BILL ANALYSIS
H.B. 1718
By: Turner, S. (Wentworth)
State Affairs
05-25-95
Senate Committee Report (Unamended)
BACKGROUND
The Open Records Act was first enacted in 1973 to provide the
broadest possible access to public information maintained or
generated by governmental bodies in the State of Texas. At the
time of its enactment, relatively few records existed in electronic
format. Twenty-two years later, information has shifted from a
world of paper records to one dominated by electronic technology.
Several state agencies and members of open government groups over
the past year have been engaged in making proposals to update the
Open Records Act, including the General Services Commission, and an
interim study by the House State Affairs Committee.
PURPOSE
As proposed, H.B. 1718 revises the open records law by expanding
the law to include access to, copies of, and inspection of public
information, rather than just records.
RULEMAKING AUTHORITY
It is the committee's opinion that rulemaking authority is granted
to the General Services Commission in SECTION 13 (Section
552.262(a), Government Code) of this bill.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends the chapter heading to Chapter 552, Government
Code, as follows:
CHAPTER 552. PUBLIC INFORMATION
SECTION 2. Amends Sections 552.002-552.004, 552.006, 552.007, and
552.021, Government Code, as follows:
Sec. 552.002. New heading: DEFINITION OF PUBLIC INFORMATION;
MEDIA CONTAINING PUBLIC INFORMATION. (a) Defines "public
information"
(b) Sets forth the media on which public information is
recorded.
(c) Sets forth the general forms in which the media
containing public information exist. Deletes the definition
of "public record."
Sec. 552.003. New heading: DEFINITIONS. Redefines
"governmental body" and "public funds." Defines
"manipulation," "processing," "programming," and "requestor."
Sec. 552.004. New heading: PRESERVATION OF INFORMATION.
Authorizes a governmental body (body), or, for information,
rather than records, of an elective county office, the county
officer, to determine a time for which information that is not
currently in use will be preserved. Makes conforming changes.
Sec. 552.006. New heading: EFFECT OF CHAPTER ON WITHHOLDING
PUBLIC INFORMATION. Makes conforming changes.
Sec. 552.007. New heading: VOLUNTARY DISCLOSURE OF CERTAIN
INFORMATION WHEN DISCLOSURE NOT REQUIRED. Makes conforming
changes.
Sec. 552.021. New heading: AVAILABILITY OF PUBLIC
INFORMATION. Deletes existing Subsection (a) setting forth
information considered public information. Makes conforming
and nonsubstantive changes.
SECTION 3. Amends Section 552.022, Government Code, to set forth
the information, without limiting the amount or kind of information
that is public under this chapter, which is considered public.
SECTION 4. Amends Section 552.023(a), Government Code, to make
conforming changes.
SECTION 5. Amends Sections 552.103, 552.107, and 552.108,
Government Code, as follows:
Sec. 552.103. EXCEPTION: LITIGATION OR SETTLEMENT
NEGOTIATIONS INVOLVING THE STATE OR A POLITICAL SUBDIVISION.
(a) Sets forth the conditions in which information is
excepted 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.
Sec. 552.107. EXCEPTION: CERTAIN LEGAL MATTERS. Sets forth
the information excepted from the requirements of Section
552.021 under certain circumstances.
Sec. 552.108. New heading: EXCEPTION: CERTAIN LAW
ENFORCEMENT AND PROSECUTORIAL INFORMATION. Makes a conforming
change.
SECTION 6. Amends Section 552.122, Government Code, to conform to
Section 8.30, Chapter 347, 73rd Legislature, 1993, as follows:
Sec. 552.122. New heading: EXCEPTION: TEST ITEMS. Provides
that a test item, rather than a test item or a curriculum
objective, developed by an educational institution that is
funded wholly or in part by state revenue is excepted from the
requirements of Section 552.021.
SECTION 7. Amends Chapter 552C, Government Code, to conform to
Section 1, Chapter 98, 73rd Legislature, 1993, by adding Section
552.124, as follows:
Sec. 552.124. EXCEPTION: RECORDS OF LIBRARY OR LIBRARY
SYSTEM. (a) Provides that a library record or system,
supported by public funds, that identifies a person who
requested a library material or service is excepted from the
requirements of Section 552.021, unless the record is
disclosed for certain reasons.
(b) Provides that a library record or system that is
excepted from required disclosure is confidential.
SECTION 8. Amends Chapter 552B, Government Code, by adding Section
552.027, as follows:
Sec. 522.027. EXCEPTION: INFORMATION AVAILABLE COMMERCIALLY;
RESOURCE MATERIAL. (a) Provides that a body is not required
to allow the inspection of or to provide a copy of information
in a commercial publication purchased or acquired by the body
for research purposes if the publication is commercially
available to the public.
(b) Provides that a body is not required to make a copy of
information that may be made available as a public resource
material in response to a request.
(c) Requires a body to allow the inspection of or provide a
copy of information in a publication that is part of or
referred to in a rule or policy of a body.
SECTION 9. Amends the heading to Chapter 552D, Government Code, as
follows:
SUBCHAPTER D. OFFICER FOR PUBLIC INFORMATION
SECTION 10. Amends Chapter 552D, Government Code, by amending
Sections 552.201-552.203 and by adding Section 552.204, as follows:
Sec. 552.201. New heading: IDENTITY OF OFFICER FOR PUBLIC
INFORMATION. Makes conforming changes.
Secs. 552.202-552.203. Make conforming changes.
Sec. 552.204. SCOPE OF RESPONSIBILITY OF OFFICER FOR PUBLIC
INFORMATION. Provides that an officer of public information
(officer) is responsible for the release of public information
as required by this chapter. Provides that the officer is not
responsible for the use made of the information or the release
of information after it is removed from a record as a result
of an update, a correction, or a change of status of the
person to whom the information pertains.
SECTION 11. Amends Chapter 552E, Government Code, by amending
Sections 552.221-552.228 and 552.230 and by adding Section 552.231,
as follows:
Sec. 552.221. New heading: APPLICATION FOR PUBLIC
INFORMATION; PRODUCTION OF PUBLIC INFORMATION. Requires the
officer to certify in writing to the requestor and set a date
and hour within a reasonable time when the information will be
available for inspection or duplication if an officer for
public information cannot produce public information for
inspection or duplication within 10 calendar days after the
date the information is requested under Subsection (a). Makes
conforming changes.
Sec. 552.222. New heading: PERMISSIBLE INQUIRY BY
GOVERNMENTAL BODY TO REQUESTOR. Authorizes the body to ask
the requestor to clarify the request. Authorizes the body to
discuss with the requestor how the scope of a request might be
narrowed if the request is large, but prohibits the body from
inquiring into the purpose for which the information will be
used. Makes conforming changes.
Secs. 552.223-552.227. Make conforming changes.
Sec. 552.228. New heading: PROVIDING SUITABLE COPY OF PUBLIC
INFORMATION WITHIN REASONABLE TIME. Authorizes the requestor
to request a copy of information either on paper or in an
electronic medium if the information exists in both forms.
Requires the body to provide a copy in the requested medium
under certain circumstances. Requires the body to provide a
paper copy of the requested information, or a copy in another
acceptable medium, if the body is unable to comply with a
request for a certain medium. Provides that a body is not
required to copy information onto material provided by the
requestor but may use its own supplies.
Sec. 552.230. New heading: RULES OF PROCEDURE FOR INSPECTION
OF PUBLIC INFORMATION. Makes conforming changes.
Sec. 552.231. RESPONDING TO REQUESTS FOR INFORMATION THAT
REQUIRE PROGRAMMING OR MANIPULATION OF DATA. (a) Requires a
body to provide to a requestor the statement described by
Subsection (b) if the body determines that certain
circumstances exist.
(b) Sets forth requirements for the statement.
(c) Requires the body to provide the statement to the
requestor within 20 days after the body's receipt of the
request. Provides that the body has an additional 10 days
to provide the statement if the body gives written notice to
the requestor, within 20 days of receiving the request, that
the additional time is needed.
(d) Provides that the body does not have any further
obligation to provide the information after providing the
notice until the requestor states certain information in
writing to the body.
(e) Requires the officer to establish policies that assure
the expeditious processing of requests that require
programming or manipulation of data. Requires the body to
maintain a file containing all statements issued under this
section.
SECTION 12. Amends Section 552.261, Government Code, to prohibit
the charge for paper reproduction from including costs of
materials, labor, or overhead, but to be limited to photocopying
costs unless the pages to be copied are located in more than one
building or a remote storage facility. Deletes a provision
requiring the General Services Commission (commission) to determine
reproduction costs. Makes conforming changes.
SECTION 13. Amends Chapter 552F, Government Code, by amending
Sections 552.262-552.264 and 552.266-552.269 and by adding Sections
552.270-552.273, as follows:
Sec. 552.262. New heading: RULES OF THE GENERAL SERVICES
COMMISSION. (a) Requires the commission to adopt rules for
use by each body in determining charges. Requires the rules
adopted by the commission to be used by the body in
determining charges for copies of public information, with an
exception. Prohibits the charges from exceeding the actual
cost of producing the information. Authorizes a governmental
body, other than an agency of state government, to determine
its own charges for producing public information but shall not
charge more than a 50 percent variance from the rules
established by the commission unless the governmental body
requests an exemption under Subsection (c).
(b) Requires the commission to conduct a study to determine
reasonable charges for producing information prior to the
implementation of rules regarding charges under this
subchapter. Requires the study to be completed not later
than September 30, 1996, with full participation of parties,
including representatives of county and municipal government
and other interested parties. Requires the rules of the
commission to prescribe the methods for computing the
charges for copies of information and to establish the costs
for various components of charges for information that shall
be used by each body.
(c) Authorizes a body to request that it be exempt from the
rules adopted by the commission for determining charges.
Requires the request to be made in writing to the commission
and to state the reason for the exemption. Requires the
commission to give notice for determining that good cause
exists for exempting a body. Authorizes the body to amend
its charges for public information according to the
commission's determination.
(d) Requires the commission to publish annually in the Texas
Register a list of the bodies that have authorization to
adopt any modified rules for determining the cost of public
information. Deletes provisions setting forth requirements
for setting charges.
Sec. 552.263. New heading: BOND FOR PAYMENT OF COSTS OR CASH
PREPAYMENT FOR PREPARATION OF PUBLIC INFORMATION. Authorizes
an officer or an agent to require a deposit for payment of
costs for preparation of public information if the charge for
the copy is estimated by the body to exceed $100. Makes
conforming changes.
Sec. 552.264. New heading: COPY OF PUBLIC INFORMATION
REQUESTED BY MEMBER OF LEGISLATURE. Makes a conforming
change.
Sec. 552.266. New heading: COPY OF PUBLIC INFORMATION
PROVIDED BY MUNICIPAL COURT CLERK. Makes no changes.
Sec. 552.267. New heading: WAIVER OR REDUCTION OF FEE FOR
COPY OF PUBLIC INFORMATION. Authorizes the body to waive the
charge for a copy of public information if the cost of
processing the collection exceeds the charge.
Sec. 552.268. New heading: EFFICIENT USE OF PUBLIC
RESOURCES. Requires a body to make reasonably efficient use
of supplies and other resources, rather than of each page of
a public record.
Sec. 552.269. New heading: OVERCHARGE OR OVERPAYMENT FOR
PUBLIC INFORMATION. Authorizes a person who believes the
person has been overcharged for information to complain to the
commission of the overcharge. Requires the commission to
review the complaint and make a determination as to the
appropriate charge. Requires the body to respond to the
commission to any questions asked by the commission regarding
the charges. Requires the response to be made to the
commission within a certain time period. Requires the body to
adjust its charges in accordance with the commission's
determination. Makes conforming changes.
Sec. 552.270. COST OF GOVERNMENT PUBLICATION. (a) Provides
that the cost provisions of this subchapter do not apply to a
publication that is produced by or for a body for public
dissemination. Authorizes a body to determine the charge to
be made for the publication if the cost is not determined by
state law.
(b) Provides that this section does not prohibit a body from
providing a publication free of charge if state law does not
require that a charge be made.
Sec. 552.271. INSPECTION OF PAPER RECORD IF COPY NOT
REQUESTED. Prohibits a charge from being imposed for making
available for inspection any public information that exists in
a paper record, with an exception.
Sec. 552.272. INSPECTION OF ELECTRONIC RECORD IF COPY NOT
REQUESTED. (a) Prohibits a charge from being imposed for
access to information in an electronic medium that is not
available directly on-line to the requestor, with an
exception. Requires a charge to be assessed in accordance
with this subchapter.
(b) Authorizes the electronic form of information on a
computer owned or leased by a body (government computer) to
be electronically copied without charge if the public has
direct access to that computer and if accessing the
information does not require processing, programming, or
manipulation before the information is copied.
(c) Authorizes a body to impose charges if information
exists in an electronic form on a government computer and if
the public has direct access to that computer and the
information requires processing, programming, or
manipulation before it can be copied.
(d) Provides that a body is encouraged to explore options to
separate out confidential information and to make public
information available to the public through electronic
access if information is created or kept in an electronic
form.
Sec. 552.273. INTERIM CHARGES FOR GEOGRAPHIC INFORMATION
SYSTEMS DATA. (a) Authorizes a municipality that does not
collect records preservation funds to provide access to
geographic information systems (GIS) data at low cost or no
cost to requesters. Authorizes a means by which the
municipality may provide access to the information at low or
no cost to include public access terminals, dial-up services,
or any similar type of access.
(b) Authorizes the municipality to set charges for
providing copies of the GIS database if a municipality
provides access as provided by Subsection (a). Authorizes
the factors considered in setting the charges to include
data collection costs, system operation costs, and an
estimation of the value of the information on the commercial
market.
(c) Requires the commission to conduct a study to determine
reasonable charges for GIS data. Sets forth the date by
which the study must be completed and the parties who must
participate.
(d) Provides that this section expires August 31, 1997.
SECTION 14. Amends Section 552.301, Government Code, to make
conforming changes.
SECTION 15. Amends Section 552.303, Government Code, as follows:
Sec. 552.303. New heading: DELIVERY OF REQUEST INFORMATION TO
ATTORNEY GENERAL; DISCLOSURE OF REQUESTED INFORMATION;
ATTORNEY GENERAL REQUEST FOR SUBMISSION OF ADDITIONAL
INFORMATION. (a) Makes conforming and nonsubstantive
changes.
(b) Authorizes the attorney general to determine whether a
governmental body's submission of information is sufficient
to render a decision.
(c) Requires the attorney general to give written notice of
the fact to the governmental body and the requestor if the
governmental body failed to supply to the attorney general
all of the specific information that is necessary to render
a decision.
(d) Requires a governmental body notified under Subsection
(c) to submit the necessary additional information to the
attorney general not later than the seventh calendar day
after the date the notice is received.
(e) Provides that if a governmental body does not comply
with Subsection (d), the information that is the subject 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 public information.
SECTION 16. Amends Section 552.304, Government Code, to
authorize a person, rather than a member of the public, to submit
written comments stating reasons why the information at issue in a
request for an attorney general decision should or should not be
released.
SECTION 17. Amends Section 552.305(a), Government Code, to
authorize a body in a case in which information is requested and a
person's, rather than a third party's, interests may be involved,
to decline to release the information for the purpose of requesting
an attorney general decision.
SECTION 18. Amends Section 552.306(a), Government Code, to
require the attorney general to render the decision not later than
the 60th working day after the date the attorney general received
the request for a decision. Authorizes the attorney general to
extend the period for issuing the decision by an additional 20
working days by informing the governmental body and the requestor,
during the original 60-day period, of the reason for the delay.
Makes conforming changes.
SECTION 19. Amends Chapter 552G, Government Code, by adding
Section 552.308, as follows:
Sec. 552.308. TIMELINESS OF ACTION BY MAIL. Sets forth the
provisions of a request, notice, or other document to be
submitted or otherwise given to a person within a specified
period.
SECTION 20. Amends Chapter 552H, Government Code, by amending
Section 552.321 and by adding Sections 552.324 and 552.325, as
follows:
Sec. 552.321. SUIT FOR WRIT OF MANDAMUS. (a) Authorizes a
requestor to also file suit in accordance with Subsections
(b), (e), and (f) for a writ of mandamus compelling a
governmental body to make information available for public
inspection or duplication under a special right of access.
Makes a conforming and a nonsubstantive change.
(b) Authorizes a requestor or the attorney general to file
suit under Subsection (a) if the governmental body has not
produced the information for inspection or duplication
within a certain period.
(c) Authorizes a requestor to file suit under Subsection (a)
if the governmental body has not produced the information
for inspection or duplication within a certain period.
(d) Requires a person who files suit under circumstances
described by Subsection (c)(1) to also file in the same
action for a writ of mandamus compelling the attorney
general to render a decision.
(e) Provides that the district courts have original
jurisdiction in a suit filed under this section.
(f) Sets forth the venue for a suit filed under this
section.
Sec. 552.324. SUIT BY GOVERNMENTAL BODY. Authorizes a body
or an officer to file only a suit seeking to withhold
information from a requestor that meets certain requirements.
Sec. 552.325. PARTIES TO SUIT SEEKING TO WITHHOLD
INFORMATION. (a) Prohibits a body, officer, or other person
or entity that files a suit seeking to withhold information
from a requestor from filing suit seeking to withhold
information against the person requesting information.
Entitles the requestor to intervene.
(b) Requires the body, officer, or other person or entity
that files the suit to demonstrate to the court that the
body, officer, person, or entity made an effort to inform
the requestor of certain information.
(c) Requires the attorney general to notify the requestor if
the attorney general agrees that the information that is the
subject of the suit should be withheld and decides not to
contest withholding the information and, if the requestor
has not intervened, of the requestor's right to contest the
withholding. Sets forth requirements for the attorney
general's notice to the requestor.
(d) Requires the court to allow the requestor a period to
intervene after the attorney general attempts to give
notice.
SECTION 21. Amends Sections 552.351 and 552.353, Government
Code, as follows:
Sec. 552.351. New heading: DESTRUCTION, REMOVAL, OR
ALTERNATION OF PUBLIC INFORMATION. Makes a conforming change.
Sec. 552.353. New heading: FAILURE OR REFUSAL OF OFFICER FOR
PUBLIC INFORMATION TO PROVIDE ACCESS TO OR COPYING OF PUBLIC
INFORMATION. Makes conforming changes.
SECTION 22. (a) Makes application of this Act prospective
beginning September 1, 1995.
(b) Makes application of Sections 552.324 and 552.325,
Government Code, as added by this Act, prospective.
(c) Makes application of Section 552.306, Government Code, as
amended by this Act, prospective beginning January 1, 1996.
(d) Makes application of Sections 552.321(c)(1) and (d),
Government Code, as added by this Act, prospective beginning
January 1, 1996.
SECTION 23. Prohibits the attorney general from using additional
general revenue to pay for implementing the changes in law made to
Section 552.306, Government Code, by this Act or adding additional
employees to comply with the changes in law made to Section
552.306, Government Code, by this Act.
SECTION 24. (1) Repealer: Section 1, Chapter 98, Acts of the 73rd
Legislature, 1993 (relating to making confidential a record
identifying a library user).
(2) Repealer Section 8.30, Chapter 347, Acts of the 73rd
Legislature, 1993 (relating to government information as
public information).
SECTION 25. (a) Effective date: September 1, 1995.
(b) Effective date of Sections 552.306 and
552.321(c)(1) and (d), Government Code: January 1, 1996.
SECTION 26. Emergency clause.