The ABCs of FOI

Texas Center for Community Journalism Workshop

Aug. 4, 2011

Why we do it“A popular Government, without popular

knowledge, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy, or, perhaps both.”

- James Madison, 1822

“Democracies die behind closed doors.”

- Judge Damon Keith, Detroit Free Press v. Ashcroft (2002)

FOI and the Right to Know• The Right to Know – what & who?• No real constitutional right to know in

First Amendment or Texas Constitution• Federal Freedom of Information Act,

Open Meetings Act• “Sunshine laws” in every state today

– Texas Public Information Act– Texas Open Meetings Act

Texas PIA policy• Policy: Under the fundamental philosophy of

the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees.

Texas Public Info. Act• Texas Government Code § 552• Key things to remember:

– What is “public information”– What is a “governmental body”– Exemptions– Procedure– Fees

Texas: Public Information§ 552.002 – “Public Information” means

information collected, assembled, or maintained in connection with official business of a government body

- in any format or medium, whether print, film, tape, or electronic

- your purpose for requesting isn’t relevant

- presumed open unless specific exemption listed elsewhere

Texas: Government Body§ 552.003: “Governmental body” means city,

county, and state offices, agencies, boards, school districts, and more

- if taxpayer dollars pay for it, chances are, it’s a government body

- also includes “quasi-governmental” bodies that do work paid for by government

- main exception: judicial records (subject to rules of Texas Supreme Court)

Texas: Exemptions• More than 50 in the statute (§552.101 to

151), but primarily, they include:– Attorney-client privilege & litigation– Law enforcement records that would

jeopardize investigation/crime prevention– Intimate items in personnel files– Student & educational records– Other privacy laws (HIPAA, FERPA)

Texas PIA: ProcedureStep 1: Identify Public Information Officer

(department head, elected official, chief administrative officer)

Step 2: Put it in writing. PIO is to provide “promptly” upon receiving request, “as soon as possible under the circumstances, within a reasonable time, without delay” [§552.221(a)]

Texas PIA: ProcedureStep 3: Prepare response. PIO can ask

for clarification & often will. They have up to 10 business days of wiggle room.

Step 4: If denied, appeal. PIO must ask AG for opinion on denials.

Step 5: Don’t be afraid to ask for help. The AG has a hotline (877-OPEN-TEX) and a fees hotline (888-ORCOSTS)

Texas PIA: Fees• Gov’t body can charge “reasonable”

fees for copying & producing records• Basic rule: 10 cents per page (or side of

a page – via Texas Admin. Code)• If less than 50 pages, no extra fees• If more than $40, gov’t body must

itemize expenses

Federal FOIA• Requires federal agencies to make

records available for inspection and copying– 5 U.S.C. § 552– Does not apply to Congress, president– Documents created, physically or

electronically, are presumed open– Unless falling under one of nine

exemptions

FOIA Exemptions• Agency MAY (not must) withhold for

three major reasons:– National security (Exemption 1)– Personal privacy (Exemption 6)– Law enforcement records (Exemption 7)

• Other reasons– Administrative documents, memoranda,

other laws, trade secrets, financial institutions, geophysical data

Texas OMA• Texas Open Meetings Act (Texas Gov’t

Code § 551)• “Every regular, special, or called

meeting of a governmental body shall be open to the public, except as provided by this chapter.”– Essentially same definition as

“governmental body” as in PIA

Texas OMA: Meetings• “Meeting” means any gathering of a

quorum of a body during which public business is discussed or there is deliberation– Including discussions with third parties– Not including social events, conferences,

workshops– No “walking quorums” where bodies

discuss public business to avoid OMA

Texas OMA: Notice• “Notice” means telling public of time,

place and subject of meeting– At least 72 hours in advance– At least 2 hours for emergency meetings– At county courthouse, city hall,

administrative offices• If notice requirement isn’t met, actions

of meeting can be voided

Texas OMA: Exceptions• Executive session (§ 551.071 et seq.)

– Consulting with attorney on legal matters– Negotiations for bidding on property– Personnel matters (deliberating hiring,

firing, discipline; but employee can request meeting be public)

– Public school student matters• Must record or have certified agenda,

must open in public and vote in public

They broke the law: Now what?

• For Texas PIA, appeal through Attorney General, then can file complaint in court– Can ask prosecutor or AG to investigate

• For Federal FOIA, appeal through agency head, go to FOIA Ombuds– Then, file suit in federal District Court

• For Texas OMA, appeal to agency head, ask for AG help