1-1 By: Wentworth S.B. No. 1851
1-2 (In the Senate - Filed April 7, 1999; April 8, 1999, read
1-3 first time and referred to Committee on State Affairs;
1-4 April 19, 1999, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 7, Nays 0; April 19, 1999,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1851 By: Wentworth
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to public access to governmental information and
1-11 decisions, including revisions to the public information law.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Subchapter A, Chapter 552, Government Code, is
1-14 amended by adding Section 552.0035 to read as follows:
1-15 Sec. 552.0035. ACCESS TO INFORMATION OF JUDICIARY.
1-16 (a) Access to information collected, assembled, or maintained by
1-17 or for the judiciary is governed by rules adopted by the Supreme
1-18 Court of Texas or by other applicable laws and rules.
1-19 (b) This section does not address whether information is
1-20 considered to be information collected, assembled, or maintained by
1-21 or for the judiciary.
1-22 SECTION 2. Subchapter A, Chapter 552, Government Code, is
1-23 amended by adding Section 552.0055 to read as follows:
1-24 Sec. 552.0055. SUBPOENA DUCES TECUM OR DISCOVERY REQUEST. A
1-25 subpoena duces tecum or a request for discovery that is issued in
1-26 compliance with a statute or a rule of civil or criminal procedure
1-27 is not considered to be a request for information under this
1-28 chapter.
1-29 SECTION 3. Subchapter A, Chapter 552, Government Code, is
1-30 amended by adding Sections 552.009 and 552.010 to read as follows:
1-31 Sec. 552.009. OPEN RECORDS STEERING COMMITTEE: ADVICE TO
1-32 COMMISSION; ELECTRONIC AVAILABILITY OF PUBLIC INFORMATION.
1-33 (a) The open records steering committee is composed of:
1-34 (1) a representative of each of the following,
1-35 appointed by its governing entity:
1-36 (A) the attorney general's office;
1-37 (B) the comptroller's office;
1-38 (C) the Department of Public Safety;
1-39 (D) the Department of Information Resources;
1-40 (E) the Texas State Library and Archives
1-41 Commission; and
1-42 (F) the General Services Commission;
1-43 (2) five public members, appointed by the General
1-44 Services Commission; and
1-45 (3) a representative of each of the following types of
1-46 local governments, appointed by the General Services Commission:
1-47 (A) a municipality;
1-48 (B) a county; and
1-49 (C) a school district.
1-50 (b) The representative of the General Services Commission is
1-51 the presiding officer of the committee. The committee shall meet
1-52 as prescribed by committee procedures or at the call of the
1-53 presiding officer.
1-54 (c) The committee shall advise the General Services
1-55 Commission regarding the commission's performance of its duties
1-56 under this chapter.
1-57 (d) The members of the committee who represent state
1-58 governmental bodies and the public members of the committee shall
1-59 periodically study and determine the types of public information
1-60 for which it would be useful to the public or cost-effective for
1-61 the government if the type of information were made available by
1-62 state governmental bodies by means of the Internet or another
1-63 electronic format. The committee shall report its findings and
1-64 recommendations to the governor, the presiding officer of each
2-1 house of the legislature, and the budget committee and state
2-2 affairs committee of each house of the legislature.
2-3 (e) Chapter 2110 does not apply to the size, composition, or
2-4 duration of the committee. Chapter 2110 applies to the
2-5 reimbursement of a public member's expenses related to service on
2-6 the committee. Any reimbursement of the expenses of a member who
2-7 represents a state or local governmental body may be paid only from
2-8 funds available to the state or local governmental body the member
2-9 represents.
2-10 Sec. 552.010. STATE GOVERNMENTAL BODIES: FISCAL AND OTHER
2-11 INFORMATION RELATING TO MAKING INFORMATION ACCESSIBLE. (a) Each
2-12 state governmental body shall report to the Legislative Budget
2-13 Board the information the board requires regarding:
2-14 (1) the number and nature of requests for information
2-15 the state governmental body processes under this chapter in the
2-16 period covered by the report; and
2-17 (2) the cost to the state governmental body in that
2-18 period in terms of capital expenditures and personnel time of:
2-19 (A) responding to requests for information under
2-20 this chapter; and
2-21 (B) making information available to the public
2-22 by means of the Internet or another electronic format.
2-23 (b) The Legislative Budget Board shall design and phase in
2-24 the reporting requirements in a way that:
2-25 (1) minimizes the reporting burden on state
2-26 governmental bodies; and
2-27 (2) allows the legislature and state governmental
2-28 bodies to estimate the extent to which it is cost-effective for
2-29 state government, and if possible the extent to which it is
2-30 cost-effective or useful for members of the public, to make
2-31 information available to the public by means of the Internet or
2-32 another electronic format as a supplement or alternative to
2-33 publicizing the information only in other ways or making the
2-34 information available only in response to requests made under this
2-35 chapter.
2-36 (c) The open records steering committee and the state
2-37 auditor, at the request of the Legislative Budget Board, shall
2-38 assist the board in designing its reporting requirements under this
2-39 section. The board shall share the information reported under this
2-40 section with the open records steering committee.
2-41 SECTION 4. Subchapter A, Chapter 552, Government Code, is
2-42 amended by adding Section 552.011 to read as follows:
2-43 Sec. 552.011. UNIFORMITY. The attorney general shall
2-44 maintain uniformity in the application, operation, and
2-45 interpretation of this chapter. To perform this duty, the attorney
2-46 general may prepare, distribute, and publish any materials,
2-47 including detailed and comprehensive written decisions and
2-48 opinions, that relate to or are based on this chapter.
2-49 SECTION 5. Section 552.022, Government Code, is amended to
2-50 read as follows:
2-51 Sec. 552.022. CATEGORIES OF PUBLIC INFORMATION; EXAMPLES.
2-52 (a) Without limiting the amount or kind of information that is
2-53 public information under this chapter, the following categories of
2-54 information are public information and not excepted from required
2-55 disclosure under this chapter unless they are expressly
2-56 confidential under other law:
2-57 (1) a completed report, audit, evaluation, or
2-58 investigation made of, for, or by a governmental body, except as
2-59 provided by Section 552.108;
2-60 (2) the name, sex, ethnicity, salary, title, and dates
2-61 of employment of each employee and officer of a governmental body;
2-62 (3) information in an account, voucher, or contract
2-63 relating to the receipt or expenditure of public or other funds by
2-64 a governmental body[, if the information is not otherwise made
2-65 confidential by law];
2-66 (4) the name of each official and the final record of
2-67 voting on all proceedings in a governmental body;
2-68 (5) all working papers, research material, and
2-69 information used to estimate the need for or expenditure of public
3-1 funds or taxes by a governmental body, on completion of the
3-2 estimate;
3-3 (6) the name, place of business, and the name of the
3-4 municipality to which local sales and use taxes are credited, if
3-5 any, for the named person, of a person reporting or paying sales
3-6 and use taxes under Chapter 151, Tax Code;
3-7 (7) a description of an agency's central and field
3-8 organizations [organization], including:
3-9 (A) the established places at which the public
3-10 may obtain information, submit information or requests, or obtain
3-11 decisions;
3-12 (B) the employees from whom the public may
3-13 obtain information, submit information or requests, or obtain
3-14 decisions;
3-15 (C) in the case of a uniformed service, the
3-16 members from whom the public may obtain information, submit
3-17 information or requests, or obtain decisions; and
3-18 (D) the methods by which the public may obtain
3-19 information, submit information or requests, or obtain decisions;
3-20 (8) a statement of the general course and method by
3-21 which an agency's functions are channeled and determined, including
3-22 the nature and requirements of all formal and informal policies and
3-23 procedures;
3-24 (9) a rule of procedure, a description of forms
3-25 available or the places at which forms may be obtained, and
3-26 instructions relating to the scope and content of all papers,
3-27 reports, or examinations;
3-28 (10) a substantive rule of general applicability
3-29 adopted or issued by an agency as authorized by law, and a
3-30 statement of general policy or interpretation of general
3-31 applicability formulated and adopted by an agency;
3-32 (11) each amendment, revision, or repeal of
3-33 information described by Subdivisions (7)-(10);
3-34 (12) final opinions, including concurring and
3-35 dissenting opinions, and orders issued in the adjudication of
3-36 cases;
3-37 (13) a policy statement or interpretation that has
3-38 been adopted or issued by an agency;
3-39 (14) administrative staff manuals and instructions to
3-40 staff that affect a member of the public;
3-41 (15) information regarded as open to the public under
3-42 an agency's policies;
3-43 (16) information that is in a bill for attorney's fees
3-44 and that is not privileged under the attorney-client privilege [or
3-45 confidential under other law];
3-46 (17) information that is also contained in a public
3-47 court record; and
3-48 (18) a settlement agreement to which a governmental
3-49 body is a party [unless the agreement is confidential under other
3-50 law].
3-51 (b) A court in this state may not order a governmental body
3-52 or an officer for public information to withhold from public
3-53 inspection any category of public information described by
3-54 Subsection (a) or to not produce the category of public information
3-55 for inspection or duplication, unless the category of information
3-56 is expressly made confidential under other law.
3-57 SECTION 6. Section 552.103, Government Code, is amended by
3-58 amending Subsection (a) and adding Subsection (c) to read as
3-59 follows:
3-60 (a) Information is excepted from the requirements of Section
3-61 552.021 if it is information[:]
3-62 [(1)] relating to litigation of a civil or criminal
3-63 nature [or settlement negotiations,] to which the state or a
3-64 political subdivision is or may be a party or to which an officer
3-65 or employee of the state or a political subdivision, as a
3-66 consequence of the person's office or employment, is or may be a
3-67 party[; and]
3-68 [(2) that the attorney general or the attorney of the
3-69 political subdivision has determined should be withheld from public
4-1 inspection].
4-2 (c) Information relating to litigation involving a
4-3 governmental body or an officer or employee of a governmental body
4-4 is excepted from disclosure under Subsection (a) only if the
4-5 litigation is pending or reasonably anticipated on the date that
4-6 the requestor applies to the officer for public information for
4-7 access to or duplication of the information.
4-8 SECTION 7. Section 552.110, Government Code, is amended to
4-9 read as follows:
4-10 Sec. 552.110. EXCEPTION: TRADE SECRETS; CERTAIN[,]
4-11 COMMERCIAL [INFORMATION,] OR FINANCIAL INFORMATION. (a) A trade
4-12 secret [or commercial or financial information] obtained from a
4-13 person and privileged or confidential by statute or judicial
4-14 decision is excepted from the requirements of Section 552.021.
4-15 (b) Commercial or financial information for which it is
4-16 demonstrated based on specific factual evidence that disclosure
4-17 would cause substantial competitive harm to the person from whom
4-18 the information was obtained is excepted from the requirements of
4-19 Section 552.021.
4-20 SECTION 8. Section 552.116, Government Code, is amended to
4-21 read as follows:
4-22 Sec. 552.116. EXCEPTION: AUDIT WORKING PAPERS. (a) An
4-23 audit working paper of an [or draft] audit [report] of the state
4-24 auditor or the auditor of a [another] state agency or institution
4-25 of higher education as defined by Section 61.003, Education Code,
4-26 is excepted from the requirements of Section 552.021. If
4-27 information in an audit working paper is also maintained in another
4-28 record, that other record is not excepted from the requirements of
4-29 Section 552.021 by this section.
4-30 (b) In this section:
4-31 (1) "Audit" means an audit authorized or required by a
4-32 statute of this state or the United States and includes an
4-33 investigation.
4-34 (2) "Audit working paper" includes all information,
4-35 documentary or otherwise, prepared or maintained in conducting an
4-36 audit or preparing an audit report, including:
4-37 (A) intra-agency and interagency communications;
4-38 and
4-39 (B) drafts of the audit report or portions of
4-40 those drafts.
4-41 SECTION 9. Subchapter C, Chapter 552, Government Code, is
4-42 amended by adding Section 552.131 to read as follows:
4-43 Sec. 552.131. EXCEPTION: ECONOMIC DEVELOPMENT INFORMATION.
4-44 (a) Information is excepted from the requirements of Section
4-45 552.021 if the information relates to economic development
4-46 negotiations involving a governmental body and a business prospect
4-47 that the governmental body seeks to have locate, stay, or expand in
4-48 or near the territory of the governmental body and the information
4-49 relates to:
4-50 (1) a trade secret of the business prospect; or
4-51 (2) commercial or financial information for which it
4-52 is demonstrated based on specific factual evidence that disclosure
4-53 would cause substantial competitive harm to the person from whom
4-54 the information was obtained.
4-55 (b) Unless and until an agreement is made with the business
4-56 prospect, information about a financial or other incentive being
4-57 offered to the business prospect by the governmental body or by
4-58 another person is excepted from the requirements of Section
4-59 552.021.
4-60 (c) After an agreement is made with the business prospect,
4-61 this section does not except from the requirements of Section
4-62 552.021 information about a financial or other incentive being
4-63 offered to the business prospect:
4-64 (1) by the governmental body; or
4-65 (2) by another person, if the financial or other
4-66 incentive may directly or indirectly result in the expenditure of
4-67 public funds by a governmental body or a reduction in revenue
4-68 received by a governmental body from any source.
4-69 SECTION 10. Subchapter C, Chapter 552, Government Code, is
5-1 amended by adding Section 552.132 to read as follows:
5-2 Sec. 552.132. EXCEPTION: CRIME VICTIM INFORMATION. (a) A
5-3 crime victim may elect whether to allow public access to
5-4 information held by a state or local law enforcement agency, a
5-5 prosecuting attorney's office, or the crime victim's compensation
5-6 division of the attorney general's office that relates to:
5-7 (1) the name, social security number, address, or
5-8 telephone number of the crime victim; or
5-9 (2) any other information the disclosure of which
5-10 would identify or tend to identify the crime victim.
5-11 (b) An election under Subsection (a) must be:
5-12 (1) made in writing on a form developed by the
5-13 attorney general for that purpose and signed by the crime victim;
5-14 and
5-15 (2) filed with the law enforcement agency, prosecuting
5-16 attorney's office, or the crime victim's compensation division
5-17 before the third anniversary of the date that the crime victim
5-18 reported the crime to the law enforcement agency.
5-19 (c) If the crime victim elects not to allow public access to
5-20 the information, the information is excepted from the requirements
5-21 of Section 552.021. If the crime victim does not make an election
5-22 under Subsection (a) or elects to allow public access to the
5-23 information, the information is not excepted from the requirements
5-24 of Section 552.021 unless the information is made confidential or
5-25 excepted from those requirements by another law.
5-26 (d) Before the 11th day after a crime victim reports the
5-27 crime to a state or local law enforcement agency, that law
5-28 enforcement agency shall provide the crime victim with a copy of
5-29 the form for making an election under this section.
5-30 SECTION 11. Subchapter D, Chapter 552, Government Code, is
5-31 amended by adding Section 552.205 to read as follows:
5-32 Sec. 552.205. INFORMING PUBLIC OF BASIC RIGHTS AND
5-33 RESPONSIBILITIES UNDER THIS CHAPTER. (a) An officer for public
5-34 information shall prominently display a sign in the form prescribed
5-35 by the General Services Commission that contains basic information
5-36 about the rights of a requestor, the responsibilities of a
5-37 governmental body, and the procedures for inspecting or obtaining a
5-38 copy of public information under this chapter. The officer shall
5-39 display the sign at one or more places in the administrative
5-40 offices of the governmental body where it is plainly visible to:
5-41 (1) members of the public who request public
5-42 information in person under this chapter; and
5-43 (2) employees of the governmental body whose duties
5-44 include receiving or responding to requests under this chapter.
5-45 (b) The General Services Commission by rule shall prescribe
5-46 the content of the sign and the size, shape, and other physical
5-47 characteristics of the sign. In prescribing the content of the
5-48 sign, the commission shall include plainly written basic
5-49 information about the rights of a requestor, the responsibilities
5-50 of a governmental body, and the procedures for inspecting or
5-51 obtaining a copy of public information under this chapter that, in
5-52 the opinion of the commission, is most useful for requestors to
5-53 know and for employees of governmental bodies who receive or
5-54 respond to requests for public information to know.
5-55 SECTION 12. Subsection (b), Section 552.221, Government
5-56 Code, is amended to read as follows:
5-57 (b) An officer for public information complies with
5-58 Subsection (a) by:
5-59 (1) providing the public information for inspection or
5-60 duplication in the offices of the governmental body; or
5-61 (2) sending copies of the public information by first
5-62 class United States mail if the person requesting the information
5-63 requests that copies be provided [by mail] and pays [agrees to pay]
5-64 the postage and any other applicable charges that the requestor has
5-65 accrued under Subchapter F.
5-66 SECTION 13. Section 552.261, Government Code, is amended by
5-67 amending Subsection (a) and adding Subsections (c) and (d) to read
5-68 as follows:
5-69 (a) The charge for providing a copy of public information
6-1 shall be an amount that reasonably includes all costs related to
6-2 reproducing the public information, including costs of materials,
6-3 labor, and overhead. If a request is for 50 or fewer pages of
6-4 paper records, the charge for providing the copy of the public
6-5 information may not include costs of materials, labor, or overhead,
6-6 but shall be limited to the photocopying costs, unless the pages to
6-7 be photocopied are located in:
6-8 (1) two or more separate buildings that are not
6-9 physically connected with each other [than one building]; or
6-10 (2) a remote storage facility.
6-11 (c) For purposes of Subsection (a), a connection of two
6-12 buildings by a covered or open sidewalk, an elevated or underground
6-13 passageway, or a similar facility is insufficient to cause the
6-14 buildings to be considered separate buildings.
6-15 (d) Charges for providing a copy of public information are
6-16 considered to accrue at the time the governmental body advises the
6-17 requestor that the copy is available on payment of the applicable
6-18 charges.
6-19 SECTION 14. Subsections (a), (b), (c), and (d), Section
6-20 552.262, Government Code, are amended to read as follows:
6-21 (a) The General Services Commission shall adopt rules for
6-22 use by each governmental body in determining charges for providing
6-23 copies of public information under this subchapter and in
6-24 determining the charge, deposit, or bond required for making public
6-25 information that exists in a paper record available for inspection
6-26 as authorized by Sections 552.271(c) and (d). The rules adopted by
6-27 the General Services Commission shall be used by each governmental
6-28 body in determining charges for providing copies of public
6-29 information and in determining the charge, deposit, or bond
6-30 required for making public information that exists in a paper
6-31 record available for inspection, except to the extent that other
6-32 law provides for charges for specific kinds of public information.
6-33 The charges for providing copies of public information may not be
6-34 excessive and may not exceed the actual cost of producing the
6-35 information or for making public information that exists in a paper
6-36 record available. A governmental body, other than an agency of
6-37 state government, may determine its own charges for providing
6-38 copies of public information and its own charge, deposit, or bond
6-39 for making public information that exists in a paper record
6-40 available for inspection but may [shall] not charge an amount that
6-41 is greater than 25 percent more than the amount established by the
6-42 General Services Commission unless the governmental body requests
6-43 an exemption under Subsection (c).
6-44 (b) The rules of the General Services Commission shall
6-45 prescribe the methods for computing the charges for providing
6-46 copies of public information in paper, electronic, and other kinds
6-47 of media and the charge, deposit, or bond required for making
6-48 public information that exists in a paper record available for
6-49 inspection. The rules shall establish costs for various components
6-50 of charges for providing copies of public information that shall be
6-51 used by each governmental body in providing copies of public
6-52 information or making public information that exists in a paper
6-53 record available for inspection.
6-54 (c) A governmental body may request that it be exempt from
6-55 part or all of the rules adopted by the General Services Commission
6-56 for determining charges for providing copies of public information
6-57 or the charge, deposit, or bond required for making public
6-58 information that exists in a paper record available for inspection.
6-59 The request must be made in writing to the General Services
6-60 Commission and must state the reason for the exemption. If the
6-61 General Services Commission determines that good cause exists for
6-62 exempting a governmental body from a part or all of the rules, the
6-63 commission shall give written notice of the determination to the
6-64 governmental body within 90 days of the request. On receipt of the
6-65 determination, the governmental body may amend its charges for
6-66 providing copies of public information or its charge, deposit, or
6-67 bond required for making public information that exists in a paper
6-68 record available for inspection according to the determination of
6-69 the General Services Commission.
7-1 (d) The General Services Commission shall publish annually
7-2 in the Texas Register a list of the governmental bodies that have
7-3 authorization from the General Services Commission to adopt any
7-4 modified rules for determining the cost of providing copies of
7-5 public information or making public information that exists in a
7-6 paper record available for inspection.
7-7 SECTION 15. Section 552.263, Government Code, is amended by
7-8 amending Subsection (a) and adding Subsections (c), (d), and (e) to
7-9 read as follows:
7-10 (a) An officer for public information or the officer's agent
7-11 may require a deposit or bond for payment of anticipated costs for
7-12 the preparation of a copy of public information if the charge for
7-13 providing the copy of the public information specifically requested
7-14 by the requestor is estimated by the governmental body to exceed:
7-15 (1) $100, if the governmental body has more than 15
7-16 full-time employees; or
7-17 (2) $50, if the governmental body has fewer than 16
7-18 full-time employees.
7-19 (c) An officer for public information or the officer's agent
7-20 may require a deposit or bond for payment of unpaid amounts owing
7-21 to the governmental body in relation to previous requests that the
7-22 requestor has made under this chapter before preparing a copy of
7-23 public information in response to a new request if those unpaid
7-24 amounts exceed $100.
7-25 (d) The governmental body must fully document the existence
7-26 and amount of those unpaid amounts or the amount of any anticipated
7-27 costs, as applicable, before requiring a deposit or bond under this
7-28 section. The documentation is subject to required public
7-29 disclosure under this chapter.
7-30 (e) For purposes of Subchapters E and G, a request for a
7-31 copy of public information is considered to have been received by a
7-32 governmental body on the date the governmental body receives the
7-33 deposit or bond for payment of anticipated costs or unpaid amounts
7-34 if the governmental body's officer for public information or the
7-35 officer's agent requires a deposit or bond in accordance with this
7-36 section.
7-37 SECTION 16. Section 552.271, Government Code, is amended to
7-38 read as follows:
7-39 Sec. 552.271. INSPECTION OF PUBLIC INFORMATION IN PAPER
7-40 RECORD IF COPY NOT REQUESTED. (a) If the requestor does not
7-41 request a copy of public information, a [A] charge may not be
7-42 imposed for making available for inspection any public information
7-43 that exists in a paper record, except as provided by this section.
7-44 (b) If [that if] a requested page contains confidential
7-45 information that must be edited from the record before the
7-46 information can be made available for inspection, the governmental
7-47 body may charge for the cost of making a photocopy of the page from
7-48 which confidential information must be edited. No charge other
7-49 than the cost of the photocopy may be imposed under this
7-50 subsection.
7-51 (c) Except as provided by Subsection (d), an officer for
7-52 public information or the officer's agent may require a requestor
7-53 to pay, or to make a deposit or post a bond for the payment of,
7-54 anticipated personnel costs for making available for inspection
7-55 public information that exists in paper records only if:
7-56 (1) the public information specifically requested by
7-57 the requestor:
7-58 (A) is older than five years; or
7-59 (B) completely fills, or when assembled will
7-60 completely fill, six or more archival boxes; and
7-61 (2) the officer for public information or the
7-62 officer's agent estimates that more than five hours will be
7-63 required to make the public information available for inspection.
7-64 (d) If the governmental body has fewer than 16 full-time
7-65 employees, the payment, the deposit, or the bond authorized by
7-66 Subsection (c) may be required only if:
7-67 (1) the public information specifically requested by
7-68 the requestor:
7-69 (A) is older than three years; or
8-1 (B) completely fills, or when assembled will
8-2 completely fill, three or more archival boxes; and
8-3 (2) the officer for public information or the
8-4 officer's agent estimates that more than two hours will be required
8-5 to make the public information available for inspection.
8-6 SECTION 17. Subsection (a), Section 552.274, Government
8-7 Code, is amended to read as follows:
8-8 (a) Not later than December [September] 1 of each
8-9 odd-numbered year, each state agency shall provide the General
8-10 Services Commission detailed information, for use by the commission
8-11 in preparing the report required by Sections 2(c) and (d), Chapter
8-12 428, Acts of the 73rd Legislature, Regular Session, 1993,
8-13 describing the agency's procedures for charging and collecting fees
8-14 for providing copies of public information.
8-15 SECTION 18. Section 552.301, Governmental Code, is amended
8-16 to read as follows:
8-17 Sec. 552.301. Request for Attorney General Decision. (a) A
8-18 governmental body that receives a written request for information
8-19 that it wishes to withhold from public disclosure and that it
8-20 considers to be within one of the exceptions under Subchapter C
8-21 must ask for a decision from the attorney general about whether the
8-22 information is within that exception if there has not been a
8-23 previous determination about whether the information falls within
8-24 one of the exceptions.
8-25 (b) The governmental body must ask for the attorney
8-26 general's decision and state the exceptions that apply within a
8-27 reasonable time but not later than the 10th business day after the
8-28 date of receiving the written request.
8-29 (c) For purposes of this subchapter, a written request
8-30 includes a request made in writing that is sent to the officer for
8-31 public information, or the person designated by that officer, by
8-32 electronic mail or facsimile transmission.
8-33 (d) A governmental body that requests an attorney general
8-34 decision under Subsection (a) must provide to the requestor within
8-35 a reasonable time but not later than the 10th business day after
8-36 the date of receiving the requestor's written request:
8-37 (1) a written statement that the governmental body
8-38 wishes to withhold the requested information and has asked for a
8-39 decision from the attorney general about whether the information is
8-40 within an exception to public disclosure; and
8-41 (2) a copy of the governmental body's written
8-42 communication to the attorney general asking for the decision or,
8-43 if the governmental body's written communication to the attorney
8-44 general discloses the requested information, a redacted copy of
8-45 that written communication.
8-46 (e) [(b)] A governmental body that requests an attorney
8-47 general decision under Subsection (a) must within a reasonable time
8-48 but not later than the 15th business day after the date of
8-49 receiving the written request:
8-50 (1) submit to the attorney general:
8-51 (A) written comments stating the reasons why the
8-52 stated exceptions apply that would allow the information to be
8-53 withheld;
8-54 (B) [(2) submit to the attorney general] a copy
8-55 of the written request for information;
8-56 (C) a signed statement as to the date on which
8-57 the written request for information was received by the
8-58 governmental body or evidence sufficient to establish that date;
8-59 and
8-60 (D) [(3) submit to the attorney general] a copy
8-61 of the specific information requested, or submit representative
8-62 samples of the information if a voluminous amount of information
8-63 was requested; and
8-64 (2) [(4)] label that copy of the specific information,
8-65 or of the representative samples, to indicate which exceptions
8-66 apply to which parts of the copy.
8-67 (f) A governmental body must release the requested
8-68 information and is prohibited from asking for a decision from the
8-69 attorney general about whether information requested under this
9-1 chapter is within an exception under Subchapter C if:
9-2 (1) the governmental body has previously requested and
9-3 received a determination from the attorney general concerning the
9-4 precise information at issue in a pending request; and
9-5 (2) the attorney general or a court determined that
9-6 the information is public information under this chapter that is
9-7 not excepted by Subchapter C.
9-8 (g) A time deadline under this section is subject to Section
9-9 552.263(e).
9-10 SECTION 19. Subchapter G, Chapter 552, Government Code, is
9-11 amended by adding Section 552.3011 to read as follows:
9-12 Sec. 552.3011. REQUEST FOR ATTORNEY GENERAL DECISION:
9-13 BURDENSOME REPETITIOUS REQUESTS. (a) If a governmental body
9-14 believes that a requestor has made burdensome repetitious requests
9-15 of the governmental body under this chapter for information that
9-16 the governmental body has previously furnished to the requestor or
9-17 made available to the requestor on payment of applicable charges
9-18 under Subchapter F, the governmental body may request the attorney
9-19 general for a decision:
9-20 (1) that the requestor has made burdensome repetitious
9-21 requests; and
9-22 (2) that, as a consequence, the governmental body may
9-23 respond to the current request and to any future request by the
9-24 requestor for information that the governmental body has previously
9-25 furnished or made available to the requestor on payment of
9-26 applicable charges under Subchapter F by referring the requestor to
9-27 the information already furnished or made available.
9-28 (b) A decision under Subsection (a)(2) does not affect a
9-29 request for information that the governmental body has not
9-30 previously furnished or made available to the requestor on payment
9-31 of applicable charges under Subchapter F. A request by a requestor
9-32 who is the subject of a decision under Subsection (a) for that
9-33 information, including information that was not previously
9-34 furnished or made available because it was redacted from other
9-35 information that was furnished or made available or that was
9-36 requested but did not yet exist at the time of an earlier request,
9-37 shall be treated in the same manner as any other request for
9-38 information under this chapter.
9-39 (c) A governmental body must request a decision under this
9-40 section within the same time and in the same manner as a request
9-41 under Section 552.301. The attorney general must respond to the
9-42 request and render the decision in the same manner and within the
9-43 same time as with a request under Section 552.301.
9-44 SECTION 20. Subsections (a), (b), (c), and (e), Section
9-45 552.303, Government Code, are amended to read as follows:
9-46 (a) A governmental body that requests an attorney general
9-47 decision under this subchapter shall supply to the attorney
9-48 general, in accordance with Section 552.301, the specific
9-49 information requested. Unless the information requested is
9-50 confidential by law, the [The] governmental body may [not] disclose
9-51 the requested information to the public or to the requestor before
9-52 [until] the attorney general makes a final determination that the
9-53 requested information is public or, if suit is filed under this
9-54 chapter, before [until] a final determination that the requested
9-55 information is public has been made by the court with jurisdiction
9-56 over the suit, except as otherwise provided by Section 552.322.
9-57 (b) The attorney general may determine whether a
9-58 governmental body's submission of information to the attorney
9-59 general under Section 552.301 is sufficient to render a decision.
9-60 (c) If the [governmental body failed to supply to the]
9-61 attorney general determines that [all of the specific] information
9-62 in addition to that required by Section 552.301 is necessary to
9-63 render a decision, the attorney general shall give written notice
9-64 of that fact to the governmental body and the requestor.
9-65 (e) If a governmental body does not comply with Subsection
9-66 (d), the information that is the subject of a person's request to
9-67 the governmental body and regarding which the governmental body
9-68 fails to comply with Subsection (d) is presumed to be subject to
9-69 required public disclosure and must be released unless there exists
10-1 a compelling reason to withhold the information.
10-2 SECTION 21. Subchapter G, Chapter 552, Government Code, is
10-3 amended by adding Section 552.3035 to read as follows:
10-4 Sec. 552.3035. DISCLOSURE OF REQUESTED INFORMATION BY
10-5 ATTORNEY GENERAL. The attorney general may not disclose to the
10-6 requestor or the public any information submitted to the attorney
10-7 general under Section 552.301(e)(1)(D) or Section 552.303(d).
10-8 SECTION 22. Section 552.305, Government Code, is amended by
10-9 adding Subsections (d), (e), and (f) to read as follows:
10-10 (d) If a person's privacy or property interests may be
10-11 involved under Subsection (a), the governmental body that requests
10-12 an attorney general decision under Section 552.301 shall notify
10-13 that person of the request for the attorney general decision.
10-14 Notice under this subsection must:
10-15 (1) be in writing and sent within a reasonable time
10-16 not later than the 10th business day after the date the
10-17 governmental body received the request for the information;
10-18 (2) include a copy of:
10-19 (A) the written request for the information, if
10-20 any, received by the governmental body;
10-21 (B) the governmental body's written request for
10-22 the attorney general decision; and
10-23 (C) a list of citations to each opinion or open
10-24 records decision of the attorney general and to each judicial
10-25 decision known to the governmental body that contains the criteria
10-26 that authorize information to be withheld under each applicable
10-27 exception in this chapter; and
10-28 (3) state that the person is entitled to submit in
10-29 writing to the attorney general within a reasonable time not later
10-30 than the 10th business day after the date the person receives the
10-31 notice:
10-32 (A) each reason the person has as to why the
10-33 information should be withheld; and
10-34 (B) a letter, memorandum, or brief in support of
10-35 that reason.
10-36 (e) A person who submits a letter, memorandum, or brief to
10-37 the attorney general under Subsection (d) shall send a copy of that
10-38 letter, memorandum, or brief to the person who requested the
10-39 information from the governmental body. If the letter, memorandum,
10-40 or brief submitted to the attorney general contains the substance
10-41 of the information requested, the copy of the letter, memorandum,
10-42 or brief may be a redacted copy.
10-43 (f) This subsection applies only to a governmental body that
10-44 does not make a reasonable attempt to provide notice under
10-45 Subsection (d) to a person whose privacy or property interests are
10-46 involved under Subsection (a). If the governmental body
10-47 subsequently releases the requested information in compliance with
10-48 a decision of the attorney general that the information may not be
10-49 withheld and if the person whose privacy or property interests are
10-50 involved brings a suit for damages against the governmental body
10-51 for releasing the requested information, the governmental body may
10-52 not use or attempt to use the decision of the attorney general as a
10-53 defense to the suit or in mitigation of damages. To the extent of
10-54 any conflict between this subsection and another law, this
10-55 subsection controls.
10-56 SECTION 23. Subsection (a), Section 552.306, Government
10-57 Code, is amended to read as follows:
10-58 (a) Except as provided by Section 552.011, the [The]
10-59 attorney general shall promptly render a decision requested under
10-60 this subchapter, consistent with the standards of due process,
10-61 determining whether the requested information is within one of the
10-62 exceptions of Subchapter C. The attorney general shall render the
10-63 decision not later than the 45th [60th] working day after the date
10-64 the attorney general received the request for a decision. If the
10-65 attorney general is unable to issue the decision within the 45-day
10-66 [60-day] period, the attorney general may extend the period for
10-67 issuing the decision by an additional 10 [20] working days by
10-68 informing the governmental body and the requestor, during the
10-69 original 45-day [60-day] period, of the reason for the delay.
11-1 SECTION 24. Section 552.308, Government Code, is amended to
11-2 read as follows:
11-3 Sec. 552.308. TIMELINESS OF ACTION BY UNITED STATES OR
11-4 INTERAGENCY MAIL. (a) When this subchapter requires a request,
11-5 notice, or other document to be submitted or otherwise given to a
11-6 person within a specified period, the requirement is met in a
11-7 timely fashion if the document is sent to the person by first class
11-8 United States mail properly addressed with postage prepaid and:
11-9 (1) it bears a post office cancellation mark
11-10 indicating a time within that [the] period; or
11-11 (2) the person required to submit or otherwise give
11-12 the document furnishes satisfactory proof that it was deposited in
11-13 the mail within that [the] period.
11-14 (b) When this subchapter requires an agency of this state to
11-15 submit or otherwise give to the attorney general within a specified
11-16 period a request, notice, or other writing, the requirement is met
11-17 in a timely fashion if:
11-18 (1) the request, notice, or other writing is sent to
11-19 the attorney general by interagency mail; and
11-20 (2) the agency provides evidence sufficient to
11-21 establish that the request, notice, or other writing was deposited
11-22 in the interagency mail within that period.
11-23 SECTION 25. Section 552.321, Government Code, is amended to
11-24 read as follows:
11-25 Sec. 552.321. SUIT FOR WRIT OF MANDAMUS. (a) A requestor
11-26 or the attorney general may file suit for a writ of mandamus
11-27 compelling a governmental body to make information available for
11-28 public inspection if the governmental body refuses to request an
11-29 attorney general's decision as provided by Subchapter G or refuses
11-30 to supply public information or information that the attorney
11-31 general has determined is public information that is not excepted
11-32 from disclosure under Subchapter C.
11-33 (b) A suit filed by a requestor under this section must be
11-34 filed in a district court for the county in which the main offices
11-35 of the governmental body are located. A suit filed by the attorney
11-36 general under this section must be filed in a district court of
11-37 Travis County.
11-38 SECTION 26. Subchapter H, Chapter 552, Government Code, is
11-39 amended by adding Section 552.3215 to read as follows:
11-40 Sec. 552.3215. DECLARATORY JUDGMENT OR INJUNCTIVE RELIEF.
11-41 (a) In this section:
11-42 (1) "Complainant" means a person who claims to be the
11-43 victim of a violation of this chapter.
11-44 (2) "State agency" means a board, commission,
11-45 department, office, or other agency that:
11-46 (A) is in the executive branch of state
11-47 government;
11-48 (B) was created by the constitution or a statute
11-49 of this state; and
11-50 (C) has statewide jurisdiction.
11-51 (b) An action for a declaratory judgment or injunctive
11-52 relief may be brought in accordance with this section against a
11-53 governmental body that violates this chapter.
11-54 (c) The district or county attorney for the county in which
11-55 a governmental body other than a state agency is located or the
11-56 attorney general may bring the action in the name of the state only
11-57 in a district court for that county. If the governmental body
11-58 extends into more than one county, the action may be brought only
11-59 in the county in which the administrative offices of the
11-60 governmental body are located if brought by the district or county
11-61 attorney and only in a district court of Travis County if brought
11-62 by the attorney general.
11-63 (d) If the governmental body is a state agency, the Travis
11-64 County district attorney or the attorney general may bring the
11-65 action in the name of the state only in a district court of Travis
11-66 County.
11-67 (e) A complainant may file a complaint alleging a violation
11-68 of this chapter. The complaint must be filed with the district or
11-69 county attorney of the county in which the governmental body is
12-1 located. If the governmental body extends into more than one
12-2 county, the complaint must be filed with the district or county
12-3 attorney of the county in which the administrative offices of the
12-4 governmental body are located. If the governmental body is a state
12-5 agency, the complaint may be filed with the Travis County district
12-6 attorney. To be valid, a complaint must:
12-7 (1) be in writing and signed by the complainant;
12-8 (2) state the name of the governmental body that
12-9 allegedly committed the violation, as accurately as can be done by
12-10 the complainant;
12-11 (3) state the time and place of the alleged commission
12-12 of the violation, as definitely as can be done by the complainant;
12-13 and
12-14 (4) in general terms, describe the violation.
12-15 (f) A district or county attorney with whom the complaint is
12-16 filed shall indicate on the face of the written complaint the date
12-17 the complaint is filed.
12-18 (g) Before the 31st day after the date a complaint is filed
12-19 under Subsection (e), the district or county attorney shall:
12-20 (1) determine whether:
12-21 (A) the violation alleged in the complaint was
12-22 committed; and
12-23 (B) an action will be brought against the
12-24 governmental body under this section; and
12-25 (2) notify the complainant in writing of those
12-26 determinations.
12-27 (h) If the district or county attorney determines not to
12-28 bring an action under this section, the district or county attorney
12-29 shall:
12-30 (1) include a statement of the basis for that
12-31 determination; and
12-32 (2) return the complaint to the complainant.
12-33 (i) If the district or county attorney determines not to
12-34 bring an action under this section, the complainant is entitled to
12-35 file the complaint with the attorney general before the 31st day
12-36 after the date the complaint is returned to the complainant. On
12-37 receipt of the written complaint, the attorney general shall comply
12-38 with each requirement in Subsections (g) and (h) in the time
12-39 required by those subsections. If the attorney general decides to
12-40 bring an action under this section against a governmental body
12-41 located only in one county in response to the complaint, the
12-42 attorney general must comply with Subsection (c).
12-43 (j) An action may be brought under this section only if the
12-44 official proposing to bring the action notifies the governmental
12-45 body in writing of the official's determination that the alleged
12-46 violation was committed and the governmental body does not cure the
12-47 violation before the fourth day after the date the governmental
12-48 body receives the notice.
12-49 (k) An action authorized by this section is in addition to
12-50 any other civil, administrative, or criminal action provided by
12-51 this chapter or another law.
12-52 SECTION 27. Section 552.323, Government Code, is amended to
12-53 read as follows:
12-54 Sec. 552.323. ASSESSMENT OF COSTS OF LITIGATION AND
12-55 REASONABLE ATTORNEY FEES. (a) In an action brought under Section
12-56 552.321 or 552.3215 [Section 552.353(b)(3)], the court shall [may]
12-57 assess costs of litigation and reasonable attorney fees incurred by
12-58 a plaintiff [or defendant] who substantially prevails, except that
12-59 the court may not assess those costs and fees:
12-60 (1) to the extent that the court has already ordered
12-61 the costs and fees to be paid under Chapter 9, Civil Practice and
12-62 Remedies Code; or
12-63 (2) against a governmental body if the court finds
12-64 that the governmental body acted in reasonable reliance on:
12-65 (A) a judgment or an order of a court applicable
12-66 to the governmental body;
12-67 (B) the published opinion of an appellate court;
12-68 or
12-69 (C) a written decision of the attorney general,
13-1 including a decision issued under Subchapter G or an opinion issued
13-2 under Section 402.042.
13-3 (b) In an action brought under Section 552.353(b)(3), the
13-4 court may assess costs of litigation and reasonable attorney's fees
13-5 incurred by a plaintiff or defendant who substantially prevails.
13-6 In exercising its discretion under this subsection [section], the
13-7 court shall consider whether the conduct of the officer for public
13-8 information of the governmental body had a reasonable basis in law
13-9 and whether the litigation was brought in good faith.
13-10 SECTION 28. Section 552.324, Government Code, is amended to
13-11 read as follows:
13-12 Sec. 552.324. SUIT BY GOVERNMENTAL BODY. (a) The only suit
13-13 a governmental body or officer for public information may file
13-14 seeking to withhold information from a requestor is a suit that is
13-15 filed in accordance with Sections 552.325 and 552.353 and that
13-16 challenges a decision by the attorney general issued under
13-17 Subchapter G.
13-18 (b) The governmental body must bring the suit not later than
13-19 the 30th calendar day after the date the governmental body receives
13-20 the decision of the attorney general being challenged. If the
13-21 governmental body does not bring suit within that period, the
13-22 governmental body shall comply with the decision of the attorney
13-23 general. This subsection does not affect the earlier deadline for
13-24 purposes of Section 552.353(b)(3) for a suit brought by an officer
13-25 for public information.
13-26 SECTION 29. Subchapter H, Chapter 552, Government Code, is
13-27 amended by adding Section 552.326 to read as follows:
13-28 Sec. 552.326. FAILURE TO RAISE EXCEPTIONS BEFORE ATTORNEY
13-29 GENERAL. (a) Except as provided by Subsection (b), the only
13-30 exceptions to required disclosure within Subchapter C that a
13-31 governmental body may raise in a suit filed under this chapter are
13-32 exceptions that the governmental body properly raised before the
13-33 attorney general in connection with its request for a decision
13-34 regarding the matter under Subchapter G.
13-35 (b) Subsection (a) does not prohibit a governmental body
13-36 from raising an exception:
13-37 (1) based on a requirement of federal law; or
13-38 (2) involving the property or privacy interests of
13-39 another person.
13-40 SECTION 30. Subchapter D, Chapter 551, Government Code, is
13-41 amended by adding Section 551.086 to read as follows:
13-42 Sec. 551.086. DELIBERATION REGARDING ECONOMIC DEVELOPMENT
13-43 NEGOTIATIONS; CLOSED MEETING. This chapter does not require a
13-44 governmental body to conduct an open meeting:
13-45 (1) to discuss or deliberate regarding commercial or
13-46 financial information that the governmental body has received from
13-47 a business prospect that the governmental body seeks to have
13-48 locate, stay, or expand in or near the territory of the
13-49 governmental body and with which the governmental body is
13-50 conducting economic development negotiations; or
13-51 (2) to deliberate the offer of a financial or other
13-52 incentive to a business prospect described by Subdivision (1).
13-53 SECTION 31. Section 325.011, Government Code, is amended to
13-54 read as follows:
13-55 Sec. 325.011. CRITERIA FOR REVIEW. The commission and its
13-56 staff shall consider the following criteria in determining whether
13-57 a public need exists for the continuation of a state agency or its
13-58 advisory committees or for the performance of the functions of the
13-59 agency or its advisory committees:
13-60 (1) the efficiency with which the agency or advisory
13-61 committee operates;
13-62 (2) an identification of the objectives intended for
13-63 the agency or advisory committee and the problem or need that the
13-64 agency or advisory committee was intended to address, the extent to
13-65 which the objectives have been achieved, and any activities of the
13-66 agency in addition to those granted by statute and the authority
13-67 for these activities;
13-68 (3) an assessment of less restrictive or alternative
13-69 methods of performing any regulation that the agency performs that
14-1 could adequately protect the public;
14-2 (4) the extent to which the advisory committee is
14-3 needed and is used;
14-4 (5) the extent to which the jurisdiction of the agency
14-5 and the programs administered by the agency overlap or duplicate
14-6 those of other agencies and the extent to which the programs
14-7 administered by the agency can be consolidated with the programs of
14-8 other state agencies;
14-9 (6) whether the agency has recommended to the
14-10 legislature statutory changes calculated to be of benefit to the
14-11 public rather than to an occupation, business, or institution that
14-12 the agency regulates;
14-13 (7) the promptness and effectiveness with which the
14-14 agency disposes of complaints concerning persons affected by the
14-15 agency;
14-16 (8) the extent to which the agency has encouraged
14-17 participation by the public in making its rules and decisions as
14-18 opposed to participation solely by those it regulates and the
14-19 extent to which the public participation has resulted in rules
14-20 compatible with the objectives of the agency;
14-21 (9) the extent to which the agency has complied with
14-22 applicable requirements of an agency of the United States or of
14-23 this state regarding equality of employment opportunity and the
14-24 rights and privacy of individuals;
14-25 (10) the extent to which changes are necessary in the
14-26 enabling statutes of the agency so that the agency can adequately
14-27 comply with the criteria listed in this section;
14-28 (11) the extent to which the agency issues and
14-29 enforces rules relating to potential conflicts of interest of its
14-30 employees;
14-31 (12) the extent to which the agency complies with
14-32 Chapters [Chapter 552, and with Chapter] 551 and 552 and follows
14-33 records management practices that enable the agency to respond
14-34 efficiently to requests for public information; and
14-35 (13) the effect of federal intervention or loss of
14-36 federal funds if the agency is abolished.
14-37 SECTION 32. Subsection (d), Section 2, Chapter 428, Acts of
14-38 the 73rd Legislature, Regular Session, 1993, is amended to read as
14-39 follows:
14-40 (d) The commission shall revise and update the report
14-41 biennially and shall provide a copy of the updated report to each
14-42 state agency not later than March 1 of each even-numbered year.
14-43 SECTION 33. (a) The General Services Commission shall adopt
14-44 the rules required by Section 552.205, Government Code, as added by
14-45 this Act, in sufficient time so that governmental bodies may print
14-46 the sign required by that section and begin displaying the sign on
14-47 or before January 3, 2000.
14-48 (b) A governmental body is not required under Section
14-49 552.205, Government Code, as added by this Act, to display the
14-50 required sign before January 3, 2000.
14-51 SECTION 34. Subsections (d) and (e), Section 552.305,
14-52 Government Code, as added by this Act, apply only in connection
14-53 with a request from a governmental body for an attorney general
14-54 decision under Section 552.301 of that code that is made on or
14-55 after the effective date of this Act. A request for an attorney
14-56 general decision under Section 552.301, Government Code, that is
14-57 made before that date is covered by the law in effect on the date
14-58 the request was made, and the former law is continued in effect for
14-59 that purpose.
14-60 SECTION 35. This Act takes effect September 1, 1999.
14-61 * * * * *