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Under Texas’ open records law, known as the Texas Public Information Act (TPIA), “each person is entitled . . . to complete information about the affairs of government and the official acts of public officials and employees.” Tex. Gov’t Code Ann. § 552.001. Governmental bodies in Texas are obligated to “promptly produce public information” upon request. Tex. Gov’t Code Ann. § 552.221. But not all information has to be disclosed under the TPIA.

The TPIA contains dozens of exceptions under which a governmental body can withhold requested information. Tex. Gov’t Code Ann. § 552.101-160. Exceptions to disclosure are either mandatory or discretionary. Governmental bodies must withhold information that is confidential by law. Confidential information generally relates to a person’s privacy, and includes birthdates of living people, driver’s license numbers, license plate numbers, credit card numbers, insurance policy numbers, juvenile offender records, child abuse investigations, and peace officers’ home addresses and family member information. Governmental bodies have discretion to withhold other non-confidential information. Information that be may be withheld includes information concerning criminal investigations, ongoing or anticipated litigation, competitive bidding information before the government contract is awarded, and attorney-client communications.

If a governmental body seeks to withhold requested information, generally it must request a decision from the Office of the Attorney General. Tex. Gov’t Code Ann. §§ 552.301; 552.305.

A governmental body may withhold information without requesting an attorney general decision in rare cases where there is a “previous determination” that the requested information is excepted from disclosure. Tex. Gov’t Code Ann. § 552.301. There are two kinds of previous determinations, according to the Texas attorney general:

  1. Type 1. A governmental body is entitled to rely on a prior attorney general decision where (i) it receives a request for the exact same information that was requested previously, (ii) the law, facts, and circumstances on which the prior attorney general decision were based have not changed, and (iii) the prior attorney general decision was addressed to the same governmental body that seeks to rely on it for a later request.
  2. Type 2. A governmental body is entitled to rely on a prior attorney general decision where (i) it receives a request for a clearly-delineated category of information that was requested previously, (ii) the prior attorney general decision applies to the particular governmental body or type of governmental body from which the information is requested, (iii) the law, facts, and circumstances on which the prior attorney general decision were based have not changed, and (iv) the prior attorney general decision explicitly states that the governmental body to which the decision applies may withhold the information without seeking another attorney general decision.

Both types of previous determinations are publicly available on the Texas attorney general’s website.

If no previous determination applies but the governmental body seeks to withhold requested information, within 10 business days of when the request is received, the governmental body must:

(i) ask for the attorney general’s decision and state the exceptions that apply;
(ii) notify the requestor that it has asked for an attorney general decision;
(iii) provide the requestor with a copy of the written communication to the attorney general; and
(iv) make a “good faith attempt” to notify any third parties with proprietary interests in the requested information that they may submit written comments to the attorney general.

In addition, within 15 business days of when the request is received, the governmental body must:

(i) submit to the attorney general:

  • a signed statement as to the date on which the TPIA request was received by the governmental body;
  • a copy of the written request for information;
  • a copy of the responsive information or representative samples of the responsive information, labeled to indicated which exceptions apply to which parts of the copy; and
  • written comments to the attorney general stating the reasons why the stated exceptions apply and allow the requested information to be withheld;

(iI) provide the requestor with a copy of the written communication to the attorney general.

If the attorney general concludes that the requested information is not excepted from disclosure and must be produced, the governmental body may file a lawsuit for judicial review of the attorney general’s decision. Tex. Gov’t Code Ann. § 552.324.

If the attorney general concludes that the requested information may be withheld, the requestor may file a lawsuit against the governmental body to compel disclosure of the requested information by mandamus. Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App.— Austin 1992, no writ). The court will determine whether the requested information is “public information” subject to disclosure under the TPIA.

If the governmental body refuses to release information that the attorney general has concluded is public or refuses to request an attorney general decision, either the requestor or the attorney general may file a lawsuit to force the release of the information to the requestor. Tex. Gov’t Code Ann. § 552.321.

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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