Withholding information from a public request

Under the Texas Public Information Act, all governmental bodies must adhere to strict disclosure rules. That means if a member of the public asks for information that is considered public, you generally must provide it according to the regulations.

What if, as a governmental body, you want to withhold certain requested information? There are some circumstances in which that might be possible, but doing so requires going through a specific process.

Types of confidential information

Even under the wide-reaching Public Information Act, there is information considered confidential – and therefore, potentially not shareable. This confidential information can be divided into two groups:

  • Mandatory: Information that state statute requires a governmental body to withhold from the public. This includes child abuse investigations, certain private information for living persons and peace officers, and financial information.
  • Discretionary: Information that the law does not require a governmental body to withhold, but that the entity might choose to keep private at its own discretion. This can include policy drafts, attorney-client communications and information tied to pending litigation.

The attorney general’s office has to weigh in

If a governmental body wants to withhold information from a public request, it usually has to bring the matter to the Attorney General of Texas. Within 10 business days of receiving a written records request, the governmental body has to reach out to the attorney general’s office, asking for a decision and explaining which exceptions apply.

The Open Records Division of the Office of the Attorney General will review the request and make a decision.

When there is already a previous determination regarding that type of information, you might not have to follow this process. These previous determinations are quite narrow in scope, however. When considering whether to deny an information request, it is better to take precautions than make assumptions.

There is undeniably some gray area within the Texas Public Information Act, which can make these cases a bit complex. The best way to protect yourself and your colleagues is to be proactive. Take steps to ensure you are compliant with the law before making any final decisions.