Open Records from the OAG Perspective

1. Open Records from the OAG Perspective Amanda Crawford Division Chief Open Records Division

2. Open Records Letter Rulings Issued in Fiscal Years 2001-2013

3. 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

4. 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

5. “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.

6. 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

7. 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)

8. 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.

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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)

16. 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

17. 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

18. 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

19. 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)

20. 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

21. 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

22. 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

23. The 83rd Regular SessionPIA 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

24. The 83rd Regular SessionPIA 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.

25. The 83rd Regular SessionPIA 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.

26. 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

27. Contact Information Amanda Crawford Division Chief Office of the Attorney General amanda.crawford@texasattorneygeneral.gov (512) 936-2876