By Carona S.B. No. 1057
76R646 JRD-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to public access under the open records law to information
1-3 about certain government contracts held by the contractor or a
1-4 subcontractor; imposing a civil penalty.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Chapter 552, Government Code, is amended by
1-7 adding Subchapter J to read as follows:
1-8 SUBCHAPTER J. INFORMATION HELD BY CERTAIN GOVERNMENT CONTRACTORS
1-9 Sec. 552.401. APPLICABILITY. (a) This subchapter applies
1-10 only to a contract between a private entity and a governmental
1-11 body, or a related contract between a private entity and its
1-12 subcontractor, under which the private entity or its subcontractor:
1-13 (1) delivers goods or services to a third person on
1-14 behalf of a governmental body; or
1-15 (2) performs a management, supervisory, information
1-16 gathering, or recordkeeping function in relation to the
1-17 governmental body's delivery of goods or services or the
1-18 governmental body's performance of its other functions under law.
1-19 (b) This subchapter does not apply to a contract or a
1-20 related subcontract:
1-21 (1) for the routine purchase of goods and services by
1-22 a governmental body, such as the purchase of office supplies,
1-23 office equipment, custodial services, or printing services; or
1-24 (2) for the construction of a public work, such as a
2-1 road, bridge, or public building, by or for a governmental body.
2-2 Sec. 552.402. INFORMATION CONSIDERED TO BE PUBLIC
2-3 INFORMATION. Information collected, assembled, or maintained by
2-4 or for a private entity, to which the private entity has at least a
2-5 right of access, in connection with a contract or related
2-6 subcontract to which this subchapter applies is considered to be
2-7 public information collected, assembled, or maintained in
2-8 connection with the transaction of official business to which the
2-9 contracting governmental body has at least a right of access, to
2-10 the extent that the information directly relates to:
2-11 (1) the delivery of goods or services to a third
2-12 person on behalf of a governmental body;
2-13 (2) the performance of a management, supervisory,
2-14 information gathering, or recordkeeping function in connection
2-15 with the governmental body's delivery of goods or services or the
2-16 governmental body's performance of its other functions under law;
2-17 or
2-18 (3) the receipt or expenditure of public funds under
2-19 the contract or subcontract.
2-20 Sec. 552.403. PROCEDURES FOR PUBLIC ACCESS TO THE
2-21 INFORMATION. (a) A requestor who wishes to inspect or receive
2-22 copies of information that is considered to be public information
2-23 under Section 552.402 may submit the request to the governmental
2-24 body, and the governmental body shall respond to the request in
2-25 accordance with this chapter. A request under this subchapter must
2-26 be directed to the governmental body rather than the private
2-27 entity.
3-1 (b) The private entity when notified of the request shall
3-2 promptly and within at least five business days after the date the
3-3 entity is notified furnish the requested information or copies of
3-4 the information, as appropriate, to the governmental body, without
3-5 regard to whether the information is in fact considered to be
3-6 public information under Section 552.402 or is confidential or
3-7 otherwise prohibited from disclosure to the public under law.
3-8 (c) For information that a governmental body must obtain
3-9 from a private entity under this subchapter, five business days are
3-10 added to any applicable deadline for responding to a requestor or
3-11 requesting a decision from the attorney general under this chapter.
3-12 (d) Subject to Section 552.404, the requestor in accordance
3-13 with this chapter may have access to or copy the information after
3-14 it is received by the governmental body.
3-15 Sec. 552.404. ATTORNEY GENERAL DECISIONS. (a) A
3-16 governmental body or a private entity may request a decision from
3-17 the attorney general about whether this subchapter applies to a
3-18 contract or subcontract to which the governmental body or private
3-19 entity is a party without regard to whether there has been a
3-20 request for information related to the contract or subcontract. A
3-21 governmental body may also request a decision from the attorney
3-22 general about whether this subchapter will apply to a proposed
3-23 contract to which the governmental entity may be a party. The
3-24 governmental body or the private entity requesting the decision
3-25 shall furnish the attorney general with a copy of the contract or
3-26 proposed contract and any related material that the attorney
3-27 general requires to make the decision. The attorney general shall
4-1 publish the decision and consider public comments in the time and
4-2 manner required for a decision under Subchapter G.
4-3 (b) A governmental body or a private entity, on receipt by
4-4 the governmental body of a request under this subchapter for
4-5 information held by or for the private entity, may request a
4-6 decision from the attorney general about whether the information is
4-7 considered to be public information under Section 552.402. All
4-8 procedures and requirements of Subchapter G apply to a request for
4-9 a decision under this subsection.
4-10 (c) The attorney general and the secretary of state shall
4-11 publish requests for decisions under Subsections (a) and (b) in
4-12 the same manner that requests for decisions under Subchapter G are
4-13 published. A decision of the attorney general under Subsection (a)
4-14 or (b) may be challenged in the courts by the governmental body,
4-15 private entity, or requestor in the same manner that a decision of
4-16 the attorney general under Subchapter G may be challenged. A
4-17 decision of the attorney general under Subsection (a) that does
4-18 not involve a requestor may be challenged by any person, including
4-19 the governmental body or a member of the news media, by filing a
4-20 petition for a declaratory judgment against the attorney general in
4-21 a Travis County district court.
4-22 (d) Information that is considered to be public information
4-23 under Section 552.402 is subject to the same exceptions from
4-24 required disclosure under Subchapter C as other information
4-25 covered by this chapter. Subject to Subsections (e) and (f), the
4-26 procedure for determining whether the information is excepted from
4-27 required disclosure is the same as for other information covered by
5-1 this chapter.
5-2 (e) Only the governmental body may assert that information
5-3 is excepted from required disclosure under Subchapter C unless the
5-4 information is confidential under law or disclosure of the
5-5 information is otherwise prohibited by law. The private entity may
5-6 assert that the information is confidential under law or that
5-7 disclosure of the information is otherwise prohibited by law
5-8 regardless of whether the law is designed to protect the interests
5-9 of the private entity, but the private entity is entitled to
5-10 furnish requested information to the governmental body and rely on
5-11 the governmental body to assert all applicable exceptions to
5-12 required disclosure that are designed to protect the interests of a
5-13 person other than the private entity.
5-14 (f) If the private entity timely asserts to the governmental
5-15 body or the attorney general that the requested information is not
5-16 considered to be public information under Section 552.402 or is
5-17 confidential under a law designed to protect the interests of the
5-18 private entity, the governmental body shall treat the information
5-19 as confidential and may not allow public access to the information
5-20 until the private entity consents or it is finally determined that
5-21 the information is subject to required disclosure.
5-22 (g) Decisions of the attorney general under Subsections (a),
5-23 (b), and (d) in relation to the same request for information must
5-24 be made together under the same applicable time deadline.
5-25 Sec. 552.405. PRESERVATION, DESTRUCTION, ALTERATION, OR
5-26 CONCEALMENT OF INFORMATION. (a) Information that is considered to
5-27 be public information under Section 552.402 is considered to be a
6-1 government record for purposes of Section 37.10, Penal Code, and
6-2 is also public information for all purposes of this chapter,
6-3 including Subchapter I.
6-4 (b) Information that is considered to be public information
6-5 under Section 552.402 shall be kept by the governmental body or
6-6 private entity and may be destroyed only in accordance with the
6-7 records retention schedule of the governmental body under Chapter
6-8 441.
6-9 Sec. 552.406. FAILURE OR REFUSAL OF PRIVATE ENTITY TO
6-10 PROVIDE PUBLIC INFORMATION. (a) A private entity that
6-11 negligently, recklessly, or intentionally fails or refuses to
6-12 furnish requested information or copies of requested information to
6-13 a governmental body as required by Section 552.403(b) is liable to
6-14 the state for a civil penalty not to exceed $500 for each
6-15 violation. Each day of a continuing violation is a separate
6-16 violation for purposes of this section. Section 552.353 does not
6-17 apply to the private entity.
6-18 (b) The attorney general shall bring an action for the
6-19 penalty in a Travis County district court.
6-20 Sec. 552.407. CONTRACT CLAUSES RELATED TO INFORMATION. (a)
6-21 A governmental body shall include a clause in a contract with a
6-22 private entity that will be affected by this subchapter that
6-23 describes and incorporates by reference the provisions of this
6-24 subchapter into the contract, and the private entity shall include
6-25 a clause in a subcontract that will be affected by this subchapter
6-26 that describes and incorporates by reference the provisions of
6-27 this subchapter into the subcontract. The provisions of this
7-1 subchapter, other than Subsection (b), are considered to be part
7-2 of the contract or subcontract without regard to whether the clause
7-3 is included.
7-4 (b) A governmental body shall, when appropriate,
7-5 specifically contract with a private entity for the right to have
7-6 access to or copy a type of information that is not considered to
7-7 be public information under Section 552.402 when the information
7-8 is needed to administer the contract or evaluate contract
7-9 performance. Information that is not considered to be public
7-10 information under Section 552.402 and that a governmental body may
7-11 have access to or copy by contract under this subsection is
7-12 subject to required public disclosure or excepted from required
7-13 public disclosure in accordance with the other provisions of this
7-14 chapter. The governmental body may obtain by contract under this
7-15 subsection information that the private entity claims to be
7-16 confidential under a law designed to protect its interests, but the
7-17 governmental body shall treat the information as confidential
7-18 unless it is finally determined that the information is not
7-19 confidential.
7-20 Sec. 552.408. EFFECT ON OTHER LAW. This subchapter does not
7-21 affect whether a governmental body or a person has a right of
7-22 access to information of a private entity under other law,
7-23 including under another provision of this chapter, or the
7-24 procedures for access to the information under other law.
7-25 SECTION 2. This Act takes effect September 1, 1999, and
7-26 applies only to information in relation to a contract entered into
7-27 on or after that date.
8-1 SECTION 3. The importance of this legislation and the
8-2 crowded condition of the calendars in both houses create an
8-3 emergency and an imperative public necessity that the
8-4 constitutional rule requiring bills to be read on three several
8-5 days in each house be suspended, and this rule is hereby suspended,
8-6 and that this Act take effect and be in force from and after its
8-7 passage, and it is so enacted.