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.