If municipal court records are not subject to the PIA, can the public get these records?

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1 Legal Q&ABy Zindia Thomas, TML Assistant General Counsel Are municipal court records subject to the Public Information Act? No. Municipal Court records are exempt from the Public Information Act (PIA). Section of the Texas Government Code states that information collected, assembled 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. If municipal court records are not subject to the PIA, can the public get these records? Yes. The public can still request municipal court records from the court. Just like under the PIA, the public would have to submit the request for the municipal court records in writing. What laws govern the request for municipal court records? There are two different laws that govern municipal court records because there are two types of municipal court records. The first type of municipal court records are judicial records. They are covered by Rule 12 of the Rules of Judicial Administration. The second type of municipal court records are court case records. They are covered by the Common Law Right of Access. What are judicial records? Judicial records are the administrative records of a municipal court. Rule 12.2(d) of the Rules of Judicial Administration says judicial records, means a record made or maintained by or for a court or judicial agency in its regular course of business but not pertaining 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. A record is a document, paper, letter, map, book, tape, photograph, film recording, or other material, regardless of electronic or physical form, characteristic, or means of transmission. What is Rule 12 of the Rules of Judicial Administration? Rule 12 deals with the public gaining access to judicial records. Similar to the PIA, its purpose is to provide public access to information in the judiciary consistent with the mandates of the Texas Constitution that the public interests are best served by open courts and by an independent judiciary. Tex. R. Jud. Admin Rule 12 outlines the procedure in receiving judicial records and provides exceptions and exemptions to accessing certain judicial records. What is the Rule 12 procedure?

2 To receive copies or inspect judicial records, the requestor must send a written request to the record custodian of the court. The request must include sufficient information to reasonably identify the record requested. Tex. R. Jud. Admin. 12.6(a). Once the court actually receives the request for judicial records, the court, as soon as practicable, but not more than 14 days, must either: (1) provide the judicial records or allow inspection of the judicial records; (2) send a written notice to the requestor stating that the records cannot within the 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; or (3) deny the request because the record custodian: a. reasonably determined that the requested judicial record is exempt from the required disclosure under Rule 12; or b. makes specific, non-conclusory findings that compliance with the request would substantially and unreasonably impede the routine operation of the court. Tex. R. Jud. Admin. 12.6(b), 12.8 (a) & (b). Who is the record custodian? The record custodian is either the judge in a single judge court, the presiding or chief judge in a court with more than one judge, or presiding officer of a judicial agency. Tex. R. Jud. Admin. 12.2(e). Can the record custodian ask the requestor why they want the judicial records? No. Like the PIA, the record custodian cannot ask why the requestor wants the judicial records. However, the record custodian can ask questions in order to establish the proper identification of the requestor or to clarify or narrow the request. The record custodian must treat all requests uniformly. Tex. R. Jud. Admin. 12.6(g) (h). If the record custodian denies a request, what is he required to do? If the record custodian denies the request, the record custodian must send a denial notice. The denial notice must be in writing and must: i. state the reason for the denial; ii. inform the person of the right of appeal; and iii. include the name and address of the Administrative Director of the Office of the Court of Administration. Tex. R. Jud. Admin. 12.8(c). Can municipal courts charge for producing judicial records to a requestor under Rule 12? Yes, Rule 12.7(a) states that the cost for copies of judicial records is either: (1) the cost prescribed by statute; or (2) if no statute prescribes the cost, the cost the Office of the Attorney

3 General (OAG) prescribes in the Texas Administrative Code. There is no statute that dictates the amount that may be charged for copies by the municipal court. However, Government Code states [t]he charge for providing a copy made by a municipal court clerk shall be the charge provided by municipal ordinance. If the city has created a cost ordinance for the municipal court, then it can use that cost ordinance. However, if the city has not created a cost ordinance, the municipal court will have to follow the OAG s Cost Rules. See 1 Tex. Admin. Code Also, the record custodian may reduce or waive the charge for judicial records if doing so is in the public interest because providing the copies would primarily benefit the general public or the cost of processing collection of a charge will exceed the amount of the charge. Tex. R. Jud. Admin. 12.7(b). If a requestor thinks he was overcharged for copies of judicial records, the requestor can go through the same appeals process that is followed for the denial of judicial records, which is discussed later. Tex. R. Jud. Admin. 12.7(c). Are there records to which Rule 12 does not apply? Yes. The two most common records are: (1) court case records; and (2) arrest warrants, search warrants, or supporting affidavits. As discussed later, court case records are covered by the Common Law Right of Access. The access to arrest warrants is covered by Article of the Texas Code of Criminal Procedure and search warrants are covered by Article 18.10(b) of the Texas Code of Criminal Procedure. Whether the public should be given access to arrest warrants, search warrants, and the supporting affidavits depends on if the warrants have been executed. An arrested warrant is executed when the arrest is made. A search warrant is executed when a search has been conducted. Are there exemptions from disclosure of records in Rule 12? Yes, there are 12 exemptions from disclosure in Rule 12. Tex. R. Jud. Admin ) Judicial work product and draft 2) Security plans 3) Personnel information 4) Home address and family information 5) Applicants for employment or volunteer services 6) Internal deliberations on court or judicial administration matters 7) Court law library information 8) Judicial calendar information 9) Information confidential under other law 10) Litigation or settlement negotiations 11) Investigations of character or conduct 12) Examinations

4 Is there an appeals process under Rule 12? A requestor who is denied access to judicial records may appeal to the Administrative Director of the Office of Court Administration. The petition for review: 1) must include a copy of the request and notice of denial; 2) may include any supporting acts, arguments, and authorities that the petitioner believes to be relevant; and 3) may contain a request for expedited review, the grounds for which must be stated. The petition for review must be filed no later than 30 days after the date the requestor received the denial notice. The Administrative Director will notify the record custodian and the presiding judge of each administrative judicial region of the filing of the petition for review. The record custodian has 14 days from the receipt of the notice of the petition for review to submit a written response to the petition for review. If the record custodian does submit a response, he must send a copy to the requestor. Also, the record custodian must submit with the response any denied records, or sample of denied records. The presiding judges of the administrative judicial regions will refer the petition for review to a special committee of not less than five of the presiding judges. The presiding judges will notify the Administrative Director, record custodian, and the requestor of the judges selected to the special committee. The special committee must review the petition and the record custodian s response. The special committee can request, from the record custodian, the denied records or sample of the denied records for them to review. The record custodian may respond to the request from the special committee. The special committee will determine whether the request records should have been made available by considering (1) the text and policy of Rule 12; (2) any supporting and controverting facts, arguments, and authorities in the petition and the response; and (3) prior application of Rule 12 by other special committees or by courts. The decision by the special committee will either release some or all of the denied judicial records or sustain the denial of access to the judicial records. It will state the reasons for the decision and identify the records or portion of the records that access is ordered or denied. The decision will be issued within 60 days of the date the Administrative Director received the petition for review. Once the special committee issues its decision, it will forward the decision to the Administrative Director. The Administrative Director will notify the requestor and the record custodian of the decision and send them a copy. He will maintain a copy of the decision in his office for public inspection and must publish the decision to the judiciary and the public. The special committee s decision is final but is subject to a mandamus review. Tex. R. Jud. Admin Because court case records are exempt from Rule 12, how does the public get access to those records?

5 Court case records are accessible through the Common Law Right of Access (CLRA). In 1978, the United States Supreme Court recognized the public s general right to inspect and copy court case records under common law. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978). Texas courts also recognize CLRA. See Ashpole v. Millard, 778 S.W.2d 169, 170 (Tex. App. Houston[1 st Dist.] 1989, no writ) (citing Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978), for the proposition that American courts recognize the public's general right under the common law to inspect and copy judicial records). However, CLRA is not an absolute right. The Supreme Court stated [e]very court has supervisory power over its own records and files, and access has been denied where court [case] files might have become a vehicle for improper purposes. Nixon, 435 U.S at 597. What is improper purpose and who decides when a request is considered to be for an improper purpose? Unfortunately, it is hard to define improper purpose. The courts have not given a comprehensive definition of the term. Generally, the United States Supreme Court does think it is best to leave the decision of whether a request is for an improper purpose to the discretion of the trial court. The trial court will take into account the relevant facts and circumstances to make this determination. Nixon, 435 U.S at Therefore, the presiding judge of a municipal court will make the decision to release court case records taking into account the facts and circumstances of each particular court case. If the municipal court determines that the court case records should be released, will personal information contained in the court case records be released? Personal information contained in court case records will not be released because that information is protected by the common law right of privacy (CLRP). CLRP is an exception to CLRA. CLRP protects information from release if the information meets two requirements: 1) the information must contain highly intimate or embarrassing facts, the publication of which would be highly objectionable to a reasonable person, and 2) the information must not be of legitimate concern to the public. Industrial Foundation of the South v. Industrial Accident Board, 540 S.W.2d 668, 685 (Tex. 1976). Social security numbers, driver s license numbers, and personal financial information are all protected by CLRP. See Tex. Att y Gen. OR (Personal financial information not related to a financial transaction between an individual and a governmental body is intimate and embarrassing and of no legitimate public interest.) Information protected by CLRP should be redacted from the requested court case records before the records are released. Once all the appropriate redactions are made, the court case records must be released. Can the municipal court charge cost for copies of court case records?

6 Yes, the municipal court can charge for copies of court case records. If there is a cost ordinance, the municipal court must follow the cost ordinance when determining charges for court case records. However, if there is not a cost ordinance, the municipal court can charge a reasonable fee for the copies of court case records. The municipal court could follow the OAG s Cost Rules or use the OAG s Cost Rules as a guide to help determine what a reasonable cost to charge would be. Is there an appeal process under CLRA? There is not a specific appeals process under CLRA. Generally, the requestor can file a writ of mandamus in state court if the requestor thinks they were improperly denied court case records.