86R8904 BEF-F
By: Hunter H.B. No. 1700
A BILL TO BE ENTITLED
AN ACT
relating to public information in the possession, custody, or
control of a current or former officer or employee of a governmental
body; 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. 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 4. 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 5. 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 6. 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 7. This Act takes effect September 1, 2019.