Texas 2009 - 81st Regular

Texas House Bill HB3641 Compare Versions

Only one version of the bill is available at this time.

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1	1	By: Miller of Comal H.B. No. 3641
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to the preservation of effective responses to requests for
7	7	information pursuant to the public information law.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. PURPOSE. The purpose of this Act is to enhance
10	10	and preserve the public's ability to obtain effective responses to
11	11	legitimate requests for information pursuant to the public
12	12	information law.
13	13	SECTION 2. Chapter 552 of the Government Code is amended by
14	14	creating Subchapter J as follows:
15	15	Sec. 552.401. DEFINITIONS. In this subchapter:
16	16	(1) "Defendant" means a person against whom a
17	17	governmental body commences an action under this subchapter.
18	18	(2) "Abusive Requestor" means a person who submits a
19	19	request to a governmental body for inspection or copies of public
20	20	information with the intent to harass, abuse, or waste public funds
21	21	and/or time of public officials or employees.
22	22	Sec. 552.402. SUIT TO DECLARE OPEN RECORDS REQUEST VOID.
23	23	(a) A governmental body may bring suit in accordance with this
24	24	subchapter against an Abusive Requestor.
25	25	(b) The governmental body must bring the suit not later than
26	26	the 10th business day after the date the governmental body receives
27	27	the request for records.
28	28	(c) A suit filed under this section must be filed in a
29	29	district court of Travis County.
30	30	(d) The governmental body shall provide notice to the
31	31	attorney general of a suit filed under this section and the attorney
32	32	general is entitled to intervene in the suit.
33	33	Sec. 552.403. TEMPORARY INJUNCTION AFFECTING FUTURE
34	34	REQUESTS. (a) Upon the commencement of an action under Section
35	35	552.402, the requestor is temporarily enjoined, for a period
36	36	determined by the court the earlier of 90 days or the date of final
37	37	judgment from requesting inspection or copies of public information
38	38	from the governmental body that filed the suit.
39	39	(b) For the purposes of this subchapter, commencement of an
40	40	action occurs when the defendant is served pursuant to the Texas
41	41	Rules of Civil Procedure.
42	42	(c) Within 10 business days of the date the defendant
43	43	answers the suit, the court shall hold a preliminary hearing to
44	44	determine whether probable cause exists to maintain the action.
45	45	(d) If the court finds probable cause exists, the court
46	46	shall enter a scheduling order to include the date for final hearing
47	47	on the matter before the 90th day after commencement of the action.
48	48	(e) If the court does not find that probable cause exists,
49	49	the temporary injunction shall be immediately lifted, the action
50	50	shall be dismissed, and reasonable costs/attorney's fees shall be
51	51	awarded the requestor.
52	52	Sec. 552.404. PRELIMINARY HEARING. (a) At the preliminary
53	53	hearing under Section 552.403, the court may consider any evidence
54	54	material to the grounds alleged in the pleadings of the
55	55	governmental body.
56	56	(b) The evidence to be considered may include:
57	57	(1) written or oral evidence; and
58	58	(2) evidence presented by witnesses or affidavit.
59	59	(c) At the preliminary hearing, the governmental body shall
60	60	provide the defendant with legible copies of any and all documents
61	61	intended to be introduced at the final hearing on the merits as
62	62	substantive evidence and proof of the allegations in the petition,
63	63	excluding any information relevant to a prior request for public
64	64	information that is either excepted from disclosure or otherwise
65	65	confidential.
66	66	Sec. 552.405. CRITERIA FOR FINDING REQUESTOR AN ABUSIVE
67	67	REQUESTOR. (a) A court may find a requestor an Abusive Requestor
68	68	if the governmental body shows, by clear and convincing evidence,
69	69	that the requestor, in the seven-year period immediately preceding
70	70	the date the governmental body commences the suit under Section
71	71	552.402, has made at least five requests for public information
72	72	that have either:
73	73	(A) sought information predominately excepted from
74	74	disclosure pursuant to Subchapter B of this chapter;
75	75	(B) sought predominately confidential information or
76	76	information otherwise excepted from disclosure pursuant to
77	77	Subchapter C of this chapter;
78	78	(C) resulted in the governmental body asking the
79	79	requestor to clarify the request or to narrow the scope of the
80	80	request and the requestor failed to clarify or narrow the scope of
81	81	the request, if the court finds the request was susceptible to
82	82	reasonable clarification or narrowing within the constraints of
83	83	Section 552.222;
84	84	(D) resulted in the governmental body providing the
85	85	requestor a written statement pursuant to 552.231, and the request
86	86	is later considered to be withdrawn pursuant to that section;
87	87	(E) resulted in the governmental body certifying to
88	88	the requestor that copies of the requested information were
89	89	previously furnished to the requestor pursuant to Section 552.232;
90	90	or
91	91	(F) resulted in an overdue balance in excess of
92	92	$100.00 that was not paid within 30 days after the governmental body
93	93	sent notice of the overdue balance to the requestor.
94	94	(b) A court may alternatively find a requestor to be an
95	95	abusive requestor if the governmental body shows, by clear and
96	96	convincing evidence, that, in the seven-year period immediately
97	97	preceding the date the governmental body commences the suit under
98	98	Section 552.402, the defendant has previously been declared an
99	99	Abusive Requestor by a state court in an action commenced by a
100	100	different governmental body and the requestor has made at least
101	101	three requests for public information from the governmental body
102	102	that commenced this suit that meet either of the criteria in
103	103	Subsection (a) of this section.
104	104	Sec. 552.406. FINAL HEARING ON THE MERITS. (a) Within the
105	105	90-day temporary injunction period, the court shall hold a final
106	106	hearing on the merits on its own motion or the motion of any party.
107	107	(b) Each party shall be entitled to ten (10) days notice
108	108	prior to the date of the final hearing on the merits.
109	109	(c) Only the defendant may move for a continuance of the
110	110	final hearing that would extend beyond the 90-day temporary
111	111	injunction period. If the defendant obtains a continuance extending
112	112	the time for the final hearing beyond the 90-day temporary
113	113	injunction period, the court may extend the temporary injunction
114	114	until completion of the final hearing on the merits.
115	115	(d) At the final hearing, the court may consider any
116	116	evidence material to the grounds alleged in the pleadings of the
117	117	governmental body.
118	118	(e) The evidence to be considered may include:
119	119	(1) written or oral evidence; and
120	120	(2) evidence presented by witnesses or by affidavit.
121	121	(f) At the final hearing, the governmental body may, in
122	122	compliance with the rules of evidence, introduce legible copies of
123	123	any and all documents produced at the preliminary hearing.
124	124	(g) At the final hearing, any evidence sought to be
125	125	introduced that is information relevant to a prior request for
126	126	public information by the requestor that the governmental body
127	127	asserts is either excepted from disclosure or otherwise
128	128	confidential shall be admitted and considered only by the court for
129	129	determination of the issue. Any such exhibit(s) shall be sealed and
130	130	included in the clerk's record.
131	131	Sec. 552.409. ORDER DECLARING REQUESTOR AN ABUSIVE
132	132	REQUESTOR. (a) A court may, on its own motion or the motion of any
133	133	party, enter an order prohibiting a person from submitting any
134	134	further or new requests for public information from a governmental
135	135	body that successfully filed suit under this subchapter if the
136	136	court finds, after notice and final hearing as provided by Section
137	137	552.408 that:
138	138	(1) the person is an abusive requestor; and
139	139	(2) the local administrative judge of the court which
140	140	found the person to be an abusive requestor has not granted
141	141	permission to the person under Section 552.410 to file the request.
142	142	(b) The court's order may set a reasonable time in which it
143	143	would remain effective not to exceed five (5) years from the date
144	144	the court's judgment becomes final.
145	145	(c) A person who disobeys an order under Subsection (a) is
146	146	subject to contempt of court.
147	147	(e) A governmental body shall not have any duty nor shall it
148	148	be required to respond to any subsequent request for public
149	149	information submitted in violation of an order under Subsection
150	150	(a).
151	151	Sec. 552.410. PERMISSION BY LOCAL ADMINISTRATIVE JUDGE.
152	152	(a) A local administrative judge may grant permission to a person
153	153	found to be an abusive requestor under Section 552.408 to file a new
154	154	request for public information from a governmental body that
155	155	successfully filed suit under this subchapter only if it appears to
156	156	the judge that:
157	157	(1) probable cause exists to indicate the request:
158	158	(A) does not seek information likely to be
159	159	excepted from disclosure pursuant to Subchapter B of this chapter;
160	160	(B) does not seek confidential information or
161	161	information otherwise excepted from disclosure pursuant to
162	162	Subchapter C of this chapter; or
163	163	(C) does not seek information susceptible to
164	164	reasonable clarification or narrowing within the constraints of
165	165	Section 552.222; and
166	166	(2) the request has not been filed for the purposes of
167	167	harassment.
168	168	(b) The local administrative judge may condition permission
169	169	on the furnishing of security for the benefit of the governmental
170	170	body that is likely to cover the legitimate costs of providing
171	171	copies of the information requested.
172	172	SECTION 3. Chapter 552 of the Government Code is amended by
173	173	altering Subchapter G as follows:
174	174	Sec. 552.324. SUIT BY GOVERNMENTAL BODY. (a) [The only
175	175	suit a] A governmental body or officer for public information may
176	176	file suit seeking to withhold information from a requestor [is a
177	177	suit] that is filed in accordance with Sections 552.325 and 552.353
178	178	and that challenges a decision by the attorney general issued under
179	179	Subchapter G.
180	180	(b) The governmental body must bring suit not later than the
181	181	30th calendar day after the date the governmental body receives the
182	182	decision of the attorney general being challenged. If the
183	183	governmental body does not bring suit within that period, the
184	184	governmental body shall comply with the decision of the attorney
185	185	general. This subsection does not affect the earlier deadline for
186	186	purposes of Section 552.353(b)(3) for a suit brought by an officer
187	187	for public information.
188	188	SECTION 4. This Act takes effect September 1, 2009.