The Texas Public Information Act for Beginners Sean Nottingham Assistant Attorney General Open Records Division Views expressed are those of the presenter, do not constitute legal advice and are not official opinions of the Office of the Texas Attorney General

 Step 1: Recognizing a request that triggers the Act  Step 2: Identifying the responsive information  Step 3: Calculating the deadlines  Step 4: Determining whether a cost estimate is needed  Step 5: Gathering the responsive information  Step 6a: Releasing the information and/or withholding the information that does not require a ruling  Step 6b: Seeking a ruling from the Office of the Attorney General (“OAG”)  Step 7: Waiting for the ruling  Step 8: Receiving the ruling Step by step…

Setting Up the Situation  I work for the City of Pawnee (the “city”) as the Public Information Coordinator.  On June 30, 2015, a reporter with the Pawnee Journal, Shauna Malwae-Tweep, walks in the door of my office and hands over a request filled out on a city public information request form.

Step 1: Recognizing a request that triggers the Act  Must be in writing to trigger the PIA, typed or handwritten  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  Cannot require the use of a specific form to submit request

The Request  “I am requesting copies of Garry Gergich’s personnel file and All s sent between December 1, 2012, and March 31, 2013.”

Step 2: Identifying the responsive information  If there is no responsive information, let the requestor know as soon as possible. However, if the request is unclear or overly broad… Gov’t Code §  Cannot ask requestors why they want the information  Can ask requestor to clarify request and/or discuss with requestor how scope of request might be narrowed  When a governmental body, acting in good faith, requests clarification or narrowing of an unclear or over-broad request, the 10-business-day period to request an attorney general decision is measured from the date the request is clarified or narrowed. City of Dallas v. Abbott, 304 S.W. 3d 380, 387 (Tex. 2010)

Should we seek clarification?  Is there even an individual named Garry Gergich who works for the city? If not, then we’d need to clarify to know if there was a typo or some other misunderstanding.  All s between certain individuals or involving certain city departments? All s discussing a particular topic or containing specific terms?

Clarification Received on July 1, 2015  The requestor confirms via she… wants the personnel file of Garry Gergich who works for the city’s Parks and Recreation Department and is looking for s containing any of these terms: Garry Gergich, Jerry Gergich, Larry Gergich, Terry Gergich, Barry Gergich, burrito, Pawnee Animal Control, mural or murinal

Step 3: Calculating the Deadlines  On what day do we start counting? We originally received the request on June 30, 2015; however, we sought and received clarification of the request on July 1,  When a governmental body, acting in good faith, requests clarification or narrowing of an unclear or over-broad request, the 10-business-day period to request an attorney general decision is measured from the date the request is clarified or narrowed. City of Dallas v. Abbott, 304 S.W. 3d 380, 387 (Tex. 2010)  What days do we count?

Counting Business Days  General Rules for Counting Business Days Start counting the next business day after receiving a written request. “Received” means when it is physically received, not when it is finally opened or read (this includes ). Saturdays, Sundays and holidays do not count. Skeleton crew days and days the GB is closed do not count, but make sure you notify the OAG of such days in writing if you are requesting a decision.

Counting Business Days - July 2015 SundayMondayTuesday Wednesday ThursdayFridaySaturday 30 written request received 1 clarification received Holiday (observed) city closed, weather th Business Day th Business Day 25

Step 4: Determining whether a cost estimate is necessary  If the cost for complying with the request will exceed $40, you will need a cost estimate letter. Ms. Malwae-Tweep’s clarification will prevent this from being necessary here.  Our office has created a cost letter generator, the Public Information Cost Estimate Model.  Assists governmental bodies in creating cost estimates  The tool is available at: information-cost-estimate-model

Step 5: Gathering the responsive information  Now that we know the deadline, we need to get in contact with the people who have the responsive information and give them a deadline to get us the information that still allows us adequate time, before the expiration of the deadlines, to decide what information may be released immediately and what information the GB wants to withhold. HR for the personnel file relevant employees who would have s containing the terms for that time period  If you have one, an IT department may be able to help you locate the responsive s.

Responsiveness  Within a couple of business days, the HR department and the relevant employees and/or the IT department forward you the information they located.  Quick checklist to determine if the information is responsive: Right individual? Right date range? Right terms?  Any information that is not responsive can be set aside; it is no longer relevant for purposes of complying with the Act.

What Are Our Options at This Point? Sections and of the Government Code  A governmental body must: Promptly produce information for inspection, duplication or both; Ask for a decision from the OAG about whether the information is excepted from disclosure, unless there has been a previous determination that the information is excepted; or Some combination of both.

Step 6a: Releasing the information and/or withholding the information that does not require a ruling  I have to decide what information I want to release and what information I want to seek to withhold.  From chatter around the water cooler, I am aware that Garry is currently suing the city for wrongful termination and hostile work environment. After consulting my copy of the Public Information Handbook, I know section of the Government Code may be available to the city to protect the information if it relates to Garry’s lawsuit. Let’s take a look at the documents.

Reviewing the Personnel Records  As I look at the personnel records, I don’t see anything that is in need of protection in light of the pending litigation. So I’m deciding this information should be released. Before I do, though, I want to make sure there is not otherwise confidential information located in these records. If there is, I may still need to send it off for a ruling; however, if the only confidential information that needs to be withheld can be redacted without seeking a ruling, I can dispose of the personnel records without involving the Open Records Division.

When Can You Redact Without First Seeking a Ruling? (Slide 1 of 2)  Withholding information without requesting a ruling Gov’t Code §  Information related to driver’s license, motor vehicle title or registration, or personal identification document Gov’t Code §  Credit card, debit card and access device numbers Gov’t Code §§ , and  Personal information of certain public employees  A governmental body must use the form letters available on the Attorney General’s website to inform requestors of redactions made under these sections without a ruling.

Open Records Division Forms

When Can You Redact Without First Seeking a Ruling? (Slide 2 of 2)  Withholding information without requesting a ruling Open Records Decision No. 684 (2009)  Previous determination for several types of information Open Records Decision No. 670 (2001)  Previous determination for personal information of peace officer

How Much Time Do You Have to Produce Information? Section of the Government Code  “Promptly” means as soon as possible under the circumstances; that is, within a reasonable time, without delay.  If you cannot produce information within 10 business days after the date the information is requested, you must certify that fact in writing to the requestor and set a date and hour within a reasonable time when the information will be available.

Step 6b: Seeking a ruling from the OAG  After looking at the s, and thinking about the specific terms the requestor is asking for, I decide these s likely relate to the lawsuit Garry filed last year. In order for section of the Government Code to apply, however, the lawsuit would need to have been pending at the time the city received the request from Ms. Malwae-Tweep.  To confirm this, I decide to contact the city’s legal department and inquire about Garry’s lawsuit. The legal department confirms the lawsuit was filed prior to the city’s receipt of the request and concurs with my judgment that these s relate to the pending litigation and should not be released.

How Much Time Do You Have to Request a Decision from the OAG? Section (a)-(b) of the Government Code  If you wish to withhold information from the requestor, you must request a decision from the OAG not later than the 10 th business day after the date of receiving the public information request.  You must request a decision within 10 business days, unless you have a “previous determination.”

Procedures for Requesting a Decision from the OAG (Slide 1 of 3) Sections and of the Government Code  Not later than the 10 th business day, you must: Ask the OAG for a ruling and state the exceptions that apply; Notify the requestor in writing that you have asked for a ruling; Provide the requestor a copy of your letter to the OAG requesting a ruling; and Notify any third parties with proprietary interests in the requested information that they may submit written comments to the OAG stating why the information should be withheld (third-party notice must be in the form prescribed by the OAG).

Procedures for Requesting a Decision from the OAG (Slide 2 of 3) Section (e)-(e-1) of the Government Code  Not later than the 15 th business day, you must: Submit written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld. Submit a copy of the written request for information. Submit a signed statement as to the date on which the request for information was received by the GB or evidence sufficient to establish that date.

Procedures for Requesting a Decision from the OAG (Slide 3 of 3) Section (e)-(e-1) (continued)  Not later than the 15 th business day, you must: Submit a copy (not your original) of the specific information requested, or submit representative samples of the information if a voluminous amount of information was requested. Label that copy of the specific information, or representative samples, to indicate which exceptions apply to which parts of the copy. Send a copy of your written comments to the requestor.

Label, Label, Label!  Send copies, not originals, of the documents at issue Do not apply redactions to documents you are submitting for our review. If we can’t read it, we can’t rule on it.  Mark all submissions clearly, carefully and consistently. Make sure all exhibit numbers on documents match up with exhibit numbers in the brief. Make clear what has been released to the requestor and what hasn’t. Reference all previous correspondence with ORD on all future, related correspondence. If you have previously received a ruling on the same or very similar information, let ORD know.

What is This?  Please provide adequate background information on the documents submitted. Do not take anything for granted. How are these documents responsive? How are they related to the pending investigation, litigation, etc.? Who are the parties mentioned in the documents? What is their relationship to the governmental body? What, if anything, has already been released? Do you have a pending cost estimate or complaint? What does your governmental body do? If you have a law enforcement function, please tell us.

 Section (c)-(e): 7-day letter Receiving one of these letters means we need more information to issue a ruling. Failure to respond in a timely fashion may result in the legal presumption the information subject to the open records request is subject to required public disclosure and must be released.  Section : 10-day letter This means we need more time to handle your file. We can only extend our deadline once. Step 7: Waiting for a ruling

Step 8: Receiving the ruling  Follow the ruling  Call the Open Government Hotline  Gov’t Code§ (f): requests for reconsideration are prohibited  Challenge the ruling in court

Questions? OAG’s Open Government Hotline (877) OPEN TEX (512) Cost Questions OAG Cost Rules Administrator (888) OR-COSTS (512) OAG website