Public Information: Exactly What Can I Get Under TPIA And What Can’t I Get?
This is my second installment in our Sunshine Week Series.
Yesterday, we learned about the Public Information Act: its history, what it is, a little about how it works and how it changes.
Today, I’m going to tell you a little about what you can get and what you can’t get under the TPIA.
First of all: what is public information and who makes that determination.
Well, it’s simple yet complex. For starters, check out the “super-disclosure” list at Sec. 552.022 of the Texas Government Code. It lists a number of things as examples of what is normally considered public information not excepted from disclosure:
•a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by Section 552.108;
•the name, sex, ethnicity, salary, title, and dates of employment of each employee and officer of a governmental body;
•information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body;
•the name of each official and the final record of voting on all proceedings in a governmental body;
•all working papers, research material, and information used to estimate the need for or expenditure of public funds or taxes by a governmental body, on completion of the estimate;
•the name, place of business, and the name of the municipality to which local sales and use taxes are credited, if any, for the named person, of a person reporting or paying sales and use taxes under Chapter 151, Tax Code;
•a description of an agency’s central and field organizations, including:
•the established places at which the public may obtain information, submit information or requests, or obtain
decisions;
•the employees from whom the public may obtain
information, submit information or requests, or obtain decisions;
•in the case of a uniformed service, the members from whom the public may obtain information, submit information or requests, or obtain decisions; and
•the methods by which the public may obtain information, submit information or requests, or obtain decisions;
•a statement of the general course and method by which an agency’s functions are channeled and determined, including
the nature and requirements of all formal and informal policies and
procedures;
•a rule of procedure, a description of forms available or the places at which forms may be obtained, and instructions relating to the scope and content of all papers, reports, or examinations;
•a substantive rule of general applicability adopted or issued by an agency as authorized by law, and a statement of general policy or interpretation of general applicability formulated and adopted by an agency;
•each amendment, revision, or repeal of information described by Subdivisions (7)-(10);
•final opinions, including concurring and dissenting opinions, and orders issued in the adjudication of cases;
•a policy statement or interpretation that has been adopted or issued by an agency;
•administrative staff manuals and instructions to
staff that affect a member of the public;
•information regarded as open to the public under an agency’s policies;
•information that is in a bill for attorney’s fees and that is not privileged under the attorney-client privilege;
•information that is also contained in a public court record; and
•a settlement agreement to which a governmental body is a party.
That, of course, is just for starters. For example, in an ongoing lawsuit, you can obtain just about any document that’s been seen by both sides. This is because, in order for a government body to claim that information is excepted from disclosure because it is under attorney-client privilige, they must meet the same burdens as outlined in Texas Rules of Evidence 503. As such, it’s been my experience that, once it’s been seen by all sides to litigation, it’s fair game. This opens the door to depositions and a whole host of other goodies.
Other documents that are routinely public include: police offense/incident reports, jail book in sheets, mug shots, city budgets, meetings of all city commissions, TxDOT policies, correspondence of all types to any government agency or elected official; e-mails between government officials; hand written phone messages, law enforcement dispatch or calls for service logs, property tax records, lists of delinquent property tax filers, efficiency studies, etc.
Even a public official’s cell phone bills, if paid for by the agency they work for, are public record. Of course, you won’t likely be able to obtain an undercover cop’s phone bills because of various reasonable issues like the officer’s safety, but you could get your county commissioner’s cell records if his phone bill is paid for by the county.
And, my favorite: personnel files. Yes, (unless you live in a community that is civil service, which is a whole different ball of wax), you can get performance evaluations, discipline reports, commendations, continuing education credits, etc. I’ve requested personnel files before and ended up receiving thousands of pages including copies of information relating to a person’s home morgtage if the public agency was called upon to verify income (granted, even I thought they probably should have excepted that from disclosure), and child support court orders if the employee is having wages garnished for child support.
Here’s an example of how this can be useful in an election year for Sheriff: Most entertaining, when requesting law enforcement personnel records, they will often include the initial questionaire or polygraph results (if applicable) used when determining whether or not to hire an officer (uaually, for first time peace officers). This is where you’ll most often find out if a law enforcement officer has ever (1) had any trouble with the law, including a traffic ticket and (2) has ever (and I mean ever) used narcotics. And, believe me, in many cases, this will be detailed down to how many times a person tried a particular drug and if they enjoyed it.
What you can ultimately get under TPIA is almost limitless. Use your brain, and see what’s avaliable.
Nevertheless, that brings us to our next point: what can’t I get under TPIA?
That’s a much more complicated answer.
Basically, there are more than a dozen exceptions. Many of them are reasonable, like exceptions concerning information avaliable commercially and information contained in antiquities. Some, however, like the personnel, legal matters, economic development and litigation exceptions are often inforced arbitrarily by government bodies without a real understanding of what is to be kept confidential and require intervention by the AG to determine what is and what isn’t public. You can find all of the exceptions in the Code. Most start out with the word “Exception” in the caption.
My least favorite exceptions include Section 552.123, which allows institutions of higher education to hide behind a provision allowing them to release a lists of finalists for top positions 21 days before selecting a final person. Nine times out of ten, the name of only one finalist is released, and that person gets the job, meaning the provision has allowed educational institutions to hide all others they considered as actuall “finalists,” as long as they don’t call them “finalists.”
The exact same holds true for 552.126, which allows public school districts to engage in the same sham regarding the names of superintendent finalists.
All of this leads to our next segments, in which we’ll discuss how to write the perfect open records request and what to do if a government body claims an “exception” such as I’ve discussed above.
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