Public Information Act Handbook 2024

PUBLIC INFORMATION ACT Handbook 2024

THE OFFICE OF THE ATTORNEY GENERAL OF TEXAS

Dear Fellow Texans:

In 1888, James Bryce wrote that sunlight kills the germs of corruption that can infect a

government, and his words remain true today. As Attorney General, I make it a priority to

encourage open government and to enforce the laws that mandate it. The Texas Public

Information Act assures that government entities give citizens access to information about

the business government officials are conducting on their behalf—information that enables

the people of Texas to observe how their government works and to hold their public

officials accountable. Texas government does not belong to elected officials, but to the

people.

This updated guide helps public officials and the people they serve understand and comply

with the Texas Public Information Act. You can view the handbook by visiting

www.texasattorneygeneral.gov/publicinfo_hb.pdf. Where further help is needed, my

office’s Open Government Hotline is available to answer questions about open government

in Texas. The toll-free number is 877-OPEN TEX (877-673-6839).

Texans have the right to monitor their government’s decision making, including spending

tax dollars and exercising powers granted by the people. That knowledge is essential to

preserving the rule of law, protecting the democratic process, and defending the liberty we

all cherish. The Public Information Act is a critical protection for that right, and I am proud

to offer this guide in service of that goal.

Best regards,

Ken Paxton

Attorney General of Texas

TABLE OF CONTENTS

A PREFACE TO THE PUBLIC INFORMATION HANDBOOK .................................................................... i

PART ONE: HOW THE PUBLIC INFORMATION ACT WORKS ............................................................. 1

I. OVERVIEW ................................................................................................................................ 1

A. Historical Background ................................................................................................. 1

B. Policy; Construction ..................................................................................................... 1

C. Attorney General to Maintain Uniformity in Application, Operation and

Interpretation of the Act ............................................................................................... 2

D. Section 552.021 ............................................................................................................ 2

E. Open Records Training ................................................................................................ 3

II. ENTITIES SUBJECT TO THE PUBLIC INFORMATION ACT ....................................................... 7

A. State and Local Governmental Bodies ........................................................................ 8

B. Private Entities ............................................................................................................. 8

C. Certain Property Owners’ Associations Subject to Act .............................................. 9

D. A Governmental Body Holding Records for Another Governmental Body ............ 10

E. Private Entities Holding Records for Governmental Bodies .................................... 10

F. Judiciary Excluded from the Public Information Act ............................................... 12

III. INFORMATION SUBJECT TO THE PUBLIC INFORMATION ACT ............................................ 14

A. Public Information is Contained in Records of All Forms ....................................... 14

B. Information Held by a Temporary Custodian ........................................................... 15

C. Exclusion of Tangible Items ...................................................................................... 15

D. Exclusion of Protected Health Information ............................................................... 16

E. Personal Notes and E-mail in Personal Accounts or Devices................................... 16

F. Commercially Available Information ........................................................................ 18

IV. PROCEDURES FOR ACCESS TO PUBLIC INFORMATION ........................................................ 18

A. Informing the Public of Basic Rights and Responsibilities Under the Act .............. 18

B. The Request for Public Information .......................................................................... 19

C. The Governmental Body’s Duty to Produce Public Information Promptly ............. 22

D. The Requestor’s Right of Access............................................................................... 25

E. Computer and Electronic Information ....................................................................... 29

V. DISCLOSURE TO SELECTED PERSONS ................................................................................... 30

A. General Rule: Under the Public Information Act, Public Information is

Available to All Members of the Public .................................................................... 30

B. Some Disclosures of Information to Selected Individuals or Entities Do Not

Constitute Disclosures to the Public Under Section 552.007 ................................... 31

1. Special Rights of Access: Exceptions to Disclosure Expressly

Inapplicable to a Specific Class of Persons ....................................................31

2. Intra- or Intergovernmental Transfers ............................................................34

3. Other Limited Disclosures That Do Not Implicate Section 552.007 ..............35

VI. ATTORNEY GENERAL DETERMINES WHETHER INFORMATION IS SUBJECT TO AN

EXCEPTION ................................................................................................................. 36

A. Duties of the Governmental Body and of the Attorney General Under

Subchapter G .............................................................................................................. 36

B. Items the Governmental Body Must Submit to the Attorney General ..................... 40

C. Section 552.302: Information Presumed Public if Submissions and

Notification Required by Section 552.301 Are Not Timely ..................................... 43

D. Section 552.303: Attorney General Determination that Information in

Addition to that Required by Section 552.301 Is Necessary to Render a

Decision ...................................................................................................................... 44

E. Section 552.3031: Electronic Submission of Request for Attorney General

Decision ...................................................................................................................... 45

F. Section 552.305: When the Requested Information Involves a Third Party’s

Privacy or Property Interests ...................................................................................... 45

G. Section 552.3035: Attorney General Must Not Disclose Information at

Issue ............................................................................................................................ 47

H. Section 552.304: Submission of Public Comments ................................................. 48

I. Rendition of Attorney General Decision ................................................................... 48

J. Timeliness of Action .................................................................................................. 48

K. Section 552.310: Searchable Database ...................................................................... 49

VII. COST OF COPIES AND ACCESS ............................................................................................... 50

A. Charges for Copies of Paper Records and Electronic Records ................................. 50

B. Charges for Inspection of Paper Records and Electronic Records ........................... 52

C. Waivers or Reduction of Estimated Charges ............................................................ 53

D. Providing a Statement of Estimated Charges as Required by Law .......................... 54

E. Cost Provisions Regarding Requests Requiring a Large Amount of

Personnel Time ........................................................................................................... 56

F. Complaints Regarding Alleged Overcharges ............................................................ 57

G. Cost Provisions Outside the Public Information Act ................................................ 58

VIII. PENALTIES AND REMEDIES .................................................................................................... 58

A. Informal Resolution of Complaints ........................................................................... 58

B. Training Requirement ................................................................................................ 58

C. Criminal Penalties ...................................................................................................... 59

D. Civil Remedies ........................................................................................................... 59

1. Writ of Mandamus ..........................................................................................59

2. Violations of the Act: Declaratory Judgment or Injunctive Relief;

Formal Complaints .........................................................................................60

3. Suits Over an Open Records Ruling ...............................................................62

4. Discovery and Court’s In Camera Review of Information Under

Protective Order ..............................................................................................63

E. Assessment of Costs of Litigation and Reasonable Attorney’s Fees ....................... 63

IX. PRESERVATION AND DESTRUCTION OF RECORDS ............................................................... 64

X. PUBLIC INFORMATION ACT DISTINGUISHED FROM CERTAIN OTHER STATUTES ............. 65

A. Authority of the Attorney General to Issue Attorney General Opinions .................. 65

B. Texas Open Meetings Act .......................................................................................... 65

C. Discovery Proceedings ............................................................................................... 66

PART TWO: EXCEPTIONS TO DISCLOSURE ................................................................................... 67

I. INFORMATION GENERALLY CONSIDERED TO BE PUBLIC ................................................... 67

A. Section 552.022 Categories of Information............................................................... 67

1. Discovery Privileges .......................................................................................67

2. Court Order .....................................................................................................68

B. Certain Contracting Information ................................................................................ 68

C. Certain Investment Information ................................................................................. 70

D. Other Kinds of Information that May Not Be Withheld ........................................... 71

II. EXCEPTIONS ........................................................................................................................... 72

A. Section 552.101: Confidential Information ............................................................... 72

1. Information Confidential Under Specific Statutes .........................................73

2. Information Confidential by Judicial Decision ...............................................75

B. Section 552.102: Confidentiality of Certain Personnel Information ........................ 82

1. Dates of Birth of Public Employees ...............................................................82

2. Transcripts of Professional Public School Employees ...................................83

C. Section 552.103: Litigation or Settlement Negotiations Involving the State

or a Political Subdivision ........................................................................................... 83

D. Section 552.104: Information Relating to Competition or Bidding ......................... 86

E. Section 552.105: Information Related to Location or Price of Property .................. 88

F. Section 552.106: Certain Legislative Documents ..................................................... 88

G. Section 552.107: Certain Legal Matters .................................................................... 90

1. Information Within the Attorney-Client Privilege .........................................91

2. Information Protected by Court Order ............................................................93

H. Section 552.108: Certain Law Enforcement, Corrections, and Prosecutorial

Information ................................................................................................................. 94

1. The Meaning of “Law Enforcement Agency” and the Applicability of

Section 552.108 to Other Units of Government .............................................96

2. Application of Section 552.108 ......................................................................98

3. Limitations on Scope of Section 552.108 .....................................................101

4. Application of Section 552.108 to Information Relating to Police

Officers and Complaints Against Police Officers ........................................102

5. Other Related Law Enforcement Records ....................................................104

I. Section 552.1081: Confidentiality of Certain Information Regarding

Execution of Convict ................................................................................................ 111

J. Section 552.1085: Confidentiality of Sensitive Crime Scene Image ..................... 112

K. Section 552.109: Confidentiality of Certain Private Communications of an

Elected Office Holder .............................................................................................. 114

L. Section 552.110: Confidentiality of Trade Secrets and Confidentiality of

Certain Commercial or Financial Information ........................................................ 116

1. Trade Secrets ................................................................................................116

2. Commercial or Financial Information ..........................................................117

M. Section 552.1101: Confidentiality of Proprietary Information ............................... 117

N. Section 552.111: Agency Memoranda .................................................................... 118

1. Deliberative Process Privilege ......................................................................119

2. Work Product Privilege ................................................................................120

O. Section 552.112: Certain Information Relating to Regulation of Financial

Institutions or Securities ........................................................................................... 121

P. Section 552.113: Confidentiality of Geological or Geophysical Information ....... 123

Q. Sections 552.026 and 552.114: Confidentiality of Student Records ...................... 127

1. Family Educational Rights and Privacy Act of 1974 ...................................127

2. Section 552.114: Confidentiality of Student Records ..................................130

R. Section 552.115: Confidentiality of Birth and Death Records ............................... 131

S. Section 552.116: Audit Working Papers ................................................................. 134

T. Section 552.117: Confidentiality of Certain Addresses, Telephone Numbers,

Social Security Numbers, and Personal Family Information.................................. 135

U. Section 552.1175: Confidentiality of Certain Personal Identifying

Information of Peace Officers and Other Officials Performing Sensitive

Governmental Functions .......................................................................................... 142

V. Section 552.1176: Confidentiality of Certain Information Maintained by

State Bar ................................................................................................................... 146

W. Section 552.11765: Confidentiality of Certain Information Maintained by

State Licensing Authority ........................................................................................ 147

X. Section 552.1177: Confidentiality of Certain Information Related to

Humane Disposition of Animal ............................................................................... 148

Y. Section 552.118: Confidentiality of Official Prescription Program

Information ............................................................................................................... 149

Z. Section 552.119: Confidentiality of Certain Photographs of Peace Officers ......... 149

AA. Section 552.120: Confidentiality of Certain Rare Books and Original

Manuscripts .............................................................................................................. 150

BB. Section 552.121: Confidentiality of Certain Documents Held for Historical

Research.................................................................................................................... 151

CC. Section 552.122: Test Items ..................................................................................... 151

DD. Section 552.123: Confidentiality of Name of Applicant for Chief Executive

Officer of Institution of Higher Education .............................................................. 152

EE. Section 552.1235: Confidentiality of Identity of Private Donor to Institution

of Higher Education ................................................................................................. 152

FF. Section 552.124: Confidentiality of Records of Library or Library System .......... 153

GG. Section 552.125: Certain Audits .............................................................................. 154

HH. Section 552.126: Confidentiality of Name of Applicant for Superintendent

of Public School District .......................................................................................... 154

II. Section 552.127: Confidentiality of Personal Information Relating to

Participants in Neighborhood Crime Watch Organization ..................................... 155

JJ. Section 552.128: Confidentiality of Certain Information Submitted by

Potential Vendor or Contractor ................................................................................ 155

KK. Section 552.129: Confidentiality of Certain Motor Vehicle Inspection

Information ............................................................................................................... 156

LL. Section 552.130: Confidentiality of Certain Motor Vehicle Records .................... 156

MM. Section 552.131: Confidentiality of Certain Economic Development

Information ............................................................................................................... 158

NN. Section 552.1315: Confidentiality of Certain Crime Victim Records ................... 160

OO. Section 552.132: Confidentiality of Crime Victim or Claimant Information ........ 160

PP. Section 552.1325: Crime Victim Impact Statement: Certain Information

Confidential .............................................................................................................. 161

QQ. Section 552.133: Confidentiality of Public Power Utility Competitive

Matters ...................................................................................................................... 162

RR. Section 552.1331: Certain Government-Operated Utility Customer

Information ............................................................................................................... 166

SS. Section 552.134: Confidentiality of Certain Information Relating to Inmate

of Department of Criminal Justice ........................................................................... 166

TT. Section 552.1345: Confidentiality of Certain Information Relating to Civilly

Committed Sexually Violent Predators ................................................................... 168

UU. Section 552.135: Confidentiality of Certain Information Held by School

District ...................................................................................................................... 168

VV. Section 552.136: Confidentiality of Credit Card, Debit Card, Charge Card,

and Access Device Numbers ................................................................................... 169

WW. Section 552.137: Confidentiality of Certain E-mail Addresses .............................. 171

XX. Section 552.138: Confidentiality of Family Violence Shelter Center,

Victims of Trafficking Shelter Center, and Sexual Assault Program

Information ............................................................................................................... 172

YY. Section 552.139: Confidentiality of Government Information Related to

Security or Infrastructure Issues for Computers ...................................................... 175

ZZ. Section 552.140: Confidentiality of Military Discharge Records .......................... 176

AAA. Section 552.141: Confidentiality of Information in Application for Marriage

License ...................................................................................................................... 177

BBB. Section 552.142: Confidentiality of Records Subject to Order of

Nondisclosure ........................................................................................................... 178

CCC. Section 552.1425: Civil Penalty: Dissemination of Certain Criminal

History Information .................................................................................................. 178

DDD. Section 552.143: Confidentiality of Certain Investment Information .................... 179

EEE. Section 552.144: Working Papers and Electronic Communications of

Administrative Law Judges at State Office of Administrative Hearings ............... 180

FFF. Section 552.145: Confidentiality of Texas No-Call List ........................................ 180

GGG. Section 552.146: Certain Communications with Assistant or Employee of

Legislative Budget Board ......................................................................................... 180

HHH. Section 552.147: Social Security Numbers ............................................................. 181

III. Section 552.148: Confidentiality of Certain Personal Information

Maintained by Municipality Pertaining to a Minor ................................................. 182

JJJ. Section 552.149: Confidentiality of Records of Comptroller or Appraisal

District Received from Private Entity ...................................................................... 182

KKK. Section 552.150: Confidentiality of Information That Could Compromise

Safety of Officer or Employee of Hospital District ................................................ 184

LLL. Section 552.151: Confidentiality of Information Regarding Select Agents ........... 185

MMM. Section 552.152: Confidentiality of Information Concerning Public

Employee or Officer Personal Safety ...................................................................... 185

NNN. Section 552.153: Proprietary Records and Trade Secrets Involved in Certain

Partnerships .............................................................................................................. 186

OOO. Section 552.154: Name of Applicant for Executive Director, Chief

Investment Officer, or Chief Audit Executive of Teacher Retirement System

of Texas .................................................................................................................... 187

PPP. Section 552.155: Confidentiality of Certain Property Tax Appraisal

Photographs .............................................................................................................. 187

QQQ. Section 552.156: Confidentiality of Continuity of Operations Plan ....................... 188

RRR. Section 552.158: Confidentiality of Personal Information Regarding

Applicant for Appointment by Governor ................................................................ 188

SSS. Section 552.159: Confidentiality of Certain Work Schedules ................................ 189

TTT. Section 552.160: Confidentiality of Personal Information of Applicant for

Disaster Recovery Funds ......................................................................................... 189

UUU. Section 552.161: Certain Personal Information Obtained by Flood Control

District ...................................................................................................................... 190

VVV. Section 552.162: Confidentiality of Certain Information Provided by Out-

of-State Health Care Provider .................................................................................. 190

WWW.Section 552.163: Confidentiality of Certain Attorney General Settlement

Negotiations .............................................................................................................. 190

PART THREE: TEXT OF THE TEXAS PUBLIC INFORMATION ACT ................................................. 192

PART FOUR: RULES PROMULGATED BY THE ATTORNEY GENERAL ......................................... 304

PART FIVE: RULES OF JUDICIAL ADMINISTRATION .................................................................. 330

PART SIX: PUBLIC INFORMATION ACT DEADLINES FOR GOVERNMENTAL BODIES............. 339

PART SEVEN: NOTICE STATEMENT TO PERSONS WHOSE PROPRIETARY INFORMATION

REQUESTED .......................................................................................................... 341

PART EIGHT: TEXAS GOVERNMENT CODE SECTION 552.024 PUBLIC ACCESS OPTION

FORM ........................................................................................................................ 344

PART NINE: TEXAS GOVERNMENT CODE SECTION 552.138 PUBLIC ACCESS NOTICE

FORM ........................................................................................................................ 345

A PREFACE TO THE PUBLIC INFORMATION HANDBOOK

The Act. The Texas Public Information Act (the “Public Information Act” or the “Act”) gives the

public the right to request access to government information. Below is a description of the basic

procedures, rights and responsibilities under the Act.

Making a Request. The Act is triggered when a person submits a written request to a

governmental body. The request must ask for records or information already in existence. The

Act does not require a governmental body to create new information, to do legal research, or to

answer questions. In preparing a request, a person may want to ask the governmental body what

information is available.

Charges to the Requestor. A person may ask to view the information, get copies of the

information, or both. If a request is for copies of information, the governmental body may charge

for the copies. If a request is only for an opportunity to inspect information, then usually the

governmental body may not impose a charge on the requestor. However, under certain limited

circumstances a governmental body may impose a charge for access to information. All charges

imposed by a governmental body for copies or for access to information must comply with the

rules prescribed by the Office of the Attorney General (“OAG”), unless another statute authorizes

a governmental body to set its own charges.

Exceptions to the Act. Although the Act makes most government information available to the

public, some exceptions exist. If an exception might apply and the governmental body wishes to

withhold the information, the governmental body generally must, within ten business days of

receiving the open records request, refer the matter to the OAG for a ruling on whether an

exception applies. If the OAG rules that an exception applies, the governmental body will not

release the information. If a governmental body improperly fails to release information, the Act

authorizes the requestor or the OAG to file a civil lawsuit to compel the governmental body to

release the information.

Questions or Complaints. To reach the OAG’s Open Government Hotline, call toll-free

(877) 673-6839 (877-OPEN TEX). Hotline staff can answer questions about the proper

procedures for using and complying with the Act and can assist both governmental bodies and

people requesting information from a governmental body. Hotline staff also review written

complaints about alleged violations of the Act. If a complaint relates to charges, contact the OAG’s

Cost Hotline toll-free at (888) 672-6787 (888-ORCOSTS) or forward a written complaint. Certain

violations of the Act may involve possible criminal penalties. Those violations must be reported

to the appropriate county attorney or criminal district attorney.

Federal Agencies. The Act does not apply to the federal government or to any of its departments

or agencies. If you are seeking information from the federal government, the appropriate law is

the federal Freedom of Information Act (“FOIA”). FOIA’s rules and procedures are different from

those of the Public Information Act.

Rights of Requestors

All people who request public information have the right to:

• Receive treatment equal to all other requestors

• Receive a statement of estimated charges in advance

• Choose whether to inspect the requested information, receive a copy of the information, or

both

• Be notified when the governmental body asks the OAG for a ruling on whether the

information may or must be withheld

• Be copied on the governmental body’s written comments to the OAG stating the reason

why the stated exceptions apply

• Lodge a complaint with the OAG regarding any improper charges for responding to a

public information request

• Lodge a complaint with the OAG or the county attorney or criminal district attorney, as

appropriate, regarding any alleged violation of the Act

Responsibilities of Requestors

All people who request public information have the responsibility to:

• Submit a written request according to a governmental body’s reasonable procedures

• Include enough description and detail of the requested information so the governmental

body can accurately identify and locate the requested items

• Cooperate with the governmental body’s reasonable requests to clarify the type or amount

of information requested

• Respond promptly in writing to all written communications from the governmental body

(including any written estimate of charges)

• Make a timely payment for all valid charges

• Keep all appointments for inspection of records or for pick-up of copies

Rights of Governmental Bodies

All governmental bodies responding to information requests have the right to:

• Establish reasonable procedures for inspecting or copying information

• Request and receive clarification of vague or overly broad requests

• Request an OAG ruling regarding whether any information may or must be withheld

• Receive timely payment for all copy charges or other charges

• Obtain payment of overdue balances exceeding $100 or obtain a security deposit before

processing additional requests from the same requestor

• Request a bond, prepayment or deposit if estimated costs exceed $100 (or, if the

governmental body has fewer than 16 employees, $50)

iii

Responsibilities of Governmental Bodies

All governmental bodies responding to information requests have the responsibility to:

• Treat all requestors equally

• Complete open records training as required by law

• Be informed of open records laws and educate employees on the requirements of those

laws

• Inform the requestor of cost estimates and any changes in the estimates

• Confirm the requestor agrees to pay the costs before incurring the costs

• Provide requested information promptly

• Inform the requestor if the information will not be provided within ten business days and

give an estimated date on which it will be provided

• Cooperate with the requestor to schedule reasonable times for inspecting or copying

information

• Follow attorney general rules on charges; do not overcharge on any items; do not bill for

items that must be provided without charge

• Inform third parties if their proprietary information is being requested from the

governmental body

• Inform the requestor when the OAG has been asked to rule on whether information may or

must be withheld

• Copy the requestor on written comments submitted to the OAG stating the reasons why the

stated exceptions apply

• Comply with any OAG ruling on whether an exception applies or file suit against the OAG

within 30 days

• Respond in writing to all written communications from the OAG regarding complaints

about violations of the Act

This Handbook is available on the OAG’s website at www.texasattorneygeneral.gov/open-

government/office-attorney-general-and-public-information-act. The website also provides

access to the following:

• Attorney General Opinions dating from 1939 through the present;

• all formal Open Records Decisions (ORDs); and

• most informal Open Records letter rulings (ORLs) issued since January 1989.

Additional tools found on the site include the Open Meetings Handbook, the text of the Public

Information and Open Meetings Acts, and other valuable publications and resources for

governmental bodies and citizens.

The following is a list of telephone numbers that may be helpful to those needing answers to open

government questions.

Open Government Hotline TOLL-FREE (877) OPEN TEX

for questions regarding the Act and or (512) 478-6736

the Texas Open Meetings Act

Cost Hotline TOLL-FREE (888) OR COSTS

for questions regarding charges under the Act or (512) 475-2497

Freedom of Information Foundation (800) 580-6651

for questions regarding FOIA

State Library and Archives Commission (512) 463-7610

Records Management Assistance

for records retention questions

U.S. Department of Education (800) 872-5327

Family Policy Compliance Office

for questions regarding FERPA and education records

U.S. Department of Health and Human Services (800) 368-1019

Office for Civil Rights

for questions regarding the Health Insurance Portability and

Accountability Act of 1996 (HIPAA) and protected health information

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

Note on Terminology

In previous publications and rulings, the OAG has referred to chapter 552 of the Government Code

as the “Open Records Act.” The OAG, in conformity with the statute, has adopted the term “Public

Information Act” to refer to the provisions of chapter 552. However, the OAG will continue, in

this Handbook and elsewhere, to use the term “open records” in other contexts, such as “open

records request” and “open records decision.”

The symbol is used throughout the Handbook to indicate sections that discuss significant

changes in the law that have occurred since publication of the 2022 Handbook.

PART ONE: HOW THE PUBLIC INFORMATION ACT WORKS

I. O

VERVIEW

A. Historical Background

The Texas Public Information Act (the “Public Information Act” or the “Act”) was adopted in

1973 by the reform-minded 63rd Legislature.

The Sharpstown scandal, which occurred in 1969

and came to light in 1971, provided the motivation for several enactments opening up government

to the people.

The Act was initially codified as V.T.C.S. article 6252-17a, which was repealed in 1993

and

replaced by the Public Information Act now codified in the Texas Government Code at chapter

552.

The codification of the Act was a nonsubstantive revision.

B. Policy; Construction

The preamble of the Public Information Act is codified at section 552.001 of the Government Code.

It declares the basis for the policy of open government expressed in the Public Information Act. It

finds that basis in “the American constitutional form of representative government” and “the

principle that government is the servant and not the master of the people.” It further explains this

principle in terms of the need for an informed citizenry:

The people, in delegating authority, do not give their public servants the right to decide

what is good for the people to know and what is not good for them to know. The people

Act of May 19, 1973, 63rd Leg., R.S., ch. 424, 1973 Tex. Gen. Laws 1112.

See generally Mutscher v. State, 514 S.W.2d 905 (Tex. Crim. App. 1974) (summarizing events of Sharpstown

scandal); see also “Sharpstown Stock-Fraud Scandal,” Handbook of Texas Online, published by the Texas State

Historical Association, at http://www.tshaonline.org/handbook/entries/sharpstown-stock-fraud-scandal.

Act of May 4, 1993, 73rd Leg., R.S., ch. 268, § 46, 1993 Tex. Gen. Laws 583, 986.

Act of May 4, 1993, 73rd Leg., R.S., ch. 268, § 1, 1993 Tex. Gen. Laws 583, 594-607.

Act of May 4, 1993, 73rd Leg., R.S., ch. 268, § 47, 1993 Tex. Gen. Laws 583, 986.

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

insist on remaining informed so that they may retain control over the instruments they

have created.

The purpose of the Public Information Act is to maintain the people’s control “over the instruments

they have created.” The Public Information Act requires the attorney general to construe the Act

liberally in favor of open government.

C. Attorney General to Maintain Uniformity in Application, Operation

and Interpretation of the Act

Section 552.011 of the Government Code authorizes the attorney general to prepare, distribute and

publish materials, including detailed and comprehensive written decisions and opinions, in order

to maintain uniformity in the application, operation and interpretation of the Act.

D. Section 552.021

Section 552.021 of the Government Code is the starting point for understanding the operation of

the Public Information Act. It provides as follows:

Public information is available to the public at a minimum during the normal business

hours of the governmental body.

This provision tells us information in the possession of a governmental body is generally available

to the public. Section 552.002(a) of the Government Code defines “public information” as:

[I]nformation that is written, produced, collected, assembled, or maintained under a law

or ordinance or in connection with the transaction of official business:

(1) by a governmental body;

(2) for a governmental body and the governmental body:

(A) owns the information;

(B) has a right of access to the information; or

collecting, assembling, or maintaining the information; or

(3) by an individual officer or employee of a governmental body in the officer’s or

employee’s official capacity and the information pertains to official business of the

governmental body.

Gov’t Code § 552.001(b); see A & T Consultants v. Sharp, 904 S.W.2d 668, 675 (Tex. 1995); Abbott v. City of

Corpus Christi, 109 S.W.3d 113, 118 (Tex. App.—Austin 2003, no pet.); Thomas v. Cornyn, 71 S.W.3d 473, 480

(Tex. App.—Austin 2002, no pet.).

Gov’t Code § 552.011.

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

If the governmental body wishes to withhold information from a member of the public, it must

show that the requested information is within at least one of the exceptions to required public

disclosure.

Subchapter C of the Act, sections 552.101 through 552.163, lists the specific

exceptions to required public disclosure; these exceptions are discussed in Part Two of this

Handbook.

E. Open Records Training

The Act applies to every governmental body in Texas, yet prior to 2006 there was no uniform

requirement or mechanism for public officials to receive training in how to comply with the law.

The 79th Legislature enacted section 552.012 of the Government Code, which mandates public

officials to receive training in the requirements of the Public Information Act. The 88th Legislature

amended section 552.012, which provides:

(a) This section applies to an elected or appointed public official who is:

(1) a member of a multimember governmental body;

(2) the governing officer of a governmental body that is headed by a single officer

rather than by a multimember governing body; or

(3) the officer for public information of a governmental body, without regard to

whether the officer is elected or appointed to a specific term.

(b) Each public official shall complete a course of training of not less than one and not

more than two hours regarding the responsibilities of the governmental body with

which the official serves and its officers and employees under this chapter not later

than the 90th day after the date the public official:

(1) takes the oath of office, if the person is required to take an oath of office to

assume the person’s duties as a public official; or

(2) otherwise assumes the person’s duties as a public official, if the person is not

required to take an oath of office to assume the person’s duties.

(b-1) The attorney general may require each public official of a governmental body to

complete the course of training if the attorney general determines that the

governmental body has failed to comply with a requirement of this chapter. The

attorney general must notify each public official in writing of the attorney general’s

determination and the requirement to complete the training. A public official who

receives notice from the attorney general under this subsection must complete the

training not later than the 60th day after the date the official receives the notice.

training requirements of this section for the public official if the public information

Open Records Decision No. 363 (1983) (information is public unless it falls within specific exception).

Exceptions to Disclosure

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coordinator is primarily responsible for administering the responsibilities of the

public official or governmental body under this chapter. Designation of a public

information coordinator under this subsection does not relieve a public official from

the duty to comply with any other requirement of this chapter that applies to the

public official. The designated public information coordinator shall complete the

training course regarding the responsibilities of the governmental body with which

the coordinator serves and of its officers and employees under this chapter not later

than the 90th day after the date the coordinator assumes the person’s duties as

coordinator.

(d) The attorney general shall ensure that the training is made available. The office of

the attorney general may provide the training and may also approve any acceptable

course of training offered by a governmental body or other entity. The attorney

general shall ensure that at least one course of training approved or provided by the

attorney general is available on videotape or a functionally similar and widely

available medium at no cost. The training must include instruction in:

(1) the general background of the legal requirements for open records and public

information;

(2) the applicability of this chapter to governmental bodies;

(3) procedures and requirements regarding complying with a request for

information under this chapter;

(4) the role of the attorney general under this chapter; and

(5) penalties and other consequences for failure to comply with this chapter.

(e) The office of the attorney general or other entity providing the training shall provide

a certificate of course completion to persons who complete the training required by

this section. A governmental body shall maintain and make available for public

inspection the record of its public officials’ or, if applicable, the public information

coordinator’s completion of the training.

(f) Completing the required training as a public official of the governmental body

satisfies the requirements of this section with regard to the public official’s service on

a committee or subcommittee of the governmental body and the public official’s ex

officio service on any other governmental body.

(g) The training required by this section may be used to satisfy any corresponding

training requirements concerning this chapter or open records required by law for a

public official or public information coordinator. The attorney general shall attempt

to coordinate the training required by this section with training required by other law

to the extent practicable.

(h) A certificate of course completion is admissible as evidence in a criminal prosecution

under this chapter. However, evidence that a defendant completed a course of

Exceptions to Disclosure

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training offered under this section is not prima facie evidence that the defendant

knowingly violated this chapter.

Minimum Training Requirement: The law requires elected and appointed officials to attend, at

a minimum, a one-hour approved educational course on the Public Information Act. This is a

one-time-only training requirement; no refresher courses are required.

Compliance Deadlines: Officials who are elected or appointed have 90 days within which to

complete the required training.

Who Must Obtain the Training: The requirement applies to all governmental bodies subject to

the Act. It requires the elected and appointed officials from governmental bodies subject to these

laws to complete a training course on the Act. Alternatively, public officials may designate a

public information coordinator to attend training in their place so long as the designee is the person

primarily responsible for the processing of public information requests for the governmental body.

It is presumed most governmental bodies already have a designated public information coordinator;

therefore, officials may choose to opt out of the training provided they designate their public

information coordinator to receive the training in their place. However, officials are encouraged

to complete the required training, and designation of a public information coordinator to complete

training on their behalf does not relieve public officials of the responsibility to comply with the

law.

May Not Opt Out of Training if Required by Other Law: Open government training is already

required for the top officials of many state agencies under the Sunset Laws. The opt-out provisions

of the training requirement would not apply to officials who are already required by another law

to receive open government training.

Judicial Officials and Employees: Judicial officials and employees do not need to attend training

regarding the Act because public access to information maintained by the judiciary is governed by

Rule 12 of the Judicial Administration Rules of the Texas Supreme Court and by other applicable

laws and rules.

Training Curriculum: The basic topics to be covered by the training include:

1. the general background of the legal requirements for open records and public information;

2. the applicability of the Act to governmental bodies;

3. procedures and requirements regarding complying with open records requests;

4. the role of the attorney general under the Act; and

5. penalties and other consequences for failure to comply with the Act.

Training Options: The law contains provisions to ensure that training is widely available and

free training courses are available so all officials in the state can have easy access to the training.

The OAG provides a training video and live training courses.

Gov’t Code § 552.0035.

Exceptions to Disclosure

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Governmental Entities May Provide Training: Governmental entities that already provide their

own internal training on the Act may continue to do so provided the curriculum meets the minimum

requirements set forth by section 552.012 and is reviewed and approved by the OAG.

Other Entities May Provide Training: Officials may obtain the required training from any entity

that offers a training course that has been reviewed and approved by the OAG.

This encompasses

courses by various interest groups, professional organizations, and continuing education providers.

Evidence of Course Completion: The trainer is required to provide the participant with a

certificate of course completion. The official or public information coordinator’s governmental

body is then required to maintain the certificate and make it available for public inspection. The

OAG does not maintain certificates for governmental bodies.

No Penalty for Failure to Receive Training: The purpose of the law is to foster open government

by making open government education a recognized obligation of public service. The purpose is

not to create a new civil or criminal violation, so there are no specific penalties for failure to comply

with the mandatory training requirement. Despite the lack of a penalty provision, officials should

be cautioned that a deliberate failure to attend training may result in an increased risk of criminal

conviction should they be accused of violating the Act.

Training Requirements Will Be Harmonized: To avoid imposing duplicate training

requirements on public officials, the attorney general is required to harmonize the training required

by section 552.012 with any other statutory training requirements that may be imposed on public

officials.

Please visit the attorney general’s website at http://www.texasattorneygeneral.gov for more

information on section 552.012.

Gov’t Code § 552.012(d).

Exceptions to Disclosure

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II. ENTITIES SUBJECT TO THE PUBLIC INFORMATION ACT

The Public Information Act applies to information of every “governmental body.” “Governmental

body” is defined in section 552.003(1)(A) of the Government Code to mean:

(i) a board, commission, department, committee, institution, agency, or office that is

within or is created by the executive or legislative branch of state government and

that is directed by one or more elected or appointed members;

(ii) a county commissioners court in the state;

(iii) a municipal governing body in the state;

(iv) a deliberative body that has rulemaking or quasi-judicial power and that is

classified as a department, agency, or political subdivision of a county or

municipality;

(v) a school district board of trustees;

(vi) a county board of school trustees;

(vii) a county board of education;

(viii) the governing board of a special district;

(ix) the governing body of a nonprofit corporation organized under Chapter 67, Water

Code, that provides a water supply or wastewater service, or both, and is exempt

from ad valorem taxation under Section 11.30, Tax Code;

(x) a local workforce development board created under Section 2308.253;

(xi) a nonprofit corporation that is eligible to receive funds under the federal community

services block grant program and that is authorized by this state to serve a

geographic area of the state;

(xii) a confinement facility operated under a contract with any division of the Texas

Department of Criminal Justice;

(xiii) a civil commitment housing facility owned, leased, or operated by a vendor under

contract with the state as provided by Chapter 841, Health and Safety Code;

(xiv) an entity that receives public funds in the current or preceding state fiscal year to

manage the daily operations or restoration of the Alamo, or an entity that oversees

such an entity; and

(xv) the part, section, or portion of an organization, corporation, commission, committee,

institution, or agency that spends or that is supported in whole or in part by public

funds[.]

Exceptions to Disclosure

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The judiciary is expressly excluded from the definition of “governmental body.”

The required

public release of records of the judiciary is governed by Rule 12 of the Texas Rules of Judicial

Administration.

In addition to the judiciary, specified economic development entities are also

expressly excluded from the definition of “governmental body” pursuant to section

552.003(1)(B)(ii).

An entity that does not believe it is a “governmental body” within this definition may make a

timely request for a decision from the attorney general under Subchapter G of the Act if there has

been no previous determination regarding this issue and it wishes to withhold the requested

information.

A. State and Local Governmental Bodies

The definition of the term “governmental body” encompasses all public entities in the executive

and legislative branches of government at the state and local levels. Although a sheriff’s office,

for example, is not within the scope of section 552.003(1)(A)(i)–(xiv), it is supported by public

funds and is therefore a “governmental body” within section 552.003(1)(A)(xv).

B. Private Entities

1. Private Entities Supported by Public Funds

An entity that is supported in whole or in part by public funds or that spends public funds is a

governmental body under section 552.003(1)(A)(xv) of the Government Code. Public funds are

“funds of the state or of a governmental subdivision of the state.”

The Texas Supreme Court has

defined “‘supported in whole or part by public funds’ to include only those private entities or their

sub-parts sustained, at least in part, by public funds, meaning they could not perform the same or

similar services without the public funds.”

Thus, section 552.003(1)(A)(xv) encompasses only

those private entities that are dependent on public funds to operate as a going concern,

and only

those entities acting as the functional equivalent of the government.

Gov’t Code § 552.003(1)(B)(i).

Rule 12 of the Texas Rules of Judicial Administration is located in Part Five of this Handbook.

Gov’t Code § 552.003(1)(B)(ii).

See Blankenship v. Brazos Higher Educ. Auth., Inc., 975 S.W.2d 353, 362 (Tex. App.—Waco 1998, pet. denied)

(entity does not admit it is governmental body by virtue of request for opinion from attorney general).

Open Records Decision No. 78 (1975) (discussing statutory predecessor to Gov’t Code § 552.003(1)(A)(xv)); see

Permian Report v. Lacy, 817 S.W.2d 175 (Tex. App.—El Paso 1991, writ denied) (suggesting county clerk’s office

is subject to Act as agency supported by public funds).

Gov’t Code § 552.003(5).

Greater Houston P’ship v. Paxton, 468 S.W. 3d 51, 63 (Tex. 2015).

Greater Houston P’ship v. Paxton, 468 S.W. 3d 51, 61 (Tex. 2015).

Greater Houston P’ship v. Paxton, 468 S.W. 3d 51, 62 (Tex. 2015).

Exceptions to Disclosure

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2. Private Entities Deemed Governmental Bodies by Statute

Section 51.212 of the Education Code provides:

(f) A campus police department of a private institution of higher education is a law

enforcement agency and a governmental body for purposes of Chapter 552,

Government Code, only with respect to information relating solely to law

enforcement activities.

C. Certain Property Owners’ Associations Subject to Act

Section 552.0036 provides:

A property owners’ association is subject to [the Act] in the same manner as a

governmental body:

(1) if:

(A) membership in the property owners’ association is mandatory for owners or

for a defined class of owners of private real property in a defined geographic

area in a county with a population of 2.8 million or more or in a county

adjacent to a county with a population of 2.8 million or more;

(B) the property owners’ association has the power to make mandatory special

assessments for capital improvements or mandatory regular assessments; and

been based in whole or in part on the value at which the state or a local

governmental body assesses the property for purposes of ad valorem taxation

under Section 20, Article VIII, Texas Constitution; or

(2) if the property owners’ association:

(A) provides maintenance, preservation, and architectural control of residential

and commercial property within a defined geographic area in a county with a

population of 2.8 million or more or in a county adjacent to a county with a

population of 2.8 million or more; and

(B) is a corporation that:

(i) is governed by a board of trustees who may employ a general manager to

execute the association’s bylaws and administer the business of the

corporation;

(ii) does not require membership in the corporation by the owners of the

property within the defined area; and

Educ. Code § 51.212(f).

Exceptions to Disclosure

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(iii) was incorporated before January 1, 2006.

The only county in Texas with a population of 2.8 million or more is Harris County. The counties

adjoining Harris County are Waller, Fort Bend, Brazoria, Galveston, Chambers, Liberty, and

Montgomery. Thus, property owners’ associations located in those counties and otherwise within

the parameters of section 552.0036 are considered to be governmental bodies for purposes of the

Act.

D. A Governmental Body Holding Records for Another Governmental

Body

One governmental body may hold information on behalf of another governmental body. For

example, state agencies may transfer noncurrent records to the Records Management Division of

the Texas State Library and Archives Commission for storage.

State agency records held by the

state library under the state records management program should be requested from the originating

state agency, not the state library. The governmental body by or for which information is collected,

assembled, or maintained pursuant to section 552.002(a) retains ultimate responsibility for

disclosing or withholding information in response to a request under the Public Information Act,

even though another governmental body has physical custody of it.

E. Private Entities Holding Records for Governmental Bodies

On occasion, when a governmental body has contracted with a private consultant to prepare

information for the governmental body, the consultant keeps the report and data in the consultant’s

office, and the governmental body reviews it there. Although the information is not in the physical

custody of the governmental body, the information is in the constructive custody of the

governmental body and is therefore subject to the Act.

The private consultant is acting as the

governmental body’s agent in holding the records.

The definition of “public information” in section 552.002 of the Government Code reads as

follows:

(a) information that is written, produced, collected, assembled, or maintained under a

law or ordinance or in connection with the transaction of official business:

(1) by a governmental body;

(2) for a governmental body and the governmental body:

(A) owns the information;

(B) has a right of access to the information; or

Open Records Decision No. 617 (1993); see Open Records Decision No. 674 (2001).

Open Records Decision No. 576 (1990).

Open Records Decision No. 462 (1987).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

collecting, assembling, or maintaining the information; or

(3) by an individual officer or employee of a governmental body in the officer’s or

employee’s official capacity and the information pertains to official business of

the governmental body.

(a-1) Information is in connection with the transaction of official business if the

information is created by, transmitted to, received by, or maintained by an officer or

employee of the governmental body in the officer’s or employee’s official capacity, or

a person or entity performing official business or a governmental function on behalf

of a governmental body, and pertains to official business of the governmental body.

The following decisions recognize that various records held for governmental bodies by private

entities are subject to the Act:

Open Records Decision No. 585 (1991) — the city manager may not contract away the right

to inspect the list of applicants maintained by a private consultant for the city;

Open Records Decision No. 499 (1988) — the records held by a private attorney employed by

a municipality that relate to legal services performed at the request of the municipality;

Open Records Decision No. 462 (1987) — the records regarding the investigation of a

university football program prepared by a law firm on behalf of the university and kept at the

law firm’s office; and

Open Records Decision No. 437 (1986) — the records prepared by bond underwriters and

attorneys for a utility district and kept in an attorney’s office.

Section 2252.907 of the Government Code contains specific requirements for a contract between

a state governmental entity and a nongovernmental vendor involving the exchange or creation of

public information.

Additionally, the 86th Legislature added subchapter J of the Act, sections 552.371 through 552.376.

These sections are intended to make government contracting information public and require its

disclosure. Subchapter J details the requirements of certain private entities that contract with a

governmental body to provide contracting information to the governmental body in response to a

request for information. Section 552.371 specifically applies to information related to contracts

involving the expenditure of at least $1 million in public funds for the purchase of goods or services

by the governmental body or that results in the expenditure of at least $1 million in public funds

for the purchase of goods or services by the governmental body in a fiscal year of the governmental

See also Baytown Sun v. City of Mont Belvieu, 145 S.W.3d 268 (Tex. App.—Houston [14th Dist.] 2004, no pet.)

(municipality had right of access to employee salary information of company it contracted with to manage

recreational complex); Open Records Decision No. 585 (1991) (overruling Open Records Decision Nos. 499 (1988),

462 (1987), 437 (1986) to extent they suggest governmental body can waive its right of access to information

gathered on its behalf).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

body.

This section requires a governmental body that receives a request for contracting

information pertaining to such a contract to obtain the responsive information from the contracting

entity and sets out the procedural requirements for obtaining the information.

Further, section

552.372 establishes records retention and preservation requirements for the contracting entities.

Section 552.374 authorizes a governmental body to terminate a contract if a contracting entity does

not provide contracting information pursuant to the requirements laid out in subchapter J.

F. Judiciary Excluded from the Public Information Act

Section 552.003(1)(B)(i) of the Government Code excludes the judiciary from the Public

Information Act. Section 552.0035 of the Government Code specifically provides that access to

judicial records is governed by rules adopted by the Supreme Court of Texas or by other applicable

laws and rules.

(See Part Five of this Handbook for Rule 12 of the Texas Rules of Judicial

Administration.) This provision, however, expressly provides that it does not address whether

particular records are judicial records.

The purposes and limits of section 552.003(1)(B)(i) were discussed in Benavides v. Lee.

At issue

in that case were applications for the position of chief juvenile probation officer submitted to the

Webb County Juvenile Board. The court determined that the board was not “an extension of the

judiciary” for purposes of the Public Information Act, even though the board consisted of members

of the judiciary and the county judge. The court stated as follows:

The Board is not a court. A separate entity, the juvenile court, not the Board, exists to

adjudicate matters concerning juveniles. Nor is the Board directly controlled or supervised by

a court.

Moreover, simply because the legislature chose judges as Board members, art. 5139JJJ, § 1,

does not in itself indicate they perform on the Board as members of the

judiciary. . . . [C]lassification of the Board as judicial or not depends on the functions of the

Board, not on members’ service elsewhere in government.

The decisions made by the board were administrative, not judicial, and the selection of a probation

officer was part of the board’s administration of the juvenile probation system, not a judicial act

by a judicial body. The court continued:

The judiciary exception, § 2(1)(G) [now section 552.003(1)(B)(i) of the Government Code], is

important to safeguard judicial proceedings and maintain the independence of the judicial

Gov’t Code § 552.371(a).

Gov’t Code § 552.371(b)-(e).

Gov’t Code § 552.372(a)-(c).

Gov’t Code §§ 552.373, .374.

Gov’t Code § 552.0035; see R. Jud. Admin. 12; see also, e.g., Ashpole v. Millard, 778 S.W.2d 169, 170 (Tex.

App.—Houston [1st Dist.] 1989, no writ) (public has right to inspect and copy judicial records subject to court’s

inherent power to control public access to its records); Attorney General Opinion DM-166 (1992); Open Records

Decision No. 25 (1974).

Benavides v. Lee, 665 S.W.2d 151 (Tex. App.—San Antonio 1983, no writ).

Benavides v. Lee, 665 S.W.2d 151, 151-52 (Tex. App.—San Antonio 1983, no writ) (footnote omitted).

Exceptions to Disclosure

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branch of government, preserving statutory and case law already governing access to judicial

records. But it must not be extended to every governmental entity having any connection with

the judiciary.

The Texas Supreme Court also addressed the judiciary exception in Holmes v. Morales.

In that

case, the court found that “judicial power” as provided for in article V, section 1, of the Texas

Constitution “embraces powers to hear facts, to decide issues of fact made by pleadings, to decide

questions of law involved, to render and enter judgment on facts in accordance with law as

determined by the court, and to execute judgment or sentence.”

Because the court found the

Harris County District Attorney did not perform these functions, it held the district attorney’s

office is not a member of the judiciary, but is a governmental body within the meaning of the

Public Information Act.

In Open Records Decision No. 657 (1997), the attorney general concluded telephone billing

records of the Supreme Court did not relate to the exercise of judicial powers but rather to routine

administration and were not “records of the judiciary” for purposes of the Public Information Act.

The Texas Supreme Court subsequently overruled Open Records Decision No. 657 (1997), finding

the court was not a governmental body under the Act and its records were therefore not subject to

the Act.

The State Bar of Texas is a “public corporation and an administrative agency of the judicial

department of government.”

Section 81.033 of the Government Code provides that, with certain

exceptions, all records of the State Bar are subject to the Public Information Act.

The following decisions address the judiciary exclusion:

Open Records Decision No. 671 (2001) — the information contained in the weekly index

reports produced by the Ellis County District Clerk’s office is derived from a case disposition

database that is “collected, assembled, or maintained . . . for the judiciary.” Gov’t Code

§ 552.0035(a). Therefore, the information contained in weekly index reports is not public

information under the Act;

Open Records Decision No. 646 (1996) — a community supervision and corrections

department is a governmental body and is not part of the judiciary for purposes of the Public

Information Act. Administrative records such as personnel files and other records reflecting

the day-to-day management of a community supervision and corrections department are

Benavides v. Lee, 665 S.W.2d 151, 152 (Tex. App.—San Antonio 1983, no writ).

Holmes v. Morales, 924 S.W.2d 920 (Tex. 1996).

Holmes v. Morales, 924 S.W.2d 920, 923 (Tex. 1996).

Order and Opinion Denying Request Under Open Records Act, No. 97-9141, 1997 WL 583726 (Tex. August 21,

1997) (not reported in S.W.2d).

Gov’t Code § 81.011(a); see Open Records Decision No. 47 (1974) (records of state bar grievance committee were

confidential pursuant to Texas Supreme Court rule; not deciding whether state bar was part of judiciary).

Compare Open Records Decision No. 604 (1992) (considering request for list of registrants for Professional

Development Programs) with In re Nolo Press/Folk Law, Inc., 991 S.W.2d 768 (Tex. 1999) (Unauthorized Practice

of Law Committee of state bar is judicial agency and therefore subject to Rule 12 of Texas Rules of Judicial

Administration).

Exceptions to Disclosure

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subject to the Public Information Act.

On the other hand, specific records regarding

individuals on probation and subject to the direct supervision of a court that are held by a

community supervision and corrections department are not subject to the Public Information

Act because such records are held on behalf of the judiciary;

Open Records Decision No. 610 (1992) — the books and records of an insurance company

placed in receivership pursuant to article 21.28 of the Insurance Code are excluded from the

Public Information Act as records of the judiciary;

Open Records Decision No. 572 (1990) — certain records of the Bexar County Personal Bond

Program are within the judiciary exclusion;

Open Records Decision No. 513 (1988) — records held by a district attorney on behalf of a

grand jury are in the grand jury’s constructive possession and are not subject to the Public

Information Act. However, records a district attorney collects, prepares, and submits to grand

jury are not in the constructive possession of the grand jury when that information is held by

the district attorney.

Open Records Decision No. 204 (1978) — information held by a county judge as a member of

the county commissioners court is subject to the Public Information Act; and

Open Records Decision No. 25 (1974) — the records of a justice of the peace are not subject

to the Public Information Act but may be inspected under statutory and common-law rights of

access.

III. INFORMATION SUBJECT TO THE PUBLIC INFORMATION

ACT

A. Public Information is Contained in Records of All Forms

Section 552.002(b) of the Government Code states the Public Information Act applies to recorded

information in practically any medium, including: paper; film; a magnetic, optical, solid state or

other device that can store an electronic signal; tape; Mylar; and any physical material on which

information may be recorded, including linen, silk, and vellum.

Section 552.002(c) specifies

that “[t]he general forms in which the media containing public information exist include a book,

paper, letter, document, e-mail, Internet posting, text message, instant message, other electronic

communication, printout, photograph, film, tape, microfiche, microfilm, photostat, sound

recording, map, and drawing and a voice, data, or video representation held in computer memory.”

But see Gov’t Code § 76.006(g) (document evaluating performance of officer of community supervision and

corrections department who supervises defendants placed on community supervision is confidential).

See also Open Records Decision Nos. 660 (1999) (Section 52(a) of article III of Texas Constitution does not prohibit

Port of Corpus Christi Authority from releasing computer generated digital map), 492 (1988) (raw data collected by

outside consultant, but accessed by comptroller through data link and stored on comptroller’s computer system), 432

(1985) (photographic negatives), 413 (1984) (sketches), 364 (1983) (videotapes), 352 (1982) (computer tapes), 32

(1974) (tape recordings).

Exceptions to Disclosure

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B. Information Held by a Temporary Custodian

The Public Information Act can also apply to information on a privately owned device of a current

or former governmental body employee or official. Section 552.203(4) of the Government Code

requires each governmental body’s officer for public information to make reasonable efforts to

obtain public information from a temporary custodian. Section 552.003(7) of the Government

Code defines “temporary custodian” as a current or former governmental employee or official who

maintains public information that has not been provided to a governmental body’s officer for

public information or the officer’s agent. Pursuant to section 552.203(4) of the Government Code,

a governmental body’s public information officer is required to obtain information from a

temporary custodian if:

(A) the information has been requested from the governmental body;

(B) the officer for public information is aware of facts sufficient to warrant a reasonable

belief that the temporary custodian has possession, custody, or control of the

information;

this chapter without obtaining the information from the temporary custodian; and

(D) the temporary custodian has not provided the information to the officer for public

information or the officer’s agent.

Section 552.233(a) states a current or former officer or employee of a governmental body does not

have a personal or property right to public information created or received while acting in an

official capacity. Section 552.233(b) provides that a temporary custodian with possession, custody,

or control of public information shall surrender the information to the governmental body no later

than the 10th business day after the governmental body requests it from the temporary custodian.

Furthermore, pursuant to section 552.233(c), a temporary custodian’s failure to surrender or return

the information would be grounds for disciplinary action by the temporary custodian’s employer

or any other applicable penalties provided by the Act or other law.

C. Exclusion of Tangible Items

Despite the assumption in Open Records Decision No. 252 (1980) that the Public Information Act

applies to physical evidence, the prevailing view is that tangible items such as a tool or a key are

not “information” within the Act, even though they may be copied or analyzed to produce

information. In Open Records Decision No. 581 (1990), the attorney general dealt with a request

for the source code, documentation, and computer program documentation standards of computer

programs used by a state university. The requested codes, documentation, and documentation

standards contained security measures designed to prevent unauthorized access to student records.

The attorney general noted the sole significance of the computer source code, documentation, and

documentation standards was “as a tool for the storage, manipulation, and security of other

information.”

While acknowledging the comprehensive scope of the term “information,” the

attorney general nevertheless determined the legislature could not have intended that the Public

Open Records Decision No. 581 at 6 (1990).

Exceptions to Disclosure

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Information Act compromise the physical security of information management systems or other

government property.

The attorney general concluded that information used solely as a tool to

maintain, manipulate, or protect public property was not the kind of information made public by

the statutory predecessor to section 552.021 of the Public Information Act.

D. Exclusion of Protected Health Information

Section 552.002(d) of the Government Code specifically excludes protected health information,

as defined by section 181.006 of the Health and Safety Code, from the requirements of the Act.

Section 181.006 of the Health and Safety Code defines protected health information as “any

information that reflects that an individual received health care from [a] covered entity[.]”

Furthermore, section 181.001(b)(2)(A) defines “covered entity” to include any person who:

(A) for commercial, financial, or professional gain, monetary fees, or dues, or on a

cooperative, nonprofit, or pro bono basis, engages, in whole or in part, and with real

or constructive knowledge, in the practice of assembling, collecting, analyzing, using,

evaluating, storing, or transmitting protected health information. The term includes

a business associate, health care payer, governmental unit, information or computer

management entity, school, health researcher, health care facility, clinic, health care

provider, or person who maintains an Internet site[.]

Therefore, protected health information is not subject to disclosure under the Act.

E. Personal Notes and E-mail in Personal Accounts or Devices

A few early decisions of the attorney general found certain personal notes of public employees

were not “information collected, assembled, or maintained by governmental bodies pursuant to

law or ordinance or in connection with the transaction of official business.”

Thus, such personal

notes were not considered subject to the Public Information Act.

Governmental bodies are

advised to use caution in relying on early open records decisions that address “personal notes.”

Open Records Decision No. 581 at 5-6 (1990) (drawing comparison to door key, whose sole significance as

“information” is its utility as tool in matching internal mechanism of lock).

Open Records Decision No. 581 at 6 (1990) (overruling in part Open Records Decision No. 401 (1983), which had

suggested implied exception to required public disclosure applied to requested computer programs); see also

Attorney General Opinion DM-41 (1991) (formatting codes are not “information” subject to Act).

Gov’t Code § 552.002(d).

Health & Safety Code § 181.006.

Open Records Decision No. 77 (1975) (quoting statutory predecessor to Gov’t Code § 552.021).

See Open Records Decision No. 116 (1975) (portions of desk calendar kept by governor’s aide comprising notes of

private activities and aide’s notes made solely for his own informational purposes are not public information); see

also Open Records Decision No. 145 (1976) (handwritten notes on university president’s calendar are not public

information).

Exceptions to Disclosure

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More recent decisions have concluded personal notes are not necessarily excluded from the

definition of “public information” and may be subject to the Act.

The characterization of

information as “public information” under the Act is not dependent on whether the requested

records are in the possession of an individual, rather than a governmental body, or whether a

governmental body has a particular policy or procedure that establishes a governmental body’s

access to the information.

If information was made, transmitted, maintained, or received in

connection with a governmental body’s official business, the mere fact that the governmental body

does not possess the information does not take the information outside the scope of the Act.

Adkisson v. Paxton, the court of appeals considered a request for correspondence related to a

county commissioner’s official capacity from his personal and county e-mail accounts. The court

concluded the information in the commissioner’s official-capacity e-mails is necessarily connected

with the transaction of the county’s official business, and the county owns the information

regardless of whether the information is created or received in a personal e-mail account or an

official county e-mail account. Thus, the court held the requested information is “public

information” subject to the Act. This case construes a prior version section 552.002 of the Act,

which the 83rd Legislature amended, along with section 552.003, in 2013.

The amended definition of “public information” in section 552.002(a-2) now specifically includes:

any electronic communication created, transmitted, received, or maintained on any

device if the communication is in connection with the transaction of official business.

Section 552.002(a-1) further defines “information . . . in connection with the transaction of official

business” as:

[I]nformation . . . created by, transmitted to, received by, or maintained by an officer or

employee of the governmental body in the officer’s or employee’s official capacity, or a

person or entity performing official business or a governmental function on behalf of a

governmental body, and pertains to official business of the governmental body.

Adopting the attorney general’s long-standing interpretation, the definition of “public information”

now takes into account the use of electronic devices and cellular phones by public employees and

officials in the transaction of official business. The Act does not distinguish between personal or

employer-issued devices, but rather focuses on the nature of the communication or document. If

the information was created, transmitted, received, or maintained in connection with the

See, e.g., Open Records Decision Nos. 635 (1995) (public official’s or employee’s appointment calendar, including

personal entries, may be subject to Act), 626 (1994) (handwritten notes taken during oral interview by Texas

Department of Public Safety promotion board members are subject to Act), 450 (1986) (handwritten notes taken by

appraiser while observing teacher’s classroom performance are subject to Act), 120 (1976) (faculty members’

written evaluations of doctoral student’s qualifying exam are subject to Act).

Open Records Decision No. 635 at 3-4 (1995) (information does not fall outside definition of “public information”

in Act merely because individual member of governmental body possesses information rather than governmental

body as whole); see also Open Records Decision No. 425 (1985) (information sent to individual school trustees’

homes was public information because it related to official business of governmental body) (overruled on other

grounds by Open Records Decision No. 439 (1986)).

See Open Records Decision No. 635 at 6-8 (1995) (information maintained on privately-owned medium and actually

used in connection with transaction of official business would be subject to Act).

Adkisson v. Paxton, 459 S.W.3d 761 (Tex. App.—Austin 2015, no pet.).

Exceptions to Disclosure

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transaction of “official business,” meaning, “any matter over which a governmental body has any

authority, administrative duties, or advisory duties[,]” the information constitutes public

information subject to disclosure under the Act.

There are no cases or formal decisions applying these amendments to section 552.002 or section

552.003.

F. Commercially Available Information

Section 552.027 provides:

(a) A governmental body is not required under the Act to allow the inspection of or to

provide a copy of information in a commercial book or publication purchased or

acquired by the governmental body for research purposes if the book or publication

is commercially available to the public.

(b) Although information in a book or publication may be made available to the public

as a resource material, such as a library book, a governmental body is not required

to make a copy of the information in response to a request for public information.

publication that is made part of, incorporated into, or referred to in a rule or policy

of a governmental body.

This section is designed to alleviate the burden of providing copies of commercially available

books, publications, and resource materials maintained by governmental bodies, such as telephone

directories, dictionaries, encyclopedias, statutes, and periodicals. Therefore, section 552.027

provides exemptions from the definition of “public information” under section 552.002 for

commercially available research material. However, pursuant to subsection (c) of section 552.027,

a governmental body must allow inspection of a publication that is made a part of, or referred to

in, a rule or policy of the governmental body.

IV. PROCEDURES FOR ACCESS TO PUBLIC INFORMATION

A. Informing the Public of Basic Rights and Responsibilities Under the

Act

Section 552.205 of the Government Code requires the officer for public information of a

governmental body to display a sign, in the form required by the attorney general, that contains

basic information about the rights of a requestor, the responsibilities of a governmental body, and

the procedures for inspecting or obtaining a copy of public information under the Act.

The sign

is to be displayed at one or more places in the administrative offices of the governmental body

where it is plainly visible to members of the public requesting information and employees of the

Gov’t Code § 552.003(2-a).

Gov’t Code § 552.205.

Exceptions to Disclosure

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governmental body whose duties involve receiving or responding to requests under the Act.

The

sign’s format as prescribed by the attorney general is available on the attorney general’s website.

B. The Request for Public Information

A governmental body’s duties under section 552.221(a) to produce information or under section

552.301(a) to request a ruling from the attorney general arise only after it receives a written

request.

A governmental body that receives a verbal request for information may require the

requestor to submit that request in writing. Sections 552.234 and 552.235 of the Government Code

outline the proper methods to submit a request for public information. Section 552.234 reads:

(a) A person may make a written request for public information under this chapter only

by delivering the request by one of the following methods to the applicable officer for

public information or a person designated by that officer:

(1) United States mail;

(2) electronic mail;

(3) hand delivery; or

(4) any other appropriate method approved by the governmental body, including:

(A) facsimile transmission; and

(B) electronic submission through the governmental body’s Internet website.

(b) For the purpose of Subsection (a)(4), a governmental body is considered to have

approved a method described by that subdivision only if the governmental body

includes a statement that a request for public information may be made by that method

on:

(1) the sign required to be displayed by the governmental body under Section

552.205; or

(2) the governmental body’s internet website.

address for receiving written requests for public information. The governmental body

shall provide the designated mailing address and electronic mailing address to any

person on request.

(d) A governmental body that posts the mailing address and electronic mail address

designated by the governmental body under Subsection (c) on the governmental body’s

Internet website or that prints those addresses on the sign required to be displayed by

Gov’t Code § 552.205(a).

Open Records Decision No. 304 at 2 (1982).

Exceptions to Disclosure

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the governmental body under Section 552.205 is not required to respond to a written

request for public information unless the request is received:

(1) at one of those addresses;

(2) by hand delivery; or

(3) by a method described by Subsection (a)(4) that has been approved by the

governmental body.

Requests for a state agency’s records that are stored in the Texas State Library and Archives

Commission’s State and Local Records Management Division should be directed to the originating

agency, rather than to the state library.

Section 552.235 of the Government Code requires the attorney general to create a public

information request form that provides a requestor the option of excluding information that the

governmental body determines is confidential or is subject to an exception to disclosure.

This

form can be found on the attorney general’s website. A governmental body that chooses to use

this form must post the form on its website if it maintains one.

A governmental body must make a good faith effort to relate a request to information that it

holds.

A governmental body may ask a requestor to clarify a request for information if the

request is unclear.

Section 552.222(b) provides that if a large amount of information has been

requested, the governmental body may discuss with the requestor how the scope of the request

might be narrowed, but the governmental body may not inquire into the purpose for which

information will be used.

Section 552.222 also provides that a request for information is

considered withdrawn if the requestor does not respond in writing to a governmental body’s

written request for clarification or additional information within 61 days.

The governmental

body’s written request for clarification or additional information must include a statement as to the

consequences of the failure by the requestor to timely respond.

If the requestor’s original request

for information was sent by electronic mail, a governmental body may consider the request for

information withdrawn if the governmental body sends its request for clarification to the electronic

mail address from which the original request was sent or another electronic mail address provided

by the requestor, and the governmental body does not receive a timely written response or response

by electronic mail from the requestor.

If the requestor’s original request for information was not

sent by electronic mail, a governmental body may consider the request for information withdrawn

if the governmental body sent its request for clarification by certified mail to the requestor’s

Open Records Decision No. 617 (1993).

Gov’t Code § 552.235(a).

Gov’t Code § 552.235(b).

Open Records Decision No. 561 at 8 (1990).

Gov’t Code § 552.222(b).

Gov’t Code § 552.222(d).

Gov’t Code § 552.222(e).

Gov’t Code § 552.222(g).

Exceptions to Disclosure

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physical or mailing address, and the governmental body does not receive a timely written response

from the requestor.

When a governmental body, acting in good faith, requests clarification or narrowing of an unclear

or overbroad request, the ten business day period to request an attorney general ruling is measured

from the date it receives the requestor’s response to the request for clarification or narrowing.

addition, a governmental body may make inquiries of a requestor in order to establish proper

identification.

A governmental body may also make certain inquiries of a requestor who seeks

information relating to motor vehicle records to determine if the requestor is authorized to receive

the information under the governing statute.

Similarly, a governmental body may require a

requestor seeking an interior photograph taken by an appraisal district for property tax appraisal

purposes to provide additional information sufficient to determine whether the requestor is eligible

to receive the photograph.

It is implicit in several provisions of the Act that it applies only to information already in

existence.

Thus, the Act does not require a governmental body to prepare new information in

response to a request.

Furthermore, the Act does not require a governmental body to inform a

requestor if the requested information comes into existence after the request has been made.

Consequently, a governmental body is not required to comply with a continuing request to supply

information on a periodic basis as such information is prepared in the future.

Moreover, the Act

does not require a governmental body to prepare answers to questions or to do legal research.

Additionally, section 552.227 states that “[a]n officer for public information or the officer’s agent

is not required to perform general research within the reference and research archives and holdings

of state libraries.”

Section 552.232 provides for the handling of repetitious or redundant requests. Under this section,

a governmental body that receives a request for information for which it determines it has already

furnished or made copies available to the requestor upon payment of applicable charges under

Subchapter F may respond to the request by certifying to the requestor that it has already made the

information available to the person. The certification must include a description of the information

already made available; the date of the governmental body’s receipt of the original request for the

information; the date it furnished or made the information available; a certification that no changes

Gov’t Code § 552.222(f).

City of Dallas v. Abbott, 304 S.W.3d 380, 387 (Tex. 2010).

Gov’t Code § 552.222(a).

Gov’t Code § 552.222(c) (referencing Transp. Code ch. 730).

Gov’t Code § 552.155(b), .222(c-1).

See Gov’t Code §§ 552.002, .021, .227, .351.

A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 676 (Tex. 1995); Fish v. Dallas Indep. Sch. Dist., 31 S.W.3d 678,

681 (Tex. App.—Eastland 2000, pet. denied); Attorney General Opinion H-90 (1973); Open Records Decision

Nos. 452 at 2-3 (1986), 342 at 3 (1982), 87 (1975).

Open Records Decision No. 452 at 3 (1986).

Attorney General Opinion JM-48 at 2 (1983); Open Records Decision Nos. 476 at 1 (1987), 465 at 1 (1987).

See Open Records Decision Nos. 563 at 8 (1990) (considering request for federal and state laws and regulations),

555 at 1-2 (1990) (considering request for answers to fact questions).

Gov’t Code § 552.227.

Exceptions to Disclosure

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have been made to the information; and the name, title, and signature of the officer for public

information, or his agent, who makes the certification.

Section 552.0055 provides that a subpoena duces tecum or request for discovery issued in

compliance with a statute or rule of civil or criminal procedure is not considered to be a request

for information under the Public Information Act.

C. The Governmental Body’s Duty to Produce Public Information

Promptly

In general, the officer for public information must protect public information and promptly make

it available to the public for copying or inspecting.

The Act designates the chief administrative

officer and each elected county officer as the officer for public information for a governmental

body.

Section 552.221 specifies the duties of the officer for public information upon receiving

a request for public information. Section 552.221 reads in part:

(a) An officer for public information of a governmental body shall promptly produce

public information for inspection, duplication, or both on application by any person

to the officer. In this subsection, “promptly” means as soon as possible under the

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

(b) An officer for public information complies with Subsection (a) by:

(1) providing the public information for inspection or duplication in the offices of

the governmental body; or

(2) sending copies of the public information by first class United States mail if the

person requesting the information requests that copies be provided and pays the

postage and any other applicable charges that the requestor has accrued under

Subchapter F.

(b-1) In addition to the methods of production described by Subsection (b), an officer for

public information for a governmental body of this state complies with Subsection

(a) by referring a requestor to an exact Internet location or uniform resource

locator (URL) address on a website maintained by the governmental body and

accessible to the public if the requested information is identifiable and readily

available on that website. If the person requesting the information prefers a manner

other than access through the URL, the governmental body must supply the

information in the manner required by Subsection (b).

Gov’t Code § 552.232(b).

See Gov’t Code § 552.203 (listing general duties of officer for public information).

See Gov’t Code §§ 552.201, .202 (designating officer for public information and identifying department heads as

agents for that officer); see also Keever v. Finlan, 988 S.W.2d 300, 301 (Tex. App.—Dallas 1999, pet. dism’d)

(school district superintendent, rather than school board member, is chief administrative officer and custodian of

public records).

Exceptions to Disclosure

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(b-2) If an officer for public information for a governmental body provides by e-mail an

Internet location or uniform resource locator (URL) address as permitted by

Subsection (b-1), the e-mail must contain a statement in a conspicuous font clearly

indicating that the requestor may nonetheless access the requested information by

inspection or duplication or by receipt through United States mail, as provided by

Subsection (b).

Thus, in order to comply with section 552.221, generally a governmental body must either provide

the information for inspection, duplication, or both, in its offices or send copies of the information

by first class United States mail. A governmental body may also comply with section 552.221 by

referring the requestor to an exact Internet location or URL address maintained by the

governmental body and accessible to the public, if the requested information is identifiable and

readily accessible on the website.

If the governmental body uses e-mail to refer the requestor to

an Internet location or URL address, the e-mail must contain a statement in a conspicuous font

indicating the requestor may still choose to inspect the information or receive copies of the

information.

If the requestor prefers to inspect the information or receive copies instead of

accessing the information on the governmental body’s website, the governmental body must either

provide the information for inspection or duplication in its offices or send copies of the information

by first class mail.

An officer for public information is not responsible for how a requestor uses

public information or for the release of information after it is removed from a record as a result of

an update, a correction, or a change of status of the person to whom the information pertains.

The officer for public information must “promptly” produce public information in response to an

open records request.

“Promptly” means that a governmental body may take a reasonable

amount of time to produce the information, but may not delay.

It is a common misconception

that a governmental body may wait ten business days before releasing the information. In fact, as

discussed above, the requirement is to produce information “promptly.” What constitutes a

reasonable amount of time depends on the facts in each case. The volume of information requested

is highly relevant to what constitutes a reasonable period of time.

If the request is to inspect the information, the Public Information Act requires only that the officer

in charge of public information make it available for review within the “offices of the

governmental body[.]”

Temporarily transporting records outside the office for official use does

not trigger a duty to make the records available to the public wherever they may be.

Gov’t Code § 552.221(b-1).

Gov’t Code § 552.221 (b-2).

Gov’t Code § 552.221(b-1).

Gov’t Code § 552.204; Open Records Decision No. 660 at 4 (1999).

Gov’t Code § 552.221(a); see Dominguez v. Gilbert, 48 S.W.3d 789, 792 (Tex. App.—Austin 2001, no pet.); Open

Records Decision No. 665 (2000).

Gov’t Code § 552.221(a); see Open Records Decision No. 467 at 6 (1987).

Open Records Decision No. 467 at 6 (1987).

Gov’t Code § 552.221(b).

Conely v. Peck, 929 S.W.2d 630, 632 (Tex. App.—Austin 1996, no writ).

Exceptions to Disclosure

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Subsection 552.221(c) states:

If the requested information is unavailable at the time of the request to examine because

it is in active use or in storage, the officer for public information shall certify this fact in

writing to the requestor and set a date and hour within a reasonable time when the

information will be available for inspection or duplication.

The following decisions discuss when requested information is in “active use”:

Open Records Decision No. 225 (1979) — a secretary’s handwritten notes are in active use

while the secretary is typing minutes of a meeting from them;

Open Records Decision No. 148 (1976) — a faculty member’s file is not in active use the

entire time the member’s promotion is under consideration;

Open Records Decision No. 96 (1975) — directory information about students is in active use

while the notice required by the federal Family Educational Rights and Privacy Act of 1974 is

being given; and

Open Records Decision No. 57 (1974) — a file containing student names, addresses, and

telephone numbers is in active use during registration.

If an officer for public information cannot produce public information for inspection or duplication

within ten business days after the date the information is requested, section 552.221(d) requires

the officer to “certify that fact in writing to the requestor and set a date and hour within a reasonable

time when the information will be available for inspection or duplication.”

Section 552.221(e) of the Government Code provides:

A request is considered to have been withdrawn if the requestor fails to inspect or

duplicate the public information in the office of the governmental body on or before the

60th day after the date the information is made available or fails to pay the postage and

any other applicable charges accrued under Subchapter F on or before the 60th day after

the date the requestor is informed of the charges.

A request may now be considered withdrawn if, after the 60th day, the requestor does not appear

to inspect the information, fails to pick up the information, or fails to pay any applicable charges

for the information.

The 87th Legislature redesignated the former section 552.233 that dealt with catastrophes as

section 552.2325 of the Government Code. Section 552.2325 provides for the temporary

suspension of the requirements of the Act when a governmental body is significantly impacted by

a catastrophe.

A “catastrophe” means a condition or occurrence that directly interferes with the

ability of a governmental body to comply with the requirements of the Act.

The 87th Legislature

also added language clarifying that a “catastrophe” does not mean a period where staff is required

Gov’t Code § 552.2325.

Gov’t Code § 552.2325(a)(1).

Exceptions to Disclosure

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to work remotely and can access information, even if the physical office is closed.

In order to

suspend the requirements of the Act, a governmental body must provide notice to the OAG in

accordance with subsections 552.2325(c) and 552.2325(e) of the Government Code.

A copy of

the catastrophe notice form can be found on the OAG’s website. A governmental body is allowed

an initial suspension period of up to seven days that may begin up to two days prior to the

submission of the notice.

A governmental body is also allowed one extension of the initial

suspension period of seven consecutive days beginning on the day following the initial suspension

period.

The 87th Legislature clarified that a governmental body may not suspend the

requirements of the Act for more than fourteen consecutive calendar days for any single

catastrophe.

Upon conclusion of any suspension period, a governmental body must immediately

resume compliance with all requirements of the Act.

The 87th Legislature also added section 552.2211 of the Government Code relating to the

production of information when a governmental body’s administrative offices are closed. Unless

a governmental body has filed a catastrophe notice discussed above, if it closes its physical offices

but requires staff to work, including remote work, it must make a good faith effort to continue

responding to requests for information to the extent it has access to responsive information.

Failure to respond to requests in accordance with section 552.2211(a) may constitute a refusal to

request an attorney general’s decision as provided by Subchapter G of the Act or a refusal to supply

information under Subchapter C of the Act.

In addition, a chart outlining various deadlines to which governmental bodies are subject can be

found in Part Six of this Handbook.

D. The Requestor’s Right of Access

The Public Information Act prohibits a governmental body from inquiring into a requestor’s

reasons or motives for requesting information. In addition, a governmental body must treat all

requests for information uniformly. Sections 552.222 and 552.223 of the Government Code

provide as follows:

§ 552.222. Permissible Inquiry by Governmental Body to Requestor

(a) The officer for public information and the officer’s agent may not make an inquiry

of a requestor except to establish proper identification or except as provided by

Subsection (b), (c), or (c-1).

Gov’t Code § 552.2325(a)(2).

Gov’t Code §§ 552.2325(c), (e).

Gov’t Code § 552.2325(d).

Gov’t Code § 552.2325(e), (f).

Gov’t Code § 552.2325(g).

Gov’t Code § 552.2325(m).

Gov’t Code § 552.2211(a).

Gov’t Code § 552.2211(b).

Exceptions to Disclosure

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(b) If what information is requested is unclear to the governmental body, the

governmental body may ask the requestor to clarify the request. If a large amount

of information has been requested, the governmental body may discuss with the

requestor how the scope of a request might be narrowed, but the governmental body

may not inquire into the purpose for which information will be used.

information or the officer’s agent may require the requestor to provide additional

identifying information sufficient for the officer or the officer’s agent to determine

whether the requestor is eligible to receive the information under Chapter 730,

Transportation Code. In this subsection, “motor vehicle record” has the meaning

assigned that term by Section 730.003, Transportation Code.

(c-1) If the information requested includes a photograph described by Section 552.155(a),

the officer for public information or the officer’s agent may require the requestor to

provide additional information sufficient for the officer or the officer’s agent to

determine whether the requestor is eligible to receive the information under

Section 552.155(b).

§ 552.223. Uniform Treatment of Requests for Information

The officer for public information or the officer’s agent shall treat all requests for

information uniformly without regard to the position or occupation of the requestor, the

person on whose behalf the request is made, or the status of the individual as a member

of the media.

Although section 552.223 requires an officer for public information to treat all requests for

information uniformly, section 552.028 provides as follows:

(a) A governmental body is not required to accept or comply with a request for

information from:

(1) an individual who is imprisoned or confined in a correctional facility; or

(2) an agent of that individual, other than that individual’s attorney when the

attorney is requesting information that is subject to disclosure under this

chapter.

(b) This section does not prohibit a governmental body from disclosing to an individual

described by Subsection (a)(1), or that individual’s agent, information held by the

governmental body pertaining to that individual.

(1) a secure correctional facility, as defined by Section 1.07, Penal Code;

(2) a secure correctional facility and a secure detention facility, as defined by

Section 51.02, Family Code; and

Exceptions to Disclosure

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(3) a place designated by the law of this state, another state, or the federal

government for the confinement of a person arrested for, charged with, or

convicted of a criminal offense.

Under section 552.028, a governmental body is not required to comply with a request for

information from an inmate or the inmate’s agent, other than the inmate’s attorney, even if the

requested information pertains to the inmate.

While subsection (b) does not prohibit a

governmental body from complying with an inmate’s request, it does not mandate compliance.

Generally, a requestor may choose to inspect or copy public information, or to both inspect and

copy public information.

100

In certain circumstances, a governmental body may charge the

requestor for access to or copies of the requested information.

1. Right to Inspect

If a requestor chooses to inspect public information, the requestor must generally complete the

inspection within ten business days after the date the governmental body makes the information

available or the request will be withdrawn by operation of law.

101

However, a governmental body

is required to extend the inspection period by an additional 10 business days upon receiving a

written request for additional time from the requestor.

102

If the information is needed by the

governmental body, the officer for public information may interrupt a requestor’s inspection of

public information.

103

When a governmental body interrupts a requestor’s inspection of public

information, the period of interruption is not part of the ten business day inspection period.

104

governmental body may promulgate policies that are consistent with the Public Information Act

for efficient, safe, and speedy inspection and copying of public information.

105

2. Right to Obtain Copies

If a copy of public information is requested, a governmental body must provide “a suitable

copy . . . within a reasonable time after the date on which the copy is requested.”

106

However, the

Act does not authorize the removal of an original copy of a public record from the office of a

See Harrison v. Vance, 34 S.W.3d 660, 662-63 (Tex. App.—Dallas 2000, no pet.); Hickman v. Moya, 976 S.W.2d

360, 361 (Tex. App.—Waco 1998, pet. denied); Moore v. Henry, 960 S.W.2d 82, 84 (Tex. App.—Houston [1st Dist.]

1996, no writ).

Moore v. Henry, 960 S.W.2d 82, 84 (Tex. App.—Houston [1st Dist.] 1996, no writ); Open Records Decision No. 656

at 3 (1997) (statutory predecessor to Gov’t Code § 552.028 applies to request for voter registration information under

Elec. Code § 18.008 when request is from incarcerated individual).

100

Gov’t Code §§ 552.221, .225, .228, .230.

101

Gov’t Code § 552.225(a); see also Open Records Decision No. 512 (1988) (statutory predecessor to Gov’t Code

§ 552.225 did not apply to requests for copies of public information or authorize governmental body to deny repeated

requests for copies of public records).

102

Gov’t Code § 552.225(b).

103

Gov’t Code § 552.225(c).

104

Gov’t Code § 552.225(c).

105

Gov’t Code § 552.230; see Attorney General Opinion JM-757 (1987) (governmental bodies may deny requests from

a requestor to make their own copies when requests raise questions of safety or unreasonable disruption of business).

106

Gov’t Code § 552.228(a).

Exceptions to Disclosure

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governmental body.

107

If the requested records are copyrighted, the governmental body must

comply with federal copyright law.

108

A governmental body may receive a request for a public record that contains both publicly

available and excepted information. In a decision that involved a document that contained both

publicly available information and information that was excepted from disclosure by the statutory

predecessor to section 552.111, the attorney general determined the Act did not permit the

governmental body to provide the requestor with a new document created in response to the request

on which the publicly available information had been consolidated and retyped, unless the

requestor agreed to receive a retyped document.

109

Rather, the attorney general concluded that the

statutory predecessor to section 552.228 required the governmental body to make available to the

public copies of the actual public records the governmental body had collected, assembled, or

maintained, with the excepted information excised.

110

The public’s right to suitable copies of public information has been considered in the following

decisions:

Attorney General Opinion JM-757 (1987) — a governmental body may refuse to allow

members of the public to duplicate public records by means of portable copying equipment

when it is unreasonably disruptive of working conditions, when the records contain

confidential information, when it would cause safety hazards, or when it would interfere with

other persons’ rights to inspect and copy records;

Open Records Decision No. 660 (1999) — section 52(a) of article III of the Texas Constitution

does not prohibit the Port of Corpus Christi Authority from releasing a computer generated

digital map, created by the Port with public funds, in response to a request made under

Chapter 552 of the Government Code;

Open Records Decision No. 633 (1995) — a governmental body does not comply with the

Public Information Act by releasing to the requestor another record as a substitute for any

specifically requested portions of an offense report that are not excepted from required public

disclosure, unless the requestor agrees to the substitution;

Open Records Decision No. 571 (1990) — the Public Information Act does not give a member

of the public a right to use a computer terminal to search for public records; and

Open Records Decision No. 243 (1980) — a governmental body is not required to compile or

extract information if the information can be made available by giving the requestor access to

the records themselves.

111

107

Gov’t Code § 552.226.

108

See Open Records Decision No. 660 at 5 (1999) (Federal Copyright Act “may not be used to deny access to or copies

of the information sought by the requestor under the Public Information Act,” but a governmental body may place

reasonable restrictions on use of copyrighted information consistent with rights of copyright owner).

109

Open Records Decision No. 606 at 2-3 (1992).

110

Open Records Decision No. 606 at 2-3 (1992).

111

See also Open Records Decision Nos. 512 (1988), 465 (1987), 144 (1976).

Exceptions to Disclosure

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E. Computer and Electronic Information

Section 552.228(b) provides:

If public information exists in an electronic or magnetic medium, the requestor may

request a copy in an electronic medium, such as on diskette or on magnetic tape. A

governmental body shall provide a copy in the requested medium if:

(1) the governmental body has the technological ability to produce a copy of the

requested information in the requested medium;

(2) the governmental body is not required to purchase any software or hardware to

accommodate the request; and

(3) provision of a copy of the information in the requested medium will not violate

the terms of any copyright agreement between the governmental body and a

third party.

If a governmental body is unable to provide the information in the requested medium for any of

the reasons described by section 552.228(b), the governmental body shall provide the information

in another medium that is acceptable to the requestor.

112

A governmental body is not required to

use material provided by a requestor, such as a diskette, but rather may use its own supplies to

comply with a request.

113

A request for public information that requires a governmental body to program or manipulate

existing data is not considered a request for the creation of new information.

114

If a request for

public information requires “programming or manipulation of data,”

115

and “compliance with the

request is not feasible or will result in substantial interference with its ongoing operations,”

116

“the information could be made available in the requested form only at a cost that covers the

programming and manipulation of data,”

117

a governmental body is required to provide the

requestor with a written statement. This statement must include a statement that the information

is not available in the requested form, a description of the form in which the information is

available, a description of what would be required to provide the information in the requested form,

and a statement of the estimated cost and time to provide the information in the requested form.

118

The governmental body shall provide the statement to the requestor within twenty days after the

date the governmental body received the request.

119

If, however, the governmental body gives

written notice within the twenty days that additional time is needed, the governmental body has an

112

Gov’t Code § 552.228(c).

113

Gov’t Code § 552.228(c).

114

Fish v. Dallas Indep. Sch. Dist., 31 S.W.3d 678, 681-82 (Tex. App.—Eastland 2000, pet. denied); see Gov’t Code

§ 552.231; Attorney General Opinion H-90 (1973); Open Records Decision Nos. 452 at 2-3 (1986), 87 (1975).

115

Gov’t Code § 552.231(a)(1); see Gov’t Code § 552.003(2), (4) (defining “manipulation” and “programming”).

116

Gov’t Code § 552.231(a)(2)(A).

117

Gov’t Code § 552.231(a)(2)(B).

118

Gov’t Code § 552.231(a), (b); see Fish v. Dallas Indep. Sch. Dist., 31 S.W.3d 678, 682 (Tex. App.—Eastland 2000,

pet. denied); Open Records Decision No. 661 at 6-8 (1999).

119

Gov’t Code § 552.231(c).

Exceptions to Disclosure

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additional ten days to provide the statement.

120

Once the governmental body provides the

statement to the requestor, the governmental body has no obligation to provide the requested

information in the requested form unless within thirty days the requestor responds to the

governmental body in writing that the requestor wants the governmental body to provide the

information in the requested form in accordance with the cost and time parameters agreed upon or

wants the information in the form it is available.

121

If the requestor does not respond within thirty

days, the request is considered withdrawn.

122

V. DISCLOSURE TO SELECTED PERSONS

A. General Rule: Under the Public Information Act, Public Information

is Available to All Members of the Public

The Public Information Act states in several provisions that public information is available to “the

people,” “the public,” and “any person.”

123

Thus, the Act deals primarily with the general public’s

access to information; it does not, as a general matter, give an individual a “special right of access”

to information concerning that individual that is not otherwise public information.

124

Information

that a governmental body writes, produces, collects, assembles or maintains is, in general, either

open to all members of the public or closed to all members of the public.

Additionally, section 552.007 prohibits a governmental body from selectively disclosing

information that is not confidential by law but that a governmental body may withhold under an

exception to disclosure. Section 552.007 provides as follows:

(a) This chapter does not prohibit a governmental body or its officer for public

information from voluntarily making part or all of its information available to the

public, unless the disclosure is expressly prohibited by law or the information is

confidential under law.

(b) Public information made available under Subsection (a) must be made available to

any person.

125

If, therefore, a governmental body releases to a member of the public nonconfidential information,

then the governmental body must release the information to all members of the public who request

it. For example, in rendering an open records decision under section 552.306, the attorney general

120

Gov’t Code § 552.231(c).

121

Gov’t Code § 552.231(d); see also Fish v. Dallas Indep. Sch. Dist., 31 S.W.3d 678, 682 (Tex. App.—Eastland 2000,

pet. denied); Open Records Decision No. 661 (1999) (Gov’t Code § 552.231 enables governmental body and

requestor to reach agreement as to cost, time and other terms of responding to request requiring programming or

manipulation of data).

122

Gov’t Code § 552.231(d-1).

123

See, e.g., Gov’t Code §§ 552.001, .021, .221(a). The Act does not require a requestor be a Texas resident or an

American citizen.

124

Open Records Decision No. 507 at 3 (1988); see also Attorney General Opinion JM-590 at 4 (1986); Open Records

Decision No. 330 at 2 (1982).

125

See also Open Records Decision No. 463 at 1-2 (1987).

Exceptions to Disclosure

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would not consider a governmental body’s claim that section 552.111 authorized the governmental

body to withhold a report from a requestor when the governmental body had already disclosed the

report to another member of the public.

126

B. Some Disclosures of Information to Selected Individuals or Entities Do

Not Constitute Disclosures to the Public Under Section 552.007

As noted, the Public Information Act prohibits the selective disclosure of information to members

of the public. A governmental body may, however, have authority to disclose records to certain

persons or entities without those disclosures being voluntary disclosures to “the public” within the

meaning of section 552.007 of the Government Code. In these cases, the governmental body

normally does not waive applicable exceptions to disclosure by transferring or disclosing the

records to these specific persons or entities.

1. Special Rights of Access: Exceptions to Disclosure Expressly Inapplicable to a

Specific Class of Persons

a. Special Rights of Access Under the Public Information Act

The following provisions in the Act provide an individual with special rights of access to certain

information even though the information is unavailable to members of the general public: sections

552.008, 552.023, 552.026, and 552.114.

i. Information for Legislative Use

Section 552.008 of the Government Code states in pertinent part:

(a) This chapter does not grant authority to withhold information from individual

members, agencies, or committees of the legislature to use for legislative purposes.

(b) A governmental body on request by an individual member, agency, or committee of

the legislature shall provide public information, including confidential information,

to the requesting member, agency, or committee for inspection or duplication in

accordance with this chapter if the requesting member, agency, or committee states

that the public information is requested under this chapter for legislative purposes.

Section 552.008 provides that a governmental body shall provide copies of information, including

confidential information, to an individual member, agency, or committee of the legislature if

requested for legislative purposes.

127

The section provides that disclosure of excepted or

confidential information to a legislator does not waive or affect the confidentiality of the

126

See Open Records Decision No. 400 at 2 (1983) (construing statutory predecessor to Gov’t Code § 552.111); see

also Cornyn v. City of Garland, 994 S.W.2d 258, 265 (Tex. App.—Austin 1999, no pet.) (information released

pursuant to discovery in litigation was not voluntarily released and thus was excepted from disclosure under Public

Information Act).

127

See Tex. Comm’n on Envtl. Quality v. Abbott, 311 S.W.3d 663 (Tex. App.—Austin 2010, pet. denied) (Gov’t Code

§ 552.008 required commission to release to legislator for legislative purposes attorney-client privileged documents

subject to confidentiality agreement).

Exceptions to Disclosure

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information or the right to assert exceptions in the future regarding that information, and provides

specific procedures relating to the confidential treatment of the information.

128

An individual who

obtains confidential information under section 552.008 commits an offense if that person misuses

the information or discloses it to an unauthorized person.

129

Subsections (b-1) and (b-2) of section 552.008 provide:

(b-1) A member, committee, or agency of the legislature required by a governmental body

to sign a confidentiality agreement under Subsection (b) may seek a decision as

provided by Subsection (b-2) about whether the information covered by the

confidentiality agreement is confidential under law. A confidentiality agreement

signed under Subsection (b) is void to the extent that the agreement covers

information that is finally determined under Subsection (b-2) to not be confidential

under law.

(b-2) The member, committee, or agency of the legislature may seek a decision from the

attorney general about the matter. The attorney general by rule shall establish

procedures and deadlines for receiving information necessary to decide the matter

and briefs from the requestor, the governmental body, and any other interested

person. The attorney general shall promptly render a decision requested under this

subsection, determining whether the information covered by the confidentiality

agreement is confidential under law, not later than the 45th business day after the

date the attorney general received the request for a decision under this subsection.

The attorney general shall issue a written decision on the matter and provide a copy

of the decision to the requestor, the governmental body, and any interested person

who submitted necessary information or a brief to the attorney general about the

matter. The requestor or the governmental body may appeal a decision of the

attorney general under this subsection to a Travis County district court. A person

may appeal a decision of the attorney general under this subsection to a Travis

County district court if the person claims a proprietary interest in the information

affected by the decision or a privacy interest in the information that a confidentiality

law or judicial decision is designed to protect.

130

If a member of the legislature signs a confidentiality agreement but subsequently believes the

information the governmental body has released pursuant to section 552.008 is not confidential,

the member may request an attorney general decision regarding the confidentiality of the

information.

131

If the attorney general determines the information is not confidential, any

confidentiality agreement the member signed is void. The attorney general promulgated rules

relating to its decisions under section 552.008(b-2).

132

These rules are available on the attorney

general’s website and in Part Four of this Handbook.

128

Gov’t Code § 552.008(b).

129

Gov’t Code § 552.352(a-1).

130

Gov’t Code § 552.008(b-1), (b-2).

131

See, e.g., Open Records Letter No. 2013-08637 (2013).

132

See 1 T.A.C. §§ 63.1-.6.

Exceptions to Disclosure

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ii. Information About the Person Who Is Requesting the Information

Section 552.023 of the Government Code provides an individual with a limited special right of

access to information about that individual. It states in pertinent part:

(a) A person or a person’s authorized representative has a special right of access,

beyond the right of the general public, to information held by a governmental body

that relates to the person and that is protected from public disclosure by laws

intended to protect that person’s privacy interests.

(b) A governmental body may not deny access to information to the person, or the

person’s representative, to whom the information relates on the grounds that the

information is considered confidential by privacy principles under this chapter but

may assert as grounds for denial of access other provisions of this chapter or other

law that are not intended to protect the person’s privacy interests.

Subsections (a) and (b) of section 552.023 prevent a governmental body from asserting an

individual’s own privacy as a reason for withholding records from that individual. However, the

individual’s right of access to private information about that individual under section 552.023 does

not override exceptions to disclosure in the Act or confidentiality laws protecting some interest

other than that individual’s privacy.

133

The following decisions consider the statutory predecessor

to section 552.023:

Open Records Decision No. 684 (2009) — when requestor is a person whose privacy interests

are protected under section 552.130, concerning certain motor vehicle information, or section

552.136, concerning access device information, requestor has a right of access to the

information under section 552.023;

Open Records Decision No. 587 (1991) — because former Family Code section 34.08, which

made confidential reports, records, and working papers used or developed in an investigation

of alleged child abuse, protected law enforcement interests as well as privacy interests, the

statutory predecessor to section 552.023 did not provide the subject of the information a special

right of access to the child abuse investigation file;

Open Records Decision No. 577 (1990) — under the Communicable Disease Prevention and

Control Act, information in the possession of a local health authority relating to disease or

health conditions is confidential but may be released with the consent of the person identified

in the information; because this confidentiality provision is designed to protect the privacy of

the subject of the information, the statutory predecessor to section 552.023 authorized a local

133

See Open Records Decision No. 556 (1990) (predecessor statute to section 552.111 applied to requestor’s claim

information); see also Abbott v. Tex. State Bd. of Pharmacy, 391 S.W.3d 253, 260 (Tex. App.—Austin 2012, no pet.)

(because Pharmacy Act confidentiality provision protected integrity of board’s regulatory process, board’s

withholding of requestor’s records was based on law not intended solely to protect requestor’s privacy interest); Tex.

State Bd. of Chiropractic Exam’rs v. Abbott, 391 S.W.3d 343, 351 (Tex. App.—Austin 2013, no pet.) (because

provision making board’s investigation records confidential protected integrity of board’s regulatory process rather

than requestor’s privacy interest, section 552.023 did not prevent board from denying access to requested

information).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

health authority to release to the subject medical or epidemiological information relating to the

person who signed the consent.

iii. Information in a Student or Education Record

Section 552.114 of the Government Code, which defines “student record” and deems such records

confidential, states a governmental body must make such information available if the information

is requested by: 1) educational institution personnel; 2) the student involved or the student’s parent,

legal guardian, or spouse; or 3) a person conducting a child abuse investigation pursuant to

Subchapter D of Chapter 261 of the Family Code.

134

Section 552.026 of the Government Code,

which conforms the Act to the requirements of the federal Family Educational Rights and Privacy

Act of 1974

135

(“FERPA”), also incorporates the rights of access established by that federal law.

136

To the extent FERPA conflicts with state law, the federal statute prevails.

137

b. Special Rights of Access Created by Other Statutes

Statutes other than the Act grant specific entities or individuals a special right of access to specific

information. For example, section 901.160 of the Occupations Code makes information about a

licensee held by the Texas State Board of Public Accountancy available for inspection by the

licensee. Exceptions in the Act cannot authorize the board to withhold this information from the

licensee because the licensee has a statutory right to the specific information requested.

138

As is

true for the right of access provided under section 552.023 of the Act, a statutory right of access

does not affect the governmental body’s authority to rely on applicable exceptions to disclosure

when the information is requested by someone other than an individual with a special right of

access.

2. Intra- or Intergovernmental Transfers

The transfer of information within a governmental body or between governmental bodies is not

necessarily a release to the public for purposes of the Act. For example, a member of a

governmental body, acting in his or her official capacity, is not a member of the public for purposes

of access to information in the governmental body’s possession. Thus, an authorized official may

review records of the governmental body without implicating the Act’s prohibition against

134

Gov’t Code § 552.114(a), (b), (c).

135

20 U.S.C. § 1232g.

136

Open Records Decision No. 431 at 2-3 (1985).

137

Open Records Decision No. 431 at 3 (1985).

138

Open Records Decision No. 451 at 4 (1986); see also Open Records Decision Nos. 500 at 4-5 (1988) (considering

property owner’s right of access to appraisal records under Tax Code), 478 at 3 (1987) (considering intoxilyzer test

subject’s right of access to test results under statutory predecessor to Transp. Code § 724.018).

Exceptions to Disclosure

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selective disclosure.

139

Additionally, a state agency may ordinarily transfer information to another

state agency or to another governmental body subject to the Act without violating the

confidentiality of the information or waiving exceptions to disclosure.

140

On the other hand, a federal agency is subject to an open records law that differs from the Texas

Public Information Act. A state governmental body, therefore, should not transfer non-disclosable

information to a federal agency unless some law requires or authorizes the state governmental

body to do so.

141

A federal agency may not maintain the state records with the “same eye towards

confidentiality that state agencies would be bound to do under the laws of Texas.”

142

Where information is confidential by statute, the statute specifically enumerates the entities to

which the information may be released, and the governmental body is not among those entities,

the information may not be transferred to the governmental body.

143

3. Other Limited Disclosures That Do Not Implicate Section 552.007

The attorney general has recognized other specific contexts in which a governmental body’s

limited release of information to certain persons does not constitute a release to “the public” under

section 552.007:

Open Records Decision No. 579 at 7 (1990) — exchanging information among litigants in

informal discovery was not a voluntary release under the statutory predecessor to section

552.007;

Open Records Decision No. 501 (1988) — while former article 9.39 of the Insurance Code

prohibited the State Board of Insurance from releasing escrow reports to the public, the Board

could release the report to the title company to which the report related;

Open Records Decision No. 454 at 2 (1986) — governmental body that disclosed information

it reasonably concluded it had a constitutional obligation to do so could still invoke statutory

predecessor to section 552.108; and

139

See Attorney General Opinions JC-0283 at 3-4 (2000), JM-119 at 2 (1983); see also Open Records Decision

Nos. 678 at 4 (2003) (transfer of county registrar’s list of registered voters to secretary of state and election officials

is not release to public prohibited by Gov’t Code § 552.1175), 674 at 4 (2001) (information in archival state records

that was confidential in custody of originating governmental body remains confidential upon transfer to commission),

666 at 4 (2000) (municipality’s disclosure to municipally appointed citizen advisory board of information pertaining

to municipally owned power utility does not constitute release to public as contemplated under Gov’t Code

§ 552.007), 464 at 5 (1987) (distribution of evaluations by university faculty members among faculty members does

not waive exceptions to disclosure with respect to general public).

140

See Attorney General Opinions H-917 at 1 (1976), H-242 at 4 (1974); Open Records Decision Nos. 667 at 3-4 (2000),

661 at 3 (1999). But see Attorney General Opinion JM-590 at 4-5 (1986) (comptroller’s release to city prohibited

where Tax Code made information confidential, enumerated entities to which information may be disclosed, and did

not include city among enumerated entities).

141

Open Records Decision No. 650 at 4 (1996); see, e.g., Open Records Letter No. 2017-09880 (2017) (United States

Army provided right of access under federal law to criminal history record information in certain city police records).

142

Attorney General Opinion H-242 at 4 (1974); accord Attorney General Opinion MW-565 at 4 (1982); Open Records

Decision No. 561 at 6 (1990) (quoting with approval Attorney General Opinion H-242 (1974)).

143

See generally Attorney General Opinion JM-590 at 5 (1986); Open Records Decision Nos. 661 at 3 (1999), 655 at 8

(1997), 650 at 3 (1996).

Exceptions to Disclosure

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Open Records Decision No. 400 (1983) — the prohibition against selective disclosure does

not apply when a governmental body releases confidential information to the public.

VI. ATTORNEY GENERAL DETERMINES WHETHER

INFORMATION IS SUBJECT TO AN EXCEPTION

A. Duties of the Governmental Body and of the Attorney General Under

Subchapter G

Sections 552.301, 552.302, and 552.303 of the Government Code set out the duty of a

governmental body to seek the attorney general’s decision on whether information is excepted

from disclosure to the public.

Section 552.301, subsections (a) and (b), provides that when a governmental body receives a

written request for information the governmental body wishes to withhold, it must seek an attorney

general decision within ten business days of its receipt of the request and state the exceptions to

disclosure that it believes are applicable. Subsections (a) and (b) read:

(a) A governmental body that receives a written request for information that it wishes

to withhold from public disclosure and that it considers to be within one of the

exceptions under Subchapter C must ask for a decision from the attorney general

about whether the information is within that exception if there has not been a

previous determination about whether the information falls within one of the

exceptions.

. . .

(b) The governmental body must ask for the attorney general’s decision and state the

exceptions that apply within a reasonable time but not later than the 10th business

day after the date of receiving the written request.

Thus, a governmental body that wishes to withhold information from the public on the ground of

an exception generally must seek the decision of the attorney general as to the applicability of that

exception.

144

In addition, an entity contending that it is not subject to the Act may timely request

a decision from the attorney general to avoid the consequences of noncompliance if the entity is

determined to be subject to the Act.

145

Therefore, when requesting such a decision, the entity

144

Thomas v. Cornyn, 71 S.W.3d 473, 480 (Tex. App.—Austin 2002, no pet.); Dominguez v. Gilbert, 48 S.W.3d 789,

792 (Tex. App.—Austin 2001, no pet.); Open Records Decision Nos. 452 at 4 (1986), 435 (1986) (referring

specifically to statutory predecessors to Gov’t Code §§ 552.103 and 552.111, respectively); see Conely v. Peck, 929

S.W.2d 630, 632 (Tex. App.—Austin 1996, no writ) (requirement to request open records decision within ten days

comes into play when governmental body denies access to requested information or asserts exception to public

disclosure of information).

145

See Blankenship v. Brazos Higher Educ. Auth., Inc., 975 S.W.2d 353, 362 (Tex. App.—Waco 1998, pet. denied)

(entity does not admit it is governmental body by virtue of request for opinion from attorney general).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

should not only present its arguments as to why it is not subject to the Act, but should also raise

any exceptions to required disclosure it believes apply to the requested information.

A governmental body need not request an attorney general decision if there has been a previous

determination that the requested material falls within one of the exceptions to disclosure.

146

What

constitutes a “previous determination” is narrow in scope, and governmental bodies are cautioned

against treating most published attorney general decisions as “previous determinations” to avoid

the requirements of section 552.301(a). The attorney general has determined that there are two

types of previous determinations.

147

The first and by far the most common instance of a previous

determination pertains to specific information that is again requested from a governmental body

when the attorney general has previously issued a decision that evaluates the public availability of

the precise information or records at issue. This first instance of a previous determination does

not apply to records that are substantially similar to records previously submitted to the attorney

general for review, nor does it apply to information that may fall within the same category as any

given records on which the attorney general has previously ruled. The first type of previous

determination requires that all of the following criteria be met:

1. the information at issue is precisely the same information that was previously submitted to

the attorney general pursuant to section 552.301(e)(1)(D) of the Government Code;

2. the governmental body that received the request for the information is the same

governmental body that previously requested and received a ruling from the attorney

general;

3. the attorney general’s prior ruling concluded the precise information is or is not excepted

from disclosure under the Act; and

4. the law, facts, and circumstances on which the prior attorney general ruling was based have

not changed since the issuance of the ruling.

148

Absent all four of the above criteria, and unless the second type of previous determination applies,

a governmental body must ask for a decision from the attorney general if it wishes to withhold

from the public information that is requested under the Act.

The second type of previous determination requires that all of the following criteria be met:

1. the information at issue falls within a specific, clearly delineated category of information

about which the attorney general has previously rendered a decision;

146

Gov’t Code § 552.301(a); Dominguez v. Gilbert, 48 S.W.3d 789, 792-93 (Tex. App.—Austin 2001, no pet.).

147

Open Records Decision No. 673 (2001).

148

A governmental body should request a decision from the attorney general if it is unclear to the governmental body

whether there has been a change in the law, facts or circumstances on which the prior decision was based.

Exceptions to Disclosure

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2. the previous decision is applicable to the particular governmental body or type of

governmental body from which the information is requested;

149

3. the previous decision concludes the specific, clearly delineated category of information is

or is not excepted from disclosure under the Act;

4. the elements of law, fact, and circumstances are met to support the previous decision’s

conclusion that the requested records or information at issue is or is not excepted from

required disclosure; and

150

5. the previous decision explicitly provides that the governmental body or bodies to which

the decision applies may withhold the information without the necessity of again seeking

a decision from the attorney general.

Absent all five of the above criteria, and unless the first type of previous determination applies, a

governmental body must ask for a decision from the attorney general if it wishes to withhold

requested information from the public under the Act.

An example of this second type of previous determination is found in Open Records Decision

No. 670. In that decision, the attorney general determined that pursuant to the statutory

predecessor of section 552.117(a)(2) of the Government Code, a governmental body may withhold

the home address, home telephone number, personal cellular telephone number, personal pager

number, social security number, and information that reveals whether the individual has family

members, of any individual who meets the definition of “peace officer” without requesting a

decision from the attorney general.

The governmental body may not unilaterally decide to withhold information on the basis of a prior

open records decision merely because it believes the legal standard for an exception, as established

in the prior decision, applies to the recently requested information.

151

When in doubt, a governmental body should consult with the Open Records Division of the Office

of the Attorney General prior to the ten business day deadline to determine whether requested

information is subject to a previous determination.

152

149

Previous determinations of the second type can apply to all governmental bodies if the decision so provides. See,

e.g., Open Records Decision No. 670 (2001) (all governmental bodies may withhold information subject to

predecessor of Gov’t Code § 552.117(a)(2) without necessity of seeking attorney general decision). On the other

hand, if the decision is addressed to a particular governmental body and does not explicitly provide that it also applies

to other governmental bodies or to all governmental bodies of a certain type, then only the particular governmental

body to which the decision is addressed may rely on the decision as a previous determination. See, e.g., Open

Records Decision No. 662 (1999) (constituting second type of previous determination but only with respect to

information held by Texas Department of Health).

150

Thus, in addition to the law remaining unchanged, the facts and circumstances must also have remained unchanged

to the extent necessary for all of the requisite elements to be met. With respect to previous determinations of the

second type, a governmental body should request a decision from the attorney general if it is unclear to the

governmental body whether all of the elements on which the previous decision’s conclusion was based have been

met with respect to the requested records or information.

151

Open Records Decision No. 511 (1988) (no unilateral withholding of information under litigation exception).

152

See Open Records Decision No. 435 at 2-3 (1986) (attorney general has broad discretion to determine whether

information is subject to previous determination).

Exceptions to Disclosure

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A request for an open records decision pursuant to section 552.301 must come from the

governmental body that has received a written request for information.

153

Otherwise, the attorney

general does not have jurisdiction under the Act to determine whether the information is excepted

from disclosure to the public.

Section 552.301(f) expressly prohibits a governmental body from seeking an attorney general

decision where the attorney general or a court has already determined that the same information

must be released. Among other things, this provision precludes a governmental body from asking

for reconsideration of an attorney general decision that concluded the governmental body must

release information. Subsection (f) provides:

A governmental body must release the requested information and is prohibited from

asking for a decision from the attorney general about whether information requested

under this chapter is within an exception under Subchapter C if:

(1) the governmental body has previously requested and received a determination

from the attorney general concerning the precise information at issue in a pending

request; and

(2) the attorney general or a court determined that the information is public

information under this chapter that is not excepted by Subchapter C.

Section 552.301(g) authorizes a governmental body to ask for another attorney general decision if:

(1) a suit challenging the prior decision was timely filed against the attorney general; (2) the

attorney general determines that the requestor has voluntarily withdrawn the request for the

information in writing or has abandoned the request; and (3) the parties agree to dismiss the

lawsuit.

154

Section 552.301(d) provides that if the governmental body seeks an attorney general decision as

to whether it may withhold requested information, it must notify the requestor not later than the

10th business day after its receipt of the written request that it is seeking an attorney general

decision. Section 552.301(d) reads:

(d) A governmental body that requests an attorney general decision under Subsection (a)

must provide to the requestor within a reasonable time but not later than the 10th

business day after the date of receiving the requestor’s written request:

(1) a written statement that the governmental body wishes to withhold the requested

information and has asked for a decision from the attorney general about whether

the information is within an exception to public disclosure; and

(2) a copy of the governmental body’s written communication to the attorney general

asking for a decision or, if the governmental body’s written communication to the

153

Open Records Decision Nos. 542 at 3 (1990), 449 (1986).

154

Gov’t Code § 552.301(g).

Exceptions to Disclosure

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attorney general discloses the requested information, a redacted copy of that

written communication.

The attorney general interprets subsection 552.301(d)(1) to mean that a governmental body

substantially complies with subsection (d)(1) by sending the requestor a copy of the governmental

body’s written communication to the attorney general requesting a decision. Because

governmental bodies may be required to submit evidence of their compliance with subsection (d),

governmental bodies are encouraged to submit evidence of their compliance when seeking an

attorney general decision. If a governmental body fails to comply with subsection (d), the

requested information is presumed public pursuant to section 552.302.

B. Items the Governmental Body Must Submit to the Attorney General

Subsections 552.301(e) and (e-1) of the Government Code read:

(e) A governmental body that requests an attorney general decision under Subsection

(a) must within a reasonable time but not later than the 15th business day after the

date of receiving the written request:

(1) submit to the attorney general:

(A) written comments stating the reasons why the stated exceptions apply that

would allow the information to be withheld;

(B) a copy of the written request for information;

information was received by the governmental body or evidence sufficient

to establish that date; and

(D) a copy of the specific information requested, or submit representative

samples of the information if a voluminous amount of information was

requested; and

(2) label that copy of the specific information, or of the representative samples, to

indicate which exceptions apply to which parts of the copy.

(e-1) A governmental body that submits written comments to the attorney general under

Subsection (e)(1)(A) shall send a copy of those comments to the person who requested

the information from the governmental body not later than the 15th business day

after the date of receiving the written request. If the written comments disclose or

contain the substance of the information requested, the copy of the comments

provided to the person must be a redacted copy.

Thus, subsection (e) of section 552.301 requires a governmental body seeking an attorney general

decision as to whether it may withhold requested information to submit to the attorney general, no

later than the fifteenth business day after receiving the written request, written comments stating

why the claimed exceptions apply, a copy of the written request, a signed statement as to the date

of its receipt of the request or sufficient evidence of that date, and a copy of the specific information

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

it seeks to withhold, or representative samples thereof, labeled to indicate which exceptions are

claimed to apply to which parts of the information. Within fifteen business days, a governmental

body must also copy the requestor on those comments, redacting any portion of the comments that

contains the substance of the requested information. Governmental bodies are cautioned against

redacting more than that which would reveal the substance of the information requested from the

comments sent to the requestor. A failure to comply with the requirements of section 552.301 can

result in the information being presumed public under section 552.302 of the Government Code.

1. Written Communication from the Person Requesting the Information

A person may make a written request for information by delivering the request by U.S. mail,

electronic mail, hand delivery, or any appropriate method approved by the governmental body to

the public information officer or the officer’s designee.

155

A copy of the written request from the

member of the public seeking access to the records lets the attorney general know what information

was requested, permits the attorney general to determine whether the governmental body met its

statutory deadlines in requesting a decision, and enables the attorney general to inform the

requestor of the ruling.

156

These written communications are generally public information.

157

2. Information Requested from the Governmental Body

Section 552.303(a) provides:

A governmental body that requests an attorney general decision under this subchapter

shall supply to the attorney general, in accordance with Section 552.301, the specific

information requested. Unless the information requested is confidential by law, the

governmental body may disclose the requested information to the public or to the

requestor before the attorney general makes a final determination that the requested

information is public or, if suit is filed under this chapter, before a final determination

that the requested information is public has been made by the court with jurisdiction

over the suit, except as otherwise provided by Section 552.322.

Governmental bodies should submit a clean, legible copy of the information at issue. Original

records should not be submitted. If the requested records are voluminous and repetitive, a

governmental body may submit representative samples.

158

If, however, each document contains

substantially different information, a copy of each and every requested document or all information

must be submitted to the attorney general.

159

For example, it is not appropriate to submit a

representative sample of information when the proprietary information of third parties is at issue.

In that circumstance, it is necessary to submit the information of each third party with a potential

proprietary interest rather than submitting the information of one third party as a representative

155

Gov’t Code § 552.234(a).

156

See Gov’t Code § 552.306(b); Open Records Decision No. 150 (1977).

157

Cf. Gov’t Code § 552.301(d)(2), (e-1) (requiring governmental body to provide requestor copies of its written

communications to attorney general); Open Records Decision No. 459 (1987) (considering public availability of

governmental body’s letter to attorney general).

158

Gov’t Code § 552.301(e)(1)(D).

159

Open Records Decision Nos. 499 at 6 (1988), 497 at 4 (1988).

Exceptions to Disclosure

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sample. The attorney general must not disclose the submitted information to the requestor or the

public.

160

3. Labeling Requested Information to Indicate Which Exceptions Apply to Which Parts

of the Requested Information

When a governmental body raises an exception applicable to only part of the information, it must

mark the records to identify the information it believes is subject to that exception. A general

claim that an exception applies to an entire report or document, when the exception clearly does

not apply to all information in that report or document, does not conform to the Act.

161

When

labeling requested information, a governmental body should mark the records in such a way that

all of the requested information remains visible for the attorney general’s review. For obvious

reasons, the attorney general cannot make a determination on information it cannot read.

4. Statement or Evidence as to Date Governmental Body Received Written Request

The governmental body, in its submission to the attorney general, must certify or provide sufficient

evidence of the date it received the written request.

162

This will enable the attorney general to

determine whether the governmental body has timely requested the attorney general’s decision

within ten business days of receiving the written request, as required by section 552.301(b), and

timely submitted the other materials that are required by section 552.301(e) to be submitted by the

fifteenth business day after receipt of the request. Section 552.301 provides that if a governmental

body receives a written request by United States mail and cannot adequately establish the actual

date on which the governmental body received the request, the written request is considered to

have been received by the governmental body on the third business day after the date of the

postmark on a properly addressed request.

163

The attorney general only counts business days as provided by section 552.0031, which was added

by the 88th Legislature.

164

A governmental body briefing the attorney general under section

552.301 should inform the attorney general in the briefing of any holiday observed by the

governmental body.

5. Letter from the Governmental Body Stating Which Exceptions Apply and Why

The letter from the governmental body stating which exceptions apply to the information and why

they apply is necessary because the Act presumes that governmental records are open to the public

unless the records are within one of the exceptions set out in Subchapter C.

165

This presumption

is based on the language of section 552.021, which makes virtually all information in the custody

of a governmental body available to the public. This language places on the governmental body

160

Gov’t Code § 552.3035.

161

Gov’t Code § 552.301(e)(2); Open Records Decision Nos. 419 at 3 (1984), 252 at 3 (1980), 150 at 2 (1977).

162

Gov’t Code § 552.301(e)(1)(c).

163

Gov’t Code § 552.301(a-1).

164

Gov’t Code § 552.0031.

165

See Attorney General Opinion H-436 (1974); Open Records Decision Nos. 363 (1983), 150 (1977), 91 (1975).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

the burden of proving that an exception applies to the records requested from it.

166

Thus, if the

governmental body wishes to withhold particular information, it must establish that a particular

exception applies to the information and must mark the records to identify the portion the

governmental body believes is excepted from disclosure. Conclusory assertions that a particular

exception applies to requested information will not suffice. The burden for establishing the

applicability of each exception in the Act is discussed in detail in Part Two of this Handbook. If

a governmental body does not establish how and why an exception applies to the requested

information, the attorney general has no basis on which to pronounce it protected.

167

The governmental body must send to the requestor a copy of its letter to the attorney general stating

why information is excepted from public disclosure.

168

In order to explain how a particular

exception applies to the information in dispute, the governmental body may find it necessary to

reveal the content of the requested information in its letter to the attorney general. In such cases,

the governmental body must redact comments containing the substance of the requested

information in the copy of its letter it sends to the requestor.

169

C. Section 552.302: Information Presumed Public if Submissions and

Notification Required by Section 552.301 Are Not Timely

Section 552.302 of the Government Code provides:

If a governmental body does not request an attorney general decision as provided by

Section 552.301 and provide the requestor with the information required by Sections

552.301(d) and (e-1), the information requested in writing is presumed to be subject to

required public disclosure and must be released unless there is a compelling reason to

withhold the information.

Section 552.301(b) establishes a deadline of ten business days for the governmental body to

request a decision from the attorney general and state the exceptions that apply.

170

Subsection (d)

of section 552.301 requires that the governmental body notify the requestor within ten business

days if it is seeking an attorney general decision as to whether the information may be withheld.

Section 552.301(e) establishes a deadline of fifteen business days for the governmental body to

provide the other materials required under that subsection to the attorney general. Subsection (e-1)

of section 552.301 requires that the governmental body copy the requestor on its written comments,

within fifteen business days, redacting any portion of the comments that contains the substance of

the information requested.

Section 552.302 provides that if the governmental body does not make a timely request for a

decision, notify and copy the requestor, and make the requisite submissions to the attorney general

166

See Thomas v. Cornyn, 71 S.W.3d 473, 480-81 (Tex. App.—Austin 2002, no pet.); Open Records Decision Nos. 542

at 2-3 (1990) (burden is placed on governmental body when it requests ruling pursuant to statutory predecessor to

Gov’t Code § 552.301), 532 at 1 (1989), 363 (1983), 197 at 1 (1978).

167

Open Records Decision No. 363 (1983).

168

Gov’t Code § 552.301(e-1).

169

Gov’t Code § 552.301(e-1).

170

See also Gov’t Code §§ 552.308 (timeliness of action by United States mail, interagency mail, or common or contract

carrier), .309 (timeliness of action by electronic submission).

Exceptions to Disclosure

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as required by section 552.301, the requested information will be presumed to be open to the public,

and only the demonstration of a “compelling reason” for withholding the information can

overcome that presumption.

171

In the great majority of cases, the governmental body will not be

able to overcome that presumption and must promptly release the requested information. Whether

failure to meet the respective ten and fifteen business day deadlines, by submitting the requisite

information within those deadlines, has the effect of requiring disclosure depends on whether the

governmental body asserts a compelling reason that would overcome the presumption of openness

arising from the governmental body’s failure to meet the submission deadlines.

In Paxton v. City of Dallas, the Texas Supreme Court determined (1) the failure of a governmental

body to timely seek a ruling from the attorney general to withhold information subject to the

attorney-client privilege does not constitute a waiver of the privilege, and (2) the attorney-client

privilege constitutes a compelling reason to withhold information under section 552.302 of the

Government Code.

172

The supreme court’s decision overrules a long line of attorney general decisions discussing the

burden a governmental body must meet in order to overcome the legal presumption that the

requested information is public and must be released unless there is a compelling reason to

withhold the information from disclosure. However, notwithstanding Paxton v. City of Dallas, the

section 552.302 presumption of openness is triggered as soon as the governmental body fails to

meet any of the requisite deadlines for submissions or notification set out in section 552.301.

Governmental bodies should review the determination in Paxton v. City of Dallas when

considering the consequences of failing to comply with the procedures set out in section 552.301.

D. Section 552.303: Attorney General Determination that Information in

Addition to that Required by Section 552.301 Is Necessary to Render a

Decision

Section 552.303 of the Government Code provides for instances when the attorney general

determines information other than that required to be submitted by section 552.301 is necessary to

render a decision.

173

If the attorney general determines more information is necessary to render a

decision, it must so notify the governmental body and the requestor.

174

If the additional material

is not provided by the governmental body within seven calendar days of its receipt of the attorney

general’s notice, the information sought to be withheld is presumed public and must be disclosed

unless a compelling reason for withholding the information is demonstrated.

175

171

Gov’t Code § 552.302; see Hancock v. State Bd. of Ins., 797 S.W.2d 379 (Tex. App.—Austin 1990, no writ); Open

Records Decision Nos. 515 at 6 (1988), 452 (1986), 319 (1982); see also Simmons v. Kuzmich, 166 S.W.3d 342,

348-49 (Tex. App.—Fort Worth 2005, no pet.) (party seeking to withhold information has burden in trial court of

proving exception from disclosure and presumably must comply with steps mandated by statute to seek and preserve

such exception from disclosure); Abbott v. City of Corpus Christi, 109 S.W.3d 113, 122 n.6 (Tex. App.—Austin

2003, no pet.) (court need not decide whether law enforcement exception applies because city never submitted any

reasons or comments as to how exception applied, and issue was not before it because city failed to meet Act’s

procedural requirements).

172

Paxton v. City of Dallas, 509 S.W.3d 247, 262, 271 (Tex. 2017).

173

Gov’t Code § 552.303(b)-(e).

174

Gov’t Code § 552.303(c).

175

Gov’t Code § 552.303(d)-(e).

Exceptions to Disclosure

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E. Section 552.3031: Electronic Submission of Request for Attorney

General Decision

The 88th Legislature added section 552.3031 of the Government Code, which requires certain

governmental bodies to use the attorney general’s electronic filing system when seeking a request

for an open records decision. This section does not apply to a governmental body with fewer than

16 full-time employees or located in a county with a population of less than 150,000.

176

Additionally, this section does not apply if the amount or format of the responsive information at

issue in a particular request makes use of the attorney general’s electronic filing system impractical

or impossible.

177

Further, if the request is hand delivered to the office of the attorney general,

section 552.3031 also does not apply.

178

A governmental body requesting an attorney general

decision pursuant to section 552.3031 must use the attorney general’s designated electronic filing

system.

179

Section 552.3031(c) authorizes the attorney general to promulgate rules necessary to implement

this section, including rules regarding the type or size of files that make the use of the

electronic-filing system impractical or impossible.

180

These rules will be available on the attorney

general’s website.

F. Section 552.305: When the Requested Information Involves a Third

Party’s Privacy or Property Interests

Section 552.305 of the Government Code reads as follows:

(a) In a case in which information is requested under this chapter and a person’s

privacy or property interests may be involved, including a case under Section

552.101, 552.110, 552.1101, 552.114, 552.131, or 552.143, a governmental body may

decline to release the information for the purpose of requesting an attorney general

decision.

(b) A person whose interests may be involved under Subsection (a), or any other person,

may submit in writing to the attorney general the person’s reasons why the

information should be withheld or released.

(d) If release of a person’s proprietary information may be subject to exception under

Section 552.101, 552.110, 552.1101, 552.113, 552.131, or 552.143, the governmental

176

Gov’t Code § 552.3031(a)(1).

177

Gov’t Code § 552.3031(a)(2).

178

Gov’t Code § 552.3031(a)(3).

179

Gov’t Code § 552.3031(b).

180

Gov’t Code § 552.3031(c).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

body that requests an attorney general decision under Section 552.301 shall make a

good faith attempt to notify that person of the request for the attorney general

decision. Notice under this subsection must:

(1) be in writing and sent within a reasonable time not later than the 10th business

day after the date the governmental body receives the request for the

information; and

(2) include:

(A) a copy of the written request for the information, if any, received by the

governmental body; and

(B) a statement, in the form prescribed by the attorney general, that the person

is entitled to submit in writing to the attorney general within a reasonable

time not later than the 10th business day after the date the person receives

the notice:

(i) each reason the person has as to why the information should be

withheld; and

(ii) a letter, memorandum, or brief in support of that reason.

(e) A person who submits a letter, memorandum, or brief to the attorney general under

Subsection (d) shall send a copy of that letter, memorandum, or brief to the person

who requested the information from the governmental body. If the letter,

memorandum, or brief submitted to the attorney general contains the substance of

the information requested, the copy of the letter, memorandum, or brief may be a

redacted copy.

Section 552.305 relieves the governmental body of its duty under section 552.301(b) to state which

exceptions apply to the information and why they apply when (1) a third party’s privacy or property

interests may be implicated, (2) the governmental body has requested a ruling from the attorney

general, and (3) the third party or any other party has submitted reasons for withholding or

releasing the information.

181

However, section 552.305 does not relieve a governmental body of

its duty to request a ruling within ten business days of receiving a request for information, notify

the requestor in accordance with section 552.301(d), or provide the attorney general’s office with

the information required in section 552.301(e).

182

The language of section 552.305(b) is

permissive and does not require a third party with a property or privacy interest to seek relief from

the attorney general before filing suit against the attorney general under section 552.325. The

opportunity to submit comments during the ruling process does not automatically provide access

to the courts. A third party must still meet jurisdictional requirements for standing before it may

file suit over a ruling that orders information to be disclosed.

181

Open Records Decision No. 542 at 3 (1990).

182

See Gov’t Code §§ 552.301(a)-(b), (e), .305.

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

Section 552.305(d) requires the governmental body to make a good faith effort to notify a person

whose proprietary interests may be implicated by a request for information where the information

may be excepted from disclosure under section 552.101, 552.110, 552.1101, 552.113, 552.131, or

552.143. The governmental body is generally not required to notify a party whose privacy, as

opposed to proprietary, interest is implicated by a release of information. The governmental body

may itself argue that the privacy interests of a third party except the information from disclosure.

The required notice must be in writing and sent within ten business days of the governmental

body’s receipt of the request. It must include a copy of the written request for information and a

statement that the person may, within ten business days of receiving the notice, submit to the

attorney general reasons why the information in question should be withheld and explanations in

support thereof. The form of the statement required by section 552.305(d)(2)(B), as prescribed by

the attorney general, can be found in Part Seven of this Handbook. Subsection (e) of section

552.305 requires a person who submits reasons under subsection (d) for withholding information

to send a copy of such communication to the requestor of the information, unless the

communication reveals the substance of the information at issue, in which case the copy sent to

the requestor may be redacted.

The following open records decisions have interpreted the statutory predecessor to section 552.305:

Open Records Decision No. 652 (1997) — if a governmental body takes no position pursuant

to section 552.305 of the Government Code or has determined that requested information is

not protected under a specific confidentiality provision, the attorney general will issue a

decision based on a review of the information at issue and on any other information provided

to the attorney general by the governmental body or third parties;

Open Records Decision No. 609 (1992) — the attorney general is unable to resolve a factual

dispute when a governmental body and a third party disagree on whether information is

excepted from disclosure based on the third party’s property interests;

Open Records Decision No. 575 (1990) — the Public Information Act does not require a third

party to substantiate its claims of confidentiality at the time it submits material to a

governmental body;

Open Records Decision No. 552 (1990) — explanation of how the attorney general deals with

a request when, pursuant to the statutory predecessor to section 552.305 of the Public

Information Act, a governmental body takes no position on a third party’s claim that

information is excepted from public disclosure by the third party’s property interests and when

relevant facts are in dispute; and

Open Records Decision No. 542 (1990) — the statutory predecessor to section 552.305 did not

permit a third party to request a ruling from the attorney general.

G. Section 552.3035: Attorney General Must Not Disclose Information at

Issue

Section 552.3035 of the Government Code expressly prohibits the attorney general from disclosing

information that is the subject of a request for an attorney general decision.

Exceptions to Disclosure

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H. Section 552.304: Submission of Public Comments

Section 552.304 of the Government Code permits any person to submit written comments as to

why information at issue in a request for an attorney general decision should or should not be

released. In order to be considered, such comments must be received before the attorney general

renders a decision under section 552.306, and must be submitted pursuant to sections 552.308 and

552.309, as discussed below.

I. Rendition of Attorney General Decision

Pursuant to section 552.306 of the Government Code the attorney general must render an open

records decision “not later than the 45th business day after the date the attorney general received

the request for a decision.”

183

If the attorney general cannot render a decision by the 45 day

deadline, the attorney general may extend the deadline by ten business days by informing the

governmental body and the requestor of the reason for the delay.

184

The attorney general must

provide a copy of the decision to the requestor.

185

The attorney general addressed this section in

Open Records Decision No. 687 (2011), concluding section 552.306 imposes a duty on the

attorney general to rule on a claimed exception to disclosure when, prior to the issuance of the

decision, a party has brought an action before a Texas court posing the same open records question.

The 88th Legislature amended section 552.306 by adding subsections (c) and (d), which require a

governmental body, as soon as practicable but no later than 30 days after the attorney general

issued an opinion on a public information request, to: provide the requestor an itemized estimate

of charges for production of the information if applicable; produce the information if required;

notify the requestor in writing that the governmental body is withholding the information as

authorized by the opinion; or notify the requestor in writing that the governmental body has filed

suit against the attorney general regarding the information.

186

J. Timeliness of Action

Pursuant to section 552.308 of the Government Code, when the Act requires a request, notice or

other document to be submitted or otherwise given to a person within a specified period, then,

except as provided by section 552.3031, the requirement is met in a timely fashion if the document

is sent by first class United States mail or common or contract carrier properly addressed with

postage or handling charges prepaid and: (1) bears a post office cancellation mark or a receipt

mark of the carrier indicating a time within that period; or (2) the submitting person furnishes

satisfactory proof the document was deposited in the mail or with the carrier within that period.

187

Further, except as provided by section 552.3031, if a state agency is required to submit information

to the attorney general, the timeliness requirement is met if the information is sent by interagency

183

Gov’t Code § 552.306(a).

184

Gov’t Code § 552.306(a).

185

Gov’t Code § 552.306(b).

186

Gov’t Code § 552.306(c)-(d).

187

Gov’t Code § 552.308(a).

Exceptions to Disclosure

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mail and the state agency provides sufficient evidence to establish the information was deposited

within the proper period.

188

The attorney general has established an electronic filing system that allows governmental bodies

and interested third parties to submit information electronically for a fee.

189

Information submitted

through this designated system will be considered timely if it is electronically submitted within the

proper time period.

190

As previously noted, pursuant to section 552.3031, some governmental

bodies are required to use the attorney general’s electronic filing system when seeking a request

for an Open Records decision. The attorney general will promulgate rules to administer the

designated system.

191

These rules will be available on the attorney general’s website. The creation

of the electronic filing system does not affect the right of a person or governmental body to submit

information to the attorney general under section 552.308.

192

K. Section 552.310: Searchable Database

The 88th Legislature added section 552.310 of the Government Code, which provides:

(a) The office of the attorney general shall make available on the office’s Internet website

an easily accessible and searchable database consisting of:

(1) information identifying each request for an attorney general decision made under

this subchapter; and

(2) the attorney general's opinion issued for the request.

(b) The database at a minimum must allow a person to search for a request or opinion

described by Subsection (a) by:

(1) the name of the governmental body making the request; and

(2) the exception under Subchapter C that a governmental body asserts in the request

applies to its request to withhold information from public disclosure.

Subsection (a)(1) and an estimated timeline indicating the date each stage of review of

the request will be started and completed.

The database required by section 552.310 is available on the attorney general’s website.

188

Gov’t Code § 552.308(b).

189

See Gov’t Code § 402.006(d).

190

Gov’t Code § 552.309(a).

191

1 T.A.C. §§ 63.21-.24. These rules are available on the attorney general’s website and in Part Four of this Handbook.

192

Gov’t Code § 552.309(c).

Exceptions to Disclosure

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VII. COST OF COPIES AND ACCESS

Subchapter F of the Public Information Act, sections 552.261 through 552.275, generally provides

for allowable charges for copies of and access to public information. All charges must be

calculated in accordance with the rules promulgated by the attorney general under

section 552.262.

193

The rules establish the charges, as well as methods of calculation for those

charges. The rules also provide that a governmental body that is not a state agency may exceed

the costs established by the rules of the attorney general by up to 25 percent.

194

The cost rules are

available on the attorney general’s website and in Part Four of this Handbook. Also available on

the website is the Public Information Cost Estimate Model, a tool designed to assist the public and

governmental bodies in estimating costs associated with public information requests.

195

A. Charges for Copies of Paper Records and Electronic Records

Section 552.261(a) of the Government Code allows a governmental body to recover costs related

to reproducing public information. A request for copies may generally be assessed charges for

labor, overhead (which is calculated as a percentage of the total labor), and materials.

196

However,

if the request is for 50 or fewer pages of paper records, only the charge for the photocopy may be

imposed.

197

Requests that require programming and/or manipulation of data may be assessed charges for those

tasks also, as well as computer time to process the request.

198

The law defines “programming” as

“the process of producing a sequence of coded instructions that can be executed by a computer.”

199

“Manipulation” of data is defined as “the process of modifying, reordering, or decoding of

information with human intervention.”

200

Finally, “processing” means “the execution of a

sequence of coded instructions by a computer producing a result.”

201

The amount allowed for

computer processing depends on the type of computer used and the time needed for the computer

to process the request. The time is calculated in CPU minutes for mainframe and mid-range

computers, and in clock hours for client-servers, LAN, and PCs. Computer processing time is not

charged for the same time that a governmental body is charging for labor or programming. The

use of a computer during this time period is covered by the overhead charge.

Section 552.261 allows requests to be combined in some instances. Section 552.261(e) states:

(e) Except as otherwise provided by this subsection, all requests received in one calendar

day from an individual may be treated as a single request for purposes of calculating

193

See 1 T.A.C. §§ 70.1-.13.

194

Gov’t Code § 552.262(a).

195

https://www.texasattorneygeneral.gov/open-government/governmental-bodies/charges-public-information/public-

information-cost-estimate-model.

196

1 T.A.C. § 70.3(d), (e), (i).

197

Gov’t Code § 552.261(a).

198

1 T.A.C. § 70.3(c), (d), (h).

199

Gov’t Code § 552.003(4).

200

Gov’t Code § 552.003(2).

201

Gov’t Code § 552.003(3).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

costs under this chapter. A governmental body may not combine multiple requests

under this subsection from separate individuals who submit requests on behalf of an

organization.

Therefore, a governmental body may combine separate requests from one individual received

within one calendar day when calculating costs.

Examples:

1. A governmental body receives a request for copies of the last 12 months’ worth of travel

expenditures for employees, including reimbursements and backup documentation. The

records are maintained in the governmental body’s main office. The governmental body

determines there are 120 pages, and it will take one and a half hours to locate and compile

the requested information, redact confidential information and make copies. The total

allowable charges for this request would be:

Copies, 120 pages @ $.10/page

$12.00

Labor, 1.5 hours @ $15.00/hour

$22.50

Overhead, $22.50 x .20

$4.50

Total for copies & labor (paper records)

$39.00

2. In addition to the above request, the requestor sends a separate request for copies of all

e-mails between two named employees and members of the public for the same 12-month

period. The governmental body has determined that it will take half of an hour to locate

the responsive e-mails and that the e-mails contain confidential information that must be

redacted. The governmental body’s e-mail system allows electronic redaction by writing a

program, which will take the governmental body’s programmer half of an hour to write.

Once the program is written it will take half of an hour to execute. The requestor wants

the e-mails on a CD, and it will take an additional half of an hour to copy the information

onto the CD. The total charges for this request would be:

Postage charges may be added if the requestor requests the CD be sent by mail.

3. The requestor makes an additional request to a second governmental body whose system

does not allow electronic redaction of e-mail addresses. To provide the requestor the

records in electronic medium, the governmental body has determined that it will take half

Labor, .50 hours to locate responsive e-mails, @ $15.00/hour

$7.50

Labor, .50 hours to write program to redact, @ $28.50/hour

$14.25

Labor, .50 hours to copy to CD, @ $15.00/hour

$7.50

Overhead, $29.25 ($7.50 +$14.50 +$7.50) x .20

$5.85

Client Server, .50 hours to execute program, @ $2.20/hour

$1.10

Materials, 1 CD @ $1.00/each

$1.00

Total for materials & labor (electronic redaction/electronic records)

$37.20

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

of an hour to locate, compile and print the request e-mails The governmental body has

also determined that it will take half of an hour to manually redact confidential information,

and an additional fifteen minutes to scan the redacted e-mails into an electronic file. The

governmental body may charge to print out and redact the e-mails that must be manually

redacted and scanned. The requestor wants the e-mails on a CD and the governmental

body has determined that it will take three minutes for the computer to process this copy.

The total charges for this request would be:

Postage charges may be added if the requestor requests the CD be sent by mail.

B. Charges for Inspection of Paper Records and Electronic Records

Charges for inspection of paper records are regulated by section 552.271 of the Government Code,

and charges for inspection of electronic records are regulated in section 552.272 of the Government

Code. Section 552.271 allows charges for copies for any page that must be copied so that

confidential information may be redacted to enable the requestor to inspect the information subject

to release.

202

No other charges are allowed unless

203

(a) the records to be inspected are older than

five years, or (b) the records completely fill, or when assembled will completely fill, six or more

archival boxes, and (c) the governmental body estimates it will require more than five hours to

prepare the records for inspection.

204

If a governmental body has fewer than 16 full-time

employees, the criteria are reduced to allow additional charges when (a) the records are older than

three years, or (b) the records fill, or when assembled will completely fill, three or more archival

boxes, and (c) the governmental body estimates it will require more than two hours to prepare the

records for inspection.

205

An “archival box” is a box that measures approximately 12.5” W x 15.5”

L x 10” H.

206

Only records responsive to the request may be counted towards the number of boxes.

Preparing records that fall under subsections 552.271(c) or (d) for inspection includes the time

needed to locate and compile the records, redact the confidential information, and make copies of

202

Gov’t Code § 552.271(b).

203

Gov’t Code § 552.271(a).

204

Gov’t Code § 552.271(c).

205

Gov’t Code § 552.271(d).

206

1 T.A.C. § 70.2(10).

Printouts to be scanned, 80 pages, @ $.10/page

$8.00

Labor, .50 hours to locate/compile/print responsive e-mails, @ $15.00/hour

$7.50

Labor, .50 hours to redact, @ $15.00/hour

$7.50

Labor, .25 hours to scan redacted copies, @ $15.00/hour

$3.75

Overhead, $18.75 ($7.50 + $7.50 = $3.75) x .20

$3.75

Client Server, .05 hours to copy to CD, @ $2.20/hour

$0.18

Materials, 1 CD @ $1.00/each

$1.00

Total for materials and labor (manual redaction/electronic records)

$31.68

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

pages that require redaction. Overhead charges are not allowed on requests for inspection of paper

records.

207

Section 552.272 allows charges for labor when providing access to electronic information requires

programming and/or manipulation of data, regardless of whether or not the information is available

directly on-line to the requestor.

208

No other charges are allowed. Printing electronic records is

neither programming nor manipulation of data. Overhead is not allowed on requests for inspection

of electronic records.

209

Example:

1. The requestor states she wants to inspect travel expenditure records from two years ago,

and then decide whether or not she wants copies. The governmental body keeps the

responsive information in paper files. Of the 120 pages that are responsive, 112 pages

have confidential information that must be redacted before the requestor may inspect

the records. The total allowable charges for this request would be:

Redacted copies, 112 @ $.10/page

$11.20

Labor & Overhead

$0.00

Total for inspection (redacted copies)

$11.20

2. The requestor makes a second request to view travel documents for the past year. The

governmental body has these more recent documents in an electronic format. The

governmental body maintains 100 responsive electronic documents. The governmental

body also has the ability to redact this information electronically and estimates it will

take 30 minutes to redact the confidential information. The total allowable charges

would be:

Labor, Manipulation of Data to redact

$7.50

Total for inspection

$7.50

C. Waivers or Reduction of Estimated Charges

If a governmental body determines that producing the information requested is in the “public

interest” because it will primarily benefit the general public, the governmental body shall waive

or reduce the charges.

210

The determination of whether providing information is in the “public

interest” rests solely with the governmental body whose records are requested.

211

Additionally,

207

Gov’t Code § 552.271(c), (d).

208

Gov’t Code § 552.272(a), (b).

209

Gov’t Code § 552.272(a), (b).

210

Gov’t Code § 552.267(a).

211

Gov’t Code § 552.267(a).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

the law allows a governmental body to waive charges if the cost of collecting the amount owed

exceeds the actual amount charged.

212

D. Providing a Statement of Estimated Charges as Required by Law

If a governmental body estimates that charges will exceed $40.00, the governmental body is

required to provide the requestor with a written itemized statement of estimated charges before

work is undertaken.

213

The statement must advise the requestor they may contact the

governmental body if there is a less costly method of viewing the records.

214

The statement must

also contain a notice that the request will be considered automatically withdrawn if the requestor

does not respond in writing within ten business days of the date of the statement that the requestor:

(a) accepts the charges, (b) modifies the request in response to the estimate, or (c) has sent, or is

sending, a complaint regarding the charges to the attorney general.

215

If the governmental body

has the ability to communicate with the general public by electronic mail and/or facsimile, the

statement must also advise the requestor that a response may be sent by either of those methods,

as well as by regular mail or in person.

216

Governmental bodies are cautioned that an itemized statement lacking any of the required elements

is considered to be “deficient” because it does not comply with the law. The consequences of

providing a deficient statement may result in (a) limiting the amount the governmental body may

recover through charges,

217

and/or (b) preventing the governmental body from considering the

request withdrawn by operation of law.

218

If after receiving agreement from the requestor for the charges, but before completing the request,

the governmental body determines the actual charges will exceed the agreed-upon charges by more

than 20 percent, the governmental body must provide the requestor an updated statement of

estimated charges.

219

This updated statement has the same requirements as the initial statement.

If the governmental body fails to provide the updated statement of estimated charges, charges for

the entire request are limited to the initial agreed-upon estimate plus 20 percent.

220

If the requestor

does not respond to the updated statement, the request is considered withdrawn.

221

The 88th Legislature amended the procedures a governmental body must follow after receiving a

decision from the attorney general. If a governmental body determines that a cost estimate is

necessary after receiving a decision pursuant to section 552.306, the cost estimate should be

provided as soon as practicable but within a reasonable time.

222

212

Gov’t Code § 552.267(b).

213

Gov’t Code § 552.2615(a); 1 T.A.C. § 70.7(a).

214

Gov’t Code § 552.2615(a).

215

Gov’t Code § 552.2615(b).

216

Gov’t Code § 552.2615(a)(3).

217

1 T.A.C. § 70.7(a).

218

Gov’t Code § 552.2615(a)(2).

219

Gov’t Code § 552.2615(c).

220

Gov’t Code § 552.2615(c).

221

Gov’t Code § 552.2615(c).

222

Gov’t Code § 552.306(c)(1).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

If a request is estimated to exceed $100.00 ($50.00 if a governmental body has fewer than 16

full-time employees), a governmental body that provides the statement of estimated charges with

all its required elements may also require that the requestor pay a deposit or bond.

223

If the request

is for inspection of paper records, the deposit may not exceed 50 percent of the entire estimated

amount.

224

Decisions about method of payment rest with the governmental body. A governmental

body that requires a deposit or bond may consider the request withdrawn if payment is not made

within ten business days of the date the governmental body requested the deposit or bond.

225

the requestor makes payment within the required time, the request is considered received on the

date the payment is made.

226

Additionally, a governmental body is not required to comply with a

new request if a requestor owes more than $100.00 on unpaid charges for previous requests for

which the requestor was provided, and accepted, an appropriate statement of estimated charges.

227

In such cases, the governmental body may require the requestor to pay the unpaid amounts before

complying with that request. All unpaid charges must be duly documented.

228

In addition to the statement of estimated charges required when a request will exceed $40.00, a

governmental body is also required to provide a statement when it determines that a request will

require programming and/or manipulation of data and (1) complying with the request is not

feasible or will substantially interfere with the governmental body’s ongoing operation, or (2) the

request can only be fulfilled at a cost that covers the programming and/or manipulation of data.

229

Governmental bodies are cautioned that a statement under section 552.231, unlike section

552.2615, is not contingent on the charges being over a certain amount. Rather, the statement is

mandated if the requisite conditions are present. The statement must state that the information is

not available in the form requested. The statement must also include a description of the form in

which the information is available, a description of any contracts or services needed to put the

information in the form requested, the estimated charges calculated in accordance with the rules

promulgated by the attorney general, and the estimated time of completion to provide the

information in the form requested.

230

On provision of the statement, the governmental body is not

required to provide the information in the form requested unless the requestor states, in writing,

that the requestor agrees with the estimated charges and time parameters, or that the requestor will

accept the information in the form that is currently available.

231

If the requestor fails to respond

to the statement in writing within 30 days, the request is considered withdrawn.

232

223

Gov’t Code § 552.263(c); 1 T.A.C. § 70.7(d), (e).

224

1 T.A.C. § 70.7(e).

225

Gov’t Code § 552.263(f).

226

Gov’t Code § 552.263(e).

227

Gov’t Code § 552.263(c); 1 T.A.C. § 70.7(f).

228

Gov’t Code § 552.263(c); 1 T.A.C. § 70.7(f).

229

Gov’t Code § 552.231(a).

230

Gov’t Code § 552.231(b).

231

Gov’t Code § 552.231(d).

232

Gov’t Code § 552.231(d-1).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

E. Cost Provisions Regarding Requests Requiring a Large Amount of

Personnel Time

Section 552.275 of the Government Code authorizes a governmental body to establish a reasonable

limit, not less than 15 hours for a one month period or 36 hours in a 12 month period, on the

amount of time that personnel are required to spend producing public information for inspection

or copies to a requestor, without recovering the costs attributable to the personnel time related to

that requestor.

233

If a governmental body chooses to establish a time limit under this section, a

requestor will be required to compensate the governmental body for the costs incurred in satisfying

subsequent requests once the time limit has been reached. Section 552.275 allows county officials

who have designated the same officer for public information to calculate time for purposes of this

section collectively.

234

A limit under this section does not apply if the requestor is an elected

official of the United States, the State of Texas, or a political subdivision of the State of Texas; or

an individual who, for a substantial portion of the individual’s livelihood or for substantial

financial gain is seeking the information for (a) dissemination by a new medium or communication

service provider, or (b) creation or maintenance of an abstract plant as described by section

2501.004 of the Insurance Code.

235

Section 552.275 does not replace or supersede other sections,

and it does not preclude a governmental body from charging labor for a request for inspection or

copies for which a charge is authorized under other sections of this law.

On establishing the time limit, a governmental body must treat all requestors equally, except as

provided by the exemptions of subsections (j), (k), and (l). A governmental body that avails itself

of section 552.275 must provide a requestor with a statement detailing the time spent in complying

with the instant request and the cumulative amount of time the requestor has accrued towards the

established limit.

236

A governmental body may not charge for the time spent preparing the

statement.

237

If a requestor meets or exceeds the established limit, the governmental body may

assess charges for labor, overhead, and material for all subsequent requests. The governmental

body is required to provide a written estimate within ten business days of receipt of the request,

even if the estimated total will not exceed $40.00. All charges assessed under section 552.275

must be in compliance with the rules promulgated by the attorney general.

238

If a governmental

body provides the requestor with a written statement under this section, and the time limits

prescribed have been met, the governmental body is not required to respond unless the requestor

submits payment.

239

The 88th Legislature amended section 552.275 to add subsection (n) to allow a governmental body

to request photo identification from a requestor in certain cases.

240

A governmental body may

request the photo identification for the sole purpose of establishing that the request has not

233

Gov’t Code §552.275(a), (b).

234

Gov’t Code §552.275(a-1).

235

Gov’t Code §552.275(j).

236

Gov’t Code § 552.275(d).

237

Gov’t Code § 552.275(d).

238

Gov’t Code § 552.275(e).

239

Gov’t Code §552.275(g).

240

Gov’t Code §552.275(n).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

exceeded a limit established under section 552.275(a) and concealed the requestor’s identity.

241

request for photo identification must include a statement under subsection (e) and a statement that

describes each specific reason why subsection (n) may apply to the requestor.

242

The

governmental body shall accept as proof of a requestor’s identification physical presentment of

photo identification or an image of the photo identification electronically or through the mail.

243

Further, a reqestor may decline to provide identification and obtain the information by paying the

charges.

244

If a requestor fails to provide identification or submit payment before the 10

day, the request is

considered withdrawn.

245

F. Complaints Regarding Alleged Overcharges

Estimates are, by their very nature, imperfect. Therefore, governmental bodies are encouraged to

run tests on sample data and to rely on the results of those tests in calculating future charges.

However, even when a governmental body has taken steps to ensure that a charge is appropriate,

a requestor may still believe that the charges are too high. Section 552.269 of the Government

Code states that a requestor who believes he or she has been overcharged may lodge a complaint

with the attorney general.

246

The attorney general reviews the complaint and any appropriate

materials and makes determinations on complaints of overcharges.

247

Complaints must be

received within ten business days after the requestor knows of the alleged overcharge, and must

include a copy of the original request, and any amendments thereto, as well as a copy of any

correspondence from the governmental body stating the charges.

248

If a complainant does not

provide the required information within the established time frame, the complaint is dismissed.

249

When a complaint is lodged against a governmental body, the attorney general will contact the

governmental body by mail or e-mail, to ask questions related to how the charges were calculated,

and the physical location and state of the records.

250

The governmental body may also be asked

to provide copies of invoices, contracts, and any other relevant documents.

251

The attorney general

may uphold the charges as presented to the requestor, require the issuance of an amended statement

of estimated charges, or, if the requestor has already paid the charges, require the issuance of a

refund for the difference between what was paid and the charges that are determined to be

appropriate.

252

A governmental body may be required to pay three times the difference if it is

241

Gov’t Code §552.275(n).

242

Gov’t Code §552.275(o).

243

Gov’t Code §552.275(o).

244

Gov’t Code §552.275(o).

245

Gov’t Code §552.275(h).

246

Gov’t Code § 552.269(a).

247

Gov’t Code § 552.269(a); 1 T.A.C. § 70.8(c)-(g).

248

1 T.A.C. § 70.8(b).

249

1 T.A.C. § 70.8(b).

250

Gov’t Code § 552.269(a); 1 T.A.C. § 70.8(c).

251

1 T.A.C. § 70.8(c), (d), (e).

252

1 T.A.C. § 70.8(f).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

determined that a requestor overpaid because the governmental body refused or failed to follow

the attorney general rules and the charges were not calculated in good faith.

253

G. Cost Provisions Outside the Public Information Act

The provisions of section 552.262 of the Government Code do not apply if charges for copies are

established by another statute for specific kinds of information.

254

For example, section 550.065

of the Transportation Code establishes a charge of $6.00 for an accident report maintained by a

governmental entity.

255

Section 118.011 of the Local Government Code establishes the charge for

a non-certified copy of information obtained from the county clerk.

256

Section 118.144 of the

Local Government Code also establishes a charge for copies obtained from the county treasurer.

257

Additionally, the attorney general has determined that section 191.008 of the Local Government

Code prevails over section 552.272, by giving a county commissioners court the right to set

charges regarding access to certain information held by the county.

258

VIII. PENALTIES AND REMEDIES

A. Informal Resolution of Complaints

The attorney general maintains an Open Government Hotline staffed by personnel trained to

answer questions about the Public Information Act. In addition to answering substantive and

procedural questions posed by governmental bodies and requestors, the Hotline staff handles

written, informal complaints concerning requests for information. While not meant as a substitute

for the remedies provided in sections 552.321 and 552.3215, the Hotline provides an informal

alternative for complaint resolution. In most cases, Hotline staff are able to resolve complaints

and misunderstandings informally. The Hotline can be reached toll-free at (877) 673-6839

(877-OPEN TEX) or in the Austin area at (512) 478-6736 (512-478-OPEN). Questions

concerning charges for providing public information should be directed to the attorney general’s

toll-free Cost Hotline at (888) 672-6787 (888-ORCOSTS) or in the Austin area at (512) 475-2497.

B. Training Requirement

The 88th Legislature also added subsection 552.012(b-1), which allows the attorney general to

require a course of training if it determines that a governmental body has failed to comply with the

requirements of the Public Information Act. If training is required, the attorney general must notify

each public official in writing of its determination and the requirement to complete training.

259

253

Gov’t Code § 552.269(b); 1 T.A.C. § 70.8(h).

254

Gov’t Code § 552.262(a).

255

Transp. Code § 550.065(d).

256

Local Gov’t Code § 118.011(a)(4).

257

Local Gov’t Code § 118.144.

258

Local Gov’t Code § 191.008; Open Records Decision No. 668 at 9 (2000).

259

Gov’t Code § 552.012(b)(1).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

public official who receives notice must complete the training within 60 days after receiving the

notice.

260

C. Criminal Penalties

The Public Information Act establishes criminal penalties for both the release of information that

must not be disclosed and the withholding of information that must be released. Section 552.352(a)

of the Government Code provides: “A person commits an offense if the person distributes

information considered confidential under the terms of this chapter.” This section applies to

information made confidential by law.

261

Section 552.353(a) of the Government Code provides:

An officer for public information, or the officer’s agent, commits an offense if, with

criminal negligence, the officer or the officer’s agent fails or refuses to give access to, or

to permit or provide copying of, public information to a requestor as provided by this

chapter.

Subsections (b) through (d) of section 552.353 set out various affirmative defenses to prosecution

under subsection (a), including, for example, that a timely request for a decision from the attorney

general is pending or that the officer for public information is pursuing judicial relief from

compliance with a decision of the attorney general pursuant to section 552.324.

262

A violation of

section 552.352 or section 552.353 constitutes official misconduct

263

and is a misdemeanor

punishable by confinement in a county jail for not more than six months, a fine not to exceed

$1,000, or both confinement and the fine.

264

The Act also criminalizes the destruction, alteration or concealment of public records. Section

552.351 provides that the willful destruction, mutilation, removal without permission, or alteration

of public records is a misdemeanor punishable by confinement in a county jail for a minimum of

three days and a maximum of three months, a fine of a minimum of $25.00 and a maximum of

$4,000, or both confinement and the fine.

265

D. Civil Remedies

1. Writ of Mandamus

Section 552.321 of the Government Code provides for a suit for a writ of mandamus to compel a

governmental body to release requested information. A requestor or the attorney general may seek

a writ of mandamus to compel a governmental body to release requested information if the

260

Gov’t Code § 552.012(b)(1).

261

See Open Records Decision No. 490 (1988).

262

Gov’t Code § 552.353(b)(2-3). See generally Hubert v. Harte-Hanks Tex. Newspapers, Inc., 652 S.W.2d 546, 548-49

(Tex. App.—Austin 1983, writ ref’d n.r.e.).

263

Gov’t Code §§ 552.352(c), .353(f).

264

Gov’t Code §§ 552.352(b), .353(e).

265

Gov’t Code §552.351(a); see also Penal Code § 37.10 (tampering with governmental record).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

governmental body refuses to seek an attorney general decision, refuses to release public

information or if the governmental body refuses to release information in accordance with an

attorney general decision.

266

Section 552.321(b) provides that a mandamus action filed by a

requestor under section 552.321 must be filed in a district court of the county in which the main

offices of the governmental body are located. A mandamus suit filed by the attorney general under

section 552.321 must be filed in a district court in Travis County, except if the suit is against a

municipality with a population of 100,000 or less, in which case the suit must be filed in a district

court of the county where the main offices of the municipality are located.

267

Section 552.321 authorizes a mandamus suit to compel the release of information even if the

attorney general has ruled such information is not subject to required public disclosure.

268

The

courts have held a requestor may bring a mandamus action regardless of whether an attorney

general decision has been requested.

269

Further, the Texas Supreme Court considered a requestor’s

mandamus action filed after the governmental body requested an attorney general decision, but

prior to the attorney general’s issuance of a decision.

270

The supreme court held a requestor is not

required to defer a suit for mandamus until the attorney general issues a decision.

271

A requestor

may counterclaim for mandamus as part of his or her intervention in a suit by a governmental body

or third party over a ruling that orders information to be disclosed.

272

Section 552.321(c) allows a requestor to file a writ of mandamus suit to compel a governmental

body or an entity to comply with the requirements of Subchapter J of the Act. Subchapter J

pertains to certain contracting information.

2. Violations of the Act: Declaratory Judgment or Injunctive Relief; Formal

Complaints

Section 552.3215 of the Government Code provides for a suit for declaratory judgment or

injunctive relief brought by a local prosecutor or the attorney general against a governmental body

that violates the Act.

a. Venue and Proper Party to Bring Suit

An action against a governmental body located in only one county may be brought only in a district

court in that county. The action may be brought either by the district or county attorney on behalf

of that county, or by the attorney general on behalf of the state. If the governmental body is located

in more than one county, such a suit must be brought in the county where the governmental body’s

266

Gov’t Code § 552.321(a); see Thomas v. Cornyn, 71 S.W.3d 473, 482 (Tex. App.—Austin 2002, no pet.).

267

Gov’t Code § 552.321(b).

268

Thomas v. Cornyn, 71 S.W.3d 473, 483 (Tex. App.—Austin 2002, no pet.); Tex. Dep’t of Pub. Safety v. Gilbreath,

842 S.W.2d 408, 411 (Tex. App.—Austin 1992, no writ).

269

Thomas v. Cornyn, 71 S.W.3d 473, 483 (Tex. App.—Austin 2002, no pet.); Tex. Dep’t of Pub. Safety v. Gilbreath,

842 S.W.2d 408, 411 (Tex. App.—Austin 1992, no writ); see Open Records Decision No. 687 (2011) (attorney

general will rule on claimed exceptions to disclosure when, prior to issuance of open records decision, party brings

action before Texas court posing same open records question).

270

Kallinen v. City of Houston, 462 S.W. 3d 25 (Tex. 2015).

271

Kallinen v. City of Houston, 462 S.W. 3d 25 (Tex. 2015).

272

Thomas v. Cornyn, 71 S.W.3d 473, 482 (Tex. App.—Austin 2002, no pet.).

Exceptions to Disclosure

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administrative offices are located.

273

If the governmental body is a state agency, the Travis County

district attorney or the attorney general may bring such suit only in a district court of Travis

County.

274

b. Suit Pursuant to Formal Complaint

Before suit may be filed under section 552.3215, a person must first file a complaint alleging a

violation of the Act. The complaint must be filed with the district or county attorney of the county

where the governmental body is located. If the governmental body is located in more than one

county, the complaint must be filed with the district or county attorney of the county where the

governmental body’s administrative offices are located. If the governmental body is a state agency,

the complaint may be filed with the Travis County district attorney. If the governmental body is

the district or county attorney, the complaint must be filed with the attorney general.

275

c. Procedures for Formal Complaint

A complaint must be in writing and signed by the complainant and include the name of the

governmental body complained of, the time and place of the alleged violation, and a general

description of the violation.

276

The district or county attorney receiving a complaint must note on

its face the date it was filed and must, before the 31st day after the complaint was filed, determine

whether the alleged violation was committed, determine whether an action will be brought under

the section, and notify the complainant in writing of those determinations.

277

If the district or

county attorney determines not to bring suit under the section, or determines that a conflict of

interest exists that precludes his bringing suit, then he or she must include a statement giving the

basis for such determination and return the complaint to the complainant by the 31st day after

receipt of the complaint.

278

If the county or district attorney decides not to bring an action in response to a complaint filed with

that office, the complainant may, before the 31st day after the complaint is returned, file the

complaint with the attorney general. On receipt of the complaint, the attorney general within the

same time frame must make the determinations and notification required of a district or county

attorney. The 85th Legislature amended section 552.3215 of the Government Code to also allow

the complainant to file a complaint under this section with the attorney general if on or after the

90th day after the complainant files a complaint with the district or county attorney, the district or

county attorney has not brought an action.

279

If the attorney general decides to bring an action in

response to a complaint against a governmental body located in only one county, the attorney

general must file such action in a district court of that county.

280

273

Gov’t Code § 552.3215(c).

274

Gov’t Code § 552.3215(d).

275

Gov’t Code § 552.3215(e).

276

Gov’t Code § 552.3215(e).

277

Gov’t Code § 552.3215(f)-(g).

278

Gov’t Code § 552.3215(h).

279

Gov’t Code §552.3215(i).

280

Gov’t Code § 552.3215(i).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

d. Governmental Body Must Be Given Opportunity to Cure Violation

Actions for declaratory judgment or injunctive relief under section 552.3215 may be brought only

if the official proposing to bring the action notifies the governmental body in writing of the

determination that the alleged violation was committed and the governmental body does not cure

the violation before the fourth day after the date it receives the notice.

281

e. Cumulative Remedy

Actions for declaratory judgment or injunctive relief authorized under section 552.3215 are in

addition to any other civil, administrative, or criminal actions authorized by law.

282

3. Suits Over an Open Records Ruling

The Act provides judicial remedies for a governmental body seeking to withhold requested

information or a third party asserting a privacy or proprietary interest in requested information

when the attorney general orders such information to be disclosed.

283

The venue for these suits

against the attorney general is Travis County. The issue of whether the information is subject to

disclosure is decided by the court anew. The court is not bound by the ruling of the attorney

general. However, the only exceptions to disclosure a governmental body may raise before the

court are exceptions that it properly raised in a request for an attorney general decision under

section 552.301, unless the exception is one based on a requirement of federal law or one involving

the property or privacy interests of another person.

284

The court of appeals in Morales v. Ellen affirmed that the district court had jurisdiction to decide

a declaratory judgment action brought against a governmental body by a third party which asserted

privacy interests in documents the attorney general had ruled should be released.

285

The court held

the statutory predecessor to section 552.305(b)—which permitted a third party whose privacy or

property interests would be implicated by the disclosure of the requested information to “submit

in writing to the attorney general the party’s reasons why the information should be withheld or

released”—is permissive and does not require a third party with a property or privacy interest to

exhaust this remedy before seeking relief in the courts.

286

The legislature then enacted

section 552.325 which recognizes the legal interests of third parties and their right to sue the

attorney general to challenge a ruling that information must be released.

Sections 552.324 and 552.325 prohibit a governmental body, officer for public information, or

other person or entity that wishes to withhold information from filing a lawsuit against a requestor.

The only suit a governmental body or officer for public information may bring is one against the

attorney general.

287

Section 552.324(b) requires that a suit by a governmental body be brought no

281

Gov’t Code § 552.3215(j).

282

Gov’t Code § 552.3215(k).

283

Gov’t Code §§ 552.324, .325.

284

Gov’t Code § 552.326; City of Dallas v. Abbott, 304 S.W.3d 380, 392 (Tex. 2010); Tex. Comptroller of Pub.

Accounts v. Attorney General of Tex., 354 S.W.3d 336, 340 (Tex. 2010).

285

Morales v. Ellen, 840 S.W.2d 519, 523 (Tex. App.—El Paso 1992, writ denied).

286

Morales v. Ellen, 840 S.W.2d 519, 523 (Tex. App.—El Paso 1992, writ denied).

287

Gov’t Code § 552.324(a).

Exceptions to Disclosure

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later than the 30th calendar day after the governmental body receives the decision it seeks to

challenge. If suit is not timely filed under the section, the governmental body must comply with

the attorney general’s decision. The deadline for filing suit under section 552.324 does not affect

the earlier ten day deadline required of a governmental body to file suit in order to establish an

affirmative defense to prosecution of a public information officer under section 552.353(b)(3).

288

Section 552.325 provides that a requestor may intervene in a suit filed by a governmental body or

another entity to prevent disclosure. The section includes procedures for notice to the requestor of

the right to intervene and of any proposed settlement between the attorney general and a plaintiff

by which the parties agree that the information should be withheld.

Sometimes during the pendency of a suit challenging a ruling, the requestor will voluntarily

withdraw his or her request, or the requestor may no longer be found. Section 552.327 authorizes

a court to dismiss a suit challenging an attorney general ruling if all parties to the suit agree to the

dismissal and the attorney general determines and represents to the court that the requestor has

voluntarily withdrawn the request for information in writing, or has abandoned the request.

289

such cases, a governmental body will not be precluded from asking for another ruling on the same

information at issue after the suit is dismissed by the court.

290

4. Discovery and Court’s In Camera Review of Information Under Protective Order

Section 552.322 of the Government Code authorizes a court to order that information at issue in a

suit under the Act may be discovered only under a protective order until a final determination is

made. When suit is filed challenging a ruling, the attorney general will seek access to the

information at issue either informally or by way of this section, because the attorney general returns

the information to the governmental body upon issuance of a ruling.

Section 552.3221 of the Government Code permits a party to file the information at issue with the

court for in camera inspection as necessary for the adjudication of cases.

291

When the court

receives the information for review, the court must enter an order that prevents access to the

information by any person other than the court, a reviewing court of appeals or parties permitted

to inspect the information pursuant to a protective order.

292

Information filed with the court under

section 552.3221 does not constitute court records under Rule 76a of the Texas Rules of Civil

Procedure and shall not be available by the clerk or any custodian of record for public disclosure.

293

E. Assessment of Costs of Litigation and Reasonable Attorney’s Fees

Section 552.323 of the Government Code provides that in a suit for mandamus under section

552.321 or for declaratory judgment or injunctive relief under section 552.3215, the court shall

assess costs of litigation and reasonable attorney’s fees incurred by a plaintiff who substantially

288

Gov’t Code § 552.324(b).

289

Gov’t Code § 552.327.

290

Gov’t Code § 552.327.

291

Gov’t Code § 552.3221(a).

292

Gov’t Code § 552.3221(b).

293

Gov’t Code § 552.3221(d).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

prevails.

294

However, a court may not assess such costs and attorney’s fees against the

governmental body if the court finds that the governmental body acted in reasonable reliance on a

judgment or order of a court applicable to that governmental body, the published opinion of an

appellate court, or a written decision of the attorney general.

295

In addition, a requestor who is an

attorney representing himself in a suit to require a governmental body to disclose requested

information under the Act is not entitled to attorney’s fees because the requestor did not incur

attorney’s fees.

296

The court may not assess attorney’s fees and costs in a suit brought under section 552.324 by a

governmental body against the attorney general challenging a ruling that ordered information to

be disclosed unless the court finds the action or the defense of the action was groundless in fact or

law.

297

IX. PRESERVATION AND DESTRUCTION OF RECORDS

Subject to state laws governing the destruction of state and local government records, section

552.004 of the Government Code addresses the preservation period of noncurrent records. Section

552.004 requires that “A current or former officer or employee of a governmental body who

maintains public information on a privately owned device shall: (1) forward or transfer the public

information to the governmental body or a governmental body server to be preserved as provided

by Subsection (a); or (2) preserve the public information in its original form in a backup or archive

and on the privately owned device for the time described under Subsection (a).”

298

Sections

441.180 through 441.205 of the Government Code provide for the management, preservation, and

destruction of state records under the guidance of the Texas State Library and Archives

Commission.

299

Provisions for the preservation, retention, and destruction of local government

records under the oversight of the Texas State Library and Archives Commission are set out in

chapters 201 through 205 of the Local Government Code.

Section 552.0215 of the Government Code provides that with the exception of information subject

to section 552.147 or a confidentiality provision, information that is not confidential but merely

excepted from required disclosure under the Act is public information and is available to the public

on or after the 75th anniversary of the date the information was originally created or received by

the governmental body.

300

This section does not, however, limit the authority of a governmental

body to establish retention periods for records under applicable law.

301

Section 552.203 of the Government Code provides that the officer for public information, “subject

to penalties provided in this chapter,” has the duty to see that public records are protected from

294

Gov’t Code § 552.323(a).

295

Gov’t Code § 552.323(a).

296

Jackson v. State Office of Admin. Hearings, 351 S.W.3d 290, 300 (Tex. 2011).

297

Gov’t Code § 552.323(b).

298

Gov’t Code § 552.004(b)(1), (2).

299

See, e.g., Attorney General Opinions DM-181 at 3 (1992), JM-1013 at 2, 5-6 (1989), JM-229 at 5 (1984).

300

Gov’t Code § 552.0215(a).

301

Gov’t Code § 552.0215(b).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

deterioration, alteration, mutilation, loss, or unlawful removal and that they are repaired as

necessary.

302

Public records may be destroyed only as provided by statute.

303

A governmental

body may not destroy records even pursuant to statutory authority while they are subject to an

open records request.

304

X. PUBLIC INFORMATION ACT DISTINGUISHED FROM

CERTAIN OTHER STATUTES

A. Authority of the Attorney General to Issue Attorney General Opinions

The attorney general has authority pursuant to article IV, section 22, of the Texas Constitution and

sections 402.041 through 402.045 of the Government Code to issue legal opinions to certain public

officers. These officers are identified in sections 402.042 and 402.043 of the Government Code.

The attorney general may not give legal advice or a written opinion to any other person.

305

On the other hand, the Act requires a governmental body to request a ruling from the attorney

general if it receives a written request for records that it believes to be within an exception set out

in subchapter C of the Act, sections 552.101 through 552.163 and there has not been a previous

determination about whether the information falls within the exception.

306

Thus, all governmental

bodies have a duty to request a ruling from the attorney general under the circumstances set out in

section 552.301. A much smaller group of public officers has discretionary authority to request

attorney general opinions pursuant to chapter 402 of the Government Code. A school district, for

example, is a governmental body that must request open records rulings as required by section

552.301 of the Act, but has no authority to seek legal advice on other matters from the attorney

general.

307

Additionally, the Act gives the attorney general the authority to issue written decisions and

opinions in order to maintain uniformity in the application, operation, and interpretation of the

Act.

308

B. Texas Open Meetings Act

The Public Information Act and the Open Meetings Act, Government Code chapter 551, both serve

the purpose of opening government to the people. However, they operate differently, and each has

a different set of exceptions. The exceptions in the Public Information Act do not furnish a basis

302

See also Gov’t Code § 552.351 (penalty for willful destruction, mutilation, removal without permission or alteration

of public records).

303

See generally Attorney General Opinions DM-40 (1991) (deleting records), JM-830 (1987) (sealing records),

MW-327 (1981) (expunging or altering public records).

304

Local Gov’t Code § 202.002(b); Open Records Decision No. 505 at 4 (1988).

305

Gov’t Code § 402.045.

306

Gov’t Code § 552.301(a); see Open Records Decision No. 673 (2001) (defining previous determination).

307

See generally Attorney General Opinion DM-20 at 3-6 (1991).

308

Gov’t Code § 552.011.

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

for holding executive session meetings to discuss confidential records.

309

Furthermore, the mere

fact that a document was discussed in an executive session does not make it confidential under the

Public Information Act.

310

Since the Open Meetings Act has no provision comparable to section

552.301 of the Act, the attorney general may address questions about the Open Meetings Act only

when such questions are submitted by a public officer with authority to request attorney general

opinions pursuant to chapter 402 of the Government Code. (A companion volume to this

Handbook, the Open Meetings Act Handbook, is also available from the Office of the Attorney

General.) In Open Records Decision No. 684 (2009), the attorney general issued a previous

determination to all governmental bodies authorizing them to withhold certified agendas and tapes

of closed meetings under section 552.101 in conjunction with section 551.104 of the Government

Code, without the necessity of requesting an attorney general decision.

311

C. Discovery Proceedings

The Public Information Act differs in purpose from statutes and procedural rules providing for

discovery of documents in administrative and judicial proceedings.

312

The Act’s exceptions to

required public disclosure do not create privileges from discovery of documents in administrative

or judicial proceedings.

313

Furthermore, information that might be privileged from discovery is

not necessarily protected from required public disclosure under the Act.

314

309

See Attorney General Opinion JM-595 at 4 (1986).

310

City of Garland v. Dallas Morning News, 22 S.W.3d 351, 367 (Tex. 2000); Open Records Decision No. 485 at 9-10

(1987); see also Open Records Decision No. 605 at 2-3 (1992).

311

Open Records Decision No. 684 at 5 (2009).

312

Attorney General Opinion JM-1048 at 2 (1989); Open Records Decision Nos. 551 at 4 (1990), 108 (1975).

313

Gov’t Code § 552.005.

314

See Open Records Decision No. 575 at 2 (1990) (discovery privileges in Texas Rules of Evidence not confidentiality

provisions for purpose of Gov’t Code § 552.101). But see Open Records Decision Nos. 677 (2002) (analyzing work

product privilege in context of Act), 676 (2002) (analyzing attorney-client privilege in context of Act).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

PART TWO: EXCEPTIONS TO DISCLOSURE

I. I

NFORMATION GENERALLY CONSIDERED TO BE PUBLIC

A. Section 552.022 Categories of Information

Section 552.022 of the Government Code provides that “[w]ithout limiting the amount or kind of

information that is public information under this chapter, the following categories of information

are public information and not excepted from required disclosure unless made confidential under

this chapter or other law . . ..”

315

Section 552.022(a) then lists eighteen categories of information.

Section 552.022(a) is not an exhaustive list of the types of information subject to the Act.

316

Rather,

it is a list of information that generally may be withheld only if it is expressly confidential by

law.

317

Thus, the Act’s permissive exceptions to disclosure generally do not apply to the categories

of information contained in section 552.022.

318

1. Discovery Privileges

The laws under which information may be considered confidential for the purpose of section

552.022 are not limited simply to statutes and judicial decisions that expressly make information

confidential.

319

The Texas Supreme Court has held that discovery privileges included in the Texas

Rules of Civil Procedure and the Texas Rules of Evidence are also “other law” that may make

information confidential for the purpose of section 552.022.

320

Therefore, even if information is

included in one of the eighteen categories of information listed in section 552.022(a), and as a

result the information cannot be withheld under an exception listed in the Act, the information is

still protected from disclosure if a governmental body can demonstrate that the information is

privileged under the Texas Rules of Evidence or the Texas Rules of Civil Procedure.

321

Accordingly, a governmental body claiming the attorney-client privilege for a document that is

subject to section 552.022 of the Government Code should raise Texas Rule of Evidence 503 in

order to withhold the information. If the governmental body demonstrates that rule 503 applies to

part of a communication, generally the entire communication will be protected.

322

However, a fee

bill is not excepted in its entirety if a governmental body demonstrates that a portion of the fee bill

315

Gov’t Code § 552.022.

316

See City of Garland v. Dallas Morning News, 22 S.W.3d 351, 359 (Tex. 2000).

317

Gov’t Code § 552.022(a); Thomas v. Cornyn, 71 S.W.3d 473, 480 (Tex. App.—Austin 2002, no pet.).

318

See In re City of Georgetown, 53 S.W.3d 328, 331 (Tex. 2001). But see Gov’t Code §§ 552.022(a)(1) (completed

report, audit or evaluation may be withheld under Gov’t Code § 552.108), .104(b) (except as provided by

§ 552.104(c), information subject to Gov’t Code § 552.022 may be withheld under Gov’t Code § 552.104(a)), .133(c)

(information subject to Gov’t Code § 552.022 may be withheld under Gov’t Code § 552.133).

319

See Gov’t Code § 552.022(a); In re City of Georgetown, 53 S.W.3d 328, 332-37 (Tex. 2001).

320

In re City of Georgetown, 53 S.W.3d 328, 337 (Tex. 2001); see Open Records Decision Nos. 677 at 9 (2002), 676

at 2 (2002); see generally T

EX. R. EVID. 501-513; TEX. R. CIV. P. 192.5.

321

In re City of Georgetown, 53 S.W.3d 328, 333-34, 337 (Tex. 2001).

322

See Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996) (privilege extends to entire communication, including facts

contained therein); In re Valero Energy Corp., 973 S.W.2d 453, 457 (Tex. App.—Houston [14th Dist.] 1998, orig.

proceeding) (privilege attaches to complete communication, including factual information).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

contains or consists of an attorney-client communication.

323

Rather, information in an attorney

fee bill may only be withheld to the extent the particular information in the fee bill is demonstrated

to be subject to the attorney-client privilege.

324

Similarly, a governmental body claiming the work product privilege for a document that is subject

to section 552.022 of the Government Code should raise Rule 192.5 of the Texas Rules of Civil

Procedure in order to withhold the information.

325

2. Court Order

Section 552.022(b) prohibits a court in this state from ordering a governmental body to withhold

from public disclosure information in the section 552.022 categories unless the information is

confidential under the Act or other law.

326

Thus, although section 552.107(2) of the Act excepts

from disclosure information that a court has ordered to be kept confidential, section 552.022

effectively limits the applicability of that subsection and the authority of a court to order

confidentiality.

327

B. Certain Contracting Information

Section 552.0222 of the Government Code provides that contracting information, as defined at

section 552.003(7) of the Act, is public and must be released unless excepted from disclosure under

the Act. Subsection (b) states that exceptions to disclosure provided by sections 552.110 and

552.1101 do not apply to certain types of contracting information, including information subject

to sections 2261.253(a) of the Government Code and 322.020(c) of the Government Code, ten

specified types of contract terms, and certain contract performance information. Section 552.0222

provides:

(a) Contracting information is public and must be released unless excepted from disclosure

under this chapter.

(b) The exceptions to disclosure provided by Sections 552.110 and 552.1101 do not apply

to the following types of contracting information:

(1) a contract described by Section 2261.253(a), excluding any information that was

properly redacted under Subsection (e) of that section;

(2) a contract described by Section 322.020(c), excluding any information that was

properly redacted under Subsection (e) of that section;

(3) the following contract or offer terms or their functional equivalent:

323

Open Records Decision No. 676 at 5 (2002).

324

Open Records Decision No. 676 at 5-6 (2002).

325

Open Records Decision No. 677 at 9 (2002).

326

Gov’t Code § 552.022(b).

327

See Ford v. City of Huntsville, 242 F.3d 235, 241 (5th Cir. 2001).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

(A) any term describing the overall or total price the governmental body will or

could potentially pay, including overall or total value, maximum liability, and

final price;

(B) a description of the items or services to be delivered with the total price for

each if a total price is identified for the item or service in the contract;

(D) the remedies for breach of contract;

(E) the identity of all parties to the contract;

(F) the identity of all subcontractors in a contract;

(G) the affiliate overall or total pricing for a vendor, contractor, potential vendor,

or potential contractor;

(H) the execution dates;

(I) the effective dates; and

(J) the contract duration terms, including any extension options; or

(4) information indicating whether a vendor, contractor, potential vendor, or potential

contractor performed its duties under a contract, including information regarding:

(A) a breach of contract;

(B) a contract variance or exception;

(D) an amendment to a contract;

(E) any assessed or paid liquidated damages;

(F) a key measures report;

(G) a progress report; and

(H) a final payment checklist.

of that subsection that relates to a retail electricity contract may not be disclosed until

the delivery start date.

There are no cases or formal opinions interpreting this section.

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

C. Certain Investment Information

Section 552.0225 of the Government Code provides that certain investment information is public

and not excepted from disclosure under the Act. The section provides:

(a) Under the fundamental philosophy of American government described by Section

552.001, it is the policy of this state that investments of government are investments

of and for the people and the people are entitled to information regarding those

investments. The provisions of this section shall be liberally construed to implement

this policy.

(b) The following categories of information held by a governmental body relating to its

investments are public information and not excepted from disclosure under this

chapter:

(1) the name of any fund or investment entity the governmental body is or has

invested in;

(2) the date that a fund or investment entity described by Subdivision (1) was

established;

(3) each date the governmental body invested in a fund or investment entity

described by Subdivision (1);

(4) the amount of money, expressed in dollars, the governmental body has

committed to a fund or investment entity;

(5) the amount of money, expressed in dollars, the governmental body is investing

or has invested in any fund or investment entity;

(6) the total amount of money, expressed in dollars, the governmental body

received from any fund or investment entity in connection with an investment;

(7) the internal rate of return or other standard used by a governmental body in

connection with each fund or investment entity it is or has invested in and the

date on which the return or other standard was calculated;

(8) the remaining value of any fund or investment entity the governmental body

is or has invested in;

(9) the total amount of fees, including expenses, charges, and other compensation,

assessed against the governmental body by, or paid by the governmental body

to, any fund or investment entity or principal of any fund or investment entity

in which the governmental body is or has invested;

(10) the names of the principals responsible for managing any fund or investment

entity in which the governmental body is or has invested;

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

(11) each recusal filed by a member of the governing board in connection with a

deliberation or action of the governmental body relating to an investment;

(12) a description of all of the types of businesses a governmental body is or has

invested in through a fund or investment entity;

(13) the minutes and audio or video recordings of each open portion of a meeting

of the governmental body at which an item described by this subsection was

discussed;

(14) the governmental body’s percentage ownership interest in a fund or

investment entity the governmental body is or has invested in;

(15) any annual ethics disclosure report submitted to the governmental body by a

fund or investment entity the governmental body is or has invested in; and

(16) the cash-on-cash return realized by the governmental body for a fund or

investment entity the governmental body is or has invested in.

to the company.

(d) This section does not apply to a private investment fund’s investment in restricted

securities, as defined in Section 552.143.

There are no cases or formal opinions interpreting this section. Section 552.143 excepts certain

investment information from disclosure that is not made public under section 552.0225.

328

The

attorney general has determined in an informal letter ruling that section 552.143 is subject to the

public disclosure requirements of section 552.0225.

329

D. Other Kinds of Information that May Not Be Withheld

As a general rule, a governmental body may not use one of the exceptions in the Act to withhold

information that a statute other than the Act expressly makes public.

330

For example, a

governmental body may not withhold the minutes of an open meeting under the Act’s exceptions

since such minutes are made public by statute.

331

328

Gov’t Code § 552.143.

329

Open Records Letter No. 2005-6095 (2005).

330

Open Records Decision No. 623 (1994); see also Open Records Decision Nos. 675 (2001) (federal statute requiring

release of cost reports of nursing facilities prevails over claim that information is excepted from disclosure under

Gov’t Code § 552.110), 451 (1986) (specific statute that affirmatively requires release of information at issue prevails

over litigation exception of Public Information Act); cf. Houston Chronicle Publ’g Co. v. Woods, 949 S.W.2d 492

(Tex. App.—Beaumont 1997, orig. proceeding) (concerning public disclosure of affidavits in support of executed

search warrants).

331

Gov’t Code § 551.022; see Open Records Decision No. 225 (1979).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

II. EXCEPTIONS

A. Section 552.101: Confidential Information

Section 552.101 of the Government Code provides as follows:

Information is excepted from [required public disclosure] if it is information considered

to be confidential by law, either constitutional, statutory, or by judicial decision.

This section makes clear that the Act does not mandate the disclosure of information that other

law requires be kept confidential. Section 552.352(a) states: “A person commits an offense if the

person distributes information considered confidential under the terms of this chapter.”

332

violation under section 552.352 is a misdemeanor constituting official misconduct.

333

In its

discretion, a governmental body may release to the public information protected under the Act’s

exceptions to disclosure but not deemed confidential by law.

334

On the other hand, a governmental

body has no discretion to release information deemed confidential by law.

335

Because the Act

prohibits the release of confidential information and because its improper release constitutes a

misdemeanor, the attorney general may raise section 552.101 on behalf of a governmental body,

although the attorney general ordinarily will not raise other exceptions that a governmental body

has failed to claim.

336

By providing that all information a governmental body collects, assembles, or maintains is public

unless expressly excepted from disclosure, the Act prevents a governmental body from making an

enforceable promise to keep information confidential unless the governmental body is authorized

by law to do so.

337

Thus, a governmental body may rely on its promise of confidentiality to

withhold information from disclosure only if the governmental body has specific statutory

authority to make such a promise. Unless a governmental body is explicitly authorized to make

an enforceable promise to keep information confidential, it may not make such a promise in a

confidentiality agreement such as a contract

338

or a settlement agreement.

339

In addition, a

governmental body may not pass an ordinance or rule purporting to make certain information

confidential unless the governmental body is statutorily authorized to do so.

340

332

Gov’t Code § 552.352(a).

333

Gov’t Code § 552.352(b), (c).

334

Gov’t Code § 552.007; see Dominguez v. Gilbert, 48 S.W.3d 789, 793 (Tex. App.—Austin 2001, no pet.).

335

See Gov’t Code § 552.007; Dominguez v. Gilbert, 48 S.W.3d 789, 793 (Tex. App.—Austin 2001, no pet.). But see

discussion of informer’s privilege in Part Two, Section II, Subsection A.2.g of this Handbook.

336

See Open Records Decision Nos. 455 at 3 (1987), 325 at 1 (1982).

337

Attorney General Opinion H-258 at 3 (1974); see Attorney General Opinions JM-672 at 1-2 (1987), JM-37 at 2

(1983); Open Records Decision Nos. 585 at 2 (1991), 514 at 1 (1988), 55A at 2 (1975).

338

See Attorney General Opinion JM-672 at 2 (1987); Open Records Decision No. 514 at 1 (1988).

339

See Open Records Decision No. 114 at 1 (1975).

340

See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 677 (Tex. 1976), cert. denied, 430 U.S. 931 (1977);

Envoy Med. Sys. v. State, 108 S.W.3d 333, 337 (Tex. App.—Austin 2003, no pet.); Open Records Decision No. 594

at 3 (1991).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

1. Information Confidential Under Specific Statutes

Section 552.101 incorporates specific statutes that protect information from public disclosure. The

following points are important for the proper application of this aspect of section 552.101:

1) The language of the relevant confidentiality statute controls the scope of the protection.

341

2) To fall within section 552.101, a statute must explicitly require confidentiality; a

confidentiality requirement will not be inferred from the statutory structure.

342

a. State Statutes

The attorney general must interpret numerous confidentiality statutes. Examples of information

made confidential by statute include the following noteworthy examples:

• medical records that a physician creates or maintains regarding the identity, diagnosis,

evaluation, or treatment of a patient;

343

• reports, records, and working papers used or developed in an investigation of alleged child

abuse or neglect under Family Code chapter 261;

344

• certain information relating to the provision of emergency medical services;

345

• communications between a patient and a mental health professional and records of the

identity, diagnosis, or treatment of a mental health patient created or maintained by a mental

health professional;

346

and

• certain personal information in a government-operated utility customer’s account records

unless the customer requested that the utility disclose the information.

347

In the following examples, the attorney general has interpreted the scope of confidentiality

provided by Texas statutes under section 552.101:

341

See Open Records Decision No. 478 at 2 (1987).

342

See, e.g., Open Records Decision No. 465 at 4-5 (1987).

343

Occ. Code § 159.002(b); see Abbott v. Tex. State Bd. of Pharmacy, 391 S.W.3d 253, 258 (Tex. App.—Austin 2012,

no pet.) (Medical Practice Act does not provide patient general right of access to medical records from governmental

body responding to request for information under Public Information Act); Open Records Decision No. 681 at 16-17

(2004).

344

Fam. Code § 261.201(a).

345

Health & Safety Code § 773.091; see Open Records Decision No. 681 at 17-18 (2004).

346

Health & Safety Code § 611.002.

347

Util. Code § 182.052(a).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

Open Records Decision No. 658 (1998) — section 154.073 of the Civil Practice and Remedies

Code does not make confidential a governmental body’s mediated final settlement

agreement;

348

Open Records Decision No. 655 (1997) — concerning confidentiality of criminal history

record information and permissible interagency transfer of such information;

Open Records Decision No. 649 (1996) — originating telephone numbers and addresses

furnished on a call-by-call basis by a service supplier to a 9-1-1 emergency communication

district established under subchapter D of chapter 772 of the Health and Safety Code are

confidential under section 772.318 of the Health and Safety Code. Section 772.318 does not

except from disclosure any other information contained on a computer-aided dispatch report

that was obtained during a 9-1-1 call;

Open Records Decision No. 643 (1996) — section 21.355 of the Education Code makes

confidential any document that evaluates, as that term is commonly understood, the

performance of a teacher or administrator. The term “teacher,” as used in section 21.355,

means an individual who is required to hold and does hold a teaching certificate or school

district teaching permit under subchapter B of chapter 21, and who is engaged in teaching at

the time of the evaluation; an “administrator” is a person who is required to hold and does hold

an administrator’s certificate under subchapter B of chapter 21 and is performing the functions

of an administrator at the time of the evaluation;

Open Records Decision No. 642 (1996) — section 143.1214(b) of the Local Government Code

requires the City of Houston Police Department to withhold documents relating to an

investigation of a City of Houston fire fighter conducted by the City of Houston Police

Department’s Public Integrity Review Group when the Public Integrity Review Group has

concluded that the allegations were unfounded; and

Open Records Decision No. 640 (1996) (replacing Open Records Decision No. 637 (1996)) —

the Texas Department of Insurance must withhold any information obtained from audit “work

papers” that are “pertinent to the accountant’s examination of the financial statements of an

insurer” under former section 8 of article 1.15 of the Insurance Code; former section 9 of

article 1.15 makes confidential the examination reports and related work papers obtained

during the course of an examination of a carrier; section 9 of article 1.15 did not apply to

examination reports and work papers of carriers under liquidation or receivership.

b. Federal Statutes

Section 552.101 also incorporates the confidentiality provisions of federal statutes and regulations.

In Open Records Decision No. 641 (1996), the attorney general ruled that information collected

under the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., from an applicant or

348

The 76th Legislature amended section 154.073 of the Civil Practice and Remedies Code by adding subsection (d),

which provides that a final written agreement to which a governmental body subject to the Act is a signatory and

that was reached as a result of a dispute resolution procedure conducted under chapter 154 of that code is subject to

or excepted from required disclosure in accordance with the Act. Act of May 30, 1999, 76th Leg., R.S., ch. 1352,

§ 6, 1999 Tex. Gen. Laws 4578, 4582; see Gov’t Code § 552.022(a)(18) (settlement agreement to which

governmental body is party may not be withheld unless it is confidential under the Act or other law).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

employee concerning that individual’s medical condition and medical history is confidential under

section 552.101 of the Government Code, in conjunction with provisions of the Americans with

Disabilities Act. This type of information must be collected and maintained separately from other

information and may be released only as provided by the Americans with Disabilities Act.

In Open Records Decision No. 681 (2004), the attorney general addressed whether the Health

Insurance Portability and Accountability Act of 1996 (“HIPAA”) and the related Privacy Rule

349

adopted by the United States Department of Health and Human Services make information

confidential for the purpose of section 552.101. The attorney general determined that when a

governmental body that is a “covered entity”

350

subject to the Privacy Rule, receives a request for

“protected health information”

351

from a member of the public, it must evaluate the disclosure

under the Act rather than the Privacy Rule. The decision also determined that the Privacy Rule

does not make information confidential for purposes of section 552.101 of the Government Code.

In Abbott v. Tex. Dep’t of Mental Health & Mental Retardation, the Third Court of Appeals agreed

with the attorney general’s analysis of the interplay of the Act and the Privacy Rule.

352

As a general rule, the mere fact that a governmental body in Texas holds certain information that

is confidential under the federal Freedom of Information Act or the federal Privacy Act will not

bring the information within the section 552.101 exception, as those acts govern disclosure only

of information that federal agencies hold.

353

However, if an agency of the federal government

shares its information with a Texas governmental entity, the Texas entity must withhold the

information that the federal agency determined to be confidential under federal law.

354

2. Information Confidential by Judicial Decision

a. Information Confidential Under Common Law

Section 552.101 also excepts from required public disclosure information held confidential under

case law. Pursuant to the Texas Supreme Court decision in Indus. Found. v. Tex. Indus. Accident

Bd.,

355

section 552.101 applies to information when its disclosure would constitute the

common-law tort of invasion of privacy through the disclosure of private facts. To be within this

common-law tort, the information must (1) contain highly intimate or embarrassing facts about a

349

The United States Department of Health and Human Services promulgated the Privacy Rule under HIPAA to

implement HIPAA’s privacy requirements for setting national privacy standards for health information. See 42

U.S.C. § 1320d-2; 45 C.F.R. pts. 160, 164.

350

The Privacy Rule only applies to a covered entity, that is, one of the following three entities defined in the Privacy

Rule: (1) a health plan; (2) a health care clearinghouse; and (3) a health care provider who transmits any health

information in electronic form in connection with certain transactions covered by subchapter C, subtitle A of title 45

of the Code of Federal Regulations. See 42 U.S.C. § 1320d-1(a); 45 C.F.R. § 160.103.

351

See 45 C.F.R. § 160.103 (defining “protected health information”); Open Records Decision No. 681 at 5-7 (2004)

(determination of whether requested information is protected health information subject to Privacy Rule requires

consideration of definitions of three terms in rule).

352

Abbott v. Tex. Dep’t of Mental Health & Mental Retardation, 212 S.W.3d 648 (Tex. App.—Austin 2006, no pet.).

353

Attorney General Opinion MW-95 at 2 (1979); Open Records Decision No. 124 at 1 (1976).

354

See Open Records Decision No. 561 at 6-7 (1990); accord United States v. Napper, 887 F.2d 1528, 1530 (11th Cir.

1989) (documents that Federal Bureau of Investigation lent to city police department remained property of Bureau

and were subject to any restrictions on dissemination of Bureau-placed documents).

355

Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

person’s private affairs such that its release would be highly objectionable to a reasonable person

and (2) be of no legitimate concern to the public.

356

Because much of the information that a

governmental body holds is of legitimate concern to the public, the doctrine of common-law

privacy frequently will not exempt information that might be considered “private.” For example,

information about public employees’ conduct on the job is generally not protected from

disclosure.

357

The attorney general has found that the doctrine of common-law privacy does not

protect the specific information at issue in the following decisions:

Open Records Decision No. 625 (1994) — a company’s address and telephone number;

Open Records Decision No. 620 (1993) — a corporation’s financial information;

Open Records Decision No. 616 (1993) — a “mug shot,” unrelated to any active criminal

investigation, taken in connection with an arrest for which an arrestee subsequently was

convicted and is serving time;

Open Records Decision No. 611 (1992) — records held by law enforcement agencies regarding

violence between family members unless the information is highly intimate and embarrassing

and of no legitimate public interest;

Open Records Decision No. 594 (1991) — certain information regarding a city’s drug testing

program for employees; and

Open Records Decision No. 441 (1986) — job-related examination scores of public employees

or applicants for public employment.

The attorney general has concluded that, with the exception of victims of sexual assault,

358

section 552.101 does not categorically except from required public disclosure, on common-law

privacy grounds, the names of crime victims.

359

In addition to the seminal Public Information Act privacy case of Industrial Foundation, courts in

other cases have considered the common-law right to privacy in the context of section 552.101 of

the Act. In two cases involving the Fort Worth Star-Telegram newspaper, the Texas Supreme

Court weighed an individual’s right to privacy against the right of the press to publish certain

embarrassing information concerning an individual. In Star-Telegram, Inc. v. Doe,

360

a rape

victim sued the newspaper, which had published articles disclosing the age of the victim, the

relative location of her residence, the fact that she owned a home security system, that she took

356

Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977); see

Open Records Decision No. 659 (1999).

357

See Open Records Decision No. 455 (1987).

358

See Open Records Decision No. 339 at 2 (1982).

359

Open Records Decision No. 409 at 2 (1984); see also Open Records Decision Nos. 628 (1994) (identities of juvenile

victims of crime are not per se protected from disclosure by common-law privacy), 611 (1992) (determining whether

records held by law-enforcement agency regarding violence between family members are confidential under doctrine

of common-law privacy must be done on case-by-case basis). But see Gov’t Code §§ 552.132 (excepting

information about certain crime victims), .1325 (excepting information held by governmental body or files with

court contained in victim impact statement or submitted for purpose of preparing such statement).

360

Star-Telegram, Inc. v. Doe, 915 S.W.2d 471 (Tex. 1995).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

medication, that she owned a 1984 black Jaguar automobile, and that she owned a travel agency.

The newspaper did not reveal her actual identity. The court held that the newspaper in this case

could not be held liable for invasion of privacy for public disclosure of embarrassing private facts

because, although the information disclosed by the articles made the victim identifiable by her

acquaintances, it could not be said that the articles disclosed facts which were not of legitimate

public concern.

In Star-Telegram, Inc. v. Walker,

361

the court addressed another case involving the identity of a

rape victim. In this case, the victim’s true identity could be gleaned from the criminal court records

and testimony. The court found that because trial proceedings are public information, the order

entered by the criminal court closing the files and expunging the victim’s true identity from the

criminal records (more than three months following the criminal trial) could not retroactively

abrogate the press’s right to publish public information properly obtained from open records. Once

information is in the public domain, the court stated, the law cannot recall the information.

Therefore, the court found that the newspaper could not be held liable for invasion of privacy for

publication of information appearing in public court documents.

In Morales v. Ellen,

362

the court of appeals considered whether the statements and names of

witnesses to and victims of sexual harassment in an employment context were public information

under the Act. In Open Records Decision No. 579 (1990), the attorney general had concluded that

an investigative file concerning a sexual harassment complaint was not protected by common-law

privacy. The decision in Ellen modified that interpretation. The Ellen court found that the names

of witnesses and their detailed affidavits were “highly intimate or embarrassing.” Furthermore,

the court found that, because information pertinent to the sexual harassment charges and

investigation already had been released to the public in summary form, the legitimate public

interest in the matter had been satisfied. Therefore, the court determined that, in this instance, the

public did not possess a legitimate interest in the names of witnesses to or victims of the sexual

harassment, in their statements, or in any other information that would tend to identify them. The

Ellen court did not protect from public disclosure the identity of the alleged perpetrator of the

sexual harassment.

In Abbott v. Dallas Area Rapid Transit,

363

the court of appeals considered a request for the

investigation report pertaining to a claim of racial discrimination. The court concluded this

information is in no way intimate or embarrassing and is not comparable to the information at issue

in Morales v. Ellen. The court of appeals determined the report was not protected by common-law

privacy and must be released without redaction.

Governmental bodies frequently claim that financial information pertaining to an individual is

protected under the doctrine of common-law privacy as incorporated into section 552.101.

Resolution of these claims hinges upon the role the information plays in the relationship between

the individual and the governmental body.

Information regarding a financial transaction between an individual and a governmental body is a

matter of legitimate public interest; thus, the doctrine of common-law privacy does not generally

361

Star-Telegram, Inc. v. Walker, 834 S.W.2d 54 (Tex. 1992).

362

Morales v. Ellen, 840 S.W.2d 519, 524-25 (Tex. App.—El Paso 1992, writ denied).

363

Abbott v. Dallas Area Rapid Transit, 410 S.W.3d 876 (Tex. App.—Austin 2013, no pet.).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

protect from required public disclosure information regarding such a transaction.

364

An example

of a financial transaction between a person and a governmental body is a public employee’s

participation in an insurance program funded wholly or partially by his or her employer.

365

contrast, a public employee’s participation in a voluntary investment program or deferred

compensation plan that the employer offers but does not fund is not considered a financial

transaction between the individual and the governmental body; information regarding such

participation is considered intimate and of no legitimate public interest.

366

Consequently, the

doctrine of common-law privacy generally excepts such financial information from required public

disclosure.

The doctrine of common-law privacy does not except from disclosure the basic facts concerning a

financial transaction between an individual and a governmental body.

367

On the other hand,

common-law privacy generally protects the “background” financial information of the individual,

that is, information about the individual’s overall financial status and past financial history.

368

However, certain circumstances may justify the public disclosure of background financial

information; therefore, a determination of the availability of background financial information

under the Act must be made on a case-by-case basis.

369

b. Information Confidential Under Constitutional Privacy

Section 552.101 also incorporates constitutional privacy.

370

The United States Constitution

protects two kinds of individual privacy interests: (1) an individual’s interest in independently

making certain important personal decisions about matters that the United States Supreme Court

has stated are within the “zones of privacy,” as described in Paul v. Davis

371

and (2) an individual’s

interest in avoiding the disclosure of personal matters to the public or to the government.

372

The

“zones of privacy” implicated in the individual’s interest in independently making certain kinds of

decisions include matters related to marriage, procreation, contraception, family relationships, and

child rearing and education.

373

The second individual privacy interest that implicates constitutional privacy involves matters

outside the “zones of privacy.” To determine whether the constitutional right of privacy protects

particular information, the release of which implicates a person’s interest in avoiding the disclosure

364

See Open Records Decision Nos. 590 at 3 (1991), 523 at 3-4 (1989).

365

See Open Records Decision No. 600 at 9 (1992).

366

See Open Records Decision No. 545 at 3-5 (1990).

367

See, e.g., Open Records Decision Nos. 523 at 3-4 (1989), 385 at 2 (1983) (hospital’s accounts receivable showing

patients’ names and amounts they owed were subject to public disclosure).

368

See Open Records Decision Nos. 523 at 3-4 (1989) (credit reports and financial statements of individual veterans

participating in Veterans Land Program are protected from disclosure as “background” financial information), 373

at 3 (1983) (sources of income, salary, mortgage payments, assets, and credit history of applicant for housing

rehabilitation grant are protected by common-law privacy). But see Open Records Decision No. 620 at 4 (1993)

(background financial information regarding corporation is not protected by privacy).

369

Open Records Decision No. 373 at 4 (1983).

370

Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 678 (Tex. 1976), cert. denied, 430 U.S. 931 (1977).

371

Paul v. Davis, 424 U.S. 693, 712-13 (1976).

372

Open Records Decision No. 600 at 4-5 (1992); see also Whalen v. Roe, 429 U.S. 589, 599-600 (1977).

373

Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 678, 679 (Tex. 1976), cert. denied, 430 U.S. 931 (1977).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

of personal matters, the attorney general applies a balancing test that weighs the individual’s

interest in privacy against the public’s right to know the information. Although such a test might

appear more protective of privacy interests than the common-law test, the scope of information

considered private under the constitutional doctrine is far narrower than that under the common

law; the material must concern the “most intimate aspects of human affairs.”

374

c. Privacy Rights Lapse upon Death of the Subject

Common-law and constitutional privacy rights lapse upon the death of the subject.

375

Thus,

common-law and constitutional privacy can be asserted on behalf of family members of a deceased

individual only on the basis of their own privacy interests, not on the basis of the deceased

individual’s privacy.

376

If a governmental body believes that the release of information will

implicate the privacy interests of the family members of a deceased individual, the governmental

body should notify the deceased’s family of their right to submit comments to the attorney general

explaining how release will affect their privacy interests.

377

In this regard, governmental bodies

should also be aware of section 552.1085 of the Government Code, which pertains to the

confidentiality and release of sensitive crime scene images from closed criminal cases, as

discussed more fully in Part Two, Section II, Subsection J of this Handbook.

d. False-Light Privacy

The Texas Supreme Court has held false-light privacy is not an actionable tort in Texas.

378

addition, in Open Records Decision No. 579 (1990), the attorney general determined the statutory

predecessor to section 552.101 did not incorporate the common-law tort of false-light privacy,

overruling prior decisions to the contrary.

379

Thus, the truth or falsity of information is not relevant

under the Public Information Act.

e. Special Circumstances

Through formal decisions, the attorney general developed the “special circumstances” test under

common-law privacy to withhold certain information from disclosure.

380

“Special circumstances”

374

See Open Records Decision No. 455 at 5 (1987) (citing Ramie v. City of Hedwig Village, 765 F.2d 490, 492 (5th Cir.

1985)).

375

Moore v. Charles B. Pierce Film Enters., Inc., 589 S.W.2d 489, 491 (Tex. Civ. App.—Texarkana 1979, writ ref’d

n.r.e.); Justice v. Belo Broadcasting Corp., 472 F. Supp. 145, 146-47 (N.D. Tex. 1979) (“action for invasion of

privacy can be maintained only by a living individual whose privacy is invaded”) (quoting Restatement of Torts 2d);

Attorney General Opinion H-917 at 3-4 (1976); Open Records Decision No. 272 at 1 (1981); see United States v.

Amalgamated Life Ins. Co., 534 F. Supp. 676, 679 (S.D.N.Y. 1982) (constitutional right to privacy terminates upon

death and does not descend to heirs of deceased).

376

Moore v. Charles B. Pierce Film Enters., Inc., 589 S.W.2d 489, 491 (Tex. Civ. App.—Texarkana 1979, writ ref’d

n.r.e.); see also Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157 (2004); Justice v. Belo Broadcasting Corp.,

472 F. Supp. 145, 146-47 (N.D. Tex. 1979); United States v. Amalgamated Life Ins. Co., 534 F. Supp. 676, 679

(S.D.N.Y. 1982).

377

See Gov’t Code § 552.304 (any interested person may submit comments explaining why records should or should

not be released).

378

Cain v. Hearst Corp., 878 S.W.2d 577, 579 (Tex. 1994).

379

Open Records Decision No. 579 at 3-8 (1990).

380

Open Records Decision Nos. 169 (1977), 123 (1976).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

refers to a very narrow set of situations in which the release of information would likely cause

someone to face “an imminent threat of physical danger.”

381

Such “special circumstances” do not

include “a generalized and speculative fear of harassment or retribution.”

382

In Tex. Dep’t of Pub.

Safety v. Cox Tex. Newspapers, L.P. & Hearst Newspapers, L.P., the Third Court of Appeals

concluded it could not adopt the special circumstances analysis because it directly conflicts with

the two-part test articulated in Industrial Foundation, which is the sole criteria for determining

whether information is private under the common law.

383

The Texas Supreme Court, however,

reversed the court of appeals’ opinion.

384

The supreme court concluded freedom from physical

harm is an independent interest protected under law, untethered to the right of privacy. Thus, the

supreme court for the first time announced a common-law right of physical safety exception under

the Act. The supreme court adopted the standard enunciated in section 552.152 requiring the

withholding of information if disclosure would create a “substantial threat of physical harm.”

385

As articulated by the court, “deference must be afforded” law enforcement experts regarding the

probability of harm, but the new common-law exception requires more than vague assertions of

potential harm.

In Texas Department of Criminal Justice v. Levin, the supreme court again addressed the

common-law right of physical safety and determined that a substantial threat of physical harm can

apply in cases even when the potential target is unknown.

386

Furthermore, the court emphasized

that whether the requested information is protected by the common-law physical safety exception

turns on whether the evidence provided establishes that disclosure would create a substantial threat

of physical harm. The court also clarified that a “threat of physical harm” means physical harm to

a person and does not contemplate physical harm to property. Potential loss of business or

employment, harm to personal or real property, or other pecuniary considerations do not constitute

a substantial threat of physical harm that would protect public information from disclosure.

387

f. Dates of Birth of Members of the Public

Dates of birth of members of the public are contained in a wide variety of public records. The

attorney general has historically concluded that dates of birth of members of the public are not

protected under common-law privacy.

388

However, in Paxton v. City of Dallas,

389

the Third Court

of Appeals concluded public citizens’ dates of birth are protected by common-law privacy pursuant

to section 552.101 of the Government Code. In its opinion, the court of appeals looked to the

supreme court’s rationale in Texas Comptroller of Public Accounts v. Attorney General of

381

Open Records Decision No. 169 at 6 (1977).

382

Open Records Decision No. 169 at 6 (1997).

383

Tex. Dep’t of Pub. Safety v. Cox Tex. Newspapers, L.P. & Hearst Newspapers, L.P., 287 S.W.3d 390, 394-95

(Tex. App.—Austin 2009), rev’d, 343 S.W.3d 112 (Tex. 2011).

384

Tex. Dep’t of Pub. Safety v. Cox Tex. Newspapers, L.P. & Hearst Newspapers, L.P., 343 S.W.3d 112 (Tex. 2011).

385

See Gov’t Code § 552.152 (information in custody of governmental body that relates to employee or officer of

governmental body is excepted from disclosure if, under circumstances pertaining to employee or officer, disclosure

would subject employee or officer to substantial threat of physical harm).

386

Texas Department of Criminal Justice v. Levin, 572 S.W.3d 671, 679 (Tex. 2019).

387

Texas Department of Criminal Justice v. Levin, 572 S.W.3d 671, 679 (Tex. 2019).

388

See Open Records Decision No. 455 at 7 (1987).

389

Paxton v. City of Dallas, No. 03-13-00546-CV, 2015 WL 3394061, at *3 (Tex. App.—Austin May 22, 2015,

pet. denied) (mem. op.).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

Texas,

390

where the supreme court concluded public employees’ dates of birth are private under

section 552.102 of the Government Code because the employees’ privacy interest substantially

outweighed the negligible public interest in disclosure.

391

Based on Texas Comptroller, the court

of appeals concluded the privacy rights of public employees apply equally to public citizens, and

thus, public citizens’ dates of birth are also protected by common-law privacy. Consequently,

dates of birth of members of the public are generally protected under common-law privacy.

g. Informer’s Privilege

As interpreted by the attorney general, section 552.101 of the Government Code incorporates the

“informer’s privilege.” In Roviaro v. United States,

392

the United States Supreme Court explained

the rationale underlying the informer’s privilege:

What is usually referred to as the informer’s privilege is in reality the Government’s privilege

to withhold from disclosure the identity of persons who furnish information of violations of

law to officers charged with enforcement of that law. The purpose of the privilege is the

furtherance and protection of the public interest in effective law enforcement. The privilege

recognizes the obligation of citizens to communicate their knowledge of the commission of

crimes to law-enforcement officials and, by preserving their anonymity, encourages them to

perform that obligation.

393

In accordance with this policy, the attorney general has construed the informer’s privilege aspect

of section 552.101 as protecting the identity only of a person who (1) reports a violation or possible

violation of the law (2) to officials charged with the duty of enforcing the particular law. The

informer’s privilege facet of section 552.101 does not protect information about lawful conduct.

394

The privilege protects information reported to administrative agency officials having a duty to

enforce statutes with civil or criminal penalties, as well as to law enforcement officers.

395

The informer’s privilege protects not only the informer’s identity, but also any portion of the

informer’s statement that might tend to reveal the informer’s identity.

396

Of course, protecting an

informer’s identity and any identifying information under the informer’s privilege serves no

purpose if the accused already knows the informer’s identity. The attorney general has held that

the informer’s privilege does not apply in such a situation.

397

The informer’s privilege facet of section 552.101 of the Government Code serves to protect the

flow of information to a governmental body; it does not serve to protect a third person.

398

Thus,

390

Texas Comptroller of Public Accounts v. Attorney General of Texas, 354 S.W.3d 336 (Tex. 2010).

391

Texas Comptroller of Public Accounts v. Attorney General of Texas, 354 S.W.3d 336, 347-348 (Tex. 2010).

392

Roviaro v. United States, 353 U.S. 53 (1957).

393

Roviaro v. United States, 353 U.S. 53, 59 (1957) (emphasis added) (citations omitted).

394

See Open Records Decision Nos. 515 at 4-5 (1988), 191 at 1 (1978).

395

See Open Records Decision No. 515 at 2 (1988).

396

Open Records Decision No. 515 at 2 (1988).

397

Open Records Decision No. 208 at 1-2 (1978).

398

Open Records Decision No. 549 at 5 (1990).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

because it exists to protect the governmental body’s interest, this privilege, unlike other section

552.101 claims, may be waived by the governmental body.

399

B. Section 552.102: Confidentiality of Certain Personnel Information

Section 552.102 of the Government Code provides as follows:

(a) Information is excepted from [required public disclosure] if it is information in a

personnel file, the disclosure of which would constitute a clearly unwarranted

invasion of personal privacy, except that all information in the personnel file of an

employee of a governmental body is to be made available to that employee or the

employee’s designated representative as public information is made available under

this chapter. The exception to public disclosure created by this subsection is in

addition to any exception created by Section 552.024. Public access to personnel

information covered by Section 552.024 is denied to the extent provided by that

section.

(b) Information is excepted from [required public disclosure] if it is a transcript from an

institution of higher education maintained in the personnel file of a professional

public school employee, except that this section does not exempt from disclosure the

degree obtained or the curriculum on a transcript in the personnel file of the employee.

1. Dates of Birth of Public Employees

In 1983, the Third Court of Appeals in Hubert v. Harte-Hanks Tex. Newspapers, Inc.

400

ruled the

test to be applied under section 552.102 is the same as the test formulated by the Texas Supreme

Court in Industrial Foundation for applying the doctrine of common-law privacy as incorporated

by section 552.101. However, the Texas Supreme Court has held section 552.102(a) excepts from

disclosure only the dates of birth of state employees in the payroll database of the Texas

Comptroller of Public Accounts.

401

In light of the court’s determination, a governmental body

should not raise section 552.102(a) if it seeks to withhold its employees’ personnel information

under common-law privacy. The appropriate exception a governmental body should raise to

protect its employees’ personnel information under common-law privacy is section 552.101.

Section 552.102(a) only excepts from disclosure a public employee’s birth date that is contained

in records maintained by the governmental body in an employment context.

Section 552.102 applies to former as well as current public employees.

402

However, section

552.102 does not apply to applicants for employment.

403

In addition, section 552.102 applies only

to the personnel records of public employees, not the records of private employees.

399

Open Records Decision No. 549 at 6 (1990).

400

Hubert v. Harte-Hanks Tex. Newspapers, Inc., 652 S.W.2d 546, 550 (Tex. App.—Austin 1983, writ ref’d n.r.e.).

401

Tex. Comptroller of Pub. Accounts v. Attorney General of Tex., 354 S.W. 3d 336 (Tex. 2010).

402

Attorney General Opinion JM-229 at 2 (1984).

403

Open Records Decision No. 455 at 8 (1987).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

2. Transcripts of Professional Public School Employees

Section 552.102 also protects from required public disclosure most information on a transcript

from an institution of higher education maintained in the personnel files of professional public

school employees. Section 552.102(b) does not except from disclosure information on a transcript

detailing the degree obtained and the curriculum pursued.

404

Moreover, the attorney general has

interpreted section 552.102(b) to apply only to the transcripts of employees of public schools

providing public education under title 2 of the Education Code, not to employees of colleges and

universities providing higher education under title 3 of the Education Code.

405

C. Section 552.103: Litigation or Settlement Negotiations Involving the

State or a Political Subdivision

Section 552.103(a) of the Government Code, commonly referred to as the “litigation exception,”

excepts from required public disclosure:

[I]nformation relating to litigation of a civil or criminal nature to which the state or a

political subdivision is or may be a party or to which an officer or employee of the state

or a political subdivision, as a consequence of the person’s office or employment, is or

may be a party.

Section 552.103(a) was intended to prevent the use of the Act as a method of avoiding the rules of

discovery used in litigation.

406

This exception enables a governmental body to protect its position

in litigation “by forcing parties seeking information relating to that litigation to obtain it through

discovery” procedures.

407

Section 552.103 is a discretionary exception to disclosure and does not

make information confidential under the Act.

408

As such, section 552.103 does not make

information confidential for the purposes of section 552.022. Further, a governmental body waives

section 552.103 by failing to comply with the procedural requirements of section 552.301.

409

1. Governmental Body’s Burden

For information to be excepted from public disclosure by section 552.103(a), (1) litigation

involving the governmental body must be pending or reasonably anticipated and (2) the

information must relate to that litigation.

410

Therefore, a governmental body that seeks an attorney

general decision has the burden of clearly establishing both prongs of this test.

404

See Open Records Decision No. 526 (1989).

405

See, e.g., Open Records Letter Nos. 2013-11312 (2013), 2009-18243 (2009), 2008-10363 (2008), 2008-08137

(2008).

406

Thomas v. Cornyn, 71 S.W.3d 473, 487 (Tex. App.—Austin 2002, no pet.); Attorney General Opinion JM-1048 at

4 (1989).

407

Open Records Decision No. 551 at 3 (1990).

408

Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469, 475-76 (Tex. App.—Dallas 1999, no pet.); Open

Records Decision No. 665 at 2 n.5 (2000).

409

Open Records Decision Nos. 663 at 5 (1999), 542 at 4 (1990).

410

Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479, 481 (Tex. App.—Austin 1997, orig. proceeding);

Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

For purposes of section 552.103(a), a contested case under the Administrative Procedure Act

(APA), Government Code chapter 2001, constitutes “litigation.”

411

Questions remain regarding

whether administrative proceedings not subject to the APA may be considered litigation within

the meaning of section 552.103(a).

412

In determining whether an administrative proceeding should

be considered litigation for the purpose of section 552.103, the attorney general will consider the

following factors: (1) whether the dispute is, for all practical purposes, litigated in an

administrative proceeding where (a) discovery takes place, (b) evidence is heard, (c) factual

questions are resolved, and (d) a record is made; and (2) whether the proceeding is an adjudicative

forum of first jurisdiction.

413

Whether litigation is reasonably anticipated must be determined on a case-by-case basis.

414

Section 552.103(a) requires concrete evidence that litigation is realistically contemplated; it must

be more than conjecture.

415

The mere chance of litigation is not sufficient to trigger section

552.103(a).

416

The fact that a governmental body received a claim letter that it represents to the

attorney general to be in compliance with the notice requirements of the Texas Tort Claims Act,

Civil Practice and Remedies Code chapter 101, or applicable municipal ordinance, shows that

litigation is reasonably anticipated.

417

If a governmental body does not make this representation,

the claim letter is a factor the attorney general will consider in determining from the totality of the

circumstances presented whether the governmental body has established that litigation is

reasonably anticipated.

In previous open records decisions, the attorney general had concluded that a governmental body

could claim the litigation exception only if it established that withholding the information was

necessary to protect the governmental body’s strategy or position in litigation.

418

However, Open

Records Decision No. 551 (1990) significantly revised this test and concluded that the

governmental body need only establish the relatedness of the information to the subject matter of

the pending or anticipated litigation.

419

Therefore, to meet its burden under section 552.103(a) in

requesting an attorney general decision under the Act, the governmental body must identify the

issues in the litigation and explain how the information relates to those issues.

420

When the

litigation is actually pending, the governmental body should also provide the attorney general a

copy of the relevant pleadings.

2. Only Circumstances Existing at the Time of the Request

Subsection (c) of section 552.103 provides as follows:

411

Open Records Decision No. 588 at 7 (1991) (construing statutory predecessor to APA).

412

Open Records Decision No. 588 at 6-7 (1991).

413

See Open Records Decision No. 588 (1991).

414

Open Records Decision No. 452 at 4 (1986).

415

Attorney General Opinion JM-266 at 4 (1984); Open Records Decision Nos. 677 at 3 (2002), 518 at 5 (1989), 328

at 2 (1982).

416

Open Records Decision Nos. 677 at 3 (2002), 518 at 5 (1989), 397 at 2 (1983), 361 at 2 (1983), 359 at 2 (1983).

417

Open Records Decision No. 638 at 4 (1996).

418

See Open Records Decision Nos. 518 at 5 (1989), 474 at 5 (1987).

419

Open Records Decision No. 551 at 5 (1990).

420

Open Records Decision No. 551 at 5 (1990).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

Information relating to litigation involving a governmental body or an officer or

employee of a governmental body is excepted from disclosure under Subsection (a) only

if the litigation is pending or reasonably anticipated on the date that the requestor applies

to the officer for public information for access to or duplication of the information.

Consequently, in determining whether a governmental body has met its burden under section

552.103, the attorney general or a court can only consider the circumstances that existed on the

date the governmental body received the request for information, not information about

occurrences after the date of the request for information.

421

3. Temporal Nature of Section 552.103

Generally, when parties to litigation have inspected the records pursuant to court order, discovery,

or through any other means, section 552.103(a) may no longer be invoked.

422

In addition, once

litigation is neither reasonably anticipated nor pending, section 552.103(a) is no longer

applicable.

423

Once a governmental body has disclosed information relating to litigation, the

governmental body is ordinarily precluded from invoking section 552.103(a) to withhold the same

information. This is not the case, however, when a governmental body has disclosed information

to a co-defendant in litigation, where the governmental body believes in good faith that it has a

constitutional obligation to disclose it.

424

4. Scope of Section 552.103

Section 552.103 applies to information that relates to pending or reasonably anticipated litigation,

which is a very broad category of information.

425

The protection of section 552.103 may overlap

with that of other exceptions that encompass discovery privileges. However, the standard for

proving that section 552.103 applies to information is the same regardless of whether the

information is also subject to a discovery privilege.

For example, information excepted from disclosure under the litigation exception may also be

subject to the work product privilege.

426

However, the standard for proving that the litigation

exception applies is wholly distinct from the standard for proving that the work product privilege

applies.

427

The work product privilege is incorporated into the Act by section 552.111 of the

Government Code, not section 552.103.

428

If both section 552.103 and the work product privilege

could apply to requested information, the governmental body has the discretion to choose to assert

421

Open Records Decision No. 677 at 2-3 (2002).

422

Open Records Decision No. 597 (1991) (statutory predecessor to Gov’t Code § 552.103 did not except basic

information in offense report that was previously disclosed to defendant in criminal litigation); see Open Records

Decision Nos. 551 at 4 (1990), 511 at 5 (1988), 493 at 2 (1988), 349 (1982), 320 (1982).

423

Open Records Decision Nos. 551 at 4 (1990), 350 (1982); see Thomas v. El Paso County Cmty. Coll. Dist.,

68 S.W.3d 722, 726 (Tex. App.—El Paso 2001, no pet.).

424

Open Records Decision No. 454 at 3 (1986).

425

Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479, 483 (Tex. App.—Austin 1997, orig. proceeding).

426

See Open Records Decision No. 677 at 2 (2002).

427

See Open Records Decision No. 677 at 2 (2002).

428

See Open Records Decision No. 677 at 4 (2002).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

either or both of the exceptions.

429

However, the governmental body must meet distinct burdens

depending on the exception it is asserting.

430

Under section 552.103, the governmental body must

demonstrate that the requested information relates to pending or reasonably anticipated

litigation.

431

Under the work product privilege, the governmental body must demonstrate that the

requested information was created for trial or in anticipation of civil litigation by or for a party or

a party’s representative.

432

The 88th Legislature added subsection (d) to section 552.103. Pursuant to the newly enacted

section 552.103(d), section 552.103 does not apply to requested information if the information

relates to a general, primary, or special election, as those terms are defined by section 1.005 of the

Election Code; the information is in the possession of certain governmental bodies that administer

elections; and such governmental bodies are not a governmental body as described by section

552.003(1)(A)(I).

5. Duration of Section 552.103 for Criminal Litigation

Subsection (b) of section 552.103 provides as follows:

For purposes of this section, the state or a political subdivision is considered to be a party

to litigation of a criminal nature until the applicable statute of limitations has expired or

until the defendant has exhausted all appellate and postconviction remedies in state and

federal court.

The attorney general has determined that section 552.103(b) is not a separate exception to

disclosure; it merely provides a time frame within which the litigation exception excepts

information from disclosure.

433

D. Section 552.104: Information Relating to Competition or Bidding

Section 552.104 of the Government Code provides as follows:

(a) Information is excepted from the requirements of Section 552.021 if a governmental

body demonstrates that release of the information would harm its interests by

providing an advantage to a competitor or bidder in a particular ongoing

competitive situation or in a particular competitive situation where the

governmental body establishes the situation at issue is set to reoccur or there is a

specific and demonstrable intent to enter into the competitive situation again in the

future.

429

See Open Records Decision No. 677 at 2 (2002); Open Records Decision No. 647 at 3 (1996).

430

Open Records Decision No. 677 at 2 (2002).

431

See Open Records Decision No. 677 at 2 (2002); Gov’t Code § 552.103; Univ. of Tex. Law Sch. v. Tex. Legal Found.,

958 S.W.2d 479, 481 (Tex. App.—Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex.

App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.).

432

Open Records Decision No. 677 at 5-8 (2002).

433

Open Records Decision No. 518 at 5 (1989).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

(b) Except as provided by Subsection (c), the requirement of Section 552.022 that a

category of information listed under Section 552.022(a) is public information and

not excepted from required disclosure under this chapter unless expressly

confidential under law does not apply to information that is excepted from required

disclosure under this section.

relating to the receipt or expenditure of public or other funds by a governmental

body for a parade, concert, or other entertainment event paid for in whole or part

with public funds. A person, including a governmental body, may not include a

provision in a contract related to an event described by this subsection that

prohibits or would otherwise prevent the disclosure of information described by this

subsection. A contract provision that violates this subsection is void.

Until January 1, 2020, subsection (a) of section 552.104 of the Government Code excepted from

disclosure information that, if released, would give advantage to a competitor or bidder. The Texas

Supreme Court considered this version of section 552.104 and held the “test under section 552.104

is whether knowing another bidder’s [or competitor’s information] would be an advantage, not

whether it would be a decisive advantage.”

434

The supreme court further held this version of

section 552.104 protection is not limited to governmental bodies, and therefore a private third party

may also invoke the exception.

435

However, the 86th Legislature amended subsection (a) which

now specifies only governmental bodies will be permitted to raise subsection (a) and only for a

particular ongoing competitive situation and a competitive situation where the governmental body

can establish the situation is set to reoccur or there is a specific and demonstrable intent to enter

into the competitive situation again in the future.

436

The 86th Legislature also amended subsection (b) of section 552.104 and added subsection (c) to

section 552.104. Subsection (b) provides that, except as provided by subsection (c), information

excepted from disclosure under section 552.104 may be withheld even if it falls within one of the

categories of information listed in section 552.022(a) of the Government Code.

437

Subsection (c)

provides that subsection (b) does not apply to information that falls within one of the categories of

information listed in section 552.022(a) if the information relates to the receipt or expenditure of

public or other funds by a governmental body for a parade, concert, or other entertainment event

paid for in whole or part with public funds.

438

Subsection (c) also provides that a person or

governmental body may not include a contract provision that would prohibit or otherwise prevent

the disclosure of information described by this subsection, and a contract provision that violates

this subsection is void.

439

434

Boeing Co. v. Paxton, 466 S.W. 3d 831, 841 (Tex. 2015).

435

Boeing Co. v. Paxton, 466 S.W. 3d 831, 841 (Tex. 2015).

436

Gov’t Code § 552.104(a).

437

Gov’t Code § 552.104(b).

438

Gov’t Code § 552.104(c).

439

Gov’t Code § 552.104(c).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

E. Section 552.105: Information Related to Location or Price of Property

Section 552.105 of the Government Code excepts from required public disclosure information

relating to:

(1) the location of real or personal property for a public purpose prior to public

announcement of the project; or

(2) appraisals or purchase price of real or personal property for a public purpose prior

to the formal award of contracts for the property.

This exception protects a governmental body’s planning and negotiating position with respect to

particular real or personal property transactions,

440

and its protection is therefore limited in

duration. The protection of section 552.105(1) expires upon the public announcement of the

project for which the property is being acquired, while the protection of section 552.105(2) expires

upon the governmental body’s acquisition of the property in question.

441

Because section

552.105(2) extends to “information relating to” the appraisals and purchase price of property, it

may protect more than just the purchase price or appraisal of a specific piece of property.

442

For

example, the attorney general has held that appraisal information about parcels of land acquired in

advance of others to be acquired for the same project could be withheld where this information

would harm the governmental body’s negotiating position with respect to the remaining parcels.

443

Similarly, the location of property to be purchased may be withheld under section 552.105(2) if

releasing the location could affect the purchase price of the property. The exception for

information pertaining to “purchase price” in section 552.105(2) also applies to information

pertaining to a lease price.

444

When a governmental body has made a good faith determination that the release of information

would damage its negotiating position with respect to the acquisition of property, the attorney

general in issuing a ruling under the Act will accept that determination, unless the records or other

information show the contrary as a matter of law.

445

F. Section 552.106: Certain Legislative Documents

Section 552.106 of the Government Code provides as follows:

(a) A draft or working paper involved in the preparation of proposed legislation is

excepted from [required public disclosure].

440

Open Records Decision No. 357 at 3 (1982).

441

Gov’t Code § 552.105; see Open Records Decision No. 222 at 1-2 (1979).

442

See Heidenheimer v. Tex. Dep’t of Transp., No. 03-02-00187-CV, 2003 WL 124248, at *2 (Tex. App.—Austin

Jan. 16, 2003, pet. denied) (mem. op., not designated for publication); Open Records Decision No. 564 (1990)

(construing statutory predecessor to Gov’t Code § 552.105).

443

Open Records Decision No. 564 (1990).

444

Open Records Decision No. 348 (1982).

445

Open Records Decision No. 564 at 2 (1990).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

(b) An internal bill analysis or working paper prepared by the governor’s office for the

purpose of evaluating proposed legislation is excepted from [required public

disclosure].

Section 552.106(a) protects documents concerning the deliberative processes of a governmental

body relevant to the enactment of legislation.

446

The purpose of this exception is to encourage

frank discussion on policy matters between the subordinates or advisors of a legislative body and

the legislative body.

447

However, section 552.106(a) does not protect purely factual material.

448

If a draft or working paper contains purely factual material that can be disclosed without revealing

protected judgments or recommendations, such factual material must be disclosed unless another

exception to disclosure applies.

449

Section 552.106(a) protects drafts of legislation that reflect

policy judgments, recommendations, and proposals prepared by persons with some official

responsibility to prepare them for the legislative body.

450

In addition to documents actually created

by the legislature, the attorney general has construed the term “legislation” to include certain

documents created by a city or a state agency.

451

The following open records decisions have held certain information to be excepted from required

public disclosure under the statutory predecessor to section 552.106(a):

Open Records Decision No. 460 (1987) — a city manager’s proposed budget prior to its

presentation to the city council, where the city charter directed the city manager to prepare

such a proposal and the proposal was comprised of recommendations rather than facts;

Open Records Decision No. 367 (1983) — recommendations of the executive committee of

the Texas State Board of Public Accountancy for amendments to the Public Accountancy Act;

and

Open Records Decision No. 248 (1980) — drafts of a municipal ordinance and resolution that

were prepared by a city staff study group for discussion purposes and that reflected policy

judgments, recommendations, and proposals.

The following open records decisions have held information not to be excepted from required

public disclosure under the statutory predecessor to section 552.106(a):

Open Records Decision No. 482 (1987) — drafts and working papers incorporated into

materials that are disclosed to the public;

Open Records Decision No. 429 (1985) — documents relating to the Texas Turnpike

Authority’s efforts to persuade various cities to enact ordinances, as the agency had no official

authority to do so and acted merely as an interested third party to the legislative process; and

446

See Open Records Decision No. 429 at 5 (1985).

447

Open Records Decision No. 460 at 2 (1987).

448

Open Records Decision Nos. 460 at 2 (1987), 344 at 3-4 (1982), 197 at 3 (1978), 140 at 4 (1976).

449

Open Records Decision No. 460 at 2 (1987).

450

Open Records Decision No. 429 at 5 (1985).

451

See Open Records Decision Nos. 460 at 2-3 (1987), 367 (1983), 248 (1980).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

Open Records Decision No. 344 (1982) — certain information relating to the State Property

Tax Board’s biennial study of taxable property in each school district, for the reason that the

nature of the requested information compiled by the board was factual.

Section 552.106(b) excepts from disclosure “[a]n internal bill analysis or working paper prepared

by the governor’s office for the purpose of evaluating proposed legislation[.]”

452

The purpose of

section 552.106(b) is also to encourage frank discussion on policy matters; however, this section

applies to information created or used by employees of the governor’s office for the purpose of

evaluating proposed legislation. Furthermore, like section 552.106(a), section 552.106(b) only

protects policy judgments, advice, opinions, and recommendations involved in the preparation or

evaluation of proposed legislation; it does not except purely factual information from public

disclosure.

453

Sections 552.106 and 552.111 were designed to achieve the same goals in different contexts.

454

The purpose of section 552.111 is “to protect from public disclosure advice and opinions on policy

matters and to encourage frank and open discussion within the agency in connection with its

decision-making processes.”

455

Because the policies and objectives of each exception are the same,

some decisions applying section 552.111 may be helpful in determining how section 552.106

should be construed.

456

Although the provisions protect the same type of information, section

552.106 is narrower in scope because it applies specifically to the legislative process.

457

G. Section 552.107: Certain Legal Matters

Section 552.107 of the Government Code states that information is excepted from required public

disclosure if:

(1) it is information that the attorney general or an attorney of a political subdivision

is prohibited from disclosing because of a duty to the client under the Texas Rules

of Evidence or the Texas Disciplinary Rules of Professional Conduct; or

(2) a court by order has prohibited disclosure of the information.

This section has two distinct aspects: subsection (1) protects information within the attorney-client

privilege, and subsection (2) protects information a court has ordered to be kept confidential.

452

Gov’t Code § 552.106(b).

453

See House Comm. on State Affairs, Public Hearing, May 6, 1997, H.B. 3157, 75

Leg. (1997) (protection given to

legislative documents under Gov’t Code § 552.106(a) is comparable with protection given to governor’s legislative

documents under Gov’t Code § 552.106(b)).

454

Open Records Decision No. 482 at 9 (1987).

455

Austin v. City of San Antonio, 630 S.W.2d 391, 394 (Tex. App.—San Antonio 1982, writ ref’d n.r.e.); Open Records

Decision No. 222 (1979).

456

Open Records Decision No. 482 at 9 (1987). But see Open Records Decision No. 615 at 5 (1993) (agency’s

policymaking functions protected by statutory predecessor to section 552.111 do not encompass routine internal

administrative and personnel matters).

457

See Open Records Decision Nos. 460 at 3 (1987), 429 at 5 (1985).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

1. Information Within the Attorney-Client Privilege

When seeking to withhold information not subject to section 552.022 of the Government Code

based on the attorney-client privilege, a governmental body should assert section 552.107(1).

458

In Open Records Decision No. 676 (2002), the attorney general interpreted section 552.107 to

protect the same information as protected under Texas Rule of Evidence 503.

459

Thus, the standard

for demonstrating the attorney-client privilege under the Act is the same as the standard used in

discovery under rule 503. In meeting this standard, a governmental body bears the burden of

providing the necessary facts to demonstrate the elements of the attorney-client privilege.

460

First, the governmental body must demonstrate that the information constitutes or documents a

communication.

461

Second, the communication must have been made “to facilitate the rendition

of professional legal services” to the client governmental body.

462

Third, the governmental body

must demonstrate that the communication was between or among clients, client representatives,

lawyers, and lawyer representatives.

463

Fourth, the governmental body must show that the

communication was confidential; that is, the communication was “not intended to be disclosed to

third persons other than those: to (A) whom disclosure is made to furtherance the rendition of

professional legal services to the clients; or (B) reasonably necessary to transmit the

communication.”

464

Finally, because the client can waive the attorney-client privilege at any time,

the governmental body must demonstrate that the communication has remained confidential.

465

The privilege will not apply if the attorney or the attorney’s representative was acting in a capacity

“other than that of providing or facilitating professional legal services to the client.”

466

Harlandale Indep. Sch. District v. Cornyn,

467

the Third Court of Appeals addressed whether an

attorney was working in her capacity as an attorney when she conducted a factual investigation,

thus rendering factual information from the attorney’s report excepted from public disclosure

under section 552.107(1) of the Government Code. There, the Harlandale Independent School

District hired an attorney to conduct an investigation into an alleged assault and render a legal

analysis of the situation upon completion of the investigation.

468

The attorney produced a report

that included a summary of the factual investigation as well as legal opinions.

469

While the court

of appeals held the attorney-client privilege does not apply to communications between an attorney

458

Open Records Decision Nos. 676 at 1-3 (2002), 574 at 2 (1990).

459

Open Records Decision No. 676 at 4 (2002).

460

Open Records Decision No. 676 at 6 (2002).

461

Open Records Decision No. 676 at 7 (2002).

462

Open Records Decision No. 676 at 7 (2002); TEX. R. EVID. 503(b)(1).

463

TEX. R. EVID. 503(b)(1)(A)-(E); Open Records Decision No. 676 at 8-10 (2002).

464

TEX. R. EVID. 503(a)(5); Open Records Decision No. 676 at 10 (2002); see Osborne v. Johnson, 954 S.W.2d 180,

184 (Tex. App.—Waco 1997, orig. proceeding) (whether communication was confidential depends on intent of

parties involved at time information was communicated).

465

Open Records Decision No. 676 at 10-11 (2002).

466

Open Records Decision No. 676 at 7 (2002); see also In re Tex. Farmers Ins. Exch., 990 S.W.2d 337, 340 (Tex.

App.—Texarkana 1999, orig. proceeding) (attorney-client privilege does not apply if attorney acting in capacity

other than that of attorney).

467

Harlandale Indep. Sch. Dist. v. Cornyn, 25 S.W.3d 328 (Tex. App.—Austin 2000, pet. denied).

468

Harlandale Indep. Sch. Dist. v. Cornyn, 25 S.W.3d 328, 330 (Tex. App.—Austin 2000, pet. denied).

469

Harlandale Indep. Sch. Dist. v. Cornyn, 25 S.W.3d 328, 330-331 (Tex. App.—Austin 2000, pet. denied).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

and a client “when the attorney is employed in a non-legal capacity, for instance as an accountant,

escrow agency, negotiator, or notary public,” the court also held the attorney in that case was acting

in a legal capacity in gathering the facts because the ultimate purpose of her investigation was the

rendition of legal advice.

470

Thus, when an attorney is hired to conduct an investigation in his or

her capacity as an attorney, a report produced by an attorney containing both factual information

and legal advice is excepted from disclosure in its entirety under section 552.107(1).

If a governmental body demonstrates that any portion of a communication is protected under the

attorney-client privilege, then the entire communication will be generally excepted from disclosure

under section 552.107.

471

However, section 552.107 does not apply to a non-privileged

communication within a privileged communication, if the non-privileged communication is

maintained by the governmental body separate and apart from the otherwise privileged

communication. For example, if an e-mail string includes an e-mail or attachment that was

received from or sent to a non-privileged party, and the e-mail or attachment that was received

from or sent to the non-privileged party is separately responsive to the request for information

when it is removed from the e-mail string and stands alone, the governmental body may not

withhold the non-privileged e-mail or attachment under section 552.107.

472

The scope of the attorney-client privilege and the work product privilege, which is encompassed

by section 552.111 of the Government Code, are often confused. The attorney-client privilege

covers certain communications made in furtherance of the rendition of professional legal services,

while the work product privilege covers work prepared for the client’s lawsuit.

473

For materials

to be covered by the attorney-client privilege, they need not be prepared for litigation.

a. Attorney Fee Bills

Attorney fee bills are subject to section 552.022(a)(16) and thus may not be withheld under

section 552.107. Nonetheless, information contained in attorney fee bills may be withheld if it is

protected under the attorney-client privilege as defined in rule 503 of the Texas Rules of Evidence,

or is made confidential under the Act or other law for the purpose of section 552.022.

474

Because

the express language of section 552.022(a)(16) provides “information that is in a bill for attorney’s

fees” is not excepted from disclosure unless it is confidential under the Act or other law, the

entirety of an attorney fee bill cannot be withheld on the basis that it contains or is an

attorney-client communication.

475

470

Harlandale Indep. Sch. Dist. v. Cornyn, 25 S.W.3d 328, 332-35 (Tex. App.—Austin 2000, pet. denied).

471

See Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996) (privilege extends to entire communication, including facts

contained therein); In re Valero Energy Corp., 973 S.W.2d 453, 457 (Tex. App.—Houston [14th Dist.] 1998, orig.

proceeding) (privilege attaches to complete communication, including factual information).

472

See, e.g., Open Records Letter Nos. 2013-12509 (2013), 2013-12111 (2013).

473

See Nat’l Tank Co. v. Brotherton, 851 S.W.2d 193, 200 (Tex. 1993); Owens-Corning Fiberglas Corp. v. Caldwell,

818 S.W.2d 749, 750 (Tex. 1991).

474

See In re City of Georgetown, 53 S.W.3d 328, 337 (Tex. 2001); Open Records Decision No. 676 at 5-6 (2002).

475

Gov’t Code §552.022(a)(16) (emphasis added); see also Open Records Decision Nos. 676 at 5 (2002) (attorney fee

bill cannot be withheld in entirety on basis it contains or is attorney-client communication pursuant to language in

section 552.022(a)(16)), 589 (1991) (information in attorney fee bill excepted only to extent information reveals

client confidences or attorney’s legal advice).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

b. Information a Private Attorney Holds for the Governmental Body

If a governmental body engages a private attorney to perform legal services, information in the

attorney’s possession relating to the legal services is subject to the Public Information Act.

476

c. Waiver of the Attorney-Client Privilege

Texas Rule of Evidence 511 provides that, except where a disclosure is itself privileged, the

attorney-client privilege is waived if a holder of the privilege voluntarily discloses or consents to

disclosure of any significant part of the matter.

477

In Paxton v. City of Dallas, the Texas Supreme Court determined (1) the failure of a governmental

body to timely seek a ruling from the OAG to withhold information subject to the attorney-client

privilege does not constitute a waiver of the privilege, and (2) the attorney-client privilege

constitutes a compelling reason to withhold information under section 552.302 of the Government

Code.

478

2. Information Protected by Court Order

Section 552.107(2) excepts from disclosure information a court has ordered a governmental body

to keep confidential. Prior to the amendment of section 552.022 in 1999, governmental bodies

often relied on section 552.107(2) to withhold from disclosure the terms of a settlement agreement

if a court had issued an order expressly prohibiting the parties to the settlement agreement or their

attorneys from disclosing the terms of the agreement.

479

Under the current version of section

552.022, however, a state court may not order a governmental body or an officer for public

information to withhold from public disclosure any category of information listed in section

552.022 unless the information is confidential under the Act or other law.

480

A settlement

agreement to which a governmental body is a party is one category of information listed in section

552.022.

481

With the exception of information subject to section 552.022, section 552.107(2) excepts from

disclosure information that is subject to a protective order during the pendency of the litigation.

482

As with any other exception to disclosure, a governmental body must request a ruling from the

attorney general if it wishes to withhold information under section 552.107(2) and should submit

a copy of the protective order for the attorney general’s review. A governmental body may not

476

Gov’t Code § 552.002(a)(2), (a-1) (definition of public information includes information pertaining to official

business of governmental body that was created by, transmitted to, received by, or is maintained by person or entity

performing official business on behalf of governmental body); Open Records Decision Nos. 663 at 7-8 (1999), 499

at 5 (1988), 462 at 7 (1987).

477

TEX. R. EVID. 511(a)(1); see also Jordan v. Court of Appeals for Fourth Supreme Judicial Dist., 701 S.W.2d 644,

649 (Tex. 1985) (if matter for which privilege is sought has been disclosed to third party, thus raising question of

waiver of privilege, party asserting privilege has burden of proving no waiver has occurred).

478

Paxton v. City of Dallas, 509 S.W.3d 247, 262, 271 (Tex. 2017).

479

See Open Records Decision No. 415 at 2 (1984).

480

Gov’t Code § 552.022(b).

481

Gov’t Code § 552.022(a)(18).

482

Open Records Decision No. 143 at 1 (1976).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

use a protective order as grounds for the exception once the court has dismissed the suit from

which it arose.

483

H. Section 552.108: Certain Law Enforcement, Corrections, and

Prosecutorial Information

Section 552.108 of the Government Code, sometimes referred to as the “law enforcement”

exception, provides as follows:

(a) Information held by a law enforcement agency or prosecutor that deals with the

detection, investigation, or prosecution of crime is excepted from the requirements

of Section 552.021 if:

(1) release of the information would interfere with the detection, investigation, or

prosecution of crime;

(2) it is information that deals with the detection, investigation, or prosecution of

crime only in relation to an investigation that did not result in conviction or

deferred adjudication;

(3) it is information relating to a threat against a peace officer or detention officer

collected or disseminated under Section 411.048; or

(4) it is information that:

(A) is prepared by an attorney representing the state in anticipation of or in

the course of preparing for criminal litigation; or

(B) reflects the mental impressions or legal reasoning of an attorney

representing the state.

(b) An internal record or notation of a law enforcement agency or prosecutor that is

maintained for internal use in matters relating to law enforcement or prosecution

is excepted from the requirements of Section 552.021 if:

(1) release of the internal record or notation would interfere with law enforcement

or prosecution;

(2) the internal record or notation relates to law enforcement only in relation to

an investigation that did not result in conviction or deferred adjudication; or

(3) the internal record or notation:

(A) is prepared by an attorney representing the state in anticipation of or in

the course of preparing for criminal litigation; or

483

Open Records Decision No. 309 at 5 (1982).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

(B) reflects the mental impressions or legal reasoning of an attorney

representing the state.

that is basic information about an arrested person, an arrest, or a crime. A

governmental body shall promptly release basic information responsive to a request

made under this chapter unless the governmental body seeks to withhold the

information as provided by another provision of this chapter, and regardless of

whether the governmental body requests an attorney general under Subchapter G

regarding other information subject to the request.

(d) Notwithstanding other law, a prosecutor may permit a person to view the following

evidence of a crime that resulted in the death of a person and that occurred in the

prosecutor's jurisdiction:

(1) a medical examiner’s report, if the person viewing the report is a family

member of the person who is the subject of the report and the person who is

the subject of the report was a victim of the crime; and

(2) video evidence of the crime, if the person viewing the video is a victim of the

crime or a family member of a victim of the crime.

(d) The exception to disclosure provided by Subsection (a)(2) does not apply to

information, records, or notations if:

(1) a person who is described by or depicted in the information, record, or

notation, other than a peace officer, is deceased or incapacitated; or

(2) each person who is described by or depicted in the information, record, or

notation, other than a person who is deceased or incapacitated, consents to the

release of the information, record, or notation.

(e) A person permitted to view a medical examiner’s report or video evidence under

Subsection (d) may not duplicate, record, capture, or otherwise memorialize the

information. A prosecutor may require a person to sign a confidentiality agreement

before permitting the person to view the information.

(f) A permitted viewing of a medical examiner’s report or video evidence under

Subsection (d) is not a voluntary disclosure of information for purposes of Section

552.007(b). A governmental body, by providing information under Subsection (d)

that is confidential or otherwise excepted from required disclosure under law, does

not waive or affect the confidentiality of the information for purposes of state or

federal law or waive the right to assert exceptions to required disclosure of the

information in the future.

(g) Subsection (d) does not affect:

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

(1) the right of a person to obtain a medical examiner’s report or video evidence

of a crime from a governmental body under other law;

(2) the procedures under which the information is obtained under other law; or

(3) the use that may be made of the information obtained under other law.

(h) In this section:

(1) “Family member” means a person related to a victim of a crime within the

first degree of consanguinity or affinity.

(2) “Medical examiner's report” means a report and the contents of such a report

created by a medical examiner under Article 49.25, Code of Criminal

Procedure, including an autopsy report and toxicology report. The term does

not include a photograph or medical image contained in a report.

(3) “Victim” means an individual who suffered personal injury or death as a

result of criminal conduct.

1. The Meaning of “Law Enforcement Agency” and the Applicability of Section 552.108

to Other Units of Government

Section 552.108 generally applies to the records created by an agency, or a portion of an agency,

whose primary function is to investigate crimes and enforce the criminal laws.

484

It generally does

not apply to the records created by an agency whose chief function is essentially regulatory in

nature.

485

For example, an agency that employs peace officers to investigate crime and enforce

criminal laws may claim that section 552.108 excepts portions of its records from required public

disclosure. On the other hand, an agency involved primarily in licensing certain professionals or

regulating a particular industry generally may not use section 552.108 to except its records from

disclosure.

486

An agency that investigates both civil and criminal violations of law but lacks

criminal enforcement authority is not a law enforcement agency for purposes of section 552.108.

487

Entities that have been found to be law enforcement agencies for purposes of section 552.108

include: the Texas Department of Criminal Justice (formerly the Texas Department of

Corrections);

488

the Texas National Guard;

489

the Attorney General’s Organized Crime Task

484

See Open Records Decision Nos. 493 at 2 (1988), 287 at 2 (1981).

485

Open Records Decision No. 199 (1978).

486

See Open Records Decision No. 199 (1978). But see Attorney General Opinion MW-575 at 1-2 (1982) (former

Gov’t Code § 552.108 may apply to information gathered by administrative agency when its release would unduly

interfere with law enforcement); Open Records Decision No. 493 at 2 (1988).

487

Open Records Letter No. 99-1907 (1999) (Medicaid Program Integrity Division of Health and Human Services

Commission investigates both civil and criminal violations of Medicaid fraud laws and refers criminal violations to

attorney general for criminal enforcement).

488

Attorney General Opinion MW-381 at 3 (1981); Open Records Decision No. 413 at 1 (1984).

489

Open Records Decision No. 320 at 1 (1982).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

Force;

490

a fire department’s arson investigation division;

491

the El Paso Special Commission on

Crime;

492

the Texas Lottery Commission;

493

the Texas Alcoholic Beverage Commission’s

Enforcement Division;

494

and the Texas Comptroller of Public Accounts for purposes of enforcing

the Tax Code.

495

The following entities are not law enforcement agencies for purposes of section 552.108: the Texas

Department of Agriculture;

496

the Texas Board of Private Investigators and Private Security

Agencies;

497

the Texas Board of Pharmacy;

498

and the Texas Real Estate Commission.

499

An agency that does not qualify as a law enforcement agency may, under limited circumstances,

claim that section 552.108 excepts records in its possession from required public disclosure. For

example, records that otherwise qualify for the section 552.108 exception, such as documentary

evidence in a police file on a pending case, do not necessarily lose that status while in the custody

of an agency not directly involved with law enforcement.

500

Where a non-law enforcement agency

has in its custody information that would otherwise qualify for exception under section 552.108 as

information relating to the pending case of a law enforcement agency, the custodian of the records

may withhold the information if it provides the attorney general with a demonstration that the

information relates to the pending case and a representation from the law enforcement entity that

it wishes to withhold the information.

501

Similarly, in construing the statutory predecessor to section 552.108, the attorney general

concluded that if an investigation by an administrative agency reveals possible criminal conduct

the agency intends to report to the appropriate law enforcement agency, then section 552.108 will

apply to the information gathered by the administrative agency if the information relates to an open

investigation or if the release would interfere with law enforcement.

502

490

Open Records Decision Nos. 211 at 3 (1978), 126 at 5 (1976).

491

Open Records Decision No. 127 at 8 (1976).

492

Open Records Decision No. 129 (1976).

493

See Gov’t Code §§ 466.019(b) (Lottery Commission is authorized to enforce violations of lottery laws and

rules), .020(a)-(b) (Lottery Commission is authorized to maintain department of security staffed by commissioned

peace officers or investigators).

494

See Alco. Bev. Code §§ 5.14 (Texas Alcoholic Beverage Commission may commission inspectors with police

powers to enforce Alcoholic Beverage Code), .31 (powers and duties of commission), .36 (commission shall

investigate violations of Alcoholic Beverage Code and other laws relating to alcoholic beverages), .361 (commission

shall develop risk-based approach to enforcement).

495

A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 679 (Tex. 1995) (section 552.108 excepts records generated by

comptroller in process of enforcing tax laws).

496

Attorney General Opinion MW-575 at 1 (1982).

497

Open Records Decision No. 199 (1978).

498

Open Records Decision No. 493 (1988).

499

Open Records Decision No. 80 at 2 (1975).

500

Open Records Decision Nos. 272 at 1-2 (1981), 183 at 5 (1978).

501

Open Records Decision No. 474 at 4-5 (1987).

502

See Attorney General Opinion MW-575 at 1-2 (1982) (construing statutory predecessor); Open Records Decision

No. 493 at 2 (1988) (same).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

2. Application of Section 552.108

Section 552.108 excepts from required public disclosure four categories of information:

1) information the release of which would interfere with the detection, investigation, or

prosecution of crime or law enforcement;

2) information relating to an investigation that did not result in a conviction or deferred

adjudication;

3) information relating to a threat against a peace officer or detention officer collected or

disseminated under section 411.048; and

4) information that is prepared by a prosecutor in anticipation or in preparation for criminal

litigation or that reflects the prosecutor’s mental impressions or legal reasoning.

a. Information Relating to the Detection, Investigation, or Prosecution of Crime

In order to establish the applicability of sections 552.108(a)(1) and 552.108(b)(1) to a requested

criminal file, a law enforcement agency should inform the attorney general how and why release

of the information would interfere with law enforcement or prosecution.

503

The law enforcement

agency must inform our office of the status of the case the information concerns. Information

relating to a pending criminal investigation or prosecution is one example of information that is

excepted under sections 552.108(a)(1) and 552.108(b)(1) because release of such information

would presumptively interfere with the detection, investigation, or prosecution of crime.

504

Section 552.108(b)(1) excepts from disclosure the internal records and notations of law

enforcement agencies and prosecutors when their release would interfere with law enforcement or

crime prevention.

505

The attorney general has permitted the Department of Public Safety to

withhold a list of stations that issue drivers’ licenses and the corresponding code that designates

each station on the drivers’ licenses issued by that station.

506

Although the information did not on

its face suggest that its release would interfere with law enforcement, the Department of Public

Safety explained that the codes are used by officers to determine whether a license is forged and

argued that releasing the list of stations and codes would reduce the value of the codes for detecting

forged drivers’ licenses.

507

The attorney general previously held that release of routine

investigative procedures, techniques that are commonly known, and routine personnel information

would not interfere with law enforcement and crime prevention.

508

503

See Ex parte Pruitt, 551 S.W.2d 706, 710 (Tex. 1977).

504

See Houston Chronicle Publ’g Co. v. City of Houston, 531 S.W.2d 177, 184-85 (Tex. Civ. App.—Houston [14th

Dist.] 1975) (court delineates law enforcement interests that are present in active cases), writ ref’d n.r.e. per curiam,

536 S.W.2d 559 (Tex. 1976).

505

See Open Records Decision No. 531 at 2 (1989) (quoting Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977)).

506

Open Records Decision No. 341 at 2 (1982).

507

Open Records Decision No. 341 at 1-2 (1982).

508

See Open Records Decision Nos. 216 at 4 (1978), 133 at 3 (1976).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

The Texas Supreme Court has addressed the applicability of former section 552.108 to the internal

records and notations of the comptroller’s office. In A & T Consultants, Inc. v. Sharp,

509

the

supreme court stated that former section 552.108 has the same scope as section 552(b)(7) of the

federal Freedom of Information Act,

510

which prevents the disclosure of investigatory records that

would reveal law enforcement methods, techniques, and strategies, including those the Internal

Revenue Service uses to collect federal taxes.

511

Some information, such as the date a taxpayer’s

name appeared on a generation list and the assignment date and codes in audits, is excepted from

disclosure by former section 552.108 because it reflects the internal deliberations within the

comptroller’s office and would interfere with the comptroller’s office’s law enforcement efforts.

512

For audits that have been concluded, there is little harm in releasing some of this information.

513

The audit method and audit group remain excepted from disclosure before, during, and after the

comptroller undertakes a taxpayer audit under former section 552.108.

514

The attorney general also addressed whether internal records and notations could be withheld

under the statutory predecessor to section 552.108 in the following decisions:

Open Records Decision No. 531 (1989) — detailed guidelines regarding a police department’s

use of force policy may be withheld, but not those portions of the procedures that restate

generally known common-law rules, constitutional limitations, or Penal Code provisions; the

release of the detailed guidelines would impair an officer’s ability to arrest a suspect and would

place individuals at an advantage in confrontations with police;

Open Records Decision No. 508 (1988) — the dates on which specific prisoners are to be

transferred from a county jail to the Texas Department of Criminal Justice (formerly the Texas

Department of Corrections) may be withheld prior to the transfer because release of this

information could impair security, but these dates may not be withheld after the prisoner is

transferred because the public has a legitimate interest in the information;

Open Records Decision No. 506 (1988) — the cellular telephone numbers assigned to county

officials and employees with specific law enforcement duties may be withheld;

Open Records Decision No. 413 (1984) — a sketch showing the security measures that the

Texas Department of Criminal Justice plans to use for its next scheduled execution may be

withheld because its release may make crowd control unreasonably difficult;

Open Records Decision No. 394 (1983) — except for information regarding juveniles, a jail

roster may not be withheld; a jail roster is an internal record that reveals information

specifically made public in other forms, such as the names of persons arrested;

509

A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668 (Tex. 1995).

510

5 U.S.C. § 552(b)(7).

511

A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 678 (Tex. 1995).

512

A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 679-81 (Tex. 1995).

513

A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 678 (Tex. 1995) (pre-audit generation and assignment dates not

excepted under Gov’t Code § 552.108 once audit completed).

514

A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 679 (Tex. 1995).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

100

Open Records Decision No. 369 (1983) — notes recording a prosecutor’s subjective comments

about former jurors may be withheld; releasing these comments would tend to reveal future

prosecutorial strategy; and

Open Records Decision Nos. 211 (1978), 143 (1976) — information that would reveal the

identities of undercover agents or where employees travel on sensitive assignments may be

withheld.

b. Information Relating to Concluded Cases

With regard to the second category of information, information relating to a criminal investigation

or prosecution that ended in a result other than a conviction or deferred adjudication may be

withheld under sections 552.108(a)(2) and 552.108(b)(2). Sections 552.108(a)(2) and

552.108(b)(2) cannot apply to an open criminal file because the investigation or prosecution for

such a file has not concluded. If a case is still open and pending, either at the investigative or

prosecution level, the sections that can apply are sections 552.108(a)(1) and 552.108(b)(1), not

sections 552.108(a)(2) and 552.108(b)(2).

The 88th Legislature added subsection (d) to section 552.108. Pursuant to the newly enacted

section 552.108(d), section 552.108(a)(2) is not applicable to information, records, or notations if

a person described or depicted by such information, other than a peace officer, is deceased or

incapacitated, or if each person who is described or depicted in such information, other than the

deceased or incapicated, consents to disclosure of such information.

To establish the applicability of sections 552.108(a)(2) and 552.108(b)(2), a governmental body

must demonstrate that the requested information relates to a criminal investigation that concluded

in a final result other than a conviction or deferred adjudication.

c. Information Relating to a Threat Against a Peace Officer or Detention Officer

The third category of information protected under section 552.108(a)(3) consists of information

relating to a threat against a peace officer or detention officer that is collected or disseminated

under section 411.048 of the Government Code. Under section 411.048, the Department of Public

Safety’s Bureau of Identification and Records is required to create and maintain an index for the

purpose of collecting and disseminating information regarding threats of serious bodily injury or

death made against a peace officer.

515

The attorney general determined in an informal letter ruling

that information provided to the Bureau of Identification and Records for potential inclusion in its

database regarding threats made against a peace officer was excepted from disclosure under

section 552.108(a)(3).

516

d. Prosecutor Information

Under the fourth category of information, sections 552.108(a)(4) and 552.108(b)(3) protect

information, including an internal record or notation, prepared by a prosecutor in anticipation of

or in the course of preparing for criminal litigation or information that reflects the prosecutor’s

515

Gov’t Code § 411.048(b).

516

Open Records Letter No. 2003-3988 (2003).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

101

mental impressions or legal reasoning. When a governmental body asserts that the information

reflects the prosecutor’s mental impressions or legal reasoning, the governmental body should, in

its request for a ruling, explain how the information does so.

3. Limitations on Scope of Section 552.108

Section 552.108(c) provides that basic information about an arrested person, an arrest, or a crime

may not be withheld under section 552.108.

517

Further, section 552.108(c) requires the prompt

production of basic information unless the basic information is excepted from disclosure under

another provision in the Act. The kinds of basic information not excepted from disclosure by

section 552.108 are those that were deemed public in Houston Chronicle Publ’g Co. v. City of

Houston and catalogued in Open Records Decision No. 127 (1976).

518

Basic information is

information that ordinarily appears on the first page of an offense report, such as:

(a) the name, age, address, race, sex, occupation, alias, social security number, police

department identification number, and physical condition of the arrested person;

(b) the date and time of the arrest;

(d) the offense charged and the court in which it is filed;

(e) the details of the arrest;

(f) booking information;

(g) the notation of any release or transfer;

(h) bonding information;

(i) the location of the crime;

(j) the identification and description of the complainant;

(k) the premises involved;

(l) the time of occurrence of the crime;

(m) the property involved, if any;

(n) the vehicles involved, if any;

(o) a description of the weather;

517

Gov’t Code § 552.108(c).

518

Houston Chronicle Publ’g Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.—Houston [14th Dist.] 1975),

writ ref’d n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

102

(p) a detailed description of the offense; and

(q) the names of the arresting and investigating officers.

519

Generally, the identity of the complainant may not be withheld from disclosure under section

552.108. However, the identity of the complainant may be withheld in certain instances under

other provisions of the law. For example, where the complainant is also the victim of a serious

sexual offense, the identity of the complainant must be withheld from public disclosure pursuant

to section 552.101 in conjunction with common-law privacy.

520

The attorney general has also

determined that, where the complainant is also an informer for purposes of the informer’s privilege,

the complainant’s identity may be withheld under section 552.101 in conjunction with the

common-law informer’s privilege.

521

Although basic information not excepted from disclosure by section 552.108 often is described by

its location (“first-page offense report information”), the location of the information or the label

placed on it is not determinative of its status under section 552.108. For example, basic

information appearing in other records of law enforcement agencies, such as blotters, arrest sheets,

and “show-up sheets,” is not excepted from disclosure by section 552.108.

522

Section 552.108 generally does not apply to information made public by statute or to information

to which a statute grants certain individuals rights of access.

523

For example, even if an accident

report completed pursuant to Chapter 550 of the Transportation Code relates to a pending criminal

investigation, a law enforcement entity must release the accident report to a requestor given a

statutory right of access to the report under section 550.065(c) of the Transportation Code.

524

4. Application of Section 552.108 to Information Relating to Police Officers and

Complaints Against Police Officers

Because of their role in protecting the safety of the general public, law enforcement officers

generally can expect a lesser degree of personal privacy than other public employees.

525

General

information about a police officer usually is not excepted from required public disclosure by

section 552.108. For example, a police officer’s age, law enforcement background, and previous

experience and employment usually are not excepted from disclosure by section 552.108.

526

519

Open Records Decision No. 127 at 3-5 (1976).

520

See Open Records Decision Nos. 440 (1986), 393 (1983), 339 (1982).

521

See Open Records Letter No. 2004-8297 (2004).

522

See Open Records Decision No. 127 at 3-4 (1976).

523

Open Records Decision Nos. 161 (1977), 146 at 2 (1976); see also Open Records Decision Nos. 613 at 4 (1993),

451 at 4 (1986).

524

Transp. Code § 550.065(c).

525

See Tex. State Employees Union v. Tex. Dep’t of Mental Health & Mental Retardation, 746 S.W.2d 203, 206

(Tex. 1987); Open Records Decision No. 562 at 9 n.2 (1990).

526

City of Fort Worth v. Cornyn, 86 S.W.3d 320, 326-28 (Tex. App.—Austin 2002, no pet.); Open Records Decision

Nos. 562 at 10 (1990), 329 at 1 (1982).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

103

Similarly, information about administrative complaints against police officers generally may not

be withheld under section 552.108. For example, the names of complainants, the names of the

officers who are the subjects of complaints, an officer’s written response to a complaint, and the

final disposition of a complaint generally are not excepted from disclosure by section 552.108.

527

Information about complaints against public officers may be withheld under section 552.108 if the

police department can demonstrate release of the information will interfere with the detection,

investigation, or prosecution of crime. However, section 552.108 is inapplicable where an

administrative complaint against a law enforcement officer does not result in a criminal

investigation or prosecution.

528

a. Personnel Files of Police Officers Serving in Civil Service Cities

The disclosure of information from the personnel files of police officers serving in cities that have

adopted chapter 143 of the Local Government Code (the fire fighters’ and police officers’ civil

service law) is governed by section 143.089 of the Local Government Code.

529

Section 143.089

contemplates two different types of personnel files: (1) a police officer’s civil service file that the

civil service director is required to maintain pursuant to section 143.089(a) and (2) an internal file

that the police department may maintain for its own use pursuant to section 143.089(g).

530

police officer’s civil service file must contain specified items, including commendations,

documents relating to misconduct that resulted in disciplinary action and periodic evaluations by

the officer’s supervisor.

531

In cases in which a police department investigates a police officer’s

misconduct and takes disciplinary action

532

against a police officer, it is required by section

143.089(a)(2) to place all investigatory records relating to the investigation and disciplinary action,

including background documents such as complaints, witness statements, and documents of like

nature from individuals who were not in a supervisory capacity, in the police officer’s civil service

file maintained under section 143.089(a).

533

Records maintained in the police officer’s civil

service file are subject to release under chapter 552 of the Government Code.

534

Furthermore,

pursuant to section 143.089(e), the police officer has a right of access to the records maintained in

his civil service file.

535

Information maintained in a police department’s internal file pursuant to

section 143.089(g) is confidential and generally must not be released.

536

However, a hiring law

527

Open Records Decision Nos. 350 at 3 (1982), 342 at 2 (1982), 329 at 2 (1982).

528

Morales v. Ellen, 840 S.W.2d 519, 525-26 (Tex. App.—El Paso 1992, writ denied) (construing statutory

predecessor).

529

Local Gov’t Code § 143.089; see City of San Antonio v. San Antonio Express-News, 47 S.W.3d 556 (Tex. App.—San

Antonio 2000, pet. denied); City of San Antonio v. Tex. Attorney Gen., 851 S.W.2d 946 (Tex. App.—Austin 1993,

writ denied).

530

Local Gov’t Code § 143.089(a), (g).

531

Local Gov’t Code § 143.089(a).

532

For the purpose of section 143.089 of the Local Government Code, the term “disciplinary action” includes removal,

suspension, demotion, and uncompensated duty. Local Gov’t Code §§ 143.051-.055. “Disciplinary action” does

not include a written reprimand. See Attorney General Opinion JC-0257 at 5 (2000).

533

Abbott v. City of Corpus Christi, 109 S.W.3d 113, 122 (Tex. App.—Austin 2003, no pet.).

534

See Local Gov’t Code § 143.089(f); Open Records Decision No. 562 at 6 (1990).

535

Local Gov’t Code § 143.089(e).

536

See Local Gov’t Code § 143.089(g); City of San Antonio v. Tex. Attorney Gen., 851 S.W.2d 946, 949 (Tex.

App.—Austin 1993, writ denied).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

104

enforcement agency is entitled to view an applicant officer’s (g) file, in accordance with section

1701.451 of the Occupations Code.

537

A city police department should refer a request for information in a police officer’s personnel file

to the civil service director or the director’s designee.

538

5. Other Related Law Enforcement Records

a. Criminal History Information

Where an individual’s criminal history information has been compiled or summarized by a

governmental entity, the information takes on a character that implicates the individual’s right of

privacy in a manner that the same individual’s records in an uncompiled state do not.

539

Thus,

when a requestor asks for unspecified law enforcement records concerning a named individual and

that individual is a suspect, arrestee, or criminal defendant in the information at issue, a law

enforcement agency must withhold this information under section 552.101 of the Government

Code as that individual’s privacy right has been implicated.

540

Federal law also imposes limitations on the dissemination of criminal history information obtained

from the federal National Crime Information Center (NCIC) and its Texas counterpart, the Texas

Crime Information Center (TCIC).

541

In essence, federal law requires each state to observe its

own laws regarding the dissemination of criminal history information it generates, but requires a

state to maintain as confidential any information from other states or the federal government that

the state obtains by access to the Interstate Identification Index, a component of the NCIC.

542

Chapter 411, subchapter F, of the Government Code contains the Texas statutes that govern the

confidentiality and release of TCIC information obtained from the Texas Department of Public

Safety. However, subchapter F “does not prohibit a criminal justice agency from disclosing to the

public criminal history record information that is related to the offense for which a person is

involved in the criminal justice system.”

543

Moreover, the protection in subchapter F does not

extend to driving record information maintained by the Department of Public Safety pursuant to

subchapter C of chapter 521 of the Transportation Code.

544

Any person is entitled to obtain from

537

Local Gov’t Code § 143.089(h); Occ. Code § 1701.454 (providing requirements for law enforcement agency to hire

persons licensed under chapter 1701).

538

Local Gov’t Code § 143.089(g).

539

Cf. United States Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 764 (1989) (when

considering prong regarding individual’s privacy interest, court recognized distinction between public records found

in courthouse files and local police stations and compiled summary of information and noted individual has

significant privacy interest in compilation of one’s criminal history).

540

See United States Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 764 (1989); cf. Gov’t

Code § 411.083.

541

See Open Records Decision No. 655 (1997).

542

See 28 C.F.R. pt. 20; Open Records Decision No. 565 at 10-12 (1990).

543

Gov’t Code § 411.081(b).

544

Gov’t Code § 411.082(2)(B).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

105

the Department of Public Safety information regarding convictions and deferred adjudications and

the person’s own criminal history information.

545

b. Juvenile Law Enforcement Records

The relevant language of Family Code section 58.008(b) provides as follows:

(b) Except as provided by Subsection (c), law enforcement records concerning a child

and information concerning a child that are stored by electronic means or otherwise

and from which a record could be generated may not be disclosed to the public and

shall be:

(1) if maintained on paper or microfilm, kept separate from adult records;

(2) if maintained electronically in the same computer system as adult records

accessible only under controls that are separate and distinct from controls to

access electronic data concerning adults; and

(3) maintained on a local basis only and not sent to a central state or federal

depository, except as provided by Subsection C or Subchapters B, D, and E.

546

Section 58.008(b) applies only to the records of a child

547

who is alleged to have engaged in

delinquent conduct or conduct indicating a need for supervision.

548

Section 58.008 applies to

records created before, on, or after September 1, 2017.

549

Section 58.008(b) does not apply where

the information in question involves a juvenile as only a complainant, witness, or individual party

and not a juvenile as a suspect or offender. Section 58.008(b) applies to entire law enforcement

records; therefore, a law enforcement entity is generally prohibited from releasing even basic

information from an investigation file when section 58.008(b) applies.

However, subsections 58.008(d) and 58.008(e) provide:

(d) Law enforcement records concerning a child may be inspected or copied by:

(1) a juvenile justice agency, as defined by Section 58.101;

(2) a criminal justice agency as defined by Section 411.082, Government Code;

(3) the child;

545

Gov’t Code §§ 411.083(b)(3), .135(a)(2).

546

Fam. Code § 58.008(b).

547

Section 51.02 of the Family Code defines “child” as “a person who is: (A) ten years of age or older and under 17

years of age; or (B) seventeen years of age or older and under 18 years of age who is alleged or found to have

engaged in delinquent conduct or conduct indicating a need for supervision as a result of acts committed before

becoming 17 years of age.” Fam. Code § 51.02(2).

548

Fam. Code § 51.03(b); see Open Records Decision No. 680 (2003) (construing statutory predecessor).

549

See Act of May 28, 2017, 85th Leg. R.S., S.B. 1304, § 22.

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

106

(4) the child’s parent or guardian; or

(5) the chief executive officer or the officer’s designee of a primary or secondary

school where the child is enrolled only the purpose of conducting a threat

assessment or preparing a safety plan related to the child.

. . .

(e) Before a child or a child’s parent or guardian may inspect or copy a record

concerning the child under Subsection (d), the custodian of the record shall redact:

(1) any personally identifiable information about a juvenile suspect, offender,

victim, or witness who is not the child; and

(2) any information that is excepted from required disclosure under Chapter 552,

Government Code, or any other law.

550

Pursuant to section 58.008(d), a governmental body may not withhold under section 58.008(b) a

child’s law enforcement records from the child’s parent, guardian, the child, or in certain instances,

the chief executive officer or the officer’s designee of a primary or secondary school where the

child is enrolled. However, pursuant to section 58.008(e)(2), a governmental body may raise other

exceptions to disclosure. Also, pursuant to section 58.008(e)(1), personally identifiable

information of a juvenile suspect, offender, witness, or victim who is not the child must be withheld.

For purposes of section 58.008(e)(1), a juvenile victim or witness is a person under eighteen years

of age.

c. Child Abuse and Neglect Records

The relevant language of Family Code section 261.201(a) provides:

(a) Except as provided by Section 261.203, the following information is confidential, is

not subject to public release under Chapter 552, Government Code, and may be

disclosed only for purposes consistent with this code and applicable federal or state

law or under rules adopted by an investigating agency:

(1) a report of alleged or suspected abuse or neglect made under this chapter and

the identity of the person making the report; and

(2) except as otherwise provided in this section, the files, reports, records,

communications, audiotapes, videotapes, and working papers used or developed

in an investigation under this chapter or in providing services as a result of an

investigation.

551

550

Fam. Code § 58.008(d), (e).

551

Fam. Code § 261.201(a).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

107

Section 261.201(a) applies to a report of and information used or developed in an investigation of

suspected abuse or neglect

552

of a child

553

and the identity of the individual who made the report

of abuse or neglect.

554

Section 261.201(h), however, states section 261.201 does not apply to

investigations of abuse or neglect in a home or facility regulated under chapter 42 of the Human

Resources Code, such as a childcare facility.

555

Moreover, sections 261.201(k) and 261.201(l) provide:

(k) Notwithstanding Subsection (a), an investigating agency, other than the [Texas

Department of Family and Protective Services] or the Texas Juvenile Justice

Department, on request, shall provide to the parent, managing conservator, or other

legal representative of a child who is the subject of reported abuse or neglect, or to

the child if the child is at least 18 years of age, information concerning the reported

abuse or neglect that would otherwise be confidential under this section. The

investigating agency shall withhold information under this subsection if the parent,

managing conservator, or other legal representative of the child requesting the

information is alleged to have committed the abuse or neglect.

(l) Before a child or a parent, managing conservator, or other legal representative of a

child may inspect or copy a record or file concerning the child under Subsection (k),

the custodian of the record or file must redact:

(1) any personally identifiable information about a victim or witness under 18 years

of age unless that victim or witness is:

(A) the child who is the subject of the report; or

(B) another child of the parent, managing conservator, or other legal

representative requesting the information;

(2) any information that is excepted from required disclosure under Chapter 552,

Government Code, or other law; and

(3) the identity of the person who made the report.

556

Pursuant to section 261.201(k), a governmental body may not withhold child abuse or neglect

records from the parent, managing conservator, or other legal representative of the child, if the

parent, managing conservator, or other legal representative is not accused of committing the abuse

or neglect, or from the child if the child is at least eighteen years of age. Pursuant to section

261.201(l)(2), a governmental body may raise other exceptions to disclosure for the child abuse or

neglect records. Further, pursuant to sections 261.201(l)(1) and 261.201(l)(3), personally

identifiable information of a victim or witness under eighteen years of age who is not the child or

552

Fam. Code § 261.001(1), (4).

553

See Fam. Code § 101.003(a) (defining “child” for section 261.201 purposes).

554

Open Records Decision No. 440 (1986) (construing statutory predecessors).

555

Fam. Code § 261.201(h).

556

Fam. Code § 261.201(k)-(l).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

108

another child of the parent, managing conservator, or other legal representative and the identity of

the reporting party must be withheld.

d. Sex Offender Registration Information

Under article 62.005 of the Code of Criminal Procedure, all information contained in either an

adult or juvenile sex offender registration form and subsequently entered into the Department of

Public Safety database is public information and must be released upon written request, except for

the registrant’s social security number, driver’s license number, home, work, or cellular telephone

number, information described by article 62.051(c)(7) or required by the Department of Public

Safety under article 62.051(c)(9), and any information that would reveal the victim’s identity.

557

Local law enforcement authorities are required under article 62.053(f) of the Code of Criminal

Procedure to provide school officials with “any information the authority determines is necessary

to protect the public” regarding sex offenders except the person’s social security number, driver’s

license number, home, work, or cellular telephone number, and any information that would

identify the victim of the offense.

558

Neither a school district official nor the general public is authorized to receive from local law

enforcement authorities sex offender registration information pertaining to individuals whose

reportable convictions or adjudication occurred prior to September 1, 1970.

559

e. Records of 9-1-1 Calls

Originating telephone numbers and addresses of 9-1-1 callers furnished on a call-by-call basis by

a telephone service supplier to a 9-1-1 emergency communication district established under

subchapter B, C, or D of chapter 772 of the Health and Safety Code are confidential under

sections 772.118, 772.218, and 772.318 of the Health and Safety Code, respectively.

560

Chapter

772 does not except from disclosure any other information contained on a computer aided dispatch

report that was obtained during a 9-1-1 call.

561

Subchapter E, which applies to counties with

populations over 2 million, does not contain a similar confidentiality provision. Other exceptions

to disclosure in the Public Information Act may apply to information not otherwise confidential

under section 772.118, section 772.218, or section 772.318 of the Health and Safety Code.

562

f. Certain Information Related to Terrorism and Homeland Security

Sections 418.176 through 418.182 of the Government Code, part of the Texas Homeland Security

Act, make confidential certain information related to terrorism or related criminal activity. The

fact that information may relate to a governmental body’s security concerns does not make the

information per se confidential under the Texas Homeland Security Act. As with any exception

557

Crim. Proc. Code art. 62.005(b); Open Records Decision No. 645 at 3 (1996) (construing statutory predecessor).

558

Crim. Proc. Code art. 62.053(e), (f) (information must be released if restrictions under Crim. Proc. Code art. 62.054

are met).

559

See Crim. Proc. Code art. 62.002(a).

560

See Health and Safety Code §§ 772.118(c), .218(c), .318(c); Open Records Decision No. 649 at 2-3 (1996).

561

Open Records Decision No. 649 at 3 (1996).

562

Open Records Decision No. 649 at 4 (1996).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

109

to disclosure, a governmental body asserting one of the confidentiality provisions of the Texas

Homeland Security Act must explain how the responsive records fall within the scope of the

claimed provision.

563

In Texas Department of Public Safety v. Abbott, the Texas Department of Public Safety challenged

the conclusion of the attorney general and the trial court that videos recorded by security cameras

in a Texas Capitol hallway were not confidential under section 418.182 of the Government

Code.

564

In reversing this conclusion, the Third Court of Appeals found the Texas Department of

Public Safety demonstrated the videos relate to the specifications of the capitol security system

used to protect public property from an act of terrorism or related criminal activity because the

legislature’s use of “relates to” is a plain legislative choice to broadly protect information regarding

security systems designed to protect public property. Thus, the court concluded the recorded

images necessarily relate to the specifications of the security system that recorded them.

Release of certain information about aviation and maritime security is governed by federal law.

565

The attorney general has determined in several informal letter rulings that the decision to withhold

or release such information rests with the head of the federal Transportation Security

Administration (the “TSA”) or the Coast Guard and that requests for such information should be

referred to the TSA or Coast Guard for their decision concerning disclosure of the information.

566

g. Voucher Information

Section 660.2035 of the Government Code provides:

(a) A voucher or other expense reimbursement form, and any receipt or other

document supporting that voucher or other expense reimbursement form, that is

submitted or to be submitted under Section 660.027 is confidential under Chapter

552 for a period of 18 months following the date of travel if the voucher or other

expense reimbursement form is submitted or is to be submitted for payment or

reimbursement of a travel expense incurred by a peace officer while assigned to

provide protection for an elected official or a member of the elected official’s

family.

567

(b) At the expiration of the period provided by Subsection (a), the voucher or other

expense reimbursement form and any supporting documents become subject to

disclosure under Chapter 552 and are not excepted from public disclosure or

confidential under that chapter or other law, [except for certain provisions of

law.]

568

Subsection 660.2035(b) specifically lists seven exceptions in the Act that can apply to withhold

information within a voucher, expense reimbursement form, and any supporting document after

563

See Gov’t Code § 552.301(e)(1)(A) (governmental body must explain how claimed exception to disclosure applies).

564

Tex. Dep’t of Pub. Safety v. Abbott, 310 S.W.3d 670 (Tex. App.—Austin 2010, no pet.).

565

49 U.S.C. § 114(r); 49 C.F.R. pt. 1520.

566

Open Records Letter Nos. 2013-09028 (2013), 2009-11201 (2009), 2005-07525 (2005).

567

Gov’t Code § 660.2035(a).

568

Gov’t Code § 660.2035(b).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

110

the 18 month period expires.

569

In an informal letter ruling, the attorney general considered the

Texas Department of Public Safety’s claims that, after the expiration of the 18-month

confidentiality period, sections 552.101 and 552.152 of the Government Code protected travel

vouchers and supporting documentation submitted by agents of the Executive Protection Bureau

for reimbursement of travel expenses.

570

Because section 552.101 is not one of the enumerated

exceptions in subsection 660.2035(b), the attorney general determined section 552.101 did not

apply to travel vouchers and supporting documentation.

571

However, as section 552.152 is an

exception listed in subsection 660.2035(b), the attorney general considered the claim to withhold

the information under section 552.152, and finding the claim had merit, concluded the travel

vouchers and supporting documentation were excepted from disclosure under section 552.152.

572

h. Body Worn Camera Program

Subchapter N of chapter 1701 of the Occupations Code pertains to body worn cameras. Subchapter

N revises the procedures associated with public information requests for body worn camera

recordings. Generally, requestors need not use “magic words” when making requests to

governmental bodies; however, when requestors seek access to body worn camera recordings,

requestors must provide:

(1) the date and approximate time of the recording;

(2) the specific location where the recording occurred; and

(3) the name of one or more persons known to be a subject of the recording.

573

Failure to provide this information does not preclude a requestor from requesting the same

information again.

574

When properly requested, chapter 1701 provides for the confidentiality of

body worn camera recordings under certain circumstances. A body worn camera recording is

confidential if it was not required to be made under a law or policy adopted by the relevant law

enforcement agency.

575

Section 1701.660 makes confidential any recording from a body-worn camera that documents the

use of deadly force or that is related to an administrative or criminal investigation of an officer

until all criminal matters are finally adjudicated and all administrative investigations completed.

576

However, a law enforcement agency may choose to release such information if doing so furthers

a law enforcement interest.

577

Before a law enforcement agency releases a body-worn camera

recording that was made in a private space or in connection with a fine-only misdemeanor, the

agency must receive authorization from the person who is the subject of the recording, or if that

569

Gov’t Code § 660.2035(b).

570

Open Records Letter No. 2014-02048 (2014).

571

Open Records Letter No. 2014-02048 at 3 (2014).

572

Open Records Letter No. 2014-02048 at 3-4 (2014).

573

Occ. Code § 1701.661(a).

574

Occ. Code § 1701.661(b).

575

Occ. Code § 1701.661(h).

576

Occ. Code § 1701.660(a).

577

Occ. Code § 1701.660(b).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

111

person is deceased, from the person’s authorized representative.

578

A governmental body may

continue to raise section 552.108 or any other applicable exception to disclosure or law for a body-

worn camera recording.

579

Section 1701.662 also extends the ten and fifteen business day deadlines associated with

requesting a ruling from the attorney general to twenty and twenty-five business days,

respectively.

580

Additionally, a governmental body that receives a “voluminous request” for body-

worn camera recordings is considered to have complied with the request if it provides the

information no later than twenty-one business days after it receives the request.

581

i. Video Recordings of Arrests for Intoxication Offenses

Article 2.1396 of the Code of Criminal Procedure provides as follows:

A person stopped or arrested on suspicion of an offense under Section 49.04, 49.045, 49.07,

or 49.08, Penal Code, is entitled to receive from a law enforcement agency employing the

peace officer who made the stop or arrest a copy of any video made by or at the direction

of the officer that contains footage of:

(1) the stop;

(2) the arrest;

(3) the conduct of the person stopped during any interaction with the officer, including

during the administration of a field sobriety test; or

(4) a procedure in which a specimen of the person’s breath or blood is taken.

582

Article 2.1396 applies only to a recording of conduct that occurs on or after September 1, 2015.

583

A requestor’s right of access to a video recording subject to article 2.1396 will generally prevail

over the Act’s general exceptions to disclosure.

584

I. Section 552.1081: Confidentiality of Certain Information Regarding

Execution of Convict

Section 552.1081 of the Government Code provides as follows:

578

Occ. Code § 1701.661(f).

579

Occ. Code § 1701.661(e).

580

Occ. Code § 1701.662.

581

Occ. Code § 1701.663.

582

Crim. Proc. Code art. 2.1396.

583

Act of May 30, 2015, 84th Leg., R.S., H.B. 3791, § 2, 2015 Tex. Gen. Laws 3804, 3805 redesignated by Act of May

30, 2017, 85th Leg., R.S., H.B. 245, § 4.

584

See Open Records Decision Nos. 613 at 4 (1993), 451 (1986).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

112

Information is excepted from the requirements of Section 552.021 if it contains

identifying information under Article 43.14, Code of Criminal Procedure, including that

of:

(1) any person who participates in an execution procedure, including a person who

uses, supplies, or administers a substance during the execution; and

(2) any person or entity that manufactures, transports, tests, procures, compounds,

prescribes, dispenses, or provides a substance or supplies used in an execution.

Section 552.1081 protects the name, address, and other identifying information of persons who

participate in an execution procedure or of persons or entities that manufacture, transport, procure,

compound, prescribe, dispense, or provide a substance used in an execution.

585

J. Section 552.1085: Confidentiality of Sensitive Crime Scene Image

Section 552.1085 of the Government Code provides as follows:

(a) In this section:

(1) “Deceased person’s next of kin” means:

(A) the surviving spouse of the deceased person;

(B) if there is no surviving spouse of the deceased, an adult child of the

deceased person; or

the deceased person.

(2) “Defendant” means a person being prosecuted for the death of the deceased

person or a person convicted of an offense in relation to that death and appealing

that conviction.

(3) “Expressive work” means:

(A) a fictional or nonfictional entertainment, dramatic, literary, or musical

work that is a play, book, article, musical composition, audiovisual work,

radio or television program, work of art, or work of political, educational,

or newsworthy value;

(B) a work the primary function of which is the delivery of news, information,

current events, or other matters of public interest or concern; or

Paragraph (A) or (B).

585

Gov’t Code § 552.1081; Crim. Proc. Code art 43.14.

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

113

(4) “Local governmental entity” means a county, municipality, school district,

charter school, junior college district, or other political subdivision of this state.

(5) “Public or private institution of higher education” means:

(A) an institution of higher education, as defined by Section 61.003, Education

Code; or

(B) a private or independent institution of higher education, as defined by

Section 61.003, Education Code.

(6) “Sensitive crime scene image” means a photograph or video recording taken at

a crime scene, contained in or part of a closed criminal case, that depicts a

deceased person in a state of dismemberment, decapitation, or similar

mutilation or that depicts the deceased person’s genitalia.

(7) “State agency” means a department, commission, board, office, or other agency

that is a part of state government and that is created by the constitution or a

statute of this state. The term includes an institution of higher education as

defined by Section 61.003, Education Code.

(b) For purposes of this section, an Internet website, the primary function of which is not

the delivery of news, information, current events, or other matters of public interest

or concern, is not an expressive work.

and excepted from the requirements of Section 552.021 and a governmental body may

not permit a person to view or copy the image except as provided by this section. This

section applies to any sensitive crime scene image regardless of the date that the image

was taken or recorded.

(d) Notwithstanding Subsection (c) and subject to Subsection (e), the following persons

may view or copy information that constitutes a sensitive crime scene image from a

governmental body:

(1) the deceased person’s next of kin;

(2) a person authorized in writing by the deceased person’s next of kin;

(3) a defendant or the defendant’s attorney;

(4) a person who establishes to the governmental body an interest in a sensitive

crime scene image that is based on, connected with, or in support of the creation,

in any medium, of an expressive work;

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(5) a person performing bona fide research sponsored by a public or private

institution of higher education with approval of a supervisor of the research or

a supervising faculty member;

(6) a state agency;

(7) an agency of the federal government; or

(8) a local governmental entity.

(e) This section does not prohibit a governmental body from asserting an exception to

disclosure of a sensitive crime scene image to a person identified in Subsection (d) on

the grounds that the image is excepted from the requirements of Section 552.021

under another provision of this chapter or another law.

(f) Not later than the 10th business day after the date a governmental body receives a

request for a sensitive crime scene image from a person described by Subsection (d)(4)

or (5), the governmental body shall notify the deceased person’s next of kin of the

request in writing. The notice must be sent to the next of kin’s last known address.

(g) A governmental body that receives a request for information that constitutes a

sensitive crime scene image shall allow a person described in Subsection (d) to view

or copy the image not later than the 10th business day after the date the governmental

body receives the request unless the governmental body files a request for an attorney

general decision under Subchapter G regarding whether an exception to public

disclosure applies to the information.

There are no cases or formal opinions interpreting section 552.1085. However, in an informal

letter ruling, the attorney general determined a governmental body failed to establish the

applicability of section 552.1085 to the information at issue because the governmental body stated

the information pertained to unresolved criminal cases that were ongoing.

586

In a separate letter

ruling, the attorney general concluded the next of kin of the deceased person depicted in the

photographs at issue would have a right to view or copy the photographs pursuant to section

552.1085(d)(1), because the governmental body may not use section 552.1085(c)(1) to withhold

the photographs from the next of kin and raised no other exceptions to withhold the photographs.

587

K. Section 552.109: Confidentiality of Certain Private Communications

of an Elected Office Holder

Section 552.109 of the Government Code excepts from required public disclosure:

Private correspondence or communications of an elected office holder relating to matters

the disclosure of which would constitute an invasion of privacy are excepted from the

requirements of Section 552.021.

586

Open Records Letter No. 2014-04454 at 13 (2014).

587

Open Records Letter No. 2013-21155 at 4 (2013).

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The test to be applied to information under section 552.109 is the same as the common-law privacy

standard under section 552.101 and decisions under section 552.109 and its statutory predecessor

rely on the same tests applicable under section 552.101.

588

The common-law privacy standard is

laid out in Indus. Found. v. Tex. Indus. Accident Bd., and protects information if it (1) contains

highly intimate or embarrassing facts, the publication of which would be highly objectionably to

a reasonable person, and (2) is not of legitimate concern to the public.

589

Both prongs of this test

must be established.

590

Section 552.109 only protects the privacy interests of elected office

holders.

591

It does not protect the privacy interests of their correspondents.

592

Certain records of

communications between citizens and members of the legislature or the lieutenant governor may

not be subject to the Act.

593

In the following open records decisions, the attorney general determined that certain information

was not excepted from required public disclosure under the statutory predecessor to section

552.109:

Open Records Decision No. 506 (1988) — cellular telephone numbers of county officials

where county paid for installation of service and for telephone bills, and which service was

intended to be used by officials in conducting official public business, because public has a

legitimate interest in the performance of official public duties;

Open Records Decision No. 473 (1987) — performance evaluations of city council appointees,

because this section was intended to protect the privacy only of elected office holders; although

city council members prepared the evaluations, the evaluations did not implicate their privacy

interests;

Open Records Decision No. 332 (1982) — letters concerning a teacher’s performance written

by parents to school trustees, because nothing in the letters constituted an invasion of privacy

of the trustees;

Open Records Decision No. 241 (1980) — correspondence of the governor regarding potential

nominees for public office, because the material was not protected by a constitutional right of

privacy; furthermore, the material was not protected by common-law right of privacy because

it did not contain any highly embarrassing or intimate facts and there was a legitimate public

interest in the appointment process;

594

and

Open Records Decision No. 40 (1974) — itemized list of long distance calls made by

legislators and charged to their contingent expense accounts, because such a list is not a

“communication.”

588

Open Records Decision Nos. 506 at 3 (1988), 241 (1980), 212 (1978).

589

Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977).

590

Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 681-685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977).

591

Open Records Decision No. 473 at 3 (1987).

592

See Open Records Decision No. 332 at 2 (1982).

593

See Gov’t Code §§ 306.003, .004; Open Records Decision No. 648 (1996); Open Records Letter Nos. 2012-14193

(2012), 2012-06238 (2012).

594

See Open Records Decision No. 212 at 4 (1978).

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L. Section 552.110: Confidentiality of Trade Secrets and Confidentiality

of Certain Commercial or Financial Information

Section 552.110 of the Government Code provides as follows:

(a) In this section, “trade secret” means all forms and types of information, including

business, scientific, technical, economic, or engineering information, and any

formula, design, prototype, pattern, plan, compilation, program device, program,

code, device, method, technique, process, procedure, financial data, or list of actual

or potential customers or suppliers, whether tangible or intangible and whether or

however stored, compiled, or memorialized physically, electronically, graphically,

photographically, or in writing if:

(1) the owner of the trade secret has taken reasonable measures under the

circumstances to keep the information secret; and

(2) the information derives independent economic value, actual or potential, from

not being generally known to, and not being readily ascertainable through

proper means by, another person who can obtain economic value from the

disclosure or use of the information.

(b) Except as provided by Section 552.0222, information is excepted from the

requirements of Section 552.021 if it is demonstrated based on specific factual

evidence that the information is a trade secret.

which it is demonstrated based on specific factual evidence that disclosure would

cause a substantial competitive harm to the person from whom the information was

obtained is excepted from the requirements of Section 552.021.

Section 552.110 refers to two types of information: (1) trade secrets and (2) confidential

commercial or financial information obtained from a person. The Act requires a governmental

body to make a good faith attempt to notify in writing a person whose proprietary information may

be subject to section 552.110 within ten business days after receiving the request for the

information.

595

A person so notified bears the burden of establishing the applicability of section

552.110.

596

A copy of the form the Act requires the governmental body to send to a person whose

information may be subject to section 552.110, as well as section 552.101, section 552.1101,

section 552.113, or section 552.131, can be found in Part Seven of this Handbook.

1. Trade Secrets

Section 552.110(b) excepts from disclosure trade secrets. Prior decisions of the attorney general

use the definition of “trade secret” from the Restatement of Torts, section 757 (1939). However,

595

Gov’t Code § 552.305.

596

Gov’t Code § 552.305.

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“trade secret” is now defined within section 552.110(a). Accordingly, analyses of section 552.110

must use the definition within section 552.110(a). Further, the withholding of trade secrets is

limited by section 552.0222. Section 552.0222 provides for the release of contracting information

as defined in section 552.0222(b). “Contracting information” may not be withheld as trade secrets

under section 552.110(b). Open Records Decision No. 552 (1990), discussing the predecessor

statute, noted that the attorney general is unable to resolve disputes of fact regarding the status of

information as “trade secrets” and must rely upon the facts alleged or upon those facts that are

discernible from the documents submitted for inspection. For this reason, the attorney general will

accept a claim for exception as a trade secret when a prima facie case is made that the information

in question constitutes a trade secret and no argument is made that rebuts that assertion as a matter

of law. In Open Records Decision No. 609 (1992), there was a factual dispute between the

governmental body and the proponent of the trade secret protection as to certain elements of a

prima facie case. Because the attorney general cannot resolve such factual disputes, the matter

was referred back to the governmental body for fact-finding.

2. Commercial or Financial Information

Section 552.110(c) excepts from disclosure commercial and financial information and includes the

standard for excepting such information. An interested person must demonstrate “based on

specific factual evidence that disclosure would cause substantial competitive harm to the person

from whom the information was obtained.” Like section 552.110(b), the withholding of

commercial and financial information under section 552.110(c) is also limited by section 552.0222.

Contracting information may not be withheld as commercial and financial information under

section 552.110(c).

M. Section 552.1101: Confidentiality of Proprietary Information

Section 552.1101 of the Government Code provides as follows:

(a) Except as provided by Section 552.0222, information submitted to a governmental

body by a vendor, contractor, potential vendor, or potential contractor in response to

a request for a bid, proposal, or qualification is excepted from the requirements of

Section 552.021 if the vendor, contract, potential vendor, or potential contractor that

the information relates to demonstrates based on specific factual evidence that

disclosure of the information would:

(1) reveal an individual approach to:

(A) work;

(B) organizational structure;

(D) internal operations;

(E) processes; or

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(F) discounts, pricing methodology, pricing per kilowatt hour, cost data, or

other pricing information that will be used in future solicitation or bid

documents; and

(2) give advantage to a competitor.

(b) The exception to disclosure provided by Subsection (a) does not apply to:

(1) information in a voucher or contract relating to the receipt or expenditure of

public funds by a governmental body; or

(2) communications and other information sent between a governmental body

and a vendor or contractor related to the performance of a final contract with

the governmental body or work performed on behalf of the governmental

body.

vendor, contractor, potential vendor, or potential contractor in the manner described

by Section 552.305(b) for the purpose of protecting the interests of the vendor,

contractor, potential vendor, or potential contractor. A governmental body shall

decline to release information as provided by Section 552.305(a) to the extent

necessary to allow a vendor, contractor, potential vendor, or potential contractor to

assert the exception to disclosure provided by Subsection (a).

N. Section 552.111: Agency Memoranda

Section 552.111 of the Government Code excepts from required public disclosure:

An interagency or intraagency memorandum or letter that would not be available by law

to a party in litigation with the agency[.]

To be protected under section 552.111, information must consist of interagency or intraagency

communications. Although information protected by section 552.111 is most commonly generated

by agency personnel, information created for an agency by outside consultants acting on behalf of

the agency in an official capacity may be within section 552.111.

597

An agency’s communications

with other agencies and third parties, however, are not protected unless the agency demonstrates

that the parties to the communications share a privity of interest.

598

For example, correspondence

between a licensing agency and a licensee is not excepted under section 552.111.

599

Also, to be protected under section 552.111, an interagency or intraagency communication must

be privileged from discovery in civil litigation involving the agency.

600

The attorney general has

597

Open Records Decision No. 462 (1987) (construing statutory predecessor).

598

See Open Records Decision No. 561 at 9 (1990) (correspondence from Federal Bureau of Investigation officer to

city was not protected by statutory predecessor to Gov’t Code § 552.111, where no privity of interest or common

deliberative process existed between federal agency and city).

599

Open Records Decision No. 474 at 5 (1987) (construing statutory predecessor).

600

Open Records Decision Nos. 677 at 4 (2002), 615 at 2-3 (1993).

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interpreted section 552.111 to incorporate both the deliberative process privilege and the work

product privilege.

601

1. Deliberative Process Privilege

Section 552.111 has been read to incorporate the deliberative process privilege into the Public

Information Act for intraagency and interagency communications.

602

The deliberative process

privilege, as incorporated into the Public Information Act, protects from disclosure intraagency

and interagency communications consisting of advice, opinion, or recommendations on

policymaking matters of the governmental body at issue.

603

The purpose of withholding advice,

opinion, or recommendations under section 552.111 is “to encourage frank and open discussion

within the agency in connection with its decision-making processes” pertaining to policy

matters.

604

“An agency’s policymaking functions do not encompass routine internal

administrative and personnel matters; disclosure of information relating to such matters will not

inhibit free discussion among agency personnel as to policy issues.”

605

An agency’s policymaking

functions do include, however, administrative and personnel matters of broad scope that affect the

governmental body’s policy mission.

606

For example, because the information at issue in Open

Records Decision No. 615 (1993) concerned the evaluation of a university professor’s job

performance, the statutory predecessor to section 552.111 did not except this information from

required public disclosure. On the other hand, the information at issue in Open Records Decision

No. 631 (1995) was a report addressing allegations of systematic discrimination against

African-American and Hispanic faculty members in the retention, tenure, and promotion process

at a university. Rather than pertaining solely to the internal administration of the university, the

scope of the report was much broader and involved the university’s educational mission.

Accordingly, section 552.111 excepted from required public disclosure the portions of the report

that constituted advice, recommendations, or opinions.

607

Even when an internal memorandum relates to a governmental body’s policy functions, the

deliberative process privilege excepts from disclosure only the advice, recommendations, and

opinions found in that memorandum. The deliberative process privilege does not except from

601

Open Records Decision Nos. 647 at 5-6 (1996), 615 at 5 (1993); see City of Garland v. Dallas Morning News, 22

S.W.3d 351, 360 (Tex. 2000).

602

City of Garland v. Dallas Morning News, 22 S.W.3d 351, 360 (Tex. 2000); Lett v. Klein Indep. Sch. Dist., 917

S.W.2d 455, 456 (Tex. App.—Houston [14th Dist.] 1996, writ denied); Tex. Dep’t of Pub. Safety v. Gilbreath, 842

S.W.2d 408, 412-13 (Tex. App.—Austin 1992, no writ); Open Records Decision No. 615 at 5 (1993).

603

City of Garland v. Dallas Morning News, 22 S.W.3d 351, 361, 364 (Tex. 2000); Arlington Indep. Sch. Dist. v. Tex.

Attorney Gen., 37 S.W.3d 152, 158 (Tex. App.—Austin 2001, no pet.); Open Records Decision No. 615 at 5 (1993).

604

Austin v. City of San Antonio, 630 S.W.2d 391, 394 (Tex. App.—San Antonio 1982, writ ref’d n.r.e.); see also City

of Garland v. Dallas Morning News, 22 S.W.3d 351, 361 (Tex. 2000); Lett v. Klein Indep. Sch. Dist., 917 S.W.2d

455, 456, 457 (Tex. App.—Houston [14th Dist.] 1996, writ denied); Tex. Dep’t of Pub. Safety v. Gilbreath, 842

S.W.2d 408, 412 (Tex. App.—Austin 1992, no writ).

605

Open Records Decision No. 615 at 5 (1993); see City of Garland v. Dallas Morning News, 22 S.W.3d 364 (Tex.

2000); Lett v. Klein Indep. Sch. Dist., 917 S.W.2d 455, 456 (Tex. App.—Houston [14th Dist.] 1996, writ denied).

606

Open Records Decision No. 631 at 3 (1995); City of Garland v. Dallas Morning News, 969 S.W.2d 548, 557 (Tex.

App.—Dallas 1998), aff’d, 22 S.W.3d 351 (Tex. 2000).

607

Open Records Decision No. 631 at 3 (1995).

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disclosure purely factual information that is severable from the opinion portions of the

memorandum.

608

Before June 29, 1993, the attorney general did not confine the application of the statutory

predecessor to section 552.111 solely to communications relating to agencies’ policymaking

functions. Given the change in the interpretation of the scope of section 552.111, a governmental

body that receives a request for information should exercise caution in relying on attorney general

decisions regarding the applicability of this exception written before June 29, 1993. For example,

in Open Records Decision No. 559 (1990), the attorney general held that the predecessor statute

to section 552.111 also protects drafts of a document that has been or will be released in final form

to the public and any comments or other notations on the drafts because they necessarily represent

advice, opinion, and recommendations of the drafter as to the form and content of the final

document. However, the rationale and scope of this open records decision have been modified

implicitly to apply only to those records involving an agency’s policy matters.

2. Work Product Privilege

The attorney general has also concluded that section 552.111 incorporates the privilege for work

product found in Texas Rule of Civil Procedure 192.5.

609

Rule 192.5 defines work product as:

(1) material prepared or mental impressions developed in anticipation of litigation or

for trial by or for a party or a party’s representatives, including the party’s

attorneys, consultants, sureties, indemnitors, insurers, employees, or agents; or

(2) a communication made in anticipation of litigation or for trial between a party and

the party’s representatives or among a party’s representatives, including the

party’s attorneys, consultants, sureties, indemnitors, insurers, employees, or

agents.

610

A governmental body raising the work product privilege under section 552.111 bears the burden

of providing the relevant facts in each case to demonstrate the elements of the privilege.

611

One

element of the work product test is that the information must have been made or developed for

trial or in anticipation of litigation.

612

In order for the attorney general to conclude that information

was created for trial or in anticipation of litigation, the governmental body must demonstrate that

at the time the information was created or acquired:

a) a reasonable person would have concluded from the totality of the circumstances . . . that

there was a substantial chance that litigation would ensue; and b) the party resisting discovery

608

See Open Records Decision No. 615 at 4-5 (1993); City of Garland v. Dallas Morning News, 22 S.W.3d 351 (Tex.

2000).

609

Open Records Decision No. 677 at 4-8 (2002).

610

TEX. R. CIV. P. 192.5(a).

611

See Open Records Decision No. 677 at 6 (2002).

612

TEX. R. CIV. P. 192.5(a); Open Records Decision No. 677 at 6 (2002).

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believed in good faith that there was a substantial chance that litigation would ensue and

[created or obtained the information] for the purpose of preparing for such litigation.

613

A “substantial chance” of litigation does not mean a statistical probability, but rather “that

litigation is more than merely an abstract possibility or unwarranted fear.”

614

Also, as part of the work product test, material or a mental impression must have been prepared or

developed by or for a party or a party’s representatives.

615

Similarly, in the case of a

communication, the communication must have been between a party and the party’s

representatives.

616

Thus, a governmental body claiming the work product privilege must identify

the parties or potential parties to the litigation, the person or entity that prepared the information,

and any individual with whom the information was shared.

617

If a requestor seeks a governmental body’s entire litigation file, the governmental body may assert

the file is excepted from disclosure in its entirety because such a request implicates the attorney

work product privilege.

618

In such an instance, if the governmental body demonstrates the file was

created in anticipation of litigation or for trial, the attorney general will presume the entire file is

within the scope of the privilege.

619

O. Section 552.112: Certain Information Relating to Regulation of

Financial Institutions or Securities

Section 552.112 of the Government Code provides as follows:

(a) Information is excepted from the requirements of Section 552.021 if it is information

contained in or relating to examination, operating, or condition reports prepared

by or for an agency responsible for the regulation or supervision of financial

institutions or securities, or both.

(b) In this section, “securities” has the meaning assigned by The Securities Act (Title

12, Government Code).

620

613

Nat’l Tank Co. v. Brotherton, 851 S.W.2d 193, 207 (Tex. 1993); In re Monsanto Co., 998 S.W.2d 917, 923-24 (Tex.

App.—Waco 1999, orig. proceeding).

614

Nat’l Tank Co. v. Brotherton, 851 S.W.2d 193, 204, 207 (Tex. 1993); see Open Records Decision No. 677 at 7

(2002).

615

TEX. R. CIV. P. 192.5(a)(1); Open Records Decision No. 677 at 7 (2002).

616

TEX. R. CIV. P. 192.5(a)(2); Open Records Decision No. 677 at 7-8 (2002).

617

Open Records Decision No. 677 at 8 (2002).

618

Open Records Decision No. 677 at 5-6 (2002).

619

See Open Records Decision No. 647 at 5 (1996) (citing Nat’l Union Fire Ins. Co. v. Valdez, 863 S.W.2d 458, 461

(Tex. 1993)) (organization of attorney’s litigation file necessarily reflects attorney’s thought processes); see also

Curry v. Walker, 873 S.W.2d 379, 380 (Tex. 1994) (“the decision as to what to include in [the file] necessarily

reveals the attorney’s thought processes concerning the prosecution or defense of the case”).

620

The 86th Legislature amended the language of section 552.112(b), which took effect January 1, 2022. See Act of

May 3, 2019, 86th Leg., R. S., H.B. 4171, § 2.19.

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submitted by an individual or other entity to the Texas Legislative Council, or to

any state agency or department overseen by the Finance Commission of Texas and

the information has been or will be sent to the Texas Legislative Council, for the

purpose of performing a statistical or demographic analysis of information subject

to Section 323.020. However, this subsection does not except from the requirements

of Section 552.021 information that does not identify or tend to identify an

individual or other entity and that is subject to required public disclosure under

Section 323.020(e).

This section protects specific examination, operating, or condition reports prepared or obtained by

agencies in regulating or supervising financial institutions or securities or information that

indirectly reveals the contents of such reports.

621

Such reports typically disclose the financial

status and dealings of the institutions that file them. Section 552.112 does not protect general

information about the overall condition of an industry if the information does not identify

particular institutions under investigation or supervision.

622

An entity must be a “financial

institution” for its examination, operating, or condition reports to be excepted by section 552.112;

it is not sufficient that the entity is regulated by an agency that regulates or supervises financial

institutions.

623

The attorney general has stated that the term “financial institution” means “any

banking corporation or trust company, building and loan association, governmental agency,

insurance company, or related corporation, partnership, foundation, or the other institutions

engaged primarily in lending or investing funds.”

624

Notably, a Texas appeals court decision,

Birnbaum v. Alliance of Am. Insurers,

625

held that insurance companies are not “financial

institutions” under section 552.112, overruling the determination in Open Records Decision No.

158 (1977) that insurance companies were “financial institutions” under the statutory predecessor

to the section. Section 552.112 is a permissive exception that a governmental body may waive at

its discretion.

626

Thus, section 552.112 only protects the interests of a governmental body, rather

than the interests of third parties.

The following open records decisions have considered whether information is excepted from

required public disclosure under section 552.112:

Open Records Decision No. 483 (1987) — Texas Savings and Loan Department report

containing a general discussion of the condition of the industry that does not identify particular

institutions under investigation or supervision is not excepted from disclosure;

Open Records Decision No. 392 (1983) — material collected by the Consumer Credit

Commissioner in an investigation of loan transactions was not protected by the statutory

predecessor to section 552.112 when the requested information did not consist of a detailed

description of the complete financial status of the company being investigated but rather

621

See generally Open Records Decision Nos. 261 (1980), 29 (1974).

622

Open Records Decision No. 483 at 9 (1987).

623

Open Records Decision No. 158 at 4-5 (1977).

624

Open Records Decision No. 158 at 5 (1977); see also Open Records Decision No. 392 at 3 (1983).

625

Birnbaum v. Alliance of Am. Insurers, 994 S.W.2d 766 (Tex. App.—Austin 1999, pet. denied).

626

Birnbaum v. Alliance of Am. Insurers, 994 S.W.2d 766 (Tex. App.—Austin 1999, pet. denied).

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consisted of the records of the company’s particular transactions with persons filing consumer

complaints;

Open Records Decision No. 261 (1980) — form acknowledgment by bank board of directors

that Department of Banking examination report had been received is excepted from disclosure

where acknowledgment would reveal the conclusions reached by the department;

Open Records Decision No. 194 (1978) — pawn shop license application that includes

information about applicant’s net assets to assess compliance with Texas Pawnshop Act is not

excepted from disclosure because such information does not qualify as an examination,

operating, or condition report;

Open Records Decision No. 187 (1978) — property development plans submitted by a credit

union to the Credit Union Department were excepted from disclosure by the statutory

predecessor to section 552.112 because submission included detailed presentation of credit

union’s conditions and operations and the particular proposed investment; and

Open Records Decision No. 130 (1976) — investigative file of the enforcement division of the

State Securities Board is excepted from disclosure.

P. Section 552.113: Confidentiality of Geological or Geophysical

Information

Section 552.113 of the Government Code makes confidential electric logs under Subchapter M,

Chapter 91, of the Natural Resources Code, and geological or geophysical information or data,

including maps concerning wells, except when filed in connection with an application or

proceeding before an agency. This exception also applies to geological, geophysical, and

geochemical information, including electric logs, filed with the General Land Office, and includes

provisions for the expiration of confidentiality of “confidential material,” as that term is defined,

and the use of such material in administrative proceedings before the General Land Office.

Section 552.113 of the Government Code provides as follows:

(a) Information is excepted from the requirements of Section 552.021 if it is:

(1) an electric log confidential under Subchapter M, Chapter 91, Natural Resources

Code;

(2) geological or geophysical information or data, including maps concerning wells,

except information filed in connection with an application or proceeding before

an agency; or

(3) confidential under Subsections (c) through (f).

(b) Information that is shown to or examined by an employee of the General Land Office,

but not retained in the land office, is not considered to be filed with the land office.

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(1) “Confidential material” includes all well logs, geological, geophysical,

geochemical, and other similar data, including maps and other interpretations

of the material filed in the General Land Office:

(A) in connection with any administrative application or proceeding before the

land commissioner, the school land board, any board for lease, or the

commissioner’s or board’s staff; or

(B) in compliance with the requirements of any law, rule, lease, or agreement.

(2) “Electric logs” has the same meaning as it has in Chapter 91, Natural Resources

Code.

(3) “Administrative applications” and “administrative proceedings” include

applications for pooling or unitization, review of shut-in royalty payments,

review of leases or other agreements to determine their validity, review of any

plan of operations, review of the obligation to drill offset wells, or an application

to pay compensatory royalty.

(d) Confidential material, except electric logs, filed in the General Land Office on or

after September 1, 1985, is public information and is available to the public under

Section 552.021 on and after the later of:

(1) five years from the filing date of the confidential material; or

(2) one year from the expiration, termination, or forfeiture of the lease in connection

with which the confidential material was filed.

(e) Electric logs filed in the General Land Office on or after September 1, 1985, are

either public information or confidential material to the same extent and for the

same periods provided for the same logs by Chapter 91, Natural Resources Code.

A person may request that an electric log that has been filed in the General Land

Office be made confidential by filing with the land office a copy of the written

request for confidentiality made to the Railroad Commission of Texas for the same

log.

(f) The following are public information:

(1) electric logs filed in the General Land Office before September 1, 1985; and

(2) confidential material, except electric logs, filed in the General Land Office

before September 1, 1985, provided, that Subsection (d) governs the disclosure

of that confidential material filed in connection with a lease that is a valid and

subsisting lease on September 1, 1995.

(g) Confidential material may be disclosed at any time if the person filing the material,

or the person’s successor in interest in the lease in connection with which the

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

125

confidential material was filed, consents in writing to its release. A party consenting

to the disclosure of confidential material may restrict the manner of disclosure and

the person or persons to whom the disclosure may be made.

(h) Notwithstanding the confidential nature of the material described in this section,

the material may be used by the General Land Office in the enforcement, by

administrative proceeding or litigation, of the laws governing the sale and lease of

public lands and minerals, the regulations of the land office, the school land board,

or of any board for lease, or the terms of any lease, pooling or unitization agreement,

or any other agreement or grant.

(i) An administrative hearings officer may order that confidential material introduced

in an administrative proceeding remain confidential until the proceeding is finally

concluded, or for the period provided in Subsection (d), whichever is later.

(j) Confidential material examined by an administrative hearings officer during the

course of an administrative proceeding for the purpose of determining its

admissibility as evidence shall not be considered to have been filed in the General

Land Office to the extent that the confidential material is not introduced into

evidence at the proceeding.

(k) This section does not prevent a person from asserting that any confidential material

is exempt from disclosure as a trade secret or commercial information under

Section 552.110 or under any other basis permitted by law.

Open Records Decision No. 627 (1994) interpreted the predecessor to the current version of

section 552.113 as follows:

[S]ection 552.113 excepts from required public disclosure all “geological or geophysical

information or data including maps concerning wells,” unless the information is filed in

connection with an application or proceeding before an agency . . .. We interpret “geological

or geophysical information” as section 552.113(2) uses the term to refer only to geological and

geophysical information regarding the exploration or development of natural resources.

[Footnote omitted] Furthermore, we reaffirm our prior determination that section 552.113

protects only geological and geophysical information that is commercially valuable. See

Open Records Decision Nos. 504 (1988) at 2; 479 (1987) at 2. Thus, we conclude that

section 552.113(2) protects from public disclosure only (i) geological and geophysical

information regarding the exploration or development of natural resources that is (ii)

commercially valuable.

627

The decision explained that the phrase “information regarding the exploration or development of

natural resources” signifies “information indicating the presence or absence of natural resources

in a particular location, as well as information indicating the extent of a particular deposit or

accumulation.”

628

627

Open Records Decision No. 627 at 3-4 (1994) (footnote omitted).

628

Open Records Decision No. 627 at 4 n.4 (1994).

Exceptions to Disclosure

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126

Open Records Decision No. 627 (1994) overruled Open Records Decision No. 504 (1988) to the

extent the two decisions are inconsistent. In Open Records Decision No. 504 (1988), the attorney

general had interpreted the statutory predecessor to section 552.113 of the Government Code to

require the application of a test similar to the test used at that time to determine whether the

statutory predecessor to section 552.110 protected commercial information (including trade secrets)

from required public disclosure. Under that test, commercial information was “confidential” for

purposes of the exemption if disclosure of the information was likely to have either of the following

effects: (1) to impair the government’s ability to obtain necessary information in the future; or (2)

to cause substantial harm to the competitive position of the person from whom the information

was obtained.

629

Following the issuance of Open Records Decision No. 504 (1988), the attorney general articulated

new tests for determining whether section 552.110 of the Government Code protects trade secret

information and commercial and financial information from required public disclosure.

630

Thus,

Open Records Decision No. 627 (1994) re-examined the attorney general’s reliance upon the

former tests for section 552.110 to determine the applicability of section 552.113. That decision

noted that section 552.113, as the legislature originally enacted it, differed from its federal

counterpart

631

in that the statutory predecessor to section 552.113 excepted from its scope

“information filed in connection with an application or proceeding before any agency.”

632

Thus,

the state exception to required public disclosure exempted a more limited class of information than

did the federal exemption.

633

Consequently, the decision determined that grafting the balancing

test used to limit the scope of the federal exemption to the plain language of section 552.113 was

unnecessary.

634

Since the current version of section 552.113 took effect on September 1, 1995,

there have been no published court decisions interpreting the amended statute or the validity of

Open Records Decision No. 627 (1994) in light of the amendments to the statute.

The attorney general, however, has interpreted the term “commercially valuable” in a subsequent

decision. In Open Records Decision No. 669 (2000), the attorney general applied section 552.113

to digital mapping information supplied to the General Land Office by a third party. The specific

information at issue was information that the third party allowed to be disclosed to the public.

635

The attorney general held that the information was not protected under section 552.113 because

the information was publicly available and thus was not commercially valuable.

636

Therefore, in

order to be commercially valuable for purposes of Open Records Decision No. 627 (1994) and

section 552.113, information must not be publicly available.

637

When a governmental body believes requested information of a third party may be excepted

under this exception, the governmental body must notify the third party in accordance with

629

Open Records Decision No. 504 at 4 (1988).

630

See Open Records Decision Nos. 592 at 2-8 (1991), 552 at 2-5 (1990).

631

5 U.S.C. § 552(b)(9).

632

Open Records Decision No. 627 at 2-3 (1994).

633

Open Records Decision No. 627 at 2-3 (1994).

634

Open Records Decision No. 627 at 2-3 (1994).

635

Open Records Decision No. 669 at 6 (2000).

636

Open Records Decision No. 669 at 6 (2000).

637

Open Records Decision No. 627 at 2-3 (1994).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

127

section 552.305. The notice the governmental body must send to the third party is found in Part

Seven of this Handbook.

Q. Sections 552.026 and 552.114: Confidentiality of Student Records

The Public Information Act includes two provisions relating to student records, sections 552.026

and 552.114 of the Government Code.

1. Family Educational Rights and Privacy Act of 1974

Section 552.026 incorporates into the Texas Public Information Act the federal Family Educational

Rights and Privacy Act of 1974,

638

also known as “FERPA” or the “Buckley Amendment.”

639

FERPA governs the availability of student records held by educational institutions or agencies that

receive federal funds under programs administered by the federal government. It prohibits, in most

circumstances, the release of personally identifiable information contained in a student’s education

records without a parent’s written consent.

640

It also gives parents a right to inspect the education

records of their children.

641

If a student has reached age 18 or is attending an institution of post-

secondary education, the rights established by FERPA attach to the student rather than to the

student’s parents.

642

“Education records” for purposes of FERPA are records that contain

information directly related to a student and that are maintained by an educational institution or

agency.

643

Information must be withheld from required public disclosure under FERPA only to the extent

“reasonable and necessary to avoid personally identifying a particular student.”

644

Personally

identifying information is defined as including, but not limited to, the following information:

(a) The student’s name;

(b) The name of the student’s parent or other family members;

(d) A personal identifier, such as the student’s social security number, student number, or

biometric record;

(e) Other indirect identifiers, such as the student’s date of birth, place of birth, and mother’s

maiden name;

638

20 U.S.C. § 1232g.

639

See Open Records Decision No. 72 (1975) (compliance with federal law was required before enactment of statutory

predecessor to Gov’t Code § 552.026).

640

20 U.S.C. § 1232g(b)(1).

641

20 U.S.C. § 1232g(a)(1).

642

20 U.S.C. § 1232g(d).

643

20 U.S.C. § 1232g(a)(4)(A).

644

Open Records Decision Nos. 332 (1982), 206 (1978).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

128

(f) Other information that, alone or in combination, is linked or linkable to a specific student

that would allow a reasonable person in the school community, who does not have

personal knowledge of the relevant circumstances, to identify the student with reasonable

certainty; or

(g) Information requested by a person who the educational agency or institution reasonably

believes knows the identity of the student to whom the education record relates.

645

An educational institution or agency may, however, release “directory information” to the public

if the educational institution or agency complies with certain procedures.

646

Directory information

includes, but is not limited to, the following information: “the student’s name; address; telephone

listing; electronic mail address; photograph; date and place of birth; major field of study; grade

level; enrollment status (e.g., undergraduate or graduate, full-time or part-time); dates of

attendance; participation in officially recognized activities and sports; weight and height of

members of athletic teams; degrees, honors, and awards received; and the most recent educational

agency or institution attended.”

647

The attorney general has determined that marital status and

expected date of graduation also constitute directory information.

648

University police department records concerning students previously were held to be education

records for the purposes of FERPA.

649

However, FERPA was amended, effective July 23, 1992,

to provide that the term “education records” does not include “records maintained by a law

enforcement unit of the educational agency or institution that were created by that law enforcement

unit for the purpose of law enforcement.”

650

On the basis of this provision, records created by a

campus police department are not excepted from required public disclosure by section 552.026 of

the Government Code.

651

FERPA applies only to records at educational institutions or agencies receiving federal funds and

does not govern access to records in the custody of governmental bodies that are not educational

institutions or agencies.

652

An “educational agency or institution” is “any public or private agency

or institution” that receives federal funds under an applicable program.

653

Thus, an agency or

institution need not instruct students in order to qualify as an educational agency or institution

under FERPA. If education records are transferred by a school district or state institution of higher

education to a state administrative agency concerned with education, federal regulations provide

that the education records in the administrative agency’s possession are subject to FERPA.

654

645

34 C.F.R. § 99.3.

646

See 20 U.S.C. § 1232g(a)(5)(B).

647

34 C.F.R. § 99.3.

648

Open Records Decision No. 96 (1975); see also Open Records Decision Nos. 244 (1980) (student rosters public),

242 (1980) (student parking permit information public), 193 (1978) (report of accident insurance claims paid to

identifiable students not public).

649

See Open Records Decision Nos. 342 at 2-3 (1982), 205 at 2 (1978).

650

20 U.S.C. § 1232g(a)(4)(B)(ii).

651

Open Records Decision No. 612 at 2 (1992) (campus police department records were not excepted by statutory

predecessor to Gov’t Code § 552.101, incorporating FERPA, or statutory predecessor to Gov’t Code § 552.114).

652

See Open Records Decision No. 390 at 3 (1983) (City of Fort Worth is not “educational agency” within FERPA).

653

20 U.S.C. § 1232g(a)(3).

654

20 U.S.C. § 1232g(b)(1)(E), (b)(4)(B); 34 C.F.R. §§ 99.31, .33, .35.

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

129

If there is a conflict between the provisions of the state Public Information Act and FERPA, the

federal statute prevails.

655

However, the attorney general has been informed by the Family Policy

Compliance Office of the United States Department of Education that parents’ rights to

information about their children under FERPA do not prevail over school districts’ rights to assert

the attorney-client and work product privileges.

656

As a general rule, however, exceptions to

disclosure under the Public Information Act do not apply to a request by a student or parent for the

student’s own education records pursuant to FERPA.

657

In Open Records Decision No. 634 (1995), the attorney general stated that an educational agency

or institution that seeks a ruling under the Public Information Act should, before submitting

“education records” to the attorney general, either obtain parental consent to the disclosure of

personally identifiable nondirectory information in the records or edit the records to make sure that

they contain no personally identifiable nondirectory information. Subsequent correspondence

from the United States Department of Education advised that educational agencies and institutions

may submit personally identifiable information subject to FERPA to the attorney general for

purposes of obtaining rulings as to whether information contained therein must be withheld under

FERPA or state law.

658

In 2006, however, the United States Department of Education Family

Policy Compliance Office informed the attorney general that FERPA does not permit state and

local educational authorities to disclose to the attorney general, without parental consent,

unredacted, personally identifiable information contained in education records for the purpose of

our review in the open records ruling process under the Public Information Act.

659

Consequently,

state and local educational authorities that receive a request for education records from a member

of the public under the Public Information Act must not submit education records to the attorney

general in unredacted form, that is, in a form in which “personally identifiable information” is

disclosed.

660

Because the attorney general is prohibited from reviewing these education records

to determine whether appropriate redactions under FERPA have been made, the attorney general

will not address the applicability of FERPA to any records submitted as part of a request for

decision. Such determinations under FERPA must be made by the educational authority in

possession of the education records.

661

Questions about FERPA should be directed to the

following agency:

Family Policy Compliance Office

U.S. Department of Education

400 Maryland Ave., S.W.

Washington, D.C. 20202-5920

1-800-USA-LEARN (1-800-872-5327)

655

Open Records Decision No. 431 (1985).

656

Letter from LeRoy S. Rooker, Director, Family Policy Compliance Office, United States Dep’t of Educ., to Keith

B. Kyle (July 1999) (on file with the Open Records Division, Office of the Attorney General).

657

Open Records Decision No. 431 at 3 (1985).

658

See Letter from LeRoy S. Rooker, Director, Family Policy Compliance Office, United States Dep’t of Educ., to

David Anderson, Chief Counsel, Tex. Educ. Agency (April 29, 1998) (on file with the Open Records Division,

Office of the Attorney General).

659

This letter is available on the attorney general’s website at https://www.texasattorneygeneral.gov/files/og/20060725usdoe.pdf.

660

See 34 C.F.R. § 99.3 (defining “personally identifiable information”).

661

In the future, if an educational authority does obtain parental consent to submit unredacted education records and

the educational authority seeks a ruling from the attorney general on the proper redaction of those education records

in compliance with FERPA, we will rule accordingly.

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

130

2. Section 552.114: Confidentiality of Student Records

(a) In this section, “student record” means:

(1) information that constitutes education records as that term is defined by the

Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section

1232g(a)(4)); or

(2) information in a record of an applicant for admission to an educational

institution, including a transfer applicant.

(b) Information is confidential and excepted from the requirements of Section 552.021

if it is information in a student record at an educational institution funded wholly

or partly by state revenue. This subsection does not prohibit the disclosure or

provision of information included in an education record if the disclosure or

provision is authorized by 20 U.S.C. Section 1232g or other federal law.

(1) educational institution personnel;

(2) the student involved or the student’s parent, legal guardian, or spouse; or

(3) a person conducting a child abuse investigation required by Subchapter D,

Chapter 261, Family Code.

(d) Except as provided by Subsection (e), an educational institution may redact

information covered under Subsection (b) from information disclosed under Section

552.021 without requesting a decision from the attorney general.

(e) If an applicant for admission to an educational institution described by Subsection

(b) or a parent or legal guardian of a minor applicant to an educational institution

described by Subsection (b) requests information in the record of the applicant, the

educational institution shall disclose any information that:

(1) is related to the applicant’s application for admission; and

(2) was provided to the educational institution by the applicant.

“Student record” means both information that constitutes an education record under FERPA and

information in the record of an applicant for admission to an educational institution, including a

transfer applicant.

662

Section 552.114(b) deems information in a student record confidential and

states subsection (b) does not prohibit the release of an education record authorized by FERPA or

other federal law.

663

Section 552.114(c) recognizes a right of access to student records for certain

662

Gov’t Code § 552.114(a).

663

Gov’t Code § 552.114(b).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

131

enumerated individuals.

664

Subsection (d) permits an educational institution to redact information

in a student record without requesting an attorney general decision.

665

Subsection (e) gives an

applicant for admission, or the parent or legal guardian of a minor applicant, a right of access to

information that is related to the applicant’s admission application and was provided to the

educational institution by the applicant.

666

R. Section 552.115: Confidentiality of Birth and Death Records

Section 552.115 of the Government Code provides as follows:

(a) A birth or death record maintained by the vital statistics unit of the Texas

Department of State Health Services or a local registration official is excepted from

[required public disclosure], except that:

(1) a birth record is public information and available to the public on and after the

75th anniversary of the date of birth as shown on the record filed with the vital

statistics unit or local registration official;

(2) a death record is public information and available to the public on and after the

25th anniversary of the date of death as shown on the record filed with the vital

statistics unit or local registration official, except that if the decedent is

unidentified, the death record is public information and available to the public

on and after the first anniversary of the date of death;

(3) a general birth index or a general death index established or maintained by the

vital statistics unit or a local registration official is public information and

available to the public to the extent the index relates to a birth record or death

record that is public information and available to the public under Subdivision

(1) or (2);

(4) a summary birth index or a summary death index prepared or maintained by

the vital statistics unit or a local registration official is public information and

available to the public; and

(5) a birth or death record is available to the chief executive officer of a home-rule

municipality or the officer’s designee if:

(A) the record is used only to identify a property owner or other person to

whom the municipality is required to give notice when enforcing a state

statute or an ordinance;

(B) the municipality has exercised due diligence in the manner described by

Section 54.035(e), Local Government Code, to identify the person; and

664

Gov’t Code § 552.114(c).

665

Gov’t Code § 552.114(d).

666

Gov’t Code § 552.114(e).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

132

(i) the information not be disclosed outside the office of the officer or

designee, or within the office for a purpose other than the purpose

described by Paragraph (A);

(ii) the information be labeled as confidential;

(iii) the information be kept securely; and

(iv) the number of copies made of the information or the notes taken from

the information that implicate the confidential nature of the

information be controlled, with all copies or notes that are not

destroyed or returned remaining confidential and subject to the

confidentiality agreement.

(b) Notwithstanding Subsection (a), a general birth index or a summary birth index is

not public information and is not available to the public if:

(1) the fact of an adoption or paternity determination can be revealed by the index;

(2) the index contains specific identifying information relating to the parents of a

child who is the subject of an adoption placement.

Genealogical Society of Utah, a nonprofit corporation organized under the laws of

the State of Utah, and the Archives and Information Services Division of the Texas

State Library and Archives Commission.

(d) For the purposes of fulfilling the terms of the agreement in Subsection (c), the

Genealogical Society of Utah shall have access to birth records on and after the 50th

anniversary of the date of birth as shown on the record filed with the bureau of vital

statistics or local registration official, but such birth records shall not be made

available to the public until the 75th anniversary of the date of birth as shown on

the record.

Section 552.115 specifically applies to birth and death records of a local registration official as

well as to those of the Texas Department of State Health Services.

667

This section does not apply

to birth or death records maintained by other governmental bodies.

668

Until the time limits set out

above have passed, a birth or death record may be obtained from the Vital Statistics Unit (the

“Unit”) of the Texas Department of State Health Services only in accordance with chapter 192 of

the Health and Safety Code.

669

While birth records over seventy-five years old and death records

over twenty-five years old are not excepted from disclosure under the Public Information Act, a

667

Gov’t Code § 552.115(a).

668

See Open Records Decision No. 338 (1982).

669

See generally Open Records Decision No. 596 (1991) (regarding availability of adoption records).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

133

local registrar of the Unit

670

is required by title 3 of the Health and Safety Code and rules

promulgated thereunder to deny physical access to these records and to provide copies of them for

a certain fee.

671

These specific provisions prevail over the more general provisions in the Act

regarding inspection and copying of public records.

672

Section 552.115 specifically makes public a summary birth index and summary death index and

also makes public a general birth index or general death index to the extent that it relates to birth

or death records that would be public information under the section.

673

However, a general or

summary birth index is not public information if it reveals the fact of an adoption or paternity

determination or contains identifying information relating to the parents of a child who is the

subject of an adoption placement.

674

Although the Act contains no language that defines the

categories of information that comprise each type of index, the Texas Department of State Health

Services has promulgated administrative rules that define each type of index.

675

In pertinent part,

the current rule, which took effect August 11, 2013, provides as follows:

(b) Birth indexes.

(1) General birth indexes maintained or established by the Vital Statistics Unit or a

local registration official shall be prepared by event year, in alphabetical order

by surname of the registrant, followed by any given names or initials, the date

of the event, the county of occurrence, the state or local file number, the name

of the father, the maiden name of the mother, and sex of the registrant.

(2) A general birth index is public information and available to the public to the

extent the index relates to a birth record that is public on or after the 75th

anniversary of the date of birth as shown on the record unless the fact of an

adoption or paternity determination can be revealed or broken or if the index

contains specific identifying information relating to the parents of the child who

is the subject of an adoption placement. The Vital Statistics Unit and local

registration officials shall expunge or delete any state or local file numbers

included in any general birth index made available to the public because such

file numbers may be used to discover information concerning specific adoptions,

paternity determinations, or the identity of the parents of children who are the

subjects of adoption placements.

670

See Health & Safety Code § 191.022(c), (f).

671

See Attorney General Opinion DM-146 at 2 (1992); see also Attorney General Opinion MW-163 (1980).

672

Attorney General Opinion DM-146 at 5 (1992).

673

Gov’t Code § 552.115(a).

674

Gov’t Code § 552.115(b).

675

Absent specific authority, a governmental body may not generally promulgate a rule that makes information

confidential so as to except the information from required public disclosure pursuant to section 552.101 of the Act.

See Gov’t Code § 552.101; see also Open Records Decision Nos. 484 (1987), 392 (1983), 216 (1978). In the instant

case, however, the attorney general has found the predecessor agency to the Texas Department of State Health

Services has been granted specific authority by the legislature to promulgate administrative rules that dictate the

public availability of information contained in and derived from vital records. See Open Records Decision

No. 596 (1991).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

134

(3) A summary birth index maintained or established by the Vital Statistics Unit or

a local registration official shall be prepared by event year, in alphabetical order

by surname of the registrant, followed by any given names or initials, the date

of the event, the county of occurrence, and sex of the registrant. A summary

birth index or any listings of birth records are not available to the public for

searching or inspection if the fact of adoption or paternity determination can be

revealed from specific identifying information.

(1) A general death index maintained or established by the Vital Statistics Unit or

a local registration official shall be prepared by event year, in alphabetical order

by surname of the registrant, followed by any given names or initials; the date

of the event; the county of occurrence; the registrant’s social security number,

sex, and marital status; the name of the registrant’s spouse, if applicable; and

the state or local file number.

(2) A general death index is public information and available to the public to the

extent the index relates to a death record that is public on or after the 25th

anniversary of the date of death as shown on the record.

(3) A summary death index maintained or established by the Vital Statistics Unit or

a local registration official shall be prepared by event year, in alphabetical order

by surname of the registrant, followed by any given names or initials, the date

of the event, the county of occurrence, and sex of the registrant.

676

Thus, the term “summary birth index” as used in section 552.115 refers to a list in alphabetical

order by surname of the child, and its contents are limited to the child’s name, date of birth, county

of birth, and sex. Additionally, the term “general birth index” refers to a list containing only those

categories of information that comprise a “summary birth index,” with the additional categories of

the file number and the parents’ names. The term “summary death index” as used in section

552.115 refers to a list in alphabetical order by surname of the deceased, and its contents are limited

to the deceased’s name or initials, date of death, county of death, and sex. Furthermore, the term

“general death index” refers to the same categories of information that comprise a “summary death

index,” with the additional categories of marital status, name of the deceased’s spouse, if

applicable, and file number.

Section 552.115 also provides that a birth or death record may be made available in certain

circumstances to the chief executive officer of a home rule municipality to aid in the identification

of a property owner.

677

S. Section 552.116: Audit Working Papers

Section 552.116 of the Government Code provides as follows:

676

25 T.A.C. § 181.23(b)-(c).

677

Gov’t Code § 552.115(a).

Exceptions to Disclosure

2024 Public Information Handbook • Office of the Attorney General

135

(a) An audit working paper of an audit of the state auditor or the auditor of a state

agency, an institution of higher education as defined by Section 61.003, Education

Code, a county, a municipality, a school district, a hospital district, or a joint board

operating under Section 22.074, Transportation Code, including any audit relating

to the criminal history background check of a public school employee, is excepted

from the requirements of Section 552.021. If information in an audit working paper

is also maintained in another record, that other record is not excepted from the

requirements of Section 552.021 by this section.

(b) In this section:

(1) “Audit” means an audit authorized or required by a statute of this state or the

United States, the charter or an ordinance of a municipality, an order of the

commissioners court of a county, the bylaws adopted by or other action of the

governing board of a hospital district, a resolution or other action of a board of

trustees of a school district, including an audit by the district relating to the

criminal history background check of a public school employee, or a resolution

or other action of a joint board described by Subsection (a) and includes an

investigation.

(2) “Audit working paper” includes all information, documentary or otherwise,

prepared or maintained in conducting an audit or preparing an audit report,

including:

(A) intra-agency and interagency communications; and

(B) drafts of the audit report or portions of those drafts.

“Audit working paper” is defined as including all information prepared or maintained in

conducting an audit or preparing an audit report including intra-agency or interagency

communications and drafts of audit reports.

678

A governmental body that invokes section 552.116

must demonstrate the audit working papers are from an audit authorized or required by an authority

mentioned in section 552.116(b)(1) and must identify that authority. To the extent information in

an audit working paper is also maintained in another record, such other record is not excepted by

section 552.116, although such other record may be withheld from public disclosure under the

Act’s other exceptions.

679

There are no cases or formal opinions interpreting the current version

of section 552.116.

T. Section 552.117: Confidentiality of Certain Addresses, Telephone

Numbers, Social Security Numbers, and Personal Family Information

The 88th Legislature passed two bills, Senate Bill 870 and House Bill 4504, amending section

552.117 of the Government Code. Section 552.117 excepts from required public disclosure:

678

Gov’t Code § 552.116(b).

679

Gov’t Code § 552.116(a).

Exceptions to Disclosure

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(a) [I]nformation that relates to the home address, home telephone number, emergency

contact information, or social security number of the following person or that

reveals whether the person has family members:

(1) a current or former official or employee of a governmental body, except as

otherwise provided by Section 552.024;

(2) a current or honorably retired peace officer as defined by Article 2.12, Code

of Criminal Procedure, or a current or honorably retired security officer

commissioned under Section 51.212, Education Code, regardless of whether

the officer complies with Section 552.024 or 552.1175, as applicable;

(3) a current or former employee of the Texas Department of Criminal Justice or

of the predecessor in function of the department or any division of the

department, regardless of whether the current or former employee complies

with Section 552.1175;

(4) a peace officer as defined by Article 2.12, Code of Criminal Procedure, or

other law, a reserve law enforcement officer, a commissioned deputy game

warden, or a corrections officer in a municipal, county, or state penal

institution in this state who was killed in the line of duty, regardless of whether

the deceased complied with Section 552.024 or 552.1175;

(5) a commissioned security officer as defined by Section 1702.002, Occupations

Code, regardless of whether the officer complies with Section 552.024 or

552.1175, as applicable;

(6) an officer or employee of a community supervision and corrections

department established under Chapter 76 who performs a duty described by

Section 76.004(b), regardless of whether the officer or employee complies with

Section 552.024 or 552.1175;

(7) a current or former employee of the office of the attorney general who is or

was assigned to a division of that office the duties of which involve law

enforcement or are performed under Chapter 231, Family Code, regardless of

whether the current or former employee complies with Section 552.024 or

552.1175;

(8) a current or former employee of the Texas Juvenile Justice Department or of

the predecessors in function of the department, regardless of whether the

current or former employee complies with Section 552.024 or 552.1175;

(9) a current or former juvenile probation or supervision officer certified by the

Texas Juvenile Justice Department, or the predecessors in function of the

department, under Title 12, Human Resources Code, regardless of whether

the current or former officer complies with Section 552.024 or 552.1175;

Exceptions to Disclosure

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137

(10) a current or former employee of a juvenile justice program or facility, as those

terms are defined by Section 261.405, Family Code, regardless of whether the

current or former employee complies with Section 552.024 or 552.1175;

(11) a current or former member of the United States Army, Navy, Air Force,

Coast Guard, or Marine Corps, an auxiliary service of one of those branches

of the armed forces, or the Texas military forces, as that term is defined by

Section 437.001;

(12) a current or former district attorney, criminal district attorney, or county or

municipal attorney whose jurisdiction includes any criminal law or child

protective services matters, regardless of whether the current or former

attorney complies with Section 552.024 or 552.1175;

(13) a current or former employee of a district attorney, criminal district attorney,

or county or municipal attorney whose jurisdiction includes any criminal law

or child protective services matters, regardless of whether the current or

former employee complies with Section 552.024 or 552.1175;

(14) a current or former employee of the Texas Civil Commitment Office or of the

predecessor in function of the office or a division of the office, regardless of

whether the current or former employee complies with Section 552.024 or

552.1175;

(15) a current or former federal judge or state judge, as those terms are defined by

Section 1.005, Election Code, a federal bankruptcy judge, a marshal of the

United States Marshal Service, a United States attorney, or a family member

of a current or former federal judge, including a federal bankruptcy judge, a

marshal of the United States Marshal Service, a United States attorney, or a

state judge;

(16) a current or former child protective services caseworker, adult protective

services caseworker, or investigator for the Department of Family and

Protective Services, regardless of whether the caseworker or investigator

complies with Section 552.024 or 552.1175, a current or former employee of a

department contractor performing child protective services caseworker, adult

protective services caseworker, or investigator functions for the contractor on

behalf of the department;

(17) an elected public officer, regardless of whether the officer complies with

Section 552.024 or 552.1175;

(18) a current or former United States attorney, assistant United States attorney,

federal public defender and the spouse or child of the current or former

attorney or public defender, regardless of whether the person complies with

Section 552.024 or 552.1175; or

Exceptions to Disclosure

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138

(19) a firefighter or volunteer firefighter or emergency medical services personnel

as defined by Section 773.003, Health and Safety Code, regardless of whether

the firefighter or volunteer firefighter or emergency medical services

personnel comply with Section 552.024 or 552.1175, as applicable.

(b) All documents filed with a county clerk and all documents filed with a district clerk

are exempt from this section.

Finance Code.

Additionally, the amendments to subsections 552.117(a)(2) and (a)(4) made by Senate Bill 4504

become effective January 1, 2025, and provide information of the following persons are excepted

from disclosure under section 552.117:

(2) a current or honorably retired peace officer as defined by Article 2A.001, Code

of Criminal Procedure, or a current or honorably retired security officer

commissioned under Section 51.212, Education Code, regardless of whether

the officer complies with Section 552.024 or 552.1175, as applicable; [or]

. . .

(4) a peace officer as defined by Article 2A.001, Code of Criminal Procedure, or

other law, a reserve law enforcement officer, a commissioned deputy game

warden, or a corrections officer in a municipal, county, or state penal

institution in this state who was killed in the line of duty, regardless of whether

the deceased complied with Section 552.024 or 552.1175[.]

Section 552.117 excepts from public disclosure a listed person’s home address, home telephone

number, emergency contact information, social security number, and information that reveals

whether the person has family members.

680

Generally, a governmental body may not invoke

section 552.117 as a basis for withholding an official’s or an employee’s home address and

telephone number if another law, such as a state statute expressly authorizing child support

enforcement officials to obtain information to locate absent parents, requires the release of such

information.

681

Because the subsections of section 552.117 deal with different categories of

officials and employees and differ in their application, they are discussed separately below.

Subsection (a)(1): Public Officials and Employees

1. Section 552.117(a)(1) must be read together with section 552.024.

Section 552.024 of the Government Code provides as follows:

(a) Except as provided by Subsection (a-1), each employee or official of a governmental

body and each former employee or official of a governmental body shall choose

680

See Gov’t Code § 552.117(c) (“family member” has the meaning assigned by section 31.006 of the Finance Code).

681

See Open Records Decision No. 516 at 3 (1989).

Exceptions to Disclosure

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139

whether to allow public access to the information in the custody of the governmental

body that relates to the person’s home address, home telephone number, emergency

contact information, or social security number, or that reveals whether the person

has family members.

(a-1) A school district may not require an employee or former employee of the district to

choose whether to allow public access to the employee’s or former employee’s social

security number.

(b) Each employee and official and each former employee and official shall state that

person’s choice under Subsection (a) to the main personnel officer of the

governmental body in a signed writing not later than the 14th day after the date on

which:

(1) the employee begins employment with the governmental body;

(2) the official is elected or appointed; or

(3) the former employee or official ends service with the governmental body.

access to the information:

(1) the information is protected under Subchapter C; and

(2) the governmental body may redact the information from any information the

governmental body discloses under Section 552.021 without the necessity of

requesting a decision from the attorney general under Subchapter G.

(c-1) If, under Subsection (c)(2), a governmental body redacts or withholds information

without requesting a decision from the attorney general about whether the

information may be redacted or withheld, the requestor is entitled to seek a decision

from the attorney general about the matter. The attorney general by rule shall

establish procedures and deadlines for receiving information necessary to decide

the matter and briefs from the requestor, the governmental body, and any other

interested person. The attorney general shall promptly render a decision requested

under this subsection, determining whether the redacted or withheld information

was excepted from required disclosure to the requestor, not later than the 45th

business day after the date the attorney general received the request for a decision

under this subsection. The attorney general shall issue a written decision on the

matter and provide a copy of the decision to the requestor, the governmental body,

and any interested person who submitted necessary information or a brief to the

attorney general about the matter. The requestor or the governmental body may

appeal a decision of the attorney general under this subsection to a Travis County

district court.

Exceptions to Disclosure

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140

(c-2) A governmental body that redacts or withholds information under Subsection (c)(2)

shall provide the following information to the requestor on a form prescribed by the

attorney general:

(1) a description of the redacted or withheld information;

(2) a citation to this section; and

(3) instructions regarding how the requestor may seek a decision from the attorney

general regarding whether the redacted or withheld information is excepted

from required disclosure.

(d) If an employee or official or a former employee or official fails to state the person’s

choice within the period established by this section, the information is subject to

public access.

(e) An employee or official or former employee or official of a governmental body who

wishes to close or open public access to the information may request in writing that

the main personnel officer of the governmental body close or open access.

(f) This section does not apply to a person to whom Section 552.1175 applies.

Subsection (a)(1) pertains to a current or former official or employee of a governmental body.

To obtain the protection of section 552.117(a), an individual identified in subsection (a)(1) must

comply with section 552.024(c). If such an individual elects to withhold the individual’s home

address, home telephone number, emergency contact information, social security number, and

information that reveals whether the individual has family members, the governmental body may

redact such information without the necessity of requesting an attorney general decision. If a

governmental body chooses to redact this information without requesting an attorney general

decision, it must notify the requestor as prescribed section 552.024(c-2) on the form created by the

attorney general. The notice must include instructions regarding how the requestor may seek an

attorney general’s review of the governmental body’s redactions. The form for notifying the

requestor is published on the attorney general’s website. The legislation enacting these provisions

authorized the attorney general to promulgate rules establishing procedures for review under

section 552.024(c-1). These rules were promulgated in Subchapter B of chapter 63 of title 1 of

the Texas Administrative Code.

682

These rules are available on the attorney general’s website and

in Part Four of this Handbook.

In conjunction with section 552.024(a-1), section 552.147 of the Government Code makes social

security numbers of school district employees confidential. Thus, the social security number of

an employee of a school district is confidential in the custody of the school district even if the

employee does not elect confidentiality under section 552.024.

Significant decisions of the attorney general regarding sections 552.024 and 552.117 prior to the

recent amendments include the following:

682

See 1 T.A.C. §§ 63.11-.16.

Exceptions to Disclosure

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141

Open Records Decision No. 622 (1994) — statutory predecessor to section 552.117(a)(1)

excepts employees’ former home addresses and telephone numbers from required public

disclosure;

Open Records Decision No. 530 (1989) — addressing the time at which an employee may

exercise the options under the statutory predecessor to section 552.024;

Open Records Decision No. 506 (1988) — these provisions do not apply to telephone numbers

of mobile telephones that are provided to employees by a governmental body for work

purposes; and

Open Records Decision No. 455 (1987) — statutory predecessor to section 552.117(a)(1)

continued to except an employee’s home address and telephone number from required public

disclosure after the employment relationship ends; it did not except, as a general rule,

applicants’ or other private citizens’ home addresses and telephone numbers.

In addition, the attorney general has determined in informal rulings that section 552.117 can apply

to personal cellular telephone numbers of government employees as well as telephone numbers

that provide access to personal home facsimile machines of government employees.

683

The

attorney general has also determined that section 552.117 does not protect a post office box

number.

684

2. Subsections (a)(2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14), (15), (16), (17),

(18), and (19): Other Categories of Officers and Employees

As noted above, to obtain the protection of section 552.117, subsection (a)(1), an individual

identified in subsection (a)(1) must comply with the provisions of section 552.024. No action is

necessary, however, on the part of the personnel listed in subsections (a)(2)

685

, (3), (4), (5), (6),

(7), (8), (9), (10), (11), (12), (13), (14), (15), (16), (17), (18), and (19).

In Open Records Decision No. 670 (2001), the attorney general determined that all governmental

bodies may withhold the home address, home telephone number, personal cellular phone number,

personal pager number, social security number, and information that reveals whether the individual

has family members, of any individual who is subject to section 552.117(a)(2), without the

necessity of requesting an attorney general decision as to whether the exception under section

552.117(a)(2) applies. This decision may be relied on as a “previous determination” for the listed

information.

Subsection (a)(11), in part, pertains to a current or former member of the Texas military forces,

which are defined as the Texas National Guard, the Texas State Guard, and any other military

forces organized under state law.

686

In addition, section 437.232 of the Government Code protects

683

See, e.g., Open Records Letter Nos. 2002-1488 (2002), 2001-0050 (2001).

684

See Open Records Decision No. 622 at 6 (1994) (legislative history makes clear that purpose of section 552.117 is

to protect public employees from being harassed at home) (citing House Comm. on State Affairs, Bill Analysis, H.B.

1979, 69th Leg. (1985) (emphasis added)).

685

See Gov’t Code § 552.003(1-b) (defining “honorably retired” for purposes of the Act).

686

Gov’t Code § 437.001(14).

Exceptions to Disclosure

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certain information pertaining to service members.

687

The 88th Legislature passed House Bill

4615, which amended section 437.232 and provides as follows:

(a) In this section, “military personnel information” means a service member’s name,

Department of Defense identification number, home address, rank, official title, pay

rate or grade, state active duty orders, deployment locations, military duty

addresses, awards and decorations, length of military service, and medical records.

(b) A service member’s military personnel information is confidential and not subject

to disclosure under Chapter 552.

U. Section 552.1175: Confidentiality of Certain Personal Identifying

Information of Peace Officers and Other Officials Performing

Sensitive Governmental Functions

The 88th Legislature passed two bills, Senate Bill 870 and House Bill 4504, amending section

552.1175 of the Government Code. Section 552.1175 provides as follows:

(a) This section applies only to:

(1) current or honorably retired peace officers as defined by Article 2.12, Code of

Criminal Procedure, or special investigators as described by Article 2.122,

Code of Criminal Procedure;

(2) current or honorably retired county jailers as defined by Section 1701.001,

Occupations Code;

(3) current or former employees of the Texas Department of Criminal Justice or

of the predecessor in function of the department or any division of the

department;

(4) commissioned security officers as defined by Section 1702.002, Occupations

Code;

(5) a current or former district attorney, criminal district attorney, or county or

municipal attorney whose jurisdiction includes any criminal law or child

protective services matters;

(5-a) a current or former employee of a district attorney, criminal district attorney,

or county or municipal attorney whose jurisdiction includes any criminal law

or child protective services matters;

(6) officers and employees of a community supervision and corrections

department established under Chapter 76 who perform a duty described by

Section 76.004(b);

687

See Gov’t Code § 437.001(8) (defining “service member” for purposes of chapter 437 of the Government Code).

Exceptions to Disclosure

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(7) criminal investigators of the United States as described by Article 2.122(a),

Code of Criminal Procedure;

(8) current or honorably retired police officers and inspectors of the United States

Federal Protective Service;

(9) current and former employees of the office of the attorney general who are or

were assigned to a division of that office the duties of which involve law

enforcement or are performed under Chapter 231, Family Code;

(10) current or former juvenile probation and detention officers certified by the

Texas Juvenile Justice Department, or the predecessors in function of the

department, under Title 12, Human Resources Code;

(11) current or former employees of a juvenile justice program or facility, as those

terms are defined by Section 261.405, Family Code;

(12) current or former employees of the Texas Juvenile Justice Department or the

predecessors in function of the department;

(13) federal judges and state judges as defined by Section 1.005, Election Code;

(14) current or former employees of the Texas Civil Commitment Office or of the

predecessor in function of the office or a division of the office;

(15) a current or former member of the United States Army, Navy, Air Force,

Coast Guard, or Marine Corps, an auxiliary service of one of those branches

of the armed forces, or the Texas military forces, as that term is defined by

Section 437.001;

688

(16) a current or former child protective services caseworker, adult protective

services caseworker, or investigator for the Department of Family and

Protective Services or a current or former employee of a department

contractor performing child protective services caseworker, adult protective

services caseworker, or investigator functions for the contractor on behalf of

the department;

(17) an elected public officer; and

(18) a firefighter or volunteer firefighter or emergency medical services personnel

as defined by Section 773.003, Health and Safety Code.

(19) a current or former United States attorney, assistant United States attorney,

federal public defender, deputy federal public defender, or assistant federal

public defender.

688

See Gov’t Code § 437.001(14) (defining “Texas military forces” for purposes of chapter 437 of the Government Code).

Exceptions to Disclosure

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(b) Information that relates to the home address, home telephone number, emergency

contact information, date of birth, or social security number of an individual to

whom this section applies, or that reveals whether the individual has family

members is confidential and may not be disclosed to the public under this chapter

if the individual to whom the information relates:

(1) chooses to restrict public access to the information; and

(2) notifies the governmental body of the individual’s choice on a form provided

by the governmental body, accompanied by evidence of the individual’s status.

individual.

(d) This section does not apply to information in the tax appraisal records of an

appraisal district to which Section 25.025, Tax Code, applies.

(e) All documents filed with a county clerk and all documents filed with a district clerk

are exempt from this section.

(f) A governmental body may redact information that must be withheld under

Subsection (b) from any information the governmental body discloses under

Section 552.021 without the necessity of requesting a decision from the attorney

general under Subchapter G.

(g) If, under Subsection (f), a governmental body redacts or withholds information