The Texas Public Information Act for Beginners

Sean NottinghamAssistant Attorney General

Open Records Division

Views expressed are those of the presenter, do not constitute legal advice and are not official opinions of the Office of the Texas Attorney General

Step 1: Recognizing a request that triggers the Act Step 2: Identifying the responsive information Step 3: Calculating the deadlines Step 4: Determining whether a cost estimate is needed Step 5: Gathering the responsive information Step 6a: Releasing the information and/or withholding the

information that does not require a ruling Step 6b: Seeking a ruling from the Office of the Attorney

General (“OAG”) Step 7: Waiting for the ruling Step 8: Receiving the ruling

Step by step…

Setting Up the Situation

I work for the City of Pawnee (the “city”) as the Public Information Coordinator.

On June 30, 2015, a reporter with the Pawnee Journal, Shauna Malwae-Tweep, walks in the door of my office and hands over a request filled out on a city public information request form.

Step 1: Recognizing a request that triggers the Act

Must be in writing to trigger the PIA, typed or handwritten

Must ask for information in existence as of the date the request was received• No requirement to create new documents• No requirement to answer questions• No requirement to perform legal research

No “magic words” required

No requirement to label it as an open records request or public information request

Cannot require the use of a specific form to submit request

The Request

“I am requesting copies of • Garry Gergich’s personnel file and • All emails sent between December 1, 2012, and March

31, 2013.”

Step 2: Identifying the responsive information

If there is no responsive information, let the requestor know as soon as possible. However, if the request is unclear or overly broad…

Gov’t Code § 552.222

Cannot ask requestors why they want the information

Can ask requestor to clarify request and/or discuss with requestor how scope of request might be narrowed

When a governmental body, acting in good faith, requests clarification or narrowing of an unclear or over-broad request, the 10-business-day period to request an attorney general decision is measured from the date the request is clarified or narrowed.• City of Dallas v. Abbott, 304 S.W. 3d 380, 387 (Tex. 2010)

Should we seek clarification?

Is there even an individual named Garry Gergich who works for the city? If not, then we’d need to clarify to know if there was a typo or some other misunderstanding.

All emails between certain individuals or involving certain city departments? All emails discussing a particular topic or containing specific terms?

Clarification Received on July 1, 2015

The requestor confirms via e-mail she…

• wants the personnel file of Garry Gergich who works for the city’s Parks and Recreation Department and

• is looking for emails containing any of these terms: Garry Gergich, Jerry Gergich, Larry Gergich, Terry Gergich, Barry Gergich, burrito, Pawnee Animal Control, mural or murinal

Step 3: Calculating the Deadlines

On what day do we start counting?• We originally received the request on June 30, 2015;

however, we sought and received clarification of the request on July 1, 2015. When a governmental body, acting in good faith,

requests clarification or narrowing of an unclear or over-broad request, the 10-business-day period to request an attorney general decision is measured from the date the request is clarified or narrowed.• City of Dallas v. Abbott, 304 S.W. 3d 380, 387

(Tex. 2010)

What days do we count?

Counting Business Days

General Rules for Counting Business Days

• Start counting the next business day after receiving a written request.

• “Received” means when it is physically received, not when it is finally opened or read (this includes email).

• Saturdays, Sundays and holidays do not count.

• Skeleton crew days and days the GB is closed do not count, but make sure you notify the OAG of such days in writing if you are requesting a decision.

Counting Business Days - July 2015

Sunday Monday Tuesday Wednesday Thursday Friday Saturday

30

written request received

1

clarificationreceived

2

1

3

Holiday(observed)

4

5 6

2

7

3

8

4

9

5

10

6

11

12 13

7

14

city closed, weather

15

8

16

9

17

10th

Business Day

18

19 20

11

21

12

22

13

23

14

24

15th Business Day

25

Step 4: Determining whether a cost estimate is necessary

If the cost for complying with the request will exceed $40, you will need a cost estimate letter.• Ms. Malwae-Tweep’s clarification will prevent this from

being necessary here.

Our office has created a cost letter generator, the Public Information Cost Estimate Model.

Assists governmental bodies in creating cost estimates

The tool is available at:• https://www.texasattorneygeneral.gov/og/public-

information-cost-estimate-model

Step 5: Gathering the responsive information

Now that we know the deadline, we need to get in contact with the people who have the responsive information and give them a deadline to get us the information that still allows us adequate time, before the expiration of the deadlines, to decide what information may be released immediately and what information the GB wants to withhold.• HR for the personnel file• Email relevant employees who would have emails

containing the terms for that time period If you have one, an IT department may be able to

help you locate the responsive emails.

Responsiveness

Within a couple of business days, the HR department and the relevant employees and/or the IT department forward you the information they located.

Quick checklist to determine if the information is responsive:• Right individual?• Right date range?• Right terms?

Any information that is not responsive can be set aside; it is no longer relevant for purposes of complying with the Act.

What Are Our Options at This Point?

Sections 552.221 and 552.301 of the Government Code

A governmental body must:• Promptly produce information for inspection, duplication

or both; • Ask for a decision from the OAG about whether the

information is excepted from disclosure, unless there has been a previous determination that the information is excepted; or

• Some combination of both.

Step 6a: Releasing the information and/or withholding the information that does not require a ruling

I have to decide what information I want to release and what information I want to seek to withhold.

From chatter around the water cooler, I am aware that Garry is currently suing the city for wrongful termination and hostile work environment. After consulting my copy of the Public Information Handbook, I know section 552.103 of the Government Code may be available to the city to protect the information if it relates to Garry’s lawsuit. Let’s take a look at the documents.

Reviewing the Personnel Records

As I look at the personnel records, I don’t see anything that is in need of protection in light of the pending litigation. So I’m deciding this information should be released.• Before I do, though, I want to make sure there is not

otherwise confidential information located in these records.

• If there is, I may still need to send it off for a ruling; however, if the only confidential information that needs to be withheld can be redacted without seeking a ruling, I can dispose of the personnel records without involving the Open Records Division.

When Can You Redact Without First Seeking a Ruling? (Slide 1 of 2)

Withholding information without requesting a ruling• Gov’t Code § 552.130

Information related to driver’s license, motor vehicle title or registration, or personal identification document

• Gov’t Code § 552.136 Credit card, debit card and access device numbers

• Gov’t Code §§ 552.024, 552.1175 and 552.138 Personal information of certain public employees

A governmental body must use the form letters available on the Attorney General’s website to inform requestors of redactions made under these sections without a ruling.

Open Records Division Formswww.texasattorneygeneral.gov/open/ord_forms.shtml

When Can You Redact Without First Seeking a Ruling? (Slide 2 of 2)

Withholding information without requesting a ruling• Open Records Decision No. 684 (2009)

Previous determination for several types of information

• Open Records Decision No. 670 (2001) Previous determination for personal information of

peace officer

How Much Time Do You Have to Produce Information?

Section 552.221 of the Government Code

“Promptly” means as soon as possible under the circumstances; that is, within a reasonable time, without delay.

If you cannot produce information within 10 business days after the date the information is requested, you must certify that fact in writing to the requestor and set a date and hour within a reasonable time when the information will be available.

Step 6b: Seeking a ruling from the OAG

After looking at the emails, and thinking about the specific terms the requestor is asking for, I decide these emails likely relate to the lawsuit Garry filed last year. In order for section 552.103 of the Government Code to apply, however, the lawsuit would need to have been pending at the time the city received the request from Ms. Malwae-Tweep.

To confirm this, I decide to contact the city’s legal department and inquire about Garry’s lawsuit. The legal department confirms the lawsuit was filed prior to the city’s receipt of the request and concurs with my judgment that these emails relate to the pending litigation and should not be released.

How Much Time Do You Have to Request a Decision from the OAG?

Section 552.301(a)-(b) of the Government Code

If you wish to withhold information from the requestor, you must request a decision from the OAG not later than the 10th business day after the date of receiving the public information request.

You must request a decision within 10 business days, unless you have a “previous determination.”

Procedures for Requesting a Decision from the OAG (Slide 1 of 3)

Sections 552.301 and 552.305 of the Government Code

Not later than the 10th business day, you must:• Ask the OAG for a ruling and state the exceptions that

apply;• Notify the requestor in writing that you have asked for a

ruling;• Provide the requestor a copy of your letter to the OAG

requesting a ruling; and• Notify any third parties with proprietary interests in the

requested information that they may submit written comments to the OAG stating why the information should be withheld (third-party notice must be in the form prescribed by the OAG).

Procedures for Requesting a Decision from the OAG (Slide 2 of 3)

Section 552.301(e)-(e-1) of the Government Code

Not later than the 15th business day, you must:• Submit written comments stating the reasons why the

stated exceptions apply that would allow the information to be withheld.

• Submit a copy of the written request for information.• Submit a signed statement as to the date on which the

request for information was received by the GB or evidence sufficient to establish that date.

Procedures for Requesting a Decision from the OAG (Slide 3 of 3)

Section 552.301(e)-(e-1) (continued)

Not later than the 15th business day, you must:• Submit a copy (not your original) of the specific

information requested, or submit representative samples of the information if a voluminous amount of information was requested.

• Label that copy of the specific information, or representative samples, to indicate which exceptions apply to which parts of the copy.

• Send a copy of your written comments to the requestor.

Label, Label, Label!

Send copies, not originals, of the documents at issue• Do not apply redactions to documents you are

submitting for our review.• If we can’t read it, we can’t rule on it.

Mark all submissions clearly, carefully and consistently.• Make sure all exhibit numbers on documents match up

with exhibit numbers in the brief.• Make clear what has been released to the requestor and

what hasn’t.• Reference all previous correspondence with ORD on all

future, related correspondence.• If you have previously received a ruling on the same or

very similar information, let ORD know.

What is This?

Please provide adequate background information on the documents submitted. Do not take anything for granted.• How are these documents responsive?• How are they related to the pending investigation,

litigation, etc.?• Who are the parties mentioned in the documents?• What is their relationship to the governmental body?• What, if anything, has already been released?• Do you have a pending cost estimate or complaint?• What does your governmental body do? If you have a

law enforcement function, please tell us.

Section 552.303(c)-(e): 7-day letter• Receiving one of these letters means we need more

information to issue a ruling.• Failure to respond in a timely fashion may result in the

legal presumption the information subject to the open records request is subject to required public disclosure and must be released.

Section 552.306: 10-day letter• This means we need more time to handle your file.• We can only extend our deadline once.

Step 7: Waiting for a ruling

Step 8: Receiving the ruling

Follow the ruling

Call the Open Government Hotline

Gov’t Code§552.301(f): requests for reconsideration are prohibited

Challenge the ruling in court

Questions?

OAG’s Open Government Hotline(877) OPEN TEX

(512) 478-6736

Cost QuestionsOAG Cost Rules Administrator

(888) OR-COSTS (512) 475-2497

OAG website

www.texasattorneygeneral.gov