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.