Practical Tips for Understanding Public Information Act

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Updates and key information related to the Public Information Act, including legislative bills, definitions, and duties of temporary custodians and Public Information Coordinators. Learn about preserving records, obtaining information, and more.

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Public Information Act PRACTICAL TIPS 2020 BY LONA CHASTAIN STATE BAR OF TEXAS

Updates 2021 Legislative Bills 132 bills filed 18 bills passed with 58 sections affected House Bills 12 bills 81, 1351, 2174, 2446, 2828, 2910, 3091, 3175, 3913, 4170, 4171, 4173 Senate Bills 6 bills 494, 662, 943, 944, 988, 1494

Updates 2019 552.002 S.B. 944, Effective 9-1-2019 Adds new definition of Protected health information As defined in Section 181.006, Health and Safety Code, is not public information and is not subject to disclosure under this chapter. [Therefore, no AG requests for ruling required]

Updates 2019 552.003 S.B. 944 Added new definition of Temporary custodian An officer or employee (o/e) of a GB who, in the transaction of official business, creates or receives PI that the o/e has not provided to the officer for public information of the GB or the officer s agent. The term includes former o/e of a GB who creates or receives public information in the o/e s official capacity that has not been provided to the PIC or officer s agent.

Update 2019 552.004, S.B. 944 temporary custodians duty to preserve records if not turned over to agency consistent with rules or law governing destruction and other disposition of state and local government records or public information. Applies to current and former officers alike Tip: Develop a procedure to collect public information from employees. E.g., ongoing collection, archiving such as use of business devices, applications, have employees at exit certify they searched their personal devices and electronic records and turned over all; with no records remaining in their possession.

Update 2019 552.203(4) S.B 944 Adds new (4) to duties of PIC Requires PIC to obtain information from the temporary custodians The PIC must make reasonable efforts if Requested under PIA, and The PIC is aware of facts sufficient to warrant a reasonable belief that the TC has possession, custody, or control of the information The PIC is unable to comply with the duties imposed by chapter 552 without obtaining the information from the temporary custodian; and The TC has not provided the information to the PIC or their agent.

Update 2019 New 552.233-235 S.B. 944 Ownership of Public Information Method of Making Requests for Public Information Designate an address as well as fax and email Fax is no longer specifically required And use online portal form Several agencies are using online request centers to store responses for a period of time for requesters (OAG, Comptroller, DIR, TWC, UT Austin, etc.) UT goes further and provides the responses online for all to see. Public Information Request Form

Update 2019 New 552.233-235 S.B. 944 Ownership of Public Information A current or former officer or employee has no ownership of information created or received while acting in official capacity TC must surrender information to the GB not later than the 10thbusiness day after the date the PIC requests it A TC s failure to surrender or return the information is grounds for disciplinary action by the GB that employs the TC or any other applicable penalty provided by this chapter or other law [Tolling provision] The GB is considered to receive the request for that information on the date the information is surrendered or returned to the GB

Update 2019 552.234 New Section regarding Method of Making Written Requests for PI To the applicable officer for public information or a person designated by that officer by US mail, email, hand delivery, or NEW: any other appropriate method approved by the GV including fax and electronic submission through the GB Internet website. For the new section: the statement must be on the PI Poster or sign under 552.205 or The GB s Internet Website NEW: the GB may designate one mailing address and one electronic mail address, which must be provided to anyone requesting it. No need to respond if a request is received from other means.

Update 2019 552.235 New Section regarding PIA Form The AG shall create a PI request form by 10/1/2019, that provides options for excluding information that the GB determines is: Confidential or Subject to an exception to disclosure that the GB would assert if the information were subject to the request. A GB that allows requesters to use the form and maintains an Internet website shall post the form on its website. The previous language regarding email and fax is repealed because it is replaced by 552.234 and 552.235.

Update 2019 552.003 S.B. 943 eff. 1/1/2020 Amends definition of GB to include a confinement facility operated under a contract with a division of TDCJ, 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 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 Amends definition of GB to exclude an economic development entity that meets certain criteria

Update 2019 552.003 Adds definition of contracting information to include information sent by a GB or sent between a GB and a vendor, contractor, potential vendor, or potential contractor Information in vouchers or contract relating to receipt or expenditure of public funds by a GB Solicitation or bid documents relating to a contract with a GB Communications sent between a GB and a vendor, contractor, potential vendor, or potential contractor during the solicitation, evaluation, or negotiation of a contract Documents, including bid tabulations, showing the criteria by which a GB evaluates each vendor, contractor, potential vendor, or potential contractor responding to a solicitation and, if applicable, an explanation of why the vendor or contractor was selected, and Communications and other information send between the GB and a vendor or contractor relating to performance of a final contract with the GB or work performed on behalf of the GB

Update 2019 552.0222 Adds that contract information is public and must be released unless excepted from disclosure under this chapter. The exceptions to disclosure provided by Sections 552.110 and 552.1101 do not apply to the following types of contracting information 2261.253(a) contracts excluding information properly redacted therein 322.020(c) contracts excluding any information properly redacted therein (b)(3)(A) Any terms describing the overall or total price the GB will or could potentially pay, including overall or total value, maximum liability, and final price (b)(3)(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 the list of items in the contract or offer terms or their functional equivalent: (A) (H)

Update 2019 552.104(a) Amends to add that information may be excepted if a GB 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 GB 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.

Update 2019 552.110 Amends exception for trade secrets, confidentiality of certain commercial or financial information A trade secret means all forms and types of information .whether tangible or intangible and whether or however stored, compiled or memorialized physically, electronically, graphically, photographically in writing if: The owner of the trade secret has taken reasonable measures under the circumstances to keep the information secret; and 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. Excepts as provided by 552.0222, trade secret information is excepted from 552.021 if it is demonstrated based on specific factual evidence that the information is a trade secret. commercial or financial is excepted from 552.021 if it is demonstrated on specific factual evidence that disclosure would cause substantial competitive harm to the person from whom the information was obtained.

Update 2019 552.1101 New section regarding confidentiality of proprietary information Except as provided by section 552.0222, information submitted to a GB by a vendor .in response to a request for a bid, proposal, or qualification is excepted from 552.021 if the vendor demonstrates based on specific factual evidence that disclosure of the information would Reveal an individual approach to: Work, organizational structure, staffing, internal operations, processes, or discount, pricing methodology, pricing per kilowatt hour, cost data, or other pricing information that will be used in future solicitation or bid documents and give advantage to a competitor. This exception to disclosure does not apply to information in a voucher or contract relating to the receipt or expenditure of public funds by a GB or Communications or other information sent between the GB and a vendor or contractor relating to the performance of a final contract with the GB or work performed on behalf of the GB. This exception must be asserted by a vendor under 552.305. A GB shall decline to release information as provided by 552.305 to the extent necessary to allow the vendor to assert the exception to disclosure.

Update 2019 552.131 New paragraph regarding economic development information an eco/devo entity whose mission or purpose is to develop and promote the economic growth of a state agency or political subdivision with which the entity contracts may assert the exception under 552.305 regarding information in the eco/devo entity s custody or control

Update 2019 552.159 Out of State Health Care Provider information is confidential and excepted from the requirements of Section 552.021 552.203 General Duties of Officer for Public Information (PIC) Adds subsection (4) make reasonable efforts to obtain public information from a temporary custodian (TC) if Requested from the GB The PIC is aware of facts sufficient to warrant a reasonable belief that the TC has possession, custody, or control of the information The PIC is unable to comply otherwise and the TC hasn t provided the information

Update 2019 552.305 Third Party Letter Changes Amends to insert 552.1101, 552.131, and 552.143 language as possible exceptions regarding proprietary information.

Update 2019 552.321 Amends by adding that a requestor may file suit for a writ of mandamus compelling a GB or an entity to comply with the requirements of Subchapter J. New Subchapter J S.B. 943 eff. 1/1/2020 Adds 552.371 552.376 regarding enforcement relating to contracting information 552.371 Contractors with GBs with expenditures at least $1 million in public funds or expends more than $1 million in public funds in a fiscal year. And possess or has custody of contracting information relating to the contract. The GB must send the request to the contracting entity by the Third Business Day after receipt of the request. (AG on this information must be made by the 13thbusiness day after the GB receives the request. The AG brief and related information under 552.301 (e- 1) is timely if filed with the AG by the 18thbusiness day 552.302 doesn t apply if the GB in good faith effort to obtain the information from the contracting entity is unable to meet the deadline because the contracting entity failed to provide the information to the GB The GB has after receipt of the information until the eighth business day to comply with applicable deadlines. Only applies to information the GB does not maintain.

Update 2019 552.372 New section regarding Bids and Contracts requires language in contracts to Preserve all contracting information relating to the contract as provided by the records retention requirements applicable to the GB for the duration of the contract Promptly provide to the GB any CI related to the contract that is in the custody or passion of the entity On request of the GB On completion of the contract either Provide at no cost to the GB all contracting information relating to the contract that is in the custody or possession of the entity or Preserve the contracting information for the RR period

Update 2019 552.372 New section regarding Bids and Contracts requires language in contracts to The requirements of Subchapter J, Chapter 552, Government Code, may apply to this (include bid or contract as applicable) and the contractor or vendor agrees that the contract can be terminated if the contractor or vendor knowingly or intentionally fails to comply with a requirement of that subchapter. The GB may not accept a bid if the GB determined the entity has knowingly or intentionally failed to comply with this subchapter in a previous bid or contract described by that section unless the GB determines and documents that the entity has taken adequate steps to ensure future compliance with the requirements of this subchapter.

Update 2019 552.373 Noncompliance provisions 552.374 Termination of contract for noncompliance 552.375 Other Contract provisions may be more stringent to increase accountability or transparency 552.376 Cause of action is not created.

Update 2019 Parades, Concerts and Other Events 552.104 HB 81 Effective 9/1/2019 Exceptions do not apply to the information relating to expenditures of public or other funds by a GB for a parade, concert, or other entertainment event paid for in whole or part with public funds. A person, including a GB, may not include a provision that prohibits or would otherwise prevent the disclosure of information described by this subsection. A contract provision violates this subsection is void.

Update 2019 Parades, Concerts and Other Events 434.0205 Creates a confidentiality for information provided by a person to the Veterans Commission to receive services or participate in commission programs is confidential.

Update 2019 552.117 Adds that home addresses, home telephone numbers, emergency contact information or social security numbers are confidential: those current and former members of the US Army, Navy, Air Force, Coast Guard, or Marine Corps, an auxiliary service of one of those branches of the armed forces Firefighters or volunteer firefighters or emergency medical services personal Excludes work schedule of the firefighters or volunteer firefighters or emergency medical services personnel A current or former US attorney or assistant US attorney and the spouse or child of the attorney A special investigator as described by Article 1.122, Code of Crim. Proc. Judges (Federal and State) A state officer elected statewide or a member of the legislature Child and Adult Protective Services staff

Update 2019 552.233 Adds a suspension period for deadlines under the PIA due to catastrophe

Update 2019 552.232 Amends that in an action brought under Section 552.324, the court may not assess costs of litigation or [and] reasonable attorney s fees incurred by a plaintiff or defendant who substantially prevails unless the court finds the action or the defense of the action was groundless in fact or law.

Update 2019 Exceptions contracts related

Update 2019 Texas Legislature Online Sections Affected Search by Government Code Enter 552. under sections to see all bills affecting the chapter. Subchapter A

Update 2019 Texas Legislature Online Other Chapters Affected SB 65 New transparency, internet posting provisions re contracts: 2254.030, Gov t Code includes that a political subdivision must post a list of information regarding contracts for services that would require a person to register as a lobbyist under Chapter 305, a list of legislation advocated for, on, or against by all parties and subcontractors to the contract, including the position taken on each piece of legislation in the prior fiscal year or Post the contract for those services.

Practical Tips Must it be released? Seek ruling to determine if it is releasable or must be withheld. In many cases the law is clear but in many others the law may be subject to different interpretations depending on the requester or third party rights of access provisions. When in doubt, work with the requester to express concerns and then if not resolved, send it to the OAG for a ruling. Requesters may not need the items you are concerned with or will be satisfied with aggregated, de-identified, or redacted materials.

Practical Tips 2020 33 1. Support and Resources 2. Training 3. Clarifying Requests 4. Redacting and managing emails 5. Cost Estimates 6. Online Portals and AG Request Forms 7. Tracking Performance

Practical Tips 2021 34 Support and Resources

Practical Tips 2021 35 Support and Resources

Practical Tips 2021 36 Training Executive, Director Level Supervisor/Manager level Watch AG video SME training network of experts in department One on one when a complex request or an atypical request comes in to folks that normally don t deal with the PIA Specialized training email retention and proper destruction Know your email feature settings, search methods for the specific program or software, not all the same, coordinate with IT for instructions and technical advice when collecting as needed.

Practical Tips 2021 37 Clarifying Requests See if you can provide something responsive even if it is a sample of the responsive records that accompany a cost estimate, such as a summary report, or most recent complete file, or report. Readily available information publically available information on your web an explanation, your agency s annual report Information about records that are maintained and processes for conducting governmental business. Post processes online.

Practical Tips 2021 38 Clarifying Requests Call if possible, Email explanation about information with your acknowledgement. Explain Information about your statutes and what is typically excepted from disclosure Post the explanations so you don t have to re-explain and use the same words when explaining if possible. Include Statutes Include previous letter rulings (particularly with attorneys requesters) Explain you may need to seek an AG ruling for confirmation that the information is confidential and you are prohibited from releasing the information (with mandatory exceptions)

Practical Tips 2021 39 Clarifying Requests With discretionary exceptions, explain that some information is typically be excepted from disclosure such as: Attorney client privileged information, Deliberative process exceptions and interagency memorandum of advice, opinion or recommendation to a decision-maker and site the exceptions. Define the date range, whether the seek confidential information, the subject matter of the request, who may have responsive information, etc.

Practical Tips 2019 40 Redacting and Managing Emails BitRecover Software. CPA uses one tool that converts pst to pdf and another tool from the same company that converts msg files to pdf. Outlook Converter Pro NC (30 day free trial) https://www.coolutils.com/TotalOutlookConverterPro Outlook Converter Pro Video Tutorial https://www.coolutils.com/OutlookProTutorial https://www.datarecovery.institute/convert-outlook-email-folder-into-single- pdf-document/

Practical Tips 2019 41 Cost Estimates https://www2.texasattorneygeneral.gov/og/public- information-cost-estimate-model

Practical Tips 2019 42 Cost Estimates AG COST ESTIMATOR ONLINE FORM https://www2.texasattorneygeneral.gov/og/public-information-cost- estimate-model To complete and document methodology for estimate, do a test, a small sample, pull a small amount, redact, and print to time sample. Time a sample of IT resources - IT staff time and time for review and redactions. If it is a large computer run, run it for a smaller set like a month instead of five years or a search of one person s computer files or email account system instead of a whole department. If it is 500 pages, redact three pages and get the estimated time. (e.g., 3 minutes per page to read, redact, and save without redactions)

Practical Tips 2019 43 Cost Estimates and Narrowing Requests: Consider providing readily available information with a request to clarifying and/or cost estimate if the request is voluminous. Call the requester to discuss available reports, summary tabulations, and what you report annually to see if that satisfies their request. Often these will satisfy the requester. Call requester to clarify and explain generally how costly to avoid a lot of work spent getting a precise estimate. Suggest ways to give a representative sample to requester to understand how to narrow request. Responding to Cost Complaints - https://www.texasattorneygeneral.gov/open- government/governmental-bodies/complaints-overview

Practical Tips 2019 44 AG Promulgated Request Form https://www.texasattorneygeneral.gov/sites/default/files/files/divisions/open- government/Public-Information-Request-Form-10-01-19.pdf

Practical Tips 2020 45 AG s PIA REQ CENTER https://texasag.govqa.us/WEBAPP/_rs/(S(mpa10k0ch1qtzhv0mf2ugyni))/supp orthome.aspx

Practical Tips 2020 46 Samples of Online Request Forms TEA https://tealprod.tea.state.tx.us/Pirts/Public/NewPendingPIR.aspx Workforce Commission https://apps.twc.state.tx.us/OpenRecords/submitform OAG https://www.texasattorneygeneral.gov/sites/default/files/files/divisions/open- government/Public-Information-Request-Form-10-01-19.pdf

Practical Tips 2020 47 Ways to Mitigate and Avoid Problems Training Management alerts when in responses are delayed Call for department staff help spread out work among business record owners staff. Talk to requester. Give a sample of most recent first to see if they want all or just final decision, year-end summary reports, application, or portions of the records. Consider creating a summary report that captures items of interest if repeat requests occur. Release to requester in installments and manage requester expectations.