Open Records Handbook

2023

PUBLIC INFORMATION ACT

TEXAS ASSOCIATION OF COUNTIES

1210 San Antonio Street, Austin, Texas 78701

Mr. Nathan Cradduck

Tom Green County Auditor & Association President

Susan M. Redford

Executive Director

PREPARED BY ASSOCIATION LEGAL DEPARTMENT

Michael Pichinson

General Counsel

Laura V. Garcia

Associate General Counsel

Katherine Howard

Associate General Counsel

Paul Miles

Associate General Counsel

Mike Thompson, Jr.

Associate General Counsel

Jamie Chandler

Operations Manager

Abbie Jamison

Paralegal

THIS PUBLICATION IS A RESEARCH TOOL AND NOT THE COUNSEL OF AN ATTORNEY. THIS

PUBLICATION IS NOT A SUBSTITUTE FOR THE ADVICE OF AN ATTORNEY. It is provided without warranty

of any kind and, as with any research tool, should be double checked against relevant statutes, case law, attorney

general opinions and advice of legal counsel e.g., your county attorney. Each public officer is responsible for

determining duties of the office or position held. Any question regarding such duties should be directed to

competent legal counsel for a written opinion.

TABLE OF CONTENTS

THE GENERAL POLICY ........................................................................................................... 5

People are Entitled to Information About the Government. ............................................... 5

The Freedom of Information Act, Open Records Act, Sunshine Law, etc. ........................ 5

Information is Presumed Open to the Public. ....................................................................... 5

The Act Lists Specific Exceptions to Required Public Release. ........................................... 7

Some Information Cannot Be Disclosed. ............................................................................... 7

Protected Health Information is Not Public Information. ................................................... 7

You Work for the Public. ........................................................................................................ 7

Don’t Promise Confidentiality. ............................................................................................... 8

THE ROLE OF THE ATTORNEY GENERAL ....................................................................... 8

The Role of Your Attorney. ..................................................................................................... 9

Your Role. ................................................................................................................................. 9

OFFICER FOR PUBLIC INFORMATION .............................................................................. 9

Elected County Officer. ........................................................................................................... 9

Request Made to Wrong Officer. ............................................................................................ 9

Department Heads. .................................................................................................................. 9

Duties of Officer for Public Information. ............................................................................ 10

Officer to Display Notice Regarding Public Information ................................................... 11

TRAINING REQUIRED FOR COUNTY OFFICIALS ......................................................... 11

A REQUEST FOR RECORDS.................................................................................................. 12

Routine or Over-the-Counter Records Requests. ............................................................... 12

Written Request Triggers the Public Information Act. ...................................................... 12

Request Considered Withdrawn ........................................................................................... 13

WHAT THE PUBLIC INFORMATION ACT REQUIRES .................................................. 14

Access to Records. .................................................................................................................. 14

What the Public Information Act Doesn’t Require. ........................................................... 14

Repetitious or Redundant Requests ..................................................................................... 15

ACCESS TO COMPUTER AND ELECTRONIC INFORMATION ................................... 15

TEMPORARY SUSPENSION OF REQUIREMENTS FOR ................................................ 16

COUNTIES IMPACTED BY CATASTROPHE ..................................................................... 16

RECORDS FROM LAW ENFORCEMENT BODY WORN CAMERAS ........................... 18

Policy Required. ..................................................................................................................... 18

The Request. ........................................................................................................................... 18

Restrictions on Release of Records ....................................................................................... 18

Request for Attorney General Decision. .............................................................................. 19

Voluminous Requests. ............................................................................................................ 19

THE REQUESTOR .................................................................................................................... 20

The Motives of the Requestor Don’t Matter........................................................................ 20

Selective Release. .................................................................................................................... 20

Special Right of Access .......................................................................................................... 20

Inmate Requests. .................................................................................................................... 21

INFORMATION SUBJECT TO THE PUBLIC INFORMATION ACT ............................. 21

Generally. ................................................................................................................................ 21

Information Stored in a Computer or Other Electronic Device. ....................................... 21

Information in the Possession of a Consultant or Contractor. .......................................... 21

Copyrighted Materials. .......................................................................................................... 22

THE TEN-DAY RULE ............................................................................................................... 22

CHARGING FOR COPIES OR INSPECTION ...................................................................... 24

The County May Charge for Copies. ................................................................................... 24

Waiver of Charges.................................................................................................................. 25

Charging for Inspection of Records. .................................................................................... 25

Itemized Statement Required................................................................................................ 25

Requiring a Deposit or Bond for Inspection of Records. ................................................... 25

Requiring a Deposit or Bond for Copies. ............................................................................. 26

Limiting Personnel Time Spent on Requests. ...................................................................... 26

Requiring a Deposit or Bond for Unpaid Amounts. ........................................................... 27

Charges for Shipping and Postage. ...................................................................................... 27

Cost Provisions outside of the Public Information Act. ..................................................... 27

GUIDELINES FOR CHARGING FOR PUBLIC INFORMATION .................................... 28

Legal or letter size paper copies. ........................................................................................... 28

Fifty or Fewer pages of standard paper copies ................................................................... 28

More than 50 pages of standard paper copies ..................................................................... 28

Information requiring programming or manipulation of data ......................................... 28

Labor Costs and Overhead ................................................................................................... 28

Copies on a medium other than standard size paper ......................................................... 29

SEEKING A DETERMINATION FROM THE ATTORNEY GENERAL ......................... 29

Generally. ................................................................................................................................ 29

Contact your Attorney. .......................................................................................................... 30

Notice to Requestor. ............................................................................................................... 31

Comments to Requestor. ....................................................................................................... 31

Notice to Third Party. ............................................................................................................ 31

Previous Determinations. ...................................................................................................... 31

Notice of Redaction ................................................................................................................ 32

Prohibited Requests for Determinations. ............................................................................. 32

THE EXCEPTIONS ................................................................................................................... 33

Confidential Personal Information and Privacy. ................................................................ 33

Attorney-Client Privilege....................................................................................................... 36

Audit Working Papers. .......................................................................................................... 36

Commercial Information. ...................................................................................................... 36

County’s Negotiating Position. .............................................................................................. 38

Court Orders. ......................................................................................................................... 38

Credit Card, Debit Card, or Charge Card. ......................................................................... 38

Economic Development Information.................................................................................... 38

Homeland and Network Security. ........................................................................................ 39

Intra-County Memoranda. .................................................................................................... 39

Law Enforcement. .................................................................................................................. 39

Litigation. ................................................................................................................................ 40

Personal Safety. ...................................................................................................................... 40

Social Security Numbers. ...................................................................................................... 40

VIOLATIONS AND PENALTIES ............................................................................................ 41

Criminal Violations ................................................................................................................ 41

Criminal Penalties .................................................................................................................. 41

Official Misconduct ................................................................................................................ 42

Civil Enforcement .................................................................................................................. 42

BEST PRACTICES .................................................................................................................... 43

Set Up a System for Reviewing Your Mail. ......................................................................... 43

The symbol indicates sections that have been updated since the previous publication.

Date Stamp Your Mail. .......................................................................................................... 43

When You Should Contact Your Attorney. ......................................................................... 43

Never Destroy Records That Have Been Requested. .......................................................... 44

APPENDIX A .............................................................................................................................. 45

Cost of Copies of Public Information

December 2023

PUBLIC INFORMATION ACT

THE GENERAL POLICY

People are Entitled to Information About the Government. The Public Information Act

is a Texas statute codified as Chapter 552 of the Texas Government Code.

It declares

that it is the public policy of Texas that people are entitled to full and complete

information regarding the affairs of government and the official acts of those who

represent them as public officials and employees.

The Freedom of Information Act, Open Records Act, Sunshine Law, etc. You may hear

people refer to the “Freedom of Information Act,” and you may see the Freedom of

Information Act invoked by name in a request for access to county records. Strictly

speaking, the Freedom of Information Act is the federal equivalent of the Public

Information Act and applies to information in the possession of a federal agency.

However, the Public Information Act is certainly a freedom of information law, and

people often will use the federal name when they mean to refer to the state law. This is

of no consequence to the validity of a request for access to records.

Similarly, the Public Information Act may be referred to by different names. Since the

1995 session of the Legislature, the official name of the Act has been the "Public

Information Act." However, the Act is often referred to as the Open Records Act, its

former name. Open government laws like the Public Information Act and the Open

Meetings Act are sometimes generically referred to as "Sunshine Laws." It doesn't matter

what someone calls it so long as their request is in writing and reasonably identifies the

information sought.

Information is Presumed Open to the Public. The Public Information Act makes all

“public information” open to the public unless the information is specifically excepted

from disclosure by the Public Information Act or other law. “Public information” is

defined very broadly to include information that is written, produced, collected,

assembled, or maintained under a law or ordinance or in connection with the transaction

This publication includes changes adopted by the 88th Legislature through the Fourth Called Session

(2023). Portions of this handbook were adapted with permission from the City of Austin’s Public

Information Handbook.

The office of the Texas Attorney General publishes a comprehensive Public Information Handbook. You

may obtain a copy from that office or access it through the attorney general’s website,

texasattorneygeneral.gov/og/open-government-related-publications. A link to attorney general opinions

are also available on the same website.

December 2023

of official business by a “governmental body."

“Official business” is defined as any

matter over which a governmental body has any authority, administrative duties, or

advisory duties.

A county officer’s or employee’s e-mails made in the transaction of

county business are public information that must be produced, even if they are made on

a personally-owned mobile communications device.

Employees, former employees,

officials, and former officials who retain public information on their personal devices and

who have not forwarded public information to the appropriate public information officer

for their county are “temporary custodians” of the public information on their personal

devices.

Public information also includes information that is created for a governmental

body by a third party if the governmental body either owns or has access to the

information.

Under the Public Information Act, information is presumed to be open. The Act provides

a nonexclusive list of types of public information that are not excepted from disclosure

under the Act and that are public unless the Act or “another law” makes the information

confidential.

These records are sometimes referred to as “super” public. Examples

include: a completed report, audit, evaluation, or investigation (except for law enforcement

or prosecutor information); the names, sex, ethnicity, salary, title, and dates of

employment of governmental officers and employees; and the name of each official and

the final record of voting on all proceedings of a governmental body. Other examples of

“super” public information include categories of contracting information, including, but

not limited to the total overall price the county will or could pay under a contract, a

description of the items or services and associated cost for the item or services if identified

in the contract, the delivery and service deadlines, remedies for a breach of contract, the

identity of all parties and subcontractors to a contract, the execution and effective dates,

the contract duration terms plus extension options, and information regarding progress

reports, milestones, amendments, and contract variances.

The attorney general does not consider the exceptions to disclosure in the Act itself to be

“another law,” if the exceptions may be waived by the governmental body. In other

words, the fact that one part of the Act allows a governmental body to withhold

Access to records of the judiciary is governed by rules of the Texas Supreme Court or other law, not the

Public Information Act. Tex. Gov’t. Code §552.0035; Tex. Rules of Judicial Administration Rule 12.

Tex. Gov’t Code §552.003(2-a)

Tex. Gov’t Code §552.002(a-1) and (a-2); See Tex. Att’y Gen. Open Records Letter Nos. 2005-06753,

2005-01126, 2003-1890, 2003-0951; Adkisson v. Paxton, 459 S.W.3d 761, 765 (Tex. App. – Austin 2015, no pet.).

Tex. Gov’t Code §552.003(7)

Tex. Gov’t Code §552.002(a)(2)

Tex. Gov’t Code §552.022

Tex. Gov’t Code §552.0222

December 2023

information under certain circumstances does not mean that the governmental body may

always withhold the information.

A county commissioners court is one of the entities specifically listed in the Public

Information Act as a “governmental body.”

The attorney general has determined that

the records maintained in the offices of individual county officers are also subject to the

Public Information Act, reasoning that county offices are funded wholly or partly with

public funds. The boards and commissions created by the county, as well as that part of

most corporations or other organizations that are funded in whole or in part with public

funds, are also covered by the Act.

The Act Lists Specific Exceptions to Required Public Release. If a governmental body

wishes to withhold requested information from public release, the governmental body

has the burden of overcoming the presumption of openness by establishing that the

information is within an exception to disclosure listed in the Public Information Act,

another statute, case law, or other law. The Act provides a specific process for

determining whether information is within an exception, discussed in more detail below.

Because the intent of the law is to encourage prompt disclosure of requested public

information, this process is extremely time sensitive.

Some Information Cannot Be Disclosed. The Public Information Act protects

confidential information in the custody of a governmental body. As discussed below, it

is unlawful for a county officer or employee to disclose confidential information.

Examples of information that the attorney general has determined to be confidential are:

reports of allegations of child abuse; communications between a patient and a mental

health professional; certain information relating to emergency medical services; and

certain medical records.

Protected Health Information is Not Public Information. Protected health information

as defined by Section 181.006 of the Health and Safety Code is not public information and

therefore is not subject to disclosure under the Act.

You Work for the Public. It is important to remember that you are public officers and

employees. The government belongs to the public. In making a request for public

information, a requestor is not attacking you, your office, or the county. The requestor is

exercising a specific statutory right, and it is appropriate and legitimate for them to do

Tex. Gov’t Code §552.003(1)(A)(ii)

Tex. Gov’t Code §552.003(1)(A)(xv)

Tex. Gov’t Code §552.002(d)

December 2023

so. A requestor should always be treated with respect, and the request should be taken

seriously and handled promptly.

Don’t Promise Confidentiality. Keep in mind that under the Public Information Act,

information may only be withheld if a specific exception to disclosure permits the

information to be withheld. The county may not confer confidentiality on information or

on a particular record by promising to keep it confidential. Disappointment and

unhappiness will result if someone is promised confidentiality and the county is later

required to release the information to the public.

THE ROLE OF THE ATTORNEY GENERAL

The Texas Attorney General’s Office plays an important role in the administration of the

Public Information Act. If the county wishes to withhold information or believes

information must be withheld, it must seek a decision from the attorney general that one

or more exceptions to required disclosure set out in the Act applies to the information in

question, unless the attorney general has issued a previous determination that

encompasses the exact information sought in a request.

A governmental body does not

need to request an attorney general decision if the Open Records Division of the Texas

Attorney General’s Office has previously determined the requested information falls

under an exception to disclosure.

The attorney general oversees the information

withholding decisions of the county to ensure compliance with and uniformity of

application of the Act. This is important to understand when your office wishes to

withhold requested information.

The attorney general’s office must be provided with copies of the information in question

in order to perform its oversight role.

In the case of records that are voluminous or

repetitive, the attorney general will accept representative samples of the records. The

attorney general is prohibited by the Public Information Act from releasing records

submitted to it by the county for review under the Act. If the attorney general finds that

records must be released, that office will return the records to the county along with a

Tex. Gov’t Code §552.301

For more information about Attorney General previous determinations, see generally.

https://www.texasattorneygeneral.gov/open-government/governmental-bodies/previous-determinations-

overview. For a list of previous determinations by governmental body, see

https://www.texasattorneygeneral.gov/open-government/governmental-bodies/previous-determinations-

governmental-body.

Tex. Gov’t Code §552.303, Tex. Gov’t Code §552.3031, added by HB 3033, 88th (R) Leg., Effective

September 1, 2023

December 2023

finding that the records must be released. This gives the county an opportunity to seek

judicial relief, should that be appropriate.

The Role of Your Attorney. If your office wishes to withhold information, your attorney

should assist you in seeking a decision from the attorney general. The Public Information

Act is time sensitive. Generally, when the county wishes to withhold information that has

been requested, you must seek a determination from the attorney general within 10

business days of receiving the request or from constructive receipt of the request if there

is reason to believe the requested information may be in the custody of a temporary

custodian.

For this reason, prompt attention to requests for public records is essential.

Your Role. Each county office should design and implement information management

practices that permit compliance with the Public Information Act.

OFFICER FOR PUBLIC INFORMATION

Elected County Officer. The Public Information Act designates each elected county

officer as the officer for public information and as the custodian of the information

created or received by that person’s office.

For example, the county clerk is the

officer/custodian of records maintained in the clerk’s office. But the clerk is not the

officer/custodian for records maintained by the sheriff, county judge, county attorney, or

other elected county official. Each elected officer is responsible for the records of his or

her office.

Request Made to Wrong Officer. When one county officer receives a request for

information that is not kept by that officer, the officer may want to advise the requestor

to redirect the request to the appropriate county officer.

Department Heads. The Public Information Act states that each department head serves

as an agent of the officer for public information for the purpose of complying with the

Public Information Act.

This means that receipt of a request within a department of a

county officer is considered receipt by the officer. The officer should take necessary steps

to ensure that all department heads understand the time sensitive nature of the Public

Information Act and their respective duties under the Act.

Tex. Gov’t Code §§552.301(b), 552.233(d)

Tex. Gov’t Code §552.201(b)

Tex. Gov’t Code §552.202

December 2023

Duties of Officer for Public Information. Each officer for public information must make

public information available for inspection and copying.

The officer must keep the

records safe and properly maintained.

The officer must make reasonable efforts to

obtain public information from a temporary custodian if the officer is aware of facts

sufficient to warrant a reasonable belief that the temporary custodian has possession,

custody or control of the information and the officer is unable to comply with the duties

imposed by the Public Information Act without obtaining the information from the

temporary custodian.

Temporary Custodian. Employees, former employees, officials, and former officials who

retain public information on their personal devices and who have not forwarded public

information to the appropriate public information officer for their county are “temporary

custodians” of the public information on their personal devices.

Temporary Custodian Does Not Own Public Documents. A temporary custodian does

not have, by virtue of the custodian’s position or former position, a personal or property

right to public information the officer or employee created while acting in an official

capacity.

Responsibility of Temporary Custodian to Preserve Public Information. A temporary

custodian is required to forward or transfer the public information to the county or a

county server to be preserved or preserve the public information in its original form in a

backup or archive and on the privately owned device for the appropriate preservation

period.

A temporary custodian is required to forward or transfer the public information in his or

her possession to the county not later than the 10

day after the officer of public

information requests the temporary custodian to surrender or return the information.

Failure to do so is grounds for disciplinary action by the county or other penalties

provided by law.

Tex. Gov’t Code §552.203(1)

Tex. Gov’t Code §552.203(2) & (3)

Tex. Gov’t Code §552.203(4)

Tex. Gov’t Code §552.003(7)

Tex. Gov’t Code §552.233(a)

Tex. Gov’t Code §552.004(b)

Tex. Gov’t Code §552.233(b) & (c)

December 2023

Receipt Date of Request for Public Information Possessed by Temporary Custodian.

The county is considered to have received the request for information in possession of a

temporary custodian on the date the public information is surrendered or returned to the

county.

Preservation Period of Records Held by Temporary Custodian. Records held by a

temporary custodian are subject to the same preservation, destruction, and disposition

requirements as appropriate for the type of record.

Officer to Display Notice Regarding Public Information. The officer for public

information is required to prominently display a sign that contains basic information

about the rights of a requestor of information, the responsibilities of the governmental

body, and the procedures for inspecting or obtaining copies of public information.

The

attorney general prescribes the form, content, and size of the sign.

The officer for public

information must place the sign in one or more locations in the administrative offices

where the sign will be clearly visible to the public and to the employees who receive and

respond to public information requests.

TRAINING REQUIRED FOR COUNTY OFFICIALS

All elected and appointed county officials must complete a training course on the Public

Information Act.

The attorney general makes the training available at no cost on video

and on his website. The one-time course must be at least one hour and may not exceed

two hours.

A county official must complete the training not later than 90 days after taking office.

The statute does not impose a penalty for failure to complete the required training.

The attorney general may require county officials to complete the course of training if

the attorney general determines that the county has failed to comply with a requirement

of the Act. The attorney general must notify each county official in writing of the

Tex. Gov’t Code §552.233(d)

Tex. Gov’t Code §552.004(b) & (c)

Tex. Gov’t Code §552.205(a)

A free, downloadable copy of the required Public Information Act poster is available at

https://www.texasattorneygeneral.gov/open-government/governmental-bodies/pia-poster

Tex. Gov’t Code §552.012. A county official may designate a “public information coordinator” to

complete the training on the official’s behalf, if the designee is primarily responsible for administering the

public official’s duties under the Act.

December 2023

determination and the requirement to complete the training, which must be completed

not later than the 60th day after the date the official receives the notice.

A REQUEST FOR RECORDS

Routine or Over-the-Counter Records Requests. Many county employees process

routine or over-the-counter requests for records as part of their ordinary duties. These

transactions do not ordinarily raise issues under the Public Information Act because no

written request is made for the records or because no real issue exists about whether the

records must be, or may be, released.

Some examples of records routinely requested from county offices include property

records maintained by the county clerk and voter registration records maintained by the

voter registrar.

Written Request Triggers the Public Information Act. The Public Information Act is

triggered when a person submits a written request for information to the county.

While

the request must be in writing to trigger the Public Information Act, it need not be in any

special form, and it need not invoke or mention the Public Information Act. A request is

valid so long as it is in writing (including e-mail) and reasonably identifies the

information sought. A requestor may not know exactly what a county office calls specific

documents or know exactly how they might be stored. If you can’t be sure what

information is being sought, you must contact the requestor to clarify the issue.

However, keep in mind that you may not ask the requestor WHY the requestor wants

the information.

Method of Making Written Request for Public Information. A request may be

submitted to the applicable public information officer or a person designated by that

officer by (1) United States mail, (2) electronic mail. (3) hand delivery, or (4) any other

delivery method approved by the governmental body--including facsimile transmission

or electronic submission through the county’s internet website. To approve an alternate

delivery method, the county must include the method on its website and on its posted

public information signs.

Tex. Gov’t Code, §552.012, added by HB 3033, 88th (R) Leg., Effective September 1, 2023

A subpoena duces tecum or a request for discovery is not a request under the Public Information Act.

Tex. Gov’t Code §552.0055

Tex. Gov’t Code §552.222

Tex. Gov’t Code §552.222(a)

Tex. Gov’t Code §552.234(a) & (b)

December 2023

Designation of Addresses for Public Information Requests. A county may designate

one mailing address and one email address for receipt of written public information

requests. If the county does so and includes the addresses on its PIA posters and the

county website, it is not required to respond to a request for information unless the

request is received at one of the addresses, by hand delivery, or by another appropriate

method that has been approved by the county.

Public Information Request Form. The Attorney General has created a public

information request form for use by governmental bodies.

The PIA requires

governmental bodies who allow requestors to use this form, to post the form on their

website.

The form is available for download on the Attorney General’s website.

Request Considered Withdrawn. To obtain clarification, discussion, or additional

information about a request you receive, you must send a letter, by certified mail, to the

address the requestor provided in the underlying request for information, or to the

requestor’s e-mail address if no mailing address is provided.

You must include in your

letter a statement of the consequence if the requestor fails to timely respond to your letter.

The requestor must respond to you in writing by the 61

day or the request is considered

to have been withdrawn.

If the request for public information was sent by e-mail, you must send the request for

clarification or discussion or the written request for additional information by e-mail to

the same e-mail address from which the original request was sent or to another e-mail

address provided by the requestor. You may consider the request withdrawn if you do

not receive a written response or response by e-mail from the requestor by the 61

day.

As discussed below, a request may also be considered to have been withdrawn if the

requestor does not respond to a cost estimate letter from the county within 10 business

days after the requestor has received it. Additionally, a request is considered withdrawn

if the requestor fails to inspect or duplicate public information by the 60

day after it is

made available or fails to pay postage and other applicable charges by the 60

day after

the date the requestor is informed of the charges.

Tex. Gov’t Code §552.234(c) & (d)

Tex. Gov’t Code §552.235(b)

https://www.texasattorneygeneral.gov/open-government/governmental-bodies/responding-pia-

request/public-information-request-form

Tex. Gov’t Code §552.222(f) & (g)

Tex. Gov’t Code §552.222(d)

Tex. Gov’t Code §552.222(g)

Tex. Gov’t Code §552.221(e)

December 2023

WHAT THE PUBLIC INFORMATION ACT REQUIRES

Access to Records. The Public Information Act requires the county to provide access to

information that exists at the time of the request, or to seek a determination from the

attorney general that the information may or must be withheld. Access to requested

information must be provided promptly.

If the requested information cannot be

produced for inspection or duplication within 10 business days after the request is

received, the governmental body must certify that fact in writing to the requestor, and

must set a date and hour within a “reasonable time” when the information will be

available.

If the information is in active use or in storage, the governmental body must

also certify this fact in writing, and arrange for the information to be available to the

requestor within a reasonable amount of time.

All requests for information must be

treated uniformly.

The requestor may choose merely to inspect records or to seek copies

of them. When a record may be partially withheld, unless the requestor agrees otherwise,

the requestor is entitled to a copy of the actual record with the confidential or non-

disclosable parts excised. A requestor may request that records be sent by mail. The

county may charge for copies or access in certain circumstances.

A county may refer a requestor to an exact Internet location or URL address on a website

maintained by the county and accessible to the public if the requested information is

identifiable and readily available on that website.

If the requestor prefers a manner other

than access through the URL, the county must supply the information as required by

§552.221(b). If the county provides by e-mail an Internet location or URL address, the e-

mail must contain a statement in a conspicuous font clearly indicating that the requestor

may nonetheless access the requested information by inspection or duplication or by

receipt through United States mail.

What the Public Information Act Doesn’t Require. The Public Information Act applies

only to information in existence at the time the request is made. The Public Information

Act does not require the county to prepare new information in response to a request.

The Public Information Act does not require the county to provide access to records that

did not exist at the time of the request, or to advise a requestor about new information

that comes into existence after the request has been made.

The county need not comply

Tex. Gov’t Code §552.221(a)

Tex. Gov’t Code §552.221(d)

Tex. Gov’t Code §552.221(c)

Tex. Gov’t Code §552.223

Tex. Gov’t Code §552.221(b-1)

A&T Consultants, Inc. v. Sharp, 904 S.W.2d 668 (Tex. 1995, reh. overruled); ORD-624 (1994)

Tex. Gov’t Code §552.002; ORD-452 (1986)

December 2023

with a “standing” request for information that may come into existence in the future, or

that comes into existence periodically.

The county need not do legal research for a

requestor or answer questions or interrogatories.

The requestor is entitled to copies of

the actual records as they exist. Generally, the Public Information Act does not require

that information be prepared or organized in a particular way to suit the needs of the

requestor. However, if the information is available in an electronic or magnetic medium,

the county must comply with a request for information in those formats if it has the

technological ability to do so.

Repetitious or Redundant Requests.

The Public Information Act addresses the reality

that counties and other governmental bodies sometimes experience redundant or

repetitive requests for the same information by the same requestor. If a person requests

information that the county has previously provided to that person, the county may

certify that fact to the requestor rather than producing the information again.

This

procedure is not available if there have been additions, deletions, or corrections to the

information since the earlier request was received by the county.

However, the Public Information Act does not allow a governmental body to sue a

requestor who files repetitive or redundant requests for information for common law

claims of public nuisance and abuse of governmental process.

ACCESS TO COMPUTER AND ELECTRONIC INFORMATION

If a requestor asks for it, the county must provide information that is available in an

electronic or magnetic medium in the requested format if it has the technological ability

to do so, but it does not have to purchase software or hardware to accommodate the

request.

The county does not have to produce electronic information protected by

If providing electronic information asked for in a request will involve programming or

manipulation of data that will substantially interfere with the county’s ongoing

Tex. Att’y Gen. Op. No. JM-0048 (1983); ORD-476 (1987); ORD-465 (1987)

ORD-563 (1990); ORD-555 (1990)

Tex. Gov’t Code §552.228(b)

See also, “CHARGING FOR COPIES OR INSPECTION,” “The County May Charge for Copies” and

“Limiting Personnel Time Spent on Requests,” below.

Tex. Gov’t Code §552.232

Lake Travis ISD v. Lovelace, 243 S.W.3d 244 (Tex. Civ. App – Austin, 2007, no pet.); Tex. Gov’t Code

§552.324.

Tex. Gov’t Code §552.228(b)

December 2023

operations, or will include a cost for programming and manipulation, the county is

required to provide the requestor with a written statement explaining this.

The notice

must explain to the requestor: (1) the form in which the information is available; (2) what

is required to provide the information in the requested form; and (3) the estimated cost

and time to provide the information in the requested form.

If the county provides the notice related to electronic information, it must be sent within

20 days of the date the request for information was received.

If additional time is needed

to calculate the costs and timing, the county may wait and send the statement within 30

days of receiving the request, but only if notice is sent to the requestor within the 20-day

response period that more time is needed. The requestor must notify the county in

writing whether the requestor chooses to obtain the information in the format that is

already available or will pay to have it put in the requested format. If the requestor does

not respond within 30 days, the request is considered to be withdrawn.

The county need not provide untrammeled access to its files or premises or provide a

computer terminal for the use of a requestor.

The county is not required to purchase

hardware or software to comply with a request.

The county is not required to copy the information on a diskette or other materials

supplied by the requestor, such as a thumb drive or CD, but may use and charge for its

own materials.

This is intended to protect against the introduction of viruses into the

county's computer system.

TEMPORARY SUSPENSION OF REQUIREMENTS FOR

COUNTIES IMPACTED BY CATASTROPHE

Suspension of PIA in Catastrophe. The requirements of the Act do not apply to a county

during the suspension period determined by the commissioners court if the county is

currently impacted by a catastrophe and the commissioners court complies with the

requirements of Section 552.2325 of the Code

and elects to suspend the requirements of

Chapter 552.

Tex. Gov’t Code §552.231(b). The Attorney General’s Office has an on-line cost-estimate calculator located

at https://texasattorneygeneral.gov/og/public-information-cost-estimate-model

Tex. Gov’t Code §552.231(c)

Tex. Gov’t Code §552.231(d-1)

Tex. Att’y Gen. Op. No. JM-0757 (1987); ORD-571 (1990).

Tex. Gov’t Code §552.228(b)

Tex. Gov’t Code §552.228(c)

Tex. Gov’t Code §552.2325.

December 2023

Definition of Catastrophe. A catastrophe is defined as a condition or occurrence that

interferes with the ability of a county to comply with the Act, including fire, flood,

earthquake, hurricane, tornado, wind, rain, or snowstorms, power failure, transportation

failure, interruption of communications facilities, epidemics, riot, civil disturbance,

enemy attack, or other actual or threatened acts of lawlessness or violence. A catastrophe

does not mean a period in which staff is required to work remotely and can access

information responsive to an application for information electronically but the physical

office of the governmental body is closed.

Initial Suspension Period. The commissioners court in a county impacted by a

catastrophe may suspend the applicability of the Act for an initial suspension period

which may not exceed seven consecutive days and must occur during a period that

begins not earlier than the second day before the date the county submits the prescribed

notice to the attorney general and ends not later than the seventh day after the date the

notice was submitted.

Extension of Suspension Period. The initial suspension period may be extended one

time for not more than seven consecutive days beginning on the day following the day

the initial suspension period concludes if the commissioners court determines that the

county is still impacted by the catastrophe upon which the initial suspension period was

based.

Notice of the extension must be forwarded to the attorney general on the

prescribed form. The combined suspension period for any single catastrophe may not

exceed 14 days.

Notice to Public. Notice of a suspension of the applicability of the PIA in a county due to

catastrophe must be provided to the public in a place readily accessible to the public and

in each other location the county is required to post notice under Subchapter C, Chapter

551.68 The notice must be maintained during the entire suspension period.

Effective Date of Request Submitted During Suspension Period. A request for public

information submitted during a suspension period is treated as though it was received

by the county on the first business day after the date the suspension period ends.

Tex. Gov’t Code §552.2325(a)

Tex. Gov’t Code §552.2325(d)

Tex. Gov’t Code §552.2325(e)

Tex. Gov’t Code §552.2325(g)

Tex. Gov’t Code §552.2325(f)

Tex. Gov’t Code §552.2325(g)

December 2023

Finally, the office of attorney general is required to post on its website a list of the

governmental bodies that have submitted notices of suspension and prescribe the

required notice forms.

RECORDS FROM LAW ENFORCEMENT BODY WORN CAMERAS

Policy Required. A sheriff’s department of a county that operates a body worn camera

program must comply with specific guidelines related to the records produced by the

program. The videos generated by body worn cameras are subject to specific retention

and open records guidelines. The department must adopt a policy for the use of videos

including guidelines for public access, through open records requests, to recordings that

are public information.

The authority of a law enforcement agency to withhold information related to a closed

criminal investigation that did not result in a conviction or a grant of deferred

adjudication community supervision is not affected by this law.

The Request. A member of the public is required to provide the date and approximate

time of the recording, the specific location where the recording occurred, and the name

of one or more persons known to be a subject of the recording when submitting a written

request for information recorded by a body worn camera.

The requestor’s failure to

provide all of the information does not preclude the requestor from making a future

request for the same recorded information. The attorney general has set a fee to be

charged to members of the public who seek to obtain a copy of a recording.

Restrictions on Release of Records. The county is not required to make publicly available

information recorded by a body worn camera unless that information is or could be used

as evidence in a criminal prosecution.

If the information is or could be used as evidence

in a criminal prosecution, the county may request an attorney general’s opinion and

assert any exceptions to disclosure in the Act or other law or it may release the

information requested after redacting any information made confidential under the Act

or other law.

Tex. Occupations. Code, Ch. 1701, Subchap. N

Tex. Occupations. Code §1701.655(b)(4)

Tex. Gov’t Code §552.108; Tex. Occupations Code §1701.660(c)

Tex. Occupations Code §1701.661

1 Tex. Admin. Code Rule 70.13. See Appendix A for the current text of the rule (as of publication time)

Tex. Occupations Code §1701.661(d)

Tex. Occupations Code §1701.661(e)

December 2023

The county may not release any portion of a recording made in a private space or

involving the investigation of conduct that constitutes a misdemeanor punishable by fine

only and does not result in arrest, without the written authorization from the person who

is the subject of that portion of the recording or, if the person is deceased, from the

person’s authorized representative.

Additionally, the recording is confidential and excepted from the Public Information

Act if it was not required to be made under the county’s policy or other law and it does

not relate to a law enforcement purpose.

Request for Attorney General Decision. It is important to note that different deadlines

apply to a county’s request for a decision from the attorney general about whether a

requested recording falls within an exception to public disclosure.

A request and the

county’s response to a requestor are considered timely if they are made not later than the

business day after the date of receipt of the written request.

A county’s submission to the attorney general of written comments and the recording is

considered timely if it is made not later than the 25

business day after the date of receipt

of the written request.

A county’s submission to a requestor of the information required

by §552.301(e-1) of the Act is also considered timely if it is made not later than the 25

business day after the date of receipt of the written request.

Voluminous Requests. The law regarding production of records from a law enforcement

body worn camera program includes specific provisions related to frequent or lengthy

requests.

A voluminous request for body worn camera recordings is defined as (1) a

request for more than five separate incidents, (2) more than five separate requests for

recordings from the same person in a 24-hour period (regardless of the number of

incidents included in each request), or (3) a request or multiple requests from the same

person in a 24-hour period for recordings that, taken together, constitute more than five

total hours of video footage.

A public information officer who receives a voluminous request for recordings from body

worn cameras is considered to have promptly produced the information if the officer

Tex. Occupations Code §1701.661(f)

Tex. Occupations Code §1701.661(h)

Tex. Occupations Code §1701.662

Tex. Occupations Code §1701.662(c)

Tex. Occupations Code §1701.662(d)

Tex. Occupations Code §1701.663

Tex. Occupations Code §1701.663(b)

December 2023

provides the information or communicates with the requestor as required under §552.221

of the Act before the 21

business day after the date of receipt of the written request.

THE REQUESTOR

The Motives of the Requestor Don’t Matter. Obviously, the Public Information Act is

an important tool for journalists and attorneys, and many requests for public information

will come from members of these professions. However, the county is prohibited from

making any inquiry of the requestor beyond establishing the requestor’s identity,

identifying the records sought, and, if a large amount of information is sought, discussing

how the request might be narrowed. Therefore, the motives, occupation, or status of the

person requesting the information does not determine whether the information must be

disclosed.

Selective Release. The general rule is that all members of the public have equal access

to public information. Accordingly, if you voluntarily release a record to one person, you

will usually waive any privilege the county has to withhold that record from another

requestor.

There are some exceptions to this rule. First, keep in mind that, for these

purposes, the county is a single entity. Information may be shared among county

offices.

That is not considered a release to the public. Generally speaking, when the

county is working with another unit of government, including the federal government,

information may be shared with the other governmental body without waiving any

privilege to withhold it from the public.

For example, information shared by local law

enforcement agencies with the prosecuting attorney is not subject to disclosure.

When

information is required to be released to a specific individual by law, or in discovery in a

lawsuit (even if the discovery is cooperative), the release will not be considered voluntary

and any remaining privileges under the Public Information Act will not be waived. A

permitted viewing of a medical examiner’s report or video evidence under §552.108(d) is

not a voluntary disclosure of information.

Special Right of Access. A person or the person’s authorized representative has a special

right of access to confidential information that relates to the person and is protected from

public disclosure by laws intended to protect that person’s privacy interests.

For

Tex. Occupations Code §1701.663(a)

Tex. Gov’t Code §552.007

Tex. Att’y Gen. Op. No. JC-0283 (2000)

ORD-678 (2003)

Tex. Gov’t Code §411.0258

Tex. Gov’t §552.108(f), added by SB 435, 88th Leg., Effective May 24, 2023.

Tex. Gov’t Code §552.023

December 2023

example, a county employee is entitled to copies of confidential information in the

employee’s personnel file.

Inmate Requests. The Public Information Act relieves the state and its political

subdivisions of the duty to respond to requests for information from incarcerated

individuals and a person acting as the agent of the incarcerated individual, unless the

requestor is the inmate’s lawyer.

It is not uncommon for a county to be bombarded

with rather burdensome requests from persons confined in jail or their agents asking for

extremely voluminous materials. More often than not, the requestors are unable to pay

for the information. The county may comply with the request from an inmate or the

inmate’s non-lawyer agent, but it is not required to do so.

INFORMATION SUBJECT TO THE PUBLIC INFORMATION ACT

Generally. The Public Information Act applies to information that exists in some form

of record. It does not reach information that exists only in your head. The Act does not

require you to prepare new information or answer questions. However, the Act reaches

information that exists in any kind of medium: paper, audio tape, video tape, microfilm,

microfiche, drawings, photographs, photostats, charts, graphs, Mylar, linen, silk, vellum,

electronic signals, including e-mail, Internet posting, text message, other electronic

communication, or any other form of storage medium.

Information Stored in a Computer or Other Electronic Device. Information stored in a

computer or electronic mobile device, including e-mail, is subject to the Public

Information Act even if the information has never been printed out. This includes

information related to the transaction of county business stored on a county officer’s or

employee’s personal computer or mobile communication device, such as an iPhone,

which the officer or employee is required to retain as a temporary custodian.

Information in the Possession of a Consultant or Contractor. It is difficult to avoid the

Public Information Act by leaving information in the hands of a consultant or contractor.

Where the consultant or contractor has prepared information on behalf of a governmental

body, the information has been held to be subject to the Public Information Act even

though it is not in the governmental body’s physical custody.

Information on a device

owned by a third party that is produced in connection with the transaction of official

Tex. Gov’t Code §552.028. This rule applies whether the individual is confined in Texas, another state,

or a federal facility.

See Tex. Gov’t Code §§552.002, 552.004(b)

Tex. Gov’t Code §552.002(a-1)

December 2023

business by a governmental body is also public information.

Copyrighted Materials. Copyrighted materials in the possession of the county are

subject to the Public Information Act and must be made available for inspection unless

otherwise excepted.

However, the attorney general has opined that the Act does not

require the county to provide copies of copyrighted material, and the county should not

violate the copyright by making copies (either photocopies of copyrighted information

or copies of copyrighted information stored on a computer), or by aiding the requestor in

doing so.

In addition, materials and publications that are available commercially need

not be reproduced by the county.

THE TEN-DAY RULE

One of the most widely misunderstood provisions of the Public Information Act is the

ten-day rule. The Public Information Act establishes a deadline of 10 business days for

the county to request a ruling from the attorney general once the county receives a written

request for information.

These are county business days, not calendar days.

The Act defines a business day

as a day other than a Saturday or Sunday, a national

holiday or state holiday

, the Friday before or Monday after a national or state holiday if

the holiday occurred on the weekend and is observed on that Friday or Monday, and an

optional holiday

100

if the officer for public information observes the optional holiday. A

county may designate a day on which the administrative offices are closed or operating

with minimum staffing as a nonbusiness day. The designation of a nonbusiness day for

a county must be made by the “executive director or other chief administrative officer”

101

A county may not designate more than 10 nonbusiness days each calendar year. The fact

that an employee works from an alternative work site does not affect whether a day is

considered a business day.

The ten-day rule is not a deadline for the production of records. If the county is not

seeking to withhold information by obtaining a ruling from the attorney general, and if

ORD-660 (1999)

ORD-505 (1988)

Tex. Gov’t Code §552.027. This means, for example, that a county official may decline to make a copy of

a map, a book, or a pamphlet that the county obtained commercially. Also, a requestor seeking copies of

published cases or statutes may be directed to the county law library or other appropriate library facility.

Tex. Gov’t Code §552.301(b)

Tex. Gov’t Code, §552.0031, added by HB 3033, 88th (R) Leg., Effective September 1, 2023

See Tex. Gov’t Code §662.003(a)-(b)

100

See Tex. Gov’t Code §662.003(c)

101

Consult with your county attorney regarding your county’s procedure for designating nonbusiness

days.

December 2023

the information cannot be produced (for inspection, duplication or both) within 10

business days of the date the request is received, the county is required to certify this fact

in writing to the requestor and establish a date and hour (within a “reasonable time”)

when the information will be available.

102

Many requestors will use a form letter that

contains a recitation that the records must be produced for inspection within 10 days

according to the Public Information Act. This, however, is incorrect. The Act does not

require that information be produced within 10 days. Instead, it requires that requested

information be produced “promptly.” What is prompt depends on the circumstances.

103

For records that are archived in off-site storage, “promptly” may mean one thing, while

for readily available records it could mean another.

Generally, the clock starts when the written request is received by the county office that

maintains the record being requested. So, it is important that each department in your

office communicate quickly if one department receives a request that should be handled

by another department of your office. The 10 days do not begin to run against the

Sheriff’s office, for example, on a request that was originally misaddressed to the voter

registrar. If you receive a request that does not relate to records maintained in your office,

you may want to communicate that fact to the requestor.

On occasion, the county may receive a request that does not clearly identify the

information being sought or that appears to be overly broad in scope. If so, it is

appropriate to seek clarification from the requestor on the meaning and scope of the

request.

104

It is advisable to ask for the clarification in writing, or to follow-up any

discussion with the requestor in writing to confirm your mutual understanding of the

information that is actually being requested. The Public Information Act requires specific

information to be included in a request for clarification.

105

If a requestor modifies a request in response to the requirement of a deposit or bond, the

modified request is considered a separate request that is received by the county on the

date that the written modified request is received.

106

The county’s deadlines for seeking

an attorney general’s determination run from the date of receipt of the modified request.

An overly broad or unclear request for information does not trigger the start of the 10-

day period. Rather, the written request is considered received, and the clock begins to

run, once the requestor’s clarification is received. For several years, the attorney general

102

Tex. Gov’t Code §552.221(c)

103

Tex. Gov’t Code §552.221(a)

104

Tex. Gov’t Code §552.222(b)

105

Tex. Gov’t Code §552.222(e)

106

Tex. Gov’t Code §552.263(e-1)

December 2023

ruled that the initial request triggers the start of the 10 days, that the period is tolled while

the governmental body awaits clarification, and the counting of the remainder of the 10

days begins once the clarification to the request is received.

107

The Texas Supreme Court

rejected the attorney general’s counting methodology. The court reasoned that the

purposes of the Act are best served by measuring the statutory deadline from the date

that an unclear or over broad request has been clarified or narrowed and counting

forward ten business days from that date.

108

Thus, a county that seeks clarification in

good faith, not merely to delay production of the information, may calculate the 10-day

deadline from the date it receives the requestor’s clarification.

If the county does not submit a written request for a ruling to the attorney general within

10 county business days, the information is presumed open to the public, and only a

compelling interest can overcome that presumption.

109

The only interests that the attorney

general has found to be “compelling” are those belonging to third parties or those relating

to confidential information protected by other law. It is not compelling that the county

would have been permitted to withhold the information had it sought a ruling within the

allotted time frame.

CHARGING FOR COPIES OR INSPECTION

The County May Charge for Copies. The Public Information Act limits the amount that

the county may charge for providing copies of public information.

110

All requests received

in one calendar day from an individual may be treated as a single request for the purposes

of calculating costs.

111

Multiple requests from separate individuals on behalf of an

organization may not be combined. The county may require advance payment.

The

attorney general must adopt rules that set the amounts that may be charged for copies

obtained under the Act, and it is important for the county to follow these rules.

112

The

requestor is entitled to recover three times the amount of an overcharge if the

governmental body did not act in good faith in computing the costs.

113

The county may

not charge a member of the Legislature for copies requested in connection with the

107

ORD-663 (1999)

108

See City of Dallas v. Greg Abbott, 304 S.W.3d 380 (Tex. 2010) (The court concluded that the 10-day period

is not triggered until a governmental body receives the clarified request.).

109

Tex. Gov’t Code §552.302

110

Tex. Gov’t Code §552.261

111

Tex. Gov’t Code §552.261(e)

112

Tex. Gov’t Code §552.262. The rules are codified at 1 Tex. Admin. Code Rule §70.10. A copy of the current

rules (as of publication time) is attached as Appendix A. The Attorney General’s Office has an on-line cost-

estimate calculator located at https://texasattorneygeneral.gov/og/public-information-cost-estimate-model

113

Tex. Gov’t Code §552.269

December 2023

member’s duties.

114

The county may not charge sales tax on copies of public

information.

115

Waiver of Charges. The county may waive charges or reduce charges for copies if it

determines that release of the information benefits the general public.

116

Be careful to treat

requestors uniformly in this regard. In any case, discretion should be exercised in

charging for labor and overhead, even when permitted by the attorney general rules.

Charging for Inspection of Records. If the requestor simply wants to inspect information

that is available on paper, the county may impose a charge for copying those pages that

must be edited for confidential information.

117

Itemized Statement Required. When the county intends to impose a charge for

inspection or copies that exceeds $40, the county must provide to the requestor an

itemized written statement of the estimated charges.

118

The county must also notify the

requestor of any less costly method of viewing the records. Furthermore, the county must

inform the requestor that the request is considered to be automatically withdrawn unless the

requestor responds in writing within 10 business days that the requestor will accept the

estimate, is modifying the request, or has sent a complaint to the attorney general alleging

that the county is overcharging for the copies. The Public Information Act includes

specific information that must be included in a cost estimate letter.

Requiring a Deposit or Bond for Inspection of Records. A county with 16 or more full-

time employees may also require payment or a deposit or cash bond for anticipated

personnel cost associated with making paper records available for inspection if the officer

for public information estimates that more than five hours will be required to make the

information available for inspection and the information is either older than five years or

it will fill six or more archival boxes once assembled.

119

A county with fewer than 16 full-

time employees may charge anticipated personnel costs if the officer for public

information estimates that more than two hours will be required to gather the

information and the information is either older than three years or will fill three or more

archival boxes once assembled.

114

Tex. Gov’t Code §552.264

115

1 Tex. Admin. Code §70.10(14)

116

Tex. Gov’t Code §552.267(a)

117

Tex. Gov’t Code §552.271(b)

118

Tex. Gov’t Code §552.2615(a)

119

Tex. Gov’t Code §552.271

December 2023

If the requestor wants to inspect information that exists in an electronic medium (but is

not available on-line to the requestor), the county may not impose a charge unless

complying with the request will require programming or manipulation of data.

120

In that

case, the county must notify the requestor of the estimated charges.

Requiring a Deposit or Bond for Copies. A county with 16 or more full-time employees

may require a deposit or bond for payment of anticipated costs if the estimated charge

for the copy exceeds $100.

121

A county with fewer than 16 full-time employees may

require a deposit or bond if the estimated charge for the copy exceeds $50. The county

must certify this in writing to the requestor but is not required to produce the information

until such deposit or bond has been satisfied. However, a cash deposit or bond cannot be

required as a down payment for future requests. If a requestor fails to make the deposit

or bond before the 10

day after the county requires it, the request for the information is

considered withdrawn.

Limiting Personnel Time Spent on Requests. The commissioners court may establish

monthly and yearly limits on the amount of time that county personnel are required to

spend in producing information for inspection or copying or in providing copies of

information to the same requestor without recovering its costs.

122

The county may not set

a time limit that is less than 36 hours in each county fiscal year or less than 15 hours for a

one-month period. All county officers who have designated the same officer for public

information may collectively calculate the amount of time that personnel are required to

spend for purposes of the limits.

A county that imposes time limits must provide a statement to a requestor of the

personnel time spent on a specific request and the cumulative time spent on that person’s

requests during the fiscal year. If a requestor submits a request that individually or

collectively will exceed the time limits, the county must provide a written estimate of the

total personnel cost. If a requestor has made a previous request that is not withdrawn

and the statement for that request is unpaid at the time of a subsequent request, the

county is not required to locate, compile, produce, or provide copies of information

responsive to the new request until the requestor pays each unpaid statement in

connection with a previous request or withdraws the previous request. If requests by an

individual exceed the time limits, the requestor must pay the related costs by the 10

day

after the county provides the written statement, or the request is considered

120

Tex. Gov’t Code §552.272

121

Tex. Gov’t Code §552.263

122

Tex. Gov’t Code §552.275.

December 2023

withdrawn.

123

A requestor who has exceeded the time limit established may not inspect

public information on behalf of another requestor unless the requestor who exceeded the

limit has paid each statement issued by the county.

124

A county may request photo identification from a requestor to establish that the requestor

has not exceeded the time limits set by commissioners court and that the requestor has

not concealed their identity.

125

Request for photo identification must include a statement

of the personnel time spent on a specific request and the cumulative time spent on that

person’s requests during the fiscal year, and a statement that describes specifically why

the photo identification is being requested. The requestor may decline to provide

identification and obtain the requested information by paying the charge assessed in the

statement.

126

Requiring a Deposit or Bond for Unpaid Amounts. An officer for public information

may require a deposit or bond for payment of unpaid amounts owing to the county for

previous requests from a requestor before preparing documents in response to a new

request if the unpaid amounts exceed $100.

127

The county is prohibited by the Public

Information Act from seeking payment of the unpaid amounts through any other means.

The county must fully document the existence and amount of the unpaid sum.

Charges for Shipping and Postage. The County may charge for shipping and postage at

the actual cost. The costs for shipping and postage may be added to the other

reproduction costs the county charges the requestor.

128

Cost Provisions outside of the Public Information Act. The cost provisions of the Public

Information Act do not apply if charges for copies are established by another statute.

129

For example Local Government Code §118.011 establishes the charge for a non-certified

copy of information obtained from the county clerk and Local Government Code §118.144

establishes the charge for copies from the county treasurer. Additionally, the

123

The time limits do not apply to requests from specified representatives of the press or media, elected

officials, or representatives of a publicly funded legal services organization. Tex. Gov’t Code §552.275(j),

(k) and (l).

124

Tex. Gov’t Code, §552.271(e),(f), added by HB 3033, 88th (R) Leg., Effective September 1, 2023

125

Tex. Gov’t Code, §552.275(n), added by HB 3033, 88th (R) Leg., Effective September 1, 2023

126

Tex. Gov’t Code, §552.275(o), added by HB 3033, 88th (R) Leg., Effective September 1, 2023

127

Tex. Gov’t Code §552.263(c)

128

1 Tex. Admin. Code §70.10(9)

129

Tex. Gov’t Code §§552.262(a), 552.265

December 2023

commissioners court can set charges regarding access to certain information held by the

county under Local Government Code §191.008.

130

GUIDELINES FOR CHARGING FOR PUBLIC INFORMATION

131

Legal or letter size paper copies. Under the attorney general’s rules, there are permissible

charges for standard paper copies reproduced by means of an office machine copier or a

computer printer. Each side that has a printed image is considered a page.

Fifty or Fewer pages of standard paper copies. The county may charge the requestor $.10

per page.

The county may not charge for materials, labor, or overhead, and the cost is

limited to the charge for each page of paper record that is photocopied, unless the

documents to be copied are located in two or more separate buildings or at a remote

storage facility.

132

More than 50 pages of standard paper copies. In addition to the charge of $.10 per page,

the county may charge the requestor for labor, overhead, and document retrieval, if

applicable, and the actual cost of miscellaneous supplies.

133

Information requiring programming or manipulation of data. If it provides the required

notice, the county may charge a requestor the cost of the copy plus labor, overhead,

computer resource charge, programming time, document retrieval charge, if applicable,

and actual cost of miscellaneous supplies.

134

Labor Costs and Overhead. If applicable, the county may charge for labor at the rates

specified in the attorney general’s rules for programming or locating, compiling and

reproducing public information.

135

The county may also assess an overhead charge based

on the labor charge.

136

130

ORD-688 (2000)

131

A copy of the current rules adopted by the attorney general (as of publication time) are attached as

Appendix B.

132

Buildings that are connected by a covered or open sidewalk or an elevated or underground passageway

are not considered to be separate buildings. Tex. Gov’t Code §552.261(c).

133

Tex. Gov’t Code §552.261

134

Tex. Gov’t Code §552.231

135

1 Tex. Admin. Code §70.10(3)

136

1 Tex. Admin. Code §70.10(4)

December 2023

Copies on a medium other than standard size paper. Permissible charges for copies on

various media, including CD, thumb drive, photographs, and various types of paper, are

specified in the attorney general’s rules.

137

SEEKING A DETERMINATION FROM THE ATTORNEY GENERAL

Generally. Once you have identified the information sought by the requestor, you must

consider the nature of the information. Basically, there are three types of information: (1)

information that must be released; (2) information that may be withheld; and (3)

information that must be withheld.

Information that must be withheld is confidential by law; the law forbids its public

release. Often this information will concern privacy interests of an individual or concern

the trade secrets or commercial interests of a business. If you think information falls in a

category that must be withheld, contact your attorney. Some examples of information

made confidential by law are: medical records; mental health records, HIV or AIDS test

results; polygraph exam results; certain income tax return information; certain property

tax appraisal photographs;

138

and handgun license information.

Information that may be withheld is information that may be released or withheld at the

county's discretion. Typically, this information will concern criminal investigations,

ongoing or expected litigation, pending bids, or advice from legal counsel. Some advice

and recommendations in internal memoranda may be withheld, as may drafts of the

county budget before it is made public.

As more fully discussed below, the Public Information Act provides that certain

information may be redacted from records being produced or withheld without the need

to request a determination from the attorney general. This includes motor vehicle records

and credit card information. If you decide to redact or withhold this type of information

you must provide the requestor with instructions on how to seek a determination from

the attorney general on whether the information was properly redacted or withheld.

139

If you think that requested records may be withheld, you must then decide what to do.

Most of the time, openness is the best response to a request for public information. If

possible, release the records to the requestor. Under the Public Information Act,

information is presumed to be open. In order to withhold information, the county must

137

Reproduced in Appendix B

138

Tex. Gov’t Code §552.155

139

The rules related to this process are at 1 Tex. Admin. Code 63, §63.11-63.16

December 2023

overcome the presumption of openness by convincing the attorney general that the Act

permits the information to be withheld.

Contact your Attorney. If you feel that you should withhold the records, time is of the

essence. It is imperative that you get the request to your attorney as soon as possible so

the attorney may seek a determination from the attorney general that you may withhold

the records. The county has 10 business days (20 business days if the request is for body

worn camera information) to seek an attorney general’s determination that the records

may be withheld.

Your attorney will have to prepare a written argument for the attorney general explaining

why the law permits the county to withhold the information at issue. This takes some

time, even in the best of cases. The attorney also needs to review the records, or if the

records are voluminous, at least a representative sample of the records. The information

to be withheld must be marked or highlighted to indicate which exception applies to

which part of the copy before you send the records to your attorney. The reason for this

is twofold: First, it is often difficult for your attorney to write a convincing case to the

attorney general if the attorney doesn’t have some idea what the records look like.

Second, the attorney general’s office requires the documents for their review in

connection with processing the county’s request, so the attorney will need the records to

send to the attorney general for review.

The county’s initial letter to the attorney general must be submitted not later than the 10

business day after the request was received.

However, the county is permitted some

additional time to complete its request and provide documents.

140

All written comments

and marked copies of the records must be submitted to the attorney general not later than

the 15

business day (25

business day if a body worn camera recording is being

submitted) after the date the records were requested. The county’s first submission must

also include a copy of the written request and information establishing the date the

request for information was received by the county.

The Public Information Act requires the submission of documents through the attorney

general’s designated electronic filing system, unless the county has fewer than 16 full-

time employees, the county’s population is under 150,000, the format or amount of

information makes use of the filing system impractical or impossible, or if the request is

hand-delivered to the office of the attorney general.

141

The attorney general may also

transmit a notice, decision or other document electronically.

140

Tex. Gov’t Code §552.301(e-1)

141

Tex. Gov’t Code §552.3031, added by HB 3033, 88th (R) Leg., Effective September 1, 2023

December 2023

Notice to Requestor. When the county seeks a determination from the attorney general,

the county must send a written statement to the requestor indicating its decision to seek

the ruling. The notice must include a copy of the county’s letter to the attorney general.

The copies must be edited if they contain the information at issue in the request. The

notice to the requestor must be provided by the county no later than the 10

business day

(20

business day if the requestor is seeking a body worn camera recording) after the

county receives the request.

142

A failure to provide the notice to the requestor timely

creates the presumption that the information is public.

143

Comments to Requestor. The county must provide a copy of its written comments

(redacted as necessary) to the requestor by the 15

business day (25

day if the requestor

is seeking a body worn camera recording) after the county receives the request for

information.

Notice to Third Party. When the county receives a request for proprietary information

relating to a third party, the county must make a good faith effort to notify the third party

of the county’s request for an attorney general’s determination.

144

The county’s written

notice to the third party must be sent no later than the 10

business day after the county

receives the request for information, and it must include a copy of the request for

information. The notice must inform the third party that it is entitled to submit a

statement to the attorney general explaining why the requested information should be

withheld from the requestor. The county’s notice must also inform the third party that its

letter to the attorney general must be sent no later than the 10

business day after receipt

of the county’s notice.

Previous Determinations. Under certain limited circumstances, a governmental entity

may withhold information without first seeking a ruling from the attorney general that

the requested information is excepted from disclosure under the Act. The attorney

general has identified two types of previous determination decisions on which the

governmental entity may rely to withhold information.

First, an entity that has previously obtained a ruling from the attorney general related to

the specific information that is the subject of a subsequent request may rely on the earlier

decision and need not seek another ruling on the same information from the attorney

general. However, a county should be very cautious about relying on a prior attorney

142

Tex. Gov’t Code §552.301

143

Tex. Gov’t Code §552.302

144

Tex. Gov’t Code §552.305

December 2023

general decision under these circumstances because the attorney general may later decide

the information in question is not covered by an earlier ruling. The county should always

seek legal advice before withholding information under this rationale, because the law,

facts, or circumstances under which the previous ruling was based may have changed.

Do not rely on a previous determination without seeking legal advice.

The second type of previous determination decisions is broader in scope. These rulings

relate to clearly delineated categories of information that the attorney general explicitly

identifies as information that certain governmental bodies may withhold without seeking

a decision.

145

The attorney general has also issued an Open Records Decision that serves

as a previous determination for 10 categories of information that may be withheld by all

governmental entities.

146

Notice of Redaction. The county can redact information without seeking an attorney

general decision for confidential information that may be contained in commonly

requested records, including home and e-mail addresses. It must, however, also provide

the requestor with information on how to appeal the withholding of information. The

attorney general’s office has created form letters for several categories of commonly

redacted confidential information that the county may use when it has redacted

confidential information without requesting an attorney general decision.

147

Prohibited Requests for Determinations. Except under the limited circumstance

discussed below, a county is prohibited from seeking a determination from the attorney

general about whether specific information is excepted from disclosure under the Public

145

While now codified in Tex. Gov’t Code §552.1175, in ORD-670 (2000) the attorney general concluded that

the home phone numbers and addresses of peace officers and security officers, in addition to social security

numbers and information that reveals whether the officers have family members may be withheld without

requesting an attorney general decision. The attorney general held that ORD-670 is a “previous

determination” for purposes of the Act. Likewise, ORD-670 serves as a “previous determination” for

personal cellular phone numbers and personal pager numbers of peace officers.

146

ORD-684 (2009) excepts from disclosure the following: a direct deposit authorization form; employment

eligibility verification form I-9; W-2 and W-4 forms; certified agendas and tapes of closed meetings;

fingerprints; L-2 and L-3 declarations required for the issuance of a license to an officer or county jailer;

motor vehicle record information (including Texas driver’s license, license numbers, license plate numbers)

(codified in Tex. Gov’t Code §552.130) ; access device information (including credit and debit card

numbers, charge card and insurance policy numbers, and bank account and bank routing numbers)

(codified in Tex. Gov’t Code §552.136); certain e-mail addresses provided to a governmental body by a

member of the public (codified in Tex. Gov’t Code §552.137); and military discharge records that came into

the possession of a governmental body on or after September 1, 2003 (codified in Tex. Gov’t Code §552.140).

147

https://www.texasattorneygeneral.gov/open-government/governmental-bodies/responding-pia-

request/redacting-public-information

December 2023

Information Act if: (a) the county has previously received a determination from the

attorney general on the precise information at issue in the pending request; and (b) either

the attorney general or a court has determined that the information is public and must be

released.

148

To avoid accusations that you are intentionally violating this provision, you

should make certain that your record keeping includes measures for noting whether

specific information has already been determined to be public.

A county may ask for another decision from the attorney general about the specific

information if: (a) a suit challenging the prior decision was timely filed against the

attorney general concerning the precise information; (b) the attorney general determines

that the requestor has voluntarily withdrawn the request in writing or has abandoned

the request; and (c) the parties agree to dismiss the lawsuit.

Attorney General Determination Rendered. Once a determination has been made by the

attorney general’s office, not later than the 30

day after the opinion is issued, the county

must either produce the required information, notify the requestor in writing that the

county is withholding the information as authorized by the opinion, notify the requestor

in writing that the county has filed suit against the attorney general, or provide the

requestor with an itemized estimate of charges for production of the information.

149

If the

information is voluminous, there are specific notices and disclosure timelines that must

be met by the county.

150

THE EXCEPTIONS

There are more than 60 exceptions to required public disclosure of records listed in the

Public Information Act. Not all of these are of interest to county officers and employees.

The following list is not meant to be exhaustive or to completely explain how the

exceptions work. It is simply intended to give you an idea of the kinds of things that may

be excepted from disclosure under the Act. The exceptions are discussed at length in the

attorney general’s Public Information Handbook.

Confidential Personal Information and Privacy. The Act excepts from required public

disclosure “information considered to be confidential by law, either constitutional,

statutory, or by judicial decision.”

151

This is the most sweeping and important of the

exceptions, and is unique in that: (1) most of the information it excepts from public

148

Tex. Gov’t Code §552.301(f)

149

Tex. Gov’t Code, §552.306(c)(1)(3)-(5) and (d), amended by HB 3033, 88th (R) Leg., Effective September

1, 2023

150

Tex. Gov’t Code, §552.306(c)(2), amended by HB 3033, 88th (R) Leg., Effective September 1, 2023

151

Tex. Gov’t Code §552.101

December 2023

disclosure may not be released, even if the county wants to release it; and (2) many of the

interests it protects belong to third parties who may be the subjects of information kept

by the county.

Information may be considered "private" under the law if it contains highly intimate or

embarrassing facts about a person’s private affairs such that its release would be highly

objectionable to a reasonable person or if it concerns the more intimate aspects of human

affairs, such as medical matters, marriage, procreation, and family relationships.

152

For

example, the name, address and other identifying information of any person who

participates in an execution procedure is confidential.

153

Sensitive crime scene

photographs or videos depicting a deceased person in particular states are also made

expressly confidential.

154

Always contact your attorney before releasing information of

this nature.

County employees and county officials shall choose whether to allow public access to

their home addresses, home phone numbers, emergency contact information, social

security numbers, and information revealing whether they have family members.

155

The

election must be made in writing not later than the 14

day after employment with the

county begins. Always check to see whether an employee has exercised this right before

releasing such information. To be effective, the confidentiality election must occur before

a request is received. If the county receives a request for this information on an officer or

employee who has elected to keep it confidential, the county may withhold the

information without requesting a decision from the attorney general. However, the

requirement that this information be kept confidential does not apply to documents filed

with a county or district clerk.

156

This same information is confidential without the requirement to take affirmative action

for an increasing number of officials under Section 552.117 of the Code. These include

elected public officers

157

, current and honorably retired peace officers

158

, current and

former state, federal, and county judges, current and former federal, state, and county

prosecutors and their employees along with other categories of employees mostly in the

152

See Tex. Att’y Gen. Op. No. GA-0138 (2004) (Individual county commissioner is entitled to access

employee insurance records as necessary to effectively perform the commissioner’s official duties as a

member of the court subject to privacy constraints imposed by state or federal law.)

153

Tex. Gov’t Code §551.1081; Code of Criminal Procedure Art. 43.14

154

Tex. Gov’t Code §552.1085

155

Tex. Gov’t Code §552.024

156

Tex. Gov’t Code §552.117(e)

157

Tex. Gov’t Code §552.1175(a)(1).

158

Tex. Gov’t Code §552.1175(a)(1).

December 2023

law enforcement sphere the Legislature has identified as needing protection from public

access to their personal information, including information that might reveal whether the

person has family members.

Except as discussed below, the information may not be released. Nor may this

information be released when it relates to a peace officer, reserve law enforcement officer,

commissioned deputy game warden, or correctional officer if the person was killed in the

line of duty.

159

Again, the requirement that this information be kept confidential does not

apply to documents filed with a county or district clerk.

Additionally, the social security numbers and driver’s license numbers of a peace officer,

a jailer, a current or former county or district judge, and a justice of the peace listed in

voter registration applications are expressly made confidential.

160

However, if a county official or employee uses his or her personal e-mail address to

conduct county business, the personal e-mail address becomes public and may not be

redacted under Public Information Act §552.137.

161

This section protects the personal e-

mail of “members of the public” who provide their e-mail for the purpose of

communicating electronically with a governmental body.

Additionally, home addresses, telephone numbers and other information contained on

campaign finance reports, lobby reports and financial statements filed with the Texas

Ethics Commission may be subject to disclosure despite Public Information Act

§552.1175, based on the attorney general’s interpretation of laws that appear to conflict

with the Act.

162

Except that the home address of a current or former federal or state judge

or justice, including a county court at law, district court or constitutional county court

judge, or his or her spouse, must be removed from financial statements before they are

released to the public.

163

The e-mail address and phone number of an election judge or clerk is considered

confidential and is not considered public information.

164

The residence address of an

159

See Tex. Att’y Gen. Op. No. GA-1086 (2014) (A governmental entity may photocopy and retain evidence

verifying a person’s employment status as a current or former law enforcement individual; this information

is likely confidential under Tex. Gov’t Code §552.139(b)(3) protecting a copy of an identification badge of

a public employee.)

160

Tex. Election Code §13.004(c)

161

The Austin Bulldog v. Leffingwell, et al., 490 S.W.3d 240 (Tex. Civ. App. – Austin, 2016 [no pet.]).

162

Tex. Att’y Gen. Op. No. KP-0151 (2017), overruled in part by Tex. Gov’t Code §§572.032(a-1) and 572.035

(see next footnote)

163

Tex. Gov’t Code §§572.032(a-1), 572.035.

117

Tex. Election Code §32.076

December 2023

applicant to be an election judge may also be confidential under certain circumstances.

165

However, the registrar shall forward to the county chair of each county executive

committee the information necessary to contact applicants interested in working as an

election judge.

166

As a general rule, other kinds of information in the personnel files of county employees

are only subject to the protection they are afforded under the privacy doctrine and must

be released. Certain information in personnel files may be subject to specific

confidentiality statutes (e.g., medical records) or other exceptions from required

disclosure available to the county under the Public Information Act.

As discussed earlier, the privacy right belongs to the individual and not to the county.

The Public Information Act does not permit information to be withheld from a requestor

if the only reason for withholding the information is to protect the requestor’s own

privacy.

Attorney-Client Privilege. The Public Information Act incorporates the attorney-client

privilege and protects legal advice that the county’s attorney is prohibited from

disclosing under the Rules of the State Bar of Texas.

167

Attorney-client privilege is

considered confidential “under law” and may be exempted from disclosure even if the

county fails to timely request an attorney general’s opinion.

168

However, the county may

waive this exception if it discloses legal advice to any third party.

Audit Working Papers. The audit working papers of county and municipal auditors are

exempted from disclosure.

169

The exception applies regardless of the date the working

papers were created.

Commercial Information. Certain commercial and financial information, particularly

trade secrets, are protected by both the common law and statutory law. This kind of

information may come into the county’s possession in a number of ways; often it is

received in bids or proposals, or in regard to licensing or regulation. Protection of this

kind of information is usually of more concern to the business from which it was received

than it is to the county. Certain information related to the evaluation and negotiation of

165

Tex. Election Code §13.004(c)(6)

166

Tex. Election Code §13.004(c-1)

167

Tex. Gov’t Code §552.107

168

Paxton v. City of Dallas, 509 S.W.3d 247 (Tex. 2017)

169

Tex. Gov’t Code §552.116

December 2023

proposals for development of a facility through a public-private partnership may also be

withheld by the county.

170

In the case of information that may be considered proprietary business or commercial

information, the county must attempt to notify the business of the request for

information.

171

If the business objects to the release, your attorney can seek an attorney

general determination on their behalf and allow them to make their arguments directly

to the attorney general. In this way, the attorney can make sure the county doesn’t violate

the rights of a third party and protect the county from potential liability.

A trade secret is defined as “all forms and types of information, including business,

scientific, economic, or engineering information, and any formula, design, prototype,

pattern, compilation, program device, program, code, device method, technique, process,

procedure, financial data, or list of actual or potential customers or suppliers so long as

the owner of the trade secret has taken reasonable measures to keep the information

secret and the information derives value from not being generally known or readily

ascertainable by a person who can obtain economic benefit from disclosure or use of the

information.

172

Similarly, proprietary information is information submitted to a county by a vendor,

contractor, potential vendor or potential contractor in response to a request for bid,

proposal, or qualification that would give advantage to a competitor and reveal an

individual approach to work, organizational structure, staffing, internal operations,

processes, or discounts, pricing methodology, pricing per kilowatt hour, cost data, or

other pricing information that will be used in future solicitation or bid documents.

173

Contract Information. Contracting information is public and required to be released

unless exempted from disclosure.

174

The exceptions provided in the Act for trade secrets

and proprietary information do not apply to basic elements of the contract, including: (1)

the overall or total price the county will or could potentially pay, (2) descriptions of the

items or services to be delivered with the total price for each if a total price is identified

in the contract, (3) delivery and service deadlines, (4) remedies for breach of contract, (5)

the identity of all parties to the contract, (6) identity of all subcontractors, (7) the execution

170

Tex. Gov’t Code §552.131

171

Tex. Gov’t Code §552.305

172

Tex. Gov’t Code §552.110

173

Tex. Gov’t Code §552.1101

174

Tex. Gov’t Code §552.0222(A)

December 2023

dates, (8) the effective date of the contract, and (9) the contract duration terms, including

extension options.

175

Also considered public information are documents indicating whether a party to the

contract performed its duties. This includes items such as contract amendments, any

assessed or liquidated damages, key measure reports, progress reports, a final payment

checklist, a contract variance or exception, or a breach of contract.

176

County’s Negotiating Position. The Public Information Act generally permits bids and

proposals to be withheld until a contract has been awarded. An exception to this

authority to withhold is information related to receipt or expenditure of public or other

funds by a county for a parade, concert, or other entertainment events.

177

To protect the county’s bargaining, planning, and negotiating position with respect to the

purchase of property, it also excepts “information pertaining to” the location, appraisals,

and purchase price of property.

178

Court Orders. Although the Act contains an exception from disclosure for information

subject to a court order, the attorney general’s office is interpreting new language related

to ‘super public’ documents as prohibiting a court from sealing these types of documents

under the permissive exceptions in the Act.

179

A court order may still prohibit disclosure

of information that is expressly made confidential under the Act or other law, which

includes other statute, judicial decisions and rules.

Credit Card, Debit Card, or Charge Card. The Public Information Act makes confidential

information on a credit, debit, or charge card number, and any other “access device

number” which may be used to obtain money, goods, services or to initiate certain

transfers of funds.

180

Economic Development Information. Under the Public Information Act, certain

information about a business prospect with whom the county or other governmental

body is negotiating to locate, expand, or remain in the territory is excepted from

disclosure.

181

This is intended to support the efforts of governmental entities regarding

175

Tex. Gov’t Code §552.0222(B)(3)

176

Tex. Gov’t Code §552.0222(B)(4)

177

Tex. Gov’t Code §552.104(C)

178

Tex. Gov’t Code §552.105

179

Tex. Gov’t Code §§552.107(2), 552.022

180

Tex. Gov’t Code §552.136

181

Tex. Gov’t Code §552.131

December 2023

economic development within the entities’ territories. If the business prospect is being

offered any financial or other incentive by the governmental body or any incentive by

another person that may result in the expenditure of public funds or a reduction in

revenue to the governmental body, information about the incentive is excepted from

disclosure until an agreement is reached with the business prospect.

Homeland and Network Security. A county may withhold its emergency plan under

Public Information Act §552.101 excepting information considered confidential under

other law. The Texas Homeland Security Act protects information related to emergency

response providers, a tactical plan, and related contact information.

182

It also makes confidential information collected, assembled or maintained to prevent,

detect, respond to, or investigate acts of terrorism or related criminal activity.

Information related to network security, including passwords, personal identification

numbers, access codes, encryption or other components of the security system of a

governmental entity is confidential.

183

Also, information directly arising from a

governmental body’s routine efforts to prevent, detect, investigate, or mitigate a

computer security incident, including an information security log, is confidential.

184

Intra-County Memoranda. The Public Information Act protects certain inter-agency and

intra-agency memoranda to encourage frank and open discussion within government

agencies.

185

This provision has been one of the most relied upon sections of the Act since

the Act’s inception. However, this exception will only protect internal advice, opinion, or

recommendation related to policymaking matters. It will not usually except information

related to routine internal administrative or personnel matters.

Law Enforcement. The Public Information Act excepts from required public disclosure

any records relating to the detection, investigation, or prosecution of a crime for which

there has been no conviction or deferred adjudication, unless a person who is described

by or depicted in the record, other than a peace officer, is deceased or incapacitated; or if

each person who is described by or depicted in the record, other than a person who is

deceased or incapacitated, consents to the release of the record.

186

Offense reports, other

than the information normally released to the public on the front page of an offense

report, and prosecutor’s records are excepted from required public disclosure by the

182

ORD 2013-12776 (2013)

183

Tex. Gov’t Code §2059.055(B)

184

Tex. Gov’t Code §552.139(B)(4)

185

Tex. Gov’t Code §552.111

186

Tex. Gov’t Code §552.108(d), added by HB 30, 88th (R) Leg., Effective September 1, 2023

December 2023

Act.

187

A search warrant affidavit is not public until the related search warrant is

executed.

188

A county must promptly release basic information responsive to a request for

information regarding basic information about an arrested person, an arrest, or a crime

unless the county seeks to withhold the information as provided by another exception

under the Act, regardless of whether the county requests an attorney general decision

regarding other information subject to the request.

189

Because a county’s law enforcement records are some of the most requested county

records, you may want to ask your attorney to pay close attention to judicial

developments relating to this exception.

Litigation. The Public Information Act protects a governmental body's position in

litigation by forcing parties seeking information relating to the litigation to obtain it

through court processes known as "discovery."

190

However, the litigation exception to

disclosure does not apply to information related to a general, primary, or special election

that is in the possession of the county.

191

As this provision protects the county, it may be

voluntarily waived by the county, or waived by failure to seek an attorney general’s

determination within 10 days.

Personal Safety. Information relating to an employee or officer that, under certain

circumstances, would subject the person to substantial threat of physical harm is excepted

from disclosure under the Act.

192

In addition, the Supreme Court has held that the

common law protects information if its disclosure would create a substantial threat of

physical harm to a person.

193

Social Security Numbers. The social security number of a living person is excepted from

disclosure but is not considered confidential under the Public Information Act.

194

The

county may redact the social security number of a living person from any information

the county discloses under the Act without requesting a decision from the attorney

general. Before this exception was added to the Act in 2005, virtually all political

subdivisions were required to wander a maze of federal and state laws to determine

187

Tex. Gov’t Code §552.108

188

Tex. Code of Criminal Procedure Art. 18.01(b); overruling Tex. Att’y Gen. Op. No. KP-0145 (2017)

189

Tex. Gov’t Code §552.108(c), amended by HB 3033, 88th (R) Leg., Effective September 1, 2023

190

Tex. Gov’t Code §552.103

191

Tex. Gov’t Code §552.103(d), added by HB 3033, 88th (R) Leg., Effective September 1, 2023

192

Tex. Gov’t Code §552.151

193

Texas Dept. of Public Safety v. Cox Texas Newspapers, L.P., 343 S.W.3d 112 (Tex. – 2011)

194

Tex. Gov’t Code §552.147(A)

December 2023

whether the disclosure of social security numbers was required, permitted, or prohibited

in a particular situation.

However, the Public Information Act authorizes a county or district clerk to disclose

social security numbers that appear in the clerk’s records and provides that such a

disclosure is not official misconduct and does not subject the clerk to civil or criminal

liabilities. The Act also requires the clerk to redact all but the last four digits of a person’s

social security number from the clerk’s records if the person identifies the specific records

from which the partial redaction is to be made.

195

By contrast, a social security number on an application for a marriage license or on a

document submitted with the application is confidential. If the county clerk receives a

request to inspect or obtain a copy of a marriage license application, the clerk must redact

the social security number before releasing the information.

196

VIOLATIONS AND PENALTIES

Criminal Violations. Under the Penal Code, penalties for intentional destruction of a

government record range from a class A misdemeanor to a second degree felony,

depending on the circumstances.

197

The Penal Code permits the destruction of a

government record in accordance with the Local Government Records Act.

198

However,

no record can be legally destroyed under the Public Information Act or the Local

Government Records Act if there is a pending request for public information with respect

to the record.

199

Criminal Penalties. A county officer or employee who willfully destroys, mutilates,

removes without permission or alters public information commits a misdemeanor

offense punishable by a fine of not less than $25 or more than $4,000, confinement in

county jail for not less than three days or more than three months, or both the fine and

confinement.

200

A county officer or employee who distributes or misuses confidential information

commits a misdemeanor offense punishable by a fine of up to $1,000, confinement in

195

Tex. Gov’t Code §552.147(C)

134

Tex. Gov’t Code §552.141

197

Tex. Penal Code §37.10

198

Tex. Penal Code §37.10(B); Tex. Local Gov’t Code Ch. 201

199

See Tex. Gov’t Code §552.351; Tex. Local Gov’t. Code §202.002

200

Tex. Gov’t Code §552.351

December 2023

county jail for up to six months, or both the fine and confinement.

201

An offense under

this section is also official misconduct.

A county officer or employee who acts with criminal negligence and fails or refuses to

give access to public information commits a misdemeanor offense punishable by a fine

of not more than $1,000, confinement in the county jail for not more than six months, or

both the fine and confinement.

202

Official Misconduct. The Public Information Act makes it official misconduct to disclose

confidential information.

203

Under Chapter 87 of the Local Government Code, a county

officer is subject to removal from office for official misconduct. Obviously, a county

officer should be extremely careful about releasing information that may be confidential.

The wisest course of action to follow if a requestor seeks information that may be

confidential is to seek an attorney general opinion.

204

Civil Enforcement. A requestor or the attorney general may file suit for a writ of

mandamus to compel the county to make information available for public inspection.

205

A suit for declaratory judgment or injunctive relief may also be filed against the county.

206

If the county or district attorney determines not to bring an action for declaratory

judgment or injunctive relief, the complainant may file a complaint with the attorney

general.

207

If a court rules against the county or if the county voluntarily releases the

requested information after filing an answer to the suit in either type of action, a court

can assess costs of litigation and attorney fees against the county.

208

In determining if a governmental entity “refused” to provide public information to a

requestor, a court has held that because the governmental entity could not compel the

disclosure of public information e-mails located on private e-mail accounts and had made

available all the information at its disposal, it did not violate the Public Information Act.

209

201

Tex. Gov’t Code §552.352

202

Tex. Gov’t Code §552.353

203

Tex. Gov’t Code §552.352(C)

204