The Public Information Act: An Open Government for the People
The Texas Public Information Act (the “Public Information Act” or the “Act”), largely influenced by the Sharpstown Stock-Fraud Scandal in 1969 and later adopted in 1973, lays the foundation for the policy of open government, allowing the public to maintain control over the instruments created by and for the people.
Attorney General of Texas, Ken Paxton, has publicly quoted James Bryce, saying that “sunlight kills the germs of corruption that can infect a government.”
While the Public Information Act requires that the attorney general liberally construe the Act in favor of open government, the Act remains a source of frustration for both requestors and responding governmental entities. In requesting and responding to an open records request, a point of confusion often leaves both parties scratching their heads: the conflict between the use of the word “promptly” and the ten-day deadline to produce public information or documents for inspection, duplication, or both.
Section 552.221 of the Act reads, in part, that the responding government “shall promptly produce public information.” The Act goes on to define “promptly” to mean “as soon as possible under the circumstances, that is, within a reasonable time, without delay.” Generally, the production of information or documents must occur within ten business days of receipt of the request for information.
However, the Act does not provide that “promptly” and ten business days hold the same meaning.
Sections 552.221(c)-(d) of the Act state that, should the requested information be unavailable at the time of the request due to active use or storage or should the responding governmental entity not be able to produce the requested information within ten business days, the responding governmental entity shall certify and inform the requestor of such and set a date and hour within a reasonable time when the information will be available.
Therefore, under specific circumstances, the responding entity has the ability to determine “a reasonable time, without delay,” so long as the responding entity provides the requested information “as soon as possible under the circumstances.” Still, the responding entity must give the requestor written notice of the date and time the requestor will receive the information within the initial ten business days.
Circumstances for needing more time to respond could potentially include the type and breadth of information requested (e.g., a request resulting in over 5,000 emails needing to be manually searched for and downloaded from the server) as well as the number of staff members dedicated to responding to open record requests (e.g., one staff member dedicated to manually searching for and downloading 5,000 emails).
Even though the Act allows the governmental entity to determine a reasonable time, as soon as possible under the circumstances, glaring holes remain: (1) waiver of certain exceptions to disclosure of information or documents and (2) the ability to seek an opinion from the Office of the Attorney General regarding that disclosure.
Should the request result in copious amounts of information, the Office of the Attorney General does not allow for exceptions to be claimed or an opinion to be sought outside of the ten business days. As such, the governmental entity still has the responsibility to review the information for any possible exceptions to disclosure as well as information that may affect third parties. (Section 552.305 of the Act also requires the governmental entity to notify a third party should a request for information implicate the third party’s interests. This notice must also be sent “within a reasonable time,” not later than the tenth business day after the date the governmental entity received the request.)
The Public Information Act can sometimes cause clashes between governmental entities and the communities they serve. While the assistance of an attorney can help aid in the navigation of the Act, the Office of the Attorney General of Texas provides a number of resources, available to both the public as well as governmental entities, regarding the Public Information Act on its website.
Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our commercial and business litigation practice can be found here.
With years of both local government administration and litigation experience in Houston and surrounding counties, Megan provides responsive and delivery-focused representation. While ensuring transparency, respect, and timely service for her clients, Megan keeps an eye towards realistic implementations and practical applications. She enjoys finding solutions that exceed client needs and expectations within the local government and municipal arenas.