Академический Документы
Профессиональный Документы
Культура Документы
LAWS IN TEXAS:
An Overview of
the Texas Public Information Act
and
the Texas Open Meetings Act
______________
2009
Paul C. Watler
Jackson Walker, LLP,
901 Main Street, Suite 6000
Dallas, TX 75202
(214) 953-6069
pwatler@jw.com
By Paul C. Watler1
Jackson Walker, L.L.P.
901 Main Street, Suite 6000
Dallas, TX 75202
(214) 953-6000
PART ONE:2
1. “[I]t 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.”
(§ 552.001(a))
b. by a governmental body; or
c. for a governmental body and the governmental body owns the information
or has a right of access to it:
ii. However, if the private entity maintains records for its own
purposes and has control over its own methods and details of work,
then the records are not public information because the records are
1
Mr. Watler, a partner in the litigation section of Jackson Walker, LLP, is a board certified civil trial lawyer and
former president of the Freedom of Information Foundation of Texas, 1996 - 1999. He is listed in the Best Lawyers
in America in the categories of First Amendment law, bet-the-company litigation and commercial litigation.
2
This paper includes developments through July 31, 2009, including acts of the 81st regular session in 2009 of the
Texas Legislature.
2. applies to electronic, digital and all types of media on which information can be
recorded (§ 552.002(b) and (c));
3. TPIA requires disclosure only of existing information and does not require
governmental body to prepare or assemble new information in response to a
request. A&T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 676 (Tex. 1995).
4. a deliberative body that has rule making or quasi-judicial power and that is
classified as a department, agency, or political subdivision of a county or
municipality;
b. The Texas Supreme Court has adopted a special rule governing public
access to “judicial records.” Rule 12, Texas Rules of Judicial
Administration. Judicial records exclude those pertaining to the
adjudicative function of courts; thus, only certain administrative records of
the judiciary are within the scope of the rule.
d. Open records act does not affect scope of civil discovery; exceptions do
not create new privileges from discovery (§ 552.005).
The following categories are public information not excepted from disclosure unless
expressly confidential under the law:
2. the name, sex, ethnicity, salary, title, and dates of employment of each employee
and officer of a governmental body;
4. the name of each official and the final record of voting on all proceedings in a
governmental body;
5. all working papers, research material, and information used to estimate the need
for or expenditure of public funds or taxes by a governmental body, on
completion of the estimate;
6. the name, place of business, and the name of the municipality to which local sales
and use taxes are credited, if any, for the named person, of a person reporting or
paying sales and use taxes under Chapter 151, Tax Code;
a. the established places at which the public may obtain information, submit
information or requests, or obtain decisions;
b. the employees from whom the public may obtain information, submit
information or requests, or obtain decisions;
c. in the case of a uniformed service, the members from whom the public
may obtain information, submit information or requests, or obtain
decisions; and
8. a statement of the general course and method by which an agency’s functions are
channeled and determined, including the nature and requirements of all formal
and informal procedures;
12. final opinions, including concurring and dissenting opinions, and orders issued in
the adjudication of cases;
14. administrative staff manuals and instructions to staff that affect a member of the
public;
16. information that is in a bill for attorney’s fees and that is not privileged under the
attorney/client privilege or confidential under other law;
b. Although TPIA was not binding on federal district court’s ability to issue
confidentiality order regarding settlement agreement to which
governmental body was a party, federal court was obliged to consider
effect of order on state law, and failure to do so was abuse of discretion.
Ford v. City of Huntsville, 242 F.3d 235, 241-42 (5th Cir. 2001).
b. Discovery privileges under the Texas Rules of Civil Procedure and Texas
Rules of Evidence are “other law” that may render items listed in Section
552.022(a) “expressly confidential.” In re City of Georgetown, 53 S.W.3d
328, 331-36 (Tex. 2001); see also N.N. v. Institute for Rehabilitation and
Research, 234 S.W.3d 1 (Tex. App.—Houston [1st Dist.] 2006, no pet.)
(rules of procedure are binding in the same manner as statutes).
1. Person has special right of access to information that relates to that person
(§ 552.023).
c. does not include attorney work product (Tex. Att’y Gen. ORD-574 and
ORD-575 (1990));
e. HIPAA does not preempt state TPIA. Where a request for protected
health information is made under the TPIA, the exception to non-
disclosure found in the HIPAA privacy rule Section 164.512(a) applies,
and the governmental body must determine whether the TPIA compels
disclosure or whether the information is excepted from disclosure under
the TPIA. Abott v. Texas Dep’t. of Mental Health and Mental
Retardation, 212 S.W.3d 648, 662 (Tex. App.—Austin 2006, no pet.).
7. Law enforcement and prosecutorial records that deal with the detection,
investigation or prosecution of crime (§ 552.108):
a. In Holmes v. Morales, 924 S.W.2d 920 (Tex. 1996), the Texas Supreme
Court refused access to records even after case closed.
a. Trade Secret Exception. Attorney General and Texas courts look to six
factors in considering whether information is a trade secret:
iii. the extent of measures taken by the company to guard the secrecy
of the information;
iv. the value of the information to the company and to its competitors;
vi. the ease or difficulty with which the information could be properly
acquired or duplicated by others.
a. birth records available on and after the 75th anniversary of the filing of the
record with the bureau of vital statistics or local registration official;
b. death record available on and after the 25th anniversary of the date on
which the record is filed with the bureau of vital statistics or local
registration official;
12. Audit working paper or draft audit report of the state auditor or of another state
agency, institution of higher education, a county, a municipality, a joint board
operating under Section 22.074, Transportation Code, or a school district is
excepted (§ 552.116):
13. Addresses, phone numbers, social security numbers and personal family
information of certain public officials or employees:
21. Crime victim information exception (§ 552.132) and family violence shelter
center and sexual assault program information (§ 552.136);
22. Information regarding credit card, debit card, charge card, and access device
numbers (§ 552.136);
a. Social security number is not confidential under this section and this
section does not make the social security number of a living person
confidential under another provision of this chapter or other law
(§ 552.147).
26. Records received from private multiple listing agencies and maintained by a
comptroller or appraisal district:
b. each elected county officer is the officer for public information for the
records created or received by that county officer’s office (§ 552.201);
2. Request can be oral or in writing; however, protections of act are not triggered
unless request is in writing (see § 552.301);
3. Officer for public information shall promptly produce public information for
inspection, duplication, or both on application by any person:
6. Governmental body shall provide a suitable copy within a reasonable time, but
shall provide a copy in the requested medium if (§ 552.228):
7. A governmental body does not comply with TPIA if it simply refers a requestor of
information to its website containing the information sought unless the requestor
agrees to accept access to the information via the website. Tex. Att’y Gen. ORD-
682 (2005).
10. Costs:
d. charges for public information may not be excessive and may not exceed
the actual cost of producing the information (§ 552.262);
e. governmental body may request an exemption from part or all of the rules
adopted by the Attorney General;
i. charge for copies from district or county clerk shall be the charge provided
by law (§ 552.265).
L. Oversight
The Attorney General shall maintain uniformity in applying and interpreting the Act
(§ 552.011).
2. If a governmental body does not request an attorney general decision and provide
the requestor with the information as required by Section 552.301, the
information requested is presumed to be public information and must be released
6. Attorney general shall issue written opinion - either informal letter ruling or open
records decision - not later than the 60th working day after receiving the request
for a decision (§ 552.306):
7. In order to avoid criminal violation of the act, governmental body must file cause
of action seeking relief from compliance with an attorney general decision
requiring disclosure within 10 days after the date of receipt of a decision by the
attorney general that the information is public (§ 552.353):
1. Suit for writ of mandamus for refusal to request attorney general’s decision or
refusal to supply public information or information that the attorney general has
determined is a public record (§ 552.321):
a. In such a suit, the burden to produce disputed information to the court for
in camera inspection and to preserve it of record for the appeal lies with
the governmental body seeking to assert an exception to the Act.
Dominguez v. Gilbert, 48 S.W.3d 789, 795 (Tex. App.—Austin 2001, no
pet.).
2. Court may assess costs of litigation and reasonable attorney fees incurred by a
plaintiff or defendant who substantially prevails (§ 552.323).
O. Criminal Violations
Your Name
Return Address
Tele. No. (business hours)
Date
This request is made under the Texas Public Information Act, Chapter 552, Texas
Government Code, which guarantees the public’s access to information in the custody of
governmental agencies. I respectfully request [copies of, access to] the following information:
[List here as specifically as possible the information you are seeking: documents, letters,
memoranda, reports etc. If you know the dates, report numbers, titles or even the specific
governmental subdivision that produced the information, list it.]
[Optional, when time is a factor.] In the interest of expediency, and to minimize the
research and/or duplication burden on your staff, I would be pleased to personally examine the
relevant records if you would grant me immediate access to the requested material. Additionally,
and since time is a factor, please communicate with me by telephone rather than by mail. My
telephone number is: [insert telephone number].
[If applicable, add.] Disclosure of this information is in the public interest because
providing a copy of the information primarily benefits the general public. I therefore request a
waiver of all fees and charges pursuant to Section 552.267 of the act.
I shall look forward to hearing from you promptly, as specified in the law. Thank you for
your cooperation.
Sincerely,
[signature]
A. Introduction
1. The Texas Open Meetings Act, TEX. GOV’T CODE ANN. § 551.001 et seq.,
provides that meetings of governmental bodies must be open to the public, except
for expressly authorized executive sessions. The Act also provides that the public
be given notice of the time and place of meetings as well as the subject(s) to be
discussed.
B. Constitutionality of TOMA
1. The issue of whether the Texas Open Meetings Act improperly infringes the free
speech rights of elected public officials is pending before the courts as of August,
2009. In Ranga v. Brown, ___ F.3d ___, 566 F.3d 515 (5th Cir. 2009) (en banc
review granted, July 27, 2009), a three-judge panel of the Fifth Circuit held
TOMA is a content-based speech restriction subject to strict scrutiny. The panel
remanded the case for further review in the district court; however, subsequently,
the case has been granted en banc review, which remains pending.
1. The Act applies to “meetings” held by “governmental bodies,” as those terms are
defined in the Act. Thus, it must first be determined there is a “governmental
body.” If so, the next step is to determine whether there is a “meeting.”
1. The Open Meetings Act provides that meetings shall be open to the public unless
the subject to be discussed falls under one of several expressly authorized
exceptions. Exceptions to the requirement that meetings be open are set forth at
sections 551.071 - .085 of the Act. The following are some of the most frequently
invoked exceptions:
ii. Executive session violated TOMA where city council had already
made an offer to purchase real estate. City of Laredo, 219 S.W.3d
at 20-21.
§ 551.075.
1. Requirement to first convene in open session - even when the Act permits a
governmental body to meet in closed session, the governmental body must first
convene at an open meeting for which proper notice has been given, at which time
the presiding officer must publicly announce that a closed meeting will be held
and identify the particular exception under the Act which authorizes the closed
session (§ 551.101).
3. No straw votes in closed session - governmental body should not take a “straw
vote” or otherwise attempt to count votes in executive session. See Bd. of
Trustees v. Cox Enter., Inc. 679 S.W.2d 86, 89-90 (Tex. App.—Texarkana 1984),
aff’d in part, rev’d in part on other grounds, 706 S.W.2d 956 (Tex. 1986) (school
board violated statutory predecessor to Section 551.102 where board took written
vote on which member would serve as president during closed session; then
convened in open session and voted unanimously for the individual who won the
vote in closed session); but, see, Poder v. City of Austin, 2008 WL 4603569 (Tex.
App.—Austin 2008) (city council did not violate straw vote prohibition).
1. All meetings, both open and closed, must be preceded by written public notice
(§ 551.041).
2. Time of posting:
3. Content of posting:
a. The written notice must give the date, place and time of the meeting
(§ 551.041).
d. In Cox Enterprises, the Texas Supreme Court held that notice of a school
board executive session which listed only general topics such as
“litigation” and “personnel” was insufficient to meet the notice
requirement of the Open Meetings Act. One of the items considered at the
closed session was the appointment of a new school superintendent. The
court noted that the appointment of a new superintendent was not in the
same category as ordinary personnel matters, since it was a matter of
special interest to the public; thus, the use of the descriptor “personnel”
was not sufficient to apprize the general public of the board’s proposed
selection of the new superintendent. The court also noted that “litigation”
would not sufficiently describe a major desegregation suit that had
occupied the district’s time for a number of years. Cox Enter., 706 S.W.2d
at 959. See also Point Isabel I.S.D v. Hinojosa, 797 S.W.2d 176, 182
(Tex. App.—Corpus Christi 1990, writ denied) (“employment of
personnel” is insufficient to describe hiring of principals, but is sufficient
for hiring school librarian, part-time counselor, band director or school
b. TOMA is a “school law” of the State such that educator must exhaust
administrative remedies from Commissioner of Education before bringing
suit in court. Harrison v. Neely, 229 S.W.3d 745 (Tex. App.—San
Antonio 2007).
b. Call or aid in calling a closed meeting that is not permitted under the Act
or to close or aid in closing the meeting or to participate in the closed
meeting; or