Requests Involving Third-Party Interests in Open Records Division

Requests Involving Third-Party Interests James L. Coggeshall Assistant Attorney General Open Records Division

Notification Gov t Code 552.304 Gov t Code 552.305

Who Do You Need to Notify? Private businesses Individuals Other governmental bodies

Section 552.305: Who to Notify Private businesses & individuals: proprietary interests Gov t Code 552.110, 552.1101, 552.131(a)

Section 552.305: Form of Notice Recent amendments to notification language New form is on our website and will be in the back of the PIA handbook when published

Section 552.304: Who to Notify Individuals Other Governmental Bodies

Section 552.304 Form of notice No required form

Section 552.304: Individuals Privacy Interests Nat l Archives & Records Admin. v. Favish, 541 U.S. 157 (2004) Family of deceased individuals

Section 552.304: Other Governmental Bodies Proprietary interests (Gov t Code 552.104) Law-enforcement interests (Gov t Code 552.108; Homeland Security Act) Other interests (audits; litigation)

Records With Third-Party Interests Records you created Records you acquired from a third party Records you hold on behalf of a third party

Records Created by Governmental Body Receiving the Request Proprietary Law enforcement Administrative

Records Created by Governmental Body Receiving the Request : Proprietary Bid tabulations Internal discussions of projects Negotiations with a third party

Records Created by Governmental Body Receiving the Request : Law Enforcement Offense reports Prosecution records

Records Created by Governmental Body Receiving the Request : Proper Custodian Administrative records that another governmental body seeks to withhold

Where You May Find Records: Proper Custodian School districts without a police department State agency without law enforcement authority County medical examiner

Records You Acquired From a Third Party: Proprietary Bid proposals Third-party reports (engineering; development; marketing; property valuation)

Records you acquired from a third part: Law enforcement Specific law enforcement bulletins Subpoenaed documents

Records Acquired From a Third Party: Administrative Investigations Licensing boards (e.g., notice of complainant letter) Audit records (e.g., Texas Education Agency audit communications)

Records Acquired From a Third Party: Intergovernmental Transfer Information may be transferred between governmental bodies without waiving discretionary exceptions

Records Held on Behalf of a Third Party Texas State Library and Archives Commission Department of Information Resources

Temporary Custodian: Records on Privately Owned Device Devices: Cell phones; tablets; laptops; home computers Communications: texts; instant messaging Documents: drafts on personal devices

Section 552.003(7) Temporary custodian means an officer or employee of a governmental body who, in the transaction of official business, creates or receives public information that the officer or employee has not provided to the officer for public information of the governmental body or the officer s agent. The term includes a former officer or employee of a governmental body who created or received public information in the officer s or employee s official capacity that has not been provided to the officer for public information of the governmental body or the officer s agent.

Section 552.004 (a) A governmental body or, for information of an elective county office, the elected county officer, may determine a time for which information that is not currently in use will be preserved, subject to Subsection (b) and to any applicable rule or law governing the destruction and other disposition of state and local government records or public information. (b) 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). (c) The provisions of Chapter 441 of this code and Title 6, Local Government Code, governing the preservation, destruction, or other disposition of records or public information apply to records and public information held by a temporary custodian.

Section 552.203(4) Each officer for public information, subject to penalties provided in this chapter, shall: (4) make reasonable efforts to obtain public 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; (C) the officer for public information is unable to comply with the duties imposed by 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 (Slide 1 of 2) (a) A current or former officer or employee of a governmental body does not have, by virtue of the officer s or employee s position or former position, a personal or property right to public information the officer or employee created or received while acting in an official capacity. (b) A temporary custodian with possession, custody, or control of public information shall surrender or return the information to the governmental body not later than the 10th day after the date the officer for public information of the governmental body or the officer s agent requests the temporary custodian to surrender or return the information.

Section 552.233 (Slide 2 of 2) (c) A temporary custodian s failure to surrender or return public information as required by Subsection (b) is grounds for disciplinary action by the governmental body that employs the temporary custodian or any other applicable penalties provided by this chapter or other law. (d) For purposes of the application of Subchapter G to information surrendered or returned to a governmental body by a temporary custodian under Subsection (b), the governmental body is considered to receive the request for that information on the date the information is surrendered or returned to the governmental body.

Things to Remember About Temporary Custodians There is no personal or property right to public information by virtue of possession. A temporary custodian must provide all public information on a privately-owned device to the governmental body within 10 days upon request. Whether information is subject to the Act depends on the nature of the information, and not how the information was communicated, created, or maintained. Public information is subject to the Act, regardless of where it is located.

OAGs Open Government Hotline (877) OPEN TEX (512) 478-6736 Cost Questions (888) OR-COSTS (512) 475-2497 OAG website www.texasattorneygeneral.gov