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.