By: Watson S.B. No. 1646
(In the Senate - Filed March 9, 2017; March 22, 2017, read
first time and referred to Committee on Business & Commerce;
May 16, 2017, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 9, Nays 0; May 16, 2017,
sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR S.B. No. 1646 By: Campbell
A BILL TO BE ENTITLED
AN ACT
relating to the public information law.
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).
(c) The provisions of Chapter 441 of this code and Title 6,
Local Government Code, governing the preservation, destruction, or
other disposition of records or public information apply to records
and public information held by a temporary custodian.
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 552.102(a) or 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 552.203, 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 6. Section 552.221, Government Code, is amended by
adding Subsections (f) and (g) to read as follows:
(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 7. 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 8. 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) A temporary custodian's failure to surrender or return
public information as required by Subsection (b) is grounds for
disciplinary action by the governmental body that employs the
temporary custodian or any other applicable penalties provided by
this chapter or other law.
(d) For purposes of the application of Subchapter G to
information surrendered or returned to a governmental body by a
temporary custodian under Subsection (b), 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 9. 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 10. 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 and the complainant requestor in writing of the governmental
body's failure to comply, including the total number of previous
complaints made under Subsection (a) against the governmental body
that the attorney general within the current calendar year has
determined to be founded;
(2) the governmental body may assess costs to the
complainant requestor for producing information in response to the
request for which the complaint was made in an amount not to exceed:
(A) 75 percent of the amount of the allowable
costs otherwise authorized under this chapter for producing the
information, if the notice under Subdivision (1) indicates that
fewer than 11 complaints have been determined to be founded; or
(B) 50 percent of the amount of the allowable
costs otherwise authorized under this chapter for producing the
information, if the notice under Subdivision (1) indicates that 11
or more complaints have been determined to be founded; and
(3) if the governmental body seeks to withhold
information in response to the request for which the complaint was
made, 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 notice under Subdivision (1);
and
(B) release the requested information unless
there is a compelling reason to withhold the information.
(d) The attorney general shall, in response to a second
complaint made under Subsection (a) against a governmental body in
a calendar year that the attorney general determines to be founded,
require the public official, public information officer, or other
official or employee responsible for the governmental body's
failure to comply to complete open records training under Section
552.012 not later than six months after the date the governmental
body receives the notice and shall notify the governmental body of
that requirement.
SECTION 11. 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 12. This Act takes effect September 1, 2017.
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