By Nelson, et al.                                      S.B. No. 866
         77R7419 JRD-D                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the creation of a Texas Privacy Act to address the ways
 1-3     in which the information practices of state and local governmental
 1-4     entities affect personal privacy.
 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-6           SECTION 1. Subtitle A, Title 5, Government Code, is amended
 1-7     by adding Chapter 559 to read as follows:
 1-8                       CHAPTER 559.  TEXAS PRIVACY ACT
 1-9                      SUBCHAPTER A.  GENERAL PROVISIONS
1-10           Sec. 559.001.  SHORT TITLE.  This chapter may be cited as the
1-11     Texas Privacy Act.
1-12           Sec. 559.002.  LEGISLATIVE FINDINGS; GENERAL PRIVACY
1-13     PRINCIPLES. (a) The legislature finds that:
1-14                 (1)  an increasing number of individuals in this state
1-15     are concerned that:
1-16                       (A)  personal information held by government may
1-17     be used inappropriately;
1-18                       (B)  unauthorized persons may have access to that
1-19     information; and
1-20                       (C)  some of the information may be inaccurate,
1-21     incomplete, or unnecessary for the effective functioning of
1-22     government; and
1-23                 (2)  in response to the findings stated by Subdivision
1-24     (1), each state and local governmental entity in this state must be
 2-1     committed to strengthening privacy protections for personal
 2-2     information held by government in a manner consistent with the
 2-3     public's right to complete information about the affairs of
 2-4     government and the official acts of public officials and employees.
 2-5           (b)  The legislature also finds that because inadvertent
 2-6     release, careless storage, or improper disposal of information
 2-7     could result in embarassment or other harm to individuals, each
 2-8     state and local governmental entity:
 2-9                 (1)  has an obligation to protect personal information
2-10     in the manner required by law; and
2-11                 (2)  must exercise particular care in protecting
2-12     records containing sensitive and private personal information about
2-13     health or financial matters and in protecting personal identifiers,
2-14     such as a social security number.
2-15           (c)  It is the policy of this state that an individual has a
2-16     right to know how personal information about the individual is
2-17     handled by government and the extent to which the information may
2-18     be disclosed or must be kept confidential under law.
2-19           Sec. 559.003.  DEFINITIONS.  In this chapter:
2-20                 (1)  "Personal information" means information about an
2-21     individual such as:
2-22                       (A)  the individual's home address, home
2-23     telephone number, social security number, date of birth, physical
2-24     characteristics, and similar information about the individual;
2-25                       (B)  information about an individual's marital
2-26     status or history, whether the individual has family members, and
2-27     information about the individual's family members; and
 3-1                       (C)  personally identifiable information about
 3-2     the individual's health or health history, finances or financial
 3-3     history, and consumer history.
 3-4                 (2)  "Governmental entity" does not include a court
 3-5     other than a commissioners court.
 3-6           Sec. 559.004.  CONSTRUCTION WITH OTHER LAW.  This chapter
 3-7     does not affect:
 3-8                 (1)  the ability of a state or local governmental
 3-9     entity  to undertake a lawful investigation or to protect persons,
3-10     property, or the environment in the manner authorized by law; or
3-11                 (2)  the duty of a state or local governmental entity
3-12     to comply with applicable law.
3-13              (Sections 559.005-559.050 reserved for expansion
3-14                 SUBCHAPTER B.  SPECIFIC PRIVACY PROTECTIONS
3-15           Sec. 559.051.  DISCLOSURE OF CERTAIN PERSONAL INFORMATION;
3-16     COMPELLING INTEREST OR INTENSE PUBLIC CONCERN REQUIREMENT. (a)
3-17     This section applies only to the disclosure by government of
3-18     information that reveals an individual's:
3-19                 (1)  social security number;
3-20                 (2)  bank account number, credit card account number,
3-21     or other financial account number; or
3-22                 (3)  computer password or computer network location or
3-23     identity.
3-24           (b)  A state or local governmental entity may not disclose
3-25     information described by Subsection (a)  under Chapter 552 or other
3-26     law unless the attorney general authorizes the disclosure after
3-27     determining that:
 4-1                 (1)  there is a compelling governmental interest in
 4-2     disclosing the information that cannot be effectively accomplished
 4-3     without the disclosure; or
 4-4                 (2)  due to extraordinary circumstances, the
 4-5     information is especially relevant to a matter of intense public
 4-6     concern.
 4-7           (c)  The attorney general may adopt rules to implement this
 4-8     section, including rules that describe appropriate and clearly
 4-9     defined circumstances under which a category of information
4-10     described by Subsection (a)  is presumed to satisfy a requirement
4-11     of Subsection (b) and therefore may be disclosed without the
4-12     necessity of obtaining specific authorization for the disclosure
4-13     from the attorney general.  A rule of the attorney general that
4-14     describes circumstances under which information presumptively may
4-15     be disclosed may limit disclosure to specific state, local, or
4-16     federal authorities or may allow the information to be generally
4-17     disclosed under Chapter 552, as appropriate.
4-18           (d)  The attorney general shall develop procedures under
4-19     which the office of the attorney general will expedite a decision
4-20     whether to authorize disclosure of information described by
4-21     Subsection (a) when expedited consideration is warranted under the
4-22     circumstances.
4-23           (e)  A decision of the attorney general under this section
4-24     may be challenged in court in the same manner that a decision of
4-25     the attorney general may be challenged under Subchapter G, Chapter
4-26     552.
4-27           (f)  If information described by Subsection (a)  is requested
 5-1     under Chapter 552, Section 552.325 applies in relation to the
 5-2     individual who is the subject of the information in the same manner
 5-3     as if the individual were a requestor of the information, except
 5-4     that the attorney general shall notify the individual under Section
 5-5     552.325(c) if the attorney general proposes to agree to the release
 5-6     of all or part of the information.
 5-7           Sec. 559.052.  COLLECTION OF PERSONAL INFORMATION.  A state
 5-8     or local governmental entity shall establish procedures to ensure
 5-9     that the governmental entity collects personal information only to
5-10     the extent reasonably necessary to:
5-11                 (1)  implement a program;
5-12                 (2)  authenticate an individual's identity when
5-13     necessary;
5-14                 (3)  ensure security; or
5-15                 (4)  accomplish another legitimate governmental
5-16     purpose.
5-17           Sec. 559.053.  RECORDS RETENTION SCHEDULES.  (a)  In adopting
5-18     or amending its records retention schedule, a state or local
5-19     governmental entity shall schedule the retention of personal
5-20     information only for the period necessary to accomplish the purpose
5-21     for which the information was collected or, if applicable, for the
5-22     minimum period specifically prescribed by statute.
5-23           (b)  Subsection (a) does not apply to the retention of
5-24     personal information that has demonstrable historical or archival
5-25     value.
5-26           Sec. 559.054.  GENERAL PRIVACY POLICIES. (a)  A state or
5-27     local governmental entity shall develop a privacy policy that
 6-1     completely describes in plainly written language:
 6-2                 (1)  the reasons that the governmental entity requires
 6-3     or collects each category of personal information about individuals
 6-4     that the entity requires or collects;
 6-5                 (2)  the procedures used to require or collect the
 6-6     information;
 6-7                 (3)  the persons to whom the information may be
 6-8     disclosed;
 6-9                 (4)  the manner in which the information may be
6-10     disclosed; and
6-11                 (5)  any current arrangement under which the
6-12     governmental entity sells personal information about individuals or
6-13     discloses the information under a contract or agreement or in bulk.
6-14           (b)  The state or local governmental entity shall promptly
6-15     amend the privacy policy whenever information in the policy becomes
6-16     incorrect or incomplete.
6-17           (c)  The state or local governmental entity shall prominently
6-18     post its current privacy policy:
6-19                 (1)  through a prominent link on the main Internet site
6-20     maintained by or for the governmental entity; and
6-21                 (2)  next to the sign that the governmental entity
6-22     posts under Section 552.205.
6-23           Sec. 559.055.  GOVERNMENT INTERNET SITES: PRIVACY POLICY. (a)
6-24     The Department of Information Resources shall adopt rules
6-25     prescribing minimum privacy standards with which an Internet site
6-26     or portal maintained by or for a state or local governmental entity
6-27     must comply.  The rules must be designed to limit the collection of
 7-1     personal information about users of the government Internet site or
 7-2     portal to information:
 7-3                 (1)  that the state or local governmental entity needs
 7-4     in order to accomplish a legitimate government purpose;
 7-5                 (2)  that the user of the site or portal knowingly and
 7-6     intentionally transmits to the state or local governmental entity;
 7-7     or
 7-8                 (3)  regarding the collection of which the user of the
 7-9     site or portal has actively given informed consent.
7-10           (b)  In adopting its rules under this section, the Department
7-11     of Information Resources shall consider policies adopted by other
7-12     states and the federal government in this regard.
7-13           (c)  A state or local governmental entity that maintains an
7-14     Internet site or portal or for which an Internet site or portal is
7-15     maintained shall adopt a privacy policy regarding information
7-16     collected through the site or portal and provide a prominent link
7-17     to the policy for users of the site or portal.  The policy must be
7-18     consistent with the rules adopted by the Department of Information
7-19     Resources under this section and must be included as a prominent
7-20     separate element of the general privacy policy that the entity is
7-21     required to develop and to which it must provide an Internet link
7-22     under Section 559.054.
7-23           Sec. 559.056.  STATE AUDITOR. (a)  The state auditor shall
7-24     establish auditing guidelines to ensure that state and local
7-25     governmental entities that the state auditor has authority to audit
7-26     under other law:
7-27                 (1)  do not routinely collect or retain more personal
 8-1     information than an entity needs to accomplish a legitimate
 8-2     governmental purpose of the entity; and
 8-3                 (2)  have established an information management system
 8-4     that protects the privacy and security of information in accordance
 8-5     with applicable state and federal law.
 8-6           (b)  During an appropriate type of audit, the state auditor
 8-7     shall audit a state or local governmental entity for compliance
 8-8     with the guidelines established under Subsection (a).
 8-9              (Sections 559.057-559.100 reserved for expansion
8-10                    SUBCHAPTER C.  GUIDELINES AND STUDIES
8-11           Sec. 559.101.  ATTORNEY GENERAL GUIDELINES FOR REVIEWING
8-12     PRIVACY ISSUES. (a)  The attorney general shall establish
8-13     guidelines for state and local governmental entities to follow when
8-14     considering privacy issues that arise in connection with requests
8-15     for public information.  The guidelines shall address procedural
8-16     safeguards, legal issues, and other issues that in the opinion of
8-17     the attorney general would help state and local governmental
8-18     entities comply with applicable law and recommended information
8-19     practices when handling personal information.
8-20           (b)  The guidelines do not create exceptions from required
8-21     disclosure under Chapter 552.
8-22           Sec. 559.102.  OPEN RECORDS STEERING COMMITTEE; RECORDS
8-23     MANAGEMENT INTERAGENCY COORDINATING COUNCIL. (a)  The open records
8-24     steering committee established under Section 552.009 shall
8-25     periodically study and determine the implications for the personal
8-26     privacy of individuals of putting information held by government on
8-27     the Internet, and shall include its findings and recommendations in
 9-1     reports the committee makes under Section 552.009.
 9-2           (b)  The records management interagency coordinating council
 9-3     established under Section 441.203 shall provide guidance and policy
 9-4     direction to state and local governmental entities in appropriately
 9-5     incorporating developments in electronic management of information
 9-6     into their information management systems in ways that protect
 9-7     personal privacy and promote efficient public access to public
 9-8     information that is not excepted from required public disclosure.
 9-9           (c)  The records management interagency coordinating council
9-10     shall study and assess efficient and effective ways in which:
9-11                 (1)  an individual could request and receive from a
9-12     state or local governmental entity information about the individual
9-13     that:
9-14                       (A)  the entity possesses or to which it has a
9-15     right of access; and
9-16                       (B)  the individual is entitled to receive under
9-17     Section 552.021 or 552.023;
9-18                 (2)  the individual could challenge the accuracy of the
9-19     information if the individual considers it to be incorrect; and
9-20                 (3)  the governmental entity can correct information
9-21     that is incorrect.
9-22           (d)  A state or local governmental entity on request shall
9-23     assist the records management interagency coordinating council in
9-24     performing its studies under Subsection (c) by responding to the
9-25     council's requests for information or opinion.  The council shall
9-26     periodically report the results of its studies under Subsection (c)
9-27     and any related recommendations to the governor and the
 10-1    legislature.
 10-2          Sec. 559.103.  ATTORNEY GENERAL STUDIES. The attorney general
 10-3    shall study and periodically report recommendations to the governor
 10-4    and the legislature regarding:
 10-5                (1)  ways in which laws could be enacted that would
 10-6    balance the need for open government with the ability of
 10-7    individuals to elect not to have personal information about the
 10-8    individual released, especially when the release of that
 10-9    information poses a significant danger to an individual; and
10-10                (2)  circumstances under which, with respect to
10-11    personal information that a state or local governmental entity
10-12    possesses only because the individual who is the subject of the
10-13    information applied for or holds a license, permit, certificate, or
10-14    similar form of permission issued by the governmental entity that
10-15    the individual must obtain to engage in an activity, the
10-16    governmental entity should be allowed to release the personal
10-17    information to the public only with the prior informed consent of
10-18    the individual.
10-19          Sec. 559.104.  COMPTROLLER STUDY: MODIFYING INFORMATION
10-20    MANAGEMENT SYSTEMS' USE OF PERSONAL IDENTIFIERS. (a)  The
10-21    comptroller shall study and make recommendations to the governor,
10-22    the legislature, and affected state governmental entities regarding
10-23    efficient and effective ways in which state governmental entities
10-24    could modify their information management systems so that personal
10-25    identifiers, such as social security numbers, are not used to track
10-26    individuals in a manner contrary to commonly held privacy
10-27    expectations.  In making its recommendations under this section,
 11-1    the comptroller shall include an estimate of the cost of modifying
 11-2    an information management system in accordance with a
 11-3    recommendation.
 11-4          (b)  The Department of Information Resources shall assist the
 11-5    comptroller in making the study.  Other state governmental entities
 11-6    shall participate in the study at the invitation of the
 11-7    comptroller.
 11-8          SECTION 2. (a)  Each state and local governmental entity
 11-9    shall examine its records retention schedule and amend the schedule
11-10    so that it complies with Section 559.053, Government Code, as added
11-11    by this Act.
11-12          (b)  The comptroller shall make initial recommendations to
11-13    the governor, the legislature, and any affected state governmental
11-14    entities under Section 559.104, Government Code, as added by this
11-15    Act, not later than November 1, 2002.
11-16          (c)  The records management interagency coordinating council
11-17    shall make initial recommendations to the governor and the
11-18    legislature under Section 559.102(d), Government Code, as added by
11-19    this Act, not later than November 1, 2002.
11-20          SECTION 3.  This Act takes effect immediately if it receives
11-21    a vote of two-thirds of all the members elected to each house, as
11-22    provided by Section 39, Article III, Texas Constitution.  If this
11-23    Act does not receive the vote necessary for immediate effect, this
11-24    Act takes effect September 1, 2001.