85R738 TJB-F

By: Taylor of Collin S.B. No. 456

A BILL TO BE ENTITLED

AN ACT

relating to the right of members of the legislature, the lieutenant governor, committees of the legislature, and legislative agencies to access certain governmental information for legislative purposes; creating a criminal offense.

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

SECTION 1. Subtitle A, Title 3, Government Code, is amended by adding Chapter 307 to read as follows:

CHAPTER 307. RIGHT OF ACCESS TO GOVERNMENTAL INFORMATION FOR

LEGISLATIVE PURPOSE

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 307.001. SHORT TITLE. This chapter may be cited as the Legislative Disclosure Act.

Sec. 307.002. DEFINITION OF GOVERNMENTAL INFORMATION; MEDIA CONTAINING GOVERNMENTAL INFORMATION. (a) In this chapter, "governmental information" means information that is written, produced, collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business:

(1) by a governmental body;

(2) for a governmental body and the governmental body:

(A) owns the information;

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

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

(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.

(b) Information is in connection with the transaction of official business if the information is created by, transmitted to, received by, or maintained by an officer or employee of the governmental body in the officer's or employee's official capacity, or a person or entity performing official business or a governmental function on behalf of a governmental body, and pertains to official business of the governmental body.

(c) The definition of "governmental information" provided by Subsection (a) applies to and includes any electronic communication created, transmitted, received, or maintained on any device if the communication is in connection with the transaction of official business.

(d) The media on which governmental information is recorded include:

(1) paper;

(2) film;

(3) a magnetic, optical, solid state, or other device that can store an electronic signal;

(4) tape;

(5) Mylar; and

(6) any physical material on which information may be recorded, including linen, silk, and vellum.

(e) The general forms in which the media containing governmental information exist include a book, paper, letter, document, e-mail, Internet posting, text message, instant message, other electronic communication, printout, photograph, film, tape, microfiche, microfilm, photostat, sound recording, map, and drawing and a voice, data, or video representation held in computer memory.

Sec. 307.003. DEFINITIONS. In this chapter:

(1) "Governmental body," "official business," and "public funds" have the meanings assigned by Section 552.003.

(2) "Legislative agency" means:

(A) the State Auditor's Office;

(B) the Legislative Budget Board;

(C) the Texas Legislative Council; or

(D) the Sunset Advisory Commission, including a public member of the commission.

Sec. 307.004. FINDINGS. The legislature finds that the ability of members of the legislature, the lieutenant governor, committees of the legislature, and legislative agencies to access, for legislative purposes, governmental information maintained by a governmental body, including confidential information, is consonant with the investigative authority delegated by the Texas Constitution to the legislature and is essential to the legislative deliberative process. Any impediment to legislative access to that information is contrary to the expectations placed by the constitution on the legislature and should be regarded as repugnant to the essential principles of liberty and free government.

Sec. 307.005. POLICY. It is the policy of this state that a member of the legislature, the lieutenant governor, a committee of the legislature, or a legislative agency is entitled to access for legislative purposes all governmental information maintained by any governmental body, including confidential information.

Sec. 307.006. CONSTRUCTION OF CHAPTER. This chapter shall be liberally construed in favor of granting a request for governmental information.

Sec. 307.007. APPLICABILITY OF OTHER LAW. (a) Chapter 552 does not apply to a request for governmental information made under this chapter.

(b) Notwithstanding any other provision of law, including Section 552.0038(i) or a similar provision that provides a manner by which to resolve a conflict between provisions of law, the provisions of this chapter prevail to the extent of any conflict with another provision of law.

Sec. 307.008. EFFECT OF CHAPTER. (a) This chapter does not affect:

(1) the right of a member of the legislature, the lieutenant governor, a committee of the legislature, or a legislative agency to obtain information under other law;

(2) the procedures under which the information is obtained under other law; or

(3) the use that may be made of the information obtained under other law.

(b) This chapter does not grant authority to withhold governmental information from a member of the legislature, the lieutenant governor, a committee of the legislature, or a legislative agency.

SUBCHAPTER B. RIGHT OF ACCESS TO INFORMATION FOR LEGISLATIVE

PURPOSE

Sec. 307.051. RIGHT OF ACCESS TO INFORMATION. (a) Except as provided by Subsection (c), each member of the legislature, the lieutenant governor, each committee of the legislature, and each public member of a legislative agency has a right of access, for legislative purposes, to governmental information of a governmental body.

(b) Except for a public member described by Subsection (a) and except as provided by Subsection (c), a legislative agency has a right of access, for legislative purposes, to governmental information of a governmental body other than another legislative agency.

(c) A member of the legislature, the lieutenant governor, a committee of the legislature, or a legislative agency is not entitled to access to governmental information from:

(1) a member of the legislature;

(2) the lieutenant governor;

(3) a committee of the legislature;

(4) a public member of a legislative agency; or

(5) a legislative agency if the information relates to:

(A) a request by a member of the legislature, the lieutenant governor, a committee of the legislature, or a public member of a legislative agency for information, advice, or opinions from an officer or employee of the agency;

(B) information, advice, or opinions given privately by an officer or employee of the agency to a member of the legislature, the lieutenant governor, a committee of the legislature, or a public member of a legislative agency; or

(C) information of a member of the legislature, the lieutenant governor, a committee of the legislature, or a public member of a legislative agency held by the agency.

Sec. 307.052. PROVISION OF INFORMATION. (a) Following a request for access to information authorized by Section 307.051, a governmental body shall provide the requested information, including confidential information or information otherwise excepted from disclosure, to the requestor.

(b) The requestor must state that the request is made for a legislative purpose. The requestor is not required to specify the legislative purpose for which the information is requested.

(c) A governmental body must provide the requested information to the requestor promptly, but not later than:

(1) the fifth business day, or as soon as practicable as agreed to by the governmental body and the requestor, following the date the request is received if the request is received when the legislature is convened in regular or special session; or

(2) the 10th business day following the date the request is received if the request is received when the legislature is not convened in regular or special session.

(d) A governmental body must provide the requested information in the manner requested by the requestor.

(e) A governmental body must provide the requested information without charge, except that a requestor is entitled to only one paper copy of the information without charge.

Sec. 307.053. GOVERNMENTAL BODY GUIDANCE. On request of the recipient of confidential information from a governmental body under this subchapter, the governmental body shall provide guidance to the recipient regarding how the information may be generalized or modified so that the information as generalized or modified:

(1) is no longer confidential and subject to a confidentiality agreement; and

(2) may be disclosed for a legislative purpose outside the office of the recipient.

Sec. 307.054. CONFIDENTIALITY NOT WAIVED. A governmental body, by providing governmental information under this subchapter that is confidential or otherwise excepted from disclosure under law, does not waive or affect the confidentiality of the information for purposes of state or federal law or waive the right of the governmental body to assert exceptions to disclosure of the information in the future.

Sec. 307.055. CONFIDENTIALITY AGREEMENT. (a) A governmental body may require a requestor of information under this subchapter or a designated employee of the requestor who will view or handle information that is received under this subchapter and that is confidential or otherwise excepted from disclosure under law to sign a confidentiality agreement that covers the information.

(b) Except for a requirement prescribed by federal law, a confidentiality agreement may only require that:

(1) the information not be disclosed outside the office of the requestor unless the information is generalized or modified in accordance with the guidance provided by the governmental body under Section 307.053;

(2) the information be labeled as confidential;

(3) the information be kept securely; or

(4) the number of copies made of the information or the notes taken from the information that implicate the confidential nature of the information be controlled, with all copies or notes that are not destroyed or returned remaining confidential and subject to the confidentiality agreement.

(c) A governmental body must submit a confidentiality agreement authorized by this section to the requestor not later than the third business day following the date the request is received or the governmental body waives the right to require the requestor to sign the agreement.

(d) A confidentiality agreement signed under Subsection (a) is void to the extent that the agreement covers information that is finally determined under Section 307.056 to not be confidential or otherwise excepted from disclosure under law.

Sec. 307.056. DECISION BY ATTORNEY GENERAL REGARDING CONFIDENTIALITY OR DISCLOSURE. (a) A requestor of information under this subchapter who is required to sign a confidentiality agreement under Section 307.055 may seek a decision from the attorney general about whether the information covered by the agreement is confidential or otherwise excepted from disclosure under law.

(b) The attorney general by rule shall establish procedures and deadlines for:

(1) receiving information necessary to determine whether the information covered by a confidentiality agreement is confidential or otherwise excepted from disclosure under law; and

(2) receiving briefs from the requestor, a governmental body providing information under this subchapter, and any other interested person.

(c) The attorney general shall render the decision not later than the 45th business day after the date the attorney general receives the request for a decision. If the attorney general is unable to issue the decision within the 45-day period, the attorney general may during that 45-day period extend the period for issuing the decision by an additional 10 business days by informing the requestor, the governmental body, and any interested person who submitted necessary information or a brief to the attorney general of the reason for the delay.

(d) The attorney general shall issue a written decision and provide a copy of the decision to the requestor, the governmental body, and any interested person who submitted necessary information or a brief to the attorney general under this section.

(e) The requestor or the governmental body may appeal a decision of the attorney general under Subsection (d) to a district court of Travis County. A person may appeal a decision of the attorney general under Subsection (d) to a district court of Travis County if the person claims a proprietary interest in the information affected by the decision or a privacy interest in the information that a confidentiality law or judicial decision is designed to protect.

SUBCHAPTER C. ENFORCEMENT

Sec. 307.101. SUIT FOR WRIT OF MANDAMUS. (a) A requestor of information under this chapter, or the attorney general on request of the requestor, may file suit for a writ of mandamus compelling a governmental body to provide information requested under this chapter to which the requestor has a right of access.

(b) A suit filed by a requestor under this section to compel the provision of information must be filed in a district court of the county in which the main offices of the governmental body are located. A suit filed by the attorney general under this section must be filed in a district court of Travis County.

Sec. 307.102. DISTRIBUTION OR MISUSE OF CONFIDENTIAL INFORMATION. (a) A person who is a recipient of confidential information under Subchapter B commits an offense if the person knowingly:

(1) uses the confidential information for a purpose other than the purpose for which the information was received or for a purpose unrelated to the law that permitted the person to obtain access to the information, including solicitation of political contributions or solicitation of clients;

(2) permits inspection of the confidential information by a person who is not authorized to inspect the information; or

(3) discloses the confidential information to a person who is not authorized to receive the information.

(b) An offense under this section is a misdemeanor punishable by:

(1) a fine of not more than $1,000;

(2) confinement in the county jail for not more than six months; or

(3) both the fine and confinement.

(c) A violation under this section constitutes official misconduct.

(d) It is a defense to prosecution for an offense under this section that the information the actor used, permitted inspection of, or disclosed was generalized or modified in accordance with the guidance provided by a governmental body under Section 307.053.

SECTION 2. Section 58.0072(e), Family Code, is amended to read as follows:

(e) The Texas Juvenile Justice Department shall grant access to juvenile justice information for legislative purposes under Chapter 307 [Section 552.008], Government Code.

SECTION 3. Section 321.0138(g), Government Code, is amended to read as follows:

(g) This section does not affect any other law relating to release of information for legislative purposes, including Chapter 307 [Section 552.008, Government Code].

SECTION 4. Section 552.012(d), Government Code, is amended to read as follows:

(d) The attorney general shall ensure that the training is made available. The office of the attorney general may provide the training and may also approve any acceptable course of training offered by a governmental body or other entity. The attorney general shall ensure that at least one course of training approved or provided by the attorney general is available on videotape or a functionally similar and widely available medium at no cost. The training must include instruction in:

(1) the general background of the legal requirements for open records and public information;

(2) the applicability of this chapter to governmental bodies;

(3) procedures and requirements regarding complying with a request for information under this chapter;

(4) the role of the attorney general under this chapter; [and]

(5) penalties and other consequences for failure to comply with this chapter; and

(6) the requirements of Chapter 307.

SECTION 5. The following provisions of the Government Code are repealed:

(1) Section 552.008;

(2) Section 552.264; and

(3) Sections 552.352(a-1) and (a-2).

SECTION 6. Not later than January 1, 2018, the attorney general shall adopt rules establishing the procedures and deadlines required by Section 307.056(b), Government Code, as added by this Act.

SECTION 7. A request for information under Section 552.008, Government Code, that is pending on December 31, 2017, is governed by the applicable law in effect at the time the request was received, and that law is continued in effect for that purpose.

SECTION 8. The repeal by this Act of Sections 552.352(a-1) and (a-2), Government Code, does not apply to an offense committed under those provisions before the effective date of the repeal. An offense committed before the effective date of the repeal is governed by Sections 552.352(a-1) and (a-2), Government Code, as they existed on the date the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of the repeal if any element of the offense, including obtaining access to confidential information under former Section 552.008, Government Code, occurred before that date.

SECTION 9. (a) Except as provided by Subsection (b) of this section, this Act takes effect January 1, 2018.

(b) Section 6 of this Act takes effect immediately if this Act receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, Section 6 of this Act takes effect September 1, 2017.