The Texas Public Information Act: Open Records Made Easy

What is the Texas Public Information Act? The Texas Public Information Act (the “Public Information Act”) was adopted in 1973 by the reform-minded 63rd Legislature. The Sharpstown scandal, which occurred in 1969 and came to light in 1971, provided the motivation for several enactments opening up government to the people. The Public Information Act is now codified in the Texas Government Code at Chapter 552. See the following website for the text of the Act in its’ entirety: http://tlo2.tlc.state.tx.us/statutes/statutes.html

Where can I find a reference to this state law in a UT handbook or policy? UTS139 - Texas Public Information Act (formerly BPM 32-12-01) sets forth procedures The University of Texas System follows for complying with the Texas Public Information Act. The University of Texas System includes The University of Texas System Administration and the component institutions. http://www.utsystem.edu/policy/policies/uts139.html

To what University officer must an Open Records Request be directed? A written Open Records Request should be forwarded to the Vice President and Chief Financial Officer and Custodian of Records for handling. For U.S. mail delivery: Mr. Kevin P. Hegarty Vice President and Chief Financial Officer The University of Texas at Austin PO Box 8179 Austin, Texas 78713-8179 (512) 471-1422

For hand-delivery: Office of Vice President and Chief Financial Officer Main Bldg., Suite 102 G4900 For fax delivery: (512) 471-7742 By electronic mail: cfo@www.utexas.edu

Except in the case of faxed and e-mail requests, the Public Information Act does not require that the public direct its open records requests to any specific University employee or officer. Generally, the deadlines involved in handling open records requests are not put on hold merely because the wrong University staff member received the request. For this reason, it is important that the University clearly inform all of its employees what to do if they receive a request for records.

How much time does the University have to comply with an Open Records Request? The University must “promptly” produce the public information. There is often a misconception that the Act requires copies of public information be produced within ten (10) days upon receipt of the written request. The Act states that all requests must be handled with good faith and must be accomplished within a reasonable time period. Reference – see ORD 664 (February 8, 2000)

If it will take the University longer than 10 business days to produce the records, the University must certify that fact in writing to the requestor. In the notice, the University must indicate a set date and hour within a reasonable time that the information will be made available for inspection or duplication (§552.221).

What types of records fall under the Texas Public Information Act? Public records include any information that is collected, assembled, or maintained … by or for the University and the University owns the information or has a right of access to it. The Act applies to records regardless of their format. It includes information that is maintained in paper, tape, microfilm, video, electronic data held in computer memory, as well as other mediums specified under law.

Can the University substitute a new document or produce a redacted copy of a record in response to an Open Records Request? The University is required to make copies of the actual records that exist. If authorized by law, the University can cross through or otherwise excise the confidential information. However, a governmental body may not substitute a new document in which only the non-confidential information is presented, unless the requestor consents to the substitution.

What are some examples of records that fall under the Open Records Act? General University business records Staff employee records Faculty employee records Education records

General University Business Records The following categories of information are public and not excepted from disclosure under the Act: §552.022(a)(1) - (18) (1) A completed report, audit, evaluation, or investigation … (3) Information in an account, voucher, or contract relating to the receipt or expenditure of public funds … (13) A policy statement or interpretation that has been adopted or issued … (14) Administrative staff manuals and instructions to staff that affect a member of the public …

Faculty and Staff Employment Records The following categories of information are public and not excepted from disclosure under the Act. The name, sex, ethnicity, salary, title and dates of employment of each employee … ELABORATE: which categories of information are public and which are confidential.

Do University faculty and staff have a special right of access to their University records? An employee whose job requires or permits access to certain public records would have a special right of access to those records. The transfer of information to University staff is not considered a release to the public and would not constitute selective disclosure.

Educational Records The Family Educational Rights and Privacy Act (FERPA) of 1974 (commonly known as the Buckley Amendment) affords certain rights to students concerning their education records. (See also Section 552.014 of the Act.) Students have 3 primary rights under FERPA: • to inspect and review their education records; • to have some control over the disclosure of information from their education records; and • to seek to amend their education records.

Educational Records (Public Directory Information) Directory information is defined as a student’s: name local and permanent addresses electronic e-mail addresses telephone listing date and place of birth major field of study participation in officially recognized activities and sports weight and height if a member of an athletic team dates of attendance REMINDER – discuss IT handling the release of public directory info on behalf of faculty, staff and students.

degrees awards and honors received (including selection criteria) the most recent previous educational institution attended a student’s classification expected date of graduation names and addresses of former students credited with funds remaining in their general property deposit student parking permit information General Information Handbook: 2006-2007, Appendix C, Chapter 9, Subchapter 9-200 For questions regarding FERPA: Patricia “Jane” Shaughness, Office of the Registrar, 475-7638

Non-Public Information Some of the information maintained by The University of Texas at Austin may contain information that is not public, such as the following: student information/records; medical information/records; drivers license and motor vehicle information; attorney-client communications; attorney work product; documents made confidential by statute (other law); documents claimed to be proprietary by a third party (trade secret information).

How much does it cost to obtain copies of University records? Charges for copies of public information are set by the Attorney General’s Office. Generally, if the number of copies in your request is less than 50 pages, the charge will be $0.10 per page plus the cost of postage (or other delivery method, at your request). UT Austin policy is to waive charges for 50 or less copies. If the number of copies is more than 50 pages, the charge will be $0.10 per page plus personnel costs necessary to compile the documents, in addition to the postage.

Programming and Manipulation of Electronic Data (§552.231) Occasionally, the University determines that responding to an Open Records Request will require programming and manipulation of electronic data to compile the requested information in the requested format. Current Open Records law requires that the University provide a written statement of the cost to the requestor within 20 days upon receipt of the request or upon clarification of the request. Should the University require more time to complete our estimate, we have an additional 10 days to provide a written cost estimate. The only requirement is that we provide the requestor with written notice within the first 20 days that the University will need more time to complete our estimate.

Cost for Copies (§552.261) The charge for providing a copy shall be an amount that reasonably includes all costs related to reproducing the public information, including costs of materials, labor and overhead. For a request of 50 or fewer pages, the charge for providing a copy may not include costs of materials, labor or overhead. It is limited to the charge per page, unless the documents are located in two or more separate buildings, or a remote storage facility.

Required Itemized Estimate of Charges (§552.2615) If a request for copies will exceed $40.00, or a request to inspect will result in a charge under §552.271 that exceeds $40.00, then the University shall provide a written itemized statement that details all estimated charges that will be imposed, including any allowable charges for labor or personnel costs. Failure to provide a timely cost estimate will result in losing the ability to recover actual charges, when they exceed $40.00.

Cost to Inspect (§552.271) (a) If a requestor does not request a copy of public information, a charge may not be imposed for making available for inspection any public information that exists in a paper record … (b) if a page contains confidential information that must be edited from the document before it can be released, the University may charge for the cost of making a copy of the edited page. No other charge may be imposed.

Cost to Inspect Cont’d (§552.271) The University may require the requestor to make a deposit or post a bond for payment of anticipated personnel costs for making available for inspection documents IF the information is: Older than five years; or Completely fills, or when assembled, will completely fill 6 or more archival boxes; and The University estimates that more than 5 hours will be required to make the public information available for inspection.

Requests Requiring More Than 36 Hours of Personnel Time 36 Hour Rule Each requestor is limited to 36 hours of time per 12 month fiscal year that personnel of the institution are required to spend producing public information for inspection and duplication, or providing copies to the requestor, without recovering its cost attributable to that personnel time. If, in connection with a request, the cumulative amount of personnel time spent complying with requests from the same requestor is expected to equal or exceed 36 hours, the University shall provide the requestor with a written estimate of the total cost, including materials, personnel time, and overhead expenses necessary to comply with the request. The written estimate must be provided to the requestor on or before the 10th day (calendar day) after the date on which the public information was requested.

Attorney General Ruling Time is of the essence. Institutions seeking to withhold requested information must notify the UT System Office of General Counsel. OGC must request an AG Ruling within 10 business days from the date that the request is received.

Attorney General Ruling Proprietary Information to a Third Party The University shall make a good faith attempt to notify a person (or party) of the request for an AG Ruling.

Who can I contact with questions about the Open Records Act? Margo Iwanski Executive Assistant 471-1422 Annela M. Lopez Administrative Associate Office of the Vice President & Chief Financial Officer Main Bldg., Suite 102 471-8300 alopez@mail.utexas.edu Frequently Requested Information: www.utexas.edu/business/vp/open_records.html

Closing Thoughts The Open Records Act 10-Day Deadlines Implications of Record Retention on the Open Records Act Questions for the group

THE END

Section 552.1235 Identity of a Private Donor §552.1235 of the Texas Public Information Act, Government Code, excepts from public disclosure: (a) "the name or other information that would tend to disclose the identity of a person, other than a governmental body, who makes a gift, grant, or donation of money or property to an institution of higher education; (b) subsection (a) does not except from required disclosure the amount or value of an individual gift, grant, or donation.

Section 552.1235 (con’t) §552.1235, Government Code, does not provide a definition of "person.“ The Attorney General’s Office looks to the definition provided in the Code Construction Act. "Person" includes corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity.