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Public Information Act Chapter 52 – Texas Government Code Region 5 Clerk’s Conference 2011

Public Information Act Chapter 52 – Texas Government Code Region 5 Clerk’s Conference 2011. Grant Brenna Assistant Criminal District Attorney Dallas County. What is “Public Information?”.

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Public Information Act Chapter 52 – Texas Government Code Region 5 Clerk’s Conference 2011

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  1. Public Information ActChapter 52 – Texas Government CodeRegion 5 Clerk’s Conference 2011 Grant Brenna Assistant Criminal District Attorney Dallas County

  2. What is “Public Information?” • Public Information means information that is collected, assembled, or maintained by or for a governmental body under a law or ordinance or in connection with the transaction of official business. 552.002(a) • “Public Information” may be in a book, paper, letter, document, printout, photograph, film, tape, microfilm, video or audio recording, map, computer, etc…, and etc…

  3. Examples of Public Information • Information on the computer • Reports • Handwritten Notes • Emails/Instant Messages • Photographs/Maps • Video or Audio Tapes (Digital or Analogue) • Documentary Evidence

  4. NOT Covered by the PIA • Litigation Discovery Requests (552.0055) • Subpoenas (552.0055) • Inmate Requests (552.028) • Requests for Answers to Questions or to Create Information • Continuing Requests • Judicial Records (552.003 &552.0035) • See also Rule of Judicial Administration 12 • Non-Documentary Tangible Items

  5. Judicial Records • Records maintained by District Clerk on behalf of the judiciary are not covered by the PIA (ORD 671) • Records maintained by the District Attorney on behalf of the Grand Jury are not covered by the PIA (ORD 513) • Records of the Justice of the Peace are not covered by the PIA (ORD 25)

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

  7. General Rule • Public Information is available to the public at a minimum during the normal business hours of the governmental body. (552.021) • The governmental body must provide access or copies of requested documents promptly. • Promptly means as soon as possible • Within a reasonable time • Without delay • See 552.221(a) and (ORD 664)

  8. Posting of a Sign (552.205) • The Public Information Officer must post a sign containing basic information about the rights, responsibilities and procedures for obtaining information. • The sign must be plainly visible to the public and employees. • The Attorney General has designed a sign and prescribed a size, shape, and content.

  9. PIA Request Format • May be written or verbal • But only a written request triggers the PIA timelines • Email and Fax count as written requests • It does not need to cite the PIA. • It must include the name, address, and phone number of the requester. • It must adequately describe the records being requested.

  10. Permissible Inquiries to the Requestor (552.222) • Identification questions • Clarification questions concerning what is being requested • Questions concerning cost and the requesters willingness to pay costs • Questions concerning where to send records and the format of the records • Cannot ask “Why?” they want the records

  11. Cost IssuesSubchapter F - 552.261 through 552.275 • 50 or fewer pages of paper records at cents per page unless: • The documents are in two or more separate buildings or a remote facility • May charge for labor and overhead if: • Over 50 pages • Electronic Information • Contained in separate or remote facilities

  12. Cost Issues (cont) • Charges accrue at the time the governmental body advises the requestor that the records are ready. 552.261 • If over $40, then need to send a cost estimate. 552.2615(a) • May require a deposit from the requester if: • Cost exceeds $100 and government has more than 15 employees • Exceeds $50 if under 16 employees • There is an unpaid balance from previous requests • See 552.263

  13. Access v. Copies • Cannot charge for access to records. 552.271(a) • Exceptions (552.271 and 552.272): • Confidential information must be redacted • Documents are older than five years or completely fill six or more archival boxes and it takes more than five hours to make available. • If under 16 employees AND the documents are older than three years old or completely fill more than three or more archival boxes and it takes two hours to make available • Electronic information that requires computer manipulation or programming.

  14. Offensive Requestors (552.275) • The governmental body may establish a reasonable limit of time per requestor of not less than 36 hours during a 12 month period. 552.275(a). • Must track and give notice of time used. 552.275(d). • Once the limit is exceeded, then must give a cost estimate. 552.275(e) • The requestor is then required to commit to pay costs.

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

  16. “Super” Public Information • Must be released unless confidential by law. See 552.022. • Examples: • Completed reports, audits, evaluations, or investigations (except for 552.108 material) • Name, sex, ethnicity, salary, title and dates of employment of employees • Information relating to the receipt or expenditure of funds

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

  18. Permissive Exception – Litigation 552.103 • Information related to civil or criminal litigation that is either pending or reasonably anticipated where the state or a political subdivision is a party is excepted from release. • The state is considered to be a party to litigation of a criminal nature until the applicable statute of limitations has expired or until the defendant has exhausted all appellate and post-conviction remedies in state and federal court.

  19. Permissive ExceptionLaw Enforcement – 552.108 • Includes (ie., NOT public): • Criminal investigations or prosecutions that resulted in something other than conviction or deferred adjudications • All attorney work product • All pending criminal investigations or prosecutions • BUT: • You must release the basic information in a police report

  20. Other Permissive Exceptions • 552.104 – Bidding information • Protected as long as the bid is still pending • 552.105 – Location or Price of Property • Protects appraisals prior to award or contract • 552.107 – Attorney/Client Information • 552.111 – Agency Memoranda • Protects work product and the deliberative process

  21. Mandatory ExceptionsConfidential By Law – 552.101 • Criminal Histories • Juvenile Records • Social Security number information • Grand Jury Records • Driver’s License and personal identification records • Child Neglect/Abuse Investigations • Child Welfare and protective services information • Medical Records and physician/client communications • Biometric Identifiers (fingerprints) • Autopsy Photographs/X-Rays • Police and Fire fighter personnel files • 911 CAD/Tape Address & Telephone information • Sexual assault victim pseudonym • W-2 and W-4 forms • Americans with Disability Act information

  22. Mandatory ExceptionsIn the Public Information Act • 552.102 – Personnel Information • If “unwarranted invasion of privacy.” • EXCEPT for employees of Governmental Units • 552.110 – Trade Secrets/Commercial Information • 552.115 – Birth/Death Records • 552.117 & 552.1175 – Law Enforcement Information • ie., addresses, telephone numbers, family information, etc… • 552.119 – Photograph of Peace Officers • 552.130 – Motor Vehicle Driver’s License

  23. Mandatory Exceptions in the PIA (cont) • 552.131 – Economic Development Information of a governmental body • 552.132 – Crime Victim Information • 552.1325 – Victim Impact Statements • 552.136 – Credit/Debit Card Information • 552.137 – Private e-mail Addresses • 552.142 – Non-Disclosure Orders • 552.147 – Social Security Numbers

  24. Special Right to Access to Confidential Information – 552.023 • A person has a special right to access to information held by a governmental body that relates to that person and that is protected from public disclosure by laws intended to protect that person’s privacy interests. • This rule does not prohibit the governmental body from asserting exceptions that are not based on privacy • e.g., litigation and law enforcement exceptions

  25. Attorney General Request552.301 • The governmental body must request a decision from the AG within 10 business days of receipt of the written request if they wish to withhold information from public disclosure unless there has been a previous determination from the AG concerning the requested information.

  26. Previous Determination(Type One) • The requested information is precisely the same information previously submitted to the AG, AND • The same governmental body is involved in both requests, AND • The AG ruled that the information is excepted from release, AND • The law, facts, and circumstances have not changed.

  27. Previous Determination(Type Two) • The requested information falls within a clearly delineated category of information on which the AG has ruled, AND • The previous determination is applicable to the particular governmental body which is subject to the current request, AND • The previous decision concludes that the specific, clearly delineated category of information is excepted from disclosure, AND • The elements of law, fact, and circumstances are the same, AND • The previous decision explicitly provides that the governmental body may withhold the information without again seeking an AG decision.

  28. 10 Day Deadline552.301 • Within ten business days of receipt of a written request, the governmental body must: • Provide the AG with a written request to withhold • Including the statutory exceptions asserted • Provide the requestor with: • A written statement that an AG request has been made, and • A copy of the AG request.

  29. 15 Day Deadline552.301 • Within 15 business days of receipt of a written request, the governmental body must submit to the AG: • Written comments stating the reasons why the exceptions apply • Send a copy of this to the requester • A copy of the written request for information • A signed statement or evidence as to when the request was received, and • A copy of the requested information

  30. Failing to Meet the Deadlines552.302 • Failure to meet the 10 or 15 year deadline results in a presumption that the information is public and must be released. • Only a compelling reason will overcome this presumption. • e.g., the information is confidential by law, or • Morales v. Ellen, 840 S.W.2d 519 (Tex.App. – El Paso 1992, writ denied) • 1. Information is highly intimate or embarrassing facts objectionable to a reasonable person, AND • 2. Information is not of legitimate public concern

  31. Civil Enforcement of PIA • 552.321 - The requestor or the AG can seek a writ of mandamus against the governmental body. • If by the Requestor – then in the county of the governmental body • If by the AG – Travis County • 552.3215(c) - The AG, district attorney, or county attorney can seek a declaratory judgment or injunctive relief. • 552.3215(e) - The requestor may file a complaint with the district or county attorney.

  32. Requestor May File a Complaint in Several Places – 552.3215 • Against a state agency – he must file it with the Travis County DA, or the AG • Against a district or county attorney – he may file it with the AG • Against any other governmental body – he may file it with the DA or CA of that county

  33. Requirements of a Requestor Complaint – 552.3215(e) • In writing and signed by the complainant • State the name of the governmental body • State the time and place of the violation • Describe the violation • NOTE: the DA or CA must indicate on the complaint the date that the complaint was received. 552.3215(f).

  34. Duties of the District or County Attorney that Receives a Complaint 552.3215(g) • Before the 31st day after the receipt of the complaint the DA or CA must: • Determine whether • The alleged violation occurred, AND • If the DA or CA will bring action against the governmental body • Notify the complainant of those determinations

  35. DA or CA Duties if there is a Conflict of Interest – 552.3215(h) • Before the 31st day after receiving the complaint: • Inform the complainant of the conflict • Inform the complainant his right to file a complaint with the AG • A statement of the basis of the conflict • Return the complaint to the complainant

  36. Suit to Withhold Information • 552.324 - A governmental body may file suit against the AG to contest an AG ruling to release information • 552.324(b) – After the AG has ruled there is a 30 day limitation to file the suit • 552.325(b) – IF there is such a suit, the governmental body must notify the requestor of the suit • The Requestor may intervene. 552.325(a). • But DO NOT SUE THE REQUESTOR

  37. Criminal Penalties • Willfully destroying, mutilating, removing, or altering public information. • A misdemeanor punishable by: • Fine – $25 to $4,000 • County Jail – three days to three months • 552.351

  38. Criminal Penalties (cont) • Knowingly distributing or misusing confidential information – 552.352(a-1) • With criminal negligence: • Failing or refusing to give access to, or provide copies of, public information • 552.353 • Misdemeanor punishable by: • Fine – no more than $1,000 • County Jail – no more than six months, or • Both.

  39. Open Records Training552.012 • Elected/appointed officials and officers for public information must attend • One to two hour training that has been approved by the AG • Videotape can be viewed online at the AG website • The AG can also provide CDs or DVDs • AG issues certificates of completion

  40. Attorney General Contact Information • Website: • www.oag.state.tx.us • Open Government Hotline: • 877-OPEN TEX [877-673-6839] • Cost Questions: • AG Cost Hotline - 512-475-2497

  41. Special thank you…. Holly C. Lytle Assistant County Attorney El Paso County Attorney’s Office

  42. Contact Information Grant Brenna Assistant District Attorney Administration Building, 5th Floor 411 Elm Street, Suite 500 Dallas, Texas 75202-3384 (214) 653-7358 gbrenna@dallascounty.org

  43. The end. Thank you.

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