Texas Open Records – Open Records Division Is Worthless

Texas Open Records

Texas Open Records

Texas Open Records

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

open records request

ut 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.

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