84R6002 BEF-F

By: Hunter H.B. No. 1764

A BILL TO BE ENTITLED

AN ACT

relating to the definition of, custody of, and access to public information; providing a criminal penalty.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 552.002(a), Government Code, is amended to read as follows:

(a) In this chapter, "public information" means:

(1) a state record;

(2) a local government record; or

(3) information that is written, produced, collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business:

(A) [(1)] by a governmental body;

(B) [(2)] for a governmental body and the governmental body:

(i) [(A)] owns the information;

(ii) [(B)] has a right of access to the information; or

(iii) [(C)] spends or contributes public money for the purpose of writing, producing, collecting, assembling, or maintaining the information; or

(C) [(3)] by an individual officer or employee of a governmental body [in the officer's or employee's official capacity and the information pertains to official business of the governmental body].

SECTION 2. Section 552.003, Government Code, is amended by amending Subdivision (1) and adding Subdivisions (1-a), (1-b), and (7) to read as follows:

(1) "Custodian" means a public officer or employee who:

(A) by law, ordinance, or administrative policy is in charge of an office that creates or receives a state record or local government record; or

(B) in the transaction of official business, creates or receives public information that the public officer or employee has not provided to the records management officer or the officer for public information of the governmental body.

(1-a) "Governmental body":

(A) means:

(i) a board, commission, department, committee, institution, agency, or office that is within or is created by the executive or legislative branch of state government and that is directed by one or more elected or appointed members;

(ii) a county commissioners court in the state;

(iii) a municipal governing body in the state;

(iv) a deliberative body that has rulemaking or quasi-judicial power and that is classified as a department, agency, or political subdivision of a county or municipality;

(v) a school district board of trustees;

(vi) a county board of school trustees;

(vii) a county board of education;

(viii) the governing board of a special district;

(ix) the governing body of a nonprofit corporation organized under Chapter 67, Water Code, that provides a water supply or wastewater service, or both, and is exempt from ad valorem taxation under Section 11.30, Tax Code;

(x) a local workforce development board created under Section 2308.253;

(xi) a nonprofit corporation that is eligible to receive funds under the federal community services block grant program and that is authorized by this state to serve a geographic area of the state; and

(xii) the part, section, or portion of an organization, corporation, commission, committee, institution, or agency that spends or that is supported in whole or in part by public funds; and

(B) does not include the judiciary.

(1-b) "Local government record" has the meaning assigned by Section 441.151.

(7) "State record" has the meaning assigned by Section 441.031.

SECTION 3. Section 552.203, Government Code, is amended to read as follows:

Sec. 552.203. GENERAL DUTIES OF OFFICER FOR PUBLIC INFORMATION. Each officer for public information, subject to penalties provided in this chapter, shall:

(1) make public information available for public inspection and copying;

(2) carefully protect public information from deterioration, alteration, mutilation, loss, or unlawful removal; [and]

(3) repair, renovate, or rebind public information as necessary to maintain it properly; and

(4) obtain information from a custodian who has access to public information being requested from the governmental body.

SECTION 4. Subchapter E, Chapter 552, Government Code, is amended by adding Section 552.233 to read as follows:

Sec. 552.233. OWNERSHIP OF PUBLIC INFORMATION. (a) A current or former officer or employee of a governmental body does not have, by virtue of the officer's or employee's position or former position, a personal or property right to public information the officer or employee created or received in the performance of the officer's or employee's duties.

(b) A current or former officer or employee with possession, custody, or control of public information shall surrender or return that public information to the governmental body on request or demand by the custodian or officer for public information of the governmental body.

(c) A requestor, custodian, or officer for public information may sue in district court for an injunction or mandamus to compel a current or former officer or employee of a governmental body with possession, custody, or control of public information to surrender or return the public information as required by Subsection (b).

(d) A governmental body, custodian, or officer for public information shall obtain possession, custody, or control of public information from a current or former officer or employee to the extent necessary to comply with the governmental body's obligations under this chapter to produce public information for inspection or copying. A governmental body, custodian, or officer for public information who fails to comply with this subsection may be included in a suit under Subsection (c).

SECTION 5. Section 552.321(a), Government Code, is amended to read as follows:

(a) A requestor or the attorney general may file suit for a writ of mandamus compelling a governmental body or its officer for public information to obtain and [to] make information available for public inspection if the governmental body or its officer for public information fails [refuses] to request an attorney general's decision as provided by Subchapter G, fails to promptly [or refuses to] supply public information, or fails to promptly supply information that the attorney general has determined is public information that is not excepted from disclosure under Subchapter C.

SECTION 6. The heading to Section 552.353, Government Code, is amended to read as follows:

Sec. 552.353. FAILURE OR REFUSAL OF OFFICER FOR PUBLIC INFORMATION OR CUSTODIAN TO PROVIDE ACCESS TO OR COPYING OF PUBLIC INFORMATION.

SECTION 7. Sections 552.353(a) and (b), Government Code, are amended to read as follows:

(a) An officer for public information, [or] the officer's agent, or the custodian of the records at issue commits an offense if, with criminal negligence, the officer, [or] the officer's agent, or the custodian fails or refuses to give access to, or to permit or provide copying of, public information to a requestor as provided by this chapter.

(b) It is an affirmative defense to prosecution under Subsection (a) that the officer for public information or the custodian reasonably believed that public access to the requested information was not required and that:

(1) the officer or custodian acted in reasonable reliance on a court order or a written interpretation of this chapter contained in an opinion of a court of record or of the attorney general issued under Subchapter G;

(2) the officer or custodian requested a decision from the attorney general in accordance with Subchapter G, and the decision is pending; or

(3) not later than the 10th calendar day after the date of receipt of a decision by the attorney general that the information is public, the officer, the custodian, or the governmental body for whom the defendant is the officer for public information filed a petition for a declaratory judgment against the attorney general in a Travis County district court seeking relief from compliance with the decision of the attorney general, as provided by Section 552.324, and the cause is pending.

SECTION 8. This Act takes effect September 1, 2015.