Under the Texas Public Information Act, Section 552 of the Texas Government Code, all governmental bodies must adhere to strict disclosure rules. That means if a member of the public, including the press/media, asks for information, the request must be handled according to the regulations. The general rule is that the Act requires a governmental body to release information to a requestor. However, there are exceptions to the general rule.
What if a governmental body determines it needs to withhold certain requested information? In order to withhold information, it requires going through a specific process under the Act. The request and responsive information must be reviewed by the Attorney General’s Open Records Division. This division will issue a ruling on whether the information must be released or can be withheld until such time as the governmental body determines the information can be released.
TYPES OF CONFIDENTIAL INFORMATION
Even under the wide-reaching Public Information Act, there is information considered confidential. The AG’s office has issued a previous determination (ORD 684) to all governmental entities authorizing them to withhold certain pieces of information, such as a driver’s license number.
Mandatory: Information that state statute requires a governmental body to withhold from the public. This includes child abuse investigations, juvenile offender records, 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 determines it needs to withhold information from a request, it must submit its legal briefing to the Texas Attorney General, Open Records Decision. A response to the requestor must be provided within 10 business days. By the 10th business day, the City must release the records, submit a brief to the Attorney General with arguments asking for a decision and explaining which exceptions apply to each category of specific information/documents requested to withhold the records or documents requested, or submit a 10-day letter notifying the Attorney General the City is going to submit a brief to withhold the requested information. If a 10-day letter is submitted, the briefing must be submitted within 5 business days. The governmental entity must provide the information and/or documents requested to the Attorney General to consider whether the exception(s) applies.
The Open Records Division of the Office of the Attorney General will review the request and provided information and make a decision, they have 45 business days from the date of the receipt of the brief to respond. The Attorney General may order documents/information withheld, released, or redacted and released. The statute provides an outline of the appeal rights based on the Attorney General determination.
When considering whether to deny an information request, it is better to take precautions than make assumptions.
There are undeniably some circumstances which can make handling requests for information a bit complex, not to mention factual complexities as well. No fact scenario is the same, and there may be varying reasons for each situation to release or withhold information, including anticipation of litigation or ongoing investigations. Ultimately, the Open Records Division will issue a decision on how the governmental body must respond.
The most important fact to protect your City is to be proactive, evaluate legal issues with your attorneys, coordinate with the relevant department, and evaluate the circumstances for automatic release or arguing to the Attorney General to withhold documents.