Overview

• All exemptions/rejections must go through AG in a “pre-appeal system,” preventing arbitrary withholding
• AG deliberation can slow down entire process, often taking much longer than the allotted 10 days</span>
• No process for appealing arbitrary fees or delays

Out of all state public records laws, Texas is perhaps the most distinctly different from the federal statute on which they are based. Under the federal act, an agency can decide to withhold information under a certain exemption and then its the requester’s prerogative to challenge that through appeal. Whereas in Texas, the agency must provide written justification for the application of the exemption to the state’s Attorney General. If the AG disagrees with the agency’s application, they can immediately overrule their decision, bypassing the appeal process entirely.

This comes with its own unique advantages and disadvantages. On the positive side, this puts the onus on the agency to properly present their case, making blanket rejections much less likely, and theoretically ensuring the fullest possible release every time. However, the flip-side to this is that the added delay of the process pushes it well beyond that ten-day window – the AG has a full 45-days to respond.

That said, AG rulings are treated similar to case law, so that if an agency has already received an opinion on what constitutes a full release for a particular request (use of force policies, for example), the process can be skipped entirely.

Unfortunately, the fact that this process replaces a formal appeals process rather than supplements it gives agencies certain loopholes – a requester cannot seek the AG’s assistance in reducing an seemingly arbitrary fee estimate, or getting an unresponsive agency to respond in time. In a similar vein, if a requester disagrees with the AG’s decision, there’s no third-party to turn to – the only option left is a lawsuit.

The Law

• Must produce materials “promptly” or an estimated date of completion within 10 days.
• Applies to the executive branch and state agencies
• No residency requirement.
• No administrative appeal option.

Supplemental

Definition of public information - Texas Government Code, Title 5, Subtitle A, Chapter 552, Subchapter A § 552.002

The Details

Can you submit a request if you’re not a resident?

Yes. Texas law currently has no provision dictating a residency requirement.

To whom does this apply?

Executive?

Yes.

Judicial?

No.

Legislative?

Yes.

Is there a designated records custodian?

Records requests are expected to go to the body that holds the records.

“Sec. 552.201. IDENTITY OF OFFICER FOR PUBLIC INFORMATION. (a) The chief administrative officer of a governmental body is the officer for public information, except as provided by Subsection (b).” (b) Each elected county officer is the officer for public information and the custodian, as defined by Section 201.003, Local Government Code, of the information created or received by that county officer’s office. Texas Government Code, Title 5, Subtitle A, Chapter 552, Subchapter A § 552.201

Who is exempted?

The Public Records Act doesn’t apply to the judicial branch.

“(a) Access to information collected, assembled, or maintained by or for the judiciary is governed by rules adopted by the Supreme Court of Texas or by other applicable laws and rules. (b) This section does not address whether information is considered to be information collected, assembled, or maintained by or for the judiciary.” Texas Government Code, Title 5, Subtitle A, Chapter 552, Subchapter A § 552.0035

How can requests be submitted?

In-person?

Yes.

Verbally?

Yes. However, the 10-day period within which an agency must ask for an Attorney General’s opinion does not apply to such requests.

By mail?

Yes.

By email?

Yes.

How long do they have to respond?

Agencies are expected to provide materials “as soon as possible” or a date when materials will be provided.

“(d) If an officer for public information cannot produce public information for inspection or duplication within 10 business days after the date the information is requested under Subsection (a), the officer shall certify that fact in writing to the requestor and set a date and hour within a reasonable time when the information will be available for inspection or duplication.” Texas Government Code, Title 5, Subtitle A, Chapter 552, Subchapter A § 552.221

Are there provisions regarding the extension of response times?

Yes.

“(d) If an officer for public information cannot produce public information for inspection or duplication within 10 business days after the date the information is requested under Subsection (a), the officer shall certify that fact in writing to the requestor and set a date and hour within a reasonable time when the information will be available for inspection or duplication.” Texas Government Code, Title 5, Subtitle A, Chapter 552, Subchapter A § 552.221

Does the agency have to give you a tracking number or estimated date of completion?

Yes, if an agency cannot provide materials within 10 days, the law requires that they provide an estimated date on which records will be provided. No tracking number is explicitly required.

Can they ask why you ask?

Agencies aren’t allowed to limit disclosure based on the motivation of the request.

What enforcement?

One may sue.

“(a) A requestor or the attorney general may file suit for a writ of mandamus compelling a governmental body to make information available for public inspection if the governmental body refuses to request an attorney general’s decision as provided by Subchapter G or refuses to supply public information or information that the attorney general has determined is public information that is not excepted from disclosure under Subchapter C.” Texas Government Code, Title 5, Subtitle A, Chapter 552, Subchapter A § 552.321

Fees?

Fees may cover copies. They may include labor, but such inclusion requires description.

“(a) The charge for providing a copy of public information shall be an amount that reasonably includes all costs related to reproducing the public information, including costs of materials, labor, and overhead. If a request is for 50 or fewer pages of paper records, the charge for providing the copy of the public information may not include costs of materials, labor, or overhead, but shall be limited to the charge for each page of the paper record that is photocopied, unless the pages to be photocopied are located in: (1) two or more separate buildings that are not physically connected with each other; or (2) a remote storage facility.” Texas Government Code, Title 5, Subtitle A, Chapter 552, Subchapter A § 552.261

“(b) If the charge for providing a copy of public information includes costs of labor, the requestor may require the governmental body’s officer for public information or the officer’s agent to provide the requestor with a written statement as to the amount of time that was required to produce and provide the copy. The statement must be signed by the officer for public information or the officer’s agent and the officer’s or the agent’s name must be typed or legibly printed below the signature. A charge may not be imposed for providing the written statement to the requestor.” Texas Government Code, Title 5, Subtitle A, Chapter 552, Subchapter A § 552.261

Are there fee waivers for media requests or those made in the public interest?

If the agency finds the request to be in the public interest, it may waive fees. It may also do so if the cost of collecting the charge would outweigh the charge itself.

“Sec. 552.267. WAIVER OR REDUCTION OF CHARGE FOR PROVIDING COPY OF PUBLIC INFORMATION. (a) A governmental body shall provide a copy of public information without charge or at a reduced charge if the governmental body determines that waiver or reduction of the charge is in the public interest because providing the copy of the information primarily benefits the general public. (b) If the cost to a governmental body of processing the collection of a charge for providing a copy of public information will exceed the amount of the charge, the governmental body may waive the charge.” Texas Government Code, Title 5, Subtitle A, Chapter 552, Subchapter A § 552.267

Attorney’s fees - Can you win them?

Yes.

“(b) In an action brought under Section 552.324, the court may assess costs of litigation and reasonable attorney’s fees incurred by a plaintiff or defendant who substantially prevails. In exercising its discretion under this subsection, the court shall consider whether the conduct of the governmental body had a reasonable basis in law and whether the litigation was brought in good faith.” Texas Government Code, Title 5, Subtitle A, Chapter 552, Subchapter A § 552.323

Exemptions and Appeals

What exemptions exist?

Most exemptions are specific.

Are they mandatory or discretionary?

Exemptions may be applied at the discretion of the agency. Subchapter C lists a variety of exceptions.

Do they have to tell you why a portion or pages were redacted or withheld?

Yes, and elements that are not specifically exempt should be provided.

How much time do you have to appeal?

There is no administrative appeal option.

To whom does the appeal go?

There is no appeal option.

Can you appeal a delay?

There is no appeal option, though one may immediately turn to the courts for relief.

Do agencies have to tell you where to send your appeal?

There is no appeal option.

What if your appeal is denied?

There is no appeal option.

Where else can you turn?

The court.

Are all appeals kept officially?

There is no appeal option.

Resources

Organizations

The following organizations offer resources for those seeking public records in Texas.

• Freedom of Information Foundation of Texas
• EFF Austin

Attorneys and Law Firms

The following attorneys and law firms have practiced public records law. Names marked with an asterisk have indicated a willingness to offer pro bono services on a case by case basis.

• Jackson Walker L.L.P.

Successful appeals

The Attorney General posts Open Records Letter Rulings (ORLs) on its website.

News Stories on Public Records Laws in the State

• How some local governments are violating the law and the public’s trust in records requests
• In Texas, access delayed: Public records appeal process invites abuse

Submit a new link

Blogs and feeds primarily focused on public records in Texas

• Freedom of Information Foundation of Texas Blog

Public Records Guide and Advice

• Freedom of Information Foundation of Texas’ Guide to Texas Public Information Act
• Texas Attorney General’s Public Information Handbook

Newsletters

Submit a new newsletter

Big FOIA wins

Have a public records success story? Let us know!