Texas Open Records
Texas Open Records
Texas Open Records Division sucks at their job. Story coming soon.
Texas Open Records
Texas Public Information Act
Texas Government Code, Title 5, Subtitle A, Chapter 552, Subchapter A
Enacted in 1973
Overview
- All exemptions/rejections must go through AG in a “pre-appeal system,” preventing arbitrary withholding
- AG deliberation can slow down entire process, often taking much longer than the allotted 10 days</span>
- No process for appealing arbitrary fees or delays
Out of all state public records laws, Texas is perhaps the most distinctly different from the federal statute on which they are based. Under the federal act, an agency can decide to withhold information under a certain exemption and then its the requester’s prerogative to challenge that through appeal.
Whereas in Texas, the agency must provide written justification for the application of the exemption to the state’s Attorney General. If the AG disagrees with the agency’s application, they can immediately overrule their decision, bypassing the appeal process entirely.
This comes with its own unique advantages and disadvantages. On the positive side, this puts the onus on the agency to properly present their case, making blanket rejections much less likely, and theoretically ensuring the fullest possible release every time. However, the flip-side to this is that the added delay of the process pushes it well beyond that ten-day window – the AG has a full 45-days to respond.
That said, AG rulings are treated similar to case law, so that if an agency has already received an opinion on what constitutes a full release for a particular request (use of force policies, for example), the process can be skipped entirely.
Unfortunately, the fact that this process replaces a formal appeals process rather than supplements it gives agencies certain loopholes – a requester cannot seek the AG’s assistance in reducing an seemingly arbitrary fee estimate, or getting an unresponsive agency to respond in time. In a similar vein, if a requester disagrees with the AG’s decision, there’s no third-party to turn to – the only option left is a lawsuit.
The Law
- Must produce materials “promptly” or an estimated date of completion within 10 days.
- Applies to the executive branch and state agencies
- No residency requirement.
- No administrative appeal option.
Supplemental
Definition of public information – Texas Government Code, Title 5, Subtitle A, Chapter 552, Subchapter A § 552.002
Texas Open Records
GOVERNMENT CODE
TITLE 5. OPEN GOVERNMENT; ETHICS
SUBTITLE A. OPEN GOVERNMENT
CHAPTER 552. PUBLIC INFORMATION
Open Records
How to Request Public Information. The Texas Public Information Act.
Open Records request
III. Scope of protection
The Texas Free Flow of Information Act (also known as a reporter’s privilege) is a qualified privilege with separate civil and criminal sections. The civil section applies to confidential and non-confidential sources, journalist’s work product and published and unpublished materials. In order to require a reporter to testify or produce materials, the party who issued the subpoena must show by clear and specific evidence the following:
(1) all reasonable efforts have been exhausted to obtain the information from alternative sources;
(2) the subpoena is not overbroad, unreasonable, or oppressive and, when appropriate, will be limited to the verification of published information and the surrounding circumstances relating to the accuracy of the published information;
(3) reasonable and timely notice was given of the demand for the information, document, or item;
(4) in this instance, the interest of the party subpoenaing the information outweighs the public interest in gathering and dissemination of news, including the concerns of the journalist;
(5) the subpoena or compulsory process is not being used to obtain peripheral, nonessential, or speculative information; and
(6) the information, document, or item is relevant and material to the proper administration of the official proceeding for which the testimony, production, or disclosure is sought and is essential to the maintenance of a claim or defense of the person seeking the testimony, production, or disclosure.
Tex. Civ. Prac. & Rem. Code §22.024.
The criminal section, on the other hand, is separated into three parts with different tests applying to different matters. The first part deals with confidential sources, the next with unpublished work product and non-confidential sources, and the third with published information. See Tex. Code Crim. Proc. arts. 38.11 and 38.111.
Records Request Texas
open records request
Texas is perhaps the most distinctly different from the federal statute on which they are based. Under the federal act, an agency can decide to withhold information under a certain exemption and then its the requester’s prerogative to challenge that through appeal. Whereas in Texas, the agency must provide written justification for the application of the exemption to the state’s Attorney General. If the AG disagrees with the agency’s application, they can immediately overrule their decision, bypassing the appeal process entirely.
This comes with its own unique advantages and disadvantages. On the positive side, this puts the onus on the agency to properly present their case, making blanket rejections much less likely, and theoretically ensuring the fullest possible release every time. However, the flip-side to this is that the added delay of the process pushes it well beyond that ten-day window – the AG has a full 45-days to respond.
That said, AG rulings are treated similar to case law, so that if an agency has already received an opinion on what constitutes a full release for a particular request (use of force policies, for example), the process can be skipped entirely.
Unfortunately, the fact that this process replaces a formal appeals process rather than supplements it gives agencies certain loopholes – a requester cannot seek the AG’s assistance in reducing an seemingly arbitrary fee estimate, or getting an unresponsive agency to respond in time. In a similar vein, if a requester disagrees with the AG’s decision, there’s no third-party to turn to – the only option left is a lawsuit.
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Texas Open Records
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How one man’s open records obsession sparked a fight over transparency and power in East Texas
Once a tool of journalists and concerned citizens to hold government accountable, open records requests have been increasingly used by political opponents and conspiracy theorists to slow down the pace of government.
Update: Visiting Judge Earl Stover III dismissed both of David Stua’s cases Wednesday morning after this story was published.
LUFKIN — On the Tuesday before Thanksgiving, some of Angelina County’s top elected leaders stopped what they were doing to gather in a county courtroom and listen to resident David Stua accuse officeholders of a conspiracy to silence him.
Five years earlier, Stua was arrested on allegations he solicited minors. Over the next four years, the East Texan faced multiple additional complaints against him including aggravated perjury, burglary, the attempt to commit sexual performance of a child, online solicitation of a minor and attempt to commit indecency with a child by exposure.
All but the aggravated perjury charges and one count of criminal trespass were dropped by the time he landed in prison in 2022.
When he was released three months later, Stua had lost his small business and his home, which burned in a fire.
He’s convinced that the charges were retribution for his eight-year-long quest for local government records. He’s filed thousands of open records requests in that time, angering some local officials who view them as burdensome harassment. Now he wants justice. In two lawsuits, Stua is trying to remove District Attorney Janet Cassels from her job.
“Today’s the day that someone is gonna tell the district attorney you can’t charge people with criminal offenses that don’t exist and you have to comply with public information requests,” Stua told District Judge Earl Stover III, a visiting judge assigned to review Stua’s case to remove Cassels from her job.
Stua’s case highlights the tension between the public’s right to know and a government’s ability to get work done. And it opens a window into small-town politics of Texas lore, where everyone knows everyone.
Once a tool used largely by journalists and concerned residents to hold government accountable, open records requests have increasingly become weaponized by political operatives and conspiracy theorists. Stua was an early adopter of the tactic. His avalanche of records requests predates the recent spike in requests across the state and nation. Nevertheless, his actions, and those of people like him, led Texas lawmakers to update state law in the Texas Public Information Act that governs how open records requests are to be handled — an attempt to provide a modicum of relief to small governmental entities.
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