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.