Texas 2017 - 85th Regular

Texas Senate Bill SB1646 Compare Versions

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	1	+	85R13237 BEF-F
1	2		By: Watson S.B. No. 1646
2		-	(In the Senate - Filed March 9, 2017; March 22, 2017, read
3		-	first time and referred to Committee on Business & Commerce;
4		-	May 16, 2017, reported adversely, with favorable Committee
5		-	Substitute by the following vote: Yeas 9, Nays 0; May 16, 2017,
6		-	sent to printer.)
7		-	Click here to see the committee vote
8		-	COMMITTEE SUBSTITUTE FOR S.B. No. 1646 By: Campbell
9	3
10	4
11	5		A BILL TO BE ENTITLED
12	6		AN ACT
13		-	relating to the public information law.
	7	+	relating to the public information law; creating a criminal
	8	+	offense.
14	9		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
15	10		SECTION 1. Section 552.003, Government Code, is amended by
16	11		adding Subdivision (7) to read as follows:
17	12		(7) "Temporary custodian" means an officer or employee
18	13		of a governmental body who, in the transaction of official
19	14		business, creates or receives public information that the officer
20	15		or employee has not provided to the officer for public information
21	16		of the governmental body or the officer's agent. The term includes
22	17		a former officer or employee of a governmental body who created or
23	18		received public information in the officer's or employee's official
24	19		capacity that has not been provided to the officer for public
25	20		information of the governmental body or the officer's agent.
26	21		SECTION 2. Section 552.004, Government Code, is amended to
27	22		read as follows:
28	23		Sec. 552.004. PRESERVATION OF INFORMATION. (a) A
29	24		governmental body or, for information of an elective county office,
30	25		the elected county officer, may determine a time for which
31	26		information that is not currently in use will be preserved, subject
32	27		to Subsection (b) and to any applicable rule or law governing the
33	28		destruction and other disposition of state and local government
34	29		records or public information.
35	30		(b) A current or former officer or employee of a
36	31		governmental body who maintains public information on a privately
37	32		owned device shall:
38	33		(1) forward or transfer the public information to the
39	34		governmental body or a governmental body server to be preserved as
40	35		provided by Subsection (a); or
41	36		(2) preserve the public information in its original
42	37		form on the privately owned device for the time required under
43	38		Subsection (a).
44		-	(c) The provisions of Chapter 441 of this code and Title 6,
45		-	Local Government Code, governing the preservation, destruction, or
46		-	other disposition of records or public information apply to records
47		-	and public information held by a temporary custodian.
48	39		SECTION 3. Subchapter B, Chapter 552, Government Code, is
49	40		amended by adding Section 552.0222 to read as follows:
50	41		Sec. 552.0222. DATES OF BIRTH. This chapter does not
51	42		authorize a governmental body to withhold a date of birth except as:
52		-	(1) permitted by Section 552.~~102(a) or 552.~~108; or
	43	+	(1) permitted by Section 552.108; or
53	44		(2) otherwise provided by constitutional or statutory
54	45		law.
55	46		SECTION 4. Section 552.101, Government Code, is amended to
56	47		read as follows:
57	48		Sec. 552.101. EXCEPTION: CONFIDENTIAL INFORMATION. (a)
58	49		Except as provided by Subsection (b), information [Information] is
59	50		excepted from the requirements of Section 552.021 if it is
60	51		information considered to be confidential by law, either
61	52		constitutional, statutory, or by judicial decision.
62	53		(b) The exception to disclosure provided by Subsection (a)
63	54		does not apply to a date of birth considered to be confidential by
64	55		judicial decision.
65		-	SECTION 5. Section 552.203, Government Code, is amended to
	56	+	SECTION 5. Section 552.102, Government Code, is amended by
	57	+	adding Subsection (c) to read as follows:
	58	+	(c) The exceptions to disclosure provided by Subsections
	59	+	(a) and (b) do not apply to a date of birth.
	60	+	SECTION 6. Section 552.203, Government Code, is amended to
66	61		read as follows:
67	62		Sec. 552.203. GENERAL DUTIES OF OFFICER FOR PUBLIC
68	63		INFORMATION. Each officer for public information, subject to
69	64		penalties provided in this chapter, shall:
70	65		(1) make public information available for public
71	66		inspection and copying;
72	67		(2) carefully protect public information from
73	68		deterioration, alteration, mutilation, loss, or unlawful removal;
74	69		[and]
75	70		(3) repair, renovate, or rebind public information as
76	71		necessary to maintain it properly; and
77	72		(4) make reasonable efforts to obtain public
78	73		information from a temporary custodian if:
79	74		(A) the information has been requested from the
80	75		governmental body;
81	76		(B) the officer for public information is aware
82	77		of facts sufficient to warrant a reasonable belief that the
83	78		temporary custodian has possession, custody, or control of the
84	79		information;
85	80		(C) the officer for public information is unable
86	81		to comply with the duties imposed by this chapter without obtaining
87	82		the information from the temporary custodian; and
88	83		(D) the temporary custodian has not provided the
89	84		information to the officer for public information of the
90	85		governmental body or the officer's agent.
91		-	SECTION 6. Section 552.221, Government Code, is amended by
92		-	adding Subsections (f) and (g) to read as follows:
	86	+	SECTION 7. Section 552.221, Government Code, is amended by
	87	+	amending Subsections (b-1) and (b-2) and adding Subsections (e),
	88	+	(f), and (g) to read as follows:
	89	+	(b-1) In addition to the methods of production described by
	90	+	Subsection (b), an officer for public information for a
	91	+	governmental body [political subdivision of this state] complies
	92	+	with Subsection (a) by referring a requestor to an exact Internet
	93	+	location or uniform resource locator (URL) address on a website
	94	+	maintained by the governmental body [political subdivision] and
	95	+	accessible to the public if the requested information is
	96	+	identifiable and readily available on that website. If the person
	97	+	requesting the information prefers a manner other than access
	98	+	through the URL, the governmental body [political subdivision] must
	99	+	supply the information in the manner required by Subsection (b).
	100	+	(b-2) If an officer for public information for a
	101	+	governmental body [political subdivision] provides by e-mail an
	102	+	Internet location or uniform resource locator (URL) address as
	103	+	permitted by Subsection (b-1), the e-mail must contain a statement
	104	+	in a conspicuous font clearly indicating that the requestor may
	105	+	nonetheless access the requested information by inspection or
	106	+	duplication or by receipt through United States mail, as provided
	107	+	by Subsection (b).
	108	+	(e) A request is considered to have been withdrawn if the
	109	+	requestor fails to inspect or duplicate the public information in
	110	+	the offices of the governmental body on or before the 60th day after
	111	+	the date the information is made available or fails to pay the
	112	+	postage and any other applicable charges accrued under Subchapter F
	113	+	on or before the 60th day after the date the requestor is informed
	114	+	of the charges.
93	115		(f) If the governmental body determines it has no
94	116		information responsive to a request for information, the officer
95	117		for public information shall notify the requestor in writing not
96	118		later than the 10th business day after the date the request is
97	119		received.
98	120		(g) If a governmental body determines the requested
99	121		information is subject to a previous determination that permits or
100	122		requires the governmental body to withhold the requested
101	123		information, the officer for public information shall, not later
102	124		than the 10th business day after the date the request is received:
103	125		(1) notify the requestor in writing that the
104	126		information is being withheld; and
105	127		(2) identify in the notice the specific previous
106	128		determination the governmental body is relying on to withhold the
107	129		requested information.
108		-	SECTION 7. Section 552.228(b), Government Code, is amended
	130	+	SECTION 8. Section 552.228(b), Government Code, is amended
109	131		to read as follows:
110	132		(b) If public information exists in an electronic or
111	133		magnetic medium, the requestor may request a copy in an electronic
112	134		medium, such as on diskette, [or] on magnetic tape, or on a portable
113	135		computer drive. A governmental body shall provide a copy in the
114	136		requested medium if:
115	137		(1) the governmental body has the technological
116	138		ability to produce a copy of the requested information in the
117	139		requested medium;
118	140		(2) the governmental body is not required to purchase
119	141		any software or hardware to accommodate the request; and
120	142		(3) provision of a copy of the information in the
121	143		requested medium will not violate the terms of any copyright
122	144		agreement between the governmental body and a third party.
123		-	SECTION 8. Subchapter E, Chapter 552, Government Code, is
	145	+	SECTION 9. Subchapter E, Chapter 552, Government Code, is
124	146		amended by adding Section 552.234 to read as follows:
125	147		Sec. 552.234. OWNERSHIP OF PUBLIC INFORMATION. (a) A
126	148		current or former officer or employee of a governmental body does
127	149		not have, by virtue of the officer's or employee's position or
128	150		former position, a personal or property right to public information
129	151		the officer or employee created or received while acting in an
130	152		official capacity.
131	153		(b) A temporary custodian with possession, custody, or
132	154		control of public information shall surrender or return the
133	155		information to the governmental body not later than the 10th day
134	156		after the date the officer for public information of the
135	157		governmental body or the officer's agent requests the temporary
136	158		custodian to surrender or return the information.
137		-	(c) A temporary custodian's failure to surrender or return
138		-	public information as required by Subsection (b) is grounds for
139		-	disciplinary action by the governmental body that employs the
140		-	temporary custodian or any other applicable penalties provided by
141		-	this chapter or other law.
142		-	(d) For purposes of the application of Subchapter G to
	159	+	(c) If a temporary custodian fails to surrender or return
	160	+	public information to a governmental body as required by Subsection
	161	+	(b), the officer for public information of the governmental body
	162	+	shall, not later than the 10th business day after the deadline to
	163	+	surrender or return information under Subsection (b), notify the
	164	+	attorney general in writing of the facts related to the failure and
	165	+	send a copy of the written notice to the requestor. On receipt of
	166	+	written notice from an officer for public information as provided
	167	+	by this subsection, the attorney general may sue for an injunction
	168	+	or writ of mandamus to compel a temporary custodian with
	169	+	possession, custody, or control of public information to surrender
	170	+	or return the information as required by Subsection (b). A suit
	171	+	filed under this subsection:
	172	+	(1) must be filed in a district court for the county in
	173	+	which the main offices of the governmental body are located;
	174	+	(2) may not proceed, and process may not be issued,
	175	+	until the court enters a written finding that the petition sets
	176	+	forth facts sufficient to warrant probable cause that the current
	177	+	or former officer or employee against whom the action is filed is in
	178	+	possession, custody, or control of public information that has not
	179	+	been made available to the governmental body that owns the
	180	+	information; and
	181	+	(3) shall be dismissed, with prejudice except as
	182	+	provided by Subsection (e), if the current or former officer or
	183	+	employee files an answer containing a general denial supported by a
	184	+	sworn affidavit stating the current or former officer or employee
	185	+	is not in possession, custody, or control of public information
	186	+	responsive to the request at issue.
	187	+	(d) The attorney general shall send a copy of a petition
	188	+	filed under Subsection (c) to the requestor.
	189	+	(e) A suit dismissed under Subsection (c)(3) is dismissed
	190	+	without prejudice and may be refiled by the attorney general if the
	191	+	current or former officer or employee, in providing the affidavit
	192	+	authorized under Subsection (c)(3), engaged in conduct that is an
	193	+	offense under Section 37.02 or 37.03, Penal Code, and is arrested,
	194	+	charged, or indicted for that offense. Subsection (c)(3) does not
	195	+	apply to a suit refiled under this subsection.
	196	+	(f) For purposes of the application of Subchapter G to
143	197		information surrendered or returned to a governmental body by a
144		-	temporary custodian under Subsection (b)~~, the governmental body is~~
145		-	considered to ~~receive the request for that information on the date~~
146		-	the information ~~is surrendered or returned to~~ the ~~governmental~~
147		-	body.
148		-	SECTION 9. Section 552.301(b), Government Code, is amended
	198	+	temporary custodian under Subsection (b) or as a result of a suit
	199	+	under Subsection (c), the governmental body is considered to
	200	+	receive the request for that information on the date the
	201	+	information is surrendered or returned to the governmental body.
	202	+	SECTION 10. Section 552.301(b), Government Code, is amended
149	203		to read as follows:
150	204		(b) The governmental body must ask for the attorney
151	205		general's decision and state the specific exceptions that apply
152	206		within a reasonable time but not later than the 10th business day
153	207		after the date of receiving the written request.
154		-	SECTION 10. Subchapter H, Chapter 552, Government Code, is
	208	+	SECTION 11. The heading to Subchapter H, Chapter 552,
	209	+	Government Code, is amended to read as follows:
	210	+	SUBCHAPTER H. CIVIL ENFORCEMENT; COMPLAINT
	211	+	SECTION 12. Section 552.3215(i), Government Code, is
	212	+	amended to read as follows:
	213	+	(i) If the district or county attorney determines not to
	214	+	bring an action under this section, the complainant is entitled to
	215	+	file the complaint with the attorney general before the 31st day
	216	+	after the date the complaint is returned to the complainant. A
	217	+	complainant is entitled to file a complaint with the attorney
	218	+	general on or after the 90th day after the date the complainant
	219	+	files the complaint with a district or county attorney if the
	220	+	district or county attorney has not brought an action under this
	221	+	section. On receipt of the written complaint, the attorney general
	222	+	shall comply with each requirement in Subsections (g) and (h) in the
	223	+	time required by those subsections. If the attorney general
	224	+	decides to bring an action under this section against a
	225	+	governmental body located only in one county in response to the
	226	+	complaint, the attorney general must comply with Subsection (c).
	227	+	SECTION 13. Section 552.323(a), Government Code, is amended
	228	+	to read as follows:
	229	+	(a) In an action brought under Section 552.321 or 552.3215,
	230	+	the court shall assess costs of litigation and reasonable attorney
	231	+	fees incurred by a plaintiff who substantially prevails or to whom a
	232	+	governmental body voluntarily releases the requested information
	233	+	after filing an answer to the suit, except that the court may not
	234	+	assess those costs and fees against a governmental body if the court
	235	+	finds that the governmental body acted in reasonable reliance on:
	236	+	(1) a judgment or an order of a court applicable to the
	237	+	governmental body;
	238	+	(2) the published opinion of an appellate court; or
	239	+	(3) a written decision of the attorney general,
	240	+	including a decision issued under Subchapter G or an opinion issued
	241	+	under Section 402.042.
	242	+	SECTION 14. Subchapter H, Chapter 552, Government Code, is
155	243		amended by adding Section 552.328 to read as follows:
156	244		Sec. 552.328. FAILURE TO RESPOND TO REQUESTOR. (a) If a
157	245		governmental body fails to respond to a requestor as required by
158	246		Section 552.221, the requestor may send a written complaint to the
159	247		attorney general.
160	248		(b) The complaint must include:
161	249		(1) the original request for information; and
162	250		(2) any correspondence received from the governmental
163	251		body in response to the request.
164	252		(c) If the attorney general determines the governmental
165	253		body improperly failed to comply with Section 552.221 in connection
166	254		with a request for which a complaint is made under this section:
167	255		(1) the attorney general shall notify the governmental
168		-	body and the complainant requestor in writing of the governmental
169		-	body's failure to comply, including the total number of previous
170		-	complaints made under Subsection (a) against the governmental body
171		-	that the attorney general within the current calendar year has
172		-	determined to be founded;
173		-	(2) the governmental body may assess costs to the
174		-	complainant requestor for producing information in response to the
175		-	request for which the complaint was made in an amount not to exceed:
176		-	(A) 75 percent of the amount of the allowable
177		-	costs otherwise authorized under this chapter for producing the
178		-	information, if the notice under Subdivision (1) indicates that
179		-	fewer than 11 complaints have been determined to be founded; or
180		-	(B) 50 percent of the amount of the allowable
181		-	costs otherwise authorized under this chapter for producing the
182		-	information, if the notice under Subdivision (1) indicates that 11
183		-	or more complaints have been determined to be founded; and
	256	+	body in writing and require the governmental body to complete open
	257	+	records training not later than six months after receiving the
	258	+	notification;
	259	+	(2) the governmental body may not assess costs to the
	260	+	requestor for producing information in response to the request; and
184	261		(3) if the governmental body seeks to withhold
185		-	information in response to the request for which the complaint was
186		-	made, the governmental body must:
	262	+	information in response to the request, the governmental body must:
187	263		(A) request an attorney general decision under
188	264		Section 552.301 not later than the fifth business day after the date
189		-	the governmental body receives the ~~notice~~ under Subdivision ~~(1);~~
190		-	and
	265	+	the governmental body receives the notification under Subdivision
	266	+	(1); and
191	267		(B) release the requested information unless
192	268		there is a compelling reason to withhold the information.
193		-	(d) The attorney general shall, in response to a second
194		-	complaint made under Subsection (a) against a governmental body in
195		-	a calendar year that the attorney general determines to be founded,
196		-	require the public official, public information officer, or other
197		-	official or employee responsible for the governmental body's
198		-	failure to comply to complete open records training under Section
199		-	552.012 not later than six months after the date the governmental
200		-	body receives the notice and shall notify the governmental body of
201		-	that requirement.
202		-	SECTION 11. The change in law made by this Act applies only
	269	+	SECTION 15. The heading to Section 552.353, Government
	270	+	Code, is amended to read as follows:
	271	+	Sec. 552.353. FAILURE OR REFUSAL OF OFFICER FOR PUBLIC
	272	+	INFORMATION OR TEMPORARY CUSTODIAN TO PROVIDE ACCESS TO OR COPYING
	273	+	OF PUBLIC INFORMATION.
	274	+	SECTION 16. Section 552.353, Government Code, is amended by
	275	+	adding Subsection (a-1) to read as follows:
	276	+	(a-1) A temporary custodian who has possession, custody, or
	277	+	control of public information responsive to a request commits an
	278	+	offense if, with criminal negligence, the temporary custodian fails
	279	+	to surrender or return the information to the governmental body on
	280	+	request of the officer for public information or the officer's
	281	+	agent, as required by Section 552.234(b).
	282	+	SECTION 17. The change in law made by this Act applies only
203	283		to a request for public information received on or after the
204	284		effective date of this Act. A request for public information
205	285		received before the effective date of this Act is governed by the
206	286		law in effect when the request was received, and the former law is
207	287		continued in effect for that purpose.
208		-	SECTION 12. This Act takes effect September 1, 2017.
209		-	* * * * *
	288	+	SECTION 18. This Act takes effect September 1, 2017.