Municipal Records And Open Records Zindia Thomas Assistant General Counsel Texas Municipal League www.tml.org
Table of Contents I. Municipal Court Records... 1 1. Are municipal court records subject to the Public Information Act?... 1 2. If municipal court records are not subject to the PIA, can the public get these records?. 1 3. What laws govern the request for municipal court records?... 1 4. What are judicial records?... 1 5. What is Rule 12 of the Rules of Judicial Administration?... 1 6. What is the Rule 12 procedure?... 2 7. Who is the record custodian?... 2 8. Can the record custodian ask the requestor why they want the judicial records?... 2 9. If the record custodian denies a request, what is he required to do?... 2 10. Can municipal courts charge for producing judicial records to a requestor under Rule 12?... 3 11. Are there records that Rule 12 does not apply to?... 3 12. Are there exemptions from disclosure of records in Rule 12?... 3 13. Is there an appeal s process under Rule 12?... 4 14. Since court case records are exempt from Rule 12, how does the public get access to those records?... 5 15. What is improper purpose and who decides when a request is considered to be for an improper purpose?... 5 16. If the municipal court determines that the court case records should be released, will personal information contained in the court case records be released?... 6 17. Can the municipal court charge cost for copies of court case records?... 6 18. Is there an appeal process under CLRA?... 6 II. Public Information Act... 7 1. What types of information are subject to the Public Information Act?... 7 2. What format of records is subject to the Public Information Act?... 7 3. What types of entities are subject to the Public Information Act?... 7 4. Are court records subject to the Public Information Act?... 8 5. To what governmental officer must an open records request be directed?... 9 6. What is a governmental body s duty to respond to e-mailed or faxed requests for copies of records?... 9
7. How much time does a governmental body generally have to comply with an open records request?...10 8. When is a governmental body required to ask for an open records ruling from the Attorney General?...10 9. What must a governmental body do if it wants to request an Attorney General open records ruling?...11 10. How long does the Attorney General have to respond to a request for an open records ruling?...13 11. What inquiries can a governmental body make of an open records requestor?...13 12. What is the general ability of a governmental body to charge for documents?...14 13. Is a requestor allowed to sue a governmental body for failure to comply with the Public Information Act?...15 14. What civil remedies can be brought against a governmental body for failure to comply with the Public Information Act?...15 15. What are the criminal penalties for noncompliance with the Public Information Act?...16
I. Municipal Court Records 1. Are municipal court records subject to the Public Information Act? No. Municipal Court records are exempt from the Public Information Act (PIA). Section 552.0035 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. 2. 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. 3. 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 Common Law Right of Access. 4. 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. 5. 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. 1 Rule 12 outlines the procedure in receiving judicial records and provides exceptions and exemptions to accessing certain judicial records. 1 Tex. R. Jud. Admin. 12.1. 1
6. What is the Rule 12 procedure? 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. 2 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. 3 7. 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. 4 8. 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. 5 9. 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 2 Tex. R. Jud. Admin. 12.6(a). 3 Tex. R. Jud. Admin. 12.6(b), 12.8 (a) & (b). 4 Tex. R. Jud. Admin. 12.2(e). 5 Tex. R. Jud. Admin. 12.6(g) (h). 2
iii. include the name and address of the Administrative Director of the Office of the Court of Administration. 6 10. 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 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 552.266 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. 7 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. 8 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. 9 11. Are there records that Rule 12 does not apply to? Yes, there are records that Rule 12 does not apply to. 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 Common Law Right of Access. The access to arrest warrants is covered by Article 15.26 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. 12. Are there exemptions from disclosure of records in Rule 12? Yes, there are 12 exemptions from disclosure in Rule 12. 10 1) Judicial work product and draft. 6 Tex. R. Jud. Admin. 12.8(c). 7 See 1 Tex. Admin. Code 70.1-70.10. 8 Tex. R. Jud. Admin. 12.7(b). 9 Tex. R. Jud. Admin. 12.7(c). 10 Tex. R. Jud. Admin. 12.5. 3
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. 13. Is there an appeal s 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 4
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. 11 14. Since court case records are exempt from Rule 12, how does the public get access to those records? 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. 12 Texas courts also recognize CLRA. 13 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. 14 15. 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 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. 15 Therefore, the presiding 11 Tex. R. Jud. Admin. 12.9. 12 Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978). 13 See Ashpole v. Millard, 778 S.W.2d 169, 170 (Tex. App. Houston[1st 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). 14 Nixon, 435 U.S at 597. 15 Id. at 598-599. 5
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. 16. 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. 16 Social security numbers, driver s license numbers, and personal financial information are all protected by CLRP. 17 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. 17. Can the municipal court charge cost for copies of court case records? 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. 18. 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 if the requestor thinks they were improperly denied court case records. 16 17 Industrial Foundation of the South v. Industrial Accident Board, 540 S.W.2d 668, 685 (Tex. 1976). See Tex. Att y Gen. OR2010-10785 (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). 6
II. Public Information Act 1. What types of information are subject to the Public Information Act? Public Information means information that is written, produced, collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business: a) By a governmental body; b) For a governmental body and the governmental body: a. Owns the information; b. Has a right of success to the information; or c. Spends or contributes public money for the purpose of writing, producing, collecting, assembling, or maintaining the information; or c) By an individual officer or employee of a governmental body in the officer s or employee s official capacity and the information pertains to official business of the governmental body. 18 Information is in connection with the transaction of official business if the information is created by, transmitted to, received by, or maintained by an officer or employee of the governmental body in the officer s or employee s official capacity, or a person or entity performing official business or a governmental function on behalf of a governmental body. 19 Also, public information applies to and includes any electronic communication created, transmitted, received, or maintained on any device if the communication is in connection with the transaction of official business. 20 2. What format of records is subject to the Public Information Act? The Public Information Act (hereinafter the Act) applies to all records regardless of their format. It includes information that is maintained in paper, tape, microfilm, video, Internet postings, e-mail, as well as other mediums specified under law. 21 3. What types of entities are subject to the Public Information Act? The Act applies to information that is held by or for any governmental body. 22 The term governmental body has a broad definition that includes in applicable part: 18 Tex. Gov t Code Ann. 552.002(a). 19 Id. 552.002(a-1). 20 Id. 552.002(a-2). 21 Id. 552.002(b) & (c). 22 Id. 552.003(1)(A). 7
1. Boards, commissions, departments, committees, institutions, agencies, or offices that is 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; 2. City governmental bodies; 3. County governmental bodies; 4. School district board of trustees; 5. Deliberative bodies that have rule-making or quasi-judicial power and that are classified as a department, agency, or political subdivision of a city or county; 6. The part, section or portion of a public or private entity that spends or that is supported in whole or in part by public funds; 7. Local workforce development board; 8. Nonprofit corporations that are eligible to receive funds under the federal community services block grant program and that are authorized by this state to serve a geographic area of the state; 9. Certain property owners associations. 23 In other words, all governmental entities and certain non-governmental entities are subject to the Act. Additionally, entities that are considered departments, agencies, or political subdivisions of a city or county are also subject to the Act if the involved entity has rule-making or quasi-judicial powers. For example, zoning boards of adjustment have rule-making or quasi-judicial powers and are considered agencies or departments of a city. Therefore, the records of such entities would be subject to the Act. 4. Are court records subject to the Public Information Act? Judicial records are not subject to the Act. 24 Courts must look to the rules adopted by the Texas Supreme Court to determine the court s duty to provide access to court records. 25 Additionally, courts must consider court rulings, Attorney General opinions and certain state statutes that give the public a right to obtain copies of court records. For example, higher courts have held that there is an open courts concept that must guide judges in giving public access to court documents. This legal concept provides that the public has a right to inspect and copy judicial records subject to the court s inherent power to control access to 23 Id. 552.0036. 24 Id. 552.003(1)(B). 25 Id. 552.0035. See Tex. R. Jud. Admin. 12. 8
such records in order to preserve justice. In other words, the public s right of access to court documents is not an absolute right. 26 It should be noted that the public s right to access court records is in addition to the right of parties to a lawsuit to obtain information through discovery or through other court procedures. Legislation has clarified that subpoenas and motions for discovery are not considered a request for information under the Public Information Act. 27 Such requests should be handled as required by the applicable civil or criminal procedural statutes. Additionally, state law has been amended to indicate that probable cause affidavits for a search warrant are considered public records once the warrant has been executed. The magistrate who issued the warrant must make the affidavits available for public inspection in the court clerk s office. 28 5. To what governmental officer must an open records request be directed? Except in the case of faxed and e-mailed requests, the Public Information Act does not require that the public direct its open records requests to any specific public employee or officer. 29 Generally, the deadlines involved in handling an open records request are not put on hold merely because the wrong staff member received the request. For this reason, it is important that a governmental body clearly inform all of its employees what to do if they receive a request for records. The public official must be careful about what they do with these requests. 6. What is a governmental body s duty to respond to e-mailed or faxed requests for copies of records? The governmental body has a duty to respond to any written requests for open records including those that are made through e-mail or by fax. However, state law provides that the governmental body can designate a person who is authorized to receive e-mail or faxed requests for open records. If the governmental body makes such a designation, the Act is only activated for emails and fax request if the request is directed to the assigned individual. 30 If the governmental body has not made such a designation, the e-mail or faxed request can be directed to any official or staff member. 26 Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978); Ashpole v. Millard, 778 S.W.2d 169 (Tex.App. Houston [1st Dist.] 1989, no writ); Op. Tex. Att y Gen. No. DM-166 (1992), Tex. Att y Gen. ORD-25 (1974). 27 Tex. Gov t Code Ann. 552.005,.0055. 28 Tex. Code Crim. Pro. Ann. art. 18.01(b). See also Houston Chronicle Publishing Co. v. Woods, 949 S.W.2d 492, 499 (Tex. App. Beaumont 1997, no writ). 29 Tex. Att y Gen. ORD-44 (1974), ORD-497 (1988). 30 Tex. Gov t Code Ann. 552.301(c). 9
7. How much time does a governmental body generally have to comply with an open records request? There is often a misconception that the Public Information Act requires that copies of public information must be produced within ten business days of the written request to the governmental body for the record. However, the standard under the Act is actually that the governmental body must promptly produce the public information. 31 Further, the Act states that all open records requests must be handled with good faith and must be accomplished within a reasonable time period. 32 What is considered reasonable and prompt will vary depending on the number of documents sought by the requestor. In certain circumstances, the records can be produced in less than ten business days. However, requests for a substantial number of documents may take several weeks to produce. If it will take a governmental body longer than ten business days to provide the records, the governmental body must certify that fact in writing to the requestor. 33 In the notice to the requestor, the governmental body must indicate a set date and hour within a reasonable time that the information will be available for inspection or duplication. 8. When is a governmental body required to ask for an open records ruling from the Attorney General? A governmental body is required to ask the Attorney General for an open records ruling in almost all cases if the governmental body wants to withhold requested documents or information. 34 The fact that a particular document request may arguably fall within one of the statutory exceptions to disclosure does not in itself eliminate the need to ask for an open records ruling. Unless the governmental body can point to a previous determination that addresses the exact information that the governmental body now wants to withhold 35 or there is a statute that allows the governmental body to withhold information without asking for a ruling 36, the governmental body must request a ruling to withhold the information. In addition, if determining whether a particular record may be withheld under a statutory exception requires a review and consideration of the applicable facts, the governmental body should request an Attorney General ruling before it withholds the record. 31 Id. 552.221(a). See also Tex. Att y Gen. ORD-664(2000). 32 Tex. Gov t Code Ann. 552.221(a), Tex. Att y Gen. ORD-467(1987), ORD-664(2000). 33 Tex. Gov t Code Ann. 552.221(d). 34 Id. 552.301(a). 35 See Tex. Att y Gen. ORD-673 (2001) (what constitutes a previous determination ); Tex. Att y Gen. ORD-435 (1986) (school district cannot unilaterally decide that material fits within exception unless the school district has previously requested a determination involving the exact same material); Houston Chronicle Publishing Co., v. Mattox, 767 S.W.2d 695, 698 (Tex. 1989) (specifying that Attorney General is authorized to determine what constitutes previous determination. ). See also Tex. Att y ORD-684(2009) (Previous determination that allows all governmental bodies to redact certain information without asking for a ruling.). 36 See Tex. Gov t Code Ann. 552.130,.136 (example of information that can be withheld without asking for a ruling). 10
A request for an Attorney General ruling must be made within ten business days of the date the governmental body received the written request. 37 Such a request can only be made by the governmental body. 38 If the governmental body does not make such a request within the deadline, the information is presumed to be open to the public as a matter of law and the information must be released. 39 The presumption of openness and the duty to release the information can only be overcome by a compelling reason that the information should not be released. A compelling reason may in certain cases involve a showing that the information is deemed confidential by some other source of law or that third-party interests are at stake. 40 It should be noted that if the governmental body is going to release all of the requested information, there is no need to ask for a ruling. The governmental body can seek advice on any of these issues from the Attorney General s Open Government Hotline at (877) 673-6839 or (512) 478-6736. 9. What must a governmental body do if it wants to request an Attorney General open records ruling? If a governmental body wants to withhold a record, it has ten business days from the date it receives the request to ask for an open records ruling from the Attorney General. On the tenth business day, the governmental body must do the following: 1. Write the Attorney General requesting an open records ruling and state which exceptions apply to the requested information. 41 The original request for a ruling must indicate the specific exception that the governmental body is relying on to withhold the information. If the governmental body fails to cite the applicable exceptions in this request, the governmental body generally will be barred from raising them in any additional briefing that it may provide. 2. Provide the requestor with a written statement that the governmental body wishes to withhold the information and that it has asked the Attorney General for a ruling. 42 3. Provide the requestor with a copy of the governmental body s correspondence to the Attorney General. 43 4. Make a good faith attempt to notify any affected third parties of the request. 44 37 Tex. Gov t Code Ann. 552.301(b). 38 Tex. Att y Gen. ORD-542 (1990). 39 Tex. Gov t Code Ann. 552.302. See Tex. Att y Gen. ORD-319 (1982). 40 Tex. Att y Gen. ORD-150 (1977). 41 Tex. Gov. Code Ann. 552.301(b). 42 Id. 552.301(d)(1). 43 Id. 552.301(d)(2). 44 Id. 552.305(d). 11
The governmental body has an additional five business days (a total of fifteen business days from the date the governmental body received the original request for the record) to provide the Attorney General with additional written documentation that supports withholding the requested information. 45 By the 15th business day, the governmental body must: 1. Submit written comments explaining how the claimed exceptions apply. 46 2. Submit a copy of the written request for information. 47 3. Submit a signed statement or evidence sufficient to establish the date the request for information was received. 48 It is important to note that the ten business day deadline for requesting an Attorney General open records ruling is measured from the date the request is clarified or narrowed as long as the governmental body is acting in good faith in requesting a clarification or narrowing of an unclear or unduly broad request. 49 If the governmental body contends that the ten business day deadline started the date the request was clarified or narrowed, the governmental body must explain this fact in its request for an open records ruling. Also, the governmental body must explain if there were holidays, natural disasters, and any other days the governmental body was officially closed. In its explanation, the governmental body should include all dates relevant to the calculation of the ten business day deadline. 4. Submit copies of documents requested or a representative sample of the documents. 50 The documents must be labeled to show which exceptions apply to which parts of the documents. 51 Representative samples are not appropriate when each document sought to be withheld contains substantially different information or when third-party proprietary information is at issue. 5. Provide the requestor with a copy of the written comments submitted to the Attorney General. 52 The governmental body must provide a copy of its comments to the requestor not later than the 15th business day after the date the request for information was received. This does not mean that the governmental body has to send the requestor a copy of the information that they are trying to withhold. If the written comments disclose or contain the substance of the information requested, the copy provided to the requestor 45 Id. 552.301(e). 46 Id. 552.301(e)(1)(A). 47 Id. 552.301(e)(1)(B). 48 Id. 552.301(e)(1)(C). 49 City of Dallas v. Abbott, 304 S.W.3d 380, 384 (Tex. 2010). 50 Tex. Gov t Code Ann. 552.301(e)(1)(D). 51 Id. 552.301(e)(2). 52 Id. 552.301(e-1). 12
should be redacted. Governmental bodies are cautioned against redacting more than that which would reveal the requested information to the requestor. The Attorney General may ask the governmental body for additional information. 53 The governmental body must respond to an Attorney General s request of additional information within seven calendar days. 54 If the governmental body fails to respond, the information is presumed to be open and must be released unless there is a compelling reason to withhold the information. 55 10. How long does the Attorney General have to respond to a request for an open records ruling? The Attorney General has 45 business days from the date the request for ruling was received from the governmental body. 56 However, if the Attorney General is unable to issue the decision within the 45 business-day period, the Attorney General may extend the time to respond for an additional ten business days. Such an extension may be taken if the Attorney General notifies the governmental body and the requestor of the reason for the delay. This notification must take place within the original 45 business-day time period. 11. What inquiries can a governmental body make of an open records requestor? Generally, there are only two permissible lines of inquiry that can be made of a requestor. First, the governmental body can ask a requestor for proper identification. 57 This inquiry for proper identification should be done if needed, but if the information can be given without any identification, then the inquiry is not necessary. State law does not indicate how such identification could be accomplished if the request is completely handled through the mail, e-mail, or by fax. This identification requirement is generally imposed by a governmental body when a state statute limits who may gain access to certain information. For example, certain statutes regulate who can gain access to information within motor vehicle records such as copies of drivers licenses. 58 These statutes contain specific rules on what inquiries can be made to determine if the requestor is eligible to receive the information. If an open records request involves such information, the governmental body should visit with its legal counsel regarding the applicable law. 53 Id. 552.303(c). 54 Id. 552.303(d). 55 Id. 552.303(e). 56 Id. 552.306(a). 57 Id. 552.222(a). 58 Id. 552.222(c). 13
Second, a governmental body may ask the requestor for a clarification if the request is unclear or ask the requestor to narrow the scope of the request if the request is unduly broad. 59 If a governmental body in good faith has determined that the request for information is unclear or that the scope of the information being asked for is unduly broad, the governmental body should ask the requestor to clarify or narrow the scope of a request. The ten business days to request an Attorney General s open records ruling is measured from the date the request is clarified or narrowed as long as the governmental body is acting in good faith. 60 In other words from the day that the requestor clarifies or narrows his/her request to the governmental body, the governmental body has ten business days to ask for a ruling from the Attorney General s office. The written request for clarification to the requestor must contain a statement as to the consequence of failing to timely respond to the request for clarification, discussion or additional information. 61 If the governmental body sends a written request for clarification, discussion or additional information to the requestor and the requestor does not send a written response by the 61 st day, the requestor s open records request is considered withdrawn. 62 For the request to be considered withdrawn, the governmental body must send the request for clarification, discussion or additional information to the requestor by certified mail if the governmental body has a physical or mailing address for the requestor. 63 It should be noted that the governmental body cannot ask the requestor the purpose for which the information will be used. 12. What is the general ability of a governmental body to charge for documents? The Public Information Act allows governmental bodies to set a charge for providing copies of public information. 64 However, a governmental body may not charge more than 25% above the charges set by the Attorney General s Office. 65 If a governmental body s actual cost for producing copies of open records exceeds the Attorney General s Office charges by more than 25%, the governmental body may apply to the Attorney General s Office for permission to charge more. 66 In no case may the charge by the governmental body exceed the actual cost of producing the requested copies. 59 Id. 552.222(b). 60 City of Dallas v. Abbott, 304 S.W.3d 380, 384 (Tex. 2010). 61 Tex. Gov t Code Ann. 552.222(e). 62 Id. 552.222(d). 63 Id. 552.222(f). 64 Id. 552.262. See generally, id. 552.261 -.275. 65 Id. 552.262(a). See generally 1 Tex. Admin. Code 70.1 -.12 (cost rules promulgated by the Attorney General s office). 66 Tex. Gov t Code Ann. 552.262(c). 14
13. Is a requestor allowed to sue a governmental body for failure to comply with the Public Information Act? A requestor is allowed to bring certain actions against a governmental body for violations of the Public Information Act. The requestor may file a complaint against a governmental body with the local county or district attorney. 67 The complaint must meet the following requirements: 1. be in writing and signed by the complainant; 2. state the name of the governmental body that allegedly committed the violation, as accurately as can be done by the complainant; 3. state the time and place of the alleged commission of the violation, as definitely as can be done by the complainant; and 4. describe the violation, in general terms. 68 Before the 31 st day after receiving the complaint, the local prosecuting attorney must determine if a violation has been committed, decide whether to take action against the governmental body, and notify the person who filed the complaint of that decision. 69 If the local prosecutor declines to proceed with an action against a governmental body, the complainant can file a complaint with the Attorney General before the 31 st day after the date the complaint is returned to the complainant by the local prosecuting attorney. 70 The Attorney General also must determine if a violation has been committed, decide whether to take action against the governmental body, and notify the person who filed the complaint of that decision. The Attorney General Office must notify the complainant of its determination before the 31 st day after receiving the complaint. 71 If either the local prosecuting attorney or the Attorney General decides to bring a lawsuit against a governmental body, the governmental body must be notified prior to the filing of the lawsuit. 72 The governmental body has three days to remedy the problem. 14. What civil remedies can be brought against a governmental body for failure to comply with the Public Information Act? If a governmental body refuses to release public information or refuses to request an Attorney General ruling, either the requestor or the Attorney General may bring a lawsuit to force the release of the records in question. 73 Even if the 67 Id. 552.3215(e). 68 Id. 69 Id. 552.3215(g). 70 Id. 552.3215(i). 71 Id. 72 Id. 552.3215(j). 73 Id. 552.321. 15
Attorney General has determined that the governmental body may withhold the requested information, the requestor may still file a lawsuit against the governmental body to seek disclosure of the requested information. 74 Under certain circumstances, a third party may file litigation to prevent the release of records that implicate that person s privacy or proprietary interests. 75 In a lawsuit brought to compel the release of public information, a requestor or the Attorney General is entitled to an award of attorney fees and costs if they prevail in their suit. 76 In a lawsuit by a governmental body seeking relief from compliance with an Attorney General ruling, a court may order the losing side to pay litigation costs and attorneys fees, but is not required to. Additionally, a requestor who feels he or she has been overcharged for copies of public information may file a complaint with the Attorney General s office. 77 The Attorney General s office may require the governmental body to pay the requestor the amount of any overcharge. If the Attorney General s office finds that the overcharge was due to bad faith on the part of the governmental body, the requestor who is overcharged may recover up to three times the amount of the overcharge from the governmental body. 78 15. What are the criminal penalties for noncompliance with the Public Information Act? There are three provisions of the Public Information Act that have criminal penalties if violated: Failure to Give Access to Public Information: A person responsible for releasing public information commits a crime if he or she fails to give access to or fails to permit copying of public information as required by the Public Information Act. This violation is a misdemeanor punishable by a fine of up to $1,000, a sixmonth jail term, or both. Also, the Public Information Act states that this violation constitutes official misconduct. 79 Thus, a public official may be subject to removal from office for such an offense. Release of Confidential Information: A person commits a crime if he or she distributes information considered confidential under the Public Information Act. This violation is a misdemeanor punishable by a fine of up to $1,000, a six-month jail term, or both. This violation also constitutes official misconduct. 80 74 Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App. Austin 1992, no writ). 75 See, e.g., Morales v. Ellen, 840 S.W.2d 519 (Tex. App. El Paso 1992, writ denied). See also Tex. Gov t Code Ann. 552.325. 76 Tex. Gov t Code Ann. 552.323. 77 Id. 552.269. 78 Id. 552.269(b). 79 Id. 552.353. 80 Id. 552.352. 16
Illegal Destruction or Alteration of Public Information: A person commits a crime if that person willfully destroys, mutilates, or alters public information or removes such information without permission. This offense is a misdemeanor and is punishable by a fine between $25 and $4,000, three days to three months of jail time, or both. 81 It is important to note that there are provisions of Texas law outside of the Public Information Act that criminalize tampering with a governmental record which may constitute a felony. 82 81 Id. 552.351. 82 See, e.g., Tex. Penal Code Ann. 37.10. 17