BILL ANALYSIS
C.S.H.B. 1718
By: S. Turner
4-26-95
Committee Report (Substituted)
BACKGROUND
The Open Records Act was enacted in 1973, and has not been
comprehensively reviewed since it was enacted. It affects all
levels of government in Texas, from the largest state agency to the
most rural county and the smallest school district, water district,
and incorporated town. It was designed to simultaneously protect
the personal privacy of individuals and to open the records of
government to the public for whom that government exists.
In recent years the wide-spread use of electronic means of
recording and storing information has brought many new problems.
Is it feasible to provide the records requested in the form
requested? What if the request would require reprogramming or
manipulation of data? Who will bear the cost? What constitutes an
appropriate charge for data that is electronically maintained?
PURPOSE
CSHB 1718 revises the Open Records Act to account for electronic
processing, storage, and dissemination of government information,
and to provide for the determination of the price to be charged for
providing such information to the public.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill grants additional
rulemaking authority to the General Services Commission in SECTION
12, (Subchapter F, Chapter 552, Section 552.262, Government Code.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Chapter 552, Government Code, to change the
chapter headlining "Open Records" to "Public Information."
That same change is made throughout the act wherever "open
records" appears. In most instances, where the word "record"
appears without the word "open," it is changed to
"information." The exception is where the existing word is the
most natural usage.
SECTION 2. Amends certain sections of Chapter 552, Government
Code, as follows:
Section 552.02. Adds definitions of (a) "public information"
as used in the act, and (b) the media on which such information
is recorded, and a listing (c) of the forms in which the media
containing public information can exist.
Section 552.03. (A) Renumbers subsections to accommodate
additions to the act, (B) provides definitions of certain terms
involved in applying the act to electronic information, and
defines "requestor," used throughout the act to refer to a person
who submits a request to a government body for inspection or
copies of public information.
Section 552.004. Adds "any applicable rule of law" to the
legal basis governing the preservation of records.
Section 552.021. Alters section to stress availability of
public information, eliminates definitions covered in earlier
sections, and specifies that public information is to be available "at a minimum" during normal working hours.
SECTION 3. Amends Section 552.023 (a), Government Code, to stress
a person's special right of access to information that relates
to that person and is protected from public disclosure by laws
which protect the person's privacy.
SECTION 4. Amends Sections 552.103 and 552.108, Government Code.
Section 552.103 (a) is amended to say that information is
exempted from the requirements of Section 552.021 if the
Attorney general or the attorney of the political subdivision
has determined that the information should be withheld from
public inspection, and if the information was created in
anticipation of litigation or for the purpose of settlement
negotiations to which the state or a political subdivision is
a party to or to which an officer or employee of the state or
a political subdivision is a party.
(b) is added to state that if the political subdivsion's
attorney determined that the information should be withheld
from the public, that is not sufficient to relieve the
subdivision of it's obligation to request an attorney
general's decision under Section 552.301.
(d) is added which lists exceptions from Subsection (a)(1).
(e) is added to provide that information under this section
includes the work product of an attorney.
(f) is added to define "work product of an attorney."
Section 552.108, Government Code, is amended to emphasize that
it is information, not simply "records," which is covered by
the law enforcement/prosecutorial exception.
SECTION 5. Amends Section 552.122, Government Code, to eliminate
"curriculum objectives" from the items excepted from public
information, in accord with actions of 73rd Legislature.
SECTION 6. Amends Section 552, Government Code, to conform to
action taken in the 73rd Legislature, by adding Section 552,
124. which specifies the conditions under which the identity of
a person who requested, obtained, or used a public library material
or service may be disclosed.
SECTION 7. Amends Subchapter C, Chapter 552, Government Code, by
adding Section 552.125, which excepts commercially available
resource material from public information.
SECTION 8. Amends Subchapter Heading D, Chapter 552, Government
Code, to use the terms "information" and "requestor."
SECTION 9. Amends additional sections for same change of wording,
and adds a new Section 552.204 to specify the responsibility of
an officer of public information.
SECTION 10. Amends Subchapter E, Government Code, to change
"records" to "information" where appropriate, and makes addition
to Section 552.221 to specify the inquiry a governmental body may
make of a requestor, emphasizing that the former may not ask the purpose for which the information will be used.
Section 552.228 is amended to provide a request and a response
by a governmental body for information which exists in electronic
form, and makes a provision for requests with which a
governmental body is not able to reply.
Section 552.231 is added to provide for a response to requests
for information that require programming or manipulation of data,
and makes such data available if the requestor is willing to
bear the cost of producing it, based on General Service Commission
rules.
SECTION 11. Amends Section 552.261, Government Code, to
distinguish costs of paper records from that of electronic
information.
SECTION 12. Amends Subchapter F, Chapter 552, Government Code, is
amended as follows:
Section 552.262 charges the General Service Commission to
adopt rules for use by governmental bodies in determining charges
for copies of public information and makes provision of obtaining
an exemption from the rules. It also specifies that the Commission
is to publish annually a list of agencies that have
authorization to adopt modified rules.
Section 552.263 allows an officer of public information to
charge a deposit or bond for preparation of copies that are
estimated to cost more than $100.
Section 552.264 is amended to make a codifying change.
Section 552.266 is amended to make a codifying change.
Section 552.267 (b) is added to provide that a governmental
body may waive the charge if the cost of collection of the
charge will exceed the amount of the charge.
Section 552.268 updates language on efficiency to avoid
excessive costs in providing electronic records.
Section 552.269 is amended to provide that a person who
believes they have been overcharged for public information may
appeal to the General Services Commission, and provides for the
Commission to review the claim and to provide for adjustment.
Section 552.270 is added to exempt the publications that are
printed by or for a governmental body for public
dissemination, and allows the body to determine the charge to be
made if not covered by a separate law.
Section 552.271 is added to provide for certain situations
regarding inspection of paper record when a copy is not
requested. A charge is not to be imposed for such inspection if the information exists as a paper record, unless it
contains confidential information which must be edited before the
record can be inspected, in which case a charge for the copy
may be imposed.
Section 552.272 has been added to provide for the inspection
of an electronic record if a copy is not requested. If the
information is not available on-line, the requestor may view it
without charge unless copying requires programming or manipulation
of data, in which case an estimate of cost is to be provided in
advance. If the public information exists on line in an
electronic form on a computer owned or leased by a government body,
and if the public has direct access, as through a computer
network, the information may be copied without charge if no
processing, manipulation, or programming is required. If these
are required, a charge may be imposed. The section also states
that governmental bodies shall be encouraged to explore options
to separate out confidential information to facilitate
availability of public information.
Section 552.273 has been added which states that
municipalities that do not collect records preservation funds
may provide access to GIS data at low or no cost to
requestors. If a municipality provides access to GIS, the
municipality may set charges for providing copies of the GIS
database. The General Services Commission shall conduct a
study to determine reasonable GIS charges.
SECTION 13. Section 552.304 is amended by a minor word change
only.
SECTION 14. Section 552.305, Government Code, is amended to stress
that if anyone's privacy or property interests are involved in
a request, a governmental body may decline to release it and seek
an attorney general's decision.
SECTION 15. Amends Section 552.306, Government Code, by deleting
superfluous phrase.
SECTION 16. Amends Subchapter H, Government Code, by updating
language in Section 552.321, and changes in other sections as
follows:
Section 552.323 is amended (a) by making attorney fees
mandatory and, (b) deleting language that gives courts discretion
regarding attorney's fees for cost of litigation where a
requestor substantially prevails in action brought under Section
552.321 or Section 552.353 (b)(3).
Section 552.324 is added to limit the ability of a
governmental body to sue in seeking to withhold information.
Section 552.325 is added to determine the parties to a suit to
withhold information, and specifies that parties seeking to
withhold information may sue only the attorney general. It also
specifies the conditions required for such suit, and allows the
requestor to intervene.
SECTION 17. Amends Section 552.351 and 552.353, Government Code,
by updating language to take account of electronic information.
SECTION 18. Specifies that the changes in law made by this Act
apply only to requests for information made on or after
September 1, 1995.
SECTION 19. Lists the laws repealed by the Act.
SECTION 20. Effective date: September 1, 1995.
SECTION 21. Emergency Clause.
COMPARISON OF ORIGINAL TO SUBSTITUTE
The following are changes from the original bill to the substitute
listed by Section.
In SECTION 4, additions to the "litigation exception clarify
situations under which information relating to specific litigations
may be excepted from public information.
In SECTION 7, changes to Sec. 552.125(c) clarify the requirement
for governmental bodies to make available information which is
contained in a commercially available book, by deleting two
phrases.
SECTION 12 of the original is deleted which amended Subchapter F,
Chapter 552, Government Code, to conform to action taken in 73rd
Legislature, and to the intentions of the present bill by adding a
new Section 552.2611, providing for the deposit of funds collected
by a state agency for providing copies of public information. The
new SECTION 12, (formerly SECTION 13) adds Sec. 552.273 to provide
for a special situation dealing with geographical information
system information.
SECTION 19 of the original is deleted which amended Section
118.0145, to include the fees for noncertified papers supplied by
county clerks under those set by the General Service Commission.
In SECTION 19 of the substitute, Sec. 552.103 is deleted from the
list of sections repealed in SECTION 21 of the original bill.
SUMMARY OF COMMITTEE ACTION
Pursuant to posting of public notice, HB 1718 was considered by the
Committee on State Affairs in a public hearing on April 11, 1995.
The Chair laid out HB 1718 and recognized Rep. S. Turner to explain
the bill. The following persons testified for the bill: Robert E.
Lett representing himself; John Cranfill representing Texas Media,
the Dallas Morning News, and the Open Records Steering Committee;
and Laura Peterson representing the Freedom of Information
Foundation of Texas. The following persons testified neutrally on
the bill: Jill Urban representing the City of Irving, Cathy
Cunningham representing the City of Irving, Rebecca L. Payne
representing the Office of the Attorney General and Hadassah M.
Schloss representing the Open Records Steering Committee--General
Services Commission. The following person testified against the
bill: Donald Lee representing the Conference of Urban Counties.
The Chair recognized Rep. S. Turner to close. The Chair left HB
1718 pending. HB 1718 was considered by the Committee on State
Affairs in a public hearing on April 19, 1995. The Chair laid out
HB 1718. The committee considered a complete substitute for the
bill which was adopted without objection. The bill was reported
favorably as substituted with the recommendation that it do pass
and be printed, by a record vote of 14 ayes, 0 nay, 0 pnv, 1
absent.