Texas 2017 - 85th Regular

Texas House Bill HB3848 Compare Versions

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

Old	New	Differences
1	1	85R12197 BEF-F
2	2	By: Hunter H.B. No. 3848
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the public information law; creating a criminal
8	8	offense.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 552.003, Government Code, is amended by
11	11	adding Subdivision (7) to read as follows:
12	12	(7) "Temporary custodian" means an officer or employee
13	13	of a governmental body who, in the transaction of official
14	14	business, creates or receives public information that the officer
15	15	or employee has not provided to the officer for public information
16	16	of the governmental body or the officer's agent. The term includes
17	17	a former officer or employee of a governmental body who created or
18	18	received public information in the officer's or employee's official
19	19	capacity that has not been provided to the officer for public
20	20	information of the governmental body or the officer's agent.
21	21	SECTION 2. Section 552.004, Government Code, is amended to
22	22	read as follows:
23	23	Sec. 552.004. PRESERVATION OF INFORMATION. (a) A
24	24	governmental body or, for information of an elective county office,
25	25	the elected county officer, may determine a time for which
26	26	information that is not currently in use will be preserved, subject
27	27	to Subsection (b) and to any applicable rule or law governing the
28	28	destruction and other disposition of state and local government
29	29	records or public information.
30	30	(b) A current or former officer or employee of a
31	31	governmental body who maintains public information on a privately
32	32	owned device shall:
33	33	(1) forward or transfer the public information to the
34	34	governmental body or a governmental body server to be preserved as
35	35	provided by Subsection (a); or
36	36	(2) preserve the public information in its original
37	37	form on the privately owned device for the time required under
38	38	Subsection (a).
39	39	SECTION 3. Subchapter B, Chapter 552, Government Code, is
40	40	amended by adding Section 552.0222 to read as follows:
41	41	Sec. 552.0222. DATES OF BIRTH. This chapter does not
42	42	authorize a governmental body to withhold a date of birth except as:
43	43	(1) permitted by Section 552.108; or
44	44	(2) otherwise provided by constitutional or statutory
45	45	law.
46	46	SECTION 4. Section 552.101, Government Code, is amended to
47	47	read as follows:
48	48	Sec. 552.101. EXCEPTION: CONFIDENTIAL INFORMATION. (a)
49	49	Except as provided by Subsection (b), information [Information] is
50	50	excepted from the requirements of Section 552.021 if it is
51	51	information considered to be confidential by law, either
52	52	constitutional, statutory, or by judicial decision.
53	53	(b) The exception to disclosure provided by Subsection (a)
54	54	does not apply to a date of birth considered to be confidential by
55	55	judicial decision.
56	56	SECTION 5. Section 552.102, Government Code, is amended by
57	57	adding Subsection (c) to read as follows:
58	58	(c) The exceptions to disclosure provided by Subsections
59	59	(a) and (b) do not apply to a date of birth.
60	60	SECTION 6. Section 552.203, Government Code, is amended to
61	61	read as follows:
62	62	Sec. 552.203. GENERAL DUTIES OF OFFICER FOR PUBLIC
63	63	INFORMATION. Each officer for public information, subject to
64	64	penalties provided in this chapter, shall:
65	65	(1) make public information available for public
66	66	inspection and copying;
67	67	(2) carefully protect public information from
68	68	deterioration, alteration, mutilation, loss, or unlawful removal;
69	69	[and]
70	70	(3) repair, renovate, or rebind public information as
71	71	necessary to maintain it properly; and
72	72	(4) make reasonable efforts to obtain public
73	73	information from a temporary custodian if:
74	74	(A) the information has been requested from the
75	75	governmental body;
76	76	(B) the officer for public information is aware
77	77	of facts sufficient to warrant a reasonable belief that the
78	78	temporary custodian has possession, custody, or control of the
79	79	information;
80	80	(C) the officer for public information is unable
81	81	to comply with the duties imposed by this chapter without obtaining
82	82	the information from the temporary custodian; and
83	83	(D) the temporary custodian has not provided the
84	84	information to the officer for public information of the
85	85	governmental body or the officer's agent.
86	86	SECTION 7. Section 552.221, Government Code, is amended by
87	87	amending Subsections (b-1) and (b-2) and adding Subsections (e) and
88	88	(f) to read as follows:
89	89	(b-1) In addition to the methods of production described by
90	90	Subsection (b), an officer for public information for a
91	91	governmental body [political subdivision of this state] complies
92	92	with Subsection (a) by referring a requestor to an exact Internet
93	93	location or uniform resource locator (URL) address on a website
94	94	maintained by the governmental body [political subdivision] and
95	95	accessible to the public if the requested information is
96	96	identifiable and readily available on that website. If the person
97	97	requesting the information prefers a manner other than access
98	98	through the URL, the governmental body [political subdivision] must
99	99	supply the information in the manner required by Subsection (b).
100	100	(b-2) If an officer for public information for a
101	101	governmental body [political subdivision] provides by e-mail an
102	102	Internet location or uniform resource locator (URL) address as
103	103	permitted by Subsection (b-1), the e-mail must contain a statement
104	104	in a conspicuous font clearly indicating that the requestor may
105	105	nonetheless access the requested information by inspection or
106	106	duplication or by receipt through United States mail, as provided
107	107	by Subsection (b).
108	108	(e) If the governmental body determines it has no
109	109	information responsive to a request for information, the officer
110	110	for public information shall notify the requestor in writing not
111	111	later than the 10th business day after the date the request is
112	112	received.
113	113	(f) If a governmental body determines the requested
114	114	information is subject to a previous determination that permits or
115	115	requires the governmental body to withhold the requested
116	116	information, the officer for public information shall, not later
117	117	than the 10th business day after the date the request is received:
118	118	(1) notify the requestor in writing that the
119	119	information is being withheld; and
120	120	(2) identify in the notice the specific previous
121	121	determination the governmental body is relying on to withhold the
122	122	requested information.
123	123	SECTION 8. Subchapter E, Chapter 552, Government Code, is
124	124	amended by adding Section 552.234 to read as follows:
125	125	Sec. 552.234. OWNERSHIP OF PUBLIC INFORMATION. (a) A
126	126	current or former officer or employee of a governmental body does
127	127	not have, by virtue of the officer's or employee's position or
128	128	former position, a personal or property right to public information
129	129	the officer or employee created or received while acting in an
130	130	official capacity.
131	131	(b) A temporary custodian with possession, custody, or
132	132	control of public information shall surrender or return the
133	133	information to the governmental body not later than the 10th day
134	134	after the date the officer for public information of the
135	135	governmental body or the officer's agent requests the temporary
136	136	custodian to surrender or return the information.
137	137	(c) If a temporary custodian fails to surrender or return
138	138	public information to a governmental body as required by Subsection
139	139	(b), the officer for public information of the governmental body
140	140	shall, not later than the 10th business day after the deadline to
141	141	surrender or return information under Subsection (b), notify the
142	142	attorney general in writing of the facts related to the failure and
143	143	send a copy of the written notice to the requestor. On receipt of
144	144	written notice from an officer for public information as provided
145	145	by this subsection, the attorney general may sue for an injunction
146	146	or writ of mandamus to compel a temporary custodian with
147	147	possession, custody, or control of public information to surrender
148	148	or return the information as required by Subsection (b). A suit
149	149	filed under this subsection:
150	150	(1) must be filed in a district court for the county in
151	151	which the main offices of the governmental body are located;
152	152	(2) may not proceed, and process may not be issued,
153	153	until the court enters a written finding that the petition sets
154	154	forth facts sufficient to warrant probable cause that the current
155	155	or former officer or employee against whom the action is filed is in
156	156	possession, custody, or control of public information that has not
157	157	been made available to the governmental body that owns the
158	158	information; and
159	159	(3) shall be dismissed, with prejudice except as
160	160	provided by Subsection (e), if the current or former officer or
161	161	employee files an answer containing a general denial supported by a
162	162	sworn affidavit stating the current or former officer or employee
163	163	is not in possession, custody, or control of public information
164	164	responsive to the request at issue.
165	165	(d) The attorney general shall send a copy of a petition
166	166	filed under Subsection (c) to the requestor.
167	167	(e) A suit dismissed under Subsection (c)(3) is dismissed
168	168	without prejudice and may be refiled by the attorney general if the
169	169	current or former officer or employee, in providing the affidavit
170	170	authorized under Subsection (c)(3), engaged in conduct that is an
171	171	offense under Section 37.02 or 37.03, Penal Code, and is arrested,
172	172	charged, or indicted for that offense. Subsection (c)(3) does not
173	173	apply to a suit refiled under this subsection.
174	174	(f) For purposes of the application of Subchapter G to
175	175	information surrendered or returned to a governmental body by a
176	176	temporary custodian under Subsection (b) or as a result of a suit
177	177	under Subsection (c), the governmental body is considered to
178	178	receive the request for that information on the date the
179	179	information is surrendered or returned to the governmental body.
180	180	SECTION 9. Section 552.301(b), Government Code, is amended
181	181	to read as follows:
182	182	(b) The governmental body must ask for the attorney
183	183	general's decision and state the specific exceptions that apply
184	184	within a reasonable time but not later than the 10th business day
185	185	after the date of receiving the written request.
186	186	SECTION 10. The heading to Subchapter H, Chapter 552,
187	187	Government Code, is amended to read as follows:
188	188	SUBCHAPTER H. CIVIL ENFORCEMENT; COMPLAINT
189	189	SECTION 11. Subchapter H, Chapter 552, Government Code, is
190	190	amended by adding Section 552.328 to read as follows:
191	191	Sec. 552.328. FAILURE TO RESPOND TO REQUESTOR. (a) If a
192	192	governmental body fails to respond to a requestor as required by
193	193	Section 552.221, the requestor may send a written complaint to the
194	194	attorney general.
195	195	(b) The complaint must include:
196	196	(1) the original request for information; and
197	197	(2) any correspondence received from the governmental
198	198	body in response to the request.
199	199	(c) If the attorney general determines the governmental
200	200	body improperly failed to comply with Section 552.221 in connection
201	201	with a request for which a complaint is made under this section:
202	202	(1) the attorney general shall notify the governmental
203	203	body in writing and require the governmental body to complete open
204	204	records training not later than six months after receiving the
205	205	notification;
206	206	(2) the governmental body may not assess costs to the
207	207	requestor for producing information in response to the request; and
208	208	(3) if the governmental body seeks to withhold
209	209	information in response to the request, the governmental body must:
210	210	(A) request an attorney general decision under
211	211	Section 552.301 not later than the fifth business day after the date
212	212	the governmental body receives the notification under Subdivision
213	213	(1); and
214	214	(B) release the requested information unless
215	215	there is a compelling reason to withhold the information.
216	216	SECTION 12. The heading to Section 552.353, Government
217	217	Code, is amended to read as follows:
218	218	Sec. 552.353. FAILURE OR REFUSAL OF OFFICER FOR PUBLIC
219	219	INFORMATION OR TEMPORARY CUSTODIAN TO PROVIDE ACCESS TO OR COPYING
220	220	OF PUBLIC INFORMATION.
221	221	SECTION 13. Section 552.353, Government Code, is amended by
222	222	adding Subsection (a-1) to read as follows:
223	223	(a-1) A temporary custodian who has possession, custody, or
224	224	control of public information responsive to a request commits an
225	225	offense if, with criminal negligence, the temporary custodian fails
226	226	to surrender or return the information to the governmental body on
227	227	request of the officer for public information or the officer's
228	228	agent, as required by Section 552.234(b).
229	229	SECTION 14. The change in law made by this Act applies only
230	230	to a request for public information received on or after the
231	231	effective date of this Act. A request for public information
232	232	received before the effective date of this Act is governed by the
233	233	law in effect when the request was received, and the former law is
234	234	continued in effect for that purpose.
235	235	SECTION 15. This Act takes effect September 1, 2017.