Texas Public Information Act. Lara Nehman, Texas Rural Water Association Telephone: LaraNehman[at]earthlink.net

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1 Texas Public Information Act Lara Nehman, Texas Rural Water Association Telephone: LaraNehman[at]earthlink.net 1

2 Texas Public Information Act Codified at Tx. Gov t. Code Chapter 552. Requires that government records must be made available to the public, with few exceptions. Recent legislation requires that board members of governmental bodies subject to the Act, or their designated public information coordinator, take a one-hour training course on the Act that is approved by the Attorney General. This training session is an abbreviated overview of the Act and does not satisfy the new training requirement. 2

3 Who is required to provide information under the Public Information Act? "Governmental Bodies" as defined in Texas Government Code section , include: City councils County commissioners courts District boards State agency boards or commissions Governing bodies of nonprofit water supply and sewer service corporations that are exempt from ad valorem taxation under Section 11.30, Tax Code 3

4 Who is required to provide information under the Public Information Act? Sections The chief administrative officer (i.e. board president) of a governmental body is the "officer of public information." This person must protect public information and upon request make it available to the public for copying or inspecting. Employees of a district, city, or WSC are agents of the officer of public information. Boards of directors often appoint a public information coordinator, a staff person who assumes the responsibilities of the officer of public 4 information.

5 What type of information is public and must be released? Recorded information in any medium, including written, tape-recorded, ed, and faxed. Even hand-written notes on scraps of paper or on the edges of a document are public information. There is a presumption that all the government s records are "public" and must be released. A specific exception must be found in the law in order to withhold information from a member of the public. 5

6 What type of information is public and must be released? The Act applies to information already in existence and does not require a governmental body to prepare new information in response to a request. There is no requirement to perform legal research or to answer a question. It does not matter where the information is kept. Government records kept in a board member s or office manager s home or private computer are subject to the Act. 6

7 Examples of information considered public that must be released Completed reports, audits, financial statements, general ledger, and other financial records The name, sex, ethnicity, salary, title, and dates of employment of each employee and officer of a governmental body The name of each official and the final record of voting on all proceedings in a governmental body 7

8 Examples of information considered public that must be released Minutes of board, annual, and special meetings, but not certified agendas or tape recordings of executive sessions Administrative staff manuals and instructions to staff that affect a member of the public Note for water/sewer utilities: All reports and records required by EPA or TCEQ rules are public information. 8

9 What are the exceptions? Information excepted from required disclosure includes: Litigation or Settlement Negotiations ( ). Information related to competition or bidding if it would give advantage to a competitor or bidder ( ). Information related to location or price of property prior to announcement of project or award of contract for property ( ). Attorney-client privileged information ( ). Credit card information provided by customers ( ) 9

10 What are the exceptions? Personnel Information if the disclosure would constitute a clearly unwarranted invasion of personal privacy ( ) applies to former as well as current public employees. Section excepts from disclosure information relating to a current or former employee s home address, home telephone number, social security number, or whether the person has family members, if that person elected that this information be kept confidential pursuant to Section

11 What are the exceptions? Customer information, if requested by customer in writing that it be kept confidential (Texas Utilities Code section ). Customer address, without customer consent ( ). Social security numbers ( , S.B. 1485, 79th Legislative Session). New law says that social security numbers may be redacted (blacked out) from any information the governmental body discloses without having to request a decision from the attorney general. 11

12 What are the exceptions? Certain information related to terrorism (Government Code ). Information collected, assembled, or maintained by or for a governmental entity for the purpose of preventing, detecting, or investigating an act of terrorism or related criminal activity. Documents assessing or identifying details of particular vulnerabilities of infrastructure to an act of terrorism or related criminal activity. Access codes and passwords that relate to the specifications, operating procedures, or location of a security system used to protect against an act of terrorism or related criminal activity. 12

13 Does it matter whether the information is requested verbally or in writing? A request may be made verbally or in writing, but a verbal request does not trigger the requirements of the Act, so a good policy is to require that all requests be submitted in writing. 13

14 When & where must the information be provided? Information must be provided "promptly," meaning as soon as possible and within a reasonable time. If information cannot be produced for inspection or duplication within 10 business days (days open for business), the officer shall certify that fact in writing to the requestor and set a date and hour within a reasonable time when the information will be available. Information may be made available for inspection or duplication in the offices of the governmental body during normal business hours, or sent by first class mail if requestor pays postage and any other applicable charges ( (b)(2)). 14

15 What can a governmental entity charge for copies of records? The OAG adopts rules for use by each governmental body for providing copies of public information. The OAG s Cost Rules Administrator is responsible for this. Examples: Standard paper copy - $.10 per page CD/Diskette - $1.00 DVD - $3.00 Audio cassette - $1.00 Oversize paper - $.50 15

16 Can you say no to a public information request if it falls under an exception? You can t just say no and leave it at that. A governmental body that considers requested information to be within one of the exceptions, must ask for a decision from the attorney general about whether the information is within the exception. Information is presumed public if an attorney general ruling is not requested within 10 business days. 16

17 Requesting a ruling from the Attorney General 1. Letter request must include: (1) document(s) in question or representative sample(s); (2) signed statement as to date request was received; and (3) exceptions and why they apply. 2. Must inform requestor that information is being withheld, that AG ruling has been requested, and must provide requestor with copy of AG request (except for information sought to be protected). 3. If request involves 3 rd party s proprietary information, must attempt to inform 3 rd party of the request, so they can assert to AG why their information should 17 be withheld.

18 Requesting a ruling from the Attorney General Within 10 business days after receiving request, governmental body must request an opinion and inform requestor and 3 rd parties. If governmental body does not have enough time to provide all the required information within 10 business days, they still must submit a letter within 10 business days stating that they seek an AG decision and the exceptions that apply, but they have until the 15 th business day to send a more detailed request with all the required information. 18

19 Attorney General Response OAG s office has 45 business days to issue a ruling. If they need more time, they can have one 10-business day extension. If OAG decides that an exception to the PIA applies, the governmental body is not required to release the information. If OAG determines that no exception applies, then the governmental body must release it. 19

20 Is a records retention schedule required? The Texas State Library and Archives Commission Retention Schedule for Records Common to All Local Governments is required for districts and cities and recommended for water supply corporations. It's available on-line at: s/grpdf.pdf 20

21 Records Retention Schedule Examples: Open meeting minutes or tape recordings permanent (exception: if written minutes were kept in addition to tape recording, tape recording may be discarded 90 days after approval of the written minutes) Open meeting notices - 2 years Board resolutions - permanent Customer complaints - resolution or dismissal of the complaint + 2 years Deeds & easements permanent 21

22 Records Retention Schedule Insurance policies - 4 years after expiration or termination of the policy Open records requests - 1 year after final decision on request Audit records, annual budget, financial reports - permanent Working papers for preparation of budget - 2 years Maintenance and repair records for facilities, vehicles, or equipment - 2 years 22

23 TCEQ Rules Are a Separate Source of Records Retention Schedules Sampling site data for lead and copper, including analysis results, letters, surveys, evaluations, schedules, TCEQ ED recommendations, tap water monitoring locations, etc years minimum (30 TAC (m)(2)) Notices of violations and records of corrective actions; copies of public notices issued by water system; distribution system disinfectant monitoring results - 3 years minimum (30 TAC (f)(3)(B)(i)-(iii)) Monthly operating reports and supporting documentation - 10 years minimum (30 TAC (f)(3)(E)(i)) Well completion data, geologic logs, sealing information, chemical analyses of representative sample of water from well, etc. - must be retained as long as well remains in service (30 TAC (n)(3)) 23

24 Criminal Offenses Willful destruction, mutilation, removal without permission, or alteration of public information Distribution of information considered confidential under the Act With criminal negligence, an officer for public information or their agent fails or refuses to give access to or refuses to permit or provide copying of public information to a requestor Penalties may include fine of up to $4,000, up to 6 months in county jail, or both, depending on the offense 24

25 Informing Public of Their Rights and Governmental Body s Responsibilities Officer for public information shall prominently display a sign in the form prescribed by AG that contains basic information about the rights of requestor, responsibilities of governmental body, and procedures for inspecting or obtaining a copy of public information under the Act. Must display in one or more places in administrative offices where plainly visible to members of the public who request information and employees of governmental body whose duties include receiving or responding to requests. AG prescribed sign is legal sized (8-1/2 x 14 ) and available on AG website 25

26 Sources for Help on PIA Issues Attorney General s Public Information Handbook - download from Attorney General website at: order by calling (800) , or fax request to Attorney General s Open Government Hotline: (877)

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