85R13237 BEF-F
By: Watson S.B. No. 1646
A BILL TO BE ENTITLED
AN ACT
relating to the public information law; creating a criminal
offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 552.003, Government Code, is amended by
adding Subdivision (7) to read as follows:
(7) "Temporary custodian" means an officer or employee
of a governmental body who, in the transaction of official
business, creates or receives public information that the officer
or employee has not provided to the officer for public information
of the governmental body or the officer's agent. The term includes
a former officer or employee of a governmental body who created or
received public information in the officer's or employee's official
capacity that has not been provided to the officer for public
information of the governmental body or the officer's agent.
SECTION 2. Section 552.004, Government Code, is amended to
read as follows:
Sec. 552.004. PRESERVATION OF INFORMATION. (a) A
governmental body or, for information of an elective county office,
the elected county officer, may determine a time for which
information that is not currently in use will be preserved, subject
to Subsection (b) and to any applicable rule or law governing the
destruction and other disposition of state and local government
records or public information.
(b) A current or former officer or employee of a
governmental body who maintains public information on a privately
owned device shall:
(1) forward or transfer the public information to the
governmental body or a governmental body server to be preserved as
provided by Subsection (a); or
(2) preserve the public information in its original
form on the privately owned device for the time required under
Subsection (a).
SECTION 3. Subchapter B, Chapter 552, Government Code, is
amended by adding Section 552.0222 to read as follows:
Sec. 552.0222. DATES OF BIRTH. This chapter does not
authorize a governmental body to withhold a date of birth except as:
(1) permitted by Section 552.108; or
(2) otherwise provided by constitutional or statutory
law.
SECTION 4. Section 552.101, Government Code, is amended to
read as follows:
Sec. 552.101. EXCEPTION: CONFIDENTIAL INFORMATION. (a)
Except as provided by Subsection (b), information [Information] is
excepted from the requirements of Section 552.021 if it is
information considered to be confidential by law, either
constitutional, statutory, or by judicial decision.
(b) The exception to disclosure provided by Subsection (a)
does not apply to a date of birth considered to be confidential by
judicial decision.
SECTION 5. Section 552.102, Government Code, is amended by
adding Subsection (c) to read as follows:
(c) The exceptions to disclosure provided by Subsections
(a) and (b) do not apply to a date of birth.
SECTION 6. Section 552.203, Government Code, is amended to
read as follows:
Sec. 552.203. GENERAL DUTIES OF OFFICER FOR PUBLIC
INFORMATION. Each officer for public information, subject to
penalties provided in this chapter, shall:
(1) make public information available for public
inspection and copying;
(2) carefully protect public information from
deterioration, alteration, mutilation, loss, or unlawful removal;
[and]
(3) repair, renovate, or rebind public information as
necessary to maintain it properly; and
(4) make reasonable efforts to obtain public
information from a temporary custodian if:
(A) the information has been requested from the
governmental body;
(B) the officer for public information is aware
of facts sufficient to warrant a reasonable belief that the
temporary custodian has possession, custody, or control of the
information;
(C) the officer for public information is unable
to comply with the duties imposed by this chapter without obtaining
the information from the temporary custodian; and
(D) the temporary custodian has not provided the
information to the officer for public information of the
governmental body or the officer's agent.
SECTION 7. Section 552.221, Government Code, is amended by
amending Subsections (b-1) and (b-2) and adding Subsections (e),
(f), and (g) to read as follows:
(b-1) In addition to the methods of production described by
Subsection (b), an officer for public information for a
governmental body [political subdivision of this state] complies
with Subsection (a) by referring a requestor to an exact Internet
location or uniform resource locator (URL) address on a website
maintained by the governmental body [political subdivision] and
accessible to the public if the requested information is
identifiable and readily available on that website. If the person
requesting the information prefers a manner other than access
through the URL, the governmental body [political subdivision] must
supply the information in the manner required by Subsection (b).
(b-2) If an officer for public information for a
governmental body [political subdivision] provides by e-mail an
Internet location or uniform resource locator (URL) address as
permitted by Subsection (b-1), the e-mail must contain a statement
in a conspicuous font clearly indicating that the requestor may
nonetheless access the requested information by inspection or
duplication or by receipt through United States mail, as provided
by Subsection (b).
(e) A request is considered to have been withdrawn if the
requestor fails to inspect or duplicate the public information in
the offices of the governmental body on or before the 60th day after
the date the information is made available or fails to pay the
postage and any other applicable charges accrued under Subchapter F
on or before the 60th day after the date the requestor is informed
of the charges.
(f) If the governmental body determines it has no
information responsive to a request for information, the officer
for public information shall notify the requestor in writing not
later than the 10th business day after the date the request is
received.
(g) If a governmental body determines the requested
information is subject to a previous determination that permits or
requires the governmental body to withhold the requested
information, the officer for public information shall, not later
than the 10th business day after the date the request is received:
(1) notify the requestor in writing that the
information is being withheld; and
(2) identify in the notice the specific previous
determination the governmental body is relying on to withhold the
requested information.
SECTION 8. Section 552.228(b), Government Code, is amended
to read as follows:
(b) If public information exists in an electronic or
magnetic medium, the requestor may request a copy in an electronic
medium, such as on diskette, [or] on magnetic tape, or on a portable
computer drive. A governmental body shall provide a copy in the
requested medium if:
(1) the governmental body has the technological
ability to produce a copy of the requested information in the
requested medium;
(2) the governmental body is not required to purchase
any software or hardware to accommodate the request; and
(3) provision of a copy of the information in the
requested medium will not violate the terms of any copyright
agreement between the governmental body and a third party.
SECTION 9. Subchapter E, Chapter 552, Government Code, is
amended by adding Section 552.234 to read as follows:
Sec. 552.234. OWNERSHIP OF PUBLIC INFORMATION. (a) A
current or former officer or employee of a governmental body does
not have, by virtue of the officer's or employee's position or
former position, a personal or property right to public information
the officer or employee created or received while acting in an
official capacity.
(b) A temporary custodian with possession, custody, or
control of public information shall surrender or return the
information to the governmental body not later than the 10th day
after the date the officer for public information of the
governmental body or the officer's agent requests the temporary
custodian to surrender or return the information.
(c) If a temporary custodian fails to surrender or return
public information to a governmental body as required by Subsection
(b), the officer for public information of the governmental body
shall, not later than the 10th business day after the deadline to
surrender or return information under Subsection (b), notify the
attorney general in writing of the facts related to the failure and
send a copy of the written notice to the requestor. On receipt of
written notice from an officer for public information as provided
by this subsection, the attorney general may sue for an injunction
or writ of mandamus to compel a temporary custodian with
possession, custody, or control of public information to surrender
or return the information as required by Subsection (b). A suit
filed under this subsection:
(1) must be filed in a district court for the county in
which the main offices of the governmental body are located;
(2) may not proceed, and process may not be issued,
until the court enters a written finding that the petition sets
forth facts sufficient to warrant probable cause that the current
or former officer or employee against whom the action is filed is in
possession, custody, or control of public information that has not
been made available to the governmental body that owns the
information; and
(3) shall be dismissed, with prejudice except as
provided by Subsection (e), if the current or former officer or
employee files an answer containing a general denial supported by a
sworn affidavit stating the current or former officer or employee
is not in possession, custody, or control of public information
responsive to the request at issue.
(d) The attorney general shall send a copy of a petition
filed under Subsection (c) to the requestor.
(e) A suit dismissed under Subsection (c)(3) is dismissed
without prejudice and may be refiled by the attorney general if the
current or former officer or employee, in providing the affidavit
authorized under Subsection (c)(3), engaged in conduct that is an
offense under Section 37.02 or 37.03, Penal Code, and is arrested,
charged, or indicted for that offense. Subsection (c)(3) does not
apply to a suit refiled under this subsection.
(f) For purposes of the application of Subchapter G to
information surrendered or returned to a governmental body by a
temporary custodian under Subsection (b) or as a result of a suit
under Subsection (c), the governmental body is considered to
receive the request for that information on the date the
information is surrendered or returned to the governmental body.
SECTION 10. Section 552.301(b), Government Code, is amended
to read as follows:
(b) The governmental body must ask for the attorney
general's decision and state the specific exceptions that apply
within a reasonable time but not later than the 10th business day
after the date of receiving the written request.
SECTION 11. The heading to Subchapter H, Chapter 552,
Government Code, is amended to read as follows:
SUBCHAPTER H. CIVIL ENFORCEMENT; COMPLAINT
SECTION 12. Section 552.3215(i), Government Code, is
amended to read as follows:
(i) If the district or county attorney determines not to
bring an action under this section, the complainant is entitled to
file the complaint with the attorney general before the 31st day
after the date the complaint is returned to the complainant. A
complainant is entitled to file a complaint with the attorney
general on or after the 90th day after the date the complainant
files the complaint with a district or county attorney if the
district or county attorney has not brought an action under this
section. On receipt of the written complaint, the attorney general
shall comply with each requirement in Subsections (g) and (h) in the
time required by those subsections. If the attorney general
decides to bring an action under this section against a
governmental body located only in one county in response to the
complaint, the attorney general must comply with Subsection (c).
SECTION 13. Section 552.323(a), Government Code, is amended
to read as follows:
(a) In an action brought under Section 552.321 or 552.3215,
the court shall assess costs of litigation and reasonable attorney
fees incurred by a plaintiff who substantially prevails or to whom a
governmental body voluntarily releases the requested information
after filing an answer to the suit, except that the court may not
assess those costs and fees against a governmental body if the court
finds that the governmental body acted in reasonable reliance on:
(1) a judgment or an order of a court applicable to the
governmental body;
(2) the published opinion of an appellate court; or
(3) a written decision of the attorney general,
including a decision issued under Subchapter G or an opinion issued
under Section 402.042.
SECTION 14. Subchapter H, Chapter 552, Government Code, is
amended by adding Section 552.328 to read as follows:
Sec. 552.328. FAILURE TO RESPOND TO REQUESTOR. (a) If a
governmental body fails to respond to a requestor as required by
Section 552.221, the requestor may send a written complaint to the
attorney general.
(b) The complaint must include:
(1) the original request for information; and
(2) any correspondence received from the governmental
body in response to the request.
(c) If the attorney general determines the governmental
body improperly failed to comply with Section 552.221 in connection
with a request for which a complaint is made under this section:
(1) the attorney general shall notify the governmental
body in writing and require the governmental body to complete open
records training not later than six months after receiving the
notification;
(2) the governmental body may not assess costs to the
requestor for producing information in response to the request; and
(3) if the governmental body seeks to withhold
information in response to the request, the governmental body must:
(A) request an attorney general decision under
Section 552.301 not later than the fifth business day after the date
the governmental body receives the notification under Subdivision
(1); and
(B) release the requested information unless
there is a compelling reason to withhold the information.
SECTION 15. The heading to Section 552.353, Government
Code, is amended to read as follows:
Sec. 552.353. FAILURE OR REFUSAL OF OFFICER FOR PUBLIC
INFORMATION OR TEMPORARY CUSTODIAN TO PROVIDE ACCESS TO OR COPYING
OF PUBLIC INFORMATION.
SECTION 16. Section 552.353, Government Code, is amended by
adding Subsection (a-1) to read as follows:
(a-1) A temporary custodian who has possession, custody, or
control of public information responsive to a request commits an
offense if, with criminal negligence, the temporary custodian fails
to surrender or return the information to the governmental body on
request of the officer for public information or the officer's
agent, as required by Section 552.234(b).
SECTION 17. The change in law made by this Act applies only
to a request for public information received on or after the
effective date of this Act. A request for public information
received before the effective date of this Act is governed by the
law in effect when the request was received, and the former law is
continued in effect for that purpose.
SECTION 18. This Act takes effect September 1, 2017.