Open Records from the
OAG Perspective
Amanda Crawford
Division Chief
Open Records Division
Open Records Letter Rulings Issued
in Fiscal Years 2001-2013
25,000
20,000
15,000
10,000
5,000
0
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013
What is a Public Information Request?
 Must be in writing to trigger the PIA
 Must ask for information in existence as of the date the
request was received
• No requirement to create new documents
• No requirement to answer questions
• No requirement to perform legal research
 No “magic words” required
 No requirement to label it as an “open records request” or
“public information request”
 Can be typed or handwritten
 Cannot require the use of a specific form
When a Governmental Body First
Receives a Request
 Determine if any exceptions to disclosure will be asserted
 Determine if any third parties may have an interest in the
requested information and notify the third parties
 Pursuant to Section 552.301, request a ruling and send the
required information to the Attorney General
“Core” Public Information
Section 552.022 of the Government Code
 Provides for required public disclosure of 18 categories of
information, including completed reports under Section
552.022(a)(1), and contracts under Section 552.022(a)(3).
 Information encompassed by Section 552.022 generally
may not be withheld from disclosure unless the information
is specifically made confidential by law.
Government Code § 552.301(b)
10-business-day deadline:
 Send the OAG a written request for a ruling, stating every
exception you believe may be applicable;
AND
 Send the requestor
(1) a written statement that you wish to withhold information
and have asked the OAG for a ruling, and
(2) a copy of your communication with the OAG
Government Code § 552.301(e)
15-business-day deadline:
 Send the OAG
(1) written comments in support of each exception or
privilege you claim;
(2) a copy of the request;
(3) proof of the date the request was received; and
(4) a copy of the requested information, or representative
samples if the information is voluminous, labeled to
indicate which exceptions apply to which part of the
information;
AND
 Send the requestor a copy of your written comments (may
be redacted to avoid disclosure of the information at issue)
Government Code § 552.302
 Failure to comply with Section 552.301 results in the
presumption the requested information is subject to required
public disclosure.
 Accordingly, the information must be released unless there
is a compelling reason to withhold the information.
 A “compelling reason” can include confidentiality provisions
in the PIA or other law.
Government Code § 552.305
 If release of the requested information may implicate the
proprietary interests of a third party, then a governmental
body must make a good-faith attempt to notify each third
party of the request and inform the third parties that the
governmental body is seeking an the Attorney General
decision.
 Use the third-party notice letter found in the Public
Information Act Handbook and on the Attorney General’s
website
When Third-Party Interests Are at
Stake, a Governmental Body Must…
 Send written notice to all third parties who may have an
interest in the requested information, within 10 business
days of receiving the request for information
• Third parties can include vendors, bidders, contractors
and sub-contractors
 Raise any exceptions to disclosure based on the
governmental body’s own interests in the requested
information
 Provide the OAG with the requested documents
• Do not rely on the interested third parties to submit their
documents
Practical Tips to Remember
 Consider explaining the open records process to bidders
before a request
 Be sure to provide the OAG with the mailing address for all
third parties
 Communicate with the third parties about the information at
issue
Government Code § 552.104
 Protects information that would give an advantage to a
competitor or bidder
 Protects both the governmental body’s competitive interest
and specific marketplace interest
Two Interests Protected Under
§ 552.104
 Competitive Interest protects a governmental body’s
interest in receiving competitive bids
 Specific Marketplace Interest protects a governmental
body’s interest when actually competing in the
marketplace
What a Governmental Body Must
Tell Us When Asserting
§ 552.104
Competitive Interest
 Demonstrate there is a competitive bidding situation where
there is more than one competitor, and
 The possibility of specific harm to the competitive bidding
situation by release of the requested information
Marketplace Interest
 Demonstrate a specific marketplace interest, and
 The possibility of specific harm to the marketplace interest
by release of the requested information
Things to Remember About
§ 552.104
 Protects the interests of a governmental body and NOT a
third party
 Waived by violating section 552.301
 Temporal in nature (ends when bidding is complete and
contract is executed)
Government Code § 552.105
 Protects information relating to a governmental body’s
planning and negotiating position with respect to certain real
or personal property transactions
•
Information relating to location, appraisals or purchase
price of property prior to the award of a contract for the
property
Government Code § 552.105
 Protects information relating to a governmental body’s
planning and negotiating position with respect to certain real
or personal property transactions. Either:
•
The location of property prior to public announcement of
the project; or
•
Appraisals or purchase price of property prior to the
award of a contract for the property
What a Governmental Body Must
Tell the OAG When Asserting
§ 552.105
 It is seeking to acquire a piece of property and no public
announcement of the project has been made or a contract
has not been executed, and
 It has made a good-faith determination that release of the
information would damage the governmental body’s
negotiating position with respect to acquisition of the
property
Things to Remember About § 552.105
 Protects the interests of a governmental body and NOT a
third party
 Waived by violating Section 552.301
 Temporal in nature (ends when project is announced or
property acquired)
Government Code § 552.110
 Protects trade secret information
 Also protects commercial or financial information that, if
released, would cause substantial competitive harm to third
parties
Government Code § 552.110
 Protects trade secret information
•
•
A third party must demonstrate the information at issue
meets the definition of a trade secret; and
A prima facie case must be made according to the six
factors set out in the Restatement of Torts
 Also protects commercial or financial information that, if
released, would cause substantial competitive harm to the
person or entity from whom the governmental body obtained
the information
Things to Remember about
§ 552.110
 Protects third party interests, not those of a governmental
body
 The third party, not the governmental body, must argue and
demonstrate the applicability of this exception
 Violation of section 552.301 does not waive section 552.110
The 83rd Regular Session
PIA Amendments
 SB 1368, §§ 1, 2, 3 (Davis)
• Amends Gov’t Code §§ 552.002, .003., 2252.907
• Effective September 1, 2013
• Amends and clarifies definitions of “public information”
and “official business”
• Provides that contracts by state agencies that involve
the exchange or creation of public information shall
contain provisions requiring vendors to make certain
information accessible to the public
The 83rd Regular Session
PIA Amendments
Gov’t Code § 552.002(a-1), (a-2)
Information is in connection with the transaction of official
business if 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 pertains to official business of the governmental
body.
The definition of “public information” provided by
Subsection (a) applies to and includes any electronic
communication created, transmitted, received, or
maintained on any device if the communication is in
connection with the transaction of official business.
The 83rd Regular Session
PIA Amendments
Gov’t Code § 552.003(a-2)
“Official business” means any matter over which a
governmental body has any authority, administrative
duties, or advisory duties.
Gov’t Code § 2252.907
A contract between a state agency and a nongovernmental
vendor involving the exchange or creation of public
information must be drafted in consideration of the
requirements of Chapter 552 and contain a provision that
requires the vendor to make the information not otherwise
excepted from disclosure under Chapter 552 available and
accessible to the public.
Questions?
OAG’s Open Government Hotline
(877) OPEN TEX
(512) 478-6736
Cost Questions
OAG Cost Rules Administrator
(888) OR-COSTS
(512) 475-2497
OAG website
http://www.texasattorneygeneral.gov
Contact Information
Amanda Crawford
Division Chief
Office of the Attorney General
amanda.crawford@texasattorneygeneral.gov
(512) 936-2876