OPEN GOVERNMENT 101 2018 PREPARING TO TAKE OFFICE WORKSHOP All elected officials are required to take Public Information Act training within 90 days of taking office. County commissioners and judges are required to take Open Meetings training within 90 days of taking office. PUBLIC INFORMATION ACT THE BASICS SUPER-PUBLIC INFORMATION • The Public Information Act: Texas Government Certain categories of information are considered “super public” and must be disclosed (552.022, Code Chapter 552 552.0221, 552.0225). • Don’t write anything down unless you want your For example: family to read it in the local paper. • • Final audit and investigation reports Public has a right to see almost every document related to county business. • Name and salary of public employees • Law applies to ALL public officials. • Billing information • The county’s records are public property - • Investment information including those you keep at home. • Rules and procedures • Law applies to electronic records and e-mail - • Settlement information including information on your personal mobile device. REQUESTING AN AG RULING • Law often referred to as: Open Records Act or • Best practice is to consult your county attorney Freedom of Information Act. and have him or her write the Attorney General • Judicial records are not subject to Public (AG). Information Act, but are available to public • Collect all documents ASAP and identify both under Rule 12 of the Texas Rules of Judicial the specific information that may be Administration. confidential and the exception to the Act. RIGHTS OF THE PUBLIC • Be sure to comply with deadlines or you may be • required to disclose information. Public has a right to make a written request for access to or copies of a public record. Any • If county requests the AG’s permission to written request, including e-mail, will do. withhold information it will be under two types • of exceptions: Requestor is not required to use magic words. • • Permissive (can release if wants to) Public may not have a right to access certain documents that are confidential under the Act • Mandatory (must withhold) or other law. • If AG rules for county, requestor can sue county • Requestor does not have a right to rummage to require disclosure. through your files or disrupt county business. • If AG rules against county, county can sue AG in • Requestor may have a right to bring in their own state district court to overturn AG ruling. copy machine or scanner. 1 | P a g e
• Submit a signed statement as to the date you BEST PRACTICES received the request for information. As soon as you or one of your employees receives a • Submit written copy of specific information written request for documents that might be public requested (or representative sample) records: • Label written copy to indicate portions where • Date stamp the request exceptions apply • Immediately locate the records • Send copy of your comments to requestor • Notify your county attorney if you think you may DO’S AND DON’TS need to withhold some of the records • DO produce records as quickly as possible with RECORD RETENTION the least fuss. • If you don’t have the record because you have • DO request clarification if you do not disposed of it under your schedule, you don’t understand what is being requested or if it is have to produce it. very broad. • If you still have a public document you could • DON’T ask a requestor why he or she wants the have destroyed, you must produce it. records. THE 10-DAY “RULE” • DON’T create a record that does not exist to comply with a request. Within 10 business days after receiving the request, • DON’T try to comply with a “standing” or on- you must: going request. • Produce the records or notify the requestor when they will be available; or COSTS & CHARGES • Request an AG’s ruling authorizing you to • AG’s Office determines allowable charges for withhold the records records. Records are presumed to be public and you must • County may charge for labor and overhead for produce them if, within 10 business days, you fail to big requests, but must send an estimate in either: advance and get requestor’s acceptance. • Produce the records or notify requestor of time • County may also require a bond or deposit for they will be available; or large request. • Request an AG’s ruling authorizing you to • County cannot require requestor to obtain or withhold the records pay for copies if the request is for access only. CONFIDENTIALITY EXCEPTIONS TO DISCLOSURE • There is potential civil liability for disclosure of Remember - you must request an AG ruling to claim documents subject to a valid claim of an exception in most cases. confidentiality. AG Open Records Decision No. 684 lists information • If you have any question about whether to that doesn’t require an AG ruling to withhold, release a record – request an AG determination. including information about a: ORD REQUESTS • Personal tax return • Driver’s license number If requesting an open records decision (ORD) from the AG, by the 15th business day, you must: • Social Security number • Submit written comments stating what • Credit card number exceptions apply • Personal e-mail address • Submit a copy of the request for information 2 | P a g e
• Military record information Fine up to $1,000 o • Jail up to 6 months Certified agenda and tape of executive session o Both fine and jail o EXCEPTIONS OF IMPORTANCE Official misconduct (automatic removal) o Include information that is: • Unlawful disclosure of confidential information: • Considered confidential by law (constitution, Misdemeanor statute, court order) Fine up to $1,000 o • A clearly unwarranted invasion of personal Jail up to 6 months o privacy Both fine and jail • o Related to competitive bidding that is confidential Official misconduct (automatic removal) o • • Involved in law enforcement prosecution Destroying, altering or concealing public record: • A private communications of an elected official Misdemeanor if disclosure would constitute an invasion of Fine – $25 minimum to $4,000 maximum o privacy Jail – 3 days minimum to 3 months o • Related to ongoing litigation maximum EXCEPTIONS FOR PERSONAL INFORMATION Both fine and jail. o NOTES Within 14 days of employment, election, or appointment, a public employee or official must elect NOT to allow public access to his or her: • home address ___________________________________________ • home phone • social security number ___________________________________________ • emergency contact information • information that reveals information about ___________________________________________ family members CERTAIN OFFICALS EXCEPTED ___________________________________________ Information made categorically confidential by the Act includes information related to a: ___________________________________________ • peace officer • current or former county or district attorney and his or her current or former ___________________________________________ employees • current or former federal or state judge and his or her spouse, ___________________________________________ • current or former county or district judge, • or a justice of the peace ___________________________________________ PENALTIES – PUBLIC INFORMATION ACT ___________________________________________ • Refusing to produce a public record: Misdemeanor 3 | P a g e
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