HBA-TYH S.B. 1851 76(R) BILL ANALYSIS Office of House Bill AnalysisS.B. 1851 By: Wentworth State Affairs 5/14/1999 Engrossed BACKGROUND AND PURPOSE Currently, the state government complies with open records requests from the general public. S.B. 1851 makes statutory changes regarding public access to governmental information and decisions, including revisions to the public information law, and provides a penalty. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the General Services Commission in SECTION 11 (Section 552.205, Government Code) of this bill. It is the opinion of the Office of House Bill Analysis that rulemaking authority previously delegated to the General Services Commission is modified in SECTION 16 (Section 552.262, Government Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Subchapter A, Chapter 552, Government Code, by adding Section 552.0035, as follows: Sec. 552.0035. ACCESS TO INFORMATION OF JUDICIARY. Provides that 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. Provides that this section does not address whether information is considered to be information collected, assembled, or maintained by or for the judiciary. SECTION 2. Amends Subchapter A, Chapter 552, Government Code, by adding Section 552.0055, as follows: Sec. 552.0055. SUBPOENA DUCES TECUM OR DISCOVERY REQUEST. Provides that a subpoena duces tecum or a request for discovery that is issued in compliance with a statute or a rule of civil or criminal procedure is not considered to be a request for information under this chapter. SECTION 3. Amends Subchapter A, Chapter 552, Government Code, by adding Sections 552.009 and 552.010, as follows: Sec. 552.009. OPEN RECORDS STEERING COMMITTEE: ADVICE TO COMMISSION; ELECTRONIC AVAILABILITY OF PUBLIC INFORMATION. (a) Sets forth the composition and terms of office of the open records steering committee (committee). (b) Provides that the General Services Commission's (commission) representative is the presiding officer of the committee. Requires the committee to meet as prescribed by its rules or at the call of the presiding officer. (c) Requires the committee to advise the commission regarding its performance of duties under this chapter. (d) Requires the committee's members to periodically study and to determine the types of public information that would be useful or cost-effective for the government if the type of information were provided by means of the Internet or another electronic format. Requires the committee to report its findings and recommendations to the governor and the presiding officer, the state affairs committee, and the budget committee of each house of legislature. (e) Provides that Chapter 2110 (State Agency Advisory Committees) does not apply to the size, composition, or duration of the committee, but rather to the reimbursement of a public member's expenses. Authorizes certain reimbursements to be paid from funds available to the state or local governmental body the member represents. Sec. 552.010. STATE GOVERNMENTAL BODIES: FISCAL AND OTHER INFORMATION RELATING TO MAKING INFORMATION ACCESSIBLE. Requires each governmental body to report to the Legislative Budget Board (board) the information the board requires on matters regarding the request for information from the governmental body and the cost to the governmental body to provide that information. Sets forth the manner in which the board is required to report its findings. Requires the committee and the state auditor, at the request of the board, to assist the board in designing its reporting requirements under this section. Requires the board to share the information reported under this section with the committee. SECTION 4. Amends Subchapter A, Chapter 552, Government Code, by adding Section 552.011, as follows: Sec. 552.011. UNIFORMITY. Requires the attorney general to maintain uniformity in the application, operation, and interpretation of this chapter. Authorizes the attorney general to prepare, distribute, and publish any materials in order to maintain uniformity. SECTION 5. Amends Section 552.022, Government Code, to provide that certain categories of information are public information and are not excepted from disclosure, unless expressly held to be confidential under other law. Establishes Section 552.108 (Exception: Certain Law Enforcement and Prosecutorial Information) as an exception. Prohibits a court from ordering a governmental body or an officer of public information to withhold from public inspection any public information or to not produce the public information for inspection or duplication. Makes conforming changes. SECTION 6. Amends Section 552.103, Government Code, by amending Subsection (a) and adding Subsection (c), to delete information regarding settlement negotiation and information that the attorney general determines should be withheld from public inspection from the list of information excepted from the requirements of Section 552.021 (Availability of Public Information). Provides that information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information. SECTION 7. Amends Section 552.110, Government Code, as follows: Sec. 552.110. New title: EXCEPTION: TRADE SECRETS; CERTAIN COMMERCIAL OR FINANCIAL INFORMATION. Excepts commercial or financial information for which it is demonstrated based on specific factual evidence that disclosure would cause substantial competitive harm to the person from whom the information was obtained from the requirements of Section 552.021. Deletes text that makes certain commercial or financial information excepted from the requirements of Section 552.021. SECTION 8. Amends Section 552.116, Government Code, to provide that an audit working paper of an audit of the state auditor or the auditor of a state agency or higher education institution is excepted from the requirements of Section 552.021 to a certain extent. Provides that if information in an audit working paper is also maintained in another record, that other record is not excepted from the requirements of Section 552.021. Defines "audit" and "audit working paper." SECTION 9. Amends Subchapter C, Chapter 552, Government Code, by adding Section 552.131, as follows: Sec. 552.131. EXCEPTION: ECONOMIC DEVELOPMENT INFORMATION. Provides that information related to certain economic development negotiations, such as a governmental body attempting to relocate or expand a business, is excepted from Section 552.021. Provides that certain information on financial incentives provided by a governmental body or certain person is not exempt from the requirements of Section 552.021, unless and until an agreement is made with the business prospect. Provides that after an agreement is made with the business prospect, this section does not except from the requirements of Section 552.021 information about a financial or other incentive being offered to the business prospect by the specified entities. SECTION 10. Amends Subchapter C, Chapter 552, Government Code, by adding Section 552.132, as follows: Sec. 552.132. EXCEPTION: CRIME VICTIM INFORMATION. Defines "crime victim." Authorizes a crime victim to elect to decide whether to offer access to certain information about the victim that is held by certain law enforcement agencies, but must be made within certain guidelines, in which case the information is excepted from the requirements of Section 552.021; however, a non-election would constitute access to the information, unless the information is made confidential by other law within a certain time period and according to certain procedures. Provides that if the crime victim is awarded compensation, the name of the victim and the amount of compensation are public information. SECTION 11. Amends Subchapter D, Chapter 552, Government Code, by adding Section 552.205, as follows: Sec. 552.205. INFORMING PUBLIC OF BASIC RIGHTS AND RESPONSIBILITIES UNDER THIS CHAPTER. Requires an officer of public information to prominently display a sign, which contains the rights and responsibilities pertaining to inspecting and obtaining public information, at one or more places in the administrative office of a governmental body plainly visible to the public and employees of the body. Requires the commission to prescribe, by rule, the sign's content, dimensions, and the specified plain language that address the rights and responsibilities of public access to public information. SECTION 12. Amends Section 552.221(b), Government Code, to provide that sending copies to a person requesting information who agrees to pay the applicable postage and any other applicable charges that the requestor has accrued under Subchapter F (Charges for Providing Copies of Public Information) would constitute compliance by an officer of public information. SECTION 13. Amends Subchapter E, Chapter 552, Government Code, by adding Section 552.232, as follows: Sec. 552.232. RESPONDING TO REPETITIOUS OR REDUNDANT REQUESTS. (a) Requires a governmental body, that determines that a requestor has made a request for information for which the governmental body has previously furnished copies to the requestor or made copies available to the requestor on payment of applicable charges, to respond to the request in accordance with this section, except for the specified exceptions. (b) Requires the governmental body to certify to the requestor that copies of all or part of the requested information, as applicable, were previously furnished to the requestor or made available to the requestor on payment of applicable charges. Provides that the certification must include the enumerated information. (c) Prohibits a charge from being imposed for making and furnishing a certification required under Subsection (b). (d) Provides that this section does not apply to information for which the governmental body has not previously furnished copies to the requestor or made copies available to the requestor on payment of applicable charges. Requires a request by the requestor for information for which copies have not previously been furnished or made available to the requestor to be treated in the same manner as any other request for information. SECTION 14. Amends Section 552.261, Government Code, by amending Subsection (a) and adding Subsections (c) and (d), to prohibit a charge for photocopying 50 or fewer pages of paper records from including certain costs, unless the photocopied pages are located in two or more separate buildings that are not physically connected with each other, rather than located in more than one building. Specifies the physical characteristics of a building insufficient to be considered separate buildings. Provides that charges for providing a copy of public information begin to accrue when a governmental body advises the request about the payment. SECTION 15. Amends Subchapter F, Chapter 552, Government Code, by adding Section 552.2615, as follows: Sec. 552.2615. REQUIRED ITEMIZED ESTIMATE OF CHARGES. (a) Requires the governmental body, if a request for a copy or to inspect a paper record of public information will result in the imposition of a charge that exceeds $40, to provide the requestor with a written itemized statement that details all estimated charges that will be imposed. Provides that if an alternative less costly method of viewing the records is available, the statement must include a notice that the requestor may contact the governmental body regarding the alternative method. Provides that the governmental body must inform the requestor of the duties imposed on the requestor and give the requestor the information needed to respond, including the specified information. (b) Provides that a request is considered to have been withdrawn by a requestor if the requestor does not respond in writing to the itemized statement by informing the governmental body within 10 days after the date the statement is sent to the requestor of the specified information. (c) Requires the governmental body, if it later determines, but before it makes the copy or the paper record available, that the estimated charges will exceed the charges detailed in the written itemized statement by 20 percent or more, to send to the requestor a written updated itemized statement that details all estimated charges that will be imposed. Provides that if the requestor does not respond in writing to the updated estimate, the request is considered to have been withdrawn. (d) Prohibits the charges from exceeding the specified amount if the actual charges that a governmental body imposes for a copy of public information, or for inspecting a paper record exceed $40. (e) Provides that an itemized statement or updated itemized statement is considered to have been sent by the governmental body to the requestor on the date that the enumerated actions are carried out. (f) Provides that a requestor is considered to have responded to the itemized statement or the updated itemized statement on the date that the enumerated actions are carried out. (g) Provides that the time deadlines imposed by this section do not affect the application of a time deadline imposed on a governmental body under Subchapter G (Attorney General Decisions). SECTION 16. Amends Sections 552.262(a)-(d), Government Code, to require the commission to adopt rules to determine the charge, deposit, or bond required for making public information that exists in a paper record available for inspection. Requires the rules to be used to determine the charge, deposit, or bond required for making that information available for inspection. Prohibits the charges for providing copies from exceeding the actual cost for making public information that exists in a paper record available for inspection. Makes conforming changes. SECTION 17. Amends Section 552.263, Government Code, by amending Subsection (a) and adding Subsections (c)-(e), to authorize the information officer to require a deposit or bond for anticipated costs for copying the information if the charge for providing the copy of the information specifically requested is estimated to exceed $100, if the governmental body has more than 15 full-time employees, or $50, if the body has fewer than 16 full-time employees. Authorizes the officer to require a deposit or bond for payment of unpaid information requests, but only if the new requests exceed $100. Prohibits the officer for public information or the officer's agent from seeking payment of those unpaid amounts through any other means. Provides that the governmental body must fully document the amounts prior to requiring the deposit. Provides that the documentation is subject to required public disclosure. Establishes when an amount is considered to be unpaid. SECTION 18. Amends Section 552.271, Government Code, to prohibit an inspection charge from being assessed, except as provided by this section, if the requestor does not request a copy of public information. Authorizes the information officer, under certain circumstances, to require a requestor to make certain payments for personnel costs, except as provided by this section. Sets forth when payment may be required from the requestor. Sets forth when payment may be required from the requestor, if the governmental body has fewer than 16 full-time employees. SECTION 19. Amends Section 552.274(a), Government Code, to require each state agency to send certain information regarding procedures for charging and collecting fees for public information to the commission by December 1, rather than September 1, of each odd-numbered year. SECTION 20. Amends Section 552.301, Government Code, to provide that a governmental body that requests information must provide to the requestor within a reasonable time certain statements regarding the desire of the governmental body to withhold the requested information and to ask the attorney general for a decision. Provides that the governmental body must submit in its request to the attorney general a signed statement detailing when the request was received. Provides that the governmental body must release the request and not ask for a decision if the attorney general previously made a determination concerning that precise information and the attorney general or a court determined the information to be public information under this chapter that is not excepted under Subchapter C. SECTION 21. Amends Section 552.302, Government Code, to provide that if a governmental body does not request an attorney general decision as provided by Section 552.301(Request for Attorney General Decision) and provide the requestor with the information required by Section 552.301(d), rather than Section 552.301(a), the information requested in writing is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information. SECTION 22. Amends Section 552.303, Government Code, by amending Subsections (a)-(c) and (e), to authorize a governmental body to disclose requested information, unless the information requested is confidential by law, before the attorney general makes a final determination for the requested information, rather than until the attorney general makes a final determination for the information. Authorizes the attorney general to determine that additional information is required to render a decision for a governmental body. Requires certain information to be disclosed unless there exists a compelling reason to withhold the information. Deletes text regarding a governmental body's failure to supply sufficient information. Makes conforming changes. SECTION 23. Amends Subchapter G, Chapter 552, Government Code, by adding Section 552.3035, as follows: Sec. 552.3035. DISCLOSURE OF REQUESTED INFORMATION BY ATTORNEY GENERAL. Prohibits the attorney general from disclosing to the requestor or the public any information submitted to the attorney general under Section 552.301(e)(1)(D). SECTION 24. Amends Section 552.305, Government Code, by adding Subsections (d) and (e), to require a governmental body that requests an attorney general decision under Section 552.301 to notify a person whose privacy or property interest will be involved under this section. Sets forth criteria for the notice. Requires a person who submits a letter, memorandum, or brief to the attorney general under this section to send a copy of that correspondence to the person who requested the information from the governmental body. Authorizes the correspondence to be a redacted copy, if the correspondence contains the substance of the information requested. SECTION 25. Amends Section 552.306(a), Government Code, to require the attorney general to promptly render a decision, except as provided by Section 552.011. Requires the attorney general to notify a governmental body that the agency will not be able to render an opinion within 45 days, rather than 60 days, and that an additional 10 days, rather than 20 days, are required. SECTION 26. Amends Section 552.308, Government Code, as follows: Sec. 552.308. New title: TIMELINESS OF ACTION BY UNITED STATES OR INTERAGENCY MAIL. Provides criteria from which a state agency determines if the agency's request to the attorney general was in a timely fashion. Makes nonsubstantive changes. SECTION 27. Amends Section 552.321, Government Code, to authorize certain suits for a writ of mandamus for public information that is not excepted from disclosure under Subchapter C, and to add provisions regarding the suit. SECTION 28. Amends Subchapter H, Chapter 552, Government Code, by adding Section 552.3215, as follows: Sec. 552.3215. DECLARATORY JUDGMENT OR INJUNCTIVE RELIEF. (a) Defines "complainant" and "state agency." Provides that a state agency that violates this chapter is subject to certain fines and penalties, and that each day a violation continues is considered a separate violation. (b) Authorizes an action for a declaratory judgment or injunctive relief to be brought against a governmental body that violates this chapter. (c) Authorizes an action to be brought in the county in which the administrative office of the governmental body is located if the body extends into more than one county. (d) Authorizes the Travis County district attorney or the attorney general, if the governmental body is a state agency, to bring the action in the name of the state only in a district court of Travis County. (e) Authorizes a complainant to file a complaint alleging a violation of this chapter, and for that suit to be filed in certain counties based on the location of the agency. Sets forth criteria for a valid complaint. (f) Requires the government attorney receiving the complaint to indicate the date the complaint is filed on the face of the complaint. (g) Sets forth certain actions that the government attorney must take upon receiving a complaint. (h) Requires the government attorney who determines not to bring an action to draw up a statement of the determination and to return the complaint to the complainant. (i) Authorizes the complainant to file the action with the attorney general by a certain time, if the attorney determines not to bring a suit. Provides that the attorney general must comply with certain requirements. (j) Authorizes the action to be brought only if the official proposing to bring the suit notifies the governmental body of the official's determination of the alleged violation and if the body still does not cure the violation by a certain date. (k) Provides that the action is in addition to any other civil, administrative, or criminal action provided. SECTION 29. Amends Section 552.323, Government Code, to require, rather than authorize, the court to assess only certain costs and fees for certain actions. Sets forth the costs and fees not authorized to be assessed by the court. Authorizes the court to assess the costs and fees incurred by a plaintiff or defendant who substantially prevails in certain actions brought. Requires the court to consider the conduct of the officer of public information of the governmental body, rather than only the governmental body. Makes conforming changes. SECTION 30. Amends Section 552.324, Government Code, to provide that a governmental body must bring a suit by a certain date of receiving a challenged decision of the attorney general, otherwise the governmental body must comply with the decision. Provides that this subsection does not affect certain other deadlines for a suit. SECTION 31. Amends Subchapter H, Chapter 552, Government Code, by adding Section 552.326, as follows: Sec. 552.326. FAILURE TO RAISE EXCEPTIONS BEFORE ATTORNEY GENERAL. Authorizes a governmental body to raise the specified exceptions in a suit. Provides that this section does not prohibit a governmental body from raising the enumerated exceptions. SECTION 32. Amends Subchapter D, Chapter 551, Government Code, by adding Section 551.086, as follows: Sec. 551.086. DELIBERATION REGARDING ECONOMIC DEVELOPMENT NEGOTIATIONS; CLOSED MEETING. Provides that this chapter does not require a governmental body to conduct an open meeting for the specified matters. SECTION 33. Amends Section 325.011, Government Code, to require the Sunset Advisory Commission to consider the extent to which an agency complies with Chapters 551 (Open Meetings) and 552 and follows records management practices that enable the agency to respond efficiently to requests for public information in determining whether a public need exists for continuing the agency. SECTION 34. Amends Section 2(d), Chapter 428, Acts of the 73rd Legislature, Regular Session, 1993, to require the commission to provide a copy of the updated report to each state agency by March 1 of each even-numbered year. SECTION 35. (a) Requires the commission to adopt the rules under Section 552.205, Government Code, in time for a governmental body to print and display the required sign by January 3, 2000. (b) Makes application of the requirement to post a sign prospective to January 3, 2000. SECTION 36. Makes application of this Act prospective. SECTION 37.Effective date: September 1, 1999.