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Texas Legislature Flips from Opt-in to Opt-Out Confidentiality for Certain Public Officials

Certain recent events occurring across the national, state, and local political landscapes—including the COVID-19 pandemic and related mask and vaccine mandates, election integrity, bail bond reform, and critical race theory, just to name a few—have increased the incidents of doxing public officials and subsequent protests or demonstrations being held at their private properties. For those who may be unfamiliar with the term, the following is a brief overview of “doxing” from Wikipedia:

Doxing or doxxing is the act of publicly revealing previously private personal information about an individual or organization, usually through the Internet. Methods employed to acquire such information include searching publicly available databases and social media websites (like Facebook), hacking, and social engineering. Doxing may be carried out for various reasons, including online shaming, extortion, and vigilante aid to law enforcement. . . . The term dox derives from the slang “dropping dox,” which, according to Wired writer Mat Honan, was “an old-school revenge tactic that emerged from hacker culture in 1990s.” . . . It comes from a spelling alteration of the abbreviation “docs” (for “documents”) and refers to “compiling and releasing a dossier of personal information on someone.”

The Texas Legislature has responded to this issue by amending certain provisions of the Texas Public Information Act to protect the personal information of certain public officials. Texas law permits public officials and public employees to “opt-in” to keeping some of their personal information private by filing an election to do so with the main personnel officer of their governmental body, which must be done within 14 days of their election, appointment, or employment, as applicable. Under previous law, provision was made to protect the personal information of certain public officials and employees, regardless of whether or not they had made the election to do so. This generally included state officers, members of the legislature, fire fighters, and police officers. Local public officials were not afforded such protection until the 87th Legislature added “elected public officer” to the list. This phrase essentially covers the state officers and members of the legislature who were previously covered and extends the coverage to local elected public officers.

However, there are two unique aspects to the phrase “elected public officer” that may need to be clarified by future law—most likely by an opinion of the attorney general, who is charged with uniformly enforcing the Public Information Act. Specifically, not everyone who is elected is necessarily an “officer” and not everyone who is an “officer” is necessarily elected. For example, under certain circumstances, such as vacancies, it is possible for a person to be appointed to an elected office. Would that person be considered an “elected public officer”?

Also, on the topic of clarification, one of the types of personal information that is subject to confidentiality is information “that reveals whether the individual has family members.” The 87th legislature added a specific definition for the phrase “family member” for limited purposes under the Public Information Act. Under the newly added definition, the phrase “family member” means a person’s spouse, minor child, or adult child who resides in the person’s home. This is a significantly narrower definition than has been applied in the past.

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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