Understanding Texas Public Information Act Update 2023 in Hidalgo County
Explore the key aspects of the Texas Public Information Act Update 2023 in the context of the Office of the Hidalgo County Criminal District Attorney. Learn about the types of requests received, the focus on Chapter 552 of the Texas Government Code, and what constitutes public information. Gain insights into how to handle records requests and the importance of communication mediums in legal proceedings.
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TEXAS PUBLIC INFORMATION ACT UPDATE 2023 Office of the Hidalgo County Criminal District Attorney Terry Palacios Josie Ramirez Solis Chief Civil Litigation Division
YOU RECEIVED A RECORDS REQUEST WHAT DO YOU DO NEXT?? First step is to determine what type of request received: Public Information Request under Gov t. Code Ch. 552 Request for Court Records/Judicial Records Subpoena Request
OUR FOCUS: PUBLIC INFORMATION ACT REQUESTS UNDER CHAPTER 552 TEXAS GOVERNMENT CODE INCREASE IN # OF REQUESTS
Public Information means information that is written, produced, collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business by or for a governmental body and/or its officers or employees This includes electronic communications created, transmitted, received, or maintained on any device, if that communication relates to the transaction of official business Official business means: (1) the information is created by, transmitted to, received by, or maintained by an officer or employee of the governmental body in the officer s or employee s official capacity, or a person or entity performing official business or a governmental function on behalf of a governmental body; and (2) the information pertains to official business of the governmental body. WHAT IS PUBLIC INFORMATION?
WITH THAT IN MIND Text and email like it will be read aloud in court- chances are it will with very limited exceptions The Attorney General has said they are looking at the substance of the communications NOT the mediums
Request In writing For information in existence at the time the request was received Must make a good faith effort to respond to a request with information that is in existence Does NOT need to say it is a Public Information Request under the ACT Can be typed or handwritten WHAT IS A PROPER PUBLIC INFORMATION REQUEST?
An entity cannot ask why the individual wants the information An entity may establish a process or a specific e- mail address for the purposes of accepting information requests (RULES MUST BE REASONABLE)!!! Elected Officials may choose to be the custodian of their own records In our County- the DA, County & District Clerks, Sheriff, Tax Assessor-Collector, and Elections Dept. all handle their own records requests. The remainder of the offices and departments utilize a general Open Government Process RESPONDING TO PUBLIC INFORMATION REQUESTS
There are deadlines to respond so time is of the essence. Governmental bodies shall PROMPTLY release requested information that is NOT confidential by law, either constitutional, statutory, or by judicial decision, or information for which an exception to disclosure has not been sought The PIA has a presumption that information is public and should be released waiting can mean information must be released when it could or should have been withheld. You can also waive available exceptions to the release of information. DEADLINES: 10 day deadline from date of receipt of request to ask for an Attorney General opinion, notify requestor or send 3rd party notice 15 day deadline to submit brief of comments The PIA must be followed strictly. Information cannot be withheld without first seeking a determination from the Texas Attorney General. A. B. COMMON PITFALLS IN PUBLIC INFORMATION
The Public Information Act gives the public access to government documents; however, that does not mean that the public has complete and total access to all government records The Government Code provides exceptions to disclosure for information that e.g. would invade personal privacy, compromise security, impede investigation/prosecution or harm the entity in a competitive bidding situation WHEN IS INFORMATION PUBLIC?
What type of records is the requestor asking for? Does the requestor have a special right of access? Is there a need to maintain the confidentiality of the records requested OR a prohibition on disclosure? Is an Attorney General decision necessary? IMPORTANT TO DETERMINE:
With limited exceptions, the entity must request a decision from the Attorney General to withhold information Even if the information is obviously confidential, a copy must be submitted to the AG when requesting a decision Governmental bodies must use good faith in attempting to locate records responsive to the request KEEP THE FOLLOWING IN MIND:
Under the PIA, a records custodian is not required to create records that are not already in existence Under the PIA, a records custodian is not required to conduct legal research Under the PIA, a records custodian can ask for clarification if it is not clear what records the requestor is asking for Some information can be permissibly redacted (See OAG site for form letter DOBs, access ID # s, peace officer information)
PROHIBITIONS ON DISCLOSURE Certain crime victim information is confidential and excepted from disclosure if the information identifies an individual as a victim of: (1) human trafficking, sexual abuse of a young child or disabled individual, indecency with a child, including sexual performance by a child, sexual assault, including aggravated sexual assault, compelling prostitution; (2) an offense that is part of the same criminal episode; or (3) a victim of any criminal offense, if the victim was younger than 18 years of age when any element of the offense was committed. (Gov t Code 552.1315(a)) (Family Code Ch. 261 and Ch. 57)
Information may be disclosed: or to the parent or guardian of a victim identified by the information who was younger than 18 years of age when the offense was committed; (1) to any victim identified by the information, investigative purposes; or (2) to a law enforcement agency for the disclosure. (Gov t. Code 552.1315(b))(Family Code Ch. 261 and Ch. 57) (3) in accordance with a court order requiring DISCLOSURE PROHIBITED CONT D
Waiver of Arguments Against Disclosure: If the procedures of the Public Information Act are not followed exactly, the entity may be required to release information that would otherwise be protected Civil Penalties: A requestor may bring suit to require release of public information The court may require the entity to pay the requestor s attorney s fees CONSEQUENCES UNDER THE PIA
Criminal Penalties: Releasing confidential information: punishable by a fine of up to $1,000 and/or 6 months in jail Failing or refusing to give access to public information: fine of up to $1,000 and/or 6 months in jail Destruction, removal, or alteration of public information: fine of up to $4,000 an/or 3 months in jail CONSEQUENCES CONT D
The requestor may file a complaint against an entity with the local county or district attorney in addition to the AG s Office. The complaint must meet the following requirements: 1) be in writing and signed by the complainant; 2) state the name of the city that allegedly committed the violation, as accurately as can be done by the complainant; 3) state the time and place of the alleged commission of the violation, as definitely as can be done by the complainant; and 4) describe the violation, in general terms. Before the 31st day after receiving the complaint, the local prosecuting attorney must determine if a violation has been committed, decide whether to take action against the city, and notify the person who filed the complaint of that decision. (Tex. Gov t. Code 552.3215) PIA COMPLAINTS
LEGISLATIVE UPDATE Changes from the 2023 Texas Legislature
Adds Tex. Govt. Code 552.0031 A business day is any day that is not: Saturday Sunday State holiday (e.g. the day after Thanksgiving) National holiday (e.g. Veterans Day) The Monday after a holiday that falls on a weekend (e.g. Monday, July 5) A day designated by a governmental body as a nonbusiness day when offices are closed (e.g. Good Friday) HB 3033 BUSINESS DAYS DEFINED
Amends Tex. Govt. Code 552.108(c) Requires a governmental body to promptly release basic information So instead of waiting until you get the AG decision back to release the first page info, it should be sent out when your entity sends the notices. This is the section used for law enforcement reports that are still under investigation!!! HB 3033 PROMPT RELEASE OF BASIC INFORMATION
Adds Tex. Govt. Code 552.3031 Requires governmental bodies to submit requests for decisions through the AG s electronic submission portal This can be expensive!!!!!!! But you can save money if you submit the entire request for decision at once rather than sending the 10 day and the 15 day brief separately So it is important to gather information as soon as possible HB 3033 ELECTRONIC SUBMISSION
Amends Tex Govt Code 552.306 Sets a time limit by which information must be released after receiving an AG decision In general, information must be released within 30 days If information is extremely voluminous, may release in multiple batches, with signed certification of when next batch will be released HB 3033 PROMPT RELEASE OF INFORMATION
Addresses Confidentiality for victims of domestic violence or sexual assault Amends Tex. Gov t Code 552.138 Makes confidential the personal information of the holder of a license issued by a governmental body who notifies the governmental body in writing that they are a survivor and wish to keep the information confidential This mostly applies to state occupational licenses but could be read to include e.g. restaurant permits as well Applies to a request rec d on or after 9/1/23 HOUSE BILL 3130
Service Members Department of Defense ID Numbers Amends Tex. Gov t. Code 437.232 Adds a service member s Department of Defense ID number to the information about a member that is confidential Applies to a request rec d on or after 9/1/23 SENATE BILL 435
Josephine Ramirez-Solis josephine.ramirez@da.co.hidalgo.tx.us Leigh Ann Tognetti leigh.tognetti@da.co.hidalgo.tx.us Jacqueline Villarreal jacqueline.villarreal@da.co.hidalgo.tx.us Melissa Erasmus jaclyn.erasmus@da.co.hidalgo.tx.us Office: (956)-292-7609 QUESTIONS? COMMENTS?
