Why Is It So !@#$%^ Hard to Get Information out of My City?
Everyone believes in transparency in government, but the rub comes in implementing it. On the federal level, Congress passed the Freedom of Information Act – commonly known as FOIA – that applies only to the Federal government. On the state level, the Legislature passed the Texas Public Information Act.
This Act provides for the release of public information not otherwise excepted from disclosure. Think paper. Texas also has the Texas Open Meetings Act but this law controls the “openness” or “transparency” of public meetings. Think going to the meeting.
The Texas Attorney General regularly publishes the Public Information Handbook. It’s only 335 pages long on how to be transparent. State and local governmental bodies are subject to the act, but not the courts and usually not the legislative branch. Some private entities that are supported by public funds fall under the Act as well as certain property owners’ association.
What information is subject to disclosure? Generally, any public information of official business in records of all forms. It does not matter if the mayor sent an email from his government issued cell phone or from his personal computer; who owns the device is not relevant. Public officials should be mindful about using private devices; your private account can be subject to the Act if you use it for official business.
Is it hard for a member of the public to make a request? No, just send an email beginning with these two simple words, “I WANT” and then fill in the blank of what you want. You are then entitled to information that the governmental entity has at the time of the request not for anything after the request.
How long is that? The Act states the information should be released promptly for copying or inspection. If the information is not readily available, then the local government must state when it will be available or timely object to the Attorney General.
Some information is protected from disclosure under exceptions provide for in the Act. The Attorney General determines if an exception is warranted. The local government has ten working days to mark the documents with what exceptions apply and send to the Attorney General. With such a tight time limit, the Act allows a reset of the clock if a clarification request is made to the requestor, or a cost deposit is requested or the requestor changes the request. Therefore, caution should be taken by the requestor to think through a request so that you don’t have to reset the clock. Be specific and detailed in your request. State whether you want to inspect or want copies. State whether you want digital copies.
What are some of the exceptions to disclosure?
• A prison guard’s cell number but not a city councilmember’s
• Confidential information per state or federal law or judicial decision
• Common law privacy
• Constitutional privacy
• If you die you no longer have a privacy right
• Date of birth of members of the public or public employees
• False light privacy
• Competitive bidding information while bidding is going on but not afterwards
• Location and price of property but not after its bought
• Attorney client privilege
• Certain law enforcement corrections and prosecutorial information but not necessarily for concluded cases
• Certain juvenile information
• Trade secrets
• Rare books
• Credit card numbers
• Texas no call list
• Private communications of elected office holder
• And the list goes on…
As the old saying goes, be careful what you wish for and be specific when requesting public information. Likewise, a public official should take care with whom they communicate during open meetings or he might have to ask the Texas Attorney General’s office to determine whether a text must be disclosed if received during a meeting, even if it states “Dad, can you bring some queso home after the meeting?” (True story.)
Texas native J. Grady Randle concentrates his practice in the areas of real estate and municipal law in Houston and the surrounding counties. He represents government entities and local municipalities in litigation, regulation, land development, zoning, land use, and other matters. Mr. Randle also handles a wide variety of real estate transactional and litigation matters, including oil and gas contracts, large commercial land and building purchases, and commercial landlord-tenant issues. He received his Juris Doctorate as well as a Bachelor of Business Administration from Baylor University.