased’s with the additional categories of ma spouse, if applicable, and file number. be made available in certain a birth or death record may Section 552.115 also provides that lity to aid in the identification officer of a home rule municipa circumstances to the chief executive 660 of a property owner. 659 25 T.A.C. § 181.23(b)–(c). 660 Gov’t Code § 552.115(a). 2018 Public Information Act Handbook • Office of the Attorney General 124

141 Exceptions to Disclosure R. Section 552.116: Audit Working Papers Section 552.116 provides as follows: a state agency, (a) An audit working paper of an audit of the state auditor or the auditor of an institution of higher education as defined by Section 61.003, Education Code, a spital district, or a joint board operating county, a municipality, a school district, a ho under Section 22.074, Transpor y audit relating to the tation Code, including an criminal history background check of a public school employee, is excepted from the requirements of Section 552.021 . If information in an au dit working paper is also rd, that other record is not excepted from the maintained in another reco requirements of Section 552 .021 by this section. (b) In this section: orized or required by a statute of this state or the (1) “Audit” means an audit auth nce of a municipality, an order of the United States, the charter or an ordina adopted by or other action of the commissioners court of a county, the bylaws district, a resolution or other action of a board of governing board of a hospital ct, including an audit by th trustees of a school distri e district relating to the lic school employee, or a resolution or criminal history background check of a pub other action of a joint board described by Subsection (a) and includes an investigation. cumentary or otherwise, (2) “Audit working paper” in cludes all information, do prepared or maintained in conducting an audit or preparing an audit report, including: (A) intra-agency and interagency communications; and (B) drafts of the audit report or portions of those drafts. “Audit working paper” is defined as including all information prepared or maintained in conducting an audit or preparing an audit report including intra-agency or interagency communications and 661 drafts of audit reports. ection 552.116 must demonstrate the A governmental body that invokes s audit working papers are from an audit authori zed or required by an authority mentioned in section 552.116(b)(1) and must iden tify that authority. To the extent that information in an audit working paper is also maintained in another record, such other record is not excepted by section record may be withheld from public 552.116, although such other disclosure under the Act’s other 662 ons interpreting the current version of There are no cases or formal opini exceptions. section 552.116. 661 Gov’t Code § 552.116(b). 662 Gov’t Code § 552.116(a). 2018 Public Information Act Handbook • Office of the Attorney General 125

142 Exceptions to Disclosure S. Section 552.117: Confidentialit y of Certain Addresses, Telephone Numbers, Social Security Numbers, and Personal Family Information The 85th Legislature passed thr ee different bills, Senate Bills 1576 and 42 and House Bill 1278, amending section 552.117 of the Government Code. Section 552.117 excepts from required public disclosure: (a) dress, home telephone number, emergency [I]nformation that relates to the home ad contact information, or social security numb er of the following person or that reveals whether the person has family members: (1) a current or former official or empl oyee of a governmental body, except as otherwise provided by Section 552.024; (2) a peace officer as defined by Article 2. 12, Code of Criminal Procedure, or a ion 51.212, Education Code, regardless security officer commissioned under Sect of whether the officer complies with S 175, as applicable; ection 552.024 or 552.1 xas Department of Criminal Justice or (3) a current or former employee of the Te division of the department or any of the predecessor in function of the current or former employee complies department, regardless of whether the with Section 552.1175; , Code of Criminal Procedure, or other (4) a peace officer as defined by Article 2.12 ent officer, a commission ed deputy game warden, law, a reserve law enforcem or a corrections officer in a municipal, coun ty, or state penal institution in this her the deceased , regardless of whet state who was killed in the line of duty n 552.024 or 552.1175; complied with Sectio (5) a commissioned security officer as de fined by Section 1702.002, Occupations fficer complies with Section 552.024 or Code, regardless of whether the o 552.1175, as applicable; (6) an officer or employee of a communit y supervision and corr ections department orms a duty described by Section established under Chapter 76 who perf 76.004(b), regardless of whether the offi cer or employee complies with Section 552.024 or 552.1175; (7) a current or former employe ey general who is or was e of the office of the attorn ve law enforcement, duties of which invol assigned to a division of that office the regardless of whether the current or former employee complies with Section 552.024 or 552.1175; xas Juvenile Justice Department or of (8) a current or former employee of the Te department, regardless of whether the the predecessors in function of the with Section 552. current or former employee complies 024 or 552.1175; 2018 Public Information Act Handbook • Office of the Attorney General 126

143 Exceptions to Disclosure (9) a current or former juvenile probation or supervision officer certified by the the predecessors in function of the Texas Juvenile Justice Department, or department, under Title 12, Human Resou rces Code, regardless of whether the current or former officer complies with Section 552. 024 or 552.1175; oyee of a juvenile justice pr ogram or facility, as those (10) a current or former empl ion 261.405, Family Code, terms are defined by Sect regardless of whether the current or former employee complies with Section 552. 024 or 552.1175; er member of the Texas military fo rces, as that term is defined (11) a current or form by Section 437.001; or Text of (a)(12), as added by Acts 20 17, 85th Leg., ch. 34 (S.B. 1576), § 12 (12) a current or former employee of the Texas Civil Commitment Office or of the a division of the office, regardless of predecessor in function of the office or ee complies with Section 552.024 or whether the current or former employ 552.1175. Text of (a)(12), as added by Acts 20 190 (S.B. 42), § 17 17, 85th Leg., ch. ate judge, as those terms are defined by (12) a current or former federal judge or st Section 13.0021(a), Election Code, or a sp ouse of a current or former federal judge or state judge; or Text of (a)(12), as added by Acts 20 17, 85th Leg., ch. 1006 (H.B. 1278), § 1 (12) a current or former district attorney, criminal district attorney, or county or includes any criminal law or child municipal attorney whose jurisdiction of whether the current or former protective services matters, regardless n 552.024 or 552.1175; or attorney complies with Sectio 190 (S.B. 42), § 17 17, 85th Leg., ch. Text of (a)(13), as added by Acts 20 (13) a current or former district attorney , criminal district attorney, or county attorney whose jurisdiction includes any criminal law or child protective services matter. Text of (a)(13), as added by Acts 20 1006 (H.B. 1278), § 1 17, 85th Leg., ch. (13) a current or former employee of a distri ct attorney, criminal district attorney, jurisdiction includes any criminal law or county or municipal attorney whose current or former or child protective services matters, regar dless of whether the employee complies with Sect ion 552.024 or 552.1175. all documents filed with a district clerk All documents filed with a county clerk and (b) are exempt from this section. 2018 Public Information Act Handbook • Office of the Attorney General 127

144 Exceptions to Disclosure Generally, a governmental body may not invoke s ection 552.117 as a basis for withholding an official’s or an employee’s home ad her law, such as a state statute dress and telephone number if anot expressly authorizing child support enforcement offi cials to obtain information to locate absent 663 parents, requires the release of such information. Because the subsections of section 552.117 deal with different categories of offici als and employees and differ in their application, they are discussed separately below. 1. Subsections (a)(1), (11), an d (12): Public Officials and Employees, Members of the Texas Military Forces, and Federal or St ate Judges and their Spouses Section 552.117, subsections (a)(1) added by the 85th Legislature and (11) and subsection (a)(12) as in Senate Bill 42 must be read together with section 55 2.024, which provides as follows: ch employee or official of a governmental (a) Except as provided by Subsection (a-1), ea of a governmental body shall choose body and each former employee or official ss to the information in the custody of the governmental whether to allow public acce body that relates to the p telephone number, emergency erson’s home address, home reveals whether the person al security number, or that contact information, or soci has family members. employee of the district to (a-1) A school district may no t require an employee or former choose whether to allow public access to the employee’s or former employee’s social security number. Each employee and official and each former employee and official shall state that (b) the main personnel officer of the person’s choice under Subsection (a) to governmental body in a signed writing not la ter than the 14th day after the date on which: (1) the employee begins employment with the governmental body; (2) the official is elected or appointed; or (3) the former employee or official ends service with the governmental body. e or official chooses not to allow public (c) If the employee or official or former employe access to the information: (1) the information is protected under Subchapter C; and e information from any information the (2) the governmental body may redact th governmental body discloses under Sect ion 552.021 without the necessity of requesting a decision from the atto rney general under Subchapter G. 663 Open Records Decision No. 516 at 3 (1989). See 2018 Public Information Act Handbook • Office of the Attorney General 128

145 Exceptions to Disclosure (c-1) If, under Subsection (c)(2 ), a governmental body redacts or withholds information without requesting a decision from th e attorney general about whether the information may be redacted or withheld, the requestor is entitled to seek a decision from the attorney general about the matter. The attorney gene ral by rule shall establish procedures and deadlines for receiving inform ation necessary to decide the matter and briefs from the requestor, the governmental body, and any other ey general shall promptly render a decision requested interested person. The attorn under this subsection, determining whether held information was the redacted or with excepted from required disclosu re to the requestor, not later than the 45th business day after the date the attorney general recei ved the request for a decision under this decision on the matter and subsection. The attorney ge neral shall issue a written provide a copy of the decision to the ental body, and any requestor, the governm interested person who submitted necessary information or a brie f to the attorney general about the matter. The requestor or the governmental body may appeal a to a Travis County district decision of the attorney ge neral under this subsection court. (c-2) A governmental body that redacts or withholds information under Subsection (c)(2) ng information to the requestor on a form prescribed by the shall provide the followi attorney general: (1) a description of the redacte d or withheld information; (2) a citation to this section; and (3) instructions regarding how the requestor may seek a decision from the attorney general regarding whether the redacted or withheld information is excepted from required disclosure. (d) If an employee or official or a former employ ee or official fails to state the person’s choice within the period esta blished by this section, th e information is subject to public access. ee or official of a governmental body who An employee or official or former employ (e) wishes to close or open public access to the information may request in writing that mental body close or open access. the main personnel officer of the govern This section does not apply to a pers on to whom Sectio n 552.1175 applies. (f) a governmental body. Subsection (a)(1) pertains to a current or former official or employee of Subsection (a)(11) pertains to a current or former member of the Texas mil itary forces. Subsection (a)(12), as added by th e 85th Legislature in Senate Bill 42, pertains to a cu rrent or former federal judge or state judge as defined by section 13.0021(a ) of the Election Code, or a spouse of a current judge. To obtain the protection of or former federal judge or state section 552.117(a), the individuals d by Senate Bill 42 must ubsection (a)(12) as adde identified in subsections (a)(1) and (11) and s comply with section 552.024(c). If ld their home addresses, home these individuals elect to withho telephone numbers, emergency contact information, social security numbers, and information that members, the governmental bod reveals whether they have family y may redact such information 2018 Public Information Act Handbook • Office of the Attorney General 129

146 Exceptions to Disclosure without the necessity of requesting an attorney general decision. If a governmental body chooses to redact this information without requesting an atto rney general decision, it must notify the requestor as prescribed section 552.024(c-2) on the form cr eated by the attorney general. The notice must may seek an attorney ge include instructions regarding how the requestor neral’s review of the governmental body’s redactions. The form for notifying the request or is published on the attorney general’s website. The legislatio n enacting these provisions authorized the attorney general to promulgate rules establishing procedures for revi ew under section 552.024(c- 1). These rules were 664 promulgated in Subchapter B the Texas Administrative Code. of chapter 63 of title 1 of These rules are available on the attorney genera l’s website and in Pa rt Four of this Handbook . military forces, which are Subsection (a)(11) pertains to a current or form er member of the Texas defined as the Texas National Guard, the Texas Stat ilitary forces organized e Guard, and any other m 665 under state law. In addition, section 437.232 of the Government Code pr otects certain information 666 pertaining to service members and provides as follows: In this section, “military personnel info rmation” means a service member’s name, (a) title, pay rate or grade, state active duty orders, home address, rank, official y duty addresses, awards a deployment locations, militar nd decorations, length of military service, and medical records. (b) A service member’s military personnel inform ation is confidential and not subject to 667 disclosure under Chapter 552. In conjunction with section 552. 024(a-1), section 552.147 of the G overnment Code makes social security numbers of school district employees confidential. Thus, th e social security number of an nfidential in the custody employee of a school district is co of the school district even if the employee does not elect confidentiality under section 552.024. Significant decisions of the attorn 552.024 and 552.11 ey general regarding sections 7 prior to the recent amendments include the following: Open Records Decision No. 622 (1994) — statutory predecessor to section 552.117(a)(1) excepts numbers from required public disclosure; employees’ former home addresses and telephone Open Records Decision No. 53 0 (1989) — addressing the time at which an employee may exercise the options under the statut ory predecessor to section 552.024; apply to telephone numbers (1988) — these provisions do not Open Records Decision No. 506 provided to employees by a governmental body for work purposes; of mobile telephones that are and 664 See 1 T.A.C. §§ 63.11–.16. 665 Gov’t Code § 437.001(14). 666 Gov’t Code § 437.001(8) (defining “service member” for purposes of chapter 437 of the Government Code). See 667 Gov’t Code § 437.232. 2018 Public Information Act Handbook • Office of the Attorney General 130

147 Exceptions to Disclosure Open Records Decision No. 45 5 (1987) — statutory predece ssor to section 552.117(a)(1) continued to except an employee’s home addr ess and telephone number from required public disclosure after the employment re lationship ends; it did not except, as a general rule, applicants’ or other private citizens’ home addresses and telephone numbers. has determined in informal rulings that section 552.117 can apply In addition, the attorney general to personal cellular telephone numb well as telephone numbers that ers of government employees as 668 provide access to personal ho me facsimile machines of government employees. The attorney 669 st office box number. general has also determined that section 552. 117 does not protect a po ), (6), (7), (8), (9), (10), (12) 2. Subsections (a)(2), (3), (4), (5 , (12), and (13): Other Categories of Officers and Employees As noted above, to obtain the protection of se ction 552.117, subsection (a)(1), the individuals d (11) and subsection (a)(12) as identified in subsections (a)(1) an added by Senate Bill 42 must , however, on the part of the comply with the provisions of s ection 552.024. No action is necessary personnel listed in subsections (a)(2), ), and (10), as well as subsection (3), (4), (5), (6), (7), (8), (9 (a)(12) as added by Senate Bill 1576 of the 85th Legislature and subsections (a)(12) and (13) as added by House Bill 1278 of the 85th Legislature. In Open Records Decision No. 670 (2001), the attorney general determined that all governmental bodies may withhold the home a ddress, home telephone number, personal cellular phone number, information that reveals whether the individual personal pager number, social security number, and “peace officer” set forth in vidual who meets the definition of has family members, of any indi article 2.12 of the Texas Code of Criminal Procedur e or “security officer” in section 51.212 of the Texas Education Code, without the necessity of reques ting an attorney general decision as to whether This decision may be relied on as a “previous the exception under section 552.117(a)(2) applies. e listed information. determination” for th T. Section 552.1175: Confidentiality of Certain Personal Information of ty Officers, Employees of Certain Peace Officers, County Jailers, Securi State Agencies or Certain Criminal or Juvenile Justice Agencies or 670 Offices, and Federal and State Judges The 85th Legislature amended section 552.1175 of th e Government Code, which provides as follows: (a) This section applies only to: cle 2.12, Code of Criminal Procedure; (1) peace officers as defined by Arti cupations Code; Section 1701.001, Oc (2) county jailers as defined by 668 , Open Records Letter Nos. 2002-1488 (2002), 2001-0050 (2001). See, e.g. 669 See Open Records Decision No. 622 at 6 (1994) (legislative history makes clear that purpose of section 552.117 is home ) (citing House Comm. on State Affairs, Bill Analysis, H.B. to protect public employees from being harassed at 1979, 69th Leg. (1985) (emphasis added)). 670 Gov’t Code § 552.1175. 2018 Public Information Act Handbook • Office of the Attorney General 131

148 Exceptions to Disclosure (3) current or former employees of the Texa s Department of Criminal Justice or of the predecessor in function of the department or any division of the department; defined by Section 1702.002, Occupations (4) commissioned security officers as Code; iminal district attorney, or county or (5) a current or former district attorney, cr municipal attorney whose jurisdiction includes any criminal law or child 671 protective services matters; (5-a) a current or former employ ee of a district attorney, criminal district attorney, or county or municipal attorney whose jurisdiction includes any criminal law 672 or child protective services matters; supervision and corrections department (6) officers and employees of a community established under Chapter 76 who pe rform a duty described by Section 76.004(b); ates as described by Article 2.122(a) , (7) criminal investigators of the United St Code of Criminal Procedure; (8) police officers and inspectors of the Un ited States Federal Protective Service; (9) current and former employees of the o ffice of the attorney general who are or were assigned to a division of that office the duties of which involve law enforcement; (10) current or former juvenile probation and detention officers certified by the the predecessors in function of the Texas Juvenile Justice Department, or department, under Title 12, Human Reso urces Code; ees of a juvenile justice pr ogram or facility, as those (11) current or former employ terms are defined by Section 261.405, Family Code; (12) current or former employees of the Te xas Juvenile Justice Department or the of the department; and predecessors in function (13) federal judges and state judges as 3.0021, Election Code; defined by Section 1 and 671 Gov’t Code § 552.1175(a)(5). 672 Gov’t Code § 552.1175(a)(5-a). 2018 Public Information Act Handbook • Office of the Attorney General 132

149 Exceptions to Disclosure Office or of the Texas Civil Commitment (14) current or former employees of the 673 predecessor in function of the office or a division of this office. (b) dress, home telephone number, emergency Information that relates to the home ad contact information, date of birth, or social individual to whom security number of an this section applies, or that reveals whet her the individual has family members is confidential and may not be disclosed to the public under this chapter if the individual to whom the information relates: (1) chooses to restrict public access to the information; and (2) notifies the governmental body of the i a form provided by ndividual’s choice on mpanied by evidence of the governmental body, acco the individual’s status. valid until rescinded in writing by the A choice made under Subsection (b) remains (c) individual. (d) This section does not apply to information in the tax appraisal records of an appraisal district to which Section 25.025, Tax Code, applies. (e) all documents filed with a district clerk All documents filed with a county clerk and are exempt from this section. A governmental body may redact inform ation that must be withheld under (f) Subsection (b) from any information the governmental body discloses under Section 552.021 without the necessity of req uesting a decision from the attorney general under Subchapter G. (g) If, under Subsection (f), a governmental body redacts or withholds information e attorney general about whether the without requesting a decision from th requestor is entitled to seek a decision information may be redacted or withheld, the ral by rule shall The attorney gene from the attorney general about the matter. ation necessary to decide the and deadlines for receiving inform establish procedures matter and briefs from the requestor, the governmental body, and any other interested person. The attorn ey general shall promptly render a decision requested under this subsection, determining whether the redacted or with held information was re to the requestor, not excepted from required disclosu later than the 45th business ved the request for a day after the date the attorney general recei decision under this neral shall issue a written subsection. The attorney ge decision on the matter and ental body, and any provide a copy of the decision to the requestor, the governm interested person who submitted necessary f to the attorney information or a brie general about the matter. The requestor or the governmental body may appeal a neral under this subsection to a Travis County district decision of the attorney ge court. 673 Gov’t Code § 552.1175(a)(14). 2018 Public Information Act Handbook • Office of the Attorney General 133

150 Exceptions to Disclosure (h) A governmental body that redacts or with holds information under Subsection (f) on a form prescribed by the ng information to the requestor shall provide the followi attorney general: (1) a description of the redacted or withheld information; (2) a citation to this section; and (3) may seek a decision from the attorney instructions regarding how the requestor general regarding whether the redacted or withheld information is excepted from required disclosure. Section 552.1175 excepts from public disclosure a listed person’s home address, home telephone rth, social security nu number, emergency contact information, date of bi mber, and family member at the protection of information. The attorney genera l has stated in numer ous informal rulings th section 552.117 only applies to information a governmental body holds in its capacity as an 674 employer. On the other hand, secti on 552.1175 affords the listed persons the opportunity to withhold personal information contained in record s maintained by any go vernmental body in any 675 However, these individuals may not elec t under section 552.1175 to withhold personal capacity. information contained in records maintained by count y and district clerks or tax appraisal records of 676 an appraisal district subject to section 25.025 of the Tax Code. ey general determined that notification provided In Open Records Decision No. 678 (2003), the attorn to information only in the tion 552.1175 “imparts confidentiality to a governmental body under sec 677 If the information is transferred to another d governmental body.” possession of the notifie governmental body, the individua l must provide a separate not ification to the receiving 678 governmental body in order fo r the information in its ha nds to remain confidential. Also, unlike the requirement under section 552.117(a)(1) that an election to keep information 679 an election confidential be made before a governmental body receives the request for information, y’s receipt of the request for under section 552.1175 can be made after a governmental bod information. body to redact without the nece Subsection (f) allows a governmental ssity of requesting an attorney general decision the home address, home telephone numb er, emergency contact information, date of birth, social security number, and family member informatio n of a person described in dy redacts in accordance with ates that if a governmental bo section 552.1175(a). Subsection (h) st subsection (f), it must provide the on on the form prescribed by the requestor with certain informati r may seek an attorney general attorney general, including instru ctions regarding how the requesto ng the requestor is located on review of the governmental body’s redactions. The form for notifyi enacting these provisions authorized the attorney the attorney general’s website. The legislation 674 See, e.g. , Open Records Letter Nos. 99-3302 (1999), 96-2452 (1996). 675 , Open Records Letter No. 2002-6335 (2002). See, e.g. 676 Gov’t Code § 552.1175(d)–(e). 677 Open Records Decision No. 678 at 4 (2003). 678 Open Records Decision No. 678 at 4–5 (2003). 679 Open Records Decision No. 530 at 5 (1989). 2018 Public Information Act Handbook • Office of the Attorney General 134

151 Exceptions to Disclosure general to promulgate rules establishing procedures for its review under se ction 552.1175(g). These 680 rules are available on the attorney genera . l’s website and in Pa rt Four of this Handbook U. Section 552.1176: Confidentiality of Certain Information Maintained by State Bar e Government Code provides as follows: Section 552.1176 to th (a) Information that relates to the home ad dress, home telephon e number, electronic a person licensed to practice mail address, social security number, or date of birth of intained under Chapter 81 is confidential and may not be law in this state that is ma disclosed to the public under this chapt er if the person to whom the information relates: (1) chooses to restrict public access to the information; and Texas of the person’s choice, (2) notifies the State Bar of in writing or electronically, on a form provided by the state bar. ns valid until rescin ded in writing or (b) A choice made under Subsection (a) remai electronically by the person. nd all documents filed with a district clerk (c) All documents filed with a county clerk a are exempt from this section. 681 The protections of section 55 2.1176 only apply to records ma intained by the State Bar. There are no cases or formal opinions interpreting this exception. V. Section 552.118: Confidentiality of Official Prescription Program Information Section 552.118 of the Government Code ex cepts from required public disclosure: (1) cial prescription form or electronic information on or derived from an offi xas State Board of Pharmacy under prescription record filed with the Te Section 481.075, Health and Safety Code; or er Section 481.075 of that code. (2) other information collected und Under the Official Prescription Program, health practitioners w ho prescribe certain controlled substances must record certain in formation about the prescription on the official form , including the the person for whom the controlled substance is name, address, and date of birth or age of 682 mplete the form and provide a copy to the The dispensing pharmacist is required to co prescribed. 680 See 1 T.A.C. §§ 63.11–.16. 681 Open Records Letter No. 2009-13358 (2009). 682 Health & Safety Code § 481.075(a), (e). 2018 Public Information Act Handbook • Office of the Attorney General 135

152 Exceptions to Disclosure 683 Texas State Board of Pharmacy. Section 481.076 of the Health and Safety Code provides that the board may release this informati uding named state entities charged on only to certain parties, incl with investigating health professionals or a law en forcement or prosecutorial official charged with 684 investigating or enforcing laws governing illicit drugs. Under section 552.118, copies of the from the forms, and any other prescription forms filed with th e board, any information derived Code, are excepted from public 481.075 of the Health and Safety information collected under section disclosure. W. Section 552.119: Confidentiality of Certain Photographs of Peace Officers Section 552.119 of the Governme nt Code provides as follows: (a) A photograph that depicts a pe ace officer as defined by Arti cle 2.12, Code of Criminal Procedure, the release of which would enda nger the life or physical safety of the officer, is excepted from the requir ements of Section 552.021 unless: (1) the officer is under indictment or ch arged with an offense by information; (2) the officer is a party in a civil servi ce hearing or a case in arbitration; or (3) the photograph is introduced as evidence in a judicial proceeding. be made public A photograph excepted from disclosure unde r Subsection (a) may (b) only if the peace officer gives wr the disclosure. itten consent to In Open Records Decision No. 502 (1988), the attorney general held that there need not be a threshold determination that release of a photogra ph would endanger an office r before the statutory 685 predecessor to section 552.11 9(a) could be invoked. However, in 2003, the attorney general re- evaluated its interpretation of this provision and determined that, in orde r to withhold a peace officer’s or security officer’s photograph und er section 552.119, a g overnmental body must photograph would endang er the life or physical safety of the demonstrate that release of the 686 officer. ograph of a peace officer cannot be w Under section 552.119, a phot ithheld if (1) the officer is under indictment or charged with an offense by informati on; (2) the officer is a party in a civil service hearing or a case in arbitration; (3) the photograph is introduced as ev idence in a judicial proceeding; ent to the disclosure. Furtherm ore, in Open Records Decision or (4) the officer gives written cons predecessor to section 552.119 did No. 536 (1989), the attorney gene ral concluded that the statutory 687 This opinion reasoned that the not apply to photographs of officers who are no longer living. e was to protect peace officers officer’s death because its purpos section was inapplicable after an ould be effective by granting the from life-threatening harassment and to ensure this protection w 683 Health & Safety Code § 481.075(i). 684 Health & Safety Code § 481.076. 685 Open Records Decision No. 502 at 4–6 (1988). 686 Open Records Letter Nos. 2003-8009 (2003), 2003-8002 (2003). 687 Open Records Decision No. 536 at 2 (1989). 2018 Public Information Act Handbook • Office of the Attorney General 136

153 Exceptions to Disclosure 688 aph only to the subject of the photograph. Protecting discretionary authority to release the photogr 689 the photographs of deceased officer s would not serve this purpose. of Certain Rare Books and Original X. Section 552.120: Confidentiality Manuscripts cepts from required public disclosure: Section 552.120 of the Government Code ex A rare book or original manuscript that wa s not created or maintain ed in the conduct of a private or public archival al body and that is held by official business of a government se of historical research . . . . and manuscript repository for the purpo s decision on this provisi The attorney general has not issued an open record on. A similar provision education is found in the Education Code: applicable to state institutions of higher papers, unpublished letters, and audio and Rare books, original manuscripts, personal ion of higher education for the purposes of historical research video tapes held by an institut t access by the public to those materials to are confidential, and the institution may restric 690 protect the actual or potential value of th e materials and the privacy of the donors. y of Certain Documents Held for Y. Section 552.121: Confidentialit Historical Research cepts from required public disclosure: Section 552.121 of the Government Code ex An oral history interview, personal paper, unp ublished letter, or organizational record of a nongovernmental entity that was not created or maintained in the conduct of official business of a governmental body and that is held by a pri vate or public archival and manuscript repository for the pu rpose of historical research . . . to the extent that the archival and manuscript repositor y and the donor of the intervie w, paper, letter, or record agree to limit disclosure of the item. decision on this provis ion. The Education Code The attorney general has not issued an open records sets out a similar provisi on applicable to institutions of higher education. It states as follows: An oral interview that is obtained for historical purposes by an agreement of confidentiality between an inte rviewee and a state institution of higher education is not public information. The int erview becomes public informatio n when the conditions of the 691 agreement of confidentiality have been met. of the legislature that enacted section 51.910(a) An attorney general opinion requested by a committee gher education from agreeing to states that the Public Informatio n Act prevents an institution of hi 688 Open Records Decision No. 536 at 2 (1989). 689 Open Records Decision No. 536 at 2 (1989). 690 Educ. Code § 51.910(b). 691 Educ. Code § 51.910(a). 2018 Public Information Act Handbook • Office of the Attorney General 137

154 Exceptions to Disclosure keep oral history information co nfidential unless the institution has specific authority under law to 692 make such agreements. Z. Section 552.122: Test Items Section 552.122 of the Government Code ex cepts from required public disclosure: itution that is funded A test item developed by an educational inst in part wholly or (a) by state revenue . . . [; and] (b) A test item developed by a licensing agency or g overnmental body . . . . ms” in Open Records Decision The attorney general considered the scope of the phrase “test ite No. 626 (1994). That decision considered whet her employee evaluations and records used for determining promotions were “test items” under section 552.122(b). “Test item” was defined as ability in a particular area is ndividual’s or group’s knowledge or “any standard means by which an i 693 evaluated.” The opinion held that in this instance the evaluations of the applicant for promotion icant by the promotion board in evaluating the and the answers to questions asked of the appl applicant were not “test items” and that such a de 552.122 had to be made termination under section 694 on a case-by-case basis. AA. Section 552.123: Confidentiality of Name of Applicant for Chief Executive Officer of Institution of Higher Education Section 552.123 of the Government Code ex cepts from required public disclosure: The name of an applicant for the position of chief executive officer of an institution of higher education, and other information that wo uld tend to identify the applicant, . . . , the institution must give pu blic notice of the name or except that the governing body of sition at least 21 days before the date of names of the finalists being considered for the po the meeting at which final action or vote is to be taken on the employment of the person. Thus, section 552.123 expressly permits the withholding of any identifying information about 695 Before the addition of the st atutory predecessor to section candidates, not just their names. 552.123, the names of all persons being considered for public positions were available under the 696 the law only in respect to applicants The addition of this section changed Public Information Act. 697 The exception protects the id entities of all applicants for for the position of university president. 692 Attorney General Opinion JM-37 at 2 (1983). 693 Open Records Decision No. 626 at 6 (1994). 694 Open Records Decision No. 626 at 6–8 (1994). 695 see also Open Records Decision No. 540 at 3–4 (1990) (construing statutory predecessor to Gov’t Code § 552.123; Gov’t Code § 552.123). 696 , 652 S.W.2d 546, 551 (Tex. App.—Austin 1983, writ ref’d n.r.e.); See Hubert v. Harte-Hanks Tex. Newspapers, Inc. Open Records Decision No. 439 at 2 (1986). 697 See Open Records Decision No. 585 (1991) (availability of names of applicants for position of city manager). 2018 Public Information Act Handbook • Office of the Attorney General 138

155 Exceptions to Disclosure 698 the position of university president, whether they apply on their own initiative or are nominated. Section 552.123 does not protect th e names of finalists for the university president position. BB. Section 552.1235: Confidentiality of Identity of Private Donor to Institution of Higher Education Section 552.1235 of th e Government Code provides as follows: entity of a person, nd to disclose the id (a) The name or other information that would te other than a governmental bo dy, who makes a gift, grant, or donation of money or property to an institution of higher education or to another person with the intent that the money or property be transferred to higher education is an institution of excepted from the requirements of Section 552.021. Subsection (a) does not except from required disclosure other information relating to (b) gifts, grants, and donations described by Subsection (a), includ ing the amount or value of an individual gift, grant, or donation. (c) education” has the meaning assigned by In this section, “institution of higher Section 61.003, Education Code. in an informal ruling, this exception. However, There are no cases or formal opinions interpreting the attorney general interpreted the term “person,” as used in this ex ception, to include a “corporation, organization, government or governmental subdivis ion or agency, business trust, estate, trust, 699 partnership, association, and any other legal entity.” CC. Section 552.124: Confidentiality of Records of Library or Library System nt Code provides as follows: Section 552.124 of the Governme (a) in part by public funds, system, supported in whole or A record of a library or library that identifies or serves to identify a person who requested , obtained, or used a library requirements of Section 552.021 unless the material or service is excepted from the record is disclosed: (1) because the library or lib rary system determines that disclosure is reasonably necessary for the operation of the library or library system and the record is not confidential under other state or federal law; (2) under Section 552.023; or (3) to a law enforcement agency or a pros order or subpoena ecutor under a court obtained after a showing to a district court that: 698 Open Records Decision No. 540 at 5 (1990). See 699 Open Records Letter No. 2003-8748 (2003) (citing to Gov’t Code § 311.005402.006(2)). 2018 Public Information Act Handbook • Office of the Attorney General 139

156 Exceptions to Disclosure (1) disclosure of the record is necessary to protect the public safety; or or constitutes eviden ce that a particular (2) the record is evidence of an offense person committed an offense. (b) A record of a library or libra ry system that is excepted from required disclosure under this section is confidential. The legislative history suggests that the purpose of this section is to codify, clarify, and extend a 700 prior decision of the attorney general. This section protects the identity of the individual library to such information by court order or subpoena. user while allowing law enforcement officials access access under section 552.023 to libr ary records that relate to that An individual has a special right of individual. There are no cases or formal opinions interpreting this excep tion. However, in an informal ruling, the attorney general interpreted section 552.124 to except from disclosure any 701 information that specifically identifies library patrons. al ruling, the attorney In a separate inform general determined that section 552.124 does not except from disclosure information identifying 702 library employees or other persons not requesting, obtaining, or using a library material or service. concluded section 552.124 is designed to protect In another informal ruling, the attorney general 703 lapses at death, id entifying information individual privacy. Therefore, because the right to privacy 704 that pertains solely to a deceased pers on may not be withheld under section 552.124. DD. Section 552.125: Certain Audits The 85th Legislature amended sec tion 552.125 of the Government C ode, which provides as follows: Any documents or information privileged un der Chapter 1101, Health and Safety Code, 705 are excepted from the requi rements of Section 552.021. of the Health and Safety Code includes audit Information considered privileged under chapter 1101 706 port as “a report that includes each document Section 1101.051(a) describes an audit re reports. 707 An from an environmental or health and safety audit.” and communication . . . produced environmental or health and safety aud it is defined under section 1101.003(a)(3) as: a systematic voluntary evaluation, review, or assessment of complianc e with environmental with any permit issued under an environmental or health and or health and safety laws or 700 See Senate Comm. on State Affairs, Bill Analysis, S.B. 360, 73rd Leg., R.S. (1993); Open Records Decision No. 100 (1975) (identity of library user in connection with library materials he or she has reviewed was protected from public disclosure under statutory pr edecessor to Gov’t Code § 552.101). 701 Open Records Letter No. 99-1566 (1999). 702 Open Records Letter No. 2000-3201 (2000). 703 Open Records Letter No. 2014-13140 at 4 (2014). 704 Open Records Letter No. 2014-13140 at 4 (2014). 705 Act of May 19, 2017, 85th Leg., R.S., S.B. 1488, § 20.002(b) (repealing Texas see also Gov’t Code § 552.125); Environmental, Health, and Safety Audit Privilege Act, Tex. Rev. Civ. Stat. art. 4447cc). 706 Health and Safety Code § 1101.101(a)(3). 707 Health and Safety Code § 1101.051(a). 2018 Public Information Act Handbook • Office of the Attorney General 140

157 Exceptions to Disclosure safety law conducted by an owner or operat or, an employee of the owner or operator, a person, including an employee or independent co ntractor of the person, that is considering the acquisition of a reg ulated facility or operation, or an independent contractor of: (A) a . . . facility or operation [regulated un der an environmental or health and safety law]; or (B) an activity at a . . . fa under an environmental or cility or operation [regulated 708 health and safety law]. There are no cases or formal opi nions interpreting section 552.125. EE. Section 552.126: Confidentiality of Name of Applicant for Superintendent of Public School District Section 552.126 of the Governme nt Code provides as follows: e position of superintendent of The name of an applicant for th a public school district is excepted from the requirements of Section 552.021, except that the board of trustees must or names of the finalists being considered for the position at give public notice of the name date of the meeting at wh least 21 days before the te is to be taken on ich a final action or vo the employment of the person. There are no cases or formal opinions interpreting this exception. However, in an informal ruling, the attorney general determined section 55 2.126 protects all identifying information about 709 Section 552.126 does not protect the names of the superintendent applicants, not just their names. finalists for a superintendent position. FF. Section 552.127: Confidentiality of Personal Information Relating to Participants in Neighborhood Crime Watch Organization nt Code provides as follows: Section 552.127 of the Governme (a) Information is excepted from the information identifies [required public disclosure] if a person as a participant in a neighborho od crime watch organiz ation and relates to s, home telephone number, or business the name, home address, business addres telephone number of the person. (b) In this section, “neighborhood crime watc h organization” means a group of residents of a neighborhood that is formed in affiliation or of a neighborhood or part association with a law enforcemen serve activities within the t agency in this state to ob neighborhood or part of a neighborhood an d to take other actions intended to reduce crime in that area. 708 Health and Safety Code § 1101.003(a)(3). 709 Open Records Letter No. 99-2495 (1999). 2018 Public Information Act Handbook • Office of the Attorney General 141

158 Exceptions to Disclosure exception. In an informal ruling, the attorney There are no cases or formal opinions interpreting this re the name, home address, business address, general found section 552.127 excepts from disclosu home telephone number, or business telephone num ber of a participant in a neighborhood crime 710 watch program. However, the attorney general also found the name, address, or contact the neighborhood crime information of an organization participating in watch program is not less the information relates to or identifies an individual protected under section 552.127 un 711 participant’s name, home or business addr ess, or home or business telephone number. GG. Section 552.128: Confidentiality of Certain Information Submitted by Potential Vendor or Contractor Section 552.128 of the Governme nt Code provides as follows: (a) Information submitted by a potential vendor or contractor to a governmental body in connection with an application for certification as a historically underutilized or disadvantaged business under a local, state, or federal certification program is excepted from [required public disclosure], except as provided by this section. (b) Notwithstanding Section 552.007 and except as provided by Subsection (c), the information may be disclosed only: in this state, and the state or local (1) to a state or local governmental entity governmental entity may use the information only: (A) for purposes related to verifying an applicant’s status as a historically underutilized or disadvantaged business; or udy of a public purchasing program for the purpose of conducting a st (B) established under state law for historic ally underutilized or disadvantaged businesses; or the applicant or the applicant’s agent. (2) with the express written permission of ctor or a potential vendor or contractor (c) Information submitted by a vendor or contra to a governmental body in connection with a specific proposed contractual relationship, a specific contra ct, or an application to be placed on a bidders list, y also have been submitte including information that ma d in connection with an lly underutilized or disadvantaged business, application for certification as a historica sclosure, or confidential sure, excepted from required di is subject to required disclo in accordance with other law. ption. However, in s interpreting this exce informal rulings, the There are no cases or formal opinion attorney general has determined that the exception does not apply to documents created by the 712 Additionally, the governmental body rather than submitted by the potential vendor or contractor. 710 Open Records Letter No. 99-2830 (1999). 711 Open Records Letter No. 99-2830 (1999). 712 Open Records Letter Nos. 99-0565 (1999), 98-0782 (1998). 2018 Public Information Act Handbook • Office of the Attorney General 142

159 Exceptions to Disclosure 713 exception may cover info rmation submitted orally by an applicant. Subsection (c) of the exception does not make confidentia osals, but states that bidding l a potential contractor’s bid prop 714 information is subject to public disclo sure unless made confidential by law. of Certain Motor Vehicle Inspection HH. Section 552.129: Confidentiality Information Section 552.129 of the Governme nt Code provides as follows: A record created during a motor vehicle emi ssions inspection under Subchapter F, Chapter 548, Transportation Code, that relates to an individual vehicle or owner of an individual vehicle is excepted fr om [required public disclosure]. ons interpreting th is exception. There are no cases or formal opini II. Section 552.130: Confidentiality of Certain Motor Vehicle Records Section 552.130 of the Governme nt Code provides as follows: Information is excepted from [required public disclosure] if the information relates to: (a) driver’s license or permit issued by an agency of this (1) a motor vehicle operator’s or state or another state or country; y of this state or another istration issued by an agenc (2) a motor vehicle title or reg state or country; or (3) a personal identification document issued by an agency of this state or another state or country or a local agency authoriz ed to issue an identification document. (b) Information described by Subsection (a) may be released only if, and in the manner, authorized by Chapter 730, Transportation Code. mental body may redact sportation Code, a govern Subject to Chapter 730, Tran (c) e governmental body om any information th information described by Subsection (a) fr questing a decision from the 552.021 without the necessity of re discloses under Section attorney general under Subchapter G. vernmental body redacts information or withholds (d) If, under Subsection (c), a go without requesting a decision from the atto rney general about whether the information may be redacted or withheld, the requestor is entitled to seek a decision from the establish torney general by ru le shall attorney general about the matter. The at procedures and deadlines for y to decide the matter and receiving information necessar body, and any other interested person. briefs from the requestor, the governmental 713 Open Records Letter Nos. 99-0979 (1999), 99-0922 (1999). 714 Open Records Letter No. 99-1511 (1999). 2018 Public Information Act Handbook • Office of the Attorney General 143

160 Exceptions to Disclosure The attorney general shall promptly render a decision requested under this subsection, determining whether the redacte s excepted from required d or withheld information wa disclosure to the requestor, not later th an the 45th business d ay after the date the attorney general received the request for a deci sion under this subsec tion. The attorney general shall issue a written decision on the matter and provide a co py of the decision and any interested pe rson who submitted to the requestor, the governmental body, necessary information or a brief to the t the matter. The attorney general abou requestor or the governmental body may ap peal a decision of the attorney general under this subsection to a Trav is County district court. A governmental body th at redacts or withho lds information under Subsection (c) shall (e) prescribed by the attorney provide the following informatio n to the requestor on a form general: (1) a description of the redacted or withheld information; (2) a citation to this section; and (3) instructions regarding how the requestor may seek a decision from the attorney is excepted from withheld information general regarding whether the redacted or . required disclosure d public disclosure under section 552.130(a)(1) Examples of information excepted from require xpiration date of a driver’s license issued by an include the license number, class, restrictions, and e 715 agency of the State of Texas. Examples of information ex cepted from disclosure under section 552.130(a)(2) include a vehicle identificati on number and license plate number relating to a 716 title or registration issued by an agency of the State of Texas. Section 552.130 protects ssued by this state, a st ate other than Texas, or information relating to a license, title, or registration i another country. However, section 552.130 does not apply to motor vehicle record information specifically governed by found in a CR-3 accident report form. Access to a CR-3 accident report is 717 section 550.065 of the Transpor tation Code, not section 552.130. to protect privacy interests, an individual or his authorized Because, section 552.130 was enacted representative has a special right of access to hi information, and such s motor vehicle record 718 Furthermore, that individual under section 552.130. information may not be withheld from information otherwise protected u nder section 552.130 may be releas ed if the governmental body is authorized to release the information under ch apter 730 of the Transpor tation Code. Section 552.222(c) of the Government Code permits the officer for public information or the officer’s agent ying information sufficient for the officer or the to require the requestor to provide additional identif r is eligible to receive the information under officer’s agent to determine whether the requesto chapter 730 of the Transpor tation Code. It should be noted that a deceased person’s interest under 715 See, e.g. , Open Records Letter Nos. 2002-7018 (2002), 2001-3659 (2001). 716 , Open Records Letter Nos. 2000-4847 (2000), 2000-1083 (2000). See, e.g. 717 discussion of section 550.065 of the Transportation C ode in Part Two, Section II, Subsection H of this Handbook . See 718 See Gov’t Code § 552.023; Open Records Decision Nos. 684 at 12-13 (2009), 481 at 4 (1987) (privacy theories not implicated when individual requests information concerning himself). 2018 Public Information Act Handbook • Office of the Attorney General 144

161 Exceptions to Disclosure 0 would protect the interest of a section 552.130 lapses u pon the person’s death, but section 552.13 719 living person who has a co-ownership in the vehicle. Section 552.130(c) provides that subject to chapte on Code, a governmental r 730 of the Transportati attorney general decision information that is body may redact without the necessity of requesting an a governmental body chooses to redact this subject to subsection (a) of section 552.130. If information without requesting an must notify the requestor as attorney general decision, it prescribed by section 552.130(e) on the form crea ted by the attorney general. The notice must include instructions regarding how the requestor may seek an attorney ge neral’s review of the governmental body’s redactions. Th e form for notifying the requestor is located on the attorney general’s website. Pursuant to section 552.1 30(d), the attorney general promulgated rules 720 of a governmental body’s redactions. establishing procedures for review These rules are available . Handbook and in Part Four of this on the attorney general’s website e technological capability to redact the motor vehicle record If a governmental body lacks th ruling from the attorney information from a requested video, it must seek a general if it wishes to tion from disclosure. withhold the informa y of Certain Economic Development Section 552.131: Confidentialit JJ. Information nt Code reads as follows: Section 552.131 of the Governme (a) Information is excepted from the requiremen ts of Section 552.021 if the information ons involving a governmental body and a relates to economic development negotiati business prospect that the governmental body seeks to have locate, stay, or expand in or near the territory of the government al body and the information relates to: (1) a trade secret of th e business prospect; or r which it is demo nstrated based on (2) commercial or financial information fo specific factual evidence th at disclosure would cause substantial competitive harm e information was obtained. to the person from whom th (b) Unless and until an agreement is made with the business prospect, information about a financial or other incentive being offe red to the business prospect by the governmental body or by another person is excepted from the requirements of Section 552.021. th the business prospect, th (c) After an agreement is made wi is section does not except from the requirements of Section 552.021 in formation about a financial or other incentive being offered to the business prospect: 719 , 589 Open Records Decision No. 684 at 13 (2009). See generally Moore v. Charles B. Pierce Film Enters., Inc. , 472 F. Justice v. Belo Broadcasting Corp. S.W.2d 489, 491 (Tex. Civ. App.—Texarkana 1979, writ ref’d n.r.e.); Supp. 145, 146-47 (N.D. Tex. 1979); Attorney General Opinions JM-229 at 3 (1984), H-917 at 2-3(1976); Open Records Decision No. 272 at 1 (1981) (privacy rights lapse upon death). 720 See 1 T.A.C. §§ 63.11–.16. 2018 Public Information Act Handbook • Office of the Attorney General 145

162 Exceptions to Disclosure (1) by the governmental body; or (2) by another person, if the financial or other incentive may directly or indirectly result in the expenditure of public funds by a governmental body or a reduction in revenue received by a governmental body from any source. Section 552.131(a) applies to the same two types of information excepted from disclosure under section 552.110: (1) trade secrets; and (2) comme rcial or financial information for which it is factual evidence that disclosure would cause substantial competitive demonstrated based on specific harm to the person from whom the information was obtained. However, unlike section 552.110, section 552.131(a) applies only to information that relates to economic development negotiations between a governmental body and a business prospe ct. Section 552.131(b) excepts from public disclosure any information relating to a financial or other incentive that a governmental body or another person offers to a business prospect that seek s to have locate, stay, or expand in or near the territory of the governmental body. After the governmental body reaches an agreement with the business prospect, information about a financial or other incentive offered the business prospect is no longer excepted under section 552. 131. There are no formal cases or opinions interpreting this exception. When a governmental body a third party may be excepted believes requested information of under this exception, the governme d party in accordance with ntal body must notify the thir ernmental body must send to the section 552.305. The notice the gov third party is found in Part Nine of this . Handbook KK. Section 552.132: Confidentialit y of Crime Victim or Claimant Information Section 552.132 of the Governme nt Code provides as follows: (a) Except as provided by Subsection (d), in th is section, “crime victim or claimant” means a victim or claimant under Subchapter B, Chapt er 56, Code of Criminal Procedure, who has filed an application for compensation under that subchapter. (b) on division of the victim’s compensati The following information held by the crime attorney general’s office is confidential: (1) the name, social security number, addres s, or telephone number of a crime victim or claimant; or (2) any other information the disclosure of which would iden tify or tend to identify the crime victim or claimant. r Section 56.34, Code ded compensation unde If the crime victim or claimant is awar (c) of Criminal Procedure, as of the date of the award of compensation, the name of the d the amount of compensation awarded to that crime crime victim or claimant an victim or claimant are public inform ation and are not excepted from the requirements of Section 552.021. 2018 Public Information Act Handbook • Office of the Attorney General 146

163 Exceptions to Disclosure ctim under Subchapter B, al body who is also a vi An employee of a government (d) regardless of whether the employee has Chapter 56, Code of Criminal Procedure, ensation under that subcha pter, may elect whether to filed an application for comp the attorney general’s office or other allow public access to information held by governmental body that would identify or tend to identify the victim, including a of the victim. An election under this photograph or other visual representation subsection must be made in writing on a form developed by the governmental body, th the governmental body before the third be signed by the employee, and be filed wi cur of one of the following: anniversary of the latest to oc me was committed; (1) the date the cri (2) the date employment begins; or (3) the date the governmental body develops the form and provides it to employees. n under Subsection (d), the identifying If the employee fails to make an electio (e) y of the date the il the third anniversar information is excepted from disclosure unt crime was committed. In case of disability, impairment, or other incapacity of the e guardian of the employee or former employee, the election may be made by th employee. nt’s identifying information confidential without Section 552.132 makes both the victim’s and claima either party having to submit an election for no e Victims’ Compensation n-disclosure to the Crim Division of the Office of the Atto rney General. The attorney gene ral has found that crime victims 2.023 of the Government rmation under section 55 have a special right of access to their own info 721 Code. inions interpreting this exception. There are no cases or formal op 721 Open Records Letter No. 2001-0821 (2001). 2018 Public Information Act Handbook • Office of the Attorney General 147

164 Exceptions to Disclosure LL. Section 552.1325: Crime Vict im Impact Statement: Certain Information Confidential Section 552.1325 of th e Government Code provides as follows: (a) In this section: (1) “Crime victim” means a p e 56.32, Code fined by Articl erson who is a victim as de of Criminal Procedure. (2) “Victim impact statement” means a vict im impact statement under Article 56.03, Code of Criminal Procedure. al body or filed with a court n that is held by a government (b) The following informatio and that is contained in a victim impact statement or was submitted for purposes of preparing a victim impact statement is confidential: ty number, address, and te lephone number of a crime (1) the name, social securi victim; and (2) any other information the tify or tend to identify disclosure of which would iden the crime victim. There are no cases or formal opini ons interpreting th is exception. MM. Section 552.133: Confidentiality of Public Power Utility Competitive Matters Section 552.133 of the Governme nt Code provides as follows: oviding electric or gas utility power utility” means an entity pr (a) In this section, “public e provisions of this chapter. services that is subject to th (a-1) For purposes of this sect a utility-related matter that is ion, “competitive matter” means etitive activity, including commercial related to the public power utility’s comp advantage to competitors or prospective information, and would, if disclosed, give competitors. The term: (1) means a matter that is reasonably related to the following categor ies of information: e costs, including forecasts and portfolio fixed and variabl (A) generation unit specific of those costs, capital improvement plans fo r generation units, and generation unit operating characteristics and outage scheduling; rmation for purchased power, (B) bidding and pricing info generation and fuel, and Texas bids, prices, offers Electric Reliability Council of , and related services and strategies; 2018 Public Information Act Handbook • Office of the Attorney General 148

165 Exceptions to Disclosure (C) effective fuel and purchased pow er agreements and fuel transportation arrangements and contracts; es, including fuel hedging ion, contracts, and strategi (D) risk management informat and storage; for system improvements, additions, or (E) plans, studies, proposals, and analyses ribution system improvements inside the sales, other than transmission and dist public power utility is the sole certificated retail service area for which the provider; and (F) customer billing, contra ct, and usage information, electric power pricing s, and electric power marketing analyses information, system load characteristic and strategies; and (2) does not include the following categories of information: distribution access service, including the (A) information relating to the provision of terms and conditions of the service and th e rates charged for the service but not ated services or products that are including information concerning utility-rel competitive; (B) information relating to the provision of tr ansmission service that is required to be any confidentiality filed with the Public Utility Commission of Texas, subject to provided for under the ru les of the commission; (C) information for the distribution system p ertaining to reliability and continuity of service, to the extent not security-sensiti ve, that relates to emergency management, identification of critical l oads such as hospitals and police, records of interruption, and distribution feeder standards; ral applicability regarding rates, service (D) any substantive rule or tariff of gene protections, or customer service adopted offerings, service regulation, customer by the public power utility as authorized by law; or expenditures of funds of the public (E) aggregate information reflecting receipts power utility, of the type that ial statements; in audited financ would be included t opportunities for minority groups, as (F) information relating to equal employmen filed with local, state, or federal agencies; e public power utility’s perfor (G) information relating to th mance in contracting with minority business entities; ssioning trust agreements, of the type (H) information relating to nuclear decommi udited financial statements; required to be included in a 2018 Public Information Act Handbook • Office of the Attorney General 149

166 Exceptions to Disclosure (I) information relating to the amount and timi ng of any transfer to an owning city’s general fund; (J) information relating to environmental co mpliance as required to be filed with any authority, subject to any confidentiality local, state, or national environmental provided under the rules of those authorities; (K) names of public officers of the public po wer utility and the voting records of those officers for all matters other than thos e within the scope of a competitive resolution provided for by this section; (L) a description of the public eld organization, including power utility’s central and fi formation, submit ublic may obtain in the established places at which the p information and requests, or obtain decisi ons and the identification of employees information or requests, from whom the public may ob tain information, submit or obtain decisions; (M) information identifying the general course and meth od by which the public power utility’s functions are channeled and determined, including the nature and formal policies and procedures; requirements of all formal and in (N) salaries and total compensa public power utility; or tion of all employees of a (O) information publicly released by th uncil of Texas in e Electric Reliability Co able to similarly situated or protocol generally applic accordance with a law, rule, market participants. (b) Information or records are excepted from the requirements of Section 552.021 if the information or records are reasona bly related to a competitive matter, as defined in this that are reasonably section. Information or records of a mu nicipally owned utility related to a competitive matter are not subject to disclosure under this chapter, whether or not, under the Utilities Code, the municipally owned utility has adopted customer choice or serves in a multiply certificated s ervice area. This sect ion does not limit the y governing body to withhold from disclosure information right of a public power utilit of any other exception provided for in this chapter, subject deemed to be within the scope to the provisions of this chapter. category of informatio n listed under Section (c) The requirement of Section 552.022 that a 552.022(a) is public information and not except ed from required disclosure under this chapter unless expressly confidential under la w does not apply to information that is excepted from required disclo sure under this section. Section 552.133 excepts from disclo sure a public power utility’s info rmation related to a competitive matter. The exception defines “comp etitive matter” as a utility-related matter that is related to the ity. In order to be “utility-rela public power utility’s competitive activ ted,” the matter must relate to the six enumerated categories of in fifteen categories of information formation. Section 552.133 lists on No. 666 (2000), the attorney matters. In Open Records Decisi that may not be deemed competitive pality may disclose information pe general determined that a munici rtaining to a municipally-owned 2018 Public Information Act Handbook • Office of the Attorney General 150

167 Exceptions to Disclosure power utility to a municipally-appoi nted citizen advisory board with out waiving its right thereafter 722 to assert an exception under the Act in respons e to a future public request for information. Certain Information Relating to NN. Section 552.134: Confidentiality of Inmate of Department of Criminal Justice Section 552.134 of the Governme nt Code reads as follows: rmation obtained or Section 552.029, info Except as provided by Subsection (b) or by (a) maintained by the Texas Department of Criminal Justice is excepted from the rmation about an inmate who is confined requirements of Section 552.021 if it is info in a facility operated by with the department. or under a contract (b) Subsection (a) does not apply to: confined in one or ion relating to inmates (1) statistical or other aggregated informat more facilities operated by or under a contract with the department; or mate sentenced to death. (2) information about an in considered confidential or ect whether information is This section does not aff (c) privileged under Section 508.313. A release of information described by Subsect ion (a) to an eligible entity, as defined (d) by Section 508.313(d) , for a purpose relat ed to law enforcem ent, prosecution, corrections, clemency, or treatment is not co nsidered a release of information to the public for purposes of Sect ion 552.007 and does not waive the right to assert in the future that the information is excepted from required disclosure under this section or other law. This section should be read with two other provisi ons concerning the required public disclosure of .313 of the Government on, sections 552.029 and 508 Texas Department of Criminal Justice informati overnment Code generally makes confidential all information the Code. Section 508.313 of the G Texas Department of Criminal Justice obtains a nd maintains about certai n classes of inmates, including an inmate of the institu tional division subject to release on parole, release to mandatory ation about a releasee also applies to inform supervision, or executive clemency. Section 508.313 and a person directly identified in any proposed plan of release for an inmate. Section 508.313 member of the Board of Pardons requires the release of the informa tion it covers to the governor, a and Paroles, the Criminal Justice Policy Council, or an eligible entity requesting information for a 723 law enforcement, prosecutorial, correctional, clemency, or treatment purpose. Thus, both sections 552.134 and 508.313 make ce rtain information confidential. On the other hand, section 552.029 of the Gove rnment Code provides that certain specified r sections 552.134 and 508.313. information cannot be withheld unde 722 Open Records Decision No. 666 at 4 (2000). 723 Gov’t Code § 508.313(c). 2018 Public Information Act Handbook • Office of the Attorney General 151

168 Exceptions to Disclosure Section 552.029 of the Governme nt Code reads as follows: rmation about an inmate who or 552.134, the following info Notwithstanding Section 508.313 is confined in a facility operated by or under a contract with th e Texas Department of Criminal disclosure under Section 552.021: Justice is subject to required (1) the inmate’s name, identi fication number, age, birthplace, department photograph, physical description, or general state of health or the nature of an injury to or critical illness suffered by the inmate; inmate, unless (2) the inmate’s assigned unit or the date on which the uni t received the disclosure of the information would violate fe deral law relating to the confidentiality of substance ab use treatment; (3) the offense for which the in mate was convicted or the judgment and sentence for that offense; (4) the county and court in whic h the inmate was convicted; (5) the inmate’s earliest or latest possible release dates; parole date; earliest possible (6) the inmate’s parole date or (7) any prior confinement of th e inmate by the Texas Departme nt of Criminal Justice or its predecessor; or (8) basic information regarding the death of an inmate in custody, an incident involving the use of force, or an alleged crime involving the inmate. The Texas Department of Criminal Justice has the discretion to release information otherwise protected under section 552. pose of maintaining accurate voter 134 to voter registrars for the pur 724 registration lists. Certain Information Held by School OO. Section 552.135: Confidentiality of District Section 552.135 of the Governme nt Code provides as follows: (a) “Informer” means a student or a former stud ent or an employee or former employee of a school district who has furnished a report of another person’s possible violation of criminal, civil, or regula tory law to the school distri ct or the proper regulatory enforcement authority. ation that would substantially An informer’s name or inform (b) reveal the identity of an quirements of Section 552.021. informer is excepted from the re 724 Open Records Decision No. 667 at 4 (2000). 2018 Public Information Act Handbook • Office of the Attorney General 152

169 Exceptions to Disclosure (c) Subsection (b) does not apply: e student or former student, ent or former student, and th (1) if the informer is a stud or the legal guardian, or spouse of the student or former student consents to disclosure of the student’s or former student’s name; or (2) if the informer is an employee or former employee who consents to disclosure of the employee’s or former employee’s name; or participated in the possible violation. (3) if the informer planned, initiated, or Information excepted und er Subsection (b) may be ma de available to a law (d) enforcement agency or prosecut or for official purposes of the agency or prosecutor upon proper request made in compliance with applicable la w and procedure. ge on or impair the conf (e) This section does not infrin identiality of information considered to be confidential tutional, statutory, or by by law, whether it be consti n excepted from the requirements of judicial decision, including informatio Section 552.021. n under this exception must A school district that seeks to withhold informatio clearly identify to the , or regulatory law that is alleged to have been attorney general’s office the specific civil, criminal violated. The school district must also identify the individual who reported the alleged violation of ting this exception. the law. There are no cases or form al opinions interpre PP. Section 552.136: Confidentiality of Credit Card, Debit Card, Charge Card, and Access Device Numbers Section 552.136 of the Governme nt Code provides as follows: unt number, personal rd, plate, code, acco In this section, “access device” means a ca (a) nic serial number, mobile identification number, electro identification number, or other telecommunications service, equipment, or instrument identifier or means of account access that alone or in conjunction with another access device may be used to: , or another thing of value; or (1) obtain money, goods, services (2) initiate a transfer of funds other than a transfer originated solely by paper instrument. chapter, a credit card, debit card, charge Notwithstanding any other provision of this (b) ssembled, or mainta that is collected, a card, or access device number ined by or for a governmental body is confidential. (c) A governmental body may redact inform ation that must be withheld under Subsection (b) from any information the governmental body discloses under 2018 Public Information Act Handbook • Office of the Attorney General 153

170 Exceptions to Disclosure Section 552.021 without the necessity of req uesting a decision from the attorney general under Subchapter G. body redacts or withholds information If, under Subsection (c), a governmental (d) without requesting a decision from th e attorney general about whether the information may be redacted or withheld, the requestor is entitled to seek a decision from the attorney general about the matter. The attorney gene ral by rule shall and deadlines for receiving inform ation necessary to decide the establish procedures matter and briefs from the requestor, the governmental body, and any other interested person. The attorn render a decision requested ey general shall promptly under this subsection, determining whether the redacted or with held information was excepted from required disclosu re to the requestor, not later than the 45th business day after the date the attorney general recei ved the request for a decision under this subsection. The attorney ge neral shall issue a written decision on the matter and provide a copy of the decision to the requestor, the governme ntal body, and any interested person who submitted necessary information or a brie f to the attorney general about the matter. The requestor or the governmental body may appeal a decision of the attorney ge to a Travis County district neral under this subsection court. (e) redacts or withholds information under Subsection (c) A governmental body that shall provide the followi on a form prescribed by the ng information to the requestor attorney general: (1) a description of the redacted or withheld information; (2) a citation to this section; and (3) instructions regarding how the requestor may seek a decision from the attorney general regarding whether the redacted or withheld information is excepted from required disclosure. A governmental body that raises section 552.136 must demonstrate how the “access device number” it seeks to withhold is used alone or in combinat ion to obtain money, goods, services, or another has interpreted this exception to thing of value or initiate a transfer of funds. The attorney general include bank account and routing nu mbers, full and partial credit ca rd numbers and their expiration 725 dates, and insurance policy numbers. Because section 552.136 protects privacy interests, a governmental body may not invoke this exception to withhold an ac cess device from the person to 726 whom the device belongs or that person’s authorized representative. Pursuant to section 552.136(c), a governmental body may redact without the necessity of requesting an attorney general decision information that is s ubject to section 552.136. If a governmental body chooses to redact this information without requestin g an attorney general decision, it must notify the form created by the attorney general. The notice requestor as prescribed by section 552.136(e) on the must include instructions regarding how the requesto general’s review of the r may seek an attorney 725 Open Records Decision No. 684 at 9 (2009). 726 Gov’t Code § 552.023. see Open Records Decision No. 684 at 12 (2009); 2018 Public Information Act Handbook • Office of the Attorney General 154

171 Exceptions to Disclosure governmental body’s redactions. Th e form for notifying the requestor is located on the attorney general’s website. The legislation enacting this provision authorized the attorney general to promulgate rules establishing procedures for re view under section 552.136( d). These rules were 727 promulgated in subchapter B of chapter 63 of title 1 of the Texas Administrative Code. These rt Four of this l’s website and in Pa rules are available on the attorney genera . Handbook QQ. Section 552.137: Confidentiality of Certain E-mail Addresses Section 552.137 of the Governme nt Code provides as follows: n, an e-mail address of a member of the Except as otherwise provided by this sectio (a) public that is provided for the purpose of communicating electronically with a governmental body is confidential and not su bject to disclosure under this chapter. (b) Confidential information described by this section that relates to a member of the public may be disclosed if the member of ely consents to its the public affirmativ release. y to an e-mail address: Subsection (a) does not appl (c) (1) provided to a governmental body by a person who has a contractual relationship with the governmental body or by the contractor’s agent; (2) provided to a governmental body by a vendor who seeks to contract with the governmental body or by the vendor’s agent; (3) contained in a response to a request for bids or proposals, contained in a response to similar invitations solic iting offers or information relating to a potential contract, or provided to a governmental bo dy in the course of negotiating the terms of a contract or potential contract; (4) provided to a governmental body on a letterhead, cover sheet, printed document, or other document made a vailable to the public; or (5) provided to a governmental body for the purpose of provid ing public comment on or receiving notices relat ed to an application for a license as defined by receiving orders or decisions from a Section 2001.003(2) of this code, or governmental body. Subsection (a) does not prevent a governme (d) ntal body from disclosing an e-mail address for any reason to another govern mental body or to a federal agency. In addition to the exceptions found in amen ded section 552.137(c), the attorney general has a government employee’s work e-mail address or determined that section 552.137 does not protect 728 Further, this section does not apply to the an institutional e-mail addr ess or website address. 727 1 T.A.C. §§ 63.11–.16 See 728 Open Records Decision No. 684 at 10 (2009). 2018 Public Information Act Handbook • Office of the Attorney General 155

172 Exceptions to Disclosure private e-mail addresses of govern ment officials who use their private e-mail addresses to conduct 729 official government business. Because a person may of his or her e-mail consent to the disclosure 730 address under the statute, the person has a right to his or her own e-mail address. The attorney , a previous determination to all governmental general issued Open Records Decision No. 684 (2009) ld an e-mail address of a memb bodies authorizing them to withho er of the public without the 731 necessity of requesting an attorney general decision. Family Violence Shelter Center, RR. Section 552.138: Confidentiality of Victims of Trafficking Shelter Cente r, and Sexual Assault Program Information Section 552.138 of the Governme nt Code provides as follows: In this section: (a) center” has the meaning as signed by Section 51.002, (1) “Family violence shelter Human Resources Code. by Section 420.003. ” has the meaning assigned (2) “Sexual assault program g shelter center” means: (3) “Victims of traffickin (A) a program that: (i) is operated by a public or pr ivate nonprofit organization; and and nonresidential services to persons (ii) provides comprehensive residential who are victims of tra 20A.02, Penal Code; or fficking under Section (B) a child-placing agency, as define d by Section 42.002, Human Resources s who are victims of trafficking under Code, that provides services to person Section 20A.02, Penal Code. ce shelter center, victims of trafficking (b) Information maintained by a family violen shelter center, or sexual assault program is excepted from the requirements of Section 552.021 if it is information that relates to: (1) the home address, cial security number of an home telephone number, or so of a family violence shelter center, victims of employee or a volunteer worker trafficking shelter center, or sexual assault program, regardless of whether the s with Section 552.024; employee or worker complie 729 , 490 S.W.3d 240 (Tex. App.—Austin 2016, no pet.). Austin Bulldog v. Leffingwell 730 Open Records Decision No. 684 at 10 (2009). 731 Open Records Decision No. 684 at 10 (2009). 2018 Public Information Act Handbook • Office of the Attorney General 156

173 Exceptions to Disclosure (2) the location or physical la yout of a family violence shelter center or victims of trafficking shelter center; one number, or numeric identifier of a (3) the name, home address, home teleph current or former client of a family violence shelter center, victims of trafficking shelter center, or sexual assault program; unseling and sheltering, to a current or (4) the provision of services, including co former client of a family violence shelte r center, victims of trafficking shelter center, or sexual assault program; one number of a private donor to a family (5) the name, home address, or home teleph violence shelter center, victims of trafficking shelter center, or sexual assault program; or e number of a member of the board of (6) the home address or home telephon directors or the board of trus tees of a family violence shelter center, victims of trafficking shelter center, or sexual assault program, regardless of whether the board member complies with Section 552.024. (c) A governmental body may redact information maintained by a family violence shelter center, victims of trafficking shelter center, or sexual assault program that may be ) or (6) from any informat withheld under Subsection (b)(1 ion the governmental body discloses under Section 552.021 without the necessity of requesting a decision from under Subchapter G. the attorney general body redacts or withholds information If, under Subsection (c), a governmental (d) e attorney general about whether the without requesting a decision from th information may be redacted or withheld, the requestor is entitled to seek a decision The attorney gene from the attorney general about the matter. ral by rule shall establish procedures and deadlines for receiving inform ation necessary to decide the matter and briefs from the requestor, the governmental body, and any other interested person. The attorn ey general shall promptly render a decision requested held information was under this subsection, determining whether the redacted or with later than the 45th business re to the requestor, not excepted from required disclosu ved the request for a day after the date the attorney general recei decision under this neral shall issue a written decision on the matter and subsection. The attorney ge requestor, the governm provide a copy of the decision to the ental body, and any interested person who submitted necessary information or a brie f to the attorney general about the matter. The requestor or the governmental body may appeal a to a Travis County district neral under this subsection decision of the attorney ge court. (e) A governmental body that redacts or withholds information under Subsection (c) shall provide the followi on a form prescribed by the ng information to the requestor attorney general: (1) a description of the redacted or withheld information; 2018 Public Information Act Handbook • Office of the Attorney General 157

174 Exceptions to Disclosure (2) a citation to this section; and (3) instructions regarding how the requestor may seek a decision from the attorney general regarding whether the redacted or withheld information is excepted from required disclosure. Thus, section 552.138 allows a governmental body to redact the following information maintained by a family violence shelter center, victims of trafficking shelter center, or sexual assault program neral decision: the home address, home telephone without the necessity of requesting an attorney ge of an employee or volunteer work er. Section 552.138 also allows number, or social security number the redaction of the home address or telephone number of a member of the boa rd of directors or the board of trustees without the necess ity of requesting an attorney gene ral decision. If a governmental body chooses to redact this information without requesting an attorney general decision, it must notify the requestor as prescribed section 552.138(e) on the form cr eated by the attorney general. The notice must include instructions regarding how the requestor may seek an attorney general’s review of the governmental body’s re dactions. The form for notifyi ng the requestor is published on the attorney general’s website. The legislation enacting these provisions authorized the attorney general to promulgate rules establishing procedures for review under section 552.138(d). These 732 rt Four of this l’s website and in Pa rules are available on the attorney genera . Handbook SS. Section 552.139: Confidentiality of Government Information Related to Security or Infrastr ucture Issues for Computers The 85th Legislature amended Sec tion 552.139 of the Government Code to provide as follows: (a) Information is excepted from the requirements of Section 552.021 if it is information that relates to computer network securit y, to restricted information under Section or defense of a computer network. 2059.055, or to the design, operation, (b) ion is confidential: The following informat (1) a computer networ k vulnerability report; (2) any other assessment of the extent to which data processing operations, a em, or system interface, or software computer, a computer program, network, syst of a governmental body or of a contractor of a governmental body is vulnerable to unauthorized access or harm, including an assessmen t of the extent to which the governmental body’s or contractor’s electronically stored information containing sensitive or critical informatio n is vulnerable to alteration, damage, erasure, or inappropriate use; (3) a photocopy or other copy of an identification badge issued to an official or employee of a governmental body; and 732 1 T.A.C. §§ 63.11–.16. See 2018 Public Information Act Handbook • Office of the Attorney General 158

175 Exceptions to Disclosure (4) information directly arising from a governmental body’s routine efforts to prevent, detect, investigate, or mitigate a computer security incident, including 733 information contained in or derived from an information security log. (b-1) Subsection (b)(4) does not affect the notification require ments related to a breach of 734 system security as defined by Sect ion 521.053, Business & Commerce Code. (c) Notwithstanding the confidential nature of the information described in this section, the information may be disclosed to a bidder if the governmental body determines that providing the information is necessary for the bidder to provide an accurate bid. A disclosure under this subsection is not a voluntary disclosure for purposes of Section 552.007. Text of (d), as ad ded by Acts 2017, 85th Leg., ch. 683 (H.B. 8), § 4 website as required by Section 2261.253, a (d) When posting a contract on an Internet nfidential by this section or excepted state agency shall redact information made co is section. Redaction under this subsection does not from public disclosure by th except information from the requi rements of Section 552.021. (H.B. 1861), § 1 7, 85th Leg., ch. 683 Text of (d), as added by Acts 201 ct posted on the agenc y’s Internet website (d) A state agency shall redact from a contra under Section 2261.253 information that is made confidential by, or excepted from required public disclosure under, this sectio n. The redaction of information under rmation from the requirements of Section this subsection does not exempt the info 552.021 or 552.221. There are no cases or formal opini ons interpreting th is exception. TT. Section 552.140: Confidentialit y of Military Discharge Records nt Code provides as follows: Section 552.140 of the Governme Defense Form DD-214 teran’s Department of (a) This section applies only to a military ve otherwise first or other military discha rge record that is first recorded with or that body on or after September 1, 2003. comes into the possession of a governmental recorded with or llowing the date it is (b) The record is confidential for the 75 years fo a governmental body. During that period otherwise first comes into the possession of the governmental body may permit inspectio n or copying of the record or disclose information contained in the record only in a ccordance with this section or in accordance with a court order. 733 Gov’t Code § 552.139(b). 734 Gov’t Code § 552.139(b-1). 2018 Public Information Act Handbook • Office of the Attorney General 159

176 Exceptions to Disclosure (c) On request and the presentation of proper identification, the following persons may inspect the military discharge record or obta in from the governmental body free of charge a copy or certifie d copy of the record: (1) the veteran who is the subject of the record; (2) the legal guardian of the veteran; there is no liv or parent of the veteran or, if (3) the spouse or a child ing spouse, child, g relative of the veteran; or parent, the nearest livin (4) the personal representative of the estate of the veteran; (5) the person named by the veteran, or by a person described by Subdivision (2), (3), accordance with ttorney executed in or (4), in an appropriate power of a Subchapters A and B, Chap ter 752, Estates Code; (6) another governmental body; or (7) an authorized representati ve of the funeral home that assists with the burial of the veteran. A court that orders the release of informatio all limit the further n under this section sh (d) the information may be used. n and the purposes for which disclosure of the informatio (e) A governmental body that obtains information fr om the record shall limit the governmental body’s use and disclosure of the information to the purpose for which the information was obtained. In Open Records Decision No. 684 (2009), the attorney general issu ed a previous determination to hold, a Form DD-214 or other military discharge all governmental bodies authorizing them to with or that otherwise first comes into record that is first recorded with the possession of the governmental under section 552.140 of the G body on or after September 1, 2003, overnment Code, without the 735 necessity of requesting an attorney general decision. UU. Section 552.141: Confidentiality of Information in Application for Marriage License nt Code provides as follows: Section 552.141 of the Governme (a) Information that relates to the social secu rity number of an individual that is maintained by a county clerk and that is on an application for a marriage license, an absent applicant and the including information in an application on behalf of ubmitted with an application ant, or is on a document s affidavit of an absent applic ay not be disclosed by the county clerk to for a marriage license is confidential and m the public under this chapter. 735 Open Records Decision No. 684 at 11 (2009). 2018 Public Information Act Handbook • Office of the Attorney General 160

177 Exceptions to Disclosure If the county clerk receives a request to make information in a marriage license (b) application available under this chapter, the county clerk shall redact the portion of the application that contains an individual ’s social security number and release the remainder of the informatio n in the application. se that is filed on or after application for a marriage licen This exception applies only to an 736 September 1, 2003. There are no cases or formal opinions interpreting this exception. VV. Section 552.142: Confidentialit y of Records Subject to Order of Nondisclosure nt Code provides as follows: Section 552.142 of the Governme (a) Information is excepted from the requirements of Sect ion 552.021 if an order of nondisclosure of criminal history record in formation with respect to the information has been issued under S ubchapter E-1, Chapter 411. of information that is exce pted from the requirements of (b) A person who is the subject ny the occurrence of the criminal Section 552.021 under this section may de proceeding to which the in ception of the information formation relates and the ex under this section, unless the information is being us ed against the person in a subsequent criminal proceeding. There are no cases or formal opini ons interpreting th is exception. WW. Section 552.1425: Civil Penalty: Dissemination of Certain Criminal History Information Section 552.1425 of th e Government Code provides as follows: on criminal history (a) A private entity that compiles and disse minates for compensati sseminate information with respect to record information may not compile or di which the entity has received notice that: (1) an order of expunction has been issu ed under Article 55.0 2, Code of Criminal Procedure; or (2) an order of nondisclosure of criminal hi ion has been issued story record informat under Subchapter E-1, Chapter 411. ty for a first violation of (b) A district court may issu e a warning to a private enti a warning for the first violation, the private entity is Subsection (a). After receiving bsequent violation. exceed $1,000 for each su liable to the state for a civil penalty not to 736 See Act of May 21, 2003, 78th Leg., R.S., ch. 804, § 2, 2003 Tex. Gen. Laws 2356. 2018 Public Information Act Handbook • Office of the Attorney General 161

178 Exceptions to Disclosure osecuting attorney may sue to collect a civil (c) The attorney general or an appropriate pr penalty under this section. (d) A civil penalty collected unde r this section shall be deposi ted in the state treasury to the credit of the general revenue fund. nions interpretin g this section. There are no cases or formal opi XX. Section 552.143: Confidentiality of Certain Investment Information Section 552.143 of the Governme nt Code provides as follows: (a) All information prepared or provided by a private investment fund and held by a Section 552.0225(b) is governmental body that is not listed in confidential and excepted from the requiremen ts of Section 552.021. licly released, pre-investment and post- (b) Unless the information has been pub yses, prepared or investment diligence information, includ ing reviews and anal ivate investment fund is confidential and maintained by a governmental body or a pr excepted from the requirements of Section 552.02 1, except to the extent it is subject to disclosure under Subsection (c). body’s direct purchase, holding, or (c) All information regarding a governmental disposal of restricted securities that is no t listed in Section 552.02 25(b)(2)–(9), (11), or om the requirements of Section 552.021. This (13)–(16) is confidential and excepted fr subsection does not apply to a governmental body’s purchase, holding, or disposal of restricted securities for the purpose of rei nvestment nor does it apply to a private bsection applies to securities. This su investment fund’s investment in restricted purchase, holding, or disposal of restricted securities information regarding a direct e XVI, Texas Constitution, by the Texas growth fund, crea ted under Section 70, Articl that is not listed in Section 552.0225(b). (d) For the purposes of this chapter: (1) “Private investment fund” a governmental body, that means an entity, other than tal body to evidence issues restricted securities to a governmen the investment of public funds for the purpose of reinvestment. person that makes or will make other (2) “Reinvestment” means investment in a investments. ing assigned by 17 C.F.R. Section (3) “Restricted securities” has the mean 230.144(a)(3). 1st C.S., ch. 4 (S.B. 1), § 17.05(1) (e) Repealed by Acts 2011, 82nd Leg., (f) This section does not apply to the Texas Mutual Insurance Company or a successor to the company. 2018 Public Information Act Handbook • Office of the Attorney General 162

179 Exceptions to Disclosure exception. Sectio nions interpreting this There are no cases or formal opi n 552.0225 makes public certain investment information. The attorney general has determined in an informal letter ruling that 737 section 552.143 is subject to the public di sclosure requirements of section 552.0225. YY. Section 552.144: Working Pap ers and Electronic Communications of Administrative Law Judges at State Office of Administrative Hearings nt Code provides as follows: Section 552.144 of the Governme communications of an The following working papers and electronic administrative law judge at the State Office of Administrative Hearings are excepted from the requirements of Section 552.021: (1) notes and electronic communications recordin g the observations, thoughts, questions, an administrative law judge; deliberations, or impressions of (2) drafts of a proposal for decision; in connection with conducting contested case hearings; and (3) drafts of orders made th conducting alternative dispute resolution (4) drafts of orders made in connection wi procedures. There are no cases or formal opini ons interpreting th is exception. ZZ. Section 552.145: Confidentiality of Texas No-Call List Section 552.145 of the Governme nt Code provides as follows: The Texas no-call list created under Subchapter B, Chapter 304, Business & Commerce ministrator of the national Code, and any information provid ed to or received from the ad do-not-call registry maintained by the Un nt, as provided by ited States governme Sections 304.051 and 304.56, Business & Commerce Code, are excepted from the requirements of Section 552.021. Section 552.145 applies specifically to the no-call lis t and information provided to or removed from 738 the administrator of the do-not-call registry. There are no cases or formal opini ons interpreting th is exception. 737 Open Records Letter No. 2005-6095 (2005). 738 See , Open Records Letter Nos. 2009-10649 (2009), 2009-07316 (2009). e.g. , 2018 Public Information Act Handbook • Office of the Attorney General 163

180 Exceptions to Disclosure mmunications with Assistant or AAA. Section 552.146: Certain Co Employee of Legislative Budget Board Section 552.146 of the Governme nt Code provides as follows: e recorded communications, including conversations, (a) All written or otherwis correspondence, and electronic communications, between a member of the legislature or the lieutenant governor and an assistan Legislative Budget t or employee of the Board are excepted from the re quirements of Section 552.021. cation between a member of the legislature or the (b) Memoranda of a communi ive Budget Board are lieutenant governor and an assistant or em ployee of the Legislat excepted from the requirements of Section 552.021 without regard to the method used to store or maintain the memoranda. d disclosure a record or memoranda of a (c) This section does not except from require ng an open meeting or public hearing communication that occurs in public duri ative Budget Board. conducted by the Legisl There are no cases or formal opini is exception. ons interpreting th BBB. Section 552.147: Social Security Numbers nt Code provides as follows: Section 552.147 of the Governme (a) Except as provided by Subsection (a-1), th e social security number of a living person confidential under is excepted from the requirements of Sectio n 552.021, but is not this section and this sectio n does not make the social security number of a living person confidential under another provi sion of this chapter or other law. strict in the custody of the (a-1) The social security number of an employee of a school di district is confidential. al security number of a living person from (b) A governmental body may redact the soci any information the governmental body di scloses under Sectio n 552.021 without the necessity of requesting a decision from th e attorney general under Subchapter G. (c) Notwithstanding any other law, a county or district clerk may disclose in the ordinary course of business a social security number that is contained in information held by the clerk’s office, and that disclosure is not official misconduct and does not subject the clerk to civil or criminal liability of any kind under the law of th is state, including any claim for damages in a lawsuit or the criminal penalty imposed by Section 552.352. (d) Unless another law requires a social se curity number to be maintained in a om an individual or the individual’s government document, on written request fr redact within a reasonable amount of time all but the representative the clerk shall social security number from information last four digits of the individual’s 2018 Public Information Act Handbook • Office of the Attorney General 164

181 Exceptions to Disclosure maintained in the clerk’s official public records, including electronically stored under the control of the clerk. The individual or the information maintained by or individual’s representative must identify, using a form provided by the clerk, the specific document or document s from which the partial social security number shall be redacted. ons interpreting this ex There are no cases or formal opini attorney general has ception. However, the ection 552.147(a-1) makes confidential the social determined in an informal letter ruling that S 739 security numbers of both current and former school district employees. CCC. Section 552.148: Confidentiality of Certain Personal Information Maintained by Municipality Pertaining to a Minor Section 552.148 of the Governme nt Code provides as follows: person younger than 18 years of age. (a) In this section, “minor” means a (b) The following information maintained by a municipality for purposes related to the a recreational program or activity is excepted from the participation by a minor in requirements of Section 552.021: (1) the name, age, home address, home tele phone number, or social security number of the minor; (2) a photograph of the minor; and (3) the name of the minor’s parent or legal guardian. There are no cases or formal opini ons interpreting th is exception. DDD. Section 552.149: Confidentialit y of Records of Comptroller or Appraisal District Received from Private Entity nt Code provides as follows: Section 552.149 of the Governme (a) Information relating to real property sales prices, descriptions, characteristics, and ivate entity by the other related information received from a pr comptroller or the nder Chapter 6, Tax Code, is excepted from chief appraiser of an appraisal district u the requirements of Section 552.021. erty owner or the owner’s agent may, on (b) Notwithstanding Subsection (a), the prop e applicable appraisal district a copy of request, obtain from the chief appraiser of th each item of information de ), Tax Code, and a copy of scribed by Section 41.461(a)(2 each item of information that the chief appr aiser took into consideration but does not plan to introduce at the hearing on the prot est. In addition, the property owner or 739 Open Records Letter No. 2013-18655 at 6 (2013). 2018 Public Information Act Handbook • Office of the Attorney General 165

182 Exceptions to Disclosure agent may, on request, obtain from the chie f appraiser comparable sales data from a reasonable number of sales that is relevant determined by the to any matter to be appraisal review board at the hearing on the property owner’s protest. Information obtained under this subsection: (1) remains confidential in the possessio n of the property owner or agent; and (2) may not be disclosed or used for any pu rpose except as evidence or argument at the hearing on the protest. (c) Notwithstanding Subsection (a) or Section 403.304, so as to assi st a property owner 303, the property owner, or an appraisal district in a protest f iled under Section 403. the district, or an agent of the property own er or district may, on request, obtain from the comptroller any information, including co nfidential information, obtained by the comptroller in connection with the comptroller’s finding th at is being protested. ed by a property owner, an appraisal district, or an Confidential information obtain agent of the property owner or district under this subsection: on of the property owner, district, or (1) remains confidential in the possessi agent; and (2) may not be disclose ized to receive or inspect the d to a person who is not author information. (d) Notwithstanding Subsection (a) or Section 403 .304, so as to assist a school district in the preparation of a protest filed or to be filed under Section 403.303, the school hool district may, on request, obtain from the comptroller district or an agent of the sc or the appraisal district any informatio n, including confiden tial information, obtained by the comptroller or the appraisal district that relates to the appraisal of property involved in the comptroller’s finding that is being protes ted. Confidential information obtained by a school district or an agent of the school district under this subsection: ct or agent; and of the school distri (1) remains confidential in the possession (2) may not be disclose d to a person who is not author ized to receive or inspect the information. (e) This section applies to information descri (c), and (d) and to bed by Subsections (a), an item of information or comparable sales data described by Subsection (b) only if comparable sales da ta relates to real the information, item of information, or aving a population of property that is located in a county h more than 50,000. In v. Integrity Title Co., LLC Harris County Appraisal Dist. , the First Court of Appeals addressed, rmation provided to a governmental body by a private in relevant part, whether otherwise public info 2018 Public Information Act Handbook • Office of the Attorney General 166

183 Exceptions to Disclosure 740 The Harris County Appraisal District losure under section 552.149. entity is excepted from disc sought to withhold deed document numbers and filing dates receive d from a private entity under section 552.149; however, the private entity had ob tained this information from the Harris County 741 Clerk. The court found section 5 52.149 protects privately-genera ted information sold to a herwise publicly available and concluded section 552.149 did not governmental body that is not ot except from disclosure the otherw ise public information the private entity received from the Harris 742 County Clerk. EEE. Section 552.150: Confidentiality of Information That Could Employee of Hospital District Compromise Safety of Officer or nt Code provides as follows: Section 552.150 of the Governme an employee or officer strict that relates to (a) Information in the custody of a hospital di om the requirements of Section 552.021 if: of the hospital district is excepted fr der the specific circumstances pertaining to (1) it is information that, if disclosed un the safety of the ected to compromise the individual, could reasonably be exp individual, such as information that de scribes or depicts the likeness of the individual, information stating the times th at the individual arrives at or departs al’s automobile, or the location where from work, a description of the individu the individual works or parks; and (2) the employee or officer applies in writ ing to the hospital district’s officer for public disclosure public information to have the informat ion withheld from under this section and incl udes in the application: (A) a description of the information; and (B) the specific circumstances pertaining to the individual that demonstrate why onably be expected to compromise disclosure of the information could reas the safety of the individual. (b) On receiving a written reque st for information described in an application submitted for public information shall: under Subsection (a)(2), the officer (1) request a decision from the attorney ge with Section 552.301 neral in accordance regarding withholding the information; and (2) include a copy of the a pplication submitted under Subsection (a)(2) with the request for the decision. 740 Harris County Appraisal Dist. v. Integrity Title Co., LLC , 483 S.W.3d 62, 71 (Tex. App.—Houston [1st Dist.] 2015, pet. denied). 741 Harris County Appraisal Dist. v. Integrity Title Co., LLC , 483 S.W.3d 62, 70 (Tex. App.—Houston [1st Dist.] 2015, pet. denied). 742 Harris County Appraisal Dist. v. Integrity Title Co., LLC , 483 S.W.3d 62, 71 (Tex. App.—Houston [1st Dist.] 2015, pet. denied). 2018 Public Information Act Handbook • Office of the Attorney General 167

184 Exceptions to Disclosure nd Leg., ch. 609 (c) Repealed by Acts 2011, 82 (S.B. 470), § 1. There are no cases or formal opinions interpreting this exception. In an informal letter ruling, the Section 552.150 does not apply to former employees of a hospital attorney general has determined 743 district. FFF. Section 552. 151: Confidentiality of Information Regarding Select Agents nt Code provides as follows: Section 552.151 of the Governme (a) The following information that pertains to a biological agent or toxin identified or listed as a select agent under federal law, including under the Pub lic Health Security 02 (Pub. L. No. 107-188) and Bioterrorism Preparedness and Response Act of 20 e requirements of and regulations adopted under that Act, is excepted from th Section 552.021: (1) the specific location of a select approved facility; agent within an (2) personal identifying information of an individual whose name appears in documentation relating to the chain of custody of select agents, including a materials transfer agreement; and dual authorized to possess, us (3) the identity of an indivi e, or access a select agent. of the select agents present t from disclosure the identity (b) This section does not excep at a facility. of an individual faculty t from disclosure the identity (c) This section does not excep blished research. will appear on pu member or employee whose name appears or (d) This section does not except from disclosu re otherwise public information relating to contracts of a governmental body. Texas and is authorized to possess, use, or (e) If a resident of another state is present in ch or other work at a Texas facility, access a select agent in conducting resear information relating to the iden tity of that individual is subject to disclosure under this chapter only to the extent the information would be subject to disclosure under the laws of the state of whic h the person is a resident. There are no cases or formal opini is exception. ons interpreting th 743 Open Records Letter No. 2014-15073A at 8 (2014). 2018 Public Information Act Handbook • Office of the Attorney General 168

185 Exceptions to Disclosure GGG. Section 552.152: Confidentiality of Information Concerning Public Employee or Officer Personal Safety Section 552.152 of the Governme nt Code provides as follows: Information in the custody of a governmental body that relates to an employee or officer of the governmental body is excepted from the requirements of Se ction 552.021 if, under the specific circumstances pertaining to th e employee or officer, disclosure of the ployee or officer to a substantial threat of physical harm. information would subject the em In an informal letter ruling, the attorney general considered a request to the Texas Department of Public Safety for information pertaining to travel expenses incurred by the Governor’s security 744 detail. claimed section 552.152 of the Government Code The Texas Department of Public Safety agents of the excepted from disclosure travel tion submitted by vouchers and supporting documenta 745 Executive Protection Bureau for reim bursement of travel expenses. Relying on representations the Texas Department of Public Safety made ab out protecting the Governor and his family from lease of the travel vouchers and supporting physical harm, the attorney general concluded re ntial threat of physical harm, rnor and the agents to a substa documentation would subject the Gove 746 and therefore, the information must be with under section 552.152. held from disclosure HHH. Section 552.153: Proprietary R ecords and Trade Secrets Involved in Certain Partnerships Section 552.153 of the Governme nt Code provides as follows: (a) In this section, “affected jurisdiction ,” “comprehensive agreement,” “contracting person,” “interim agreement,” “qualifying project,” and “responsible governmental entity” have the meanings assigned those terms by Section 2267.001. that relates to a (b) Information in the custody of a responsib le governmental entity proposal for a qualifying project authoriz ed under Chapter 2267 is excepted from the requirements of Section 552.021 if: a, staff evaluations, or other records (1) the information consists of memorand prepared by the responsible aff, outside advisors, or governmental entity, its st consultants exclusively for the evaluati on and negotiation of proposals filed under Chapter 2267 for which: of an interim or (A) disclosure to the public before or after the execution affect the financial interest or comprehensive agreement would adversely bargaining position of the respo nsible governmental entity; and 744 Open Records Letter No. 2014-02048 (2014). 745 Open Records Letter No. 2014-02048 at 1 (2014). 746 Open Records Letter No. 2014-02048 at 3-4 (2014). 2018 Public Information Act Handbook • Office of the Attorney General 169

186 Exceptions to Disclosure nder Paragraph (A) is documented in (B) the basis for the determination u writing by the responsible governmental entity; or rnmental entity or to a responsible gove (2) the records are provided by a proposer Chapter 2267 and contain: affected jurisdiction under trade secrets of the proposer; (A) (B) financial records of the proposer, including balance sheets and financial statements, that are not generally available to the public through regulatory disclosure or other means; or ive bid or proposal submitted by the (C) work product related to a competit proposer that, if made public befo re the execution of an interim or comprehensive agreement, would provide a competing proposer an unjust advantage or adversely affect the financ ial interest or bargaining position of the responsible governmenta l entity or the proposer. (c) Except as specifically provided by Subsectio es not authorize the n (b), this section do withholding of information concerning: (1) the terms of any interim or comprehensi ve agreement, service contract, lease, nd entered into by the responsible partnership, or agreement of any ki person or the terms of any financing governmental entity and the contracting e of any public money; or arrangement that involves the us ping or operating a qualifying project (2) the performance of any person develo under Chapter 2267. (d) In this section, “proposer” has th e meaning assigned by Section 2267.001. ons interpreting th There are no cases or formal opini is exception. licant for Executive Director, Chief III. Section 552.154: Name of App Investment Officer, or Chief Audit Executive of Teacher Retirement System of Texas Section 552.154 of the Governme nt Code provides as follows: t for the position of executive dire ctor, chief investment officer, or The name of an applican chief audit executive of the Teacher Retirement System of Texas is excepted from the except that the board of trustees of the Teacher requirements of Section 552.021, notice of the names of three finalists being Retirement System of Texas must give public considered for one of those positions at least 21 the meeting at which days before the date of the final action or vote is to be take n on choosing a finalist for employment. ons interpreting th There are no cases or formal opini is exception. 2018 Public Information Act Handbook • Office of the Attorney General 170

187 Exceptions to Disclosure of Certain Property Tax Appraisal JJJ. Section 552.155: Confidentiality Photographs Section 552.155 of the Governme nt Code provides as follows: is taken by the chief (a) Except as provided by Subsection (b) or (c), a photograph that appraiser of an appraisal district or the chief appraiser’s authorized representative shows the interior of an improvement for property tax appraisal purposes and that to property is confidential and excepted from the requirements of Section 552.021. (b) A governmental body shall disclose a photograph described by Subsection (a) to a the improvement to property shown in requestor who had an ownership interest in the photograph on the date the photograph was taken. may be used as evidence in and provided (c) A photograph described by Subsection (a) ter 41, Tax Code, or an appeal of a to the parties to a protest under Chap x Code, if it is determination by the appraisal review boar d under Chapter 42, Ta relevant to the determination of a matter pr otested or appealed. A photograph that is used as evidence: the person to whom it is disclosed; and (1) remains confidential in the possession of (2) may not be disclosed or used for any other purpose. ograph described by Subsection (a) may be (c-1) Notwithstanding any other law, a phot used to ascertain the location of equipmen t used to produce or transmit oil and gas for purposes of taxation if that equipmen t is located on Januar y 1 in the appraisal uipment for the preceding 365 consecutive district that appraises property for the eq days. There are no cases or formal opini ons interpreting th is exception. KKK. Section 552.156: Confidentiality of Continuity of Operations Plan Section 552.156 of the Governme nt Code provides as follows: ion, the following info rmation is excepted (a) Except as otherwise provided by this sect from disclosure under this chapter: (1) a continuity of operations plan de veloped under Sectio n 412.054, Labor Code; and ed as part of the sembled, or maintain (2) all records written, produced, collected, as of operations plan developed under development or review of a continuity Section 412.054, Labor Code. (b) Forms, standards, and other instructiona l, informational, or planning materials adopted by the office to provide guidance or assistance to a state agency in developing 2018 Public Information Act Handbook • Office of the Attorney General 171

188 Exceptions to Disclosure 4, Labor Code, are public er Section 412.05 a continuity of operations plan und information subject to disclosure under this chapter. (c) A governmental body may disc ation that is confidential lose or make available inform under this section to another govern mental body or a federal agency. another governmental body or a federal agency under this (d) Disclosing information to section does not waive or affect the confidentiality of that information. ons interpreting th is exception. There are no cases or formal opini of Personal Information Regarding LLL. Section 552.158: Confidentiality Applicant for Appointment by Governor slature and provides as follows: Section 552.158 of the Government Code was added by the 85th Legi nnection with an applicant for an The following information obtained by the governor or senate in co from the requirements of Section 552.021: appointment by the governor is excepted the applicant’s (1) home address; (2) telephone number; and the applicant’s home 747 (3) the applicant’s social security number. ons interpreting th There are no cases or formal opini is exception. 747 Gov’t Code § 552.158. 2018 Public Information Act Handbook • Office of the Attorney General 172

189 Text of the Texas Public Information Act UBLIC ART HREE : T EXT OF THE T EXAS P T I NFORMATION A CT P NFORMATION I G OVERNMENT C ODE C HAPTER 552. P UBLIC SUBCHAPTER A. GE NERAL PROVISIONS § 552.001. Policy; Construction (a) an constitutional form of representative Under the fundamental philosophy of the Americ government that adheres to the prin ciple that government is the se rvant and not the master of the ach person is entitled, unle ss otherwise expressly people, it is the policy of this state that e complete information about the affairs of government and the provided by law, at all times to official acts of public officials and employees. The people, in delegating authority, do not give to know and wh decide what is good for the people their public servants the right to at is not good for them to know. The pe ople insist on remaining informed so that they may retain control over liberally construed to of this chapter shall be the instruments they have created. The provisions implement this policy. (b) This chapter shall be liberally construed in favor of granting a reque st for information. aining Public Information lic Information; Media Cont § 552.002. Definition of Pub (a) In this chapter, “public information” mean s information that is written, produced, collected, assembled, or maintained under a law or ordinance or in conn ection with the transaction of official business: (1) by a governmental body; (2) for a governmental body and the governmental body: (A) owns the information; (B) has a right of access to the information; or (C) spends or contributes public money for the purpose of writing, producing, collecting, ng the information; or assembling, or maintaini overnmental body in the officer’s or employee’s (3) by an individual officer or employee of a g official capacity and the information pertains to official business of the governmental body. action of official busine ss if the information is (a-1) Information is in connection with the trans created by, transmitted to, received by, or ma intained by an officer or employee of the s official capacity, or a person or entity governmental body in the officer’s or employee’ performing official business or a governmental fu governmental body, and nction on behalf of a pertains to official business of the governmental body. 2018 Public Information Act Handbook • Office of the Attorney General 173

190 Text of the Texas Public Information Act Subsection (a) applies to and includes any formation” provided by (a-2) The definition of “public in electronic communication created, transmitted, recei ved, or maintained on any device if the communication is in connec tion with the transaction of official business. (b) The media on which public information is recorded include: (1) paper; (2) film; (3) a magnetic, optical, solid state, or other device that can store an electronic signal; (4) tape; (5) Mylar; and (6) any physical material on which informa tion may be recorded, including linen, silk, and vellum. public information exis t include a book, paper, (c) The general forms in which the media containing text message, instant message, other electronic letter, document, e-mail, Internet posting, communication, printout, photogr crofilm, photostat, sound aph, film, tape, microfiche, mi video representation held recording, map, and drawing and a voice, data, or in computer memory. § 552.003. Definitions In this chapter: (1) “Governmental body”: (A) means: (i) institution, agency, or office that is a board, commission, department, committee, legislative branch of state government and within or is created by the executive or elected or appointed members; that is directed by one or more (ii) a county commissioners court in the state; a municipal governing body in the state; (iii) or quasi-judicial power and that is (iv) a deliberative body that has rulemaking classified as a department, agency, or political subdivision of a county or municipality; a school district board of trustees; (v) (vi) a county board of school trustees; 2018 Public Information Act Handbook • Office of the Attorney General 174

191 Text of the Texas Public Information Act (vii) a county board of education; (viii) the governing board of a special district; (ix) the governing body of a nonprofit corporati on organized under Chapter 67, Water Code, that provides a water supply or wastew ater service, or both, and is exempt from ad valorem taxation unde r Section 11.30, Tax Code; d created under Section 2308.253; (x) a local workforce development boar (xi) a nonprofit corporation that is eligible to receive funds under the federal community services block grant program and that is authorized by this state to serve a geographic area of the state; and (xii) the part, section, or portion of an orga nization, corporation, commission, committee, institution, or agency that spends or that is supported in whole or in part by public funds; and does not include the judiciary. (B) (2) decoding of information with s of modifying, reordering, or “Manipulation” means the proces human intervention. (2-a) “Official business” means any matter over which a governmental body has any authority, administrative duties, or advisory duties. (3) “Processing” means the execution of a sequence of coded instru ctions by a computer producing a result. (4) “Programming” means the process of producing a sequence of code d instructions that can be executed by a computer. (5) “Public funds” means funds of subdivision of the state. the state or of a governmental (6) “Requestor” means a person who submits a requ est to a governmental body for inspection or copies of public information. § 552.0035. Access to Information of Judiciary (a) Access to information collected, a ssembled, or maintained by or for the judiciary is governed by rules adopted by the Supreme Court of Texas or by other applicable laws and rules. ether information is considered to be information collected, This section does not address wh (b) by or for the judiciary. assembled, or maintained 2018 Public Information Act Handbook • Office of the Attorney General 175

192 Text of the Texas Public Information Act § 552.0036. Certain Property Owners ’ Associations Subject to Law r as a governmental body: chapter in the same manne A property owners’ association is subject to this (1) if: tion is mandatory for ow ners or for a defined (A) membership in the property owners’ associa a defined geographic area in a county with a class of owners of private real property in population of 2.8 million or more or in a county adjacent to a county with a population of 2.8 million or more; er to make mandatory special assessments for (B) the property owners’ association has the pow capital improvements or mandatory regular assessments; and (C) the amount of the mandator y special or regular assessments is or has ever been based in ate or a local governmental body assesses the whole or in part on the value at which the st tion under Section 20, Article VIII, Texas property for purposes of ad valorem taxa Constitution; or (2) if the property owners’ association: (A) provides maintenance, preservation, and architectural control of residential and area in a county with commercial property within a defined geographic a population of 2.8 county with a population of 2.8 million or more; million or more or in a county adjacent to a and (B) is a corporation that: (i) is governed by a board of trustees who may employ a general manager to execute the association’s bylaws and administer the business of the corporation; in the corporation by the ow ners of the property within (ii) does not require membership the defined area; and before January 1, 2006. (iii) was incorporated § 552.0038. Public Retirement Systems Subject to Law retirement system” and “p ublic retirement system” (a) In this section, “governing body of a public have the meanings assigned th ose terms by Sec tion 802.001. (b) Except as provided by Subsections (c) through (i), the governing body of a public retirement e same manner as a governmental body. system is subject to this chapter in th (c) Records of individual members, annuitants, retirees, beneficiaries, alternate payees, program participants, or persons eligible for benefits from a retirement system under a retirement plan retirement system that are in the custody of the system or in or program administered by the rnmental agency, including the ng firm, a carrier, or another gove the custody of an administeri 2018 Public Information Act Handbook • Office of the Attorney General 176

193 Text of the Texas Public Information Act comptroller, acting in cooperation with or on behalf of the retirement system are confidential and not subject to public disclosure. The re tirement system, administering firm, carrier, or governmental agency is not required to accept or comply with a request for a record or information about a record or to seek an opinion from the attorney general because the records are exempt from the provisions of this chapter, except as otherwise provided by this section. (d) Records may be released to a member, annuitant, retiree, beneficiary, alternate payee, program participant, or person eligible t system or to an authorized for benefits from the retiremen presentative acting on behalf of the member, annuitant, retiree, attorney, family member, or re beneficiary, alternate payee, program particip ant, or person eligible for benefits. The retirement system may re lease the records to: (1) an administering firm, carrier, or agent or attorney acting on behalf of the retirement system; (2) another governmental entity having a legitima te need for the inform ation to perform the purposes of the retirement system; or (3) a party in response to a subpoena issued under applicable law. ed by the retirement sy (e) A record released or receiv tion may be transmitted stem under this sec ronic signature or certification in a form electronically, including through the use of an elect disclosure to, or unauthorized access by, . An unintentional acceptable to the retirement system a third party related to the transmission or recei pt of information under this section is not a lating to the protection cluding a law or rule re violation by the retirement system of any law, in of confidential information. (f) The records of an individual member, annuita nt, retiree, beneficiary, alternate payee, program r benefits from the re tirement system remain participant, or person eligible fo confidential after release to a person as authorized by this sectio n. The records may become part of the public record of an administrative or judicial proceed ing related to a conteste d case, and the member, annuitant, retiree, beneficiary, alternate payee, program participant, or person eligible for cal records, unless the records benefits waives the confidentiality of the records, including medi by a protective order issued under applicable law. are closed to public access (g) The retirement system may requ ire a person to provide the pers on’s social security number as the system considers necessary to ensure the pr oper administration of all services, benefits, ’s administration, oversight, or participation plans, and programs under the retirement system or as otherwise required by state or federal law. discretion in determining whether a record is subject to this (h) The retirement system has sole section. For purposes of this section, a reco rd includes any identifying information about a person, living or deceased, who is tiree, beneficiary, alternate or was a member, annuitant, re retirement system under payee, program participant, or person eligible for benefits from the any retirement plan or program administered by the retirement system. (i) To the extent of a conflic t between this section and any other law with respect to the on held by a public retirement system confidential informati or other entity described by 2018 Public Information Act Handbook • Office of the Attorney General 177

194 Text of the Texas Public Information Act Subsection (c) concerning an individual member, annuitant, retiree, beneficiary, alternate payee, program participant, or person eligible for benefits from the retirement system, the prevailing provision is the provision that pr ovides the greater substa ntive and procedural protection for the privacy of information concer ning that individual member, annuitant, retiree, beneficiary, alternate payee, program partic ipant, or person elig ible for benefits. § 552.004. Preservatio n of Information A governmental body or, for inform ation of an elective county office, the elected county officer, rmation that is not currently in ved, subject to use will be preser may determine a time for which info any applicable rule or law governing the destru ction and other disposition of state and local government records or public information. § 552.005. Effect of Chapter on Scope of Civil Discovery (a) vil discovery under the Texas Rules of Civil This chapter does not affect the scope of ci Procedure. (b) Exceptions from disclosure under this chapter do not create new privileges from discovery. § 552.0055. Subpoena Duces Te cum or Discovery Request at is issued in compli ance with a statute or a A subpoena duces tecum or a request for discovery th is not considered to be a request rule of civil or criminal procedure r this chapter. for information unde Chapter on Withholding Public Information § 552.006. Effect of This chapter does not authorize th e withholding of public informatio n or limit the availability of public information to the public, except as expressly provided by this chapter. § 552.007. Voluntary Disclosu re of Certain Information Wh en Disclosure Not Required (a) This chapter does not prohibit a governmental body or its officer for public information from voluntarily making part or all of its information available to the public, unless the disclosure is rmation is confidential under law. expressly prohibited by law or the info on (a) must be made available to any person. Public information made available under Subsecti (b) § 552.008. Information for Legislative Purposes on from individual members, (a) This chapter does not grant au thority to withhold informati agencies, or committees of the legislat ure to use for legislative purposes. (b) A governmental body on request by an indi vidual member, agency , or committee of the legislature shall provide public information, including confidential information, to the requesting member, agency, or co tion in accordance with this mmittee for inspection or duplica public information is mmittee states that the chapter if the requesting member, agency, or co requested under this chapter for legislative al body, by providing purposes. A government 2018 Public Information Act Handbook • Office of the Attorney General 178

195 Text of the Texas Public Information Act public information under this section that is co nfidential or otherwise excepted from required tiality of the information for disclosure under law, does no t waive or affect the confiden purposes of state or federal law or waive the right to assert excep tions to required disclosure of the information in the future . The governmental body may require the requesting individual ee, or the members or member of the legislature, the requesting legisl ative agency or committ ation that is received under who will view or handle inform employees of the requesting entity confidential under law to sign a confidentiality agreement that covers this section and that is the information and requires that: tity, or within the requesting (1) the information not be disc losed outside the requesting en entity for purposes other than th e purpose for which it was received; (2) the information be labeled as confidential; (3) the information be kept securely; or n from the information (4) the number of copies made of the inform ation or the notes take controlled, with all copies or nature of the information be that implicate the confidential the governmental body remaining confidential notes that are not destroyed or returned to and subject to the confidentiality agreement. (b-1) A member, committee, or agency of the le rnmental body to sign a gislature required by a gove y seek a decision as provided by Subsection confidentiality agreement under Subsection (b) ma (b-2) about whether the informat ion covered by the confidentia lity agreement is confidential nder Subsection (b) is void to the extent that under law. A confidentiality agreement signed u the agreement covers information that is finally dete rmined under Subsection (b-2) to not be confidential under law. seek a decision from the attorney (b-2) The member, committee, or agency of the legislature may rule shall establish pr The attorney general by general about the matter. ocedures and deadlines the matter and briefs from the requestor, the ry to decide for receiving information necessa governmental body, and any other interested person. The attorney general shall promptly render a decision requested under this subsection, determining whether the information covered by the confidentiality ag reement is confiden tial under law, not later than the 45th business day after the date the attorney genera l received the request for a decision under this ral shall issue a written decision on the matter and provide a subsection. The attorney gene copy of the decision to the requestor, the governmental body, and any interested person who submitted necessary information or a brief to the attorney ge neral about the matter. The dy may appeal a decision of th requestor or the governmental bo e attorney general under this subsection to a Travis County district court. A person may appeal a decision of the attorney Travis County district court if general under this subsection to a the person claims a proprietary on or a privacy interest in the information that interest in the information affected by the decisi a confidentiality law or judicial d ecision is designed to protect. 2018 Public Information Act Handbook • Office of the Attorney General 179

196 Text of the Texas Public Information Act This section does not affect: (c) (1) the right of an individual the legislature to obtain member, agency, or committee of cluding under the rules of al body under other law, in information from a government either house of the legislature; (2) the procedures under which the information is obtained under other law; or made of the information obtained under other law. (3) the use that may be § 552.009. Open Records Steering Committee: Advice to Atto rney General; Electronic Availability of Public Information of two representatives of the attorney The open records steering committee is composed (a) general’s office and: (1) a representative of each of the fo llowing, appointed by its governing entity: (A) the comptroller’s office; the Department of Public Safety; (B) the Department of Information Resources; and (C) (D) the Texas State Library a nd Archives Commission; (2) five public members, appoint ed by the attorney general; and (3) a representative of each of the following types of local governments, appointed by the attorney general: (A) a municipality; (B) a county; and (C) a school district. (b) neral is the presiding ated by the attorney ge The representative of the attorney general design committee shall meet as prescrib ed by committee pr ocedures or officer of the committee. The at the call of the presiding officer. (c) The committee shall advise the attorney general regarding the office of the attorney general’s performance of its duties under Sections 552.010, 552.205, 552.262, 552.269, and 552.274. (d) The members of the committee who represen t state governmental bodies and the public members of the committee shall periodically study and determine the types of public information for which it would be useful to the public or cost-effective for the government if n were made available by state go the type of informatio vernmental bodies by means of the 2018 Public Information Act Handbook • Office of the Attorney General 180

197 Text of the Texas Public Information Act Internet or another electronic format. The committee shall repo rt its findings and recommendations to the governor, th e presiding officer of each ho use of the legislature, and ittee of each house of the legislature. the budget committee and state affairs comm (e) Chapter 2110 does not apply to the size, compos ition, or duration of the committee. Chapter 2110 applies to the reimbursement of a public member’s expenses related to service on the of a member who represents a state or local committee. Any reimbursement of the expenses y from funds available to the state or local governmental governmental body may be paid onl body the member represents. § 552.010. State Governmental Bo dies: Fiscal and Other Information Relating to Making Information Accessible Each state governmental (a) body shall report to the attorney ge tion the attorney neral the informa general requires regarding: (1) the number and nature of requests for information the stat e governmental body processes under this chapter in the period covered by the report; and capital expenditures and (2) the cost to the state governmental body in that period in terms of personnel time of: (A) ation under this chapter; and responding to requests for inform (B) making information available to the public by means of the Internet or another electronic format. (b) The attorney general shall design and phase in the reporting requirem ents in a way that: (1) minimizes the reporting burden on state governmental bodies; and bodies to estimate the (2) allows the legislature and state governmental extent to which it is cost-effective for state government, and if possi h it is cost-effective ble the extent to whic or useful for members of the public, to make information available to the public by means of the Internet or another electronic format as a supplement or alternative to publicizing ng the information available only in response the information only in other ways or maki to requests made under this chapter. (c) The attorney general shall shar e the information reported unde r this section with the open records steering committee. § 552.011. Uniformity in uniformity in the applicati The attorney general shall mainta on, operation, and interpretation of this chapter. To perform this duty, the attorney general may prepare, distribute, and publish any materials, including detailed and co inions, that relate to or are mprehensive written decisions and op based on this chapter. 2018 Public Information Act Handbook • Office of the Attorney General 181

198 Text of the Texas Public Information Act § 552.012. Open Re cords Training (a) This section applies to an elected or appointed public official who is: (1) a member of a multimemb er governmental body; (2) the governing officer of a governmental body that is headed by a single officer rather than by a multimember governing body; or ithout regard to whether the ation of a governmental body, w (3) the officer for public inform officer is elected or appointed to a specific term. (b) Each public official shall complete a course of training of not less than one and not more than two hours regarding the responsibilities of the governmental body with which the official serves and its officers and employees under this chapter not later than the 90th day after the date the public official: (1) takes the oath of office, if the person is requi red to take an oath of office to assume the person’s duties as a public official; or (2) otherwise assumes the person’s duties as a pub lic official, if the person is not required to assume the person’s duties. take an oath of office to tor to satisfy the training a public information coordina A public official may designate (c) cial if the public information coordinator is requirements of this section for the public offi primarily responsible for administering th e responsibilities of the public official or governmental body under this ch apter. Designation of a public information coordinator under comply with any other this subsection does not relieve a public offici al from the duty to requirement of this chapter that applies to the public official . The designated public information coordinator shall complete the training co urse regarding the responsibilities of the governmental body with which the coordinator serves and of its officers and employees under e 90th day after the date the coordinator assumes the person’s this chapter not later than th duties as coordinator. ble. The office of the attorney that the training is made availa The attorney general shall ensure (d) acceptable course of training general may provide the traini ng and may also approve any offered by a governmental body or other entity. The attorney general shall ensure that at least one course of training approved or provided by the attorney general is available on videotape or a functionally simila r and widely available medium at no cost. The training must include instruction in: (1) the general background of the legal requireme nts for open records an d public information; (2) the applicability of this ch apter to governmental bodies; for information under lying with a request (3) procedures and requirements regarding comp this chapter; 2018 Public Information Act Handbook • Office of the Attorney General 182

199 Text of the Texas Public Information Act (4) the role of the attorney ge neral under this chapter; and this chapter. (5) penalties and other consequences for fa ilure to comply with (e) The office of the attorney general or othe r entity providing the training shall provide a ning required by this section. certificate of course completion to persons who complete the trai A governmental body shall maintain inspection the record of its and make available for public public officials’ or, if applicable, the public information coordinato r’s completion of the training. Completing the required training as (f) overnmental body satisfies the a public official of the g requirements of this section with regard to the public official’s se rvice on a committee or subcommittee of the governmental body and the public official’s ex officio service on any other governmental body. used to satisfy any corresponding training The training required by this section may be (g) rds required by law for a public official or requirements concerning this chapter or open reco ral shall attempt to co public information coordinator. The attorney gene ordinate the training required by this section with training require d by other law to the extent practicable. A certificate of course completion is admissible as evidence in a criminal prosecution under (h) this chapter. However, evidence that a defendant completed a c ourse of training offered under this section is not prima facie evidence that the defendant knowingly violated this chapter. ESS TO PUBLIC INFORMATION SUBCHAPTER B. RIGHT OF ACC § 552.021. Availability of Public Information business hours of the Public information is available to the public at a minimum during the normal governmental body. § 552.0215. Right of Access to Cert ain Information After 75 Years 47, the confidentiality provisions of this chapter, or other (a) Except as provided by Section 552.1 law, information that is not confidential but is excepted from required disclosure under Subchapter C is public information and is ava ilable to the public on or after the 75th anniversary of the date the info rmation was originally created or received by the governmental body. This section does not limit the authority of a go (b) vernmental body to establish retention periods for records under ap plicable law. 2018 Public Information Act Handbook • Office of the Attorney General 183

200 Text of the Texas Public Information Act § 552.022. Categories of Pub lic Information; Examples Without limiting the amount or kind of information (a) tion under this chapter, that is public informa the following categories of info rmation are public information a nd not excepted from required disclosure unless made confidential under this chapter or other law: (1) a completed report, audit, evaluation, or i or by a governmental nvestigation made of, for, d by Section 552.108; body, except as provide (2) the name, sex, ethni city, salary, title, and dates of em ployment of each employee and officer of a governmental body; (3) information in an account, voucher, or contr act relating to the receipt or expenditure of public or other funds by a governmental body; (4) the name of each offici al and the final record of voting on all proceedings in a governmental body; formation used to esti (5) all working papers, research material, and in mate the need for or governmental body, on completion of the expenditure of public funds or taxes by a estimate; (6) the name, place of business, e municipality to which local sales and and the name of th use taxes are credited, if any, for the named person, of a pers on reporting or paying sales and use taxes under Chapter 151, Tax Code; (7) a description of an agency’s cent ral and field organizations, including: lic may obtain info the established places at which the pub rmation, submit (A) information or requests, or obtain decisions; (B) y obtain information, submit information the employees from whom the public ma or requests, or obtain decisions; members from whom the public may obtain in the case of a uniformed service, the (C) information, submit info rmation or requests, or obtain decisions; and (D) n, submit information or blic may obtain informatio the methods by which the pu requests, or obtain decisions; method by which an agency’s functions are (8) a statement of the general course and channeled and determined, including the nature and requirements of all formal and informal policies and procedures; e places at which forms may be (9) a rule of procedure, a desc ription of forms available or th ope and content of all papers, reports, or obtained, and instructions relating to the sc examinations; 2018 Public Information Act Handbook • Office of the Attorney General 184

201 Text of the Texas Public Information Act agency as authorized (10) a substantive rule of general applicability adopted or issued by an by law, and a statement of general policy or interpretation of general applicability formulated and adopted by an agency; (11) each amendment, revision, or repeal of information described by Subdivisions (7)–(10); dissenting opinions, and orders issued in the (12) final opinions, including concurring and adjudication of cases; has been adopted or issued by an agency; (13) a policy statement or interpretation that (14) administrative staff manual s and instructions to staff that affect a member of the public; (15) information regarded as open to th e public under an agency’s policies; (16) information that is in a bill for attorney’s fees and that is not privileged under the attorney- client privilege; (17) information that is also contained in a public court record; and (18) a settlement agreement to whic h a governmental body is a party. der a governmental body ublic information to (b) or an officer for p A court in this state may not or public information described by Subsection (a) withhold from public inspection any category of or to not produce the category of public info rmation for inspection or duplication, unless the category of information is confidential under this chapter or other law. § 552.0221. Employee or Trustee of Public Employee Pension System (a) Information concerning the empl oyment of an employee of a pub lic employee pension system is public information under th e terms of this chapter, including information concerning the income, salary, benefits, and bonuses received from the pension system by the employee in the person’s capacity as an employee of the system , and is not removed from the application of l, or otherwise excepted from this chapter, made confidentia the requirements of Section members, beneficiaries, or protect the records of persons as 552.021 by any statute intended to stem in their capacity as such. retirees of a public employee pension sy (b) Information concerning the service of a trustee of a public employee pension system is public including information concerning the income, information under the terms of this chapter, salary, benefits, and bonuses r eceived from the pension system by the trustee in the person’s capacity as a trustee of the syst em, and is not removed from the application of this chapter, made confidential, or otherw ise excepted from the require ments of Section 552.021 by any statute intended to protect the records of persons as members, beneficiaries, or retirees of a public employee pension system in their capacity as such. y to the extent the Information subject to Subsections (a) and (b ) must be released onl (c) sure under this subchapter or Subchapter C. information is not excepted from required disclo 2018 Public Information Act Handbook • Office of the Attorney General 185

202 Text of the Texas Public Information Act not include pension benefits provided to an (d) For purposes of this section, “benefits” does individual by a pension system under the statut ory plan covering the individual as a member, beneficiary, or retiree of the pension system. § 552.0225. Right of Access to Investment Information by Section 552.001, it government described Under the fundamental philosophy of American (a) is the policy of this state that investments of government are investments of and for the people The provisions of this and the people are entitled to information regard ing those investments. section shall be liberally cons ent this policy. trued to implem body relating to its (b) ld by a governmental The following categories of information he investments are public informa tion and not excepted from disc losure under this chapter: or has invested in; the governmental body is (1) the name of any fund or investment entity y described by Subdivision (1) was established; (2) the date that a fund or investment entit a fund or investment entity described by (3) each date the governmental body invested in Subdivision (1); (4) the amount of money, expressed in dolla rs, the governmental bo dy has committed to a fund or invest ment entity; (5) the amount of money, expressed in dollars , the governmental body is investing or has invested in any fund or investment entity; (6) the total amount of money, expressed in do llars, the governmental body received from with an investment; entity in connection any fund or investment al body in connection (7) the internal rate of return or other standa rd used by a government with each fund or inve stment entity it is or has invested in and the date on which the return or other standard was calculated; (8) the remaining value of any fund or invest ment entity the governmental body is or has invested in; (9) the total amount of fees, including expenses, charges, and other compensation, assessed against the governmental body o, any fund or by, or paid by the govern mental body t investment entity or principal of any fund or investment entity in which the governmental body is or has invested; investment entity in (10) the names of the principals responsible for managing any fund or which the governmental body is or has invested; connection with a deliberation mber of the governing board in (11) each recusal filed by a me body relating to an investment; or action of the governmental 2018 Public Information Act Handbook • Office of the Attorney General 186

203 Text of the Texas Public Information Act (12) a description of all of the types of busi nesses a governmental body is or has invested in through a fund or investment entity; (13) the minutes and audio or video recordings of each open porti on of a meeting of the governmental body at which an item described by this su bsection was discussed; (14) the governmental bo dy’s percentage ownership interest in a fund or investment entity the governmental body is or has invested in; itted to the governmental (15) any annual ethics disclosure report subm body by a fund or investment entity the governmental b ody is or has invested in; and (16) the cash-on-cash return realized by the governmental body for a fund or investment entity the governmental body is or has invested in. (c) al Insurance Company or a successor to the This section does not apply to the Texas Mutu company. private investment fund’s investment in restricted securities, (d) This section does not apply to a as defined in Section 552.143. to Confidential Information § 552.023. Special Right of Access (a) e has a special right of access, beyond the right A person or a person’s authorized representativ rnmental body that relates to the person and of the general public, to information held by a gove that is protected from public disclosure by laws intended to protect that person’s privacy interests. A governmental bo (b) dy may not deny access to informati on to the person, or the person’s representative, to whom the information rela tes on the grounds that the information is considered confidential by privacy principles unde r this chapter but may assert as grounds for or other law that are no denial of access other provisions of this chapter t intended to protect the person’s privacy interests. (c) and (b) is not an offense under Section 552.352. A release of information under Subsections (a) (d) A person who receives information under this se ction may disclose the information to others with the authorized purposes fo only to the extent consistent r which consent to release the information was obtained. (e) Access to information under this section shall be provided in the manner prescribed by Sections 552.229 and 552.307. § 552.024. Electing to Disclose Address and Telephone Number (a) e or official of a governmental body and Except as provided by Subsection (a-1), each employe choose whether to allow public al of a governmental body shall each former employee or offici governmental body that relates to the person’s access to the information in the custody of the 2018 Public Information Act Handbook • Office of the Attorney General 187

204 Text of the Texas Public Information Act home address, home telephone number, emergency contact information, or social security the person has family members. number, or that reveals whether (a-1) A school district may not require an employee or former em ployee of the district to choose whether to allow public access to the employee’s or former employee’s social security number. (b) ployee and official shall state that person’s Each employee and official and each former em choice under Subsection (a) to the main personne l officer of the governmental body in a signed writing not later than the 14th da y after the date on which: (1) the employee begins employment with the governmental body; (2) the official is elected or appointed; or (3) the former employee or official ends service with the governmental body. (c) If the employee or official or former employee or official chooses not to allow public access to the information: ed under Subchapter C; and (1) the information is protect any information the e information from (2) the governmental body may redact th r Section 552.021 without the necessity of requesting governmental body discloses unde general under Subchapter G. a decision from the attorney withholds information without (c-1) If, under Subsection (c)(2), a governmental body redacts or requesting a decision from the attorney general about whether the information may be redacted or withheld, the requestor is entitled to seek a decision from the attorney general about the rule shall establish procedur matter. The attorney general by es and deadlines for receiving the matter and briefs from th information necessary to decide e requestor, the governmental body, and any other interested pe all promptly render a decision rson. The attorney general sh requested under this subsection, determining whether the redacted or withheld information was excepted from required disclosure to the request or, not later than the 45th business day after the date the attorney general received the re quest for a decision unde r this subsection. The ovide a copy of itten decision on the matter and pr the decision attorney general shall issue a wr to the requestor, the government al body, and any interested person who submitted necessary information or a brief to the attorney gene ral about the matter. The requestor or the governmental body may appeal a decision of the attorney general under this subsection to a Travis County district court. (c-2) A governmental body that redacts or wit hholds information under Subsection (c)(2) shall provide the following information to the requestor on a form prescr ibed by the attorney general: or withheld information; (1) a description of the redacted (2) a citation to this section; and 2018 Public Information Act Handbook • Office of the Attorney General 188

205 Text of the Texas Public Information Act (3) instructions regarding how the requestor may seek a decision from the attorney general regarding whether the redacted or withheld information is exce pted from required disclosure. (d) or official fails to state the person’s choice If an employee or official or a former employee within the period established by this section, the information is subject to public access. (e) An employee or official or former employee or official of a government al body who wishes to may request in writing that the main personnel close or open public access to the information officer of the governmental body close or open access. This section does not apply to a person to whom Section 552.1175 applies. (f) § 552.025. Tax Rulin gs and Opinions (a) A governmental body with taxing authority that issues a written determination letter, technical advice memorandum, or ruling that concerns a tax matter shall index the letter, memorandum, or ruling by subject matter. ody shall make the index prepar (b) On request, the governmental b ed under Subsection (a) and the t to the provisions of this chapter. document itself available to the public, subjec (c) limiting the availability to the ithholding from the public or Subchapter C does not authorize w public of a written determination letter, technical m, or ruling that concerns advice memorandu a tax matter and that is issued by a go vernmental body with taxing authority. ation Records § 552.026. Educ This chapter does not require the release of info rmation contained in education records of an educational agency or institution, except in conformity with the Family E ducational Rights and Privacy Act of 1974, Sec. 513, Pub. L. No. 93-380, 20 U.S.C. Sec. 1232g. mmercially; Resource Material § 552.027. Except ion: Information Available Co A governmental body is not require e inspection of or to provide d under this chapter to allow th (a) a copy of information in a commercial book or publication purchased or acquired by the governmental body for res earch purposes if the b ook or publication is commercially available to the public. (b) ailable to the public as a publication may be made av Although information in a book or resource material, such as a lib rary book, a government al body is not requ ired to make a copy of the information in response to a request for public information. (c) A governmental body shall allow th a book or publication that is e inspection of information in in a rule or policy of a governmental body. made part of, incorporated into, or referred to 2018 Public Information Act Handbook • Office of the Attorney General 189

206 Text of the Texas Public Information Act § 552.028. Request for Informatio n from Incarcerated Individual (a) request for information from: A governmental body is not require d to accept or comply with a (1) an individual who is im prisoned or confined in a correctional facility; or at individual’s attorney (2) an agent of that individual, other than th when the attorney is requesting information that is subject to disclosure under this chapter. (b) This section does not prohibit a governmental body from disclosing to an individual described by Subsection (a)(1), or that i held by the governmental body ndividual’s agent, information pertaining to that individual. (c) In this section, “corr ectional facility” means: defined by Section 1.07, Penal Code; (1) a secure correctional facility, as , as defined by Section 51.02, and a secure detention facility (2) a secure correctional facility Family Code; and (3) a place designated by the law of this state, federal government for another state, or the ed for, charged with, or conv icted of a criminal offense. the confinement of a person arrest § 552.029. Right of Access to Certain Informat ion Relating to Inmate of Department of Criminal Justice Notwithstanding Section 508.313 or 552.134, the following informati on about an inmate who is confined in a facility oper ated by or under a contract with the Texas Department of Criminal Justice is subject to required disclo sure under Section 552.021: entification number, age, birthplace ograph, physical (1) the inmate’s name, id , department phot description, or general state of h illness suffered to or critical ealth or the nature of an injury by the inmate; ed the inmate, unless (2) the inmate’s assigned unit or the date on which the unit receiv identiality of ting to the conf would violate federal law rela disclosure of the information substance abuse treatment; icted or the ju dgment and sentence for that (3) the offense for which the inmate was conv offense; (4) the county and court in wh ich the inmate was convicted; (5) the inmate’s earliest or la test possible release dates; (6) the inmate’s parole date or earliest possible parole date; 2018 Public Information Act Handbook • Office of the Attorney General 190

207 Text of the Texas Public Information Act Texas Department of Criminal Justice or its (7) any prior confinement of the inmate by the predecessor; or incident involving the (8) basic information regarding the death of an inmate in custody, an use of force, or an alleged crime involving the inmate. PTED FROM REQUIRED DISCLOSURE SUBCHAPTER C. INFORMATION EXCE n: Confidential Information § 552.101. Exceptio it is information considered to quirements of Section 552.021 if Information is excepted from the re be confidential by law, either constituti onal, statutory, or by judicial decision. nfidentiality of Certai n Personnel Information § 552.102. Exception: Co of Section 552.021 if it is information in a (a) Information is excepted from the requirements arranted invasion of d constitute a clearly unw personnel file, the disclosure of which woul an employee of a personal privacy, except that all information in the personnel file of governmental body is to be made available to that employee or the employee’s designated ailable under this chapter. The exception to representative as public information is made av public disclosure created by this subsection is in addition to any exception created by Section on 552.024 is denied to the l information covered by Secti 552.024. Public access to personne extent provided by that section. (b) Information is excepted from the requirements of Section 552.021 if it is a transcript from an the personnel file of a professional public school institution of higher education maintained in employee, except that this section does not exempt from disclosure the degree obtained or the curriculum on a transcript in the personnel file of the employee. § 552.103. Exception: Litigatio n or Settlement Negotiations Involving the State or a Political Subdivision Information is excepted from the if it is information relating requirements of Section 552.021 (a) to litigation of a civil or criminal nature to wh subdivision is or may ich the state or a political be a party or to which an officer or employ ee of the state or a political subdivision, as a consequence of the person’s office or employment, is or may be a party. (b) subdivision is considered to be a party to For purposes of this section, the state or a political tations has expired or until the litigation of a criminal nature until the applicable statute of limi defendant has exhausted all appellate and postc onviction remedies in state and federal court. Information relating to litigation involving a gov ernmental body or an officer or employee of (c) under Subsection (a) only if the litigation is a governmental body is excepted from disclosure the requestor applies to the officer for public pending or reasonably anticipated on the date that information for access to or dup lication of the information. 2018 Public Information Act Handbook • Office of the Attorney General 191

208 Text of the Texas Public Information Act § 552.104. Exception: Information Related to Competition or Bidding ation that, if it is inform (a) requirements of Section 552.021 if Information is excepted from the released, would give advantag e to a competitor or bidder. The requirement of Section 552.022 that a category of information listed under Section (b) and not excepted from required 552.022(a) is public information disclosure under this chapter unless expressly confidential under law does not a pply to information that is excepted from required disclosure under this section. rmation Related to Location § 552.105. Exception: Info or Price of Property Information is excepted from the re quirements of Section 552.021 if it is information relating to: a public purpose prior to public announcement (1) the location of real or personal property for of the project; or (2) onal property for a public purpose prior to the appraisals or purchase price of real or pers formal award of contr acts for the property. n: Certain Legislative Documents § 552.106. Exceptio A draft or working paper involved in the prepara tion of proposed legislation is excepted from (a) the requirements of Section 552.021. An internal bill analysis or wo (b) rking paper prepared by the governor’s offi ce for the purpose of evaluating proposed legislation is excepted from the requirements of Section 552.021. Certain Legal Matters § 552.107. Exception: quirements of Section 552.021 if: Information is excepted from the re (1) or an attorney of a political subdivision is it is information that the attorney general prohibited from disclosing because of a duty to the client under the Texas Rules of Evidence or the Texas Di sciplinary Rules of Pr ofessional Conduct; or a court by order has prohibited di sclosure of the information. (2) ion: Certain Law En § 552.108. Except forcement, Corrections , and Prosecutorial Information Information held by a law enforcement agency or prosecutor that deals with the detection, (a) ed from the requirement investigation, or prosecution of crime is except s of Section 552.021 if: (1) release of the information would interfer investigation, or e with the detection, prosecution of crime; 2018 Public Information Act Handbook • Office of the Attorney General 192

209 Text of the Texas Public Information Act (2) it is information that deals with the detec tion, investigation, or pr osecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication; (3) it is information relating to a threat agains t a peace officer or detention officer collected or disseminated under Section 411.048; or (4) it is information that: state in anticipation of is prepared by an attorney representing the or in the course (A) of preparing for criminal litigation; or reflects the mental impressions or legal reasoning of an attorney representing the (B) state. (b) An internal record or notation of a law enforcem ent agency or prosecutor that is maintained for internal use in matters relating to law en forcement or prosecution is excepted from the requirements of Section 552.021 if: law enforcement or tion would interfere with (1) release of the internal record or nota prosecution; y in relation to an to law enforcement onl (2) the internal record or notation relates investigation that did not result in conviction or deferred adjudication; or (3) the internal record or notation: (A) is prepared by an attorney representing the state in anticipation of or in the course of preparing for criminal litigation; or (B) reflects the mental impressions or legal reasoning of an attorney representing the state. (c) s of Section 552.021 info rmation that is basic This section does not except from the requirement information about an arrested person, an arrest, or a crime. ion Regarding Execution of § 552.1081. Exception: Confid entiality of Certain Informat Convict Information is excepted from the requirements of Section 552.021 if it contains identifying information under Article 43.14, Code of Cr iminal Procedure, including that of: (1) any person who participates in an execu tion procedure, including a person who uses, tance during the execution; and supplies, or administers a subs (2) any person or entity that ma ocures, compounds, prescribes, nufactures, transports, tests, pr supplies used in an execution. dispenses, or provides a substance or 2018 Public Information Act Handbook • Office of the Attorney General 193

210 Text of the Texas Public Information Act Sensitive Crime Scene Image § 552.1085. Confidentiality of (a) In this section: (1) “Deceased person’s next of kin” means: (A) the surviving spouse of the deceased person; spouse of the deceased, an adult child of the deceased person; (B) if there is no surviving or (C) if there is no surviving spouse or a dult child of the deceased, a parent of the deceased person. (2) “Defendant” means a person being prosecuted eceased person or a for the death of the d person convicted of an offense in relation to that death and appealing that conviction. (3) “Expressive work” means: dramatic, literary, or musical work that is (A) a fictional or nonfictional entertainment, audiovisual work, radio or television a play, book, article, musical composition, rk of political, educational, or newsworthy value; program, work of art, or wo on of which is the delivery of news, information, current (B) a work the primary functi events, or other matters of public interest or concern; or (C) an advertisement or commercial anno uncement of a work described by Paragraph (A) or (B). (4) “Local governmental entity” means a county, municipality, school district, charter school, junior college district, or other political subdivision of this state. on of higher education” means: (5) “Public or private instituti .003, Education Code; (A) an institution of higher education, as defined by Section 61 or (B) a private or independent institution of higher education, as defined by Section 61.003, Education Code. (6) “Sensitive crime scene image” means a phot ograph or video recording taken at a crime a closed criminal case, that depicts a deceased person in a scene, contained in or part of state of dismemberment, decapitation, or sim ilar mutilation or that depicts the deceased person’s genitalia. (7) “State agency” means a department, commissi on, board, office, or other agency that is a part of state government and that is created by the constitution or a statute of this state. 2018 Public Information Act Handbook • Office of the Attorney General 194

211 Text of the Texas Public Information Act The term includes an institu tion of higher education as defined by Se ction 61.003, Education Code. (b) For purposes of this section, an Internet we bsite, the primary function of which is not the delivery of news, information, curre nt events, or other matters of public interest or concern, is not an expressive work. ntal body is confidential and age in the custody of a governme A sensitive crime scene im (c) excepted from the requirements of Section 552 .021 and a governmental body may not permit a person to view or copy the imag tion. This section applies to e except as provided by this sec gardless of the date that the any sensitive crime scene image re image was taken or recorded. d subject to Subsection (e), th Notwithstanding Subsection (c) an e following persons may view (d) crime scene image from a governmental body: or copy information that constitutes a sensitive (1) the deceased person’s next of kin; the deceased person’s next of kin; (2) a person authorized in writing by (3) a defendant or the defendant’s attorney; body an interest in a sensitive crime scene (4) a person who establishes to the governmental image that is based on, connected with, or in support of the creation, in any medium, of an expressive work; (5) a person performing bona fide research sponsored by a public or private institution of of the research or a supervising faculty higher education with approval of a supervisor member; (6) a state agency; (7) an agency of the federal government; or (8) a local governmental entity. from asserting an exception to disclosure (e) This section does not prohibit a governmental body to a person identifie d in Subsection (d) on the grounds that of a sensitive crime scene image of Section 552.021 unde r another provision of the image is excepted from the requirements this chapter or another law. al body receives a request for (f) Not later than the 10th business day after the date a government a sensitive crime scene image from a person described by S ubsection (d)(4) or (5), the governmental body shall notify the deceased person’s next of kin of the request in writing. The notice must be sent to the next of kin’s last known address. A governmental body that receives a request for information that constitutes a sensitive crime (g) scene image shall allow a person described in Subsection (d) to view or copy the image not the governmental body receiv later than the 10th business day after the date es the request unless 2018 Public Information Act Handbook • Office of the Attorney General 195

212 Text of the Texas Public Information Act the governmental body files a request for an attorney genera l decision under Subchapter G sclosure applies to the information. regarding whether an exception to public di § 552.109. Exception: Confidentiality of Certain Privat e Communications of an Elected Office Holder elected office holder relating to matters the Private correspondence or communications of an disclosure of which would constitute the requirements of acy are excepted from an invasion of priv Section 552.021. § 552.110. Exception: Confidentiality of Trade Secrets; Confidentiality of Certain Commercial or Financial Information person and privileged or confidential by statute or judicial A trade secret obtained from a (a) decision is excepted from the requ irements of Section 552.021. ation for which it is demonstrated based on specific factual Commercial or financial inform (b) d cause substantial competitive ha evidence that disclosure woul rm to the person from whom om the requirements of Section 552.021. the information was obtained is excepted fr Agency Memoranda § 552.111. Exception: be available by law to a party morandum or letter that would not An interagency or intraagency me in litigation with the agency is excepted from the requirements of Section 552.021. lation of Financial Institutions § 552.112. Exception: C ertain Information Relating to Regu or Securities (a) Information is excepted from the requirements of Section 552.021 if it is information contained in or relating to examination, operating, or co ndition reports prepared by or for an agency financial institutions or securities, or both. responsible for the regulation or supervision of Act (Article 581-1 et ssigned by The Securities In this section, “securities” has the meaning a (b) seq., Vernon’s Texa s Civil Statutes). Section 552.021 if it is information submitted (c) Information is excepted from the requirements of by an individual or other cil, or to any state agency or entity to the Texas Legislative Coun department overseen by the Finance Commission of Texas and the information has been or will be sent to the Texas Legisl ative Council, for the purpose of performing a statistical or demographic analysis of information subject to Section 323.020. However, this subsection ection 552.021 information does not except from the requirements of S that does not identify or tend to identify an individual or other entity an quired public disclosure d that is subject to re under Section 323.020(e). 2018 Public Information Act Handbook • Office of the Attorney General 196

213 Text of the Texas Public Information Act § 552.113. Exception: Confidentiality of Geological or Geophysical Information Information is excepted from the require (a) ments of Section 552.021 if it is: (1) an electric log confidential under Subchapt er M, Chapter 91, Natural Resources Code; data, including maps co ncerning wells, except (2) geological or geophysical information or information filed in connection with an app lication or proceeding before an agency; or (3) confidential under Subsections (c) through (f). an employee of the General Land Office, but not (b) Information that is shown to or examined by with the land office. idered to be filed retained in the land office, is not cons (c) In this section: (1) “Confidential material” incl udes all well logs, geological, geophysical, geochemical, and other similar data, including maps and other in terpretations of the material filed in the General Land Office: lication or proceeding before the land in connection with any administrative app (A) ard, any board for lease, commissioner, the school land bo or the commissioner’s or board’s staff; or (B) in compliance with the requi rements of any law, rule , lease, or agreement. (2) “Electric logs” has the same meaning as it has in Chapter 91, Natural Resources Code. (3) “Administrative applications ” and “administrative proceeding s” include applications for pooling or unitization, review of shut-in roya lty payments, review of leases or other agreements to determin e their validity, review of any plan of operations, review of the pplication to pay compensatory royalty. obligation to drill offset wells, or an a (d) Confidential material, except elec tric logs, filed in the Genera l Land Office on or after September 1, 1985, is public information and is available to the public under Section 552.021 on and after the later of: (1) five years from the filing date of the confidential material; or (2) one year from the expiration, termination, or forfeiture of the lease in connection with which the confidential material was filed. on or after September 1, 1985, are either public (e) Electric logs filed in the General Land Office rial to the same extent and fo r the same periods provided for information or confidential mate ode. A person may request that an electric the same logs by Chapter 91, Natural Resources C nfidential by filing with the land General Land Office be made co log that has been filed in the 2018 Public Information Act Handbook • Office of the Attorney General 197

214 Text of the Texas Public Information Act office a copy of the written request for confid entiality made to the Railroad Commission of Texas for the same log. (f) The following are p ublic information: (1) electric logs filed in the General La nd Office before September 1, 1985; and (2) confidential material, except electric logs , filed in the General Land Office before September 1, 1985, provided, that Subsectio n (d) governs the disclosure of that e that is a valid connection with a leas confidential material filed in and subsisting lease on September 1, 1995. (g) Confidential material may be disclosed at any time if the person filing the material, or the connection with which th person’s successor in interest in the lease in e confidential material was filed, consents in wr ng to the disclosu re of confidential iting to its release. A party consenti material may restrict the manner of disclosure an d the person or persons to whom the disclosure may be made. rial described in this section, the material Notwithstanding the confidential nature of the mate (h) enforcement, by administrative proceeding or may be used by the General Land Office in the litigation, of the laws governing the sale and leas nerals, the regulations e of public lands and mi of the land office, the school land e, or the terms of any lease, board, or of any board for leas pooling or unitization agreement, or any other agreement or grant. An administrative hearings officer may order that confidential material introduced in an (i) administrative proceeding remain confidential until the proceeding is finally concluded, or for the period provided in Subsection (d), whichever is later. ined by an administrative hearings officer during the course of an Confidential material exam (j) administrative proceeding for the purpose of dete as evidence shall not rmining its admissibility be considered to have been filed in the Genera l Land Office to the extent that the confidential to evidence at the proceeding. material is not introduced in (k) This section does not prevent a pe rson from asserting that any co nfidential materi al is exempt ial information under Sect ion 552.110 or under from disclosure as a trade secret or commerc any other basis permitted by law. Confidentiality of Student Records § 552.114. Exception: In this section, “student record” means: (a) is defined by the Family (1) information that constitutes education records as that term acy Act of 1974 (20 U.S.C. Educational Rights and Priv Section 1232g(a)(4)); or (2) information in a record to an educational institution, of an applicant for admission including a transfer applicant. 2018 Public Information Act Handbook • Office of the Attorney General 198

215 Text of the Texas Public Information Act (b) Information is confidential and excepted from the requirements of S ection 552.021 if it is information in a student record at an educational institution funde d wholly or partly by state revenue. This subsection does not prohibit the di sclosure or provision of information included in an education record if the disclosure or provision is authorized by 20 U.S.C. Section 1232g or other federal law. (c) be made available on the request of: A record covered by Subsection (b) shall (1) educational institution personnel; (2) the student involved or the student’s parent, legal guardian, or spouse; or ation required by Subchapt (3) a person conducting a child abuse investig er D, Chapter 261, Family Code. (d) Except as provided by Subsection (e), an educ ational institution may redact information ion disclosed under Se ction 552.021 without covered under Subsection (b) from informat requesting a decision from the attorney general. onal institution described by Subsection (b) or a If an applicant for admission to an educati (e) parent or legal guardian of a ional institution described by minor applicant to an educat of the applicant, the educational institution Subsection (b) requests information in the record shall disclose any information that: s application for admission; and (1) is related to the applicant’ (2) was provided to the educationa l institution by the applicant. § 552.115. Exception: Confidentiality of Bi rth and Death Records the Department of State Health ed by the vital statistics unit of A birth or death record maintain (a) cepted from the requirements of Section 552.021, Services or a local registration official is ex except that: (1) a birth record is public information a nd available to the public on and after the 75th anniversary of the date of birt h as shown on the record filed with the vital statistics unit or local registration official; on and after the 25th (2) a death record is public information and available to the public anniversary of the date of deat h as shown on the record filed with the vital statistics unit or local registration official, except that if th e decedent is unidentif ied, the death record blic on and after the first anniversary of the is public information and available to the pu date of death; (3) a general birth index or a general death index established or maintained by the vital is public information and available to the statistics unit or a local registration official public to the extent the index relates to a bi rth record or death record that is public information and available to the publ ic under Subdivision (1) or (2); 2018 Public Information Act Handbook • Office of the Attorney General 199

216 Text of the Texas Public Information Act (4) a summary birth index or a summary death index prepared or maintained by the vital statistics unit or a local registration official is public information and available to the public; and (5) a birth or death record is available to the chief executive officer of a home-rule municipality or the officer’s designee if: the record is used only to identify a property owner or other person to whom the (A) municipality is required to give notice when enforcing a state statute or an ordinance; (B) the municipality has exercise d due diligence in the mann er described by Section 54.035(e), Local Government Code, to identify the person; and the officer or designee signs a confid (C) entiality agreement that requires that: (i) the information not be disclosed outside the office of the officer or designee, other than the purpose described by or within the office for a purpose Paragraph (A); the information be labeled as confidential; (ii) (iii) the information be kept securely; and (iv) the number of copies made of the info rmation or the notes taken from the information that implicat e the confidential nature of the information be that are not destroyed or returned controlled, with all copies or notes remaining confidential and subject to the confidentiality agreement. (b) Notwithstanding Subsection (a), a general birth index or a summary birth index is not public information and is not available to the public if: revealed by the index; or (1) the fact of an adoption or paternity determination can be rmation relating to the parents of a child who (2) the index contains specific identifying info is the subject of an adoption placement. (c) Subsection (a)(1) does not apply to the micr ofilming agreement en tered into by the Genealogical Society of Utah, a nonprofit corpora tion organized under the laws of the State of Utah, and the Archives and Information Servic es Division of the Texas State Library and Archives Commission. bsection (c), the Genealogical e terms of the agreement in Su (d) For the purposes of fulfilling th Society of Utah shall have acces e 50th anniversary of the date s to birth records on and after th filed with the bureau of vita of birth as shown on the record l statistics or local registration official, but such birth records shall not be made available to the public until the 75th birth as shown on the record. anniversary of the date of 2018 Public Information Act Handbook • Office of the Attorney General 200

217 Text of the Texas Public Information Act § 552.116. Exception: Audit Working Papers the auditor of a state agency, an (a) an audit of the state auditor or An audit working paper of institution of higher education as defined by tion Code, a county, a Section 61.003, Educa municipality, a school district, a hospital district ting under Section 22.074, , or a joint board opera Transportation Code, including any audit relating to the criminal history background check of a public school employee, is excepted from the requi rements of Section 552.021. If information in an audit working paper is also maintained in another record, that other record is not excepted this section. from the requirements of Sec tion 552.021 by In this section: (b) (1) “Audit” means an audit authorized or required by a statute of this state or the United States, mmissioners court of a the charter or an ordinance of a municipalit y, an order of the co a hospital district, county, the bylaws adopted by or other action of the governing board of a resolution or other action of a board of trust , including an audit by ees of a school district the district relating to the criminal history public school employee, background check of a described by Subsection (a) and includes an or a resolution or other action of a joint board investigation. on, documentary or otherwise, prepared or (2) “Audit working paper” includes all informati maintained in conducting an audit or preparing an audit report, including: intra-agency and interagency communications; and (A) (B) drafts of the audit report or portions of those drafts. Confidentiality of Certain Addres § 552.117. Exception: ses, Telephone Numbers, Social onal Family Information Security Numbers, and Pers (a) Information is excepted from the requirements of Section 552.021 if it is information that relates to the home address, home telephone number, emer gency contact information, or social security number of the following person or that reveals whether th e person has family members: except as otherwise (1) a current or former official or employee of a governmental body, provided by Section 552.024; (2) a peace officer as defined by Ar ticle 2.12, Code of Criminal Proc edure, or a security officer commissioned under Section 51 .212, Education Code, regardless of whether the officer complies with Section 552.024 or 552.1175, as applicable; (3) a current or former employee of the Texas Department of Criminal Justice or of the partment or any division of th predecessor in function of the de e department, regardless of whether the current or former empl oyee complies with Section 552.1175; (4) a peace officer as defined by Article 2.12, Code of Criminal Procedure, or other law, a reserve law enforcement officer, a commissione d deputy game warden, or a corrections 2018 Public Information Act Handbook • Office of the Attorney General 201

218 Text of the Texas Public Information Act officer in a municipal, county, or state penal institution in this state who was killed in the line of duty, regardless of whether the Section 552.024 or deceased complied with 552.1175; (5) a commissioned security officer as de fined by Section 1702.0 02, Occupations Code, ith Section 552.024 or 552.1175, as applicable; regardless of whether the officer complies w rvision and corrections department established (6) an officer or employee of a community supe under Chapter 76 who performs a duty descri bed by Section 76.004(b), regardless of whether the officer or employee complie s with Section 552.0 24 or 552.1175; (7) a current or former employee general who is or was assigned of the office of the attorney to a division of that office the duties of which involve law enforcement, regardless of whether the current or former employee complies with Sectio n 552.024 or 552.1175; s Juvenile Justice Department or of the (8) a current or former employee of the Texa gardless of whether the current or former predecessors in function of the department, re tion 552.024 or 552.1175; employee complies with Sec (9) a current or former juvenile probation or s upervision officer certified by the Texas Juvenile function of the department, under Title 12, Justice Department, or the predecessors in e current or former officer complies with Human Resources Code, regardless of whether th Section 552.024 or 552.1175; (10) a current or former employ ee of a juvenile justice program or facility, as those terms are defined by Section 261.405, Fam ily Code, regardless of whet her the current or former employee complies with Sec tion 552.024 or 552.1175; (11) a current or former member of the Texas military forces, as that term is defined by Section 437.001; (S.B. 1576), § 12 Text of (a)(12), as added by Acts 2017 , 85th Leg., ch. 34 s Civil Commitment Office (12) a current or former employee of the Texa or the predecessor in function of the office or a divisi on of the office, regardless of whether the current or former employee complies with Sec tion 552.024 or 552.1175. Text of (a)(12), as added by Acts 20 17, 85th Leg., ch. 1 90 (S.B. 42), § 17 (12) a current or former federal judge or stat e judge, as those terms are defined by Section 13.0021(a), Election Code, or a spous e of a current or former federal judge or state judge; or Text of (a)(12), as added by Acts 2017 (H.B. 1278), § 1 , 85th Leg., ch. 1006 (12) a current or former district attorney, crim inal district attorney, or county or municipal e services matters, law or child protectiv attorney whose jurisdiction includes any criminal 2018 Public Information Act Handbook • Office of the Attorney General 202

219 Text of the Texas Public Information Act regardless of whether the curre nt or former attorney comp lies with Section 552.024 or 552.1175; or Text of (a)(13), as added by Acts 20 17, 85th Leg., ch. 1 90 (S.B. 42), § 17 rney whose (13) a current or former district attorney, crimin al district attorney or county atto or child protective jurisdiction includes any criminal law services matter. Text of (a)(13), as added by Acts 2017 , 85th Leg., ch. 1006 (H.B. 1278), § 1 ttorney, criminal district attorney, or county or (13) a current or former employee of a district a municipal attorney whose jurisdiction incl udes any criminal law or child protective services matters, regardless of whether th e current or former employee complies with 552.1175. Section 552.024 or ith a county clerk and all documents file d with a district clerk are exempt (b) All documents filed w from this section. Peace Officers, County Jailers, ertain Personal Information of § 552.1175. Confidentiality of C Security Officers, Employees of Certain St ate Agencies or Certain Criminal or Juvenile Justice Agencies or Offi ces, and Federal and State Judges (a) This section applies only to: (1) peace officers as defined by Article 2.12, Code of Criminal Procedure; ection 1701.001, Occupations Code; (2) county jailers as defined by S Department of Criminal Justice or of the (3) current or former employees of the Texas predecessor in function of the department the department; or any division of (4) commissioned security officers as define d by Section 1702.002, Occupations Code; (5) a current or former district attorney, crim inal district attorney, or county or municipal attorney whose jurisdiction incl udes any criminal law or child protective services matters; ttorney, criminal district attorney, or county or (5-a) a current or former employee of a district a municipal attorney whose jurisdiction incl udes any criminal law or child protective services matters; (6) officers and employees of a community superv ision and corrections department established described by Section 76.004(b); under Chapter 76 who perform a duty (7) criminal investigators of the United States as described by Article 2.122(a), Code of Criminal Procedure; United States Federal Protective Service; (8) police officers and inspectors of the 2018 Public Information Act Handbook • Office of the Attorney General 203

220 Text of the Texas Public Information Act (9) current and former employees of the office of the attorney general who are or were assigned to a division of that office the duties of which involve law enforcement; tention officers certified (10) current or former juvenile probation and de by the Texas Juvenile Justice Department, or the predecessors in function of the department, under Title 12, Human Resources Code; ility, as those terms are (11) current or former employees of a juvenile justice program or fac defined by Section 261.405, Family Code; Department or the predecessors s of the Texas Juvenile Justice (12) current or former employee in function of the department; , Election Code; and (13) federal judges and state judges as defi ned by Section 13.0021 (14) current or former employees of the Texas Civil Commitment Office or of the predecessor in function of the office or a division of the office. the home address, home telep (b) Information that relates to hone number, emergency contact information, date of birth, or social security numbe om this section applies, r of an individual to wh or that reveals whether the individual has family members is confidential and may not be disclosed to the public under th ation relates: whom the inform is chapter if the individual to (1) chooses to restrict public access to the information; and (2) notifies the governmental body of the individual’s choice on a form provided by the ence of the individual’s status. governmental body, accompanied by evid individual. (c) A choice made under Subsection (b) remains va lid until rescinded in wr iting by the formation in the tax appraisal reco (d) This section does not apply to in rds of an appraisal district to which Section 25.025, Tax Code, applies. documents filed with a district clerk are exempt (e) All documents filed with a county clerk and all from this section. information that must be wit hheld under Subsection (b) from (f) A governmental body may redact any information the governmental body discloses under Section 552.021 without the necessity of requesting a decision from the a ttorney general under Subchapter G. (g) If, under Subsection (f), a governmental b ody redacts or withholds information without requesting a decision from the attorney general about whether the information may be redacted or withheld, the requestor is entitled to seek a deci sion from the attorney general about the matter. The attorney general by rule shall establish pr ocedures and deadlines for receiving information d briefs from the requestor, necessary to decide the matter an body, and any the governmental l shall promptly render a decision requested under other interested person. The attorney genera this subsection, determining whether the redacted or withheld information was excepted from required disclosure to the requestor, not later than the 45th business day after the date the attorney 2018 Public Information Act Handbook • Office of the Attorney General 204

221 Text of the Texas Public Information Act subsection. The attorney general shall issue general received the request for a decision under this a written decision on the matter and provide a copy of the deci sion to the requestor, the submitted necessary information or a brief governmental body, and any interested person who to the attorney general about the matter. Th e requestor or the governmental body may appeal a decision of the attorney general under this su bsection to a Travis County district court. r Subsection (f) shall provide (h) A governmental body that red acts or withholds information unde the following information to th e requestor on a form prescribed by the attorney general: (1) a description of the redact ed or withheld information; (2) a citation to this section; and (3) instructions regarding how the requestor ma y seek a decision from the attorney general regarding whether the redacted or withhe ld information is excepted from required disclosure. Information Maintained by State Bar § 552.1176. Confidentiality of Certain home telephone number, electronic mail address, (a) Information that relates to the home address, social security number, or date of birth of a pers on licensed to practice law in this state that is y not be disclosed to the public under this maintained under Chapter 81 is confidential and ma om the information relates: chapter if the person to wh (1) chooses to restrict public access to the information; and tronically, on a form (2) notifies the State Bar of Texas of the person’s choice, in writing or elec provided by the state bar. until rescinded in writing or electronically by (b) A choice made under Subsection (a) remains valid the person. (c) All documents filed with a county clerk and all documents filed with a district clerk are exempt from this section. § 552.118. Exception: Confidentiality of Official P rescription Program Information Information is excepted from the require ments of Section 552.021 if it is: (1) information on or derived from an official prescription form or electronic prescription r Section 481.075, Health and State Board of Pharmacy unde record filed with the Texas Safety Code; or r Section 481.075 of that code. (2) other information collected unde 2018 Public Information Act Handbook • Office of the Attorney General 205

222 Text of the Texas Public Information Act § 552.119. Exception: Confidentiality of Certain Ph otographs of Peace Officers A photograph that depicts a peace officer as define (a) d by Article 2.12, Code of Criminal Procedure, the release of which would endanger the life or physical safety of the officer, is excepted from the requirements of Section 552.021 unless: arged with an offense by information; (1) the officer is under indictment or ch ice hearing or a case in arbitration; or (2) the officer is a party in a civil serv (3) the photograph is introduced as evidence in a judicial proceeding. made public only if the (b) A photograph excepted from disclo sure under Subsection (a) may be peace officer gives written co nsent to the disclosure. § 552.120. Exception: Confidentiality of Certain Rare Books and Original Manuscripts the conduct of official A rare book or original manuscript that was not cr eated or maintained in or public archival and manuscript body and that is held by a private business of a governmental ical research is excepted from th e requirements of Section 552.021. repository for the purpose of histor § 552.121. Exception: nts Held for Historical Research Confidentiality of Certain Docume An oral history interview, personal paper, unpublished letter, or organizational record of a nongovernmental entity that was not created or mainta ined in the conduct of official business of a nd manuscript repository for the governmental body and that is held by a private or public archival a purpose of historical research is excepted from the requirements of Section 552.021 to the extent that the archival and manuscript repository and the donor of the interview, paper, letter, or record agree to limit disclosure of the item. § 552.122. Exceptio n: Test Items A test item developed by an edu wholly or in part by state cational institution that is funded (a) revenue is excepted from the requ irements of Section 552.021. excepted from the (b) A test item developed by a licensing agency or governmental body is requirements of Section 552.021. ant for Chief Executive Officer of § 552.123. Exception: Confidentiality of Name of Applic Institution of Higher Education The name of an applicant for th cer of an institution of higher e position of chief executive offi is excepted from the education, and other information that would tend to identify the applicant, the institution must give public requirements of Section 552.021, exce pt that the governing body of e finalists being considered for the position at least 21 days before notice of the name or names of th n on the employment of the person. final action or vote is to be take the date of the meeting at which 2018 Public Information Act Handbook • Office of the Attorney General 206

223 Text of the Texas Public Information Act § 552.1235. Exception: Confidenti ality of Identity of Private Donor to Institution of Higher Education (a) The name or other information th at would tend to disclose the id entity of a person, other than a governmental body, wh o makes a gift, grant, or donation of money or property to an institution of higher education or to another person with the intent that the money or property be transferred ction 552.021. irements of Se cation is excepted from the requ to an institution of higher edu (b) Subsection (a) does not except from required disclosu re other information relating to gifts, grants, and donations described by Subsection (a), includ ing the amount or value of an individual gift, grant, or donation. (c) In this section, “institution of higher educati on” has the meaning assigned by Section 61.003, Education Code. § 552.124. Exception: Confidentiality of Records of Library or Library System (a) by public funds, that d in whole or in part A record of a library or library system, supporte sted, obtained, or used a library material or identifies or serves to identify a person who reque ection 552.021 unless the service is excepted from the requirements of S record is disclosed: es that disclosure is reasonably necessary for (1) because the library or library system determin the operation of the library or library system and the record is not confidential under other state or federal law; (2) under Section 552.023; or (3) to a law enforcement agency or a prosecutor under a court order or subpoena obtained after a showing to a district court that: (A) disclosure of the record is necessary to protect the public safety; or ce that a particular person the record is evidence of an offense or constitutes eviden (B) committed an offense. sure under this section (b) A record of a library or library system that is ex cepted from required disclo is confidential. § 552.125. Exception: Certain Audits Any documents or information privileged under Chap ter 1101, Health and Safety Code, are excepted from the requirements of Section 552.021. Confidentiality of Name rintendent of Public of Applicant for Supe § 552.126. Exception: School District The name of an applicant for the position of superintendent of a pub lic school district is excepted ustees must give public notice 552.021, except that the board of tr from the requirements of Section 2018 Public Information Act Handbook • Office of the Attorney General 207

224 Text of the Texas Public Information Act of the name or names of the finalists being consid ered for the position at least 21 days before the on the employment of the person. date of the meeting at which a fi nal action or vote is to be taken § 552.127. Exception: Confidenti ality of Personal Information Relating to Participants in Neighborhood Crime Watch Organization (a) Information is excepted from the requirements of Section 552.021 if the information identifies a person as a participant in a neighborhood crime watch organization and relates to the name, home telephone number, or business telephone number of the person. address, business address, home (b) In this section, “neighborhood crime watch or ganization” means a group of residents of a iliation or association with a law neighborhood or part of a neig hborhood that is formed in aff enforcement agency in this st the neighborhood or part of a ate to observe activities within neighborhood and to take other actions intended to reduce crime in that area. § 552.128. Exception: Confidentiality of Certain Info rmation Submitted by Potential Vendor or Contractor ractor to a governmental body in connection (a) Information submitted by a potential vendor or cont cation as a historically underutilized or disadvantaged business with an application for certifi quirements of Section is excepted from the re under a local, state, or federal certification program 552.021, except as provide d by this section. (b) Notwithstanding Section 552.007 and except as provid ed by Subsection (c), the information may be disclosed only: (1) to a state or local governmental entity in this state, and the state or local governmental entity may use the information only: (A) for purposes related to verifying an applican t’s status as a historically underutilized or disadvantaged business; or g a study of a public purch for the purpose of conductin asing program established (B) zed or disadvantaged businesses; or under state law for historically underutili (2) with the express written permission of the applicant or the applicant’s agent. (c) Information submitted by a vendor or contractor or a potential vendor or contractor to a governmental body in connection with a specific proposed contractual relationship, a specific contract, or an application to be placed on a rmation that may also bidders list, including info n with an application for cer tification as a historically have been submitted in connectio underutilized or disadvantaged business, is subject to required disclosure, excepted from required disclosure, or confidential in accordance with other law. 2018 Public Information Act Handbook • Office of the Attorney General 208

225 Text of the Texas Public Information Act of Certain Motor Vehicle § 552.129. Confidentiality Inspection Information A record created during a motor vehicle emissions inspection under Subcha pter F, Chapter 548, an individual vehicle or owne Transportation Code, that relates to r of an individual vehicle is excepted from the requiremen ts of Section 552.021. § 552.130. Exception: Confidentiality of Cert ain Motor Vehicle Records Information is excepted from the requirements of (a) Section 552.021 if the information relates to: (1) a motor vehicle operator’s or driver’s license or permit issued by an agency of this state or another state or country; an agency of this stat (2) a motor vehicle title or registration issued by e or another state or country; or (3) a personal identification document issued by an agency of this state or another state or country or a local agency authorized to issue an identification document. (b) leased only if, and in the manner, authorized Information described by Subsection (a) may be re by Chapter 730, Transportation Code. (c) , a governmental body may redact information Subject to Chapter 730, Transportation Code described by Subsection (a) from any inform ation the governmental body discloses under Section 552.021 without the necess ity of requesting a decision from the attorney general under Subchapter G. (d) If, under Subsection (c), a governmental body redacts or withholds information without requesting a decision from the attorney general about whether the information may be redacted or withheld, the requestor is entitled to seek a deci sion from the attorney general about the matter. The attorney general by rule shall establish pr ocedures and deadlines for receiving information body, and any necessary to decide the matter an the governmental d briefs from the requestor, l shall promptly render a decision requested under other interested person. The attorney genera or withheld information was excepted from this subsection, determining whether the redacted required disclosure to the requestor, not later than the 45th business day after the date the attorney general received the request for a decision under this subsection. The attorney general shall issue sion to the requestor, the a written decision on the matter and provide a copy of the deci governmental body, and any interested person who submitted necessary information or a brief to the attorney general about the matter. The requestor or the governmental body may appeal a decision of the attorney general under this su bsection to a Travis County district court. redacts or withholds information under Subsection (c) shall provide A governmental body that (e) requestor on a form prescribed by the attorney general: the following information to the or withheld information; (1) a description of the redacted (2) a citation to this section; and 2018 Public Information Act Handbook • Office of the Attorney General 209

226 Text of the Texas Public Information Act (3) instructions regarding how the requestor ma y seek a decision from the attorney general regarding whether the redacted or withhe ld information is excepted from required disclosure. § 552.131. Exception: Confidentiality of Certain Ec onomic Development Information (a) Information is excepted from the requirements of Section 552.021 if the information relates to economic development negotiations involving a gove rnmental body and a business prospect that the governmental body seeks to have locate, stay, or expand in or near the territory of the governmental body and the information relates to: (1) a trade secret of the business prospect; or (2) commercial or financial information for which it is demonstrated base d on specific factual the person from evidence that disclosure w ould cause substantia l competitive harm to whom the information was obtained. (b) Unless and until an agreement is made with the business prospect , information ab out a financial ntal body or by another or other incentive being offered to the business prospect by the governme requirements of Section 552.021. person is excepted from the (c) section does not except from the de with the business prospect, this After an agreement is ma formation about a financial or other incentive being offered requirements of Section 552.021 in to the business prospect: (1) by the governmental body; or (2) by another person, if the financial or other incen tive may directly or indirectly result in the expenditure of public funds by a governmental body or a reduc tion in revenue received by a governmental body from any source. § 552.132. Confidentialit y of Crime Victim or Claimant Information Except as provided by Subsection (d), in this sect (a) ion, “crime victim or claimant” means a victim Procedure, who has filed an Chapter 56, Code of Criminal or claimant under Subchapter B, application for compensation under that subchapter. (b) The following information held by the crime victim’s compensation division of the attorney general’s office is confidential: (1) the name, social security number, addre ss, or telephone number of a crime victim or claimant; or (2) any other information the disclosure of wh ich would identify or tend to identify the crime victim or claimant. If the crime victim or claimant is awarded co mpensation under Section 5 6.34, Code of Criminal (c) e award of compensation, the name of Procedure, as of the date of th the crime victim or claimant 2018 Public Information Act Handbook • Office of the Attorney General 210

227 Text of the Texas Public Information Act and the amount of compensation aw arded to that crime victim or claimant are public information and are not excepted from the requ irements of Section 552.021. (d) An employee of a governmental body who is al so a victim under Subchapter B, Chapter 56, Code of Criminal Procedure, regardless of wh ether the employee has filed an application for compensation under that subchapt er, may elect whether to allo w public access to information d identify or tend to overnmental body that woul held by the attorney general’s office or other g her visual representation of the victim. An identify the victim, including a photograph or ot election under this subsection must be made in writing on a form developed by the governmental body, be signed by the employee, and be filed with the governmental body before the third cur of one of the following: anniversary of the latest to oc (1) the date the cr ime was committed; (2) the date employment begins; or (3) the date the governmental body develops the form and provides it to employees. Subsection (d), the identifying information is If the employee fails to make an election under (e) third anniversary of the date the crime was committed. In case excepted from disclosure until the r incapacity of the of disability, impairment, or othe may be made by the employee, the election guardian of the employee or former employee. § 552.1325. Crime Vi ctim Impact Statement: Cert ain Information Confidential In this section: (a) (1) “Crime victim” means a person who is a vi ctim as defined by Ar ticle 56.32, Code of Criminal Procedure. pact statement under Ar ticle 56.03, Code of “Victim impact statement” means a victim im (2) Criminal Procedure. (b) The following information that is held by a governmental body or filed with a court and that is contained in a victim impact statement or wa s submitted for purposes of preparing a victim impact statement is confidential: (1) and telephone number of a crime victim; and the name, social security number, address, (2) any other information the disclosure of whic h would identify or tend to identify the crime victim. wer Utility Competitive Matters § 552.133. Exception: Confidentiality of Public Po an entity providing electric (a) In this section, “public powe or gas utility services r utility” means that is subject to the pr ovisions of this chapter. 2018 Public Information Act Handbook • Office of the Attorney General 211

228 Text of the Texas Public Information Act tter that is related eans a utility-related ma (a-1) For purposes of this secti on, “competitive matter” m to the public power utility’s competitive activ ity, including commercial information, and would, if disclosed, give advant age to competitors or prospect ive competitors. The term: to the following categories of information: (1) means a matter that is reasonably related generation unit specific and portfolio fixed an (A) d variable costs, including forecasts of those costs, capital improvement plans for generation units, and generation unit operating characteristics and outage scheduling; ased power, generation and fuel, and (B) bidding and pricing information for purch Electric Reliability Council of Texas bids, prices, offers, and related services and strategies; (C) effective fuel and purchased power agreem ents and fuel transportation arrangements and contracts; risk management information, contracts, (D) and strategies, including fuel hedging and storage; system improvements, additions, or sales, plans, studies, proposals, and analyses for (E) other than transmission and distribution system improvements inside the service area for which the public power utility is the sole certificated retail provider; and customer billing, contract, and usage inform ation, electric power pricing information, (F) system load characteristics, and electric pow er marketing analyses and strategies; and (2) does not include the following categories of information: information relating to the provision of distribution access service, including the (A) terms and conditions of the service and th e rates charged for the service but not including information concer or products that are ning utility-related services competitive; (B) information relating to the pr ovision of transmission servi ce that is required to be Commission of Texas, subject to any confidentiality filed with the Public Utility provided for under the rule s of the commission; information for the distribution system pertaining to reliability and continuity of (C) service, to the extent not security-sensitiv e, that relates to emergency management, ce, records of interruption, s such as hospitals and poli identification of critical load and distribution feeder standards; pplicability regarding rates, service offerings, (D) any substantive rule or tariff of general a service regulation, customer protections, or customer service adopted by the public power utility as aut horized by law; 2018 Public Information Act Handbook • Office of the Attorney General 212

229 Text of the Texas Public Information Act (E) aggregate information reflecting receipts or expenditures of funds of the public power uded in audited fina utility, of the type that would be incl ncial statements; (F) information relating to equa l employment opport unities for minority groups, as filed with local, state, or federal agencies; (G) utility’s performance in contracting with information relating to the public power minority business entities; (H) information relating to nuclear decommi ssioning trust agreements, of the type required to be included in audited financial statements; (I) ount and timing of any tran sfer to an owning city’s information relating to the am general fund; (J) ed to be filed with any information relating to enviro nmental compliance as requir authority, subject to any confidentiality local, state, or national environmental provided under the rules of those authorities; names of public officers of the public po wer utility and the voting records of those (K) of a competitive resolution than those within the scope officers for all matters other provided for by this section; a description of the public power utility’s central and field organization, including (L) the established places at which the pu blic may obtain information, submit information and requests, or obtain deci sions and the identification of employees from whom the public may obtain informa tion, submit information or requests, or obtain decisions; (M) information identifying the general course and method by which the public power utility’s functions are channeled and determined, including the nature and requirements of all formal and informal policies and procedures; salaries and total compensation of all em (N) ployees of a public power utility; or ectric Reliability Council of Texas in information publicly released by the El (O) accordance with a law, rule, or protocol ge nerally applicable to similarly situated market participants. the information (b) Information or records are ex cepted from the requirements of Section 552.021 if this section. Information or records are reasonably related as defined in to a competitive matter, or records of a municipa lly owned utility that are reasonabl y related to a competitive matter are r the Utilities Code, the not subject to disclosure under this chapter, whether or not, unde choice or serves in a multiply certificated municipally owned utility has adopted customer utility governing body to service area. This section does not limit the right of a public power withhold from disclosure be within the scope of any other exception information deemed to provided for in this chapter, subject to the provisions of this chapter. 2018 Public Information Act Handbook • Office of the Attorney General 213

230 Text of the Texas Public Information Act a category of information listed under Section (c) The requirement of Section 552.022 that from required disclosure under this chapter 552.022(a) is public information and not excepted unless expressly confidential under law does not a pply to information that is excepted from required disclosure under this section. Confidentiality of Certain Information Relating to Inmate of § 552.134. Exception: Department of Criminal Justice (a) Except as provided by Subsection (b) or by Sectio n 552.029, information obt ained or maintained by the Texas Department of Criminal Justice is excepted from the requirements of Section an inmate who is conf 552.021 if it is information about erated by or under a ined in a facility op contract with the department. (b) Subsection (a) does not apply to: (1) statistical or other aggregated information relating to inmates conf ined in one or more facilities operated by or under a c ontract with the department; or (2) information about an in mate sentenced to death. (c) This section does not affect whether information is considered confidential or privileged under Section 508.313. d by Subsection (a) to an eligible A release of information describe (d) ned by Section entity, as defi ent, prosecution, corrections, clemency, or 508.313(d), for a purpose related to law enforcem treatment is not considered a release of informa tion to the public for purposes of Section 552.007 sert in the future that the info and does not waive the right to as rmation is excepted from required disclosure under this section or other law. § 552.135. Exception: Confidentiality of Certain Inform ation Held by School District “Informer” means a student or a former student or an employee or former employee of a school (a) ation of criminal, civil, or district who has furnished a repor t of another person’s possible viol the proper regulatory enforcement authority. regulatory law to the school district or eal the identity of an informer is formation that would substantially rev (b) An informer’s name or in excepted from the requiremen ts of Section 552.021. (c) Subsection (b) does not apply: student, or the legal , and the student or former (1) if the informer is a student or former student udent consents to disclosure of the student’s guardian, or spouse of the student or former st or former student’s name; or employee who consents to disclosure of the (2) if the informer is an employee or former employee’s or former employee’s name; or (3) if the informer planned, initiated, or pa rticipated in the possible violation. 2018 Public Information Act Handbook • Office of the Attorney General 214

231 Text of the Texas Public Information Act (d) Information excepted under Subsection (b) may be made available to a law enforcement agency or prosecutor for official purposes of the agen cy or prosecutor upon proper request made in compliance with applicab le law and procedure. (e) This section does not infringe on or impair the confid entiality of informati on considered to be statutory, or by judici al decision, including confidential by law, whether it be constitutional, information excepted from the requ irements of Section 552.021. § 552.136. Confidentiality of Credit Card, Debit Card, Charge Card, and Access Device Numbers device” means a card, plat personal identification e, code, account number, (a) In this section, “access number, electronic serial number, mobile iden tification number, or other telecommunications service, equipment, or instrument identifier or means of account access that alone or in conjunction with another access device may be used to: (1) obtain money, goods, services, or another thing of value; or (2) initiate a transfer of funds other than a tr ansfer originated solely by paper instrument. r, a credit card, debit card, charge card, or Notwithstanding any other provision of this chapte (b) for a governmental body d, or maintained by or access device number that is collected, assemble is confidential. (c) A governmental body may redact in formation that must be withhe ld under Subsection (b) from body discloses under Section any information the governmental 552.021 without the necessity of requesting a decision from the a ttorney general under Subchapter G. (d) If, under Subsection (c), a governmental body redacts or withholds information without requesting a decision from the attorney general about whether the information may be redacted or withheld, the requestor is entitled to seek a deci sion from the attorney general about the matter. ocedures and deadlines for receiving information The attorney general by rule shall establish pr the governmental necessary to decide the matter an d briefs from the requestor, body, and any other interested person. The attorney genera l shall promptly render a decision requested under this subsection, determining whether the redacted or withheld information was excepted from required disclosure to the requestor, not later than the 45th business day after the date the attorney subsection. The attorney general shall issue general received the request for a decision under this a written decision on the matter sion to the requestor, the and provide a copy of the deci governmental body, and any interested person who submitted necessary information or a brief to the attorney general about the matter. Th e requestor or the governmental body may appeal a bsection to a Travis County district court. decision of the attorney general under this su A governmental body that (e) redacts or withholds information under Subsection (c) shall provide requestor on a form prescribed the following information to the by the attorney general: (1) a description of the redacted or withheld information; 2018 Public Information Act Handbook • Office of the Attorney General 215

232 Text of the Texas Public Information Act (2) a citation to this section; and y seek a decision from the attorney general (3) instructions regarding how the requestor ma regarding whether the redacted or withhe ld information is excepted from required disclosure. Certain E-Mail Addresses § 552.137. Confidentiality of (a) mail address of a member of the public that is Except as otherwise provided by this section, an e- provided for the purpose of co mmunicating electronically w ith a governmental body is confidential and not subject to disclosure under this chapter. a member of the public may be by this section that relates to Confidential information described (b) disclosed if the member of the public af firmatively consents to its release. (c) Subsection (a) does not apply to an e-mail address: has a contractual relationship with the (1) provided to a governmental body by a person who governmental body or by the contractor’s agent; ontract with the governmental body by a vendor who seeks to c (2) provided to a governmental body or by the vendor’s agent; (3) contained in a response to a request for bids or proposals, contained in a response to similar ting to a potential contract, or provided to a invitations soliciting offers or information rela governmental body in the course of negotiating th e terms of a contract or potential contract; (4) provided to a governmental body on a letterhead, coversheet, printed document, or other document made available to the public; or (5) provided to a governmental ing public comment on or body for the purpose of provid receiving notices related to an application fo r a license as defined by Section 2001.003(2) decisions from a governmental body. of this code, or receiving orders or (d) Subsection (a) does not prevent a governmental body from disclosing an e-mail address for any body or to a federal agency. reason to another governmental § 552.138. Exception: Confid entiality of Family Violence Shelter Center, Victims of Trafficking Shelter Center, and Se xual Assault Program Information In this section: (a) the meaning assigned (1) “Family violence shelter center” has by Section 51.002, Human Resources Code. meaning assigned by Section 420.003. (2) “Sexual assault program” has the (3) “Victims of trafficking shelter center” means: 2018 Public Information Act Handbook • Office of the Attorney General 216

233 Text of the Texas Public Information Act (A) a program that: private nonprofit organization; and is operated by a public or (i) (ii) provides comprehensive residential and nonresidential services to persons who are victims of trafficking under Section 20A.02, Penal Code; or (B) a child-placing agency, as defined by Section 42.002, Human Re sources Code, that ims of trafficking under Section 20A.02, provides services to persons who are vict Penal Code. ily violence shelter center, victim s of trafficking shelter center, (b) Information maintained by a fam or sexual assault program is excepted from the requirements of Section 552.021 if it is information that relates to: (1) the home address, home tele phone number, or social security number of an employee or a center, victims of trafficking shelter center, volunteer worker of a family violence shelter or sexual assault program, regardless of whet her the employee or worker complies with Section 552.024; of a family violence shelter ce nter or victims of trafficking (2) the location or physical layout shelter center; (3) the name, home address, home telephone num ber, or numeric identifier of a current or former client of a family violence shelter cen ter, victims of trafficking shelter center, or sexual assault program; nt or former client (4) the provision of services, including counseling and sheltering, to a curre of a family violence sh shelter center, or sexual assault elter center, victims of trafficking program; (5) the name, home address, or home telephone nu mber of a private donor to a family violence shelter center, victims of trafficking she lter center, or sexual assault program; or d of directors or the (6) the home address or home telephone number of a member of the boar r center, victims of trafficking shelter center, board of trustees of a family violence shelte or sexual assault program, regardless of whether the board me mber complies with Section 552.024. (c) intained by a family vi A governmental body olence shelter center, may redact information ma victims of trafficking shelter center, or sexua l assault program that may be withheld under Subsection (b)(1) or (6) from any informat ion the governmental body discloses under ity of requesting a decision from the attorney general under Section 552.021 without the necess Subchapter G. redacts or withholds information without If, under Subsection (c), a governmental body (d) requesting a decision from the attorney general about whether the information may be redacted 2018 Public Information Act Handbook • Office of the Attorney General 217

234 Text of the Texas Public Information Act sion from the attorney general about the matter. or withheld, the requestor is entitled to seek a deci ocedures and deadlines for receiving information The attorney general by rule shall establish pr necessary to decide the matter an d briefs from the requestor, the governmental body, and any other interested person. The attorney genera l shall promptly render a decision requested under this subsection, determining whether the redacted or withheld information was excepted from required disclosure to the requestor, not later than the 45th business day after the date the attorney subsection. The attorney general shall issue general received the request for a decision under this a written decision on the matter and provide a copy of the deci sion to the requestor, the submitted necessary information or a brief governmental body, and any interested person who to the attorney general about the matter. Th e requestor or the governmental body may appeal a decision of the attorney general under this su bsection to a Travis County district court. redacts or withholds information under Subsection (c) shall provide A governmental body that (e) e requestor on a form prescribed by the attorney general: the following information to th ed or withheld information; (1) a description of the redact (2) a citation to this section; and (3) instructions regarding how the requestor ma y seek a decision from the attorney general excepted from required ld information is regarding whether the redacted or withhe disclosure. § 552.139. Exception: Confidentiality of Government Info rmation Related to Security or Infrastructure Issues for Computers Section 552.021 if it is information that relates (a) Information is excepted from the requirements of to computer network security, to restricted information under Sec tion 2059.055, or to the design, operation, or defense of a computer network. tion is confidential: The following informa (b) k vulnerability report; (1) a computer networ (2) any other assessment of the extent to wh ich data processing ope rations, a computer, a interface, or software of a governmental computer program, network, system, or system body or of a contractor of a governmental body is vulnerable to unauthorized access or rnmental body’s or harm, including an assessment of the exte nt to which the gove contractor’s electronically stored information containing sensitive or critical information is vulnerable to alteration, damage, erasure, or inappropriate use; badge issued to an offi cial or employee of a (3) a photocopy or other copy of an identification governmental body; and s to prevent, detect, ntal body’s routine effort (4) information directly arising from a governme investigate, or mitigate a comput g information contained in or er security incident, includin derived from an information security log. 2018 Public Information Act Handbook • Office of the Attorney General 218

235 Text of the Texas Public Information Act (b-1) Subsection (b)(4) does not affe ct the notification requirements re lated to a breach of system Commerce Code. 521.053, Business & security as defined by Section (c) Notwithstanding the confidential nature of the information described in this section, the es that providing the information may be disclosed to a bidder if the governmental body determin information is necessary for the bidder to provi de an accurate bid. A disclosure under this for purposes of Section 552.007. subsection is not a voluntary disclosure Text of (d), as added by Acts 2017, 85th Leg., ch. 683 (H.B. 8), § 4 When posting a contract on an In Section 2261.253, a state agency ternet website as required by (d) section or excepted from shall redact information ma de confidential by this public disclosure by exempt information from the requirements this subsection dos not this section. Redaction under of Section 552.021. (H.B. 1861), § 1 7, 85th Leg., ch. 1042 Text of (d), as added by Acts 201 ted on the agency’s Intern et website under Section (d) A state agency shall redact from a contract pos confidential by, or excepted from required public disclosure 2261.253 information that is made ion under this subsection does not exempt the under, this section. The redaction of informat information from the requirements .021 or 552.221. of Section 552 § 552.140. Exception: Confidentiality of Milit ary Discharge Records (a) This section applies only to a military veteran’ s Department of Defense Form DD-214 or other military discharge record that is first recorded with or that otherwise first comes into the possession of a governmental body on or after September 1, 2003. The record is confidential (b) with or otherwise first the date it is recorded for the 75 years following comes into the possession of a governmental body. During that period the governmental body may permit inspection or copying of the record or disclose information c ontained in the record only in accordance with this section or in accordance with a court order. (c) persons may inspect the fication, the following On request and the presentation of proper identi military discharge record or obtain from the governmental body free of charge a copy or certified copy of the record: (1) the veteran who is the subject of the record; (2) the legal guardian of the veteran; (3) the spouse or a child or parent of the veteran or, if there is no living spouse, child, or parent, the nearest living relative of the veteran; (4) the personal representative of the estate of the veteran; 2018 Public Information Act Handbook • Office of the Attorney General 219

236 Text of the Texas Public Information Act (5) the person named by the veteran, or by a pers on described by Subdivisio n (2), (3), or (4), in an appropriate power of attorney execute d in accordance with Subchapters A and B, Chapter 752, Estates Code; (6) another governmental body; or (7) an authorized representative of the funeral ho me that assists with the burial of the veteran. (d) all limit the further disclosure information under this section sh A court that orders the release of of the information and the purposes fo r which the information may be used. ecord shall limit the governmental (e) A governmental body that obtains information from the r for which the information was e information to the purpose body’s use and disclosure of th obtained. § 552.141. Confidentiality of Information in Application for Marriage License vidual that is maintained by a Information that relates to the so cial security number of an indi (a) a marriage license, including information in an county clerk and that is on an application for e affidavit of an absent applicant, or is on a application on behalf of an absent applicant and th confidential and may not be cation for a marriage license is document submitted with an appli disclosed by the county clerk to the public under this chapter. (b) If the county clerk receives a request to make information in a marriage license application all redact the portion of the application that available under this chapter, the county clerk sh remainder of the information in contains an individual’s social security number and release the the application. § 552.142. Exception: Confidentiality of Records Subj ect to Order of Nondisclosure Information is excepted from the requirements of (a) Section 552.021 if an order of nondisclosure spect to the information has been issued under of criminal history record information with re Subchapter E-1, Chapter 411. (b) A person who is the subject of in formation that is excepted from the requirements of Section ce of the criminal proceeding to which the 552.021 under this section may deny the occurren information relates and the exception of th e information under this section, unless the criminal proceeding. information is being used against the pers on in a subsequent § 552.1425. Civil Penalty: Dissemination of Certain Criminal History Information s for compensation criminal history record A private entity that compiles and disseminate (a) ile or disseminate information with information may not comp respect to which the entity has received notice that: (1) an order of expunction has been issued unde Criminal Procedure; r Article 55.02, Code of or 2018 Public Information Act Handbook • Office of the Attorney General 220

237 Text of the Texas Public Information Act (2) an order of nondisclosure of criminal hist ory record information has been issued under Subchapter E-1, Chapter 411. (b) A district court may issue a warn ing to a private entity for a firs t violation of Subsection (a). After receiving a warning for the firs t violation, the private entity is liable to the st ate for a civil penalty not to exceed $1,000 fo r each subsequent violation. g attorney may sue to The attorney general or an appropriate prosecutin (c) collect a civil penalty under this section. (d) A civil penalty collected under this section shall be deposited in the state treasury to the credit of the general revenue fund. § 552.143. Confidentia lity of Certain Investment Information e investment fund and he (a) All information prepared or provided by a privat ld by a governmental body that is not listed in Section 552.0225(b) is confidential and excepted from the requirements of Section 552.021. ed, pre-investment and post-investment diligence Unless the information has been publicly releas (b) ed or maintained by a governmental body or information, including reviews and analyses, prepar nts of Section 552.021, cepted from the requireme a private investment fund is confidential and ex except to the extent it is subject to disclosure under Subsection (c). (c) All information regarding a governmental body’s direct purchase, holding, or disposal of listed in Section 5 52.0225(b)(2)–(9), (11) restricted securities that is not , or (13)–(16) is confidential and excepted from the requirements of Section 552.021. Th is subsection does not apply to a governmental body’s purchase, holding, or disposal of restricted securities for the purpose of reinvestment nor does it apply to a priv ate investment fund’s investment in restricted tion regarding a direct securities. This subsection applies to informa purchase, holding, or disposal of restricted securities by the Texas gr owth fund, created under Section 70, Article XVI, listed in Section 552.0225(b). Texas Constitution, that is not (d) For the purposes of this chapter: (1) “Private investment fund” means an entity, other than a g overnmental body, that issues mental body to evidence the in vestment of public funds for restricted securities to a govern the purpose of reinvestment. investment in a person (2) “Reinvestment” means that makes or will make other investments. ction 230.144(a)(3). gned by 17 C.F.R. Se (3) “Restricted securities” has the meaning assi t C.S., ch. 4 (S.B. 1), § 17.05(1). Repealed by Acts 2011, 82nd Leg., 1s (e) (f) al Insurance Company or a successor to the This section does not apply to the Texas Mutu company. 2018 Public Information Act Handbook • Office of the Attorney General 221

238 Text of the Texas Public Information Act cations of Administrative § 552.144. Exception: Working Papers and Electronic Communi Law Judges at State Office of Administrative Hearings ications of an administrative law judge at the The following working papers and electronic commun requirements of Section 552.021: State Office of Administrative Hearings are excepted from the ing the observations, thoughts, questions, (1) notes and electronic communications record deliberations, or impressions of an administrative law judge; (2) drafts of a proposal for decision; (3) drafts of orders made in connection with conducting contested case hearings; and ith conducting alternative dispute resolution (4) drafts of orders made in connection w procedures. § 552.145. Exception: Confidentiality of Texas No-Call List The Texas no-call list created under Subchapter B, Chapter 304, Busine ss & Commerce Code, and administrator of the national do-not-call registry any information provided to or received from the tions 304.051 and 304.56, Business maintained by the United States government, as provided by Sec & Commerce Code, are excepted from th e requirements of Section 552.021. t or Employee of Legislative n Communications with Assistan § 552.146. Exception: Certai Budget Board (a) All written or otherwise record ed communications, including conversations, correspondence, and electronic communications, betw een a member of the legislat ure or the lieutenant governor and an assistant or employee of the Legislativ e Budget Board are excepte d from the requirements of Section 552.021. Memoranda of a communication between a member of the legislature or the lieutenant governor (b) excepted from the requirements and an assistant or employee of the Legislative Budget Board are of Section 552.021 without regard to the method used to store or maintain the memoranda. (c) This section does not except from required disclosure a record or memoranda of a ublic during an open meeting or communication that occurs in p public hearing conducted by the Legislative Budget Board. § 552.147. Social Security Numbers Except as provided by Subsection (a-1), the social s ecurity number of a living person is excepted (a) not confidential under this section and this from the requirements of Section 552.021, but is person confidential under another section does not make the social security number of a living provision of this chapter or other law. the custody of the district is an employee of a school district in (a-1) The social security number of confidential. 2018 Public Information Act Handbook • Office of the Attorney General 222

239 Text of the Texas Public Information Act (b) A governmental body may redact the social security number of a living person from any der Section 552.021 without the necessity of information the governmental body discloses un requesting a decision from the attorn ey general under Subchapter G. the ordinary course of (c) Notwithstanding any other law, a county or district clerk may disclose in that is contained in information business a social security number held by the clerk’s office, and that disclosure is not official misconduct and does not subject the clerk to civil or criminal liability of any kind under the law of this state, including any cl aim for damages in a lawsuit or the criminal penalty imposed by Section 552.352. a government document, er to be maintained in (d) Unless another law requires a social security numb on written request from an indivi dual or the individual’s repres entative the clerk shall redact within a reasonable amount of time all but the last four digits of the individual’s social security ined in the clerk’s official public records, including number from information mainta under the control of the clerk. The individual electronically stored information maintained by or ing a form provided by the clerk, the specific or the individual’s representative must identify, us document or documents from which the partial so cial security number shall be redacted. § 552.148. Exception: Confid Information Maintained by entiality of Certain Personal Municipality Pertaining to a Minor (a) In this section, “minor” means a person younger than 18 years of age. The following information mainta (b) ined by a municipality for purposes related to the participation by a minor in a recreational program or activity is excepted from the requ irements of Section 552.021: (1) the name, age, home address, home telephone number, or social secu rity number of the minor; (2) a photograph of the minor; and (3) the name of the minor’s parent or legal guardian. § 552.149. Exception: Confidentiality of Records of Co mptroller or Appraisal District Received from Pr ivate Entity Information relating to real proper ty sales prices, descriptions, characteristics, and other related (a) information received from a priv ate entity by the comptroller or the chief appraiser of an appraisal district under Chapter 6, Tax Code, is excepted from the requirements of Section 552.021. Notwithstanding Subsection (a), the property owner or the owner’s agent may, on request, obtain (b) from the chief appraiser of the applicable appr aisal district a copy of each item of information ), Tax Code, and a copy of each item of information that the described by Section 41.461(a)(2 an to introduce at the hearing on the protest. chief appraiser took into consideration but does not pl In addition, the property owner or agent may, the chief appraiser on request, obtain from 2018 Public Information Act Handbook • Office of the Attorney General 223

240 Text of the Texas Public Information Act comparable sales data fr om a reasonable number of sales that is relevant to any matter to be determined by the appraisal review board at th e hearing on the property owner’s protest. Information obtained under this subsection: (1) remains confidential in the possession of the property owner or agent; and (2) may not be disclosed or used for any purpose except as evidence or argument at the hearing on the protest. Notwithstanding Subsection (a) or ssist a property owner or an Section 403.304, so as to a (c) n 403.303, the property owner, the district, or an appraisal district in a protest filed under Sectio agent of the property owner or district may, on request, obtain from the comptroller any information, including confidentia l information, obtained by the comptroller in connection with information obtained by a property the comptroller’s finding that is being protested. Confidential owner, an appraisal district, or an agent of the property owner or district under the subsection: (1) remains confidential in the possession of the property owner, district, or agent; and (2) may not be disclosed to a pers on who is not authorized to rece ive or inspect the information. Notwithstanding Subsection (a) or Section 403.304, so as to as sist a school district in the (d) the school district or an agent to be filed under Section 403.303, preparation of a protest filed or of the school district may, on request, obtain from the comptroller or the appraisal district any information, including confidential informati on, obtained by the comptrol ler or the appraisal district that relates to the appraisal of property in volved in the comptroller’ s finding that is being protested. Confidential information obtained by a school district or an agent of the school district under this subsection: (1) remains confidential in the possession of the school district or agent; and (2) may not be disclosed to a pers on who is not authorized to rece ive or inspect the information. This section applies to informa to an item of (c), and (d) and tion described by Subsections (a), (e) information or comparable sales data describe d by Subsection (b) only if the information, item of information, or comparable sales data relates to real property that is located in a county having a population of more than 50,000. at Could Compromise Safety of § 552.150. Exception: Confidentiality of Information Th Officer or Employee of Hospital District Information in the custody of a hospital district (a) that relates to an empl oyee or officer of the e requirements of Section 552.021 if: hospital district is excepted from th (1) it is information that, if disclosed under the specific circumstances pertaining to the mpromise the safety of the individual, such individual, could reasonably be expected to co likeness of the individual, information stating as information that describes or depicts the departs from work, a description of the the times that the individual arrives at or ere the individual works or parks; and individual’s automobile, or the location wh 2018 Public Information Act Handbook • Office of the Attorney General 224

241 Text of the Texas Public Information Act (2) the employee or officer applies in writing to the hospital district’s officer for public information to have the information withheld from public disclosure under this section and includes in the application: (A) a description of the information; and (B) the specific circumstances pertaining to the individual that demonstrate why disclosure of the information could reasonabl y be expected to compromise the safety of the individual. described in an application submitted under On receiving a written request for information (b) r public information shall: Subsection (a)(2), the officer fo (1) request a decision from the attorney genera l in accordance with Section 552.301 regarding formation; and withholding the in (2) include a copy of the appli cation submitted under Subsection (a )(2) with the request for the decision. g., ch. 609 (S.B. 470), § 1. (c) Repealed by Acts 2011, 82nd Le § 552.151. Exception: ncerning Information Regarding Confidentiality of Information Co Select Agents ains to a biological agent or toxin identified or listed as a The following information that pert (a) select agent under federal law, including under th e Public Health Security and Bioterrorism Preparedness and Response Ac t of 2002 (Pub. L. N o. 107-188) and regulations adopted under quirements of Section 552.021: that Act, is excepted from the re (1) the specific location of a select agent within an approved facility; (2) personal identifying information of an indi vidual whose name appears in documentation ts, including a materials transfer agreement; relating to the chain of custody of select agen and access a select agent. (3) the identity of an individual authorized to possess, use, or This section does not except from disclosure the identity of the sel ect agents present at a facility. (b) This section does not except from disclosure the (c) identity of an individual faculty member or employee whose name a ppears or will appear on published research. (d) This section does not except from disclosure ot herwise public informatio n relating to contracts of a governmental body. ssess, use, or access a If a resident of another state is present in Texa s and is authorized to po (e) ch or other work at select agent in conducting resear a Texas facility, information relating to the 2018 Public Information Act Handbook • Office of the Attorney General 225

242 Text of the Texas Public Information Act chapter only to the extent the identity of that individual is s ubject to disclosure under this information would be subject to disclosure under the laws of the state of which the person is a resident. § 552.152. Exception: Confidentiality of Information Concerning Public Employee or Officer Personal Safety Information in the custody of a g overnmental body that relates to an employee or officer of the governmental body is excepted from the requireme , under the specific nts of Section 552.021 if circumstances pertaining to the employee or office r, disclosure of the info rmation would subject the employee or officer to a substa ntial threat of physical harm. s and Trade Secrets Involved § 552.153. Proprietary Record in Certain Partnerships (a) In this section, “affected jurisdiction,” “comprehensive agreement,” “contracting person,” “interim agreement,” “qualifying project,” a nd “responsible governmental entity” have the rms by Section 2267.001. meanings assigned those te mental entity that rela Information in the custody of a responsible govern tes to a proposal for a (b) 2267 is excepted from the requirements of qualifying project authorized under Chapter Section 552.021 if: (1) the information consists of memoranda, sta ff evaluations, or other records prepared by the staff, outside advisors, or consultants exclusively for responsible governmental entity, its als filed under Chapter 2267 for which: the evaluation and negotiation of propos re or after the execution of an interim or comprehensive (A) disclosure to the public befo agreement would adversely affect the financ ial interest or bargaining position of the responsible governmental entity; and in writing by the (B) aph (A) is documented the basis for the determination under Paragr responsible governmental entity; or (2) the records are provided by a proposer to a re sponsible governmental entity or affected jurisdiction under Chapter 2267 and contain: (A) trade secrets of the proposer; (B) financial records of the proposer, including balance sheets and financial statements, that are not generally available to the public through regulatory disclosure or other means; or work product related to a co bmitted by the proposer that, mpetitive bid or proposal su (C) if made public before the execution of an interim or comprehensive agreement, would an unjust advantage or adve rsely affect the financial provide a competing proposer interest or bargaining position of the re sponsible governmental entity or the proposer. 2018 Public Information Act Handbook • Office of the Attorney General 226

243 Text of the Texas Public Information Act Subsection (b), this section does not authorize the withholding Except as specifically provided by (c) of information concerning: (1) the terms of any interim or comprehensive agreement, service contract, lease, partnership, the responsible governmental entity and the or agreement of any kind entered into by ing arrangement that in volves the use of any contracting person or the terms of any financ public money; or (2) the performance of any person developi ng or operating a qualifying project under Chapter 2267. aning assigned by Section 2267.001. (d) In this section, “proposer” has the me Applicant for Executive Directo r, Chief Investment Officer, § 552.154. Exception: Name of or Chief Audit Executive of Teac her Retirement System of Texas ment officer, or chief The name of an applicant for the position of execu tive director, chief invest audit executive of the Teacher Re xas is excepted from the requirements of tirement System of Te of the Teacher Retirement System of Texas must Section 552.021, except that the board of trustees r one of those positions at least three finalists being considered fo give public notice of the names of action or vote is to be taken on choosing a ting at which the final 21 days before the date of the mee finalist for employment. Confidentiality of Certain Pr operty Tax Appraisal Photographs § 552.155. Exception: otograph that is taken by the chief appraiser of (a) Except as provided by Subsection (b) or (c), a ph an appraisal district or the chief appraiser’s au thorized representative for property tax appraisal purposes and that shows the interi or of an improvement to property is confidential and excepted from the requirements of Section 552.021. se a photograph described by Subs A governmental body shall disclo (b) ection (a) to a requestor who had an ownership interest in the improvement to photograph on the date property shown in the the photograph was taken. (c) A photograph described by Subsection (a) may be us ed as evidence in and provided to the parties ination by the appraisal review to a protest under Chapter 41, Tax Code, or an appeal of a determ a matter protested or to the determination of board under Chapter 42, Tax Code, if it is relevant appealed. A photograph that is used as evidence: is disclosed; and (1) remains confidential in the possession of the person to whom it (2) may not be disclosed or used for any other purpose. (c-1) Notwithstanding any other law, a photogra ph described by Subsection (a) may be used to mit oil and gas for purposes of ent used to produce or trans ascertain the location of equipm taxation if that equipment is located on January 1 in the appraisal district that appraises property for the equipment for the pr eceding 365 consecutive days. 2018 Public Information Act Handbook • Office of the Attorney General 227

244 Text of the Texas Public Information Act Confidentiality of Conti § 552.156. Exception: nuity of Operations Plan Except as otherwise provided by this section, the following informatio n is excepted from (a) disclosure under this chapter: (1) a continuity of operations plan deve loped under Section 412.054, Labor Code; and (2) all records written, produced, collected, assembled, or maintain ed as part of the development or review of a continuity of ope under Section 412.054, rations plan developed Labor Code. (b) Forms, standards, and other instructional, info rmational, or planning materials adopted by the office to provide guidance or assistance to a state agency in developing a continuity of operations plan under Section 412.054, Labor Code, are public information subject to disclosure under this chapter. lose or make available informati (c) A governmental body may disc on that is confidential under this body or a federal agency. section to another governmental governmental body or Disclosing information to another (d) a federal agency under this section does the confidentiality of that information. not waive or affect rmation Regarding Applicant for § 552.158. Exception: Confidentiality of Personal Info Appointment by Governor The following information obtained by the governor or senate in co nnection with an applicant for an appointment by the governor is excepted from the requirements of Section 552.021: the applicant’s home address; (1) (2) the applicant’s home telephone number; and the applicant’s social security number. (3) SUBCHAPTER D. OFFICER FOR PUBLIC INFORMATION § 552.201. Identity of Offi cer for Public Information (a) The chief administrative officer of a governmental body is the of ficer for public information, except as provided by Subsection (b). (b) ic information and the custodian, as defined by Each elected county officer is the officer for publ Code, of the information created or received by that county Section 201.003, Local Government officer’s office. 2018 Public Information Act Handbook • Office of the Attorney General 228

245 Text of the Texas Public Information Act § 552.202. Department Heads t of the officer for public informa Each department head is an agen tion for the purposes of complying with this chapter. fficer for Public Information § 552.203. General Duties of O to penalties provided in this chapter, shall: Each officer for public information, subject (1) make public information availa ble for public inspection and copying; alteration, mutilation, loss, or (2) carefully protect public in formation from deterioration, unlawful removal; and ation as necessary to maintain it properly. (3) repair, renovate, or rebind public inform § 552.204. Scope of Responsibility of Officer for Public Information responsible for the release of public information as required by An officer for public information is this chapter. The officer is not responsible for: rmation by the requestor; or (1) the use made of the info ter it is removed from a record as a result of an update, a (2) the release of information af information pertains. person to whom the correction, or a change of status of the § 552.205. Informing Pu onsibilities Under this Chapter blic of Basic Rights and Resp (a) An officer for public informatio n shall prominently display a sign in the form pres cribed by the attorney general that contains basic inform ation about the rights of a requestor, the body, and the procedures for in responsibilities of a governmental specting or obtaining a copy y the sign at one or more places chapter. The officer shall displa of public information under this ental body where it is plainly visible to: in the administrative offices of the governm (1) members of the public who request public information in person under this chapter; and (2) employees of the governmen tal body whose duties include receiving or responding to requests under this chapter. The attorney general by rule shall prescribe the (b) content of the sign and the size, shape, and other physical characteristics of the sign. In prescribin g the content of the sign, the attorney general a requestor, the responsibilities shall include plainly written basi c information about the rights of ining a copy of public of a governmental body, and the procedures for inspecting or obta of the attorney general, is most useful for information under this chapter that, in the opinion bodies who receive or respond to requests ees of governmental requestors to know and for employ for public information to know. 2018 Public Information Act Handbook • Office of the Attorney General 229

246 Text of the Texas Public Information Act SUBCHAPTER E. PROCE DURES RELATED TO ACCESS § 552.221. Application for Public Information; Produc tion of Public Information (a) An officer for public informa tion of a governmental body sh all promptly produce public information for inspection, duplica tion, or both on application by any person to the officer. In this subsection, “promptly” means as soon as possi ble under the circumstances, that is, within a reasonable time, without delay. (b) complies with Subsection (a) by: An officer for public information (1) providing the public information for inspec tion or duplication in the offices of the governmental body; or (2) sending copies of the public information by first class United States mail if the person requesting the information requests that copi es be provided and pays the postage and any other applicable charges that the reque stor has accrued under Subchapter F. (b-1) In addition to the methods of production described by Subsec tion (b), an officer for public ith Subsection (a) by referring a requestor to information for a governmental body complies w locator (URL) address an exact Internet location or uniform resource on a website maintained public if the requested information is by the governmental body and accessible to the e. If the person requesting the information identifiable and readily available on that websit URL, the governmental prefers a manner other than access through the body must supply the quired by Subsection (b). information in the manner re (b-2) If an officer for public information for a governmental bo dy provides by e-mail an Internet location or uniform resource lo cator (URL) address as permitte d by Subsection (b-1), the e- mail must contain a statement in a conspicuous font clearly indicating that the requestor may nonetheless access the requested information by insp ection or duplication or by receipt through United States mail, as provided by Subsection (b). If the requested information is unavailable at the examine because it is in time of the request to (c) fact in writing to the active use or in storage, the officer for public info rmation shall certify this ble time when the information will be available requestor and set a date and hour within a reasona for inspection or duplication. (d) If an officer for public information canno t produce public information for inspection or after the date the informati on is requested under Subsection duplication within 10 business days (a), the officer shall certify that fact in writing to the requestor and set a date and hour within a reasonable time when the inform ation will be available for inspection or duplication. the requestor fails to A request is considered to have been withdrawn if inspect or duplicate the (e) of the governmental body on or public information in the offices before the 60th day after the date the information is made ava ilable or fails to pay the postage and any other applicable charges accrued under Subchapter F on or be r the date the requestor is informed of fore the 60th day afte the charges. 2018 Public Information Act Handbook • Office of the Attorney General 230

247 Text of the Texas Public Information Act § 552.222. Permissible In quiry by Governmental Body to Requestor (a) s agent may not make an inquiry of a requestor The officer for public information and the officer’ as provided by Subsection except to establish proper identification or except (b), (c), or (c-1). to the governmental bod y, the governmental body (b) If what information is requested is unclear a large amount of information has been requested, may ask the requestor to clarify the request. If stor how the scope of a request might be the governmental body may discuss with the reque narrowed, but the governmental body may not i nquire into the purpose for which information will be used. If the information requested relates to a motor vehicle record, the officer (c) for public information or the officer’s agent may require the requestor to provide additional identifying information sufficient for the officer or the officer’s agent to determine whethe r the requestor is eligible to sportation Code. In this subsection, “motor receive the information under Chapter 730, Tran Transportation Code. vehicle record” has the meaning assigned that term by Section 730.003, (c-1) If the information requested includes a photog raph described by Secti on 552.155(a), the officer ficer’s agent may require the requestor to provide additional for public information or the of information sufficient for the o determine whether the requestor fficer or the officer’s agent to rmation under Section 552.155(b). is eligible to receive the info (d) a governmental body sends a writte n request for clarification or If by the 61st day after the date for public information or agent sends a written discussion under Subsection (b) or an officer on (c) the governmental body, officer for public request for additional information under Subsecti information, or agent, as applicable, does not receive a written response from the requestor, the underlying request for public information is consid ered to have been withdrawn by the requestor. (e) A written request for clarificatio n or discussion under Subsecti on (b) or a written request for additional information under Subsec tion (c) must include a statemen t as to the consequences of the failure by the requestor to timely respond to the request for clarification, discussion, or additional information. (f) lic information included estor’s request for pub Except as provided by Subsection (g), if the requ the requestor’s physical or maili ng address, the request may not be considered to have been for public information, mental body, officer withdrawn under Subsection (d) unless the govern or agent, as applicable, sends th scussion under Subsection (b) or e request for clarification or di the written request for additional information under Subsection (c) to that address by certified mail. ublic information was sent by electronic mail, the request may be If the requestor’s request for p (g) considered to have been withdrawn under Subsection (d) if: for public information, or agent, as applicable, sends the (1) the governmental body, officer request for clarification or discussion unde r Subsection (b) or the written request for electronic mail to the same electronic mail additional information under Subsection (c) by request was sent or to an address from which the original other electronic mail address provided by the requestor; and 2018 Public Information Act Handbook • Office of the Attorney General 231

248 Text of the Texas Public Information Act , officer for public information, (2) the governmental body or agent, as applicable, does not receive from the requestor a written respons e or response by electronic mail within the period described by Subsection (d). § 552.223. Uniform Treatment of Requests for Information The officer for public information or the office r’s agent shall treat all requests for information uniformly without regard to the position or occ upation of the requestor, the person on whose behalf the request is made, or the status of th e individual as a member of the media. § 552.224. Comfort and Facility The officer for public informatio n or the officer’s agent shall give to a requestor all reasonable comfort and facility for the full exercise of the right granted by this chapter. § 552.225. Time for Examination the 10th business rmation not later than (a) A requestor must complete the ex amination of the info day after the date the custodian of e. If the requestor does not the information makes it availabl of the information within 10 business days after the date the custodian complete the examination est for additional time e and does not file a requ of the information makes the information availabl under Subsection (b), the requestor is cons idered to have withdrawn the request. The officer for public informatio n shall extend the in itial examination period by an additional 10 (b) business days if, within the initial period, th e requestor files with the officer for public information a written request for a dditional time. The officer for pu blic information shall extend an additional examination period by another 10 business days if , within the additional period, the requestor files with the of ficer for public information a wr itten request for more additional time. The time during which a person may examine info ed by the officer for rmation may be interrupt (c) public information if the information is needed for use by the governme ntal body. The period to be a part of the time du ring which the person may examine of interruption is not considered the information. § 552.226. Removal of Original Record This chapter does not authorize a requestor to remove an original copy of a public record from the office of a governmental body. State Library Holdings Not Required § 552.227. Research of An officer for public information or the officer’s agent is not required to perform general research ives and holdings of state libraries. within the reference and research arch 2018 Public Information Act Handbook • Office of the Attorney General 232

249 Text of the Texas Public Information Act n Within Reasonable Time § 552.228. Providing Suitable Copy of Public Informatio (a) It shall be a policy of a governmental body to provide a suitable copy of public information is requested. within a reasonable time after the da te on which the copy or magnetic medium, the requestor may request a If public information exists in an electronic (b) copy in an electronic medium, such as on di skette or on magnetic tape. A governmental body shall provide a copy in the requested medium if: ability to produce a copy of the requested (1) the governmental body has the technological information in the requested medium; purchase any software or hardware to (2) the governmental body is not required to accommodate the request; and dium will not violate the terms information in the requested me (3) provision of a copy of the of any copyright agreement between the governmental body and a third party. st to produce a copy of information in a comply with a reque (c) If a governmental body is unable to bed by this section, the governmental body shall requested medium for any of the reasons descri provide a copy in another medium that is accep table to the requestor. A governmental body is al provided by the requestor but n onto a diskette or other materi not required to copy informatio may use its own supplies. ase Information Under Special Right of Access § 552.229. Consent to Rele (a) Consent for the release of info rmation excepted from disclosu re to the general public but available to a specific person under Sections 552. 023 and 552.307 must be in writing and signed by the specific person or the pers on’s authorized representative. (b) An individual under 18 years of age may consent to the release of information under this section on of the individual’s parent or guardian. only with the additional written authorizati e individual’s personal affairs dicated incompetent to manage th An individual who has been adju (c) or for whom an attorney ad lite m has been appointed may consent to the release of information under this section only by the written authorizatio n of the designated legal guardian or attorney ad litem. re for Inspection and Copyin § 552.230. Rules of Procedu g of Public Information (a) A governmental body may prom ulgate reasonable rules of procedure under which public information may be inspected and copied efficiently, safely, and without delay. A rule promulgated under Subsection (a) may not be inconsistent with any provision of this (b) chapter. 2018 Public Information Act Handbook • Office of the Attorney General 233

250 Text of the Texas Public Information Act formation That Require Programming or § 552.231. Responding to Requests for In Manipulation of Data ll provide to a requestor the written statement described by Subsection (a) A governmental body sha (b) if the governmental body determines: (1) that responding to a request for public information will require programming or manipulation of data; and (2) that: (A) in substantial interference not feasible or will result compliance with the request is with its ongoing operations; or the information could be made available in (B) the requested form only at a cost that covers the programming and manipulation of data. The written statement must include: (b) not available in the requested form; (1) a statement that the information is rmation is available; form in which the info (2) a description of the (3) a description of any contract or services th at would be required to provide the information in the requested form; (4) a statement of the estimated cost of providing the informa tion in the requested form, as determined in accordance with the rules es tablished by the attorney general under Section 552.262; and (5) a statement of the anticipated time required to provide the information in the requested form. (c) The governmental body shall provide the written statement to the requestor within 20 days after of the request. The governmental body has an the date of the governmental body’s receipt additional 10 days to provide the statement if the governmental body gives written notice to the requestor, within 20 days after the date of receipt of the request, th at the additional time is needed. On providing the written statemen t to the requestor as required (d) by this section, the governmental body does not have any further oblig ation to provide the information in the requested form or in the form in which it is availabl e unless within 30 days the reque stor states in writing to the governmental body that the requestor: (1) wants the governmental body to provide the information in the requested form according e statement or according to other terms to which to the cost and time parameters set out in th the requestor and the governmental body agree; or form in which it is available. (2) wants the information in the 2018 Public Information Act Handbook • Office of the Attorney General 234

251 Text of the Texas Public Information Act (d-1) If a requestor does not make a timely written statement under Subsection (d), the requestor is n the request for information. considered to have withdraw (e) The officer for public informatio n of a governmental body shall establish policies that assure the on that require programming or expeditious and accurate processi ng of requests for informati manipulation of data. A gover maintain a file containing all written nmental body shall statements issued under this section in a readily accessible location. § 552.232. Responding to Repetitious or Redundant Requests A governmental body that determines that a re questor has made a request for information for (a) which the governmental body has previously furnis hed copies to the requestor or made copies available to the requestor on payment of applicab le charges under Subchapter F, shall respond to the request, in relation to th e information for which copies ha ve been already furnished or ith this section, except that: made available, in accordance w ng the information or (1) this section does not prohibit the governmen tal body from furnishi making the information available to the requestor again in accordance with the request; and this section in relation to information quired to comply with (2) the governmental body is not re that the governmental body simply furnishes or makes available to the requestor again in accordance with the request. The governmental body shall certify to the requesto r that copies of all or part of the requested (b) information, as applicable, were previously furnished to the reque stor or made av ailable to the The certification must include: requestor on payment of applicab le charges under Subchapter F. (1) a description of the informa tion for which copies have been previously furnished or made available to the requestor; d the requestor’s original request for that (2) the date that the governmental body receive information; (3) the date that the governmental body previo usly furnished copies of or made available copies of the informa tion to the requestor; (4) a certification that no subse quent additions, deletions, or corrections have been made to that information; and (5) the name, title, and signature of the officer for public information or the officer’s agent making the certification. A charge may not be imposed for making a nd furnishing a certification required under (c) Subsection (b). y has not previously (d) which the governmental bod This section does not apply to information for es available to the requestor on payment of furnished copies to the requestor or made copi 2018 Public Information Act Handbook • Office of the Attorney General 235

252 Text of the Texas Public Information Act applicable charges under Subchapter F. A reque st by the requestor for information for which copies have not previously been furnished or made available to th e requestor, including information for which copies were not furnished or made available because the information was redacted from other information that was furnished or made available or because the information did not yet exist at the time of an earlier request, shall be treated in the same manner as any other request for information under this chapter. ING COPIES OF PUBLIC INFORMATION SUBCHAPTER F. CHARGES FOR PROVID Providing Copies of Public Information § 552.261. Charge for (a) The charge for providing a copy of public in formation shall be an amount that reasonably includes all costs related to reproducing the publ ic information, including costs of materials, labor, and overhead. If a request is for 50 or fewer pages of paper records, the charge for may not include costs of materials, labor, or providing the copy of the public information overhead, but shall be limited to the charge for each page of the paper reco rd that is photocopied, unless the pages to be photocopied are located in: (1) two or more separate buildings that are not physically connected with each other; or (2) a remote storage facility. If the charge for providing a copy of public information includes costs of labor, the requestor (b) may require the governmental body tion or the officer’s agent to ’s officer for public informa provide the requestor with the amount of time that was required to a written statement as to produce and provide the copy. The statement must be signed by the officer for public information or the officer’s agent and the officer’s or the agent’s name must be typed or legibly printed below the signature. A charge may not be imposed fo r providing the written statement to the requestor. (c) For purposes of Subsection (a), a connection of two buildings by a covered or open sidewalk, an elevated or underground passageway, or a similar fac ility is insufficient to cause the buildings to be considered separate buildings. on are considered to accrue at the time the Charges for providing a copy of public informati (d) or that the copy is available on payment of the applicable governmental body advises the request charges. quests received in one calendar day from (e) Except as otherwise provided by this subsection, all re an individual may be treated as a single request for purposes of calcul ating costs under this chapter. A governmental body may not combin e multiple requests under this subsection from separate individuals who submit reques ts on behalf of an organization. § 552.2615. Required Itemized Estimate of Charges If a request for a copy of public in the imposition of a charge under this (a) information will result ect a paper record will result in the imposition subchapter that exceeds $40, or a request to insp mental body shall provide the 71 that exceeds $40, the govern of a charge under Section 552.2 2018 Public Information Act Handbook • Office of the Attorney General 236

253 Text of the Texas Public Information Act requestor with a written itemized st atement that details all estimate d charges that w ill be imposed, labor or personnel costs. If an including any allowable charges for alternative less costly method of viewing the records is available, the statem ent must include a notice that the requestor may contact the governmental body re garding the alternative method. The governmental body must or by this section and of the inform the requestor of the re sponsibilities imposed on the request rights granted by this entire section and give the requestor the information needed to respond, including: (1) that the requestor must provide the go vernmental body with a mailing, facsimile transmission, or electronic mail address to receive th e itemized statement and that it is the requestor’s choice which type of address to provide; (2) that the request is consider ed automatically wit hdrawn if the requestor does not respond in writing to the itemized statement and any u pdated itemized statement in the time and manner required by this section; and (3) that the requestor may respond to the stat ement by delivering the written response to the governmental body by mail, ission if the governmental body in person, by facsimile transm that manner, or by electronic mail if the is capable of receiving documents transmitted in governmental body has an electronic mail address. (b) A request described by Subsection (a) is considered to have been withdrawn by the requestor if the itemized statement by informing the the requestor does not respond in writing to governmental body within 10 business days after the date the statement is sent to the requestor that: (1) the requestor will accept the estimated charges; (2) the requestor is modifying the request in response to the itemized statement; or (3) the requestor has sent to the attorney gene ral a complaint alleging that the requestor has been overcharged for being provided w ith a copy of the public information. If the governmental body later determines, but (c) before it makes the copy or the paper record charges will exceed th the written itemized e charges detailed in available, that the estimated statement by 20 percent or mo re, the governmental body shall send to the requestor a written updated itemized statement that details all estimate d charges that will be imposed, including any If the requestor does not respond in writing to allowable charges for labor or personnel costs. the updated estimate in the ti me and manner described by Subsection (b), the request is considered to have been withdrawn by the requestor. of public information, or for rnmental body imposes for a copy (d) If the actual charges that a gove , exceeds $40, the charges may not exceed: inspecting a paper record under Section 552.271 updated itemized statement; or (1) the amount estimated in the (2) if an updated itemized statement is not sent to the requestor, an amount that exceeds by 20 mated in the itemized statement. percent or more the amount esti 2018 Public Information Act Handbook • Office of the Attorney General 237

254 Text of the Texas Public Information Act (e) An itemized statement or updated itemized statemen t is considered to have been sent by the governmental body to the reque stor on the date that: to the requestor in person; (1) the statement is delivered (2) the governmental body deposits the properly addressed statement in the United States mail; or (3) the governmental body transmits the properl y addressed statement by electronic mail or to receive the statement by electronic mail facsimile transmission, if the requestor agrees or facsimile transmission, as applicable. (f) A requestor is considered to have responded to the itemized statement or the updated itemized statement on the date that: (1) the response is delivered to the governmental body in person; essed response in the (2) the requestor deposits the properly addr United States mail; or (3) the requestor transmits the properly a ddressed response to the governmental body by electronic mail or facsimile transmission. (g) The time deadlines imposed by this section do not affect the application of a time deadline y under Subchapter G. imposed on a governmental bod § 552.262. Rules of the Attorney General The attorney general shall adopt rules for use by (a) in determining charges each governmental body this subchapter and in determining the charge, for providing copies of public information under deposit, or bond required for maki ng public information that exists in a pa per record available opted by the attorney for inspection as authorized by Sections 552.271(c) and (d). The rules ad general shall be used by each g overnmental body in determining charges for providing copies of public information and in determining the charge , deposit, or bond required for making public information that exists in a paper record availabl e for inspection, except to the extent that other law provides for charges for specific kinds of public information. The charges for providing sive and may not exceed the actual cost of copies of public information may not be exces producing the information or for ma ts in a paper record available king public information that exis ental body, other than an agency of state government, may determine for inspection. A governm its own charges for providing copies of public information and its own ch arge, deposit, or bond paper record available fo for making public information that exists in a r inspection but may not charge an amount that is greater than 25 percent more than the amount estab lished by the attorney general unless the governmental body reque sts an exemption unde r Subsection (c). ibe the methods for computing the charges for The rules of the attorney general shall prescr (b) providing copies of public information in pape r, electronic, and other kinds of media and the information that exists in a paper record charge, deposit, or bond required for making public available for inspection. The ru rious components of charges for les shall establish costs for va 2018 Public Information Act Handbook • Office of the Attorney General 238

255 Text of the Texas Public Information Act providing copies of public information that sh all be used by each governmental body in providing copies of public information or making public information that exists in a paper record available for inspection. (c) A governmental body may request th at it be exempt from part or all of the rules adopted by the attorney general for determining charges for providing copies of pub lic information or the charge, deposit, or bond required for maki ng public information that exists in a pa per record available be made in writing to the atto for inspection. The request must rney general and must state the reason for the exemption. If the attorney general determines that good cause exists for exempting a governmental body from a part or all of the rules, the atto rney general shall give written notice of the determination to the governmental body with in 90 days of the reque st. On receipt of the determination, the governmental body may amen d its charges for providing copies of public information or its charge, deposit, or bond require d for making public information that exists in a paper record available for inspection according to the determination of the attorney general. (d) The attorney general shall pub lish annually in the Texas Regist er a list of the governmental bodies that have authorization from the attorn ey general to adopt an y modified rules for determining the cost of providing copies of public information or making public information that available for inspection. exists in a paper record (e) a state governmental body that is not a state The rules of the attorney general do not apply to agency for purposes of Subtitle D, Title 10. § 552.263. Bond for P ayment of Costs or Cash Prepaymen t for Preparation of Copy of Public Information (a) An officer for public information or the officer’s agent may require a deposit or bond for payment of anticipated costs for the preparatio n of a copy of pub lic information if: (1) the officer for public inform ation or the officer’s agent has provided the requ estor with the written itemized statement required under Sec tion 552.2615 detailing the estimated charge for providing the copy; and e copy of the public informatio (2) the charge for providing th n specifically requested by the governmental body to exceed: requestor is estimated by the (A) $100, if the governmental body has more than 15 full-time employees; or (B) $50, if the government al body has fewer than 16 full-time employees. (b) The officer for public informatio n or the officer’s agent may not require a deposit or bond be paid under Subsection (a) as a do wn payment for copies of public information that the requestor may request in the future. (c) or the officer’s agent may require a deposit or bond for payment An officer for public information e governmental body in relation of unpaid amounts owing to th to previous requests that the eparing a copy of public requestor has made under this chapter before pr information in response 2018 Public Information Act Handbook • Office of the Attorney General 239

256 Text of the Texas Public Information Act The officer for public information or the to a new request if those unpaid amounts exceed $100. ough any other means. e unpaid amounts thr officer’s agent may not seek payment of thos (d) ount of those unpaid amounts document the existence and am The governmental body must fully pplicable, before requiring a deposit or bond under or the amount of any anticipated costs, as a this section. The documentation disclosure under this chapter. is subject to required public (e) For purposes of Subchapters F and G, a request for a copy of public information is considered to have been received by a governmental body on the date the governmental body receives the s or unpaid amounts if deposit or bond for payment of anticipated cost the governmental body’s it or bond in ac officer for public information or the officer’s agent requires a depos cordance with this section. (e-1) If a requestor modifies the request in response to the requ irement of a deposit or bond authorized by this section, th e modified request is consider ed a separate request for the purposes of this chapter and is considered received on the date the governmental body receives the written modified request. (f) t a bond required under Subsection (a) before the A requestor who fails to make a deposit or pos is required is considered to have withdrawn 10th business day after the date the deposit or bond lic information that precipitate d the requirement of the deposit the request for the copy of the pub or bond. § 552.264. Copy of Public Information Requested by Member of Legislature One copy of public information th at is requested from a state ag ency by a member, agency, or committee of the legislature under Section 552.008 shall be provided without charge. § 552.265. Charge Fo r Paper Copy Provided by Di strict or County Clerk made by a district or county cl erk’s office shall be the charge The charge for providing a paper copy other applicable law. cal Government Code, or provided by Chapter 51 of this code, Chapter 118, Lo § 552.266. Charge For Copy of Public Information Prov ided by Municipal Court Clerk The charge for providing a copy made by a municipal court clerk shall be the charge provided by municipal ordinance. § 552.2661. Charge for Copy of Public Information Provid ed by School District A school district that receives a request to prod uce public information fo r inspection or publication estor who, within the preceding 180 information in response to a requ or to produce copies of public y written itemized statements of esti days, has accepted but failed to pa mated charges from the district as provided under Section pay the estimated charges for the 552.261(b) may require the requestor to request before the request is fulfilled. 2018 Public Information Act Handbook • Office of the Attorney General 240

257 Text of the Texas Public Information Act § 552.267. Waiver or Re duction of Charge for Providin g Copy of Public Information (a) A governmental body shall provide a copy of public information w ithout charge or at a reduced charge if the governmental body determines that waiv er or reduction of the charge is in the public interest because providing the copy of the info rmation primarily benefits the general public. (b) on of a charge for providing a copy mental body of processing the collecti If the cost to a govern of public information will ex ceed the amount of the charge, the governmental body may waive the charge. § 552.268. Efficient Use of Public Resources A governmental body shall make reasonably efficient use of supplies and other resources to avoid excessive reproduction costs. for Copy of Public Information § 552.269. Overcharge or Overpayment s been overcharged for being A person who believes the person ha provided with a copy of public (a) e attorney general in writing of the alleged overcharge, setting information may complain to th forth the reasons why the person believes the charges are excessive. The attorney general shall a determination in writing as to the appropriate charge for review the complaint and make The governmental body shall respond to the providing the copy of the requested information. of the governmental body by the attorney general attorney general to any written questions asked the public information. The response must be regarding the charges for providing the copy of made to the attorney general with in 10 business days after the da te the questions are received by e attorney general determines that a governmental body has the governmental body. If th public information, the overcharged for providing the copy of requested governmental body shall promptly adjust its charges in accordance with the determination of the attorney general. A person who overpays for a copy of public information because a governmental body refuses (b) the attorney general is entitled to recover three or fails to follow the rules for charges adopted by did not act in good faith in arge if the governmental body times the amount of the overch computing the costs. § 552.270. Charge for G overnment Publication (a) This subchapter does not apply to a publica tion that is compiled an d printed by or for a is not determined by governmental body for public dissemination. If th e cost of the publication state law, a governmental body may determin e the charge for providing the publication. This section does not prohibit a governmental body (b) from providing a publication free of charge if state law does not require th at a certain charge be made. § 552.271. Inspection of Public Information in Paper Record if Copy Not Requested information, a charge may not be imposed for If the requestor does not request a copy of public (a) n that exists in a paper record, except as making available for inspection any public informatio provided by this section. 2018 Public Information Act Handbook • Office of the Attorney General 241

258 Text of the Texas Public Information Act (b) If a requested page contains confidential informat ion that must be edited from the record before the information can be made available for inspect ion, the governmental body may charge for the cost of making a photocopy of th st be edited. No e page from which conf idential information mu charge other than the cost of the photoc opy may be imposed under this subsection. or the officer’s agent (c) Except as provided by Subsection (d), an officer for public information may require a requestor to pay, or to make a de posit or post a bond for the payment of, anticipated personnel costs for making available for inspecti on public information th at exists in paper records only if: (1) the public information specifica lly requested by the requestor: (A) is older than five years; or (B) completely fills, or when assembled will comp letely fill, six or more archival boxes; and more than five hours (2) the officer for public information or the office r’s agent estimates that the public information av ailable for inspection. will be required to make (d) ll-time employees, the payment, the deposit, or If the governmental body has fewer than 16 fu (c) may be required only if: the bond authorized by Subsection (1) the public information specifica lly requested by the requestor: is older than three years; or (A) (B) completely fills, or when assembled will comp letely fill, three or more archival boxes; and (2) the officer for public information or the offi cer’s agent estimates that more than two hours ailable for inspection. the public information av will be required to make Record if Copy Not Requested § 552.272. Inspection of Electronic (a) In response to a request to inspect information that exists in an electronic medium and that is not available directly on-line to the requestor, a charge may not be imposed for access to the ith the request will require pr ogramming or manipulation of information, unless complying w data. If programming or manipulation of data is required, the governmental body shall notify the requestor before assembling the information and provide the requestor with an estimate of ation available. A charge under this section charges that will be imposed to make the inform must be assessed in accordan ce with this subchapter. If public information exists in an electroni c form on a computer owned or leased by a (b) ic has direct access to that computer through a computer governmental body and if the publ the information may be electronically copied network or other means, the electronic form of arge if accessing the informa from that computer without ch tion does not require processing, 2018 Public Information Act Handbook • Office of the Attorney General 242

259 Text of the Texas Public Information Act government-leased computer on the government-owned or programming, or manipulation before the information is copied. c form on a computer owned or leased by a If public information exists in an electroni (c) ic has direct access to that computer through a computer governmental body and if the publ quires processing, programming, or manipulation network or other means and the information re ntal body may impose charges in accordance before it can be electronically copied, a governme with this subchapter. (d) If information is created or kept in an electr onic form, a governmental body is encouraged to explore options to separate out confidential info rmation and to make public information available or by other means. h a computer network to the public through electronic access throug (e) from imposing a charge for The provisions of this section that prohibit a governmental entity access to information that exists in an electronic the collection of a fee medium do not apply to set by the supreme court after consultation w ith the Judicial Committee on Information puterized electronic judicial ction 77.031 for the use of a com Technology as authorized by Se information system. General on Cost of Copies § 552.274. Report by Attorney The attorney general shall: (a) ttorney general about the charges made by state (1) biennially update a report prepared by the a agencies for providing copies of public information; and (2) provide a copy of the updated report on the attorney general’s open records page on the Internet not later than March 1 of each even-numbered year. (b) Repealed by Acts 2011, 82nd Leg., ch. 1083 (S.B. 1179), § 25(62). ections 2151.002(2)(A) and (C). (c) In this section, “state agen cy” has the meaning assigned by S oyee or Personnel Time quire Large Amounts of Empl § 552.275. Requests That Re A governmental body may establish reasonable monthly and yearly limits on the amount of time (a) that personnel of the governmental body are requ ired to spend producing public information for inspection or duplication by a requestor, or providi ng copies of public information to a requestor, without recovering its costs attributable to that personnel time. (a-1) For the purposes of this section, all county officials who have designated the same officer for public information may calculate the amount of time that personnel are required to spend e monthly or yearly limit. collectively for purposes of th A yearly time limit established under Subsection (a (b) hours for a requestor ) may not be less than 36 governmental body. A during the 12-month period that corresponds to th e fiscal year of the may not be less than 15 monthly time limit established under Subsection (a) hours for a requestor for a one-month period. 2018 Public Information Act Handbook • Office of the Attorney General 243

260 Text of the Texas Public Information Act (c) In determining whether a time limit establishe d under Subsection (a) applies, any time spent of a minor, as defined by complying with a request for public information submitted in the name is to be included in the calculation of the cumulative amount Section 101.003(a), Family Code, of time spent complying with a request for public information by a parent, guardian, or other person who has control of the minor under a court order and with whom the minor resides, unless that parent, guardian, or other person establis hes that another person submitted that request in the name of the minor. (d) der Subsection (a), each time the governmental If a governmental body establishes a time limit un body complies with a request fo r public information, the govern mental body shall provide the requestor with a written statement of the amount of personnel ti me spent complying with that request and the cumulative amount of time spent complying with requests for public information from that requestor during the applicable monthl y or yearly period. The amount of time spent preparing the written statement ma y not be included in the amo unt of time included in the statement provided to the requestor under this subsection. Subject to Subsection (e-1), if in connection with a request for public information, the cumulative (e) complying with requests for public amount of personnel time spent information from the same d by the governmental bo dy under Subsection (a), requestor equals or exceeds the limit establishe with a written estimate of the total cost, the governmental body shall provide the requestor including materials, personnel time, and overhe ad expenses, necessary to comply with the on or before the 10th day after be provided to the requestor request. The written estimate must of this charge relating to the date on which the public in formation was requested. The amount the cost of locating, compiling, and producing th e public information sh all be established by rules prescribed by the attorney gene ral under Sections 552.262(a) and (b). (e-1) This subsection applies only to a request ma de by a requestor who has made a previous request to a governmental body that ha s not been withdrawn, for wh ich the governmental body has located and compiled documents in response, a nd for which the governmental body has issued a statement under Subsection (e) that remains unpa id on the date the requestor submits the new not required to locate, comp ile, produce, or provide copies request. A governmental body is bsection (e) in response to a new request of documents or prepare a statement under Su paid statement issued requestor pays each un described by this subsection until the date the under Subsection (e) in connection with a previous request or withdraws the previous request to which the statement applies. required to prepare the written (f) If the governmental body determ ines that additional time is estimate under Subsection (e) and provides the n statement of that requestor with a writte determination, the governmental body must pr ovide the written statement under that subsection as soon as practicable, but on or before the 10th day after th e date the governmental body provided the statement under this subsection. If a governmental body provides a requestor with the written statement under Subsection (e) and (g) the time limits prescribed by Subsection (a) rega rding the requestor have been exceeded, the governmental body is not required to produce pub lic information for inspection or duplication or to provide copies of public information in response to the requestor’s request unless on or before the 10th day after the date the govern mental body provided the written statement under 2018 Public Information Act Handbook • Office of the Attorney General 244

261 Text of the Texas Public Information Act that subsection, the requestor submits a payment of the amount stated in the written statement provided under Subsection (e). yment under Subsection (g), the requestor is (h) If the requestor fails or refuses to submit pa considered to have withdrawn the requestor’s pending request for public information. from providing a copy of public information (i) This section does not prohibit a governmental body g a charge for providing n 552.267 or from waivin without charge or at a reduced rate under Sectio ion under that section. a copy of public informat (j) This section does not apply if the requestor is a nd individual who, for a substantial portion of the s, prepares, collects, individual’s livelihood or for substantial financia l gain, gathers, compile photographs, records, writes, edits, reports, inve stigates, processes, or publishes news or information for and is seek ing the information for: (1) dissemination by a new medium or commu nications service provider, including: (A) and disseminating the gathering, preparing, an individual who supervises or assists in news or information; or an individual who is or was a journalist, scholar, or researcher employed by an (B) institution of higher education at the time the person made the request for information; or (2) creation or maintenance of an abstract plan t as described by Section 2501.004, Insurance Code. (k) This section does not apply if the requestor is an el ected official of the United States, this state, or a political subdivision of this state. This section does not apply if the requestor is a (l) representative of a publicly funded legal services organization that is exempt from federal income taxation under Se ction 501(a), Internal Revenue exempt entity under Section 501(c)(3) of that Code of 1986, as amended, by being listed as an code. (m) In this section” “Communication service provider” has the meaning assigned by Section 22.021, Civil (1) Practice and Remedies Code. or periodical, a book publisher, a news (2) “News Medium” means a newspaper, magazine agency, a wire service, an FCC-licensed radi o or television station or network of such stations, a cable, satellite, or other transmission system or carrier or channel, or a channel em, or carrier, or an audio or audiovisual or programming service for a station, network, syst ovider, or the parent, subsidiary, division, production company or Internet company or pr ws or information to the public by any means, or affiliate of that entity, that disseminates ne including: 2018 Public Information Act Handbook • Office of the Attorney General 245

262 Text of the Texas Public Information Act print; (A) television; (B) radio; (C) photographic; (D) mechanical; (E) (F) electronic; and (G) other means, known or unknown, that are accessible to the public. SUBCHAPTER G. ATTO RNEY GENERAL DECISIONS § 552.301. Request for Atto rney General Decision rmation that it wi that receives a written request for info shes to withhold A governmental body (a) from public disclosure and that the exceptions under Subchapter it considers to be within one of e attorney general about whether the information is within that C must ask for a decision from th exception if there has not been a previous determination about whether the information falls within one of the exceptions. bchapter, if a governmental bo (a-1) For the purposes of this su dy receives a written request by United States mail and cannot adequately establis h the actual date on which the governmental body received the request, the written request is considered to have been received by the governmental body on the third business day after the date of the postmark on a properly addressed request. The governmental body decision and state the exceptions that must ask for the attorney general’s (b) day after the date of receiving t not later than the 10th business apply within a reasonable time bu the written request. includes a request made in writing that is sent (c) For purposes of this subchapter, a written request tion, or the person designated by th to the officer for public informa at officer, by electronic mail or facsimile transmission. A governmental body that reque sts an attorney general decision under Subsection (a) must (d) a reasonable time but not later than the 10th business day after provide to the requestor within the date of receiving the requestor’s written request: (1) a written statement that the governmental body wishes to withhold the requested the attorney general about whether the information and has asked for a decision from information is within an excep tion to public disclosure; and 2018 Public Information Act Handbook • Office of the Attorney General 246

263 Text of the Texas Public Information Act communication to the attorney general asking (2) a copy of the governmental body’s written y’s written communication to the attorney for the decision or, if the governmental bod general discloses the requested information, a redacted copy of that written communication. A governmental body that reque sion under Subsection (a) must sts an attorney general deci (e) date of receiving the h business day after the within a reasonable time but not later than the 15t written request: (1) submit to the attorney general: the stated exceptions (A) written comments stating the reasons why apply that would n to be withheld; allow the informatio (B) a copy of the written request for information; ich the written request for information was a signed statement as to the date on wh (C) to establish that date; and ntal body or evidence sufficient received by the governme (D) a copy of the specific information requested, or submit representative samples of the of information was requested; and information if a voluminous amount c information, or of the representative samples, to indicate (2) label that copy of the specifi which exceptions apply to which parts of the copy. (e-1) A governmental body that submits written co mments to the attorney general under Subsection (e)(1)(A) shall send a copy of those comments to the person who requested the information th from the governmental b ody not later than the 15 business day after the date of receiving the written request. If the written comments disclose or contain the substance of the information must be a redacted copy. mments provided to the person requested, the copy of the co (f) A governmental body must release the requested information and is prohibited from asking for a decision from the attorney general about whet her information requested under this chapter is within an exception under Subchapter C if: sted and received a determination from the (1) the governmental body has previously reque attorney general concerning the precise info rmation at issue in a pending request; and (2) the attorney general or a c lic information under e information is pub ourt determined that th excepted by Subchapter C. this chapter that is not for another decision from the attorney general concerning the (g) A governmental body may ask precise information that was at issue in a prio r decision made by the attorney general under this subchapter if: attorney general in mely filed against the (1) a suit challenging the prior decision was ti ter concerning the precise information at issue; accordance with this chap 2018 Public Information Act Handbook • Office of the Attorney General 247

264 Text of the Texas Public Information Act (2) the attorney general determines that the requestor has voluntarily withdrawn the request for the information in writing or has abandoned the request; and dismiss the lawsuit. (3) the parties agree to § 552.302. Failure to Make Ti mely Request for A ttorney General Decision; Presumption that Information Is Public ovided by Section 552.301 If a governmental body does not request an attorn ey general decision as pr the information required by Sec and provide the requestor with tions 552.301(d) and (e-1), the information requested in writing is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information. l; Disclosure of Requested § 552.303. Delivery of Requested Information to Attorney Genera Information; Attorney General Request fo r Submission of Additional Information (a) A governmental body that requests an attorney general d ecision under this subchapter shall with Section 552.301, the specific information supply to the attorney general, in accordance requested. Unless the informa law, the governmental body may tion requested is confidential by disclose the requested information or before the attorney general to the public or to the request suit is filed under this rmation is public or, if makes a final determination that the requested info chapter, before a final determina on is public has been made by tion that the requested informati the court with jurisdiction over the suit, excep t as otherwise provided by Section 552.322. The attorney general may determine whether a governmental body’s submission of information (b) to the attorney general under Section 552 .301 is sufficient to render a decision. (c) If the attorney general determines that informat ion in addition to that required by Section 552.301 is necessary to render a decision, the attorney general shall give wr itten notice of that fact to the d the requestor. governmental body an A governmental body notified (d) bmit the necessary additional under Subsection (c) shall su information to the attorney genera l not later than the seventh calendar day after the date the notice is received. that is the subject (d), the information comply with Subsection (e) If a governmental body does not of a person’s request to the governmental body and regarding which the governmental body fails to comply with Subsection (d) is presumed to be subject to required public disclosure and must lling reason to withhold the information. be released unless there exists a compe Information by Attorney General § 552.3035. Disclosure of Requested lic any information submitted to lose to the requestor or the pub The attorney general may not disc the attorney general under Section 552.301(e)(1)(D). 2018 Public Information Act Handbook • Office of the Attorney General 248

265 Text of the Texas Public Information Act § 552.304. Submission of Public Comments (a) A person may submit written comments stating reasons why the in formation at issue in a request for an attorney general decision s hould or should not be released. (b) A person who submits written comments to the a ttorney general under Subsection (a) shall send a copy of those comments to both the person who requested the in formation from the governmental body and the govern mental body. If the written comments submitted to the attorney general disclose or contain the subs n requested from the tance of the informatio of the comments sent to the person who requested the information governmental body, the copy must be a redacted copy. (c) In this section, “written co mments” includes a letter, a memorandum, or a brief. § 552.305. Information Invol ving Privacy or Property Interests of Third Party (a) In a case in which inform ation is requested under this chapter and a person’s privacy or property r Section 552.101, 552. interests may be involved, including a case unde 104, 552.110, or 552.114, a governmental body ma on for the purpose of requesting an y decline to release the informati attorney general decision. (b) Subsection (a), or any other person, may submit A person whose interests may be involved under in writing to the attorney gene information should be withheld ral the person’s reasons why the or released. The governmental body may, but is not require d to, submit its reasons why the information (c) should be withheld or released. (d) If release of a person’s proprietary informa tion may be subject to exception under Section 552.101, 552.110, 552.1 13, or 552.131, the governmental body that requests an attorney general decision under Section 5 52.301 shall make a good faith attemp t to notify that person of the on. Notice under this subsection must: request for the attorney general decisi (1) be in writing and sent within a reasonable time not later than the 10th business day after the date the governmental body receives the request for the information; and (2) include: (A) a copy of the written request for the inform ation, if any, received by the governmental body; and (B) a statement, in the fo rm prescribed by the attorney general, that the person is entitled to submit in writing to the atto rney general within a reasona ble time not later than the 10th business day after the date the person receives the notice: (i) each reason the person has as should be withheld; and to why the information f in support of that reason. a letter, memorandum, or brie (ii) 2018 Public Information Act Handbook • Office of the Attorney General 249

266 Text of the Texas Public Information Act A person who submits a letter, memorandum, or brief to the attorney general under Subsection (e) (d) shall send a copy of that letter, memorandu m, or brief to the person who requested the information from the governmental body. If the letter, memorandu m, or brief submitted to the attorney general contains the substance of th e information requested, the copy of the letter, memorandum, or brief ma y be a redacted copy. ssuance of Written Opinion rney General Decision; I § 552.306. Rendition of Atto (a) Except as provided by Section 552.011, the attorn ey general shall promptly render a decision requested under this subchapter, consistent wi th the standards of due process, determining within one of the exceptions of Subchapter C. The attorney whether the requested information is general shall render the decision not later than th e 45th business day after the date the attorney e to issue the decision attorney general is unabl general received the request for a decision. If the riod for issuing the decision by ttorney general may extend the pe within the 45-day period, the a the governmental body and the requestor, during an additional 10 business days by informing the original 45-day period, of the reason for the delay. the determination and shall provide a copy a written opinion of The attorney general shall issue (b) of the opinion to the requestor. § 552.307. Special Right of Acce ss; Attorney Ge neral Decisions If a governmental body determines that informa tion subject to a special right of access under (a) Section 552.023 is exempt from disclosure under an exception of Subchapter C, other than an exception intended to protect the privacy interest of the reques tor or the person whom the requestor is authorized to represent, the g overnmental body shall, before disclosing the to the attorney general under the procedures information, submit a written request for a decision of this subchapter. ), the governmental body shall release the (b) If a decision is not requested under Subsection (a of access under Section 552.023 not later than the information to the person with a special right 10th business day after the date of re ceiving the request for information. § 552.308. Timeliness of Action by United States Mail, Interagency Mail, or Common Contract Carrier submitted or otherwise or other document to be When this subchapter requires a request, notice, (a) given to a person within a speci fied period, the requirement is met in a timely fashion if the by first class United States ma il or common or contract carrier document is sent to the person properly addressed with postage or handling charges prepaid and: eceipt mark of a common or contract carrier (1) it bears a post office cancellation mark or a r indicating a time within that period; or (2) the person required to submit or otherwise give the document furnishes satisfactory proof that it was deposited in the mail or with a comm on or contract carrier within that period. 2018 Public Information Act Handbook • Office of the Attorney General 250

267 Text of the Texas Public Information Act otherwise give to the attorney agency of this state to submit or When this subchapter requires an (b) general within a specified period a request, notic e, or other writing, the requirement is met in a timely fashion if: writing is sent to the attorney general by interagency mail; and (1) the request, notice, or other fficient to establish that the re (2) the agency provides evidence su quest, notice, or other writing was deposited in the interage ncy mail within that period. § 552.309. Timeliness of Acti on by Electronic Submission (a) or other document to be When this subchapter requires a request, notice, submitted or otherwise period, the requirement is met in a timely fashion given to the attorney general within a specified general through the attorney general’s designated if the document is submitted to the attorney within that period. electronic filing system (b) The attorney general may electronically transmit a notice, decision, or other document. When sion, or other document deliver a notice, deci this subchapter requires the attorney general to met in a timely fashion if the document is within a specified period, the requirement is rney general within that period. electronically transmitted by the atto This section does not affect the right of a pers on or governmental body to submit information to (c) the attorney general under Section 552.308. SUBCHAPTER H. CIVIL ENFORCEMENT § 552.321. Suit for Wr it of Mandamus (a) A requestor or the attorney general may f ile suit for a writ of mandamus compelling a governmental body to make inspection if the governmental body information available for public refuses to request an attorney general’s decision as provided by Subchapter G or refuses to supply public information or information termined is public information that the attorney general has de that is not excepted from disc losure under Subchapter C. district court for the county in (b) A suit filed by a requestor under th is section must be filed in a by the attorney general which the main offices of the governmental body are located. A suit filed under this section must be filed in a district cour t of Travis County, exce pt that a suit against a municipality with a population of 100,000 or less mu st be filed in a district court for the county in which the main offices of the municipality are located. § 552.3215. Declaratory Judgment or Injunctive Relief (a) In this section: (1) “Complainant” means a person a violation of this chapter. who claims to be the victim of 2018 Public Information Act Handbook • Office of the Attorney General 251

268 Text of the Texas Public Information Act (2) “State agency” means a board, commission, department, office, or other agency that: (A) is in the executive branch of state government; (B) was created by the constitution or a statute of this state; and (C) has statewide jurisdiction. ce with this (b) An action for a declaratory judgmen t or injunctive relief may be brou ght in accordan that violates this chapter. section against a governmental body (c) The district or county attorney for the county in which a governmental body other than a state agency is located or the attorney general may br ing the action in the name of the state only in a If the governmental body extends into more than one county, the district court for that county. action may be brought only in the county in whic h the administrative office s of the governmental body are located. (d) If the governmental body is a state agency, the Tr avis County district attorney or the attorney ate only in a district court of Travis County. general may bring the action in the name of the st A complainant may file a complain (e) laint must be apter. The comp t alleging a violation of this ch filed with the district or county attorney of the county in which the governmental body is located unless the governmental body is the district or c ounty attorney. If the go vernmental body extends into more than one county, the comp laint must be filed with the dist rict or county attorney of the county in which the administrative offices of the governmental body are located. If the governmental body is a state agen cy, the complaint may be filed w ith the Travis County district attorney. If the governmental body is the district or county attorney, the complaint must be filed with the attorney general. To be valid, a complaint must: (1) be in writing and si gned by the complainant; (2) state the name of the governmental body that allegedly committed the violation, as one by the complainant; accurately as can be d (3) state the time and place of the alleged commi ssion of the violation, as definitely as can be done by the complainant; and (4) in general terms, describe the violation. (f) laint is filed shall indicate on the face of the A district or county attorney with whom the comp written complaint the date the complaint is filed. filed under Subsection (e), the district or county (g) Before the 31st day after the date a complaint is attorney shall: (1) determine whether: (A) complaint was committed; and the violation alleged in the 2018 Public Information Act Handbook • Office of the Attorney General 252

269 Text of the Texas Public Information Act (B) an action will be brought against the g overnmental body under this section; and (2) notify the complainant in wr iting of those determinations. (h) Notwithstanding Subsection (g)(1), if the district or county attorney believes that that official has ficial from bringing an action under this section a conflict of interest that would preclude that of against the governmental body co e date the complaint the 31st day after th mplained of, before was filed the county or district attorney shall info rm the complainant of that official’s belief and of the complainant’s right to file the complaint with the attorney general. If the district or county attorney determines not to bring an action under this section, the district or county attorney shall: (1) include a statement of the basis for that determination; and (2) return the complain t to the complainant. (i) If the district or county attorney determines not to bring an action under this section, the re the 31st day after attorney general befo complainant is entitled to file th e complaint with the t. A complainant is the date the complaint is return entitled to file a ed to the complainan r the date the complainant files ral on or after the 90th day afte complaint with the attorney gene if the district or county attorney has not brought the complaint with the district or county attorney an action under this section. On receipt of th e written complaint, the attorney general shall comply with each requirement in Subsections (g) and (h) in the time required by those subsections. If the attorney general decides to bring an action under this section against a governmental body located only in on e county in response to the complaint, the attorney general must comply with Subsection (c). (j) An action may be brought under th is section only if the official proposing to bring the action notifies the governmental body in writing of the official’s determination that the alleged violation was committed and the government al body does not cure the violation before the fourth day after the date the governmental body receives the notice. n to any other civil, admi nistrative, or criminal An action authorized by this section is in additio (k) action provided by this chapter or another law. § 552.322. Discovery of Inform ation Under Protective Order Pending Final Determination the court may order that the inform ation at issue may be discovered In a suit filed under this chapter, only under a protective order until a final determination is made. spection of Information § 552.3221. In Camera In be filed with the court for in In any suit filed under this chap ter, the information at issue may (a) camera inspection as is necessary for the adjudication of the case. Upon receipt of the information at issue for in (b) camera inspection, the court shall enter an order t, a reviewing court of appeals, by any person other than the cour that prevents release to or access 2018 Public Information Act Handbook • Office of the Attorney General 253

270 Text of the Texas Public Information Act or parties permitted to inspect the information pu rsuant to a protective order. The order shall further note the filing date and time. camera inspection shall be: (c) The information at issue f iled with the court for in (1) appended to the order and transmitted by the c ourt to the clerk for f iling as “information at issue”; disclosure of the information; ope or in a manner that precludes (2) maintained in a sealed envel and (3) transmitted by the clerk to any court of appeal as pa rt of the clerk’s record. (d) Information filed with the court te “court records” within the under this section does not constitu meaning of Rule 76a, Texas Rules of Civil Procedure, and shall not be made available by the clerk or any custodian of r ecord for public inspection. (e) issue” is defined as information held by a For purposes of this section, “information at governmental body that forms the ba sis of a suit under this chapter. asonable Attorney Fees Costs of Litigation and Re § 552.323. Assessment of 2.3215, the court shall assess costs of litigation (a) In an action brought under Sec tion 552.321 or 55 ails, except that the iff who substantially prev and reasonable attorney fees incurred by a plaint court may not assess those costs and fees against a gove rnmental body if the court finds that the governmental body acted in reasonable reliance on: t applicable to the governmental body; (1) a judgment or an order of a cour (2) the published opinion of an appellate court; or including a decision issued under Subchapter G (3) a written decision of the attorney general, or an opinion issued under Section 402.042. (b) In an action brought under Se ction 552.324, the court may a ssess costs of litigation and f or defendant who substantially prevails. In reasonable attorney’s fees incurred by a plaintif exercising its discretion under this subsection, the court shall consider whether the conduct of the governmental body had a r easonable basis in law and whether the litigation was brought in good faith. § 552.324. Suit by Go vernmental Body may file seeking to withhold in The only suit a governmental body (a) formation from a requestor is a suit that: (1) is filed in a Travis ttorney general in accordance with County district court against the a Section 552.325 and 2018 Public Information Act Handbook • Office of the Attorney General 254

271 Text of the Texas Public Information Act ey general issued (2) seeks declaratory relief from compliance with a d ecision by the attorn under Subchapter G. (b) The governmental body must bring the suit not later than the 30th calendar day after the date the governmental body receives the decision of the atto rney general determining that the requested If the governmental body does not bring suit information must be disclosed to the requestor. sion of the attorney general. body shall comply with the deci within that period, the governmental affirmative defense for its officer of public If a governmental body wishes to preserve an information as provided in Section 552.353(b)(3), a suit must be file d within the deadline provided in Section 552.353(b)(3). ing to Withhold Information § 552.325. Parties to Suit Seek (a) A governmental body, officer for p ublic information, or other pers on or entity that files a suit seeking to withhold information from a requestor may not file suit against the person requesting the information. The requestor is entitled to intervene in the suit. public information, or other pe rson or entity that files the suit The governmental body, officer for (b) al body, officer for public information, or other shall demonstrate to the court that the government person or entity made a timely go questor, by certified mail or by od faith effort to inform the re another written method of notice that requires the return of a receipt, of: (1) the existence of the suit, in cluding the subject matter and ca use number of the suit and the court in which the suit is filed; (2) the requestor’s right to intervene in the su it or to choose to not pa rticipate in the suit; (3) the fact that the suit is ag ainst the attorney general in Tr avis County district court; and e office of the attorney general. (4) the address and phone number of th nt that all or part of If the attorney general enters into a proposed settleme (c) the information that is withheld, the attorney general sh all notify the requestor of that the subject of the suit should be tor’s right to intervene decision and, if the requestor has not intervened in the suit, of the reques ey general shall notify the requestor: to contest the withholding. The attorn (1) in the manner required by the Texas Rules of Civil Procedure, if the requestor has intervened in the suit; or r written method of notice that requ ires the return of a receipt, (2) by certified mail or by anothe if the requestor has not intervened in the suit. period to intervene after the attorney general The court shall allow the requestor a reasonable (d) attempts to give notice under Subsection (c)(2). 2018 Public Information Act Handbook • Office of the Attorney General 255

272 Text of the Texas Public Information Act § 552.326. Failure to Raise Exce ptions Before Attorney General required disclosure within n (b), the only exceptions to (a) Except as provided by Subsectio der this chapter are exceptions Subchapter C that a governmental body may raise in a suit filed un that the governmental body properly raised before the attorney general in connection with its ng the matter under Subchapter G. request for a decision regardi tal body from raising an exception: (b) Subsection (a) does not prohibit a governmen (1) based on a requirement of federal law; or (2) involving the property or privacy interests of another person. § 552.327. Dismissal of Suit Du e to Requestor’s Withdrawal or Abandonment of Request ng a decision of the attorney general brought in accordance with A court may dismiss a suit challengi this chapter if: (1) all parties to the suit agree to the dismissal; and es and represents to (2) the attorney general determin the court that the requestor has voluntarily withdrawn the request for in formation in writing or has abandoned the request. SUBCHAPTER I. CRI MINAL VIOLATIONS § 552.351. Destruction, Removal, or Alteration of Public Information illfully destroys, mutil ates, removes without (a) A person commits an offense if the person w r, or alters public information. permission as provided by this chapte An offense under this section is a misdemeanor punishable by: (b) $25 or more than $4,000; (1) a fine of not less than (2) confinement in the co unty jail for not less than three days or more than three months; or (3) both the fine and confinement. rmation was transferred (c) It is an exception to the application of Subsectio n (a) that the public info under Section 441.204. 2018 Public Information Act Handbook • Office of the Attorney General 256

273 Text of the Texas Public Information Act of Confidential Information § 552.352. Distribution or Misuse (a) A person commits an offense if the person distri butes information considered confidential under the terms of this chapter. (a-1) An officer or employee of a governmental body who obtains access to confidential information or employee knowingly: an offense if the officer under Section 552.008 commits an the purpose for which the rmation for a purpose other th (1) uses the confidential info information was received or for that permitted the officer or a purpose unrelated to the law employee to obtain access to the information, including solicitation of political contributions or solicitation of clients; (2) permits inspection of the co ation by a person who is not authorized to nfidential inform inspect the information; or (3) discloses the confidential in formation to a person who is not authorized to receive the information. of an advisory committee to a governmental body (a-2) For purposes of Subsection (a-1), a member considered to be an officer formation in that capacity is who obtains access to confidential in or employee of the governmental body. An offense under this section is a misdemeanor punishable by: (b) (1) a fine of not more than $1,000; (2) confinement in the county jail for not more than six months; or (3) both the fine and confinement. (c) nstitutes official misconduct. A violation under this section co de Access to or § 552.353. Failure formation to Provi or Refusal of Officer for Public In Copying of Public Information or the officer’s agent, commits an offense if, with criminal An officer for public information, (a) negligence, the officer or the officer’s agent fails or refuses to give access to, or to permit or provide copying of, public information to a requestor as provided by this chapter. (b) der Subsection (a) that the officer for public It is an affirmative defense to prosecution un d information was not required at public access to the requeste information reasonably believed th and that: interpretation of this (1) the officer acted in reasonable reliance on a court order or a written ecord or of the attorney general issued under chapter contained in an opinion of a court of r Subchapter G; 2018 Public Information Act Handbook • Office of the Attorney General 257

274 Text of the Texas Public Information Act (2) the officer requested a decision from the atto rney general in accordance with Subchapter G, and the decision is pending; or cision by the attorney date of receipt of a de (3) not later than the 10th calendar day after the general that the information is public, the of ficer or the governmental body for whom the defendant is the officer for public informa tion filed a petition for a declaratory judgment y district court seeki against the attorney general in a Travis Count ng relief from compliance with the decision of the attorney general, as provided by Section 552.324, and the cause is pending. (c) r Subsection (a) that a pe rson or entity has, not It is an affirmative defense to prosecution unde receipt by a governmental body of a decision by later than the 10th calendar day after the date of the attorney general that the in e of action seeking relief from formation is public, filed a caus compliance with the decision of th e attorney general, as provid ed by Section 552.325, and the cause is pending. Subsection (a) that the de It is an affirmative defense to prosecution under fendant is the agent of (d) agent reasonably relied on the written instruction an officer for public information and that the of the officer for public information not to disclose the public information requested. (e) An offense under this section is a misdemeanor punishable by: (1) a fine of not more than $1,000; county jail for not more than six months; or (2) confinement in the (3) both the fine and confinement. nstitutes official misconduct. A violation under this section co (f) 2018 Public Information Act Handbook • Office of the Attorney General 258

275 Text of the Texas Public Information Act A ART OUR : R ULES P P F TTORNEY ROMULGATED BY THE G ENERAL C 63 T EXAS A DMINISTRATIVE C ODE , HAPTER T ITLE 1, Subchapter A. Confidentiality of Info rmation Requested for Legislative Purposes § 63.1. Definition, Purpose, and Application (a) member, agency, or In this subchapter, “legislative requestor ” means an individual committee of the legislature. which the attorney general shall render a (b) This subchapter governs the procedures by under Texas Government Code § 552.008(b-2). decision sought by a legislative requestor (c) ll deadlines established in this subchapter. Texas Government Code § 552.308 applies to a Decision Regarding Confidentiality § 63.2. Request for Attorney General If a governmental body that receives a written request for in formation from a legislative (a) 2.008 determines the requested information requestor under Texas Government Code § 55 is confidential and requires the legislative reque stor to sign a confid entiality agreement, the legislative requestor may ask for an attorney general decision about whether the information covered by the confidentiality agreement is confidential under law. (b) A request for an attorney general decision must: by the legislative requestor; (1) be in writing and signed quest for information (2) state the name of the governmental body to whom the original re was made; and (3) state the date the original request was made. (c) The legislative requestor must submit a copy of the original request with the request for a e to do so, the legislative requestor must decision. If the legislative requestor is unabl al request in the request for a decision. include a written description of the origin e attorney general stating (d) The legislative requestor may submit written comments to th reasons why the requested inform ation should not be consider ed confidential by law. The r any portion of the comments written comments must be labeled to indicate whethe ecific information deemed discloses or contains the substance of the sp confidential by the governmental body. A legislative requestor who submits written comments to the attorney governmental body. comments to the general shall send a copy of those 2018 Public Information Act Handbook • Office of the Attorney General 259

276 Text of the Texas Public Information Act ce on the date on which the 3.6 of this subchapter commen The deadlines in § 63.3 and § 6 (e) formation required by attorney general receives from the legislative requestor all of the in subsections (b) and (c ) of this section. § 63.3. Notice mental body in writing of a request for a The attorney general shall notify the govern (a) copy of the request for a decision within a decision and provide the governmental body a reasonable time but not later than the 5th business day after the date of receiving the request for a decision. ative requestor a copy of the written notice to (b) The attorney general shall provide the legisl a decision, within a reasonable the governmental body, excludi ng a copy of the request for ing the request for a ter the date of receiv time but not later than the 5th business day af decision. Documents and Comments § 63.4. Submission of e 10th business day after the date of receiving (a) Within a reasonable time but not later than th the attorney general’s written notice of the a governmental body request for a decision, shall: (1) submit to the attorney general: at deems the reque (A) written comments stating the law th sted information confidential and the reasons why the stat ed law applies to the information; quest for information; and (B) a copy of the written re deemed confidential by the governmental (C) a copy of the specific information body, or representative samples of the information if a voluminous amount of information was requested; and (2) label the copy of the specific informati on, or the representative samples, to indicate which laws apply to which parts of the copy; and (3) label the written comments to indicate whether any portion of the comments discloses or contains the substance of the specific information deemed confidential by the governmental body. A governmental body that submits written commen ts to the attorney general shall send a (b) e legislative requestor within a reasonable time but not later copy of those comments to th receiving the attorney general’s written notice than the 10th business day after the date of of the request for a decision. 2018 Public Information Act Handbook • Office of the Attorney General 260

277 Text of the Texas Public Information Act (c) If a governmental body determines a person may have a property interest in the requested information, the governmental body shall not ify that person in accordance with Texas Government Code § 552.305(d). The governmental body shall notify the affected person not later than the 10th business day after re ceiving written notice of the request for a decision. (d) If a person notified in accord ance with Texas Government Code § 552.305 decides to ttorney general, the person mu st do so not later than the submit written comments to the a st be labeled to The written comments mu 10th business day after receiving the notice. indicate whether any portion of the comments di scloses or contains the substance of the specific information deemed conf idential by the governmental body. (e) Any interested person may su bmit written comments to the a ttorney general stating why the requested information is or is not confidential. The writte n comments must be labeled of the comments discloses or co to indicate whether any portion ntains the substance of the idential by the governmental body. specific information deemed conf (f) (e) of this section shall mments under subsection (d) or A person who submits written co slative requestor and the governmental body. send a copy of those comments to both the legi § 63.5. Additional Information (a) The attorney general may determine whet her a governmental body’s submission of information under § 63.4(a) of this subchapter is sufficient to render a decision. If the attorney general determin es that information in addition to that required by § 63.4(a) (b) to render a decision, the attorney general shall give written of this subchapter is necessary al body and the legislative requestor. notice of that fact to the government (c) A governmental body notified under subsectio n (b) of this section shall submit the general not later than the seventh calendar necessary additional information to the attorney day after the date the notice is received. § 63.6. Rendition of Attorney General Decision; Issuance of Written Decision The attorney general shall promptly render a decision requested under this subchapter, not (a) later than the 45th business day after the date of receiving the request for a decision. The attorney general shall issue a written deci sion and shall provide a copy of the decision (b) tal body, and any interested person who to the legislative requestor, the governmen the attorney general about the matter. submitted necessary information or a brief to 2018 Public Information Act Handbook • Office of the Attorney General 261

278 Text of the Texas Public Information Act lic Information Redactions Subchapter B. Review of Pub § 63.11. Purpose and Application which the attorney general shall render a This subchapter governs the procedures by (a) or under Texas Governme decision sought by a request nt Code §§ 552.024(c-1), or 552.138(d). 0(d), 552.136(d), 552.1175(g), 552.13 adlines established in this (b) Texas Government Code § 552.308 and § 552.309 apply to all de subchapter. § 63.12. Request for Review by the Attorney General nder Texas Government Code (a) s or withholds information u If a governmental body redact §§ 552.024(c)(2), 552.1175(f), 55 2.130(c), 552.136(c), or 552 .138(c) without requesting a ether the information may be redacted or decision from the attorney general about wh general to review the governmental body’s withheld, the requestor may ask the attorney e is excepted from required disclosure. determination that the information at issu A request for review by the attorney general must: (b) (1) be in writing and signed by the requestor; rnmental body to whom the orig inal request for information (2) state the name of the gove was made; and (3) state the date the original request was made. (c) The requestor must submit a copy of the original request with the reque st for review. If the requestor is unable to do so, the requestor must include a written description of the original request in the request for review. The requestor may submit written comments to the attorney general stating reasons why (d) the information at issue should be released. (e) The deadlines in § 63.13 and § 63.16 of this subchapter comm ence on the date on which the information required by the attorney general receives from the requestor all of ) of this section. subsections (b) and (c § 63.13. Notice (a) The attorney general shall notify the government al body in writing of a request for review and provide the governmental body a copy of the request for review not later than the 5th business day after the date of receiving the request for review. questor a copy of the written notice to the The attorney general shall provide the re (b) governmental body, excluding a copy of the reque st for review, not later than the 5th business day after the date of r eceiving the request for review. 2018 Public Information Act Handbook • Office of the Attorney General 262

279 Text of the Texas Public Information Act § 63.14. Submission of Documents and Comments (a) ey general within a reasonable time but not A governmental body shall provide to the attorn later than the 10th business day after the date of receiving the attorney general’s written notice of the request for review: rmation requested, or representative samples (1) an unredacted copy of the specific info of the information if a voluminous am ount of information was requested; (2) a copy of the specific information requ ested, or representative samples of the information if a voluminous amount of information wa s requested, illustrating the information redacted or withheld; (3) written comments stating th at issue was redacted or e reasons why the information withheld; (4) a copy of the written re quest for information; and (5) a copy of the form letter the governmental body provided to the requestor as required 2), 552.1175(h), 552.130(e), 552.136(e), by Texas Government Code §§ 552.024(c- and 552.138(e). A governmental body that submits written commen (b) ts to the attorney general shall send a in a reasonable time but not later than the copy of those comments to the requestor with 10th business day after the date of receiving the attorney general’ s written notice of the e substance of the request for review. If the written comments di sclose or contain th information at issue, the copy of the comments provided to the requestor must be a redacted copy. l stating why the information (c) A person may submit written comm ents to the attorney genera should or should not be released. at issue in a request for review (d) mments under subsection (c) of this section shall send a A person who submits written co copy of those comments to bot h the requestor and the governmental body. If the written at issue, the copy of the comments disclose or contain th e substance of the information comments sent to the requestor must be a redacted copy. § 63.15. Additional Information (a) The attorney general may determine whet her a governmental body’s submission of pter is sufficient to render a decision. information under § 63.14(a) of this subcha ation in addition to that required by § 63.14(a) If the attorney general determines that inform (b) to render a decision, the attorney general shall give written of this subchapter is necessary notice of that fact to the govern mental body and the requestor. 2018 Public Information Act Handbook • Office of the Attorney General 263

280 Text of the Texas Public Information Act n (b) of this section shall submit the A governmental body notified under subsectio (c) necessary additional information to the attorney general not la ter than the 7th calendar day after the date the notice is received. ance of Written Decision § 63.16. Rendition of Attorn ey General Decision; Issu (a) The attorney general shall promptly render a decision requested under this subchapter, not later than the 45th business day after the da te of receiving the request for review. The attorney general shall issue a written deci (b) sion and shall provide a copy of the decision to the requestor, the governmental body, rson who submitted and any interested pe necessary information or a brief to the attorney general about the matter. Subchapter C. Electronic Submission of Request for Attorney General Open Records Decision § 63.21. Definitions The following words and terms, when used in this subchapter, shall have the following meanings: body as defined in Texas Government (1) “Governmental body” means a governmental Code § 552.003(1). (2) “Request for decision” mean s a request for an attorney general open records decision made by a governmental bod y pursuant to Texas Govern ment Code § 552.301 and § 552.309. (3) “Requestor” means a requestor as define d in Texas Government Code § 552.003(6). (4) “Interested Third Party” means any thir d party who wishes to submit comments, on in the attorney general’s open records documents, or other materials for considerati decision process under Texas Govern 4 or § 552.305. ment Code § 552.30 (5) “Attorney General’s Designated Elect ronic Filing System” means the online, electronic filing system designated by the attorney general as the system for to the attorney general under Texas submitting documents and other materials Government Code § 552.309. st for Attorney General Decision § 63.22. Electronic Submission of Reque ttorney general under Texas quests a decision from the a A governmental body that re (a) formation is excepted from Government Code § 552.301 ab out whether requested public in public disclosure may submit that request for decision to the attorney general through the attorney general’s designated electronic filing system. comply with the requirements of Texas t for decision must The governmental body’s reques (b) Government Code § 552.301. 2018 Public Information Act Handbook • Office of the Attorney General 264

281 Text of the Texas Public Information Act (c) The deadlines in Texas Gove rnment Code § 552.301 and § 552.303 are met if the governmental body timely submits the required documents and other materials through the attorney general’s designated electronic f iling system within th e time prescribed. Texas Government Code § ly with the requirements of The governmental body must comp (d) whether the request for attorney general 552.301(d) and (e-1), and § 552.305 regardless of decision is submitted electronically or throug h another permissible method of submission. (e) To use the attorney general’s designated el ectronic filing system, the governmental body must agree to and comply with the terms and conditions of use as outlined on the attorney general’s designated electronic filing system website. The confidentiality of Texas Government s to information Code § 552.3035 applie (f) § 552.301(e)(1)(D) through the attorney submitted under Texas Government Code general’s designated electronic filing system. § 63.23. Electronic Submission of s by Interested Third Party Documents or other Material An interested third party may submit, through the attorney general’s designated electronic (a) filing system, the reasons why the requested pu blic information shou ld be withheld or released along with any necessary supportin g documentation for co nsideration in the attorney general’s open records decision process. Code § 552.305(d)(2)(B) is met if the interested third (b) The deadline in Texas Government sted public information should be withheld party timely submits the reasons why the reque or released along with any necessary su pporting documentation through the attorney stem within the time prescribed. general’s designated electronic filing sy (c) of Texas Government Code The interested third party must comply with the requirements terested third party submits materials § 552.305(e) regardless of whether the in electronically or through another permissible method of submission. (d) ronic filing system, the interested third party To use the attorney general’s designated elect conditions of use as outlined on the attorney must agree to and comply with the terms and general’s designated electronic filing system website. 2018 Public Information Act Handbook • Office of the Attorney General 265

282 Text of the Texas Public Information Act 70 HAPTER C T EXAS A DMINISTRATIVE C ODE , T ITLE 1, Chapter 70. Cost of Copies of Public Information § 70.1. Purpose The Office of the Attorney Genera (a) l (the “Attorney General”) must: (1) Adopt rules for use by each government al body in determining charges under Texas Government Code, Chapter 552 (Public In formation) Subchapter F (Charges for Providing Copies of Public Information); arges for copies of public information in (2) Prescribe the methods for computing the ch paper, electronic, and other kinds of media; and (3) Establish costs for variou n that shall blic informatio s components of charges for pu be used by each governmental body in providing copies of public information. s established by these rules, unless: Governmental bodies must use the charge (b) (1) Other law provides for charges for specific kinds of public information; and their charges are within (2) They are a governmental bo dy other than a state agency, established by the Attorney General; a 25 percent variance above the charges costs are higher; or because their actual (3) They request and receive an exemption (4) In accordance with Chapte r 552 of the Texas Government Code (also known as the body may grant a waiver or reduction for Public Information Act), the governmental charges for providing copies of public info rmation pursuant to § 552.267 of the Texas Government Code. (A) A governmental body shall furnish a copy of public information without charge ntal body determines that waiver or or at a reduced charge if the governme furnishing the information e public interest because reduction of the fee is in th primarily benefits the general public; or (B) If the cost to the governmental body of processing the collection of a charge for tion will exceed the amount of the charge, the a copy of public informa governmental body may waive the charge. 2018 Public Information Act Handbook • Office of the Attorney General 266

283 Text of the Texas Public Information Act § 70.2. Definitions all have the following meanings, en used in these sections, sh The following words and terms, wh unless the context clearly indicates otherwise. (1) Actual cost—The sum of all direct costs plus a proportional sh are of overhead or indirect costs. Actual cost shoul d be determined in accordan ce with generally accepted methodologies. serve a particular or more computers that (2) Client/Server System—A combination of two application through sharing pro cessing, data storage, and end- user interface presentation. fall into this category as do ent containing file servers PCs located in a LAN environm applications running in an X-window enviro nment where the server is a UNIX based system. (3) Attorney General—The Office of the Attorney Gene ral of Texas. by § 552.003 of the Te xas Government Code. (4) Governmental Body—An entity as defined environment and serving large uter located in a controlled (5) Mainframe Computer—A comp es usually serve an entire ers of users. These machin applications and/or large numb organizations. These machines usually require an operating organization or some group of frames, and large Digital V AX 9000 and VAX Clusters fall staff. IBM and UNISYS main into this category. (6) Midsize Computer—A computer smaller than a Mainframe Comp uter that is not necessarily located in a controlled environment. It usually serves a smaller organization or a sub-unit of an organizati on. IBM AS/400 and Digital VAX/VMS multi-user single- processor systems fall into this category. (7) Nonstandard copy—Under § 70.1 a copy of public information through § 70.11 of this title, that is made available to a requestor in any format other than a standard paper copy. ttes, magnetic tapes, CD-ROM are examples of nonstandard Microfiche, microfilm, diske 14 inches (legal size) are also considered copies. Paper copies larger than 8 1/2 by nonstandard copies. (8) PC—An IBM compatible PC, Macintosh or Power PC based comput er system operated without a connection to a network. (9) Standard paper copy—Under § 70.1 thro title, a copy of public ugh § 70.11 of this information that is a printed impression on one side of a piece of pape r that measures up to on is recorded is r on which informati 8 1/2 by 14 inches. Each si de of a piece of pape rded on both sides is counted as a single copy. A piece of paper th at has information reco counted as two copies. ” width x 15.5” length x 10” measuring approximately 12.5 (10) Archival box—A carton box mately 1.5 cubic feet in volume. height, or able to contain approxi 2018 Public Information Act Handbook • Office of the Attorney General 267

284 Text of the Texas Public Information Act § 70.3. Charges for Providing Co pies of Public Information associated with providing copies of public (a) The charges in this section to recover costs s to governmental bodi information are based on estimated average cost es across the state. than those used in these rules, governmental bodies other When actual costs are 25% higher emption in accordance with § 70.4 of this title than agencies of the state, may request an ex (relating to Requesting an Exemption). (b) Copy charge. charge for standard paper co (1) Standard paper copy. The pies reproduced by means of ter is $.10 per page or part of a page. an office machine copier or a computer prin Each side that has recorded information is considered a page. s in this subsection are to c (2) Nonstandard copy. The charge over the materials onto which information is copied and do not reflect any additional charges, including labor, that may The charges for nonstandard copies are: be associated with a particular request. (A) Diskette—$1.00; (B) Magnetic tape—actual cost (C) Data cartridge—actual cost; (D) Tape cartridge—actual cost; (E) Rewritable CD (CD-RW)—$1.00; (F) Non-rewritable CD (CD-R)—$1.00; (G) Digital video disc (DVD)—$3.00; (H) JAZ drive—actual cost; Other electronic media—actual cost; (I) (J) VHS video cassette—$2.50; (K) Audio cassette—$1.00; by 17 inches, greenbar, bluebar, not (L) Oversize paper copy (e.g.: 11 inches ecialty paper—see also § 70.9 of this including maps and photographs using sp title)—$.50; print, blueline, map, photographic—actual (M) Specialty paper (e.g.: Mylar, blue cost). 2018 Public Information Act Handbook • Office of the Attorney General 268

285 Text of the Texas Public Information Act Labor charge for programming. If a particular request requires the services of a (c) programmer in order to execute an existing pr ogram or to create a new program so that mental body may charge for requested information may be accessed and copied, the govern the programmer’s time. $28.50 an hour. Only (1) The hourly charge for a programmer is programming services shall be charged at this hourly rate. (2) Governmental bodies that do not have in-house programming capabilities shall rdance with § 552.231 of the Texas Government Code. comply with requests in acco (3) If the charge for providing a copy of pu blic information includes costs of labor, a governmental body shall comply with the requirements of § 552.261(b) of the Texas Government Code. Labor charge for locating, compiling, mani (d) pulating data, and reproducing public information. ocessing a request for public information is (1) The charge for labor costs incurred in pr e actual time to locate, compile, manipulate $15 an hour. The labor charge includes th data, and reproduce the requested information. onnection with complying with requests that (2) A labor charge shall not be billed in c are for 50 or fewer pages of paper records, unless the documents to be copied are located in: (A) Two or more separate buildings that are not physically c onnected with each other; or (B) A remote storage facility. an attorney, legal assistant, recovered for any time spent by (3) A labor charge shall not be or any other person who review s the requested information: the governmental body will raise any exceptions to (A) To determine whether disclosure of the requested informa tion under the Texas Government Code, Subchapter C, Chapter 552; or attorney general’s office (B) To research or prepare a request for a ruling by the pursuant to § 552.301 of th e Texas Government Code. (4) When confidential information pursuant to a mandatory exception of the Act is mixed with public information in the same page, a labor charge may be recovered for time spent order to release the to redact, blackout, or otherwise obscure confid ential information in dacting confidential not be made for re public information. A labor charge shall unless the request also qualifies for a labor information for requests of 50 or fewer pages, ment Code, § 552.261(a)(1) or (2). charge pursuant to Texas Govern 2018 Public Information Act Handbook • Office of the Attorney General 269

286 Text of the Texas Public Information Act (5) If the charge for providing a copy of pu blic information includes costs of labor, a of Texas Government Code, l comply with the requirements governmental body shal Chapter 552, § 552.261(b). (6) For purposes of paragraph (2)(A) of th is subsection, two buildings connected by a covered or open sidewalk, an elevated or underground passageway, or a similar to be separate buildings. facility, are not considered (e) Overhead charge. (1) Whenever any labor charge is applicab le to a request, a governmental body may include in the charges direct and indirect costs, in addition to the specific labor charge. This overhead charge would cover such cost s as depreciation of capital assets, rent, maintenance and repair, utilities, and admini strative overhead. If a governmental shall be made in accordance with the body chooses to recover such costs, a charge methodology described in paragraph (3) of this subsection. Although an exact calculation of costs will vary, the use of a standard charge will avoid complication in formity for charges made statewide. calculating such costs and will provide uni r requests for copies of 50 or fewer pages of (2) An overhead charge shall not be made fo qualifies for a labor charge pursuant to standard paper records unless the request also Texas Government Code, § 552.261(a)(1) or (2). 20% of the charge made to cover any labor (3) The overhead charge shall be computed at costs associated with a particular request. Example: if one hour of labor is used for as follows: Labor ch arge for locating, a particular request, the formula would be compiling, and reproducing, $15.00 x .20 = $3. 00; or Programming labor charge, e hour of labor charge for locating, $28.50 x .20 = $5.70. If a request requires on compiling, and reproducing information ($15.00 per hour); and one hour of programming labor charge ($28.50 per hour ), the combined overhead would be: $15.00 + $28.50 = $43.50 x .20 = $8.70. Microfiche and microfilm charge. (f) formation that exists (1) If a governmental body already has in on microfiche or microfilm and has copies ava ilable for sale or distributi on, the charge for a copy must not exceed the cost of its reproduction. If no copies of the requested microfiche or n on the microfiche or microfilm can be microfilm are available and the informatio body should make a copy of the microfiche released in its entirety, the governmental or microfilm. The charge for a copy sha ll not exceed the cost of its reproduction. The Texas State Library and Archives Co mmission has the capacity to reproduce mental bodies that do not microfiche and microfilm for governmental bodies. Govern crofilm are encouraged to have in-house capability to reproduce microfiche or mi contact the Texas State Library before having the reproduction made commercially. microfilm is maintain ed, the charge is $.10 (2) If only a master copy of information in per page for standard size paper copies, plus any applicable labor and overhead charge for more than 50 copies. 2018 Public Information Act Handbook • Office of the Attorney General 270

287 Text of the Texas Public Information Act Remote document retrieval charge. (g) (1) Due to limited on-site capacity of stor age documents, it is frequently necessary to store information that is not in current use in remote storage locations. Every effort should be made by governmental bodies to store current records on-site. State agencies are encouraged to store inactive or non-current records with the Texas State Library and Archives Commissi on. To the extent that the retrieval of documents results in a charge to comply with a request , it is permissible to recover costs of such services for requests that qualify fo r labor charges under current law. (2) If a governmental body has a contract w ith a commercial records storage company, locate, retrieve, deliver, and return to whereby the private company charges a fee to charge shall be factor ed in for time spent storage the needed record(s), no additional labor locating documents at the storage location by the private company’s personnel. If after delivery to the governmental body, the boxes must still be sear ched for reco rds that are responsive to the request, a labor charge is a llowed according to subsection (d)(1) of this section. Computer resource charge. (h) (1) The computer resource ch for computers based on the arge is a utilization charge amortized cost of acquisition, lease, ope ration, and maintenance of computer ll of the following: resources, which might include, but is not li mited to, some or a central processing units (CPUs), servers, disk drives, local area networks (LANs), printers, tape drives, other peripheral de vices, communications devices, software, and system utilities. (2) These computer resource charges are not intended to substitute for cost recovery s other than responding to public methodologies or charges made for purpose information requests. (3) The charges in this subsection are averag es based on a survey of governmental bodies Each governmental body using this cost with a broad range of computer capabilities. recovery charge shall determine which category(ies) of computer system(s) used to fulfill the public information request most cl osely fits its existi ng system(s), and set its charge accordingly. Type of Syst em—Rate: mainframe—$10 per CPU minute; erver—$2.20 per clock hour; PC or Midsize—$1.50 per CPU minute; Client/S LAN—$1.00 per clock hour. over the computer utilization co (4) The charge made to rec st is the actual time the able rate. The CPU computer takes to execute a particular pr ogram times the applic charge is not meant to apply to programming or printing time; rather it is solely to me required by the computer to execute a recover costs associated with the actual ti read directly from the CPU clock, and program. This time, called CPU time, can be . If programming is required to comply most frequently will be a matter of seconds with a particular request, the appropria te charge that may be recovered for programming time is set forth in subsection (d ) of this section. No charge should be 2018 Public Information Act Handbook • Office of the Attorney General 271

288 Text of the Texas Public Information Act made for computer print-out time. Example: If a mainframe co mputer is used, and the processing time is 20 seconds, the charge s would be as follow s: $10 / 3 = $3.33; or $10 / 60 x 20 = $3.33. (5) A governmental body that does not have in-house comput er capabilities shall comply with requests in accordance with the § 552.231 of the Texas Government Code. scellaneous supplies, such as labels, boxes, Miscellaneous supplies. The actual cost of mi (i) and other supplies used to produce the requested information, may be added to the total charge for public information. Postal and shipping charges. Governmental (j) bodies may add any related postal or shipping expenses which are necessary to transmit th e reproduced information to the requesting party. of the Comptroller of Public (k) Sales tax. Pursuant to Office Accounts’ rules sales tax shall not be added on charges for pub 1, Chapter 3, Subchapter O, lic information (34 TAC, Part § 3.341 and § 3.342). body that accepts payment by credit card for Miscellaneous charges: A governmental (l) copies of public information and that is charged a “transaction fee” by the credit card company may recover that fee. (m) These charges are subject to pe riodic reevaluation and update. § 70.4. Requesting an Exemption n Act, a governmental body may request Pursuant to § 552.262(c) of th e Public Informatio (a) that it be exempt from part or all of these rules. eir charges to recover costs are higher than (b) State agencies must request an exemption if th those established by these rules. e state, must request an exemption before Governmental bodies, other than agencies of th (c) 25% higher than the charges established by seeking to recover costs that are more than these rules. ontain the following elements: made in writing, and must c an exemption request must be (d) ich an exemption is of these rules for wh (1) A statement identifying the subsection(s) sought; (2) The reason(s) the exemption is requested; (3) A copy of the proposed charges; (4) The methodology and figures used to calculate/compute the proposed charges; 2018 Public Information Act Handbook • Office of the Attorney General 272

289 Text of the Texas Public Information Act (5) Any supporting documentation, such as invoices, contracts, etc.; and (6) The name, title, work address, and pho ne number of a contact person at the governmental body. (e) The contact person shall provide sufficient information and an swer in writing any questions necessary to process the request for exemption. (f) on, because the request is duly documented, If there is good cause to grant the exempti reasonable, and in accordance with gene rally accepted accounting principles, the exemption shall be granted. The name of the governmental body shall be added to a list to Texas Register . be published annually in the (g) If the request is not duly documented and/or the charges are beyond cost recovery, the request for exemption shall be deni ed. The letter of denial shall: (1) Explain the reason(s) the exemption cannot be granted; and (2) Whenever possible, propose alternative charges. for exemption shall be completed promptly, All determinations to grant or deny a request (h) but shall not exceed 90 days fr by the Attorney General. om receipt of the request § 70.5. Access to Information Wh ere Copies Are Not Requested Access to information in sta (a) al body shall not charge for ndard paper form. A government making available for inspection information main tained in standard paper form. Charges is asked to provid e, for inspection, are permitted only where the governmental body ential information and public information. information that contains mandatory confid ke a copy of the page from When such is the case, the gov ernmental body may charge to ma which information must be edited. No othe r charges are allowed except as follows: (1) The governmental body ha s 16 or more employees and the information requested for inspection; and e public information takes more than five hours to prepare th (A) Is older than five years; or (B) Completely fills, or when ill, six or more archival assembled will completely f boxes. or fewer full-time employees and the information requested (2) The governmental body has 15 takes more than two hours to prepare th e public information for inspection; and (A) Is older than three years; or (B) Completely fills, or when assembled will e or more archival completely fill, thre boxes. 2018 Public Information Act Handbook • Office of the Attorney General 273

290 Text of the Texas Public Information Act (3) A governmental body may charge pursuant to paragraphs (1)(A) and (2)(A) of this subsection only for the production of those docum ents that qualify under those paragraphs. se to requests for access, for (b) Access to information in other th an standard form. In respon is maintained in othe r than standard form, purposes of inspection only, to information that a governmental body may not charge the requestin g party the cost of preparing and making available such information, unless complyin g with the request w ill require programming or manipulation of data. of Public Information § 70.6. Format for Copies (a) provided on computer-compatible media of If a requesting party asks that information be a particular kind, and the requested information is electronically stored and the that format and it is able to provide governmental body has the capability of providing it in ntal body shall provide the information in the it at no greater expense or time, the governme requested format. (b) The extent to which a requestor can be accommodated will de pend largely on the technological capability of the governmental body to which the request is made. quired to purchase any hardwa (c) A governmental body is not re re, software or programming accommodate a particular kind of request. capabilities that it does not already possess to medium shall not violate the information in the requested Provision of a copy of public (d) the governmental body and a third party. terms of any copyright agreement between s not have the required technological capabilities to comply (e) if the governmental body doe with the request in the format preferred by the requestor, the governmental body shall proceed in accordance w ith § 552.228(c) of the Public Information Act. ring programming or manipulation of data, (f) If a governmental body receives a request requi .231 of the Public accordance with § 552 the governmental body should proceed in information stored § 552.231 applies only to Information Act. Manipulation of data under in electronic format. § 70.7. Estimates and Waivers of Public Information Charges a requestor with an itemized statement of (a) A governmental body is required to provide $40, or if a charge lic information will exceed estimated charges if charges for copies of pub ting to Access to Inform in accordance with § 70.5 of this title (rela ation Where Copies Are on available for inspection. 0 for making public informati Not Requested) will exceed $4 The itemized statement of estima ted charges is to be provided before copies are made to by the Act. A govern enable requestors to make the choices allowed mental body that fails to provide the required statement may not coll ect more than $40. The itemized statement shall contain the following information: must be provided free of charge and (1) The itemized estimated charges, including any allowable charges for labor, overhead, copies, etc.; 2018 Public Information Act Handbook • Office of the Attorney General 274

291 Text of the Texas Public Information Act viewing the information is available; (2) Whether a less costly or no-cost way of (3) A statement that the requestor must respond in writing by mail, in person, by facsimile if the governmental body is capable of receiving such transmissions, or by body has an electronic mail address; electronic mail, if the governmental ered to have been automatically withdrawn (4) A statement that the request will be consid the requestor is not received within ten by the requestor if a written response from business days after the date the statement wa s sent, in which the requestor states that the requestor: (A) Will accept the estimated charges; (B) Is modifying the re quest in response to th e itemized statement; or (C) Has sent to the Attorney General a complaint alleging that the requestor has been overcharged for being provided w ith a copy of the public information. If after starting the work, but before making th e copies available, th e governmental body (b) statement will be exceed determines that the initially accepted estimated ed by 20% or more, e requestor does not respond to the updated an updated statement must be sent. If th statement, the request is considered to have been withdrawn by the requestor. (c) If the actual charges exceed $4 0, the charges may not exceed: (1) The amount estimated on the updated statement; or the initial statement, if an (2) An amount that exceeds by more than 20% the amount in updated statement was not sent. (d) ntioned in subsection A governmental body that provides a requestor with the statement me (a) of this section, may require a deposit or bond as follows: s 16 or more full-time employees and the estimated (1) The governmental body ha charges are $100 or more; or (2) The governmental body has 15 or fewer full-time em ployees and the estimated charges are $50 or more. If a request for the inspection for a deposit or a bond as of paper records will qualify (e) detailed in subsection (d) of this sect ion, a governmental body may request: (1) A bond for the entire estimated amount; or t of the entire estimated amount. (2) A deposit not to exceed 50 percen 2018 Public Information Act Handbook • Office of the Attorney General 275

292 Text of the Texas Public Information Act (f) A governmental body may require payment of overdue and unpaid balances before preparing a copy in response to a new request if: (1) The governmental body provided, and the requestor accepted, the required itemized statements for previous requests that remain unpaid; and (2) The aggregated unpaid amount exceeds $100. A governmental body unpaid amounts through any other may not seek payment of said (g) means. (h) A governmental body that cannot produce the public information for inspection and/or date the written response from the requestor duplication within 10 business days after the has been received, shall certify to that fact in writing, and set a date and hour within a reasonable time when the info rmation will be available. § 70.8. Processing Complaints of Overcharges Texas Government Code, requestors who believe they have (a) Pursuant to § 552.269(a) of the to the Attorney General. public information may complain been overcharged for a copy of (b) in writing, and must: The complaint must be (1) Set forth the reason(s) the person believes the charges are excessive; (2) Provide a copy of the original request and a copy of any correspondence from the governmental body stating the proposed charges; and (3) Be received by the Attorney days after the person knows General within 10 business of the occurrence of the alleged overcharge. ame will result in the (4) Failure to provide the information listed w ithin the stated timefr complaint being dismissed. (c) stions to the governmental body, regarding The Attorney General shall address written que the methodology and figures used in the calculation of the char ges which are the subject of the complaint. (d) pond in writing to the questions The governmental body shall res within 10 business days from receipt of the questions. The Attorney General may use tests, consulta tions with records managers and technical (e) agencies, and any other reasonable resources personnel at the Attorney General and other to determine appropriate charges. determines that the governmental body overcharged for requested If the Attorney General (f) adjust its charges in accordance with the public information, the governmental body shall 2018 Public Information Act Handbook • Office of the Attorney General 276

293 Text of the Texas Public Information Act determination, and shall refund the differen ce between what was charged and what was determined to be appropriate charges. (g) The Attorney General shall send a copy of the determination to the complainant and to the governmental body. (h) Pursuant to § 552.269(b) of the Texas Government Code, a requestor who overpays fuses or fails to follow the charges established by the because a governmental body re to recover three times the am ount of the overcharge if the Attorney General, is entitled governmental body did not act in good faith in computing the charges. § 70.9. Examples of Charges for Copies of Public Information The following tables present a few examples of the calculations of charges for information: (1) TABLE 1 (Fewer than 50 pages of paper r ecords): $.10 per copy x number of copies (standard-size paper copies); + Labor charge (if applicable); + Overhead charge (if age and shipping (if f applicable); + Post applicable); + Document retrieval charge (i applicable) = $ TOTAL CHARGE. rds or nonstandard copi TABLE 2 (More than 50 pages of paper reco (2) es): $.10 per copy x or cost of nonstanda rd copy (e.g., diskette, number of copies (standard-size paper copies), head charge (if applicable); oversized paper, etc.); + Labor charge (if applicable); + Over + Actual cost of misc + Document retrieval charge (if applicable); ellaneous supplies (if applicable); + Postage and shipping (if applicable) = $ TOTAL CHARGE. ): Cost of copy TABLE 3 (Information that Requires Programming or Manipulation of Data (3) (standard or nonstandard, whichever applies); + Labor charge; + Overhead charge; + Computer resource charge; + Programming time (i f applicable); + Document retrieval charge of miscellaneous supplies (i (if applicable); + Actual cost f applicable); + Postage and shipping (if applicable) = $ TOTAL CHARGE. vg. # of Maps); + Cost of Toner (Black or (4) TABLE 4 (Maps): Cost of paper (Cost of Roll/A Color, # of Maps per Toner Ca rtridge); + Labor charge (if a pplicable); + Overhead charge er resource Charge; + Actual co (if applicable) + Plotter/Comput st of miscellaneous supplies = $ TOTAL CHARGE. ng (if applicable) (if applicable); + Postage and shippi of Sheet of Photographic Paper/Avg. # of TABLE 5 (Photographs): Cost of Paper (Cost (5) Photographs per Sheet); + Developing/Fixing Ch emicals (if applicable); + Labor charge le); + Postage and shi pping (if applicable) = (if applicable); + Overhead charge (if applicab $ TOTAL CHARGE. 2018 Public Information Act Handbook • Office of the Attorney General 277

294 Text of the Texas Public Information Act § 70.10. The Attorney General Charge Schedule The following is a summary of the rmation that have been adopted charges for copies of public info by the Attorney General. (1) Standard paper copy—$.10 per page. (2) Nonstandard-size copy: (A) Diskette: $1.00; (B) Magnetic tape: actual cost; (C) Data cartridge: actual cost; (D) Tape cartridge: actual cost; (E) Rewritable CD (CD-RW)—$1.00; (F) Non-rewritable CD (CD-R)—$1.00; (G) Digital video disc (DVD)—$3.00; (H) JAZ drive—actual cost; Other electronic media—actual cost; (I) (J) VHS video cassette—$2.50; (K) Audio cassette—$1.00; 17 inches, greenbar, bluebar, not including (L) Oversize paper copy (e.g.: 11 inches by ng specialty paper)—$.50; maps and photographs usi t, blueline, map, photographic)—actual cost. (M) Specialty paper (e.g.: Mylar, blueprin (3) Labor charge: (A) For programming—$28.50 per hour; (B) For locating, compiling, and reproducing—$15 per hour. (4) Overhead charge—20% of labor charge. (5) Microfiche or microfilm charge: (A) Paper copy—$.10 per page; 2018 Public Information Act Handbook • Office of the Attorney General 278

295 Text of the Texas Public Information Act (B) Fiche or film copy—Actual cost. val charge—Actual cost. (6) Remote document retrie (7) Computer resource charge: (A) mainframe—$10 per CPU minute; (B) Midsize—$1.50 per CPU minute; (C) Client/Server system—$2.20 per clock hour; (D) PC or LAN—$1.00 per clock hour. (8) Miscellaneous supplies—Actual cost. (9) Postage and shipping charge—Actual cost. (10) Photographs—Actual cost as calculated in accordance with § 70.9(5) of this title. (11) Maps—Actual cost as calculated in accordance with § 70.9(4) of this title. (12) Other costs—Actual cost. (13) Outsourced/Contracted Services—Actual cost for the copy. May not include development costs. (14) No Sales Tax—No Sales Tax shall be a pplied to copies of public information. ts and Responsibilitie s Under the Public § 70.11. Informing the Public of Basic Righ Information Act (a) Pursuant to Texas Government Code, Chapter 55 2, Subchapter D, § 5 52.205, an officer for form prescribed by the Attorney public information shall prominently display a sign in the General. (b) tors and responsibilities the rights of reques The sign shall contain basic information about of governmental bodies that are subject to Chapter 552, as well as the procedures for inspecting or obtaining a copy of publ ic information under said chapter. following characteristics: The sign shall have the minimum (c) (1) Be printed on plain paper. l size, exclusive of framing. ches by 14 inches in tota (2) Be no less than 8 1/2 in (3) The sign may be laminated to prevent alterations. 2018 Public Information Act Handbook • Office of the Attorney General 279

296 Text of the Texas Public Information Act The sign will contain the following wording: (d) (1) The Public Information Act. Texas Gove rnment Code, Chapter 552, gives you the right to access government records; and an officer for public information and the officer’s them. All government info rmation is presumed to be agent may not ask why you want rtain exceptions may apply available to the public. Ce to the disclosure of the information. Governmental bodies shall prom ptly release requested information that is not confidential by la w, either constitutional, statutory, or by judicial decision, or not been sought. disclosure has information for which an exception to (2) Rights of Requestors. You have the right to: (A) Prompt access to informa tion that is not confidential or otherwise protected; (B) Receive treatment equal to all other requestors, including accommodation in icans with Disabilities Act (ADA) requirements; accordance with the Amer (C) Receive certain kinds of information without exceptions, like the voting record of public officials, and other information; arges, when charges will statement of estimated ch (D) Receive a written itemized exceed $40, in advance of work being st arted and opportunity to modify the request in response to the itemized statement; (E) Choose whether to inspec t the requested information (most often at no charge), receive copies of the information, or both; (F) A waiver or reduction of charges if the governmental body determines that general public; access to the information primarily benefits the rnmental body asking the communication from the gove (G) Receive a copy of the Attorney General for a ruli ng on whether the informatio n can be withheld under e communication discloses the requested one of the accepted exceptions, or if th information, a redacted copy; (H) Lodge a written complain t about overcharges for pub lic informatio n with the ints of other possible viol Attorney General. Compla ations may be filed with the county or district atto rney of the county where th e governmental body, other than a state agency, is located. If the co mplaint is against th e county or district e Attorney General. must be filed with th attorney, the complaint All governmental bodi (3) Responsibilities of Governmental Bodies. es responding to information requests have the responsibility to: specting or copying public information (A) Establish reasonable procedures for in and inform requestors of these procedures; 2018 Public Information Act Handbook • Office of the Attorney General 280

297 Text of the Texas Public Information Act ll give to the requestor all reasonable (B) Treat all requestors uniformly and sha comfort and facility, including acco mmodation in acco rdance with ADA requirement; (C) Be informed about open records laws and educate employees on the requirements of those laws; (D) Inform requestors of the estimated charges greate r than $40 and any changes in cent of the original estima the estimates above 20 per te, and confirm that the requestor accepts the charges, has amended the request, or has sent a complaint of overcharges to the Attorney General, in writing before fi nalizing the request; (E) Inform the requestor if the information cannot be provided promptly and set a date and time to provide it within a reasonable time; General regarding an (F) Request a ruling from the Attorney y information the and send a copy of the request for governmental body wishes to withhold, ruling, or a redacted copy, to the requestor; information that may be withheld and (G) Segregate public information from provide that public information promptly; (H) Make a good faith attemp t to inform third partie s when their proprietary information is being requested from the governmental body; (I) Respond in writing to all written comm unications from the Attorney General rmation and other alleged regarding complaints abou t the charges for the info violations of the Act. (4) Procedures to Obtain Information (A) Submit a request by g to a governmental in person, accordin mail, fax, email or body’s reasonable procedures. (B) Include enough description and detail a bout the information requested to enable the governmental body to accurately id entify and locate the information requested. (C) Cooperate with the governmental body’s reasonable efforts to clarify the type or amount of information requested. (5) Information to be released. (A) You may review it promptly, and if it cannot be produced within 10 business ll notify you in writing of the reasonable days the public information officer wi date and time when it will be available; 2018 Public Information Act Handbook • Office of the Attorney General 281

298 Text of the Texas Public Information Act ck up copies. Failure to keep ts to inspect records and to pi (B) Keep all appointmen appointments may result in losing the oppor tunity to inspect the information at the time requested; (C) Cost of Records. (i) You must respond to any written esti mate of charges within 10 business sent it or the request is considered days of the date the governmental body automatically withdrawn; mental body has (ii) If estimated costs exceed $100.00 (o r $50.00 if a govern ntal body may require a fewer than 16 full time employees) the governme bond, prepayment or deposit; (iii) You may ask the gove rnmental body to determ ine whether providing the neral public, resulting in a waiver or information primarily benefits the ge reduction of charges; ly agreed charges. A governmental (iv) Make timely payment for all mutual e balances exceed ing $100.00, or body can demand payment of overdu requests from you. ocessing additional obtain a security deposit, before pr (6) Information that may be w ithheld due to an exception. rnmental body receiv es your written (A) By the 10th business day after a gove request, a governmental body must: ion and state which exception apply; (i) Request an Attorney General Opin (ii) Notify the requestor of the re rney General; and ferral to the Atto (iii) Notify third parties if the request tary information; involves their proprie (B) Failure to request an Attorney General opinion and to notify the requestor within 10 business days will result in a presumption that the information is open unless there is a compelli ng reason to withhold it. tter to the Attorney Genera (C) Requestors may send a le l arguing for release, and may review arguments made by the go vernmental body. If the arguments disclose the requested information, the requestor may obtain a redacted copy. ter than the 45th business day (D) The Attorney Gene ral must issue a decision no la after the Attorney General received the request for a decision. The Attorney General may request an additional 10 business days extension. e Attorney General to “reconsider” an (E) Governmental bodies may not ask th opinion. 2018 Public Information Act Handbook • Office of the Attorney General 282

299 Text of the Texas Public Information Act (7) Additional Info rmation on Sign. (A) The sign must contain information of the governmental body’s officer for public information, or the officer’s agent, as well as the mailing address, phone and fax numbers, and email address, if any, where requestors may send a request for information to the officer or the officer’s agent. The sign must also contain the physical address at which requestors may request information in person. (B) The sign must contain information of the local county attorney or district mplaint of alleged violations of the attorney where requestors may submit a co ation for the Attorney General. Act, as well as the contact inform (C) The sign must also cont ain contact information of th e person or persons with whom a requestor may make speci al arrangements for accommodation with Disabilities Act. pursuant to the American (e) A governmental body may comply with Texas Government Co de, § 552.205 and this rule by posting the sign provided by the Attorney General. of the Texas Government Code § 70.12. Allowable Charges Under Section 552.275 - (e) when 1 TAC § 70.3(c) ze the methods established in A governmental body shall utili (a) calculating allowable charges under Section 552.275 of the Texas Government Code. (b) t complying with an individual’s public When calculating the amount of time spen information request(s) pursuant to Secti on 552.275 of the Texas Government Code, a governmental body may not include time spent on: (1) Determining the m eaning and/or scope of the request(s); tion from the requestor; (2) Requesting a clarifica (3) Comparing records gathered from different sources; Chapter 552 of the Texas (4) Determining which excep tions to disclosure under Government Code, if any, at is responsive to the may apply to information th request(s); (5) Preparing the information and/or corr espondence required under Sections 552.301, e Government Code; 552.303, and 552.305 of th r way bringing information into compliance (6) Reordering, reorganizing, or in any othe with well established and ge nerally accepted information management practices; or learning by, employees or ag ents of the governmental (7) Providing instruction to, or body of new practices, rules, and/or pr ocedures, including the management of electronic records. 2018 Public Information Act Handbook • Office of the Attorney General 283

300 Text of the Texas Public Information Act § 70.13. Fee for Obtaining Copy of Body Worn Camera Recording recording pursuant body worn camera r obtaining a copy of This section provides the fee fo (a) to § 1701.661 of the Government Code. is the sole authorit (1) Section 1701.661 of the Government Code y under which a copy of a body worn camera recording may be obtained from a law enforcement agency under the Public Information Act, Chapter 552 of the Government Code, and no fee for obtaining a copy of a body worn ca a law enforcement mera recording from thorized by this section. agency may be charged unless au or portions of a request, seeking to obtain (2) This section does not apply to a request, of a body worn camera reco information other than a copy rding. Portions of a request seeking information other than a copy of a body worn camera r ecording are subject to the charges listed in § 70.3 of this chapter. body worn camera recording shall be: (b) The charge for obtaining a copy of a (1) $10.00 per recording responsive to the request for information; and o footage responsive to the worn camera video or audi (2) $1.00 per full minute of body rmation has not already been obtained by a request for information, if identical info member of the public in respons e to a request for information. (c) A law enforcement agency may provide a copy without charge, or at a reduced charge, if of the charge is in the public interest. the agency determines waiver or reduction If the requestor is not permitted to obtain a (d) copy of a requested body worn camera recording under § 1701.661 of the Government the Public Information Act, Code or an exception in w enforcement agency may not charge the Chapter 552 of the Government Code, the la requestor under this section. 2018 Public Information Act Handbook • Office of the Attorney General 284

301 P ART F IVE : T ABLE OF C ASES A & T Consultants, Inc. v. Sharp , 904 S.W.2d 668 (Tex. 1995) ... 2, 1 8, 87, 90 Abbott v. City of Corpus Christi , 109 S.W.3d 113 (Tex . App.—Austin 2003, no pet.) ... 2, 41, 94 . App.—Austin 2013, no pet.) ... 70 Abbott v. Dallas Area Rapid Transit , 410 S.W.3d 876 (Tex Health & Mental Retardation , 212 S.W.3d 648 Abbott v. Tex. Dep’t of Mental 2006, no pet.) ... (Tex. App.—Austin ... 68 , 391 S.W.3d 253 Abbott v. Tex. Stat e Bd. of Pharmacy 2012, no pet.) ... . 30, 66 (Tex. App.—Austin Adkisson v. Paxton , 459 S.W.3d 761 (T ex. App.—Austin 20 15, no pet.) ... 15 Arlington Indep. Sch. Dist . v. Tex. Attorney Gen. , 37 S.W.3d 152 ... 109 (Tex. App.—Austin 2001, no pet.) ... , 778 S.W.2d 169 (Tex. App.—Housto n [1st Dist.] 1989, no writ) ... 11 Ashpole v. Millard , 490 S.W.3d 240 Austin Bulldog v. Leffingwell , no pet.). ... 156 (Tex. App.—Austin 2016 Austin v. City of San Antonio , 630 S.W.2d 391 (Tex. App.—San Antonio 1982 , writ ref’d n.r .e.) ... 82, 109 Baytown Sun v. City of Mont Belvieu , 145 S.W.3d 268 (Tex. App.—Houston [14th Di st.] 2004, no pet.) ... 1 1 1983, no writ) ... 11, 12 Benavides v. Lee , 665 S.W.2d 151 (Tex. App.—San Antonio , 994 S.W.2d 766 Birnbaum v. Alliance of Am. Insurers (Tex. App.—Austin 1999, pet. denied) ... 107, 108, 112 , 975 S.W.2d 353 Blankenship v. Brazos Higher Educ. Auth., Inc. (Tex. App.—Waco 199 8, pet. denied) ... 8, 33 (Tex. 2015 ... 79 Boeing Co. v. Paxton , 466 S.W. 3d 831 ., 878 S.W.2d 577 Cain v. Hearst Corp (Tex. 1994) ... 72 , 304 S.W.3d 380 (Tex City of Dallas v. Abbott . 2010) ... 18, 56 , no pet.) ... 94 x. App.—Austin 2002 , 86 S.W.3d 320 (Te City of Fort Worth v. Cornyn 61, 109, 110 00) ... 58, 60, , 22 S.W.3d 351 (Tex. 20 City of Garland v. Dallas Morning News City of Garland v. Dallas Morning News , 969 S.W.2d 548 (Tex. App.—Dallas 1998), , 22 S.W.3d 351 aff’d (Tex. 2000) ... 109 2018 Public Information Act Handbook • Office of the Attorney General 285

302 , 993 S.W.2d 461 (Tex . App.—Austin 1999, no pet.) ... 93 City of Lubbock v. Cornyn City of San Antonio v. San Antonio Express-News , 47 S.W.3d 556 (Tex. App.—San Antonio 2000, pet. denied) ... 94 City of San Antonio v. Tex. Attorney Gen. , 851 S.W.2d 946 (Tex. App.—Austin 19 93, writ denied) ... 9 4, 95 (Tex. App.—Austin 1996, , 929 S.W.2d 630 no writ) ... 21, 33 Conely v. Peck no pet.) ... 27 Cornyn v. City of Garland , 994 S.W.2d 258 (Tex . App.—Austin 1999, ustin 2001, no pet.) ... 107 Ctr. for Econ. Justi ce v. Am. Ins. Ass’n , 39 S.W.3d 337 (Tex. App.—A Curry v. Walker 379 (Tex. 1994) ... 111 , 873 S.W.2d Dallas Area Rapid Transit v. Dallas Morning News , 4 S.W.3d 469 (Tex. App. —Dallas 1999, no pet.) ... 76 , No. 03-10-00192-CV, Dallas Morning News v. City of Arlington ustin, Jan. 21, 2011, no pet.) ... 58 2011 WL 182886, at *4 (Tex. App.—A , 48 S.W.3d 789 (Tex. App.—Aus ... 21, 33, 34, 65 tin 2001, no pet.) Dominguez v. Gilbert , 108 S.W.3d 333 (Tex . App.—Austin 2003, no pet.) ... 65, 107 Envoy Med. Sys. v. State ex. 1977) ... 88, 89 Ex parte Pruitt , 551 S.W.2d 706 (T Fish v. Dallas Indep. Sch. Dist. , 31 S.W.3d 678 (Tex. App.—Eastland 2 000, pet. de nied) ... 18 , 26 Cir. 2001) ... 62 Ford v. City of Huntsville , 242 F.3d 235 (5th , 468 S.W. 3d 51 (Tex. 2015) ... 8 Greater Houston P’ship v. Paxton Harlandale Indep. Sc , 25 S.W.3d 328 h. Dist. v. Cornyn (Tex. App.—Austin 20 00, pet. denied) ... ... 83 , 483 S.W.3d 62 Harris County Appraisal Dist. v. Integrity Title Co., LLC (Tex. App.—Houston [1st Dist denied) ... 167 .] 2015, pet. , 34 S.W.3d 660 (T Harrison v. Vance no pet.) ... 23 ex. App.—Dallas 2000, 2d 210 ., 684 S.W. Heard v. Houston Post Co 1984, writ ref’d n.r.e.) ... 76, 78 (Tex. App.—Houston [1st Dist.] Heidenheimer v. Tex. Dep’t of Transp., No. 03-02-00187-CV, 2003 WL 124248, at *2 (Tex. App.—Austin Jan. 16, 2003, pet. denied) ed for publication) ... (mem. op., not designat ... 80 2018 Public Information Act Handbook • Office of the Attorney General 286

303 Hickman v. Moya , 976 S.W.2d 360 (Tex. App.—Wac o 1998, pet. de nied) ... 12, 23 ex. 1996) ... 12 Holmes v. Morales , 924 S.W.2d 920 (T Houston Chronicle Publ’g Co. v. City of Houston , 531 S.W.2d 177 writ ref’d n.r.e. per curiam (Tex. Civ. App.—Housto n [14th Dist.] 1975), , ... 89, 92 536 S.W.2d 559 (T ex. 1976) ... , 949 S.W.2d 492 Houston Chronicle Publ’g Co. v. Woods orig. proceeding) ... 64 (Tex. App.—Beaumont 1997, Hubert v. Harte-Hanks Tex. Newspapers, Inc. , 652 S.W.2d 546 (Tex. App.—Austin 1983, writ ref’d n.r.e.) ... 53, 75, 138 2015 WL 739605 Hudson v. Paxton , No. 03-13-00368-CV, (Tex. App.—Austin Feb. 20, 2015, pet. denied) (mem. op.) ... 58 Huie v. DeShazo , 922 S.W.2d 920 (T ex. 1996) ... 61, 84 (1958) ... 107 Hyde Corp. v. Huffines , 314 S.W.2d 763 (Tex.), cert. denied , 358 U.S. 898 735 (Tex. 200 , 113 S.W.3d 3) ... 107 In re Bass . 2001) ... 61, 84 , 53 S.W.3d 328 (Tex In re City of Georgetown In re Monsanto Co ., 998 S.W.2d 917 (Tex . App.—Waco 1999, orig . proceeding) ... 111 In re Nolo Press/Folk Law, Inc. , 991 S.W.2d 768 (T ex. 1999) ... 13 In re Tex. Farmers Ins. Exch. , 990 S.W.2d 337 (Tex. App.—Texarkana 199 9, orig. proceeding) ... 83 In re Valero Energy Corp. , 973 S.W.2d 453 (Tex. App.—Houston [14th Dist.] 1998, orig. pro ceeding) ... 61, 84 , 540 S.W.2d 668 Indus. Found. v. Tex. Indus. Accident Bd. (Tex. 1976), ... 65, 68, cert. denied , 430 U.S. 931 (1977) 71, 105 e of Admin. Hearings , 351 S.W.3d 290 (T ex. 2011) ... 58 Jackson v. State Offic r Fourth Supreme Judicial Dist. ex. 1985) ... 85 , 701 S.W.2d 644 (T Jordan v. Court of Appeals fo Justice v. Belo Broadcasting Corp. , 472 F. Supp. 145 (N.D . Tex. 1979) ... 72, 145 2015). ... 54 25 (Tex. , 462 S.W. 3d Kallinen v. City of Houston , 988 S.W.2d 300 (Te Keever v. Finlan t. dism’d) ... 19 x. App.—Dallas 1999, pe 917 S.W.2d 455 Lett v. Klein Indep. Sch. Dist., denied) ... 109 .] 1996, writ (Tex. App.—Houston [14th Dist 2018 Public Information Act Handbook • Office of the Attorney General 287

304 Moore v. Charles B. Pierce Film Enters., Inc. , 589 S.W.2d 489 .e.) ... 72, 145 writ ref’d n.r (Tex. Civ. App.—Texarkana 1979, —Houston [1st Dist.] Moore v. Henry , 960 S.W.2d 82 (Tex. App. 1996, no writ) ... 23 ed) ... 56, 70, 94 , 840 S.W.2d 519 so 1992, writ deni Morales v. Ellen (Tex. App.—El Pa , 514 S.W.2d 905 (Tex. Crim. App. 1974) ... 1 Mutscher v. State Nat’l Archives & Reco rds Admin. v. Favish , 541 U.S. 157 (2004) ... 72 , 498 F.2d 765 (D.C. Cir. 1974)... 108 Nat’l Parks & Conservation Ass’n v. Morton ex. 1993) ... 84, 111 Nat’l Tank Co. v. Brotherton , 851 S.W.2d 193 (T 3) ... 111 458 (Tex. 199 , 863 S.W.2d Nat’l Union Fire Ins. Co. v. Valdez Osborne v. Johnson 1997, orig. proceeding) ... 83 , 954 S.W.2d 180 (Tex. App.—Waco ex. 1991) ... 84 Owens-Corning Fiberglas Corp. v. Caldwell , 818 S.W.2d 749 (T 93 (1976 ... 71 , 424 U.S. 6 Paul v. Davis Paxton v. City of Dallas . 2017). ... 41, 85 , 509 S.W.3d 247 (Tex Paxton v. City of Dallas , No. 03-13-00546-CV, 2015 WL 3394061 (Tex. App.—Austin May 22, 2015 , pet. denied) (mem. op.)... 73 Permian Report v. Lacy , 817 S.W.2d 175 (Tex. App.—El Paso 1991, writ denied) ... 8 Ramie v. City of Hedwig Village , 765 F.2d 490 (5th Cir. 1985) ... 71 Roe v. Wade , 410 U.S. 1 13 (1973) ... 71 (1957) ... 73, 74 , 353 U.S. 53 Roviaro v. United States , 166 S.W.3d 342 (Tex. App.—For t Worth 2005, no pet.) ... 41 Simmons v. Kuzmich Star-Telegram, Inc. v. Doe , 915 S.W.2d 471 (Tex. 1995) ... 69 , 834 S.W.2d 54 (T Star-Telegram, Inc. v. Walker ex. 1992) ... 69 tl. Quality v. Abbott , 311 S.W.3d 663 Tex. Comm’n on Env (Tex. App.—Austin 20 10, pet. denied) ... ... 28 ., Tex. Comptroller of Pub. Account s v. Attorney General of Tex 56, 73, 75 10 ... ex. 20 354 S.W.3d 336 (T , 310 S.W.3d 6 Tex. Dep’t of Pub. Safety v. Abbott 010, no pet.) ... 100 70 (Tex. App.—Austin 2 2018 Public Information Act Handbook • Office of the Attorney General 288

305 Tex. Dep’t of Pub. Safety v. Cox Tex. Newspapers, L.P. & Hearst Newspapers, L.P. , 287 S.W.3d 390 (Tex. App.—Austin 2009), rev’d , 343 S.W.3d 112 (T ex. 2011) ... 73 Safety v. Gilbreath Tex. Dep’t of Pub. , 842 S.W.2d 408 (Tex. App.—Austin 1992, no writ) ... 5 4, 109 ractic Exam’rs v. Abbott , 391 S.W.3d 343 Tex. State Bd. of Chirop (Tex. App.—Austin 2013, no pet.) ... ... 30 , Tex. State Employees Union v. Tex. Dep’t of Mental Health & Mental Retardation ex. 1987) ... ... 93 746 S.W.2d 203 (T , 71 S.W.3d 473 (T Thomas v. Cornyn t.) ... 2, 33, 39, 54, 61, 76 ex. App.—Austin 2002, no pe Thomas v. El Paso County Cmty. Coll. Dist. , 68 S.W.3d 722 ... 77 (Tex. App.—El Paso 2001, no pet.) ... United States Dep’t of Justice v. Repo rters Comm. for Freedom of the Press , (1989) ... 489 U.S. 749 ... 95 .D.N.Y. 1982) ... 72 , 534 F. Supp. 676 (S mated Life Ins. Co. United States v. Amalga , 887 F.2d 1528 (11th United States v. Napper Cir. 1989) ... 68 .2d 479 , 958 S.W v. Tex. Legal Found. Univ. of Tex. Law Sch. ig. proceeding) ... 76, 7 (Tex. App.—Austin 1997, or 8 , 429 U.S. 589 Whalen v. Roe (1977) ... 71 2018 Public Information Act Handbook • Office of the Attorney General 289

306 EGULATIONS R P ART S IX : T S TATUTES , R ULES , ABLE OF 211 56.32 ... 148, Texas Administrative Code 56.34 ... 146, 210 1 T.A.C. § 63.1 ... 259 62.002 ... 99 63.11 ... 262 1 T.A.C. § 62.005 ... 99 63.12 ... 262 1 T.A.C. § 62.051 ... 99 1 T.A.C. § 63.13 ... 262 62.053 ... 99 63.14 ... 263 1 T.A.C. § 62.054 ... 99 63.15 ... 263 1 T.A.C. § 63.16 ... 264 1 T.A.C. § 3.2 ... 259, 264 1 T.A.C. § 6 Texas Constitution 52(a) ... 14, 25 Art. III, sec. 63.22 ... 264 1 T.A.C. § 22 ... 59 Art. IV, sec. 63.23 ... 265 1 T.A.C. § Art. V, s ec. 1 ... 12 63.3 ... 260 1 T.A.C. § 20 ... 9, 176 Art. VIII, sec. 63.4 ... 260 1 T.A.C. § 1 T.A.C. § 63.5 ... 261 1 T.A.C. § 63.6 ... 261 Texas Education Code 21.355 ... 66 70.1 ... 266 1 T.A.C. § 1 T.A.C. § 70.10 ... 278 51.212 ... 8, 1 26, 131, 201 70.11 ... 279 1 T.A.C. § 51.910 ... 137 1 T.A.C. § 70.12 ... 283 5, 139, 194, 195, 61.003 ... 103, 104, 12 70.13 ... 284 1 T.A.C. § 201, 207 70.2 ... 267 1 T.A.C. § Ch. 21, Subch. B ... 67 70.3 ... 268 1 T.A.C. § Tit. 2 ... 75 70.4 ... 272 1 T.A.C. § Tit. 3 ... 75 1 T.A.C. § 70.5 ... 273 1 T.A.C. § 70.6 ... 274 Texas Election Code 1 T.A.C. § 70.7 ... 274 13.0021 ... 127, 129, 132, 202, 204 1 T.A.C. § 70.8 ... 276 18.008 ... 23 70.9 ... 277 1 T.A.C. § 181.23 ... 124 25 T.A.C. § Texas Family Code 101.003 ... 97, 244 261.001 ... 97 Texas Alcoholic Beverage Commission 5.14 ... 87 261.201 ... 66, 97, 98 5.31 ... 87 51.02 ... 23, 96, 190 5.36 ... 87 51.14 ... 96 5.361 ... 87 58.007 ... 96 58.008 ... 96, 97 Ch. 261 ... 30, 66, 120, 199 Texas Civil Practice and Remedies Code 154.073 ... 66 ... 76 Ch. 101 Texas Government Code 2151.002 ... 243 2252.907 ... 11 Texas Civil Statutes Art. 4447cc ... 140 2308.253 ... 7, 175 306.003 ... 105 311.005 ... 139 Texas Code of Criminal Procedure 2.12 ... 126, 131 402.006 ... 139 2.122 ... 132 402.041 ... 59 193 43.14 ... 102, 402.042 ... 59, 254 56.03 ... 148, 211 402.043 ... 59 2018 Public Information Act Handbook • Office of the Attorney General 290

307 -75, 93, 95, 100, 552.101 ... 42, 43, 60, 64 402.045 ... 59 105, 107, 191, 249 406.006 ... 45 75, 191 552.102 ... 73, 74, 91, 193 411.048 ... 86, 88, 552.103 ... 33, 75, 76, 77, 78, 79, 191 411.081 ... 95 552.104 ... 42, 61, 79, 192, 249 411.082 ... 96, 97 552.105 ... 79, 80, 192 411.083 ... 95 82, 192 552.106 ... 80, 81, 418.176-.182 ... 99 , 84, 85, 192 552.107 ... 62, 82, 83 420.003 ... 156, 216 552.108 ... 32, 61, 85, 87-94, 101, 184, 192 441.180-.205 ... 58 102, 193 552.1081 ... 466.019 ... 87 , 105, 194 552.1085 ... 72, 103 152, 190, 214 508.313 ... 151, 105, 196 552.109 ... 551.022 ... 64 106-108, 115, 116, 552.110 ... 42, 43, 64, 551.104 ... 60 146, 196, 198, 249 7, 62, 173, 186 552.001 ... 1, 2, 2 33, 78, 82, 84, 552.111 ... 24, 27, 30, 552.002 ... 2, 10, 14, 15, 16, 18, 84, 173 108-110, 196 12, 15, 16, 174, 295 552.003 ... 7, 8, 11, 552.112 ... 111, 112, 113, 196 552.0035 ... 5, 1 1, 13, 175 552.113 ... 42, 43, 10 7, 113, 115, 116, 9, 176 552.0036 ... 197, 249, 307 552.0038 ... 176 552.114 ... 28, 30, 42, 117, 118, 120, 552.004 ... 58, 178 198, 249 552.005 ... 60, 178 552.115 ... 121, 122, 123, 124, 199 552.0055 ... 19, 178 125, 201 552.116 ... 552.006 ... 178 129, 130, 131, 201 552.117 ... 35, 126, 128, , 142, 151, 159, 552.007 ... 27, 28, 32 135, 189, 201-203 552.1175 . 31, 131, 134, 178, 208, 214, 219 178, 240, 257 552.008 ... 28, 29, 552.1176 ... 135, 205 552.009 ... 180 552.118 ... 135, 136, 205 180, 181 552.010 ... 136, 206 552.119 ... 9, 181, 250 552.011 ... 2, 5 552.120 ... 137, 206 552.012 ... 3, 5, 6, 182 137, 206 552.121 ... 39, 79, 86, 552.021 ... 2, 14, 102, 104, 138, 206 552.122 ... 5, 128, 133, 136, 111, 113, 114, 120, 12 139, 206 552.123 ... 138, 139, 140, 141, 143, 145, 146, 150-154, 552.1235 ... 139, 207 156-158, 161-165, 167-172, 183, 185, 140, 207 552.124 ... 139, , 199, 201, 204- 188, 190-193, 195-197 552.125 ... 140, 141, 207 211, 213-215, 2 17, 218, 220-228 552.126 ... 141, 207 59, 183 552.0215 ... 58, 142, 208 552.127 ... 141, 9, 82, 84, 552.022 ... 61, 62, 76, 7 85, 150, 142, 208 552.128 ... 184, 192, 214 143, 209 552.129 ... 552.0221 ... 185 552.130 ... 30, 46, 48, 143, 144, 145, 209 2, 163, 186, 221 552.0225 ...62, 64, 16 145, 146, 210, 249 552.131 ... 42, 43, 107, 552.023 ... 28, 29, 30, 31, 139, 140, , 147, 210 552.132 ... 69, 146 144, 147, 154, 1 87, 207, 233, 250 148, 211 552.1325 ... 1, 156, 157, 187, 552.024 ... 74, 126 - 13 , 150, 211 552.133 ... 61, 148 191, 201, 202, 203, 217, 308 552.134 ... 151, 152, 190, 214 552.025 ... 189 552.135 ... 152, 214 117, 118, 189 552.026 ... 28, 30, 154, 155, 215 552.136 ... 153, 552.027 ... 16, 189 552.137 ... 46, 155, 216 552.028 ... 23, 190 158, 216 552.138 ... 156, 152, 190, 214 552.029 ... 151, 158, 218 552.139 ... 2018 Public Information Act Handbook • Office of the Attorney General 291

308 552.274 ... 180, 243 552.140 ... 159, 160, 219 552.275 ... 51, 243, 283 160, 220 552.141 ... , 167, 59, 60, 76 552.301 ... 17, 33-43, 56, 161, 220 552.142 ... 225, 246, 248, 249 552.1425 ... 161, 220 552.302 ... 33, 36, 37, 40, 41, 85, 248 163, 187, 221 552.143 ... 64, 162, 552.303 ... 41, 248 552.144 ... 163, 222 44, 248 552.3035 ... 38, 552.145 ... 163, 222 552.304 ... 44, 72, 249 164, 222 552.146 ... 146, 249 56, 116, 552.305 ... 42, 43, 44, 552.147 ... 58, 130, 16 4, 165, 183, 222 552.306 ... 27, 38, 44, 250 552.148 ... 165, 223 233, 250 552.307 ... 187, 552.149 ... 165, 167, 223 552.308 ... 40, 44, 45, 250, 251 552.150 ... 167, 168, 224 552.309 ... 44, 45, 251 552.151 ... 168, 225 552.321 ... 53, 54, 58, 251, 254 552.152 ... 73, 100, 101, 169, 226 552.3215 ... 54, 55, 56 , 58, 251, 254 169, 226 552.153 ... 552.322 ... 38, 57, 248, 253 552.154 ... 170, 227 552.3221 ... 57, 253 , 227, 231 552.155 ... 22, 171 552.323 ... 57, 58, 254 171, 228 552.156 ... 552.324 ... 53, 56, 57 , 58, 254, 258 552.158 ... 172, 228 , 254, 255, 258 552.325 ... 43, 56, 57 552.201 ... 19, 228 552.326 ... 56, 256 552.202 ... 229 552.327 ... 57, 256 552.203 ... 19, 59, 229 552.351 ... 53, 54, 59, 256 552.204 ... 21, 229 164, 187, 223, 257 552.352 ... 28, 53, 64, 552.205 ... 17, 180, 229 552.353 ... 53, 57, 255, 257 219, 230 2, 24, 159, 552.221 ... 19, 20, 21, 2 660.2035 ... 100 552.222 ... 18, 22, 144, 231 76.006(g) ... 13 552.223 ... 22, 23, 232 81.011(a) ... 13 552.224 ... 232 81.033 ... 13 552.225 ... 24, 232 Ch. 2001 ... 76 552.226 ... 24, 232 ... 59, 60 Ch. 402 552.227 ... 19, 232 Ch. 411, Subch. F ... 95 552.228 ... 24, 25, 26, 233, 274 Ch. 51 ... 240 552.229 ... 187, 233 ... 60 Ch. 551 552.230 ... 24, 233 552.231 ... 26, 50, 234, 272, 274 Ch. 76 ... 126, 132, 202, 203 552.232 ... 19, 235 552.261 ... 45, 46, 236, 240 Texas Health & Safety Code 552.2615 ... 49, 236, 239 191.022 ... 123 0, 234, 238, 244 552.262 ...45, 52, 18 481.075 ... 135, 136, 205 552.263 ... 50, 239 481.076 ... 136 552.264 ... 240 611.002 ... 66 552.265 ... 240 772.118 ... 99 552.266 ... 240 772.218 ... 99 552.2661 ... 240 772.318 ... 66, 99 552.267 ... 49, 241 773.091 ... 66 552.268 ... 52, 180, 241 Ch. 192 ... 122 552.269 ... 52, 241 Ch. 772 ... 66, 99 552.270 ... 241 Tit. 3 ... 123 552.271 ... 48, 236, 237, 238, 241 552.272 ... 48, 52, 242 2018 Public Information Act Handbook • Office of the Attorney General 292

309 cial Administration Texas Rules of Judi Texas Human Resources Code , 295, 296, 12 ... 5, 7, 11, 294 298, 299, 156, 216 51.002 ... 300, 302 Ch. 42 ... 98 132, 202, 204 Tit. 12 ... 127, Texas Tax Code 7, 175 11.30 ... Texas Insurance Code 134, 204 25.025 ... 133, 1.15 ... 67 165, 223 41.461 ... 21.28 ... 13 Ch. 151 ... 184 9.39 ... 32 Texas Transportation Code Texas Local Government Code 125, 201 22.074 ... 118.011 ... 52 550.065 ... 52, 93, 144 118.144 ... 52 724.018 ... 31 143.051–.055 ... 94 730.003 ... 22, 231 143.089 ... 94, 95 Ch. 521, Subch. C ... 96 ... 67 143.1214 Ch. 548, Subch. F ... 143, 209 191.008 ... 52 Ch. 550 ... 93 201 - 205 ... 58 Ch. 730 ... 22, 143, 144, 145, 209, 231 202.002(b) ... 59 54.035(e) ... 121, 200 Ch. 143 ... 94 Texas Utilities Code 182.052 ... 66 Texas Natural Resources Code Ch. 91 ... 113, 114, 197 United States Code 31, 117, 118, 120, 20 U.S.C. § 1232g ... 189, 198, 199 Texas Occupations Code 42 U.S.C. § 12101 ... 67 159.002(b) ... 66 d-1(a) ... 67 42 U.S.C. § 1320 131, 203 1701.001 ... 42 U.S.C. § 1320d-2 ... 67 901.160 ... 31 49 U.S.C. § 114... 100 52(b)(4) ... 108 5 U.S.C. § 5 Texas Penal Code 5 U.S.C. § 5 52(b)(7) ... 90 1.07 ... 23, 296 52(b)(9) ... 116 5 U.S.C. § 5 37.10 ... 54 United States Code of Federal Regulations Texas Rules of Civil Procedure 144 ... 162, 221 17 C.F.R. § 230. 192.5 ... 61, 62, 110, 111 76a ... 57, 254 34 C.F.R. § 99.3 ... 118, 119 34 C.F.R. § 99.31 ... 118 34 C.F.R. § 99.33 ... 118 Texas Rules of Evidence 503 ... 61, 82, 83, 84 34 C.F.R. § 99.35 ... 118 511 ... 85 160.103 ... 67 45 C.F.R. § . 1520 45 C.F.R. Pt ... 100 45 C.F.R. Pt . 160 ... 67 45 C.F.R. Pt . 164 ... 67 2018 Public Information Act Handbook • Office of the Attorney General 293

310 J P ART S EVEN : R ULES OF DMINISTRATION UDICIAL A Rule 12. Public Access to Judicial Records ion in the judiciary public access to informat 12.1 Policy. The purpose of this rule is to provide consistent with the mandates of interests are best served by the Texas Constitution that the public open courts and by an independent judiciary. The rule should be lib erally construed to achieve its purpose. In this rule: 12.2 Definitions. or elected judge or justice. Judge means a regularly appointed (a) (b) Judicial agency means an office, board, commission, or ot her similar entity that is in urt. A task force the Judicial Department and that serves an administ rative function for a co judge is a “judicial agency”. or committee created by a court or Judicial officer means a judge, former or (c) retired visiting judge, referee, commissioner, special master, court-appointed arbitrator, or other person exercising adjudicatory powers in the judiciary. A mediator or other provider of non-binding dispute resolution services is not a “judicial officer”. Judicial record means a reco r a court or judicial agency rd made or maintained by or fo (d) in its regular course of business but not pertai ning to its adjudicative function, regardless of whether that function relates to a specific case. A record of any nature created, produced, or filed in connection with any matter that is or has been before a court is not a judicial record. ph, film, recording, or other letter, map, book, tape, photogra A record is a document, paper, rm, characteristics, or means of transmission. material, regardless of electronic or physical fo cial record determined as (e) person with custody of a judi Records custodian means the follows: (1) The judicial records of a court with only one judge, such as any trial court, are in the custody of that judge. Judicial records pertaining to the joint administration of a number of those courts, su ch as the district courts in a particular county or region, over the joint administration, such as the are in the custody of the judge who presides local or regional administrative judge. th more than one judge, such as any The judicial records of a court wi (2) chief justice or presiding judge, who must appellate court, are in the custody of the a majority of the judges of the court. act under this rule in accordance with the vote of But the judicial records relating specifically to the service of one such judge or that e custody of that judge. judge’s own staff are in th The judicial records of a judicial by subparagraphs (1) officer not covered (3) and (2) are in the custody of that officer. 2018 Public Information Act Handbook • Office of the Attorney General 294

311 (4) The judicial records of a judicial ag ency are in the custody of its presiding officer, who must act under this rule in acc ordance with agency policy or the vote of mbers of the agency. a majority of the me This rule does not apply to: 12.3 Applicability. records or information to which access is controlled by: (a) (1) a state or federal court rule, including: cedure, including Rule 76a, Texas Rules a rule of civil or criminal pro (A) of Civil Procedure; a rule of appellate procedure; (B) a rule of evidence; (C) (D) a rule of administration; (2) a state or federal court order not issued merely to thwart the purpose of this rule; (3) the Code of Judicial Conduct; e or provision of law; (4) Chapter 552, Government Code, or another statut apter 552, Government Code, is made (b) records or information to which Ch inapplicable by statute, rule, or other provisi on of law, other than Section 552.003(1)(B); or search warrant or a supporting affidavit, (c) records or information relating to an arrest access to which is controlled by: (1) a state or federal court rule, including a rule of civil or criminal procedure, appellate procedure, or evidence; or common law, court order, judicial decision, or another provision of law (2) elected officials other than judges. (d) 2018 Public Information Act Handbook • Office of the Attorney General 295

312 12.4 Access to Judicial Records. . Judicial records other than those c and 12.5 are open overed by Rules 12.3 (a) Generally to the general public for inspection and copying during regular business hours. But this rule does not require a court, judicial agency, or records custodian to: create a record, other than to prin t information stored in a computer; (1) retain a judicial record (2) for a specific period of time; (3) allow the inspection of or provide a copy of information in a book or publication commercially available to the public; or (4) r a judicial record from or on behalf of respond to or comply with a request fo in a correctional fa an individual who is imprisoned or confined cility as defined in in any state, federal, or in any other such facility Section 1.07(a), Penal Code, or foreign jurisdiction. arily make part or all of the . A records custodian may volunt Voluntary Disclosure (b) e to the public, subject to Rules 12.2(e)(2) information in a judicial record availabl and 12.2(e)(4), unless the disclosure is expressl y prohibited by law or exempt under this rule, Information voluntarily disclosed must be made or the information is confidential under law. available to any person who requests it. The following records are ex empt from disclosure under 12.5 Exemptions from Disclosure. this rule: s to a judicial officer’s (a) Judicial Work Product and Drafts . Any record that relate s prepared by that judicial adjudicative decision-making proces officer, by another judicial officer, or by court staff, an intern, or any other person ac ting on behalf of or at the direction of the judicial officer. . Any record, including a security plan or code, the release of which (b) Security Plans l against physical injury or jeopardize would jeopardize the security of an individua theft, tampering, improper us information or property against e, illegal disclosure, trespass, unauthorized access, or physical injury. (c) Personnel Information . Any personnel record that, if disclosed, would constitute a clearly unwarranted invasion of personal privacy. Home Address and Family Information (d) g any person’s home . Any record reflectin address, home or personal te lephone number, social security number, or family members. (e) Applicants for Employment or Volunteer Services . Any records relating to an applicant for employment or volunteer services. Judicial Administration Matters (f) Internal Deliberations on Court or . Any record relating to internal deliberations of a court or judicial agency, or among judicial officers or members of a judicial agency, on matters of court or judicial administration. 2018 Public Information Act Handbook • Office of the Attorney General 296

313 (g) Court Law Library Information . Any record in a law lib rary that links a patron’s name with the materials requested or borrowed by that patron. ts a judicial officer’s . Any record that reflec Judicial Calendar Information (h) appointments or engagements that are in the futu re or that constitute an invasion of personal privacy. Information Confiden tial Under Other Law (i) is confidential or . Any record that exempt from disclosure under a state or fe deral constitutional provisi on, statute or common law, including information that relates to: (1) a judicial officer, if the complaint is a complaint alleging misconduct against exempt from disclosure under Chapter 33, Government Code, or other law; (2) a person who is licensed or regulated a complaint alleging misconduct against by the courts, if the information is co nfidential under applicable law; or a trade secret or commercial or fi (3) nancial information made privileged or confidential by statute or judicial decision. ting to civil or criminal Litigation or Settlement Negotiations . Any judicial record rela (j) litigation or settlement negotiations: (1) ency is or may be a party; or in which a court or judicial ag or may be a party (2) in which a judicial officer or member of a judicial agency is as a consequence of the pers on’s office or employment. an investigation of (k) Investigations of Character or Conduct . Any record relating to any person’s character or conduct, unless: the record is requested by (1) the person being investigated; and release of the record, cords custodian, would not in the judgment of the re (2) impair the investigation. 2018 Public Information Act Handbook • Office of the Attorney General 297

314 Examinations . Any record relating to an examin ation administered to any person, (l) unless requested by the person after the examination is concluded. 12.6 Procedures for Obtaining Access to Judicial Records. (a) Request . A request to inspect or copy a judicial record mu st be in writing and must include sufficient information to reasonably iden tify the record requested. The request must be sent to the records custodian and not to a court clerk or other agent for the records custodian. A requestor need not have detaile rds custodian’s filing d knowledge of the reco system or procedures in orde r to obtain the information. (b) Time for Inspection and Delivery of Copies . As soon as prac ticable—and not more than 14 days—after actual receipt of a request to inspect or copy a judicial record, if the record is available, the re cords custodian must either: spect the record and provide (1) allow the requestor to in a copy if one is requested; or ting that the record cannot within the (2) send written notice to the requestor sta prescribed period be produced or a copy provided, as applicable, and setting a reasonable date and time when the document will be produced or a copy provided, as applicable. Place for Inspection (c) . A records custodian must produc e a requested judicial record at a convenient, public area. (d) Part of Record Subject to Disclosure . If part of a requested record is subject to disclosure under this rule and part is not, the records custodian must re dact the portion of the record that is not subject to disclosure, permit the remainder of the reco rd to be inspected, and provide a copy if requested. (e) Copying; Mailing . The records custodia n may deliver the record to a court clerk for copying. The records custodian may mail the copy to a requestor who has prepaid the postage. (f) . A judicial officer or a presiding officer Recipient of Request not Custodian of Record of a judicial agency who receive s a request for a judicial record not in his or her custody as defined by this rule must promp tly attempt to ascertain who the custodian of the record is. If quested record is, the the recipient of the request can ascertain who the custodian of the re recipient must promptly refer th ify the requestor in writing of e request to that person and not the referral. The time for response prescribed in Rule 12.6(b) does not begin to run until the referral is actually received by the records custodian. If the recipient cannot ascertain who the custodian of the requested record is, the r ecipient must promptly notify the requestor in writing that the recipient is not the custodian of the record and cannot ascertain who the custodian of the record is. record may not be asked to (g) . A person requesting a judicial Inquiry to Requestor the judicial record. But a est as a condition of obtaining disclose the purpose of the requ 2018 Public Information Act Handbook • Office of the Attorney General 298

315 records custodian may make inquiry to establis h the proper identification of the requestor or to clarify the nature or scope of a request. . A records custodian must treat all requests for (h) Uniform Treatment of Requests information uniformly without regard to the po sition or occupation of the requestor or the person on whose behalf a request is made, including whether th e requestor or such person is a member of the media. Records; Appeal of Assessment. Costs for Copies of Judicial 12.7 (a) Cost . The cost for a copy of a judicial record is either: (1) the cost prescribed by statute, or (2) if no statute prescribes the cost, the the Attorney General cost the Office of prescribes by rule in th e Texas Administrative Code. (b) Waiver or Reduction of Cost Assessment by Records Custodian . A records custodian a copy of a judicial record if: may reduce or waive the charge for doing so is in the public interest because providing the copy of the record (1) primarily benefits the general public, or (2) the amount of the a charge will exceed the cost of processing collection of charge. (c) Appeal of Cost Assessment . A person who believes that a charge for a copy of a rcharge in the manner prescribed by Rule 12.9 judicial record is excessive may appeal the ove for the appeal of the denial of access to a judicial record. (d) Records Custodian Not Personally Responsible for Cost . A records custodian is not required to incur personal expense in fu rnishing a copy of a judicial record. Denial of Access to 12.8 a Judicial Record. (a) ny a request for a judicial . A records custodian may de When Request May be Denied record under this rule only if the records custodian: (1) reasonably determines that the reques ted judicial record is exempt from required disclosure under this rule; or (2) makes specific, non-conclusory findi ngs that compliance with the request the routine operation of the court or would substantially and unreasonably impede judicial agency. access to a judicial record must Time to Deny (b) . A records custodian who denies notify the person requesting the record of the de nial within a reasonable time—not to exceed quest, or before the deadline 14 days—after receipt of the re for responding to the request extended under Rule 12.6(b)(2). 2018 Public Information Act Handbook • Office of the Attorney General 299

316 (c) Contents of Notice of Denial . A notice of denial must be in writing and must: state the reason for the denial; (1) (2) inform the person of the right of appeal provided by Rule 12.9; and (3) include the name and address of the Administrative Director of the Office of Court Administration. 12.9 Relief from Denial of A ccess to Judicial Records. (a) Appeal . A person who is denied access to a judicial record may appeal the denial by ith the Administrative Direct or of the Office of Court filing a petition for review w Administration. (b) Contents of Petition for Review . The petition for review: (1) must include a copy of the request to the record custodian and the records custodian’s notice of denial; (2) ting facts, arguments, and authorities that the may include any suppor petitioner believes to be relevant; and review, the grounds for which must be may contain a request for expedited (3) stated. (c) Time for Filing . The petition must be f iled not later than 30 da ys after the date that the petitioner receives notice of a denial of access to the judicial record. (d) Notification of Records Cust odian and Presiding Judges . Upon receipt of the petition for review, the Administrative Director must promptly notify the records custodian who esiding judge of each administrative judicial denied access to the judicial record and the pr region of the filing of the petition. . A records custodian wh o denies access to a judicial record and against Response (e) whom relief is sought under this section may—w ithin 14 days of rece ipt of notic e from the e petition for review and include Administrative Direct or—submit a written response to th supporting facts and authorities in the response. The records custodian must mail a copy of the response to the petitioner. The records custodian may also su bmit for in camera inspection any record, or a sample of records, to wh ich access has been denied. . Upon receiving notice under Rule 12.9(d), the Formation of Special Committee (f) ial committee of not less than five of the presiding judges must refer the petition to a spec must notify the Admi e presiding judges nistrative Director, presiding judges for review. Th names of the judges selected to serve on the the petitioner, and the records custodian of the committee. 2018 Public Information Act Handbook • Office of the Attorney General 300

317 (g) Procedure for Review . The special committee must review the petition and the records custodian’s response and determine whethe r the requested judicial record should be made available under this rule to the petiti oner. The special committee may request the records custodian to submit for in camera inspection a record, or a sample of records, to which access has been denied. The records cust odian may respond to the request in whole or in part but it not required to do so. Considerations (h) . When determining whether the reque sted judicial record should be made available under this rule to petition, the special committee must consider: (1) the text and policy of this Rule; (2) any supporting and controverting fa cts, arguments, and authorities in the petition and the response; and es or by courts. other special committe prior applications of this Rule by (3) and for good cause shown, the (i) . On request of the petitioner, Expedited Review xpedited review of the petition. special committee may schedule an e (j) ation must be supported by a written . The special committee’s determin Decision decision that must: (1) issue within 60 days of the date that the Administra tive Director received the petition for review; (2) either grant the petition in n the denial of access to whole or in part or sustai the requested judicial record; uding appropriate citations to this rule; (3) state the reasons for the decision, incl and identify the record or portions of th (4) e record to which access is ordered or not disclose confid denied, but only if the description does ential information. send the decision to the (k) Notice of Decision . The special committee must Administrative Director. On receipt of special committee, the the decision from the Administrative Director must: (1) e records custodian of the decision immediately notify the petitioner and th ecision with the notice; and and include a copy of the d (2) the Administrative mmittee’s decision in maintain a copy of the special co Director’s office for public inspection. . The Administrative Director (l) must publish periodically to Publication of Decisions the judiciary and the general public the special committees’ decisions. 2018 Public Information Act Handbook • Office of the Attorney General 301

318 Final Decision . A decision of a speci al committee under this rule is not appealable (m) but is subject to review by mandamus. (n) Appeal to Special Committee Not Exclusive Remedy . The right of review provided under this subdivision is not exclusive and does not preclude relief by mandamus. 12.10 Sanctions. A records custodian who fa ils to comply with this rule, knowing that the failure to comply is in violation of th e rule, is subject to sanctions und er the Code of Judicial Conduct. Comment to 2008 change: The Attorney General’s rule , adopted in accordance with Section 552.262 of the e Texas Administrative Code. Government Code, is in Sec tion 70.3 of Title 1 of th Comments 1. Although the definition of “j udicial agency” in Rule 12.2(b) is comprehensive, applicability judicial agencies whose records are of the rule is restricted by Rule 12.3. The rule does not apply to le, or law. An example is the State Bar (“an expressly made subject to disclosure by statute, ru 11(a)), which is subject Tex. Gov’t Code § 81.0 administrative agency of the judicial department”, al agency must comply 81.033. Thus, no judici Act. Tex. Gov’t Code § to the Public Information most one can apply. Nor does the rule apply to judicial agencies with both the Act and this rule; at expressly excepted from the Act by st atute (other than by the general judiciary exception in section 552.003(b) of the Act), rule, or la w. Examples are the Board of Legal Specialization, Tex. Gov’t eals, Tex. R. Disciplinary App. 7.12. Because Code § 81.033, and the Board of Disciplinary App these boards are expressly excepted from the Act, th eir records are not subject to disclosure under this rule, even though no law affirmatively makes their records confidential. The Board of Law Examiners is partly subject to th e Act and partly exempt, Tex. Go v’t Code § 82.003, and therefore e rule is the Supreme An example of a judici al agency subject to th this rule is inapplicable to it. pressly excepted from the Act, and which is neither subject to nor ex Court Advisory Committee, whose records are not made confidential by any law. 2. As stated in Rule 12.4, this rule does not require the creation or re tention of records, but neither does it permit the dest be maintained by statute or other ruction of records that are required to Tex. Local Gov’t Code ch. 203; and 13 law, such as Tex. Gov’t Code §§ 441.158-.167, .180-.203; Tex. Admin. Co de § 7.122. Rule 12.8 allows a records custodian to deny 3. a record request that would substantially and unreasonably impede the routine operation of the c ourt or judicial agency. As an illustration, and ery day or even every not by way of limitation, a request s” that is submitted ev for “all judicial record few days by the same person or persons acting in concert could substantially and unreasonably impede the operations of a court or judicial agency that lacked the staff to respond to such repeated requests. 2018 Public Information Act Handbook • Office of the Attorney General 302

319 P IGHT : P UBLIC I E A CT D EADLINES FOR ART NFORMATION OVERNMENTAL B ODIES G Step Section Deadline Due Done Action Governmental body must either release 552.221(a) Promptly; Within ten business days of 1 requested public information promptly, or if not receipt of request for information make within ten days of receipt of request, its Public public information available, or Information Officer (“PIO”) must certify fact 552.221(d) Certify to requestor date and hour when that governmental body cannot produce the public information will be available. information within ten days and state date and hour within reasonable time when the information will be available. Governmental body seeking to withhold 2 552.301(b) Within a reasonable time, but not later information based on one or more of the than the tenth business day after receipt exceptions under Subchapter C must request an of the request for information. attorney general decision stating all exceptions that apply, if there has not been a previous determination. 3 Governmental body must provide notice to the Within a reasonable time, but not later 552.301(d) than the tenth business day after receipt requestor of the request for attorney general decision and a copy of the governmental body’s of the request for information. request for an attorney general decision. 4 Within a reasonable time, but not later 552.301(e) Governmental body must submit to the attorney general comments explaining why the than the fifteenth business day after receipt of the request for information. exceptions raised in Step 2 apply. Governmental body must submit to attorney 5 Within a reasonable time, but not later 552.301(e) general copy of written request for information. than the fifteenth business day after receipt of the request for information. 6 Governmental body must submit to attorney 552.301(e) Within a reasonable time, but not later than the fifteenth business day after general signed statement as to date on which receipt of the request for information. written request for information was received. Governmental body must submit to attorney 7 552.301(e) Within a reasonable time, but not later general copy of information requested or than the fifteenth business day after representative sample if voluminous amount of receipt of the request for information. information is requested. Governmental body must copy the requestor on 8 552.301 Within a reasonable time, but not later (e-1) written comments submitted to the attorney than the fifteenth business day after receipt of the request for information. general in Step 4. 9 a) Governmental body makes a good faith Within a reasonable time, but not later 552.305(d) attempt to notify person whose proprietary than the tenth business day after date information may be protected from disclosure governmental body receives request for information. under sections 552.101, 552.110, 552.113, or 552.131. Notification includes: 1) copy of in the form prescribed written request; 2) letter, by the attorney general, stating that the third party may submit to the attorney general reasons requested information should be withheld. b) Third party may submit brief to attorney Within a reasonable time, but not later 552.305(d) than the tenth business day of receiving general. notice from governmental body. 552.303(d) 10 Governmental body must submit to attorney Not later than the seventh calendar day general additional information if requested by after date governmental body received attorney general. written notice of attorney general’s need for additional information. 2018 Public Information Act Handbook Office of the Attorney General • 303

320 Step Action Section Deadline Due Done Public Information Act prohibits a 552.301(f) res attorney general Governmental body desi 11 governmental body from seeking the reconsideration of attorney general decision. attorney general’s reconsideration of an open records ruling. Governmental body files suit challenging the 12 552.324 Within thirty calendar days after the date governmental body receives attorney attorney general decision. general decision. 552.353(b) it against the attorney Governmental body files su Within ten calendar days after 13 general challenging the attorney general decision governmental body receives attorney to preserve an affirmative defense to prosecution general’s decision that information is for failing to produce re quested information. public. 2018 Public Information Act Handbook Office of the Attorney General • 304

321 P N INE : N OTICE S TATEMENT TO P ERSONS W HOSE ART ROPRIETARY NFORMATION IS R EQUESTED I P (A governmental body mu st provide this notice to a person whose proprietary interests may be affected by release of informatio n within ten business days after receipt of the written request for information.) NOTE: lly. Please check the OAG website This notice is updated periodica for the latest version. http://www.texasattorneygeneral.gov Date Third Party Address Dear M: We have received a formal request to inspect or copy some of our files. A copy of the request for information is enclosed. The re quested files include records we received from you or from your company. The Office of th e Attorney General is reviewing this matter, and they will issue a decision records. Generally, the Public Information Act on whether Texas law requires us to release your (the “Act”) requires the release of requested information, but there are exceptions. As described ease of your records by subm below, you have the right to object to the rel itting written arguments to apply to your records. You are not required to the attorney general that one or more exceptions rney general, but if you decide not to submit arguments, the Office of submit arguments to the atto the Attorney General will presume that you have no interest in withholding your records from disclosure. In other words, if you fail to take time ly action, the attorney gene ral will more than likely rule that your records must be released to the public. If you decide to submit arguments, you must do so not later than the tenth business d ay after the date you receive this notice. If you submit arguments to th e attorney general, you must: a) identify the legal exceptions that apply, b) identify the specific parts of each documen t that are covered by each exception, and c) explain why each exception applies. Gov’t Code § 552.305(d). A claim that an excep tion applies without furt her explanation will not suffice. Attorney General Opin u may contact this office to review the ion H-436 (1974). Yo information at issue in order to make your arguments. We will pr ovide the attorney general with a copy of the request for information and a copy of the requested inform ation, along with other material required by the Act. The attorney general is gene rally required to issue a decision within 45 business days.

322 the Office of the Attorney Gene Please send your written comments to ral at the following address: Office of the Attorney General Open Records Division P.O. Box 12548 Austin, Texas 78711-2548 If you wish to submit your written comments elec so via the Office of tronically, you may only do the Attorney General’s eFiling Syst em. An administrativ e convenience charge will be assessed for use of the eFiling System. No othe r method of electronic submission is available. Please visit the attorney general’s website at http://www.texasattorneygeneral.gov for more information. estor with a copy of your communication to In addition, you are required to provide the requ the Office of the Attorney General . Gov’t Code § 552.305(e). Yo u may redact the requestor’s copy of your communication to the extent it contains the substan ce of the requested information. Gov’t Code § 552.305(e). Commonly Raised Exceptions In order for a governmental body to withhold requested info rmation, specific test s or factors for the Failure to meet these test s may result in the release applicability of a clai med exception must be met. of requested information. We have listed the most commonly claimed excepti ons in the Government Code concerning proprietary information and the leading cases or decisions discussing them. This listing is not intended to limit any exce ptions or statutes you may raise. Section 552.101: Information Made Confidential by Law Open Records Decision No. 652 (1997). Section 552.104: Confidentiality of Information Relating to Competition Boeing Co. v. Paxton , 466 S.W. 3d 8 31 (Tex. 2015). Section 552.110: Confidentiality of Trade S ecrets and Commercial or Financial Information Trade Secrets: , 113 S.W.3d 7 35 (Tex. 2003). In re Bass Hyde Corp. v. Huffines , 314 S.W.2d 7 63, 776 (Tex.), cert. denied , 358 U.S. 898 (1958). Open Records Decision No. 552 (1990). Commercial or Financial Information: Birnbaum v. Alliance of Am. Insurers , 994 S.W.2d 766 (Tex. App.—Aus tin 1999, pet. filed) (construing previous version of section 552.110), abrogated by In re Bass , 113 S.W.3d 735 (Tex. 2003). Open Records Decision No. 639 (1996). Open Records Decision No. 661 (1999).

323 Section 552.113: Confidentiality of Ge ological or Geophysical Information Open Records Decision No. 627 (1994). Section 552.131: Confidentiality of Certain Economic Development Negotiation Information If you have questions about this notice or release of information under the Act, please refer to the Public Information Act Handbook published by the Office of the Attorney General, or contact the attorney general’s Open Government Ho tline at (512) 478-OPEN (6736) or toll-free tion Act Handbook or Attorney at (877) 673-6839 (877-OPEN TEX). To access the Public Informa General Opinions, including those listed above, please visit the attorney general’s website at . http://www.texasattorneygeneral.gov Sincerely, Officer for Public Information or Designee Name of Governmental Body Enclosure: Copy of request for information cc: Requestor address (w/o enclosures) Open Records Division Office of the Attorney General P.O. Box 12548 Austin, Texas 78711-2548 (w/o enclosures)

324 552.024 ECTION P ART T EN : T EXAS G OVERNMENT C ODE S PTION UBLIC A CCESS O P F ORM [Note: This form should be completed and sign ed by the employee no later than the 14th day after the date the employee begins employment, the public official is elected or appointed, or a former employee or official ends employment or service.] _________________ _________ _____________ (Name) The Public Information Act allows employees, pub lic officials and former employees and officials information about them confidentia to elect whether to keep certain l. Unless you choose to keep it confidential, the following informa tion about you may be subject to public release if requested under the Texas Public Information Act. Therefore, please indicate whether y ou wish to allow public release of the following information. PUBLIC ACCESS? NO YES Home Address Home Telephone Number Social Security Number Emergency Contact Information Information that reveals whether you have family members __________________ ____________________ (Signature) _________________ (Date) 2018 Public Information Act Handbook • Office of the Attorney General 308

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