By: Miller of Comal H.B. No. 3641
A BILL TO BE ENTITLED
AN ACT
relating to the preservation of effective responses to requests for
information pursuant to the public information law.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. PURPOSE. The purpose of this Act is to enhance
and preserve the public's ability to obtain effective responses to
legitimate requests for information pursuant to the public
information law.
SECTION 2. Chapter 552 of the Government Code is amended by
creating Subchapter J as follows:
Sec. 552.401. DEFINITIONS. In this subchapter:
(1) "Defendant" means a person against whom a
governmental body commences an action under this subchapter.
(2) "Abusive Requestor" means a person who submits a
request to a governmental body for inspection or copies of public
information with the intent to harass, abuse, or waste public funds
and/or time of public officials or employees.
Sec. 552.402. SUIT TO DECLARE OPEN RECORDS REQUEST VOID.
(a) A governmental body may bring suit in accordance with this
subchapter against an Abusive Requestor.
(b) The governmental body must bring the suit not later than
the 10th business day after the date the governmental body receives
the request for records.
(c) A suit filed under this section must be filed in a
district court of Travis County.
(d) The governmental body shall provide notice to the
attorney general of a suit filed under this section and the attorney
general is entitled to intervene in the suit.
Sec. 552.403. TEMPORARY INJUNCTION AFFECTING FUTURE
REQUESTS. (a) Upon the commencement of an action under Section
552.402, the requestor is temporarily enjoined, for a period
determined by the court the earlier of 90 days or the date of final
judgment from requesting inspection or copies of public information
from the governmental body that filed the suit.
(b) For the purposes of this subchapter, commencement of an
action occurs when the defendant is served pursuant to the Texas
Rules of Civil Procedure.
(c) Within 10 business days of the date the defendant
answers the suit, the court shall hold a preliminary hearing to
determine whether probable cause exists to maintain the action.
(d) If the court finds probable cause exists, the court
shall enter a scheduling order to include the date for final hearing
on the matter before the 90th day after commencement of the action.
(e) If the court does not find that probable cause exists,
the temporary injunction shall be immediately lifted, the action
shall be dismissed, and reasonable costs/attorney's fees shall be
awarded the requestor.
Sec. 552.404. PRELIMINARY HEARING. (a) At the preliminary
hearing under Section 552.403, the court may consider any evidence
material to the grounds alleged in the pleadings of the
governmental body.
(b) The evidence to be considered may include:
(1) written or oral evidence; and
(2) evidence presented by witnesses or affidavit.
(c) At the preliminary hearing, the governmental body shall
provide the defendant with legible copies of any and all documents
intended to be introduced at the final hearing on the merits as
substantive evidence and proof of the allegations in the petition,
excluding any information relevant to a prior request for public
information that is either excepted from disclosure or otherwise
confidential.
Sec. 552.405. CRITERIA FOR FINDING REQUESTOR AN ABUSIVE
REQUESTOR. (a) A court may find a requestor an Abusive Requestor
if the governmental body shows, by clear and convincing evidence,
that the requestor, in the seven-year period immediately preceding
the date the governmental body commences the suit under Section
552.402, has made at least five requests for public information
that have either:
(A) sought information predominately excepted from
disclosure pursuant to Subchapter B of this chapter;
(B) sought predominately confidential information or
information otherwise excepted from disclosure pursuant to
Subchapter C of this chapter;
(C) resulted in the governmental body asking the
requestor to clarify the request or to narrow the scope of the
request and the requestor failed to clarify or narrow the scope of
the request, if the court finds the request was susceptible to
reasonable clarification or narrowing within the constraints of
Section 552.222;
(D) resulted in the governmental body providing the
requestor a written statement pursuant to 552.231, and the request
is later considered to be withdrawn pursuant to that section;
(E) resulted in the governmental body certifying to
the requestor that copies of the requested information were
previously furnished to the requestor pursuant to Section 552.232;
or
(F) resulted in an overdue balance in excess of
$100.00 that was not paid within 30 days after the governmental body
sent notice of the overdue balance to the requestor.
(b) A court may alternatively find a requestor to be an
abusive requestor if the governmental body shows, by clear and
convincing evidence, that, in the seven-year period immediately
preceding the date the governmental body commences the suit under
Section 552.402, the defendant has previously been declared an
Abusive Requestor by a state court in an action commenced by a
different governmental body and the requestor has made at least
three requests for public information from the governmental body
that commenced this suit that meet either of the criteria in
Subsection (a) of this section.
Sec. 552.406. FINAL HEARING ON THE MERITS. (a) Within the
90-day temporary injunction period, the court shall hold a final
hearing on the merits on its own motion or the motion of any party.
(b) Each party shall be entitled to ten (10) days notice
prior to the date of the final hearing on the merits.
(c) Only the defendant may move for a continuance of the
final hearing that would extend beyond the 90-day temporary
injunction period. If the defendant obtains a continuance extending
the time for the final hearing beyond the 90-day temporary
injunction period, the court may extend the temporary injunction
until completion of the final hearing on the merits.
(d) At the final hearing, the court may consider any
evidence material to the grounds alleged in the pleadings of the
governmental body.
(e) The evidence to be considered may include:
(1) written or oral evidence; and
(2) evidence presented by witnesses or by affidavit.
(f) At the final hearing, the governmental body may, in
compliance with the rules of evidence, introduce legible copies of
any and all documents produced at the preliminary hearing.
(g) At the final hearing, any evidence sought to be
introduced that is information relevant to a prior request for
public information by the requestor that the governmental body
asserts is either excepted from disclosure or otherwise
confidential shall be admitted and considered only by the court for
determination of the issue. Any such exhibit(s) shall be sealed and
included in the clerk's record.
Sec. 552.409. ORDER DECLARING REQUESTOR AN ABUSIVE
REQUESTOR. (a) A court may, on its own motion or the motion of any
party, enter an order prohibiting a person from submitting any
further or new requests for public information from a governmental
body that successfully filed suit under this subchapter if the
court finds, after notice and final hearing as provided by Section
552.408 that:
(1) the person is an abusive requestor; and
(2) the local administrative judge of the court which
found the person to be an abusive requestor has not granted
permission to the person under Section 552.410 to file the request.
(b) The court's order may set a reasonable time in which it
would remain effective not to exceed five (5) years from the date
the court's judgment becomes final.
(c) A person who disobeys an order under Subsection (a) is
subject to contempt of court.
(e) A governmental body shall not have any duty nor shall it
be required to respond to any subsequent request for public
information submitted in violation of an order under Subsection
(a).
Sec. 552.410. PERMISSION BY LOCAL ADMINISTRATIVE JUDGE.
(a) A local administrative judge may grant permission to a person
found to be an abusive requestor under Section 552.408 to file a new
request for public information from a governmental body that
successfully filed suit under this subchapter only if it appears to
the judge that:
(1) probable cause exists to indicate the request:
(A) does not seek information likely to be
excepted from disclosure pursuant to Subchapter B of this chapter;
(B) does not seek confidential information or
information otherwise excepted from disclosure pursuant to
Subchapter C of this chapter; or
(C) does not seek information susceptible to
reasonable clarification or narrowing within the constraints of
Section 552.222; and
(2) the request has not been filed for the purposes of
harassment.
(b) The local administrative judge may condition permission
on the furnishing of security for the benefit of the governmental
body that is likely to cover the legitimate costs of providing
copies of the information requested.
SECTION 3. Chapter 552 of the Government Code is amended by
altering Subchapter G as follows:
Sec. 552.324. SUIT BY GOVERNMENTAL BODY. (a) [The only
suit a] A governmental body or officer for public information may
file suit seeking to withhold information from a requestor [is a
suit] that is filed in accordance with Sections 552.325 and 552.353
and that challenges a decision by the attorney general issued under
Subchapter G.
(b) The governmental body must bring suit not later than the
30th calendar day after the date the governmental body receives the
decision of the attorney general being challenged. If the
governmental body does not bring suit within that period, the
governmental body shall comply with the decision of the attorney
general. This subsection does not affect the earlier deadline for
purposes of Section 552.353(b)(3) for a suit brought by an officer
for public information.
SECTION 4. This Act takes effect September 1, 2009.