Public Information Requests and

Personnel Files

Patrice Fogarty

City Secretary

City of La Porte

Sheree McCarty

Administrative Coordinator City of Houston

Elliot M. Barner

Attorney at Law

Johnson Radcliffe Petrov & Bobbitt, PLLC

Chapter 552, Texas Government Code.

Purpose: To encourage open government by providing citizens with equal access to information collected, assembled, or maintained by a governmental body (“GB”).

Government Code §552.002(b)

Information in any form, including: Paper Microfilm or microfiche Computer data Email Audio or video tape Photographs Maps Drawings In other words, information recorded in ANY format.

Government Code §552.003*

Term Governmental Body (GB) includes:

State agencies

Cities and Counties

Public school districts and school boards

Governing body of a special district, etc.

Local workforce development board Does not include the Judiciary [Gov. Code 552.0035]

* Not an inclusive list; there are other entities not in this definition

that are subject to the PIA.

Receive request with a presumption of openness; After review, GB promptly releases requested info for

inspection, duplication or both. Typically this is the case.

OR GB withholds info; seeks a ruling from the OAG within 10 business days; send what you can and in your brief, let OAG know what you’ve sent. Typically, not everything you want/need to withhold is excepted.

OR GB withholds info based on a previous determination;

OAG will issue a decision concerning info within 45 working days from request from GB.

Question 1 According to the PIA, what triggers the PIA?

Only a Written Request triggers the PIA.

PIA does not require that the public direct its written request to any specific employee or officer, except for:

◦ Emailed Request or Faxed Request

Government Code §552.301

State law provides that the governmental body can designate a person that is authorized to receive emailed or faxed requests.

If the governmental body makes such a designation, the PIA is only triggered if the request is directed to the assigned individual.

No “magic word” is required.

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

Can be typed or handwritten.

No signature required.

Cannot require use of a specific form to submit request.

Can you spot the public information

request?

Dewey, Cheatum & Howe, L.L.P.

1000 E. Congress Avenue, Suite 1000

Austin, Texas 78701

March 22, 2014

Ms. Sally Strawhouse, Assistant Attorney General

Office of the Attorney General

Austin, Texas 78711-2548

RE: Request for Records

Dear Ms. Strawhouse:

We represent Fraud and Mismanagement, Inc. We are requesting all documents relating to

Fraud and Mismanagement, Inc. Please forward those documents to us as soon as possible. We

will, of course, be happy to reimburse you for any expenses associated with this request.

Very truly yours,

Harold Cheatum

March 22, 2014 Custodian of Records City of Texasville Texasville, Texas To whom it may concern: Please send me all documents you have regarding your

spokesperson, Angelina Julee. Geez, is she a beauty!!!! I think we should be in a movie version of “Eight is Enough”!

Sincerely, Brad Pittolini

Fax Transmittal Sheet TO: Open Records Coordinator, City of Oz DATE: October 31, 2013 FAX:(555) 111-2323 FROM: Ifi Only Hadabrain PHONE: (555) 888-8888 FAX:(555) 888-8889 RE: Freedom of Information Act Request PAGES:1 (including cover) COMMENTS: Under the Freedom of Information Act, I

request all City of Oz documents regarding its plans to make the Yellow Brick Road into a toll road.

Email Message

From: Iam N. Love To: Joe Employee

Date:12/05/13 10:59 AM Subject: Public Information Request

I recently had the pleasure of visiting the fine new downtown park. You all did a

beautiful job landscaping the area. I’m thinking about proposing to my girlfriend soon, and thought we might eventually get married in the park. Do you take reservations? Are there any laws that would prohibit us from providing some “spirits” to our guests?

While I was at the park, I saw enough squirrels to remind me of that old story

about the Pied Piper. My girlfriend is excessively frightened by those pesky things, and I can’t imagine having a wedding with those rodents running around pilfering our food! I demand to see all of the City’s contracts with companies that help to maintain that park.

Thank you for your help. Iam N. Love, 1001 Rodentia Run, Squirrel Hater, Texas 70000

Government Code §552.222

Cannot ask requestor why he or she wants the information Can ask for: •Clarification •Narrowing the scope 10 business days to request an attorney general ruling is

measured from the date the request is clarified or narrowed as long as the governmental body was acting in good faith in requesting a clarification or narrowing of an unclear or unduly broad request (City of Dallas v. Abbott)

If you do not receive a written response to a written request for clarification or additional information, the requestor’s entire request is considered withdrawn. ◦ Have to wait until the 61st day ◦ If you have the mailing address, must send the written request for

clarification by certified mail. ◦ Must inform requestor the consequences of not responding.

Question 2 Can a PIA request require a governmental body

to create a record if no record exists? No

A governmental body is not required to produce information which is not in existence at the time of the request. Thus, a governmental body is not required to create new information in response to a request.

However, if the request only requires programming or manipulating existing data, it is not considered a request for creation of new information.

Question 3

Can a PIA request require a governmental body to compile statistics, perform research or provide answers to questions?

No

Open Records Decision 563 (1990)

The PIA does not require a governmental body to calculate statistics, to perform legal research, or to prepare answers to questions.

The PIA only requires a governmental body to provide information or documents that relate to the information sought by the requestor.

So, you’ve received a request….

Question 4

If the GB is going to release the requested information, how much time does the GB have to comply with the request?

Promptly, depending on the circumstances, within a reasonable time

Gov. Code §552.221 GB shall promptly produce public information for

inspection, duplication, or both “Promptly” means as soon as possible under the

circumstances, that is, within a reasonable time, without delay

But within 10 business days, either the info must be released or some type of response must be sent to the requestor.

A governmental body need not request an attorney general decision if it is redacting information pursuant to one of the five sections of the Public Information Act that give a governmental body explicit permission to redact information without requesting an attorney general decision. Those five sections are 552.024, 552.130, 552.136, 552.138 and 552.1175. See next slide.

Form Letter for Section 552.024 (public employee's personal information held by governmental body in its capacity as employer)

(Effective 05/18/2013) Form Letter for Section 552.130 (motor vehicle records)

Form Letter for Section 552.136 (account and access device numbers)

(Effective 06/14/2013)Form Letter for Section 552.138 (family violence shelter center, victims of trafficking shelter center, or sexual assault program)

(Effective 06/14/2013)Form Letter for Section 552.1175 (public employee's personal information held by governmental body in non-employment capacity)

Question 5 If the GB wants to withhold the information,

how much time does the GB have to address a request?

10 business days

Gov. Code §552.301(b)

The GB must ask for the A.G.’s decision and state the exceptions that apply within a reasonable time but not later than the 10th business day after receiving the written request.

Get your city attorney involved! Run, don’t walk, to your city attorney’s office if you have documents the City may not want to disclose. The CA will make determine whether info is releasable. If it isn’t, the CA must write to the AG for a ruling in a timely manner – 10 business days. Time is ticking on this!

Mandatory Exceptions – need compelling reason Discretionary Exceptions – waived Examples of ways to waive Discretionary Exceptions ◦ Miss the 10 business day deadline ◦ Fail to raise exceptions by 10 business day deadline (i.e. try

to raise new exceptions later) ◦ Fail to notify requestor you’re seeking a ruling within 10

business days ◦ Miss the 15 business day deadline ◦ Fail to submit docs or rep. sample within 15 business day

deadline ◦ Fail to provide arguments within 15 business day deadline ◦ Fail to submit copy of request within 15 business day

deadline

ADHERING TO THE PUBLIC INFORMATION ACT IS

SERIOUS BUSINESS, Y’ALL!

General Rules for determining 10 business days

Start counting the next business day after written request is received.

• “Received” = when the GB physically received, not when it is opened or read.

• Saturdays, Sundays & Holidays do not count.

• Optional holidays, skeleton crew days or days the GB is closed do not count if that is the GB’s policy; but make sure that is explained if you are requesting a ruling from the AG.

Sunday Monday Tuesday Wednesday Thursday Friday Saturday

1 2 3 4 5 6 7

8 9 10 11 12 13 14

15 16 17 18 Written Request Received

19

1 20

2

21

22 23 Skeleton Crew Day

24 City Closed Christmas Eve

25 City Closed Christmas Day

26 City Closed Day After Christmas

27 Skeleton Crew Day

28

29 30

3 31 Skeleton Crew Day

1 City Closed New Year’s Day

2

4 3

5 4

5 6

6 7

7 8

8 9

9 10

10 BINGO!

11

Government Code §552.301 No later than the 10th business day….

Get in touch with your City Attorney; Governmental body must ask OAG for a ruling

and state the exceptions that apply. Must notify requestor that you have asked for a

ruling. Must provide requestor a copy of GB’s notice to

the OAG. Must notify any 3rd parties with proprietary

interest in the information concerned in the requested ruling.

OAG will determine if:

Info MUST be withheld;

If info MAY NOT BE withheld and MUST be released; or

If info MAY be withheld.

GB, Requestor, or 3rd Party may file suit for judicial review.

Question 6 Do I have to request an AG Open Records Ruling

every time I want to withhold information?

Yes, unless there is a previous determination Gov. Code §552.301

A GB is required to ask the AG for an open

records ruling (ORR) in almost all cases if the GB wants to withhold requested documents or information based upon an exception of the PIA.

Open Records Decision No. 673 (2001)

Type 1 Most Common Applicable to only a particular governmental body Applicable only to precise information or records

Type 2

• May be applicable to All governmental bodies All governmental bodies of a certain type

A particular governmental body

• Applicable to a specific, clearly delineated category of information or records

Open Records Decision No. 684

Identifies certain types of information that a GB may withhold without delay of requesting an AG ruling.

Information that can be withheld under this previous determination:

1. Direct Deposit authorization forms 2. I-9 and attachments 3. W-2 and W-4 forms 4. Certified agenda and tape of a closed meeting 5. Fingerprints 6. L-2 & L-3 declarations (medical/psych & emotional

health)

Open Records Decision No. 684 Continued:

7. TDL number, copy of TDL, TX license plate number, portion of a photo that reveals a TX license plate number, and portion of any video depicting a discernible TX license plate number

8. Credit card number, debit card number, charge card number, insurance policy number, bank account number and bank routing number

9. Email addresses of a member of the public 10. Form DD-214 or other military discharge record that

is first recorded or first comes into the possession of a GB on or after September 1, 2003.

So, you are within the

10-business-day period and…

you are going to release the information.

Release the information

For inspection; or

Provide copies of the requested information.

ORD-682 (2005): Unless the requestor agrees to accept access to the requested information via the website, a GB does not comply with the PIA by simply advising the requestor that the requested information is available on its website.

Additional Time Needed to Produce Records [Gov. Code 552.221(d)] or Additional Time Needed to Produce Record because in Active Use or in Storage [Gov. Code 552.221(c)] ◦ If the information cannot be produced within 10 business days,

notify the requestor in writing and set a date and hour within a reasonable time when the information will be available.

◦ Still need to meet all deadlines for seeking a ruling from the AG.

Programming or Manipulation Cost [Gov. Code 552.231(c)] ◦ Not the same thing as “creating new information.”

◦ Must provide a specific written statement within a certain time frame.

◦ If the requestor does not respond to written statement within 30 days, request is considered withdrawn.

When estimated charges will exceed $40 [Gov. Code §552.2615]

Must provide an itemized statement that details the estimated charges

Must inform the requestor that the request will be considered withdrawn if he does not respond to the statement in writing within 10 business days informing you that:

The requestor will accept the estimated charges;

The requestor is modifying the request; or

The requestor has filed a complaint with the OAG’s Cost Rules Administrator.

When estimated charges will exceed $40 cont’d [Gov. Code §552.2615]

If an alternative, less costly method of viewing info is available, must include statement that requestor may contact the GB about the alternative method.

Still need to meet all deadlines for seeking a ruling from the AG.

If requestor does not respond within 10 business days, entire request is withdrawn and can withdraw ruling request.

When estimated charges will exceed $100 [Gov. Code §552.263]

You may require a deposit or bond for payment of anticipated costs.

Must still send statement that is required under 552.2615.

If requestor fails to submit deposit or bond within 10 business days, the request is considered withdrawn. (Not enough for requestor to accept charges in writing; must actually submit payment.)

If you require deposit, bond or whole payment, if the requestor pays, then the original request is considered received the day the requestor paid.

BASIC COST PROVISION 1 Texas Admin Code §§70.1 – 70.12

Pages (Standard): 10¢ per page

Personnel Cost: $15 per hour (if over 50 paper copies)

Overhead Cost: 20% of Personnel Cost (if over 50 paper copies)

Postage/Shipping: any related postal or shipping expenses which are necessary

Gov. Code §552.321: Writ of Mandamus [Latin for "we order," a writ (more modernly called a "writ of mandate") which orders a public agency or governmental body to perform an act required by law when it has neglected or refused to do so.]

◦ Filed by requestor or Attorney General in instances where GB refuses to provide copies or access to information that is clearly public or where GB refuses to request an AG ruling or GB refuses to release information as required by an unchallenged AG ruling.

Gov. Code §552.3215: Declaratory Judgment or Injunctive Relief ◦ Local governmental bodies: district attorney or county

attorney for the county may bring action only in district court for the county in which the GB is located.

◦ State Agencies: Travis County DA or OAG may bring action only in district court in Travis County.

Formal Complaints File written complaint with DA or county

attorney in county where GB is located

If cannot be resolved informally, DA, county attorney, or OAG may pursue legal action when warranted and authorized ◦ Informal Resolution: The Education and

Enforcement Section handles requestors’ complaints.

Destruction, Removal, or Alteration of Public Information Gov. Code §552.351

Fine not less than $25 or more than $4,000 and/or county jail not less than 3 days or more than 3 months.

Distribution or Misuse of Confidential Information Gov. Code §552.352

Officer or employee knowingly: ◦ Uses confidential information for a purpose other than

the purpose for which the information was received or for a purpose unrelated to the law that permitted the officer or employee to obtain access to the information

◦ Permits inspection of the confidential information by a person who is not authorized to inspect the information

◦ Discloses the confidential information to a person who is not authorized to receive the information

Fine not more than $1,000 and/or county jail for not more than 6 months

Constitutes Official Misconduct

Gov. Code §552.012 One Hour Minimum Requirement: must have a

minimum of one hour of PIA training, but no more than two hours.

Compliance Deadlines: Officials who are elected or appointed have 90 days within which to complete the required training.

Who Must Obtain the Training?: The statute requires the top elected and appointed officials from governmental bodies subject to the PIA to complete a PIA training course. Additionally, designated public information coordinators are required to complete a PIA training course.

Open Government Hotline (877) OPEN-TEX (673-6839)

(512) 478-6736

County & Municipal Affairs Section: (800) 252-5476

OAG Publications at OAG website: 2014 Public Information Handbook

Open Government Training Information: www.oag.state.tx.us/open/og_training.shtml

Social Security Number Driver’s License Number Home address Home telephone Personal email address Marital status References to family members Employee number Date of birth Proprietary or copyrighted information References to a person’s medical information DD214 forms created on or after 9-1-03 (withhold complete form) College transcripts sent directly from college to City of Houston

(withhold complete form) Credit card / charge card / debit card information and access device

information