The ABCs of Texas Freedom of Information (FOI) laws

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  • 1. The ABCs of FOI
    Texas Center for Community Journalism Workshop
    Aug. 4, 2011
  • 2. Why we do it
    “A popular Government, without popular knowledge, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy, or, perhaps both.”
    - James Madison, 1822
    “Democracies die behind closed doors.”
    - Judge Damon Keith, Detroit Free Press v. Ashcroft (2002)
  • 3. FOI and the Right to Know
    The Right to Know – what & who?
    No real constitutional right to know in First Amendment or Texas Constitution
    Federal Freedom of Information Act, Open Meetings Act
    “Sunshine laws” in every state today
    Texas Public Information Act
    Texas Open Meetings Act
  • 4. Texas PIA policy
    Policy: Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees.
  • 5. Texas Public Info. Act
    Texas Government Code § 552
    Key things to remember:
    What is “public information”
    What is a “governmental body”
    Exemptions
    Procedure
    Fees
  • 6. Texas: Public Information
    § 552.002 – “Public Information” means information collected, assembled, or maintained in connection with official business of a government body
    - in any format or medium, whether print, film, tape, or electronic
    - your purpose for requesting isn’t relevant
    - presumed open unless specific exemption listed elsewhere
  • 7. Texas: Government Body
    § 552.003: “Governmental body” means city, county, and state offices, agencies, boards, school districts, and more
    - if taxpayer dollars pay for it, chances are, it’s a government body
    - also includes “quasi-governmental” bodies that do work paid for by government
    - main exception: judicial records (subject to rules of Texas Supreme Court)
  • 8. Texas: Exemptions
    More than 50 in the statute (§552.101 to 151), but primarily, they include:
    Attorney-client privilege & litigation
    Law enforcement records that would jeopardize investigation/crime prevention
    Intimate items in personnel files
    Student & educational records
    Other privacy laws (HIPAA, FERPA)
  • 9. Texas PIA: Procedure
    Step 1: Identify Public Information Officer (department head, elected official, chief administrative officer)
    Step 2: Put it in writing. PIO is to provide “promptly” upon receiving request, “as soon as possible under the circumstances, within a reasonable time, without delay” [§552.221(a)]
  • 10. Texas PIA: Procedure
    Step 3: Prepare response. PIO can ask for clarification & often will. They have up to 10 business days of wiggle room.
    Step 4: If denied, appeal. PIO must ask AG for opinion on denials.
    Step 5: Don’t be afraid to ask for help. The AG has a hotline (877-OPEN-TEX) and a fees hotline (888-ORCOSTS)
  • 11. Texas PIA: Fees
    Gov’t body can charge “reasonable” fees for copying & producing records
    Basic rule: 10 cents per page (or side of a page – via Texas Admin. Code)
    If less than 50 pages, no extra fees
    If more than $40, gov’t body must itemize expenses
  • 12. Federal FOIA
    Requires federal agencies to make records available for inspection and copying
    5 U.S.C. § 552
    Does not apply to Congress, president
    Documents created, physically or electronically, are presumed open
    Unless falling under one of nine exemptions
  • 13. FOIA Exemptions
    Agency MAY (not must) withhold for three major reasons:
    National security (Exemption 1)
    Personal privacy (Exemption 6)
    Law enforcement records (Exemption 7)
    Other reasons
    Administrative documents, memoranda, other laws, trade secrets, financial institutions, geophysical data
  • 14. Texas OMA
    Texas Open Meetings Act (Texas Gov’t Code § 551)
    “Every regular, special, or called meeting of a governmental body shall be open to the public, except as provided by this chapter.”
    Essentially same definition as “governmental body” as in PIA
  • 15. Texas OMA: Meetings
    “Meeting” means any gathering of a quorum of a body during which public business is discussed or there is deliberation
    Including discussions with third parties
    Not including social events, conferences, workshops
    No “walking quorums” where bodies discuss public business to avoid OMA
  • 16. Texas OMA: Notice
    “Notice” means telling public of time, place and subject of meeting
    At least 72 hours in advance
    At least 2 hours for emergency meetings
    At county courthouse, city hall, administrative offices
    If notice requirement isn’t met, actions of meeting can be voided
  • 17. Texas OMA: Exceptions
    Executive session (§ 551.071 et seq.)
    Consulting with attorney on legal matters
    Negotiations for bidding on property
    Personnel matters (deliberating hiring, firing, discipline; but employee can request meeting be public)
    Public school student matters
    Must record or have certified agenda, must open in public and vote in public
  • 18. They broke the law: Now what?
    For Texas PIA, appeal through Attorney General, then can file complaint in court
    Can ask prosecutoror AG to investigate
    For Federal FOIA, appeal through agency head, go to FOIA Ombuds
    Then, file suit in federal District Court
    For Texas OMA, appeal to agency head, ask for AG help