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Does a Special Right of Access to Public Information Mean Access at No Cost?

In a previous article, I wrote about the costs that may be charged to a requestor for responding to a request for public information. To recap, a requestor generally must pay the cost of personnel time and materials needed to respond to their request for public information, but may not be charged for costs related to withholding information from them. Additionally, a governmental body must provide information at no charge or at a reduced charge if it finds that providing the information benefits the general public, and may waive the charges if the cost to collect would exceed the amount collected. However, must a governmental body provide public information at no cost to a requestor who has a special right of access to the information? So far, the answer is unclear.

Basically, a special right of access exists when a person has a statutory or common law right to access certain information above and beyond the right of the general public. For example, under common law, information may be withheld from a requestor if the information is subject to the privacy rights of another person, but if the requestor and the person whose privacy interests are at stake are one and the same, then the information cannot be withheld from them. Another example is Article 2.1396 of the Texas Code of Criminal Procedure, which states:

Art. 2.1396.  VIDEO RECORDINGS OF ARRESTS FOR INTOXICATION OFFENSES.  A person stopped or arrested on suspicion of an offense under Section 49.04, 49.045, 49.07, or 49.08, Penal Code, is entitled to receive from a law enforcement agency employing the peace officer who made the stop or arrest a copy of any video made by or at the direction of the officer that contains footage of:

(1)  the stop;

(2)  the arrest;

(3)  the conduct of the person stopped during any interaction with the officer, including during the administration of a field sobriety test; or

(4)  a procedure in which a specimen of the person’s breath or blood is taken.

This statute gives a special right of access to the person stopped or arrested, but it is silent as to whether “entitled to receive” means entitled to receive at no cost. Under rules of statutory construction, courts may not add words to or remove words from the language chosen by the legislature. To interpret the language “entitled to receive” to mean “entitled to receive at no cost” would require the addition of words that the legislature has chosen to omit, and so it would seem that the legislative intent of Article 2.1396 is to grant a special right of access, but not require a waiver or reduction of charges for such access. This interpretation would be consistent with the Public Information Act’s requirements for reducing or waiving charges, which only authorize reduction or waiver when providing the information benefits the general public, as opposed to the specific requestor.

Therefore, there likely should not be a bright-line rule that any special right of access includes a right of access at no charge. Accordingly, unless the legislature explicitly provides that a special right of access to information is to be at no charge, then it should be presumed that the requestor must pay charges in the same manner as for other information that the requestor is entitled to.

Incidentally, the rules governing charges for public information in Texas are promulgated by the Office of the Attorney General. Therefore, in the absence of a statute explicitly providing that a special right of access is to be at no charge, it would be the attorney general’s prerogative to determine whether such is the case. So far, the Office of the Attorney General has not adopted a rule affirmatively addressing this matter, so it seems that it would take a requestor complaining about being overcharged to prompt an opinion from the attorney general on the matter, and even then, the opinion would be likely be limited to the particular special right of access at issue.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our commercial and business litigation practice can be found here.

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