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Tips for Young Lawyers

Pulling Back the Curtain: A Primer on the Texas Public Information Act
By:  Bill Richmond

People naturally fear what they don’t understand. In the classic film The Wizard of Oz, pulling back the curtain to reveal that the Wizard was just a surly old man instead of a deity certainly helped to calm Dorothy and give her a proper perspective. So it is with the Texas Public Information Act, which appears daunting at first but actually provides a reasonable mechanism for the citizenry to request and receive public records from all governmental and certain non-governmental agencies in Texas.

What and Who

The term “public information” includes any information that is collected, assembled, or maintained by or for a governmental entity in connection with the transaction of official business. Tex. Gov’t Code Ann. § 552.002 (hereinafter, all references to the Texas Public Information Act will be cited as “TPIA § xxx.xx”; Texas Attorney General orders and opinions will be prefaced as “TAG”). Such information can be in any format, including but not limited to videos, electronic data, and audio files.

But don’t be fooled by the use of the term “governmental entity” because the records of a non-governmental entity also fall under the TPIA when such records reflect the expenditure or support of public funds. TPIA § 552.003. This includes, for example, records of volunteer fire departments and certain chambers of commerce. Additionally, consultants to a governmental entity may be subject to the TPIA. If information maintained or held by a consultant is actually owned by the governmental entity or the entity has a right of access to the information, the TPIA will most likely apply. Id. at § 552.002(a)(2). Excluded from the TPIA are judicial records, which are instead governed by the Texas Supreme Court’s rules. Id. at § 552.003(1)(B).

Form of a Request

So you need to get your hands on public information? Fortunately, the request process, while nuanced in certain regards, is fairly straightforward and relatively intuitive. At the outset, you want to gather together some preliminary information: (1) what entity holds the records you seek, (2) how quickly do you intend to make the request, and (3) by what method do you intend to make the request.

The TPIA allows for requests to be made in three general ways: in writing, by fax, and by email. Each has slightly different rules, however. Written requests can be made to any public employee or officer of the specific entity. TAG ORD-44 (1974), ORD-497 (1988). Emailed and faxed requests, however, may be subject to an entity-specific rule that designates a particular person as authorized to receive emailed or faxed open-records requests. TPIA § 552.301(c).

Request Timeline; Rulings

My sincerest apologies if you found this article hoping to learn how to cajole the release of public records in the next 24 hours; it isn’t going to happen. But the timeline for a request is often not the months-long process typically dreaded. While the TPIA gives the rather vague mandate that a government entity must only “promptly produce” public information and handle the request with good faith, there are other provisions intended to keep you in the loop while waiting. TPIA § 552.221(a). If the entity needs more than ten business days to fulfill the request, the entity must certify that fact in writing to the requesting party with a statement of the date and hour that the information will be available. Id. at § 552.221(d).

In the event that the entity seeks a ruling from the Attorney General’s Office regarding the propriety of a request, the entity must make its request to the AGO for a ruling within ten business days after receiving the initial open records request, and the entity must give notice of its AGO request to the original requestor within ten days after receiving the initial open records request. TPIA § 552.301(b), (d). Similarly, the entity must make a “good faith” effort to inform third parties within ten days of receiving a request when the request may result in the release of proprietary information. Id. at (d)(1). The third party then has ten days from receiving notice to submit a brief to the entity justifying the withholding of the proprietary information. Id. at (d)(2), (e). The Attorney General must respond within 45 business days after receiving the request for a ruling, and it can extend the time, upon notice, for an additional ten business days. TPIA § 552.306.

Protecting Proprietary Information

To private parties, a critical component of the TPIA is the ability to prevent dissemination of information given by the private party to a governmental agency, whether as a vendor, contractor, consultant, or part of a failed bid. As one example, governmental entities can withhold information submitted by private parties during competitive bidding if disclosure of that information would aid a competing bidder, but such protection applies only until the contract is awarded and only where there are multiple bids. TPIA § 552.104; TAG ORD-331 (1982), TAG ORD-541 (1990).

Additional protection may be afforded if the information satisfies the criteria for being a “trade secret” or “commercial or financial information.” TPIA § 552.110. The factors for a “trade secret” need an entire article on their own but are generally those protections afforded by Texas statute and common law. The latter exception to disclosure for commercial and financial information requires a demonstration supported by specific factual information that the disclosure would cause substantial competitive harm. If your client has provided such information to a governmental entity, its employees should be made aware that notice of an open records request or a potential AG ruling both must be forwarded to counsel for prompt handling under the deadlines described above.

Like the Wizard’s initial theatrics, the TPIA may seem at first to be formidable. But just like Oz the Great and Powerful turned out to be Oz the Not-So-Bad-Just-Lonely-And-Grumpy, the TPIA is a statute that represents a reasonable and manageably accessible attempt to balance the competing needs of government protection and government access. For more information and details, two public documents are available online: (1) “2012 Texas Public Information Laws Made Easy” from the Office of the Attorney General’s website; and (2) “Texas Public Information Act Exceptions to Disclosure” by Heather Silver, available through Google.

Bill Richmond is a business litigation attorney at Gruber Hurst Johansen Hail Shank LLP in Dallas. Bill represents companies and entrepreneurs in contract and business tort disputes in both state and federal courts throughout the country. Bill has been named a Texas Rising Star three years running, and he currently serves as President of the DFW Chapter of the University of Missouri Alumni Association, Immediate Past Chair of the Asian Pacific interest Section for the State Bar of Texas, and President-Elect of the Dallas Asian American Bar Association. Bill graduated from the University of Missouri-Columbia in 2006 and from Southern Methodist University’s Dedman School of law in 2009, cum laude. He can be reached by email at brichmond@ghjhlaw.com.