September-October 2016

Keeping the government’s actions in the clear

I recently bought a new charcoal grill. When I opened the lid to use it for the first time, I laughed when I noticed the warning inside: “For Outdoor Use Only.” I thought to myself, Who would possibly think it safe to light a charcoal grill indoors? Obviously, somebody somewhere didn’t have the good sense to keep his grill on the patio where it belongs, he incinerated his living room, and now Weber is putting everyone on notice to keep their grills outside.
    Absurd warnings like this one are everywhere. (My wife bought a hair dryer that advised her not to use it while sleeping.) As lawyers, we all know that ridiculous warnings like these exist only because somebody devoid of common sense misused a product, got hurt, and sued the manufacturer for damages. And now those manufacturers are obliged to warn everyone else who is similarly situated.
    Some of our society’s laws have similar origins. The Texas Public Information Act, for instance, was born from the ridiculous actions of those up to no good. In January 1971, attorneys for the Securities and Exchange Commission filed a federal lawsuit in Dallas alleging stock fraud against a number of Texas legislators. With a scheme that would make Bernie Madoff proud, several state lawmakers got rich with quick-turnaround stock sales that were financed by the Sharpstown State Bank in exchange for banking legislation. After this scandal came to light, it would be called the Sharpstown Scandal. The resulting lawsuit and several successful criminal prosecutions of those involved resulted in a big loss of conservative Democrats in the 1972 election.
    The newly elected, less conservative Democrats and Republicans went into the 1973 legislative session with reform on their agendas, and the Open Records Act [now known as the Public Information Act (PIA)] was one of the many laws passed that session. The Act is rooted in the ideal that a successful democratic government requires an informed citizenry. As it exists today, the Act places a substantial number of obligations on county and district attorney’s offices. Knowledge of these obligations and how to correctly perform them is an essential part of our duties as attorneys and government employees.
    At the heart of the Texas Public Information Act (which is codified in Chapter 552 of the Texas Government Code) stands the principle that government exists to serve the people and not vice versa. The Act expressly states that it is the policy of the State of Texas that each person is entitled to complete information about government affairs and official acts of public officers and employees. Under the Act, public servants are expressly denied the right to decide what information is and is not good for the public at large to know. It is expressly stated that the provisions of the Texas Public Information Act will be construed liberally to implement this principle and in favor of granting public requests for information.

What is public information?
The definition of public information within the Act is predictably broad. It includes “information that is written, produced, collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business” of a governmental body, for the governmental body, or by an individual officer or employee of a governmental body in the officer’s or employee’s official capacity and the information pertains to official business of the governmental body.
    For offices like ours, “public information” includes mundane things like personnel files and employee salaries, but it also encompasses much more sensitive information: our case files, the contents of our emails, and our written correspondence with victims. But don’t panic! There are some very, very limited exceptions (which we will get to later) that protect some of this information. A non-exclusive list of examples of public information can be found within the Act.

Requests for disclosure of information
There are a significant number of scenarios in which the public may request disclosure of records maintained by a prosecutor’s office. If we are lucky, the requestor will have a clear objective for the information she’s requesting. Intrepid reporters will make the majority of public information requests—they’ll want to get the scoop on a recent criminal offense. But not every public information request will be media-related. Civil attorneys will want to see what information in a DWI case is going to help them win in civil suits. Concerned taxpayers will want to see how money in the office is spent. There is really no end to the variety of public information requests to which an office will end up responding.
    Sometimes, the requestor’s end game won’t be so obvious. An attorney from New York once requested the start and end dates of every employee in our office back to a specific date in 1992. It was a puzzling request that we simply had to deal with because we are prohibited from asking the requestor why he is requesting the public information.
    If your office has not already done so, it should designate someone as the “public information officer” (PIO) and have that person respond to requests under the Act. Having a public information officer is not required under the Public Information Act, but it is helpful in a lot of different ways. First and foremost, directing public information requests to one person (or one group of people) encourages those people to familiarize themselves with all of the particulars of the Act itself. Secondly, it gives the community a public face to identify when their need for public information from within your office arises. It’s not necessary that the PIO be a licensed attorney, so don’t be afraid to designate an investigator or clerk as the public information officer if an attorney is not available.
    If you are in a smaller office like mine, it might not be practical for a single person to be solely responsible for responding to PIA requests, so make sure that anybody who might respond to these requests is trained on your office’s responsibilities in doing so. I would also strongly advise having a formal, written policy on the Public Information Act. It will help those people tasked with responding to requests.
    The only requirements for validity under the Act are that the request 1) is in writing (though there isn’t any particular form that the request must take) and 2) reasonably identifies the information that is being sought. Many requests, especially those coming from out of state, might come into your office under the guise of a “Freedom of Information Act Request” under the federal code. Requests made in this name, even though applicable to federal agencies only, should be treated as requests made under the Texas Public Information Act.
    If the information the requestor seeks isn’t clear, the governmental agency is required to contact the requestor for clarification. Subpoenas duces tecum and requests for discovery are not considered requests under the Texas Public Information Act.

Responding to the request
Most of what the public information officer needs to know about producing the requested public information is found in §552.221. An office’s public information officer must produce the public information requested for inspection and/or duplication “promptly.” Our friends in the legislature define promptly as “as soon as possible under the circumstances, within a reasonable time, and without delay.” We can also comply with the request by sending copies of the documents via first-class mail or directing the requestor to an agency’s website if the requested information is readily identifiable online.
    Sometimes the governmental body will be actively using the information or the information will be in storage. If this is the case, the requestor must be given a date and time when the information will be available. If there is going to be a delay of more than 10 business days before the information can be produced for inspection or duplication, the governmental body must set a date within a reasonable time when the requested information will be available.
    The public information officer has to comply with requests only for records that exist at the time the request is made. There is no obligation to advise the requestor if additional information comes into existence later or if it may come into existence later. There is no obligation to do legal research on behalf of the requestor or organize the requested information for the requestor. The only caveat is that when information is available in electronic format, the public information officer must provide information in that format if it can. If a requestor repeatedly makes requests for the same information that you have already provided, the PIO may certify that the information has already been provided rather than complying with the request again.

Any prosecutor who has ever handled a crime against a person knows that we sometimes have loads of confidential information in one of our case files. The drafters of the Act were not so unreasonable as to require us to hand this confidential information over. In specific instances, the Act allows governmental bodies to redact information; those instances are detailed in Subchapter C. The Act handles redactions in two different ways: For certain redactions, such as Social Security numbers, there is no recourse for requestors. For others, the requestor can seek a decision from the Attorney General about the matter. When you are redacting information, I suggest you consult the provision of Subchapter C authorizing the redaction to determine whether the requestor can subsequently seek action from the Attorney General.

Reasonable charges
Often, public information will be in a variety of formats. If the information is electronic (such as footage from body or dashboard cameras), you may provide that to the requestor in a similar electronic format. But as any county commissioner will tell you, writable DVDs and CDs, paper, and copy toner don’t come cheap. The Act recognizes this too and allows government agencies to reasonably charge the requestor for the costs associated with responding to his request. Definitely consult Subchapter F if you plan to assess any sort of charge for the production of the public information.

Exceptions and the Attorney General
If a well-meaning piece of legislation like the Public Information Act is going to be successful, it must have some exceptions. The Act has plenty of narrowly drawn exceptions, some of which prosecutors utilize with regularity. The procedure for doing so is pretty specific, so take care when deciding not to disclose information.
    The exceptions to disclosure are in Subchapter C of Texas Government Code Chapter 552. Not all of these exceptions are going to be applicable to a county or district attorney’s office, but if your office frequently counsels other county officials, consult Subchapter C before you advise an official on whether an exception applies.
    The public information exception of most interest to a prosecutor’s office is in §552.108. I strongly suggest that every public information officer have a hard copy of the entirety of this section on hand. That section allows information to be withheld if the release would interfere with the detection, investigation, or prosecution of a crime. Mental impressions and legal reasoning of prosecutors are also exempt under this section.
    Texas Government Code §552.1085 is also helpful for prosecutors: It covers the release of sensitive crime scene images. However, a handful of individuals are allowed to view these images in spite of the exception, including next of kin, a defendant or the defendant’s attorney, and researchers with institutions of higher education.
    If you receive a request for public information or are advising a county official on whether he must disclose information, and you conclude that a public information exception applies to the requested information, consult Subchapter G. It details the process for requesting an Attorney General opinion on whether the requested information falls under one of the exceptions in Subchapter C.
    The basics of requesting an AG opinion on public information requests is similar to requesting an opinion on any other point of law. Within 10 business days of receiving the public information request, you must state for the Attorney General what public information is being sought and what exception(s) you believe apply. Once you have sent this request to the AG’s office, provide the requestor a written statement (within 10 business days of receiving the request) that your office wishes to withhold the requested information and that your office has asked for a decision from the Attorney General about whether the information falls within an exception to public disclosure. You must also send a copy of the written communication to the Attorney General asking for the decision or, if the written communication to the AG discloses the requested information, a redacted copy of that written communication.
    Within 15 days of receiving the request for information, you must send the AG written comments stating the reasons why you believe the exceptions apply, a copy of the written request for information, a signed statement as to the date on which the written request for information was received by the governmental body (or evidence sufficient to establish that date), and a copy of the specific information requested (if a voluminous amount of info was requested, you can submit representative samples of it). Label the copy of the specific information or of the representative samples to indicate which exceptions apply to which parts of the info.
    A governmental body that submits written comments to the Attorney General shall send a copy of those comments to the person who requested the information not later than the 15th business day after receiving the written request. As before, these comments can be redacted.
    Be very diligent with public information requests where you believe an exception applies. The sooner you send off the request to the AG, the better. If you fail to make this request to the AG’s office on time, the information is presumed public. Don’t put yourself in the position of having to explain to your elected DA, law enforcement agency, or a crime victim why sensitive information was released and your chances for a successful prosecution were comprised.

Criminal penalty
Criminal penalties for violation of the Public Information Act are found in Subchapter I. There are three potential violations contained within the Act; all three are misdemeanors punishable by fine and/or jail time.
    Why are these violations important? On one hand, we are all prosecutors and could very well find ourselves in a situation where we could be the attorneys in charge of prosecuting one of these violations. These prosecutions are not common by any stretch of the imagination, but take the time to familiarize yourself with the basic framework of PIA violations. It’s never fun to have a well-informed citizen or an upset criminal investigator in your office explaining the law to you.
    On the other (probably more important) hand, these offenses are capable of being committed within a prosecutor’s office. Think about some of the people we deal with on a day-to-day basis who would relentlessly pursue a member of a county or district attorney’s office for committing one of these violations. I encourage you all to deny them the pleasure and train everyone in the office on the basics of the Texas Public Information Act. There isn’t a prosecutor, investigator, or supporting staffer who doesn’t need a primer on the Act and a copy of the office’s record retention policy. Even though I wasn’t able to find any cases where a prosecutor’s office violated the PIA, I’m sure you won’t want to be the first. And there are a few examples where other governmental agencies got themselves mixed up in a suit with the AG’s office. Let them be a warning to all of us.

The Public Information Act is an unfamiliar law for a lot of prosecutors—but it shouldn’t be. Take time to familiarize yourself with this legislation, bring staff up to speed on its content, and keep them updated on the periodic changes from the legislature. Don’t let a lack of training on this law burn you or a member of your staff.

1, accessed July 31, 2016.

2, accessed July 31, 2016.

3 Id.

4 Id.

5  Texas Gov’t Code §552.001(a). (All subsequent statutory citations will refer to the Texas Government Code.)

6  §552.002.

7  §552.022.

8  §552.222(a). While the governmental agency can’t inquire as to the reason for the requested information, if the request is voluminous the agency can confer with the requestor to see how the request might be more tailored, as provided by §552.222(b).

9  §552.222.

10  §552.0055.

11  §552.221(a).

12  §552.221(b)­–(b-1).

13  §552.221(c).

14  §552.221(d).

15  §552.002.

16  §552.228(b).

17  §552.232.

18  §552.147.

19  For example, see §552.138(d).

20  §552.228(b).

21  §552.262–275.

22  §552.108(a)(1).

23  §552.108(a)(4).

24  §552.1085(d)(1-8); be sure to see this section for an exhaustive list.

25  §522.301(a)–(b).

26  §522.301(d)(1).

27  §522.301(d)(2).

28  §522.301(e).

29  §522.301(e-1).

30  Id.

31 §522.302.

32  §522.351-353.