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Vetting Exceptions to the Texas Public Information Act is No Simple Task

The Texas Public Information Act, which governs public access to information held by governmental bodies in Texas, begins with the following policy statement:

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. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.

If it were not for the clause “unless otherwise expressly provided by law,” the Act might as well have stopped there. But alas, the Act proceeds to expressly provide otherwise. In fact, the Act goes on providing otherwise for nine whole subchapters; even the section defining the keystone term “public information” contains five subsections, some of which have up to six subparts unto themselves. Suffice it to say that determining what information the public is, in fact, entitled to is not a simple undertaking.

Given the policy stated above, it stands to reason that there must be some minimum justification for any law which provides that the public is not, at times, entitled to complete information about the affairs of government. Therefore, setting aside the irony that such law is enacted by public servants who seem to fall within the ambit of the policy statement, we must presume that each law excepting information from public disclosure is deemed by the Legislature to be sufficiently justified. Also, considering it took the Legislature five subsections to define public information, one might expect the exceptions to its disclosure to be similarly complex. The level of complexity is apparently not lost on the Legislature, which has delegated the authority to interpret and administer the Public Information Act to the Texas Attorney General.

Despite such shirking of responsibility onto the attorney general, some exceptions to disclosure are simple enough that the Legislature has expressly given governmental bodies subject to the Public Information Act the authority to interpret and apply those exceptions without the assistance of the attorney general. However, other exceptions are too complex for governmental bodies to be expected to interpret and apply them uniformly among one another, and so they must request a decision from the attorney general as to whether such exceptions apply to the specific information sought by a particular request. Exceptions requiring a decision from the attorney general are so prolific that in 2016 alone, the Office of the Attorney General rendered 28,769 individual letter rulings in response to requests for decisions. Due to the herculean task of rendering such decisions, the attorney general will occasionally render a generally applicable, proactive decision, known as a “previous determination,” which eliminates the need for governmental bodies to request decisions on an ad hoc basis for the specific exception at issue.

Additionally, some exceptions are mandatory, and some are permissive. An exception is mandatory if the information to which it applies is considered to be confidential by law. Permissive exceptions typically apply to information which is not confidential, but which would tend to put the governmental body at a disadvantage if it were to be released—say, during negotiations, criminal investigations, etc. Accordingly, governmental bodies may not release information to which a mandatory exception applies, but they have discretion as to whether to release information to which a permissive exception applies. The problem is, however, that the mandatory/permissive dichotomy exists independently of whether an attorney general decision is required. Therefore, there are essentially four types of exceptions to disclosure:

  1. Mandatory exceptions which require a decision from the attorney general;
  2. Mandatory exceptions which do not require a decision from the attorney general;
  3. Permissive exceptions which require a decision from the attorney general; and
  4. Permissive exceptions which do not require a decision from the attorney general.

When a governmental body withholds information, it may not always be apparent to the person who requested the information which type of exception the information falls under. Therefore, many requestors become irritated with the governmental body for withholding the information, not realizing that the information may fall under a mandatory exception and that, if so, the governmental body has no discretion in the matter. Alternatively, even if the exception is merely permissive, it has nevertheless been deemed sufficiently warranted by the Legislature, presumably after weighing the public’s interest in receiving the information against the governmental body’s interest in withholding it. Also, requests typically seek a variety of information, and so a patchwork of mandatory and permissive exceptions may apply to different parts of the request. Additionally, multiple exceptions may apply to the same information, so the information could be subject to both mandatory and permissive exceptions simultaneously.

Determining which exceptions apply to requested information is a costly, labor-intensive business, but governmental bodies cannot forgo the process because some of the information may fall under a mandatory exception and therefore be illegal to disclose. Frankly, due to the expense of determining which exceptions apply and seeking a decision from the attorney general, if necessary, most governmental bodies would welcome a discussion with a prospective requestor, prior to submitting a request, as to what information they are seeking and what information exists.

Unfortunately, many requestors are motivated by acrimonious issues, and are therefore reluctant to candidly discuss their intended requests with the governmental body, whom they likely view as an adversary. In fact, some requestors even obfuscate the specific information they are seeking by submitting an overbroad request, presumably to investigate a matter without the governmental body becoming aware that the matter is being investigated. Such overbroad requests are likely to involve exceptions which would not otherwise apply, and are therefore likely to result in unnecessary costs. Incidentally, certain statutory duties and procedures are triggered upon a governmental body’s receipt of a request for information, which hamper the governmental body’s ability to informally discuss the request with the requestor; therefore, it would likely be more efficacious for a requestor to discuss a contemplated request with the governmental body prior to submitting it, rather than afterward, even—and perhaps especially—when there is a sense of animosity.

However, even in the most amicable of cases, a requestor may become frustrated when information they have requested is withheld. Nevertheless, and regardless of its emotional effect, the withholding of public information is either expressly provided for by law, and has therefore presumably been vetted and deemed warranted, or it is in violation of the law.

Therefore, a requestor who is aggrieved by the authorized withholding of information may find their restitution only in the legislative process, whereas a requestor aggrieved by the unauthorized withholding of information may find their restitution only in the remedies provided for in the Public Information Act itself—specifically, filing a lawsuit for an injunction, declaratory judgment, or writ of mandamus. Whether either situation is in conflict with the policy stated at the beginning of the Act is, perhaps, a matter of opinion, but that the policy itself is a product of the Legislature is a matter of fact.

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