Simply failing to timely respond to a request for public records isn’t a crime. But there are three violations of the TPIA that do carry criminal penalties, including potential jail time: (1) failure or refusal, with criminal negligence, to provide access to public information; (2) release of confidential information; and (3) willful destruction or alteration of public information.
Violations of the Texas Public Information Act (TPIA) are subject to both civil enforcement and criminal prosecution. While prosecution of criminal violations under the TPIA is rare, it’s not unprecedented.
In 2003, a school superintendent was convicted for refusing to produce school credit card records requested by a public newspaper investigating allegations that expensive dinners and hotel rooms were purchased using a school district credit card. The superintendent claimed the records didn’t exist, and it was later discovered that some of the records had already been disclosed to an area resident. Then-Attorney General Greg Abbott indicted the superintendent, and he was convicted by a jury and sentenced to a 180-day suspended jail sentence, six months’ probation, and a $1,000 fine.
“[N]othing in the [TPIA] suggests that a criminal action may be filed against a public official for failing to timely respond to a request for public records.” However, there are three violations of the Texas Public Information Act that do carry criminal penalties: (1) failure to provide access to public information; (2) release of confidential information; and (3) willful destruction or alteration of public information.
Failing or refusing to provide access to public information
Subject to certain affirmative defenses, an officer for public information or their agent commits a crime if—with criminal negligence—the officer or the agent fails or refuses to provide access to public information as required by the TPIA.
A person acts with criminal negligence when they “ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.” Tex. Pen. Code § 6.03.
There are several affirmative defenses to prosecution under this provision of the TPIA:
- the officer reasonably believed that disclosure was not required and any one of the following:
- the officer acted in reasonable reliance on a court order or a written interpretation of the TPIA by a court of record or the attorney general;
- the officer requested an attorney general ruling in accordance with the TPIA and the decision is pending; OR
- not later than the 10th calendar day after receiving an attorney general ruling that the information is public, the officer or the governmental body filed a petition for a declaratory judgment against the attorney general in a Travis County district court seeking relief from compliance with the decision, and the cause is pending.
- not later than the 10th calendar day after the date of receipt by a governmental body of an attorney general ruling that the information is public, a person or entity has filed a suit seeking relief from compliance with the decision, and the cause is pending; and
- the defendant is the agent of an officer for public information and the agent reasonably relied on the written instruction of the officer not to disclose the public information requested.
An offense of this type is a misdemeanor and is punishable by: (1) a fine of no more than $1,000; (2) jail time for no more than six months; or (3) both a fine and jail time. In addition, this sort of violation constitutes “official misconduct.” Tex. Gov’t Code § 552.353.
Release of confidential information
A person commits a crime if they distribute information considered confidential under the TPIA. It is also a crime for an officer or employee of a governmental body to knowingly:
- use confidential information for a purpose other than the purpose for which the information was received or for a purpose unrelated to the law that permitted the officer or employee to obtain access to the information, including solicitation of political contributions or solicitation of clients;
- permit inspection of the confidential information by a person who is not authorized to inspect the information; or
- disclose the confidential information to a person who is not authorized to receive the information.
An offense of this type is a misdemeanor and is punishable by: (1) a fine of no more than $1,000; (2) jail time for no more than six months; or (3) both a fine and jail time. In addition, this sort of violation constitutes “official misconduct.” Tex. Gov’t Code § 552.352.
Willful destruction or alteration of public information
It is a crime under the TPIA for any person to willfully destroy, mutilate, or alter public information or remove such information unless authorized under the TPIA. An offense of this type is a misdemeanor and is punishable by: (1) a fine of $25 – $4,000; (2) jail time of three days to three months; or (3) both a fine and jail time. Tex. Gov’t Code § 552.351.
The Texas Penal Code also criminalizes the knowing alteration or intentional destruction, concealment, or removal of a “governmental record,” which includes “anything required by law to be kept by others for information of government.” Tex. Pen. Code §§ 37.10; 37.01 (defining “governmental record”).
Cobb & Counsel has significant experience in litigating open government issues. If you are involved in a dispute regarding the release of government records under the Texas Public Information Act, contact us to discuss your options.
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 Moore v. Collins, 897 S.W.2d 496, 500 (Tex. App.—Houston [1st Dist.] 1995, no writ).