! Presentation - Open - Meetings - Act !

Open Meetings Act
Government Code 551
Government Code 551.002

Every regular, special or called meeting of a governmental body shall be open to the public, except as provided by this chapter.
General Definitions
County commissioners court Municipal governing bodies A deliberative body that has rulemaking or quasijudicial power and that is classified as a department, agency, or political subdivision of a county or municipality School District board of trustees Governing board of special districts
Governmental Body (GB) Gov. Code 551.001(3)*
*Not an exclusive list
There are other entities that are not in this definition that are subject to the OMA.
General Definitions
Meeting Gov. Code 551.001(4)(A)
a. b.
c. d.
A deliberation between a quorum of a GB, or between a quorum of a governmental body and another person, during which public business or public policy over which the GB has supervision or control is discussed or considered or during which the GB takes formal action
General Definitions
1. 2. 3. 4. 5.
1. 2. 3. 4.
A gathering That is conducted by the GB or for which the GB is responsible; A quorum of members of the GB is present; Called by the GB; AND Members of the GB:
Receive information from Give information to Ask questions of, OR Receive questions from a 3rd party (this includes staff)
Meeting Gov. Code 551.001(4)(B)
6.
About public business or public policy which the GB has supervision or control
General Definitions
Closed Meeting (also known as Executive Session) Gov. Code 551.001(1) A meeting to which the public does not have access.
Open Meeting v. Public Hearing

What right does the public have to speak on a particular agenda item? The Open Meetings Act allows the public to observe the open portion of a meeting. The Open Meetings Act does not give members of the public a right to speak on items considered at an open meeting.
Distinction
Open Meeting Observe Open Meeting But, Does not have the right to speak. Public Hearing
reasonable opportunity to speak.
Must be given a
Quorum and the OMA

Question 1 Does the OMA apply every time there is a quorum of the GB?
A. B.
Of course, it does. Maybe, depending on the circumstances.
Quorum and the OMA

Answer 1 B. Maybe, depending on the circumstances. Gov. Code 551.001(4)(B)(iv) & 551.0035
Exceptions:
1. 2.
Social functions or gatherings unrelated to public business or Attendance at a regional, state, or national convention or workshop, if
a. b.
3.
Attendance at Legislative Committee or Agency Meeting, if deliberations consist only of

a. b. c.
Formal action is not taken AND Any discussion of public business is incidental
Publicly testifying Publicly commenting Publicly responding to a question of the legislative committee or agency member
What is a Quorum?
Most of the time, it is a simple majority of the governmental body Certain issues might require more than a simple majority to have a quorum
No Quorum Present
May the GB hold a meeting if, for any reason, there is not a quorum present? A meeting subject to the OMA may not be convened unless a quorum is present in the meeting room.
Posted Notice
Question 2 How long before a scheduled meeting does notice have to be posted?
A. B. C. D.
24 hours 48 hours 72 hours 96 hours
Posted Notice
Answer 2 C. At least 72 hours before the scheduled meeting Gov. Code 551.043
Posted Notice
Notice must be posted in a:
1. 2.
Place readily accessible to the general public at all times [Gov. Code 551.043(a)] AND If the GB maintains in Internet website, [Gov. Code 551.056] a. Must concurrently post notice of the meeting on its Internet website. b. Must concurrently post agenda for the meeting on its Internet website if: 1. City w/ Pop of 48K or more; 2. County w/ Pop of 65K or more; 3. School District or junior college district, all or part, in a city w/ pop of 48K or more 4. EDC in a city, county or district w/ pop of 48K or more
Posted Notice
Internet Posting of Notice Gov. Code 551.043 (b)
If this chapter specifically requires or allows GB to post notice of meeting on Internet: (1) GB satisfies requirement of (a) by making a good faith attempt to continuously post the notice on the Internet during the prescribed period; (2) GB must still comply w/ any duty imposed by the chapter to physically post the notice at a particular location; AND (3) If GB makes good faith attempt to continuously post notice on internet during the prescribed period, the notice physically posted at the location prescribed by this chapter must be readily accessible to the general public during normal business hours
Where to Post Your Notice?

City: bulletin board at a place of convenient to the public in the city hall County: bulletin board at a place convenient to the public in the county courthouse [Gov. Code 551.049]
[Gov. Code 551.050]
Where to Post your Notice?

District or Political Subdivision Extending Into Four or More Counties: [Gov. Code 551.053]
1. 2.
Place convenient to the public in the districts or political subdivisions administrative office; Provide notice to Secretary of State (SOS); AND
3.
Provide notice to county clerk of the county in which the districts or political subdivisions administrative office are located.
SOS will post notice on internet and provide public access to a computer so that the public can view notice.
4.
5.
County Clerk shall post on the bulletin board at a place of convenient to the public in the county courthouse.
Where to Post your Notice?

District or Political Subdivision
Extending Into Fewer Than Four Counties [Gov. Code 551.054]
1.
Place Convenient to the Public in the districts or political subdivisions administrative office
2. 3.
Provide to county clerk of each county in which the district or political subdivision is located. County Clerk shall post on the bulletin board at a place of convenient to the public in the county courthouse.
GA-152 (2004): A county clerk is authorized to charge a reasonable fee to a water district or other district or political subdivision to post open meeting notices. A county clerk may not charge governmental bodies a fee for retaining open meeting notices.
Posted Notice
Notice Requirements Gov. Code 551.041 A GB shall give written notice of the Date Hour Place Subject Of each meeting held by the GB.
Posted Notice
How detailed does the notice have to be?
A.
B.
Sufficient to alert the public, in general terms, of the subject that will be considered in the meeting. More important a particular subject is to the community, the more specific the posted notice must be.
Posted Notice
Question 3 May a GB change the date/time of its meeting without posting a corrected notice for 72 hours?
A. B.
Yes No
Posted Notice
Answer 3 B. No GB will sometimes change a meeting location to a bigger room within the same building to accommodate a large crowd. But consult with legal counsel if they decide to change the meeting location.
What about location of the meeting? Maybe on the day of the meeting, a
Posted Notice
Question 4 May a GB continue a meeting to the next day without reposting?
A. B.
Yes No
Posted Notice
Answer 4 A. Yes It appears that a GB may adjourn a meeting and reconvene within 24 hours if the GB determines in good faith that such an action is necessary. [Gov. Code 551.0411]
Unposted Issues
Question 5 What can a GB do when an unposted issue is raised at an open meeting? A. Deliberate and make a decision on the unposted issue B. Deliberate, but make no decision on the unposted issue C. Do not deliberate or make a decision on the unposted issue
Unposted Issue
Answer 5 C. Do not deliberate or make a decision on the unposted issue Four options if an unposted item is raised: 1. Respond with a statement of specific factual information or recite the GBs existing policy on the issue. 2. Direct the person making the inquiry to visit with staff. 3. Offer to place the item on the agenda at a future meeting. 4. Post the matter as an emergency item if it meets the criteria.
Minutes of a Meeting
A GB shall prepare and keep minutes or make a tape recording of each open meeting of the body. The minutes must: State the subject of each deliberation; and 1. Indicate each vote, order, decision, or other 2. action taken. [Gov. Code 551.021]
Executive Session/Closed Meeting

The OMA does allow GBs to have executive sessions or closed meetings in certain situations. Common Exceptions: Personnel matters Certain consultations with an attorney Discussion about the value or transfer of property

Question 6 May a GB vote in an executive session?
A. B. C.
Yes Yes, but by secret ballot No

Answer 6 C. No Gov Code 551.102 requires that any final action, decision, or vote be taken in open session.

Procedure Gov. Code 551.101 If a closed meeting is allowed under this chapter, a GB may not conduct the closed meeting unless (1) a quorum of the GB first convenes in an open meeting for which notice has been given as provided by this chapter and (2) during which the presiding officer publicly: Announces that a closed meeting will be held; and Identifies the section or sections of this chapter under which the closed meeting is held.
(a) (b)

Certified Agenda Required! Gov. Code 551.103 A GB shall produce a certified agenda or make a tape recording of every executive session
Except: Consultation with an attorney: A GB may turn off

the tape or stop taking notes during the portion of the closed meeting that involves consultation with attorney. A tape recording must include announcements by the presiding officer at the beginning and the end of the meeting indicating the date and time.

Certified Agenda Required! Gov. Code 551.103 Presiding Officer shall certify the agenda is a true and correct record of the closed session Certified agenda must include:
1. 2. 3.
A statement of the subject matter of each deliberation A record of any further action taken; and An announcement by the presiding officer at the beginning and the end of the meeting indicating the date and time.

Question 7 May a member of the GB or staff release a copy of a certified agenda to the public?
A. B. C. D.
Yes, any time they want Yes, only under court order Yes, any time the public requests it No, except when it deals with personnel

Answer 7 B. Yes, only under court order A certified agenda or tape kept during an executive session may be disclosed only to a member of the public under court order. In fact, there are criminal penalties for releasing a copy of the certified agenda to the public without a court order.
Gov. Code 551.146 makes release of a certified agenda a Class B misdemeanor

Who is permitted to attend an executive session? The OMA does not specify who may or may not attend an executive session. The GB has discretion to determine who may attend executive session. However, the GB may not admit those whose attendance is contrary to the legal basis for the executive session. [AG Opinion JC-375 (2001), GA-277 (2004)]
Civil Penalties
Any Interested Party can bring a civil lawsuit to force officials to follow the Act or to have illegal meeting actions voided. Gov. Code 551.141: Action is voidable Gov. Code 551.142: Mandamus or Injunctive relief
GB can redo voided actions at a proper open meeting
Criminal Penalties
Enforced by County and District Attorneys
Conspiracy to circumvent the act by meeting in numbers less than a quorum

Walking Quorum or Daisy Chain
Gov. Code 551.143
is reasonably certain to cause the result. fine $100 to $500 and/or one month to six month confinement in county jail
Knowingly meeting for secret deliberations: aware that his conduct
fine $100 to $500 and/or one month to six month confinement in county jail
Unauthorized closed meeting
Gov. Code 551.144
Criminal Penalties
Gov. Code 551.145
Fail to keep a certified agenda or tape recording of a closed meeting

Class C misdemeanor Gov. Code 551.146
Release of a certified agenda or tape of a closed meeting

Class B misdemeanor and liability for damages to person damaged by release
For More Open Government Information
Open Government Hotline (877) 673-6839 (toll-free) (877) open tex (512) 478-6736 County Affairs Section: (800) 252-5476 Municipal Affairs Section: (512) 475-4683 AG Publications at AG Website: 2006 Open Meetings Handbook 2006 Open Meetings Made Easy Open Government Training Information: www.oag.state.tx.us/opinopen/og_training.shtml
Public Information Act

(formerly the Open Records Act)
Government Code 552
Public Information Defined

Government Code 552.002 Public Information means information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction or official business: (1) By a governmental body; or (2) For a governmental body and the governmental body owns the information or has a right of access to it.
General Definitions
Includes: County commissioners court Board, commission, department, committee, institution, agency, or office that is within or is created by the executive or legislative branch of state government and that is directed by one or more elected or appointed members Municipal governing body School district board of trustee Governing body of a special district Does not include the Judiciary!! *Not a exclusive list Governmental Body (GB) Gov. Code 552.003
Basic Process for Governmental Bodies

GB receives request for info. Presumption of Openness
GB promptly releases requested info
GB withholds info, Seeks a decision From the OAG within 10 business days.
GB withholds info based on a previous determination.
OAG issues a decision Concerning info within 45 (55) working days From request from GB.
Info MUST be Withheld.
Info MAY NOT BE Withheld. Info MUST be Released.
Info MAY be Withheld.
GB, Requestor, Or 3rd Party may File suit for Judicial review.
PIA Request
Question 1 According to the Public Information Act (PIA), what triggers the PIA?
A. B. C. D.
Verbal Request Written Request Verbal or Written Request Verbal and Written Request
PIA Request
Answer 1 B. Written Request Only Written Request trigger the PIA. Any Written Request triggers the PIA. PIA does not requires that the public direct its written request to any specific employee or officer, except for:
E-mail Request Faxed Request
E-mails and Faxes

Gov. Code 552.301 (c) State law provides that the GB can designate a person that is authorized to receive e-mails or faxed request. If the GB makes such a designation, the PIA is only triggered if the request is directed to the assigned individual.
PIA Request
No magic word required No requirement to label it as an open records or public information request Can be typed or hand written No signature required Cannot require use of a specific form to submit request
Unclear or Unduly Broad Request

Gov. Code 552.222 Cannot ask requestor why he wants the information Can ask for:
Clarification Narrowing the scope
10 business days are tolled during the interval in which the GB and the requestor are communicating in good faith [ORD 663 (1999)]
Do I Have To?
Question 2 Can a PIA Request require a GB to create a record if none exist?
A. B.
Yes No
Do I Have To?
Answer 2 B. No Generally, a GB is not required to produce information which is not in existence. Thus, a GB is not required to create new information in response to a request. However, if the request only requires programming or manipulating existing data, it in not considered a request for creation of new information
Do I Have To?
Question 3 Can a PIA Request require a GB to compile statistics, perform research, or provide answers to questions?
A. B.
Yes No
Do I Have To?
Answer 3 B. NO Open Records Decision 563 (1990) The PIA only requires a GB to provide copies of documents that relate to the information sought by the requestor. The PIA does not require a GB to calculate statistics, to perform legal research, or to prepare answers to questions.
So You Have Received a Request.
How Much Time?

Question 4 If the GB is going to release the information requested, how much time does the GB have to comply with the request? A. 72 hours B. Promptly, depending on the circumstances within a reasonable time C. Whenever the GB feels like it
How Much Time?

Answer 4 B. Promptly, depending on the circumstances within a reasonable time Govt. Code 552.221 Release of information: Shall promptly produce public information for inspection, duplication, or both Promptly means as soon as possible under the circumstances, that is, within a reasonable time, without delay But within 10 business day, either the information must be released or some type of response must be sent.
How Much Time?

Question 5 If the GB wants to withhold the information, how much time does the GB have to comply with a request? A. 10 days B. 15 days C. 10 business days D. 15 business days
How Much Time?

Answer 5 C. 10 business days Gov. Code 552.301(b) The GB must ask for the attorney generals decision and state the exceptions that apply within a reasonable time but not later than the tenth business day after the date of receiving the written request.
10 Business Days
General Rules for determining 10 business days
Start counting the next business day after receiving written request Saturdays, Sundays and Holidays do not count. Optional holidays, skeleton crew days, or days the GB is closed dont count if that is the GBs policy, but make sure that is explained if you are requesting a ruling from the AG If GB is closed for day, it will still count towards the 10 business days
Lets see how that looks for December 2005/ January 2006.
Sunday
Monday
Tuesday
Wednesday
Thursday
Friday
Saturday
1 4 11 5 12 6 13 7 14 8 15 Written Request Received 22
2 9 16
3 10 17
1
23 Skeleton Crew Day 24 Christmas Eve
18
19
20
21
25 Christmas Day
26 Day After Christmas
27 Skeleton Crew Day
28
29
6
4 5
30 New Years Eve Skelton/ Holiday 6
31 New Years Day 7
10
So You are on the Business Day and .

You are going to release the information
th 10
Different Responses That a GB can send to a Requestor

Release the Information Additional Time Needed to Produce Records [Gov. Code 552.221(d)] Additional Time Needed to Produce Record because in Active Use or in Storage [Gov. Code 552.221(c)] Programming or Manipulation Cost [Gov. Code 552.231(c)] When Charges will exceed $40 [Gov. Code 552.2615]
How much can you charge?

1 Texas Admin Code 111.61 - 111.71 BASIC COST PROVISION Pages (Standard): 10 per page Personnel Cost: $15 per hour Overhead Cost: 20% of Personnel Cost Postage/Shipping: any related postal or shipping expenses which are necessary
So You are on the Business Day and .

You want to withhold the information
th 10
Withholding Information
Question 6 Do I have to request an AG Open Records Ruling every time that I want to withhold information?
A. B. C.
Yes, every time Yes, unless there is a previous determination No
Withholding Information
Answer 6 B. Yes, unless there is a previous determination Gov. Code 552.301 A GB is required to ask the OAG for an open records ruling (ORR) in almost all cases if the GB wants to withhold requested documents or information based upon an exception of the PIA.
Your County Attorney should help you with asking for an Open Records Letter Ruling
Procedure for Requesting an AG Open Records Letter Ruling

Gov. Code 552.301
No later than the 10th business day,
GB must ask OAG for a ruling and state the exceptions that apply. Must notify Requestor that you have asked for a ruling. Must provide Requestor a copy of GBs notice to the OAG. Must notify any 3rd Parties with proprietary interest in the information concerned in the requested ruling.
Procedure for Requesting a Ruling

1.
2.
No later than the 15th business day, GB must submit to the AG: a) Written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld b) A copy of the written request for information c) A signed statement as to the date on which the written request for information was received by the GB or evidence sufficient to establish that date; and d) A copy of the specific information requested, or submit representative samples of the information if a voluminous amount of information was requested e) Label that copy of the specific information, or representative samples, to indicate which exception apply to which parts of the copy. Must send a copy of written comments to requestor
Consequences for Missing Deadlines

Mandatory Exceptions need compelling reason Discretionary Exceptions - waived Ways to Waive Discretionary Exceptions (examples)
Miss 10 business day deadline Fail to raise exceptions by 10 business day deadline (i.e. try to raise new exceptions later) Fail to notify requestor youre seeking a ruling w/in 10 business days Miss 15 business day deadline Fail to submit docs or rep. sample of docs w/in 15 business day deadline Fail to provide arguments w/in 15 business day deadline Fail to submit copy of request w/in 15 business day deadline
Exceptions to Disclosure
Common Exceptions 552.101 Information Confidential by Law 552.102 Certain Personnel Information 552.103 Information Relating to Litigation 552.107 Certain Legal Matters 552.108 Certain Law Enforcement Records 552.111 Agency Memoranda 552.117 Certain Addresses, Telephone Numbers, Social Security Numbers, and Personal Family Information 552.129 Motor Vehicle Inspection Information 552.130 Motor Vehicle Records 552.137 Confidentiality of Certain E-Mail Addresses 552.147 Social Security Number of a Living Person [Pending AG
Opinion: RQ-418-GA]
You Have Gotten Your Ruling from the OAG and

You do not agree with the ruling
Challenging a Ruling
Requests for reconsideration are prohibited by the Public Information Act If a GB believes that a ruling contains a factual error, it should contact the OAG If a GB disagrees with the legal interpretation set forth in a ruling, it should file suit against the OAG in accordance with the PIA
No later than the 10th calendar day after the receipt of AGs Letter Ruling, the information is public
Civil Penalties
Gov. Code 552.321: Writ of Mandamus
Filed by Requestor or Attorney General Instances
Refuses to provide copies or access to information that is clearly public Refuses to request an AG ruling Refuses to release information as required by an unchallenged AG ruling
Gov. Code 552.3215: Declaratory Judgment or Injunctive Relief

Local GBs: DA or CA for the county may bring action only in district court for that county the GB is located State Agencies: Travis Cty DA or OAG may bring action only in district court in Travis County
Civil Penalties
Formal Complaints
File written complaint with DA or CA in county where GB is located If cannot be resolved informally, DA, CA or OAG may pursue legal action when warranted and authorized
Informal Resolution: Education and Enforcement Section - Handles requestors complaints
Criminal Penalties
Gov. Code 552.351
Destruction, Removal, or Alteration of Public Information
Fine not less than $25 or more than $4,000 and/or county jail not less than 3 days or more than 3 months
Criminal Penalties
Gov. Code 552.353 Failure or Refusal of Officer for Public Information to Provide Access to or Copying of Public Information Fails or Refuses to give access, permit copying, or provide copies of public information with criminal negligence Fine not more than $1,000 and/or county jail for not more than 6 months Constitutes Official Misconduct Affirmative Defense:
Reasonable Belief that public access to information not required AND relied on court order, court opinion or OAG decision OAG decision sought AND no decision issued Suit filed in Travis County challenging OAG decision Officers agent reasonable relied upon written instruction from the officer of public information.
Open Meetings and Open Records Training

Two Hours Minimum Requirement: must have a minimum of one hour each of OMA and PIA training, but no more than 2 hours each Compliance deadlines:
Who Must Obtain the Training?: The bill requires the top elected and appointed officials from governmental bodies subject to these laws to complete a training course on the OMA and the PIA. Additionally, designated public information coordinators are required to complete a PIA training course.
Officials who are in office before January 1, 2006 have one year until January 1, 2007 to complete the required training. Officials who are elected or appointed after January 1, 2006 have 90 days within which to complete the required training.
Open Government Hotline (877) 673-6839 (toll-free) (877) open tex (512) 478-6736 Cost Questions - Hadassah Schloss: (512) 475-2497 County Affairs Section: (800) 252-5476 Municipal Affairs Section: (512) 475-4683 AG Publications at AG Website: 2006 Public Information Handbook 2006 PIA Made Easy Article Open Government Training Information: www.oag.state.tx.us/opinopen/og_training.shtml
the 2006 open meetings act
made easy
JULIAN GRANT MUNICIPAL AFFAIRS SECTION OFFICE OF THE ATTORNEY GENERAL
Answers to the most frequently asked questions about the Open Meetings Act
(512)475-4683
The Texas Open Meetings Act Made Easy

After each legislative session, the Attorney Generals Office has produced this publication that addresses certain key issues that local officials face in their day-to-day operations. In a question-andanswer format, this handbook covers the most frequently asked questions about the Texas Open Meetings Act.1 For example, the handbook addresses when the Open Meetings Act applies, what constitutes reasonable notice, the application of the Act to informal gatherings, and the limited right of individual council members to place items on an agenda. Additionally, the handbook covers permissible subjects for executive sessions, who may attend an executive session, and the appropriate handling of a certified agenda. Finally, the handbook addresses the ability to ratify an action, civil enforcement of the Open Meetings Act, and criminal penalties for certain violations. The stakes are high for local public officials. Texas courts have ruled that in certain cases, a local public official can be convicted of participating in an illegal closed meeting even though the official may have believed at the time that the closed meeting was authorized. Local public officials can also face criminal penalties if they attempt to avoid open meetings requirements by meeting in numbers less than a quorum for the purpose of secret deliberations about public business. This made easy handbook provides answers in easy to understand language to the most frequently asked questions regarding the Open Meetings Act. The Act does apply to a variety of governmental entities, so although this information is geared towards the Acts application to local public bodies, it will be useful to other officials and Texas citizens as well.
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Index to Frequently Asked Open Meetings Questions/Answers

I. Application of the Act
When Does the Act Generally Apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Staff Briefings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Private or Non-Profit Entities That Receive Public Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Relationship Between the Act and the Public Information Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 6 6 7 7
II.
Notice Provisions Under the Act

General Requirements for Posting an Agenda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Publishing Meeting Notices on the Internet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Publishing Meeting Notices in the Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Posted Wording for Agenda Items . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Agenda Notice Indicating Public Comment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Agenda Notice Indicating Employee Briefing Session . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Agenda Notice for Executive Session . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Authority to Address Items Not on the Agenda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Changing Date of a Meeting Without Reposting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Changing Time of a Meeting Without Reposting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Changing Location of a Meeting Without Reposting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Continuing a Meeting to a Later Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Procedure to Cancel a Posted Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
III.
Effect of Quorum on Open Meetings Act

General Quorum Provisions
What Constitutes a Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Open Meeting Without a Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Application of Act if Quorum of Governing Body Is Present

Informal Meetings Where There is a Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Quorum of Governing Body Serving on a Board or Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Authority of Quorum of Governing Body to Sign Correspondence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Authority of Quorum to Attend Committee Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Authority of Quorum to Attend State Legislative Committee Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . Current Officials and Elected but not Sworn-in Officials Constituting a Quorum . . . . . . . . . . . . . . . . . . . 10 11 11 11 12 12
Application of Act to Gatherings of Less Than a Quorum

Gatherings of Less Than a Quorum of the Governing Body . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Authority to Meet with Third Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Authority to Visit by Phone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Authority to Sign Correspondence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 12 12 13
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IV.
Regular Open Meetings

Adoption of Procedural Guidelines to Administer the Act
Authority to Adopt Procedural Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Right of Individual Governing Body Members to Place Items on Agenda . . . . . . . . . . . . . . . . . . . . . . . . Presiding Officers Role During an Open Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Authority of Presiding Officer to Vote or Second Motions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inability of Governing Body Members to Vote by Proxy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Authority to Meet by Teleconference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Authority to Meet by Videoconference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rules for Broadcasting Meetings over the Internet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Accommodations for People with Disabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 13 13 14 14 14 15 15 15
Managing Discussions at an Open Meeting

The Public's Right to Speak . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General Difference Between Open Meeting and Public Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Authority to Limit Number of Speakers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Authority to Remove a Citizen Who Disrupts the Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Authority to Set Reasonable Time Limits on Governing Body Members Comments . . . . . . . . . . . . . . . . Authority to Remove a Governing Body Member Who Disrupts the Meeting . . . . . . . . . . . . . . . . . . . . . 15 16 16 16 16 17
Keeping a Record of Open Meetings

Duty to Produce Minutes of Open Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Public Access to Minutes of Open Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Right of Public to Audiotape or Videotape Open Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
V.
Executive Sessions
General Reasons That Authorize Executive Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Executive Sessions to Discuss Personnel Issues

Authority to Discuss Personnel Matters in Executive Session . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . No Requirement to Identify Employee Being Discussed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Notice to Person Being Discussed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Authority to Include or Exclude the Person Being Discussed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Employees Right to Have Personnel Item Discussed in Open Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . Conducting Employee Hiring Interviews in Executive Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 18 18 18 19 19
Executive Sessions for Consultations with an Attorney

Authority to Hold Executive Session to Consult With an Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Attorney Required to Be Present at Executive Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Authority to Hold Executive Session with Attorney to Discuss Proposed Contract . . . . . . . . . . . . . . . . . 19
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Other Types of Executive Sessions

Authority to Discuss Acquisition of Real Property in Executive Session . . . . . . . . . . . . . . . . . . . . . . . . . Authority to Discuss Security Personnel or Devices in Executive Session . . . . . . . . . . . . . . . . . . . . . . . . Authority to Discuss Gifts or Donations in Executive Session . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Authority to Discuss Potential Test Items in Executive Session . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Authority to Discuss Competitive Matters Related to City-owned Utility . . . . . . . . . . . . . . . . . . . . . . . . . Authority to Discuss Economic Development Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 20 20 20 20 21
Need for Statutory Authority to Hold Executive Sessions

Very Limited Authority to Hold Workshops or Retreats in Executive Session . . . . . . . . . . . . . . . . . . . . . 21 Relation of the Public Information Act to the Open Meetings Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Procedural Requirements for Meeting in Executive Sessions

No Difference Between the Terms Executive Session and Closed Meeting . . . . . . . . . . . . . . . . . . . . Duty to Comply with City Charter Provisions Regarding Executive Sessions . . . . . . . . . . . . . . . . . . . . . . Posted Notice Requirements for Executive Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Limited Requirement to Specify That Item Will Be Heard in Executive Session . . . . . . . . . . . . . . . . . . . General Procedure for Holding Executive Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Authority to Continue Executive Session to Immediate Next day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Governing Body Member Questions if Executive Session is Permitted . . . . . . . . . . . . . . . . . . . . . . . . . . Who is Permitted to Attend Executive Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Authority to Exclude Governing Body Member from Executive Sessions . . . . . . . . . . . . . . . . . . . . . . . . Authority to Exclude Staff from Executive Sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inability to Take a Straw Poll or Final Action in Executive Session . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 21 22 22 22 22 22 23 23 23 24
Production and Handling of Certified Agenda for Executive Sessions

Duty to Create Certified Agenda or Tape Recording of Executive Sessions . . . . . . . . . . . . . . . . . . . . . . . Officer/Employee Responsible for Completing Certified Agenda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General Prohibition Against Release of Certified Agenda to the Public . . . . . . . . . . . . . . . . . . . . . . . . . . Prohibition Against Taping Executive Session for Personal Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Release of Certified Agendas to Governing Body Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Duty to Preserve the Certified Agenda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Authority to Publicly Discuss Information Considered in Executive Session . . . . . . . . . . . . . . . . . . . . . . Limited Confidentiality for Personal Notes Taken During Executive Sessions . . . . . . . . . . . . . . . . . . . . . 24 24 24 24 25 25 25 26
VI.
Emergency Meetings
Requirements for Emergency Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Requirement to Specify Reason for Emergency Meeting on Agenda . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inability to Add Non-Emergency Items onto Emergency Agenda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Notice to Media Required if Requested . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 27 27 27
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VII. Enforcement of the Act Requirements

Civil Enforcement of the Act
Civil Remedies for Violations of the Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Actions Taken in Violation of the Act May Be Voidable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Authority to Re-authorize an Action Taken in Violation of the Open Meetings Act . . . . . . . . . . . . . . . . . 28
Criminal Enforcement of the Act

Criminal Penalties for Certain Violations of the Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Possible Prosecution for Unknowing Violations of the Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Private Citizen Violations of the Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Role of the Local District or Prosecuting County Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Role of the Attorney General Regarding the Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Limited Authority to Pay Legal Defense of Act Violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 29 29 29 30 30
VIII. Additional Information on the Act

Required Training of Governmental Officials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Additional Information on the Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Endnotes
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
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Texas Open Meetings Act Made Easy
I.
Application of the Open Meetings Act
When does the Open Meetings Act generally apply? The Open Meetings Act (hereinafter the Act) generally applies when a quorum of a governmental body is present and discusses public business.2 The mere presence of a quorum may in some instances invoke the Act.3 However, it does not apply to purely social gatherings of the governmental body that are unrelated to the bodys public business, nor does it apply when public officials attend regional, state, or national conventions or workshops, as long as no formal actions are taken and the discussion of public business is only incidental to the event.4 May members of the governing body receive a briefing from staff without posting notice of the briefing as an open meeting? A governmental body must post notice of an open meeting when it receives a briefing from staff, unless a specific statutory exception allows an executive session.5 Must appointed committees post notice of their meetings under the Act? If a committee appointed by the governing body is truly advisory in nature, it generally does not have to post public notice of its gatherings as open meetings. Accordingly, the local unit must first determine whether a committee is advisory or whether it has certain powers that would make it subject to the Act. To make this determination, the local unit needs to review the actual authority of the committee and how its actions are treated by the governing body. For example, if the committee has the power to make final decisions or the power to adopt rules regarding public business, it would need to post its gatherings as open meetings. Additionally, if the committee issues recommendations that are usually approved in full by the governing body, such committee meetings should also be posted as open meetings. In other words, a committee may not be considered advisory if the governing body generally rubber-stamps the committees recommendations into final policy.6 One factor may be the presence of members of the governing body on the committee, because even though they may constitute less than a quorum of the governing body, they may only lack the consent of one more member of the governing body to pass their committees decision favorably.7 To avoid this problem, the local unit may appoint only staff or no more than one member of the governing body to the committee. It is important to note that the bylaws of an organization or the provisions within a city charter may specifically require a city committee to post its meetings pursuant to the Act. If there is such a local requirement, it would apply even if the Act would not otherwise require compliance. Conversely, cities cannot, through their city charter or local ordinances, waive the requirements of the Act. Further, if members of a governmental body attend a committee meeting, then the committee would be subject to the Act when a quorum of the governmental body is present at the meeting and members of the governmental body receive information from, give information to, ask questions of, or receive questions from any third person, including an employee of the governmental body, about the public business or public policy over which the governmental body has authority, regardless of whether the committee members or any members of the governmental body spoke or otherwise engaged in deliberations.8 The presence of a quorum of the body and deliberation about the bodys public business would also constitute a meeting of the body and necessitate compliance with the Act for that meeting, as well as the committee meeting.
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Must private or nonprofit entities that receive city funding post their meetings under the Act? The Act does not apply to an entity merely because that entity receives public funds.9 For instance, the Attorney General has concluded that a local chamber of commerce was not subject to the Act even though it received and administered local hotel occupancy tax funds.10 Additionally, the Attorney General has concluded an economic development corporation formed under the Texas NonProfit Corporation Act and not the Development Corporation Act of 1979 (Article 5190.6 of the Revised Civil Statutes) was not subject to the Act.11 Of course, a non-governmental entity may be made subject to the Act by the entitys own bylaws, by special state legislation pertaining to that entity, or by a contractual commitment by that entity to comply with the Act. Therefore, local private or nonprofit entities will want to consult with their local legal counsel on whether their bylaws, state law, or a particular contractual commitment make them subject to the Act. What is the relationship between the Open Meetings Act and the Public Information Act? The Open Meetings Act and the Public Information Act are both intended to make government more accessible to the public. However, the two are completely separate statutes and operate independently of each other. The mere fact that a local unit may be able to withhold a document from the public under the Public Information Act does not mean that the governing body has authority to meet in executive session regarding the subject covered in that document.12 Likewise, the fact that the Open Meetings Act allows a governing body to have an executive session about a particular topic does not mean that documents reviewed in the executive session may be withheld from the public.13
II.
Notice Provisions Under the Act
Where and for how long must an open meeting notice be posted? The Act requires that the notice for each meeting subject to the Act must be posted on a bulletin board at a place convenient to the public in the county courthouse, city hall, or other listed locations.14 A Texas court has ruled that posting in a kiosk immediately outside city hall is also permissible.15 This was necessary at the time because the agenda must be posted and readily accessible to the public at all times for at least 72 hours preceding the meeting; however, now the posting of notice on the Internet during this time period will satisfy the Act as long as physical notice is available to the public during normal business hours.16 The same rules apply to posting notice for a meeting to deal with an emergency, except that the notice only needs to be posted for two hours and the notice must give a reason for calling the emergency meeting that meets the requirements of the Act, as discussed below. Is a local entity required to publish notice on its Internet website? The Act now requires that a city, county, school district, or sales tax economic development corporations publish notice of its meetings on its Internet website, if one exists.17 If a city with a population of at least 48,000 or a county with at least 65,000 or a sales tax economic development corporation affiliated with either has a website, it must also post the agenda on the website.18 The
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validity of an internet posting made in good faith is not affected by failure to provide notice due to technical problems beyond the control of the local unit.19 Is a local entity required to publish notice of its open meetings in a newspaper? Generally, there is no requirement to publish notice in a local newspaper. For some subjects, there may be a separate state statute that requires such notice. For example, Texas law requires that a city have two public hearings before annexing an area, and notice of each of those hearings must be published in a local newspaper.20 Additionally, there are certain notices that a city and county must publish in the newspaper regarding the adoption of their annual budget and tax rate. Finally, a homerule city will want to review its city charter to see if the charter imposes stricter notice requirements on the city than does the Act. How specific must the wording be for each agenda item posted for an open meeting? The Act requires that the posted notice of an open meeting contain the date, hour, and place of the meeting and a description of each subject to be discussed at the meeting.21 Texas courts have interpreted this to mean that the notice must be sufficient to alert the public, in general terms, of the subjects that will be considered in the meeting.22 Descriptions such as old business, new business, other business,23 personnel, and litigation matters24 are usually not sufficiently detailed to meet the requirements of the Act. The courts have also ruled that the more important a particular issue is to the community, the more specific the posted notice must be. Thus, the phrase employment of personnel was held to be a sufficient posting for hiring a school teacher.25 However, the same court found that this phrase was not sufficient when the school was considering hiring a key supervisor such as a principal. Similarly, a Texas court ruled that a posting that said personnel was not specific enough to allow a city council to discuss the firing of a police chief.26 Finally, a local unit must be sure that its postings are not misleading. For example, a Texas court has ruled that a notice calling for discussion of a certain item was not sufficient to allow a board to take action on that item when the boards previous notices had always explicitly stated when an action might be taken.27 Is an agenda posting indicating public comment adequate notice of the subject to be discussed? The Attorney General has concluded public comment generally provides sufficient notice under the Act of the subject matter of sessions where the general public addresses a governing body about the publics concerns. This phrase might not be sufficient notice, however, when the governing body, prior to the meeting, is aware or should be aware of the specific topics that may be discussed at the meeting.28 Does an agenda posting indicating employee briefing session or staff briefing session provide adequate notice of the subjects to be discussed? An agenda posting simply indicating employee briefing session or staff briefing session does not provide the public with sufficient notice as to the subjects that will be discussed at a public meeting.29 Unlike sessions involving public comment, language that is considered adequate notice for comments from the general public, a local entity is in a better position to ascertain from its employees or officers in advance what subjects will be addressed. Accordingly, posted agendas simply indicating employee briefing sessions give inadequate notice.30
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Must an agenda posting indicate which subjects will be discussed in executive session? The Act does not require the agenda to state which items will be discussed in closed session. Nonetheless, some local units indicate in their notice which items will be discussed in open session and which may be discussed in closed or executive session. Should a local unit consistently distinguish between subjects for public deliberation and subjects for executive session, an abrupt departure from this practice could deceive the public and thereby render the notice inadequate.31 What may members of a governing body do if an unposted issue is raised at an open meeting? Members of the governmental body may not deliberate or make any decision about an unposted issue at a meeting of the governmental body. If an unposted item is raised by members or the general public, the governing body has four options. First, an official may respond with a statement of specific factual information or recite the governmental bodys existing policy on that issue.32 Second, an official may direct the person making the inquiry to visit with staff about the issue. Third, the governing body may offer to place the item on the agenda for discussion at a future open meeting.33 Finally, the governing body may offer to post the matter as an emergency item if it meets the criteria for an emergency posting. May a governing body change the date of its meeting without posting a corrected notice for 72 hours? The Act requires literal compliance.34 For this reason, a local entity generally does not have authority to change the date of its meeting without posting the new date for at least 72 hours in advance of the meeting.35 Of course, if the entity is presented with an emergency, it could utilize its power to call an emergency meeting with two hours notice. Additionally, if a catastrophe prevents the entity from convening an open meeting that was properly posted, the governing body may convene in a convenient location within 72 hours if this action is taken in good faith and not to circumvent the Act.36 A catastrophe would include anything that interfered physically with the ability to conduct a meeting, including natural disasters, power failures, public riot, and similar occurrences.37 May a governing body change the time of its meeting without posting a corrected notice for 72 hours? The Act requires literal compliance.38 For this reason, a local unit generally has no authority to change the time of its meeting without posting the new time for at least 72 hours in advance of the meeting.39 Nonetheless, it is not necessarily a violation of the Act if a governing body or one of its committees starts its meeting a little later than the scheduled time. At what point the change in time would present a legal problem would be a fact issue. Local entities should consult with their legal counsel if they decide to change a meeting time. May a governing body change the location of its meeting without posting a corrected notice for 72 hours? The Act requires literal compliance.40 For this reason, a local entity generally has no authority to change the location of its meeting without posting the new location for at least 72 hours in advance of the meeting.41 On the day of the meeting, a local entity will sometimes change a meeting location to a bigger room within the same building to accommodate a large crowd. It is not clear whether
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such a change would constitute literal compliance with the Act. Local entities should consult with their legal counsel if they decide to change a meeting location. May a governing body continue a meeting the next day without reposting? A governmental body that recesses an open meeting to the following regular business day need not post notice of the continued meeting if the action is taken in good faith and not to circumvent the Act. If a meeting continued to the following regular business day is then continued to another day, the governmental body must give notice of the meetings continuance to the other day.42 Additionally, the Attorney General has concluded that an executive session of a public meeting may be continued to the immediate next day if certain procedures are followed. 43 What is required of a governing body to cancel a posted meeting? The Act does not set forth any particular requirements for canceling a posted meeting. The Act requires meetings to be properly posted, but it does not require that a meeting actually be held once the meeting has been posted. As a result, a local unit may arguably cancel a posted meeting at any time unless doing so would violate some other provision of law (e.g., a city charter requirement). It is important to note that once the meeting is canceled or the posted agenda is taken down, a local unit must re-post and follow all the requirements of the Act for the rescheduled meeting.
III. Effect of Quorum on Act Issues

General Quorum Provisions
What constitutes a quorum for purposes of the Act? A quorum is considered in the Act to be a simple majority of the members of the governmental body.44 However, certain issues might have specific quorum requirements. Local entities should check with their legal counsel. May a governing body hold a meeting if, for any reason, there is not a quorum present? A meeting subject to the Act may not be convened unless a quorum is present in the meeting room. In fact, the Texas Supreme Court has ruled that a school board of trustees may not convene its meeting until a quorum is physically present in the same room.45 However, Texas case law and Attorney General opinions have not addressed whether a properly convened meeting could continue if a quorum is lost due to the later departure or temporary absence of a member of the governing body. In any case, the body could not take any action during a meeting if a quorum was not present.
Application of Act if Quorum of Governing Body is Present

Does the Act apply if a quorum of the governing body informally meets and no action or vote is taken on public business? The Act applies to a gathering of a quorum of a governing body if it discusses public business, regardless of whether there is any action or vote taken. All requirements under the Act must be
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followed for such gatherings unless otherwise provided under state law. As noted earlier, state law provides a limited exception for gatherings at social events unrelated to the bodys public business, as well as regional, state, or national conventions or workshops, if the discussion of public business is only incidental and no vote or action is taken.46 May a quorum of the governing body serve on an appointed board or commission? Nothing in the Act would prohibit a quorum of the governing body from serving on a board or commission of the entity. However, the meetings of such a board or commission would have to meet all the requirements of the Act (and would probably constitute a meeting of the governing body as well, as discussed above). Additionally, under the common law doctrine of incompatibility, a governing body is prohibited in most circumstances from appointing one of its own members to board positions. In certain situations, however, Texas statutes or a city charter specifically allow a governing body to appoint its own members to a board or commission. For example, the Development Corporation Act of 1979 indicates that a city council may appoint up to four city council members to serve as board members of a Section 4B development corporation board. A governing body will want to discuss the issue with local legal counsel before appointing one of its own members to a board or commission. May a quorum of members of a governing body sign a group letter or other document without violating the Act? It remains a fact issue whether the mere presence of signatures by members of the governing body on a group letter or within another document constitutes a violation of the open meetings laws. If the members met in a quorum without following open meetings procedures to discuss and then create or sign the document, there would be a violation of the Act. Similarly, if the members met in numbers less than a quorum regarding the document, or if they communicate by phone, memo, or e-mail with the specific intent of circumventing the purposes of the Act, a violation of the Act would also have occurred.47 Such communications are best considered at posted open meetings and any signatures should be executed in response to a vote at the meeting on the issue. May a quorum of members of the governing body attend a committee meeting of the governmental body? A quorum of members of the governing body could attend a committee hearing. However, the attendance of a quorum would constitute a meeting of the governing body that would require compliance with the Act. In JC-313, the Attorney General concluded that if members of a governmental body attended a committee meeting, then the committee would be subject to the Act when a quorum of the governmental body is present at the meeting and members of the governmental body receive information from, give information to, ask questions of, or receive questions from any third person, including an employee of the governmental body, about the public business or public policy over which the governmental body has authority. This is regardless of whether the committee members or any members of the governmental body spoke or otherwise engaged in deliberations.48 As discussed above, the presence of a quorum will probably constitute a meeting of the governing body, as well.
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May a quorum of members of the governing body attend a state legislative committee meeting without violating the Act? The attendance of a quorum of a governmental body at a meeting of a state legislative committee or agency does not constitute a meeting of that body, provided deliberations at the meeting by the members of that body consist only of publicly testifying at the meeting, publicly commenting at the meeting, or publicly responding at the meeting to questions asked by a member of the state legislative committee or agency.49 Could a gathering with less than a quorum of a current board with elected but not sworn-in officials to that board constitute a quorum? No, the officials must sign the appropriate constitutional statement and take the oath of office before they would be considered officials of the board under the Act.50
Application of Act to Gatherings of Less Than a Quorum

Is a gathering of less than a quorum of a governing body subject to the Act? A gathering of less than a quorum of the governing body is not generally subject to the Act. However, if a standing committee or subgroup of the governmental body meets and the discussion of public business occurs, it is advisable that such gatherings should also be posted and conducted as open meetings. Moreover, if the city council routinely approves decisions of a subcommittee consisting of less than a quorum of the city council, the subcommittee must comply with the Act.51 State law also provides that if less than a quorum of the governing body gather with the intent of circumventing the Act, criminal penalties can be imposed against the participating officials. In other words, if members are holding their discussion of public business in numbers less than a quorum in order to avoid having to meet the requirements of the Act, criminal prosecution can be pursued. May less than a quorum of members of the governing body meet with public or private groups without posting the gathering as an open meeting? It is not uncommon for several members to be present at a private or public gathering that is put on by another entity. The Act does not require that the gathering be treated as an open meeting if less than a quorum of members are present. However, as noted above, an official faces potential criminal penalties if such gatherings are used with the intent of circumventing a discussion of public business at an open meeting. May less than a quorum of members of the governing body visit over the phone without violating the Act? The mere fact that two members visit over the phone does not in itself constitute a violation of state law. However, if members are using individual telephone conversations to poll all the members on an issue or are making such telephone calls to conduct their deliberations about public business, there may be a potential criminal violation. Physical presence in one place is not necessary to violate the Act.52 It would remain a fact issue whether certain phone conversations between less than a quorum of members would be a violation of the Act.53 Such interactions could amount to meeting in numbers less than a quorum to circumvent the Act.
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May less than a quorum of members of the governing body sign a group letter or other document without violating the Act? It is a fact issue whether the presence of less than a quorum of a local entitys members signatures on a group letter or other document constitutes a violation of the open meetings laws. For example, if the members at some time met in numbers less than a quorum to discuss signing the document or otherwise communicate by phone, memo, or e-mail in order to circumvent the Act, a violation of the Act would have occurred. 54
IV. Regular Open Meetings

Adoption of Procedural Guidelines to Administer the Act
Does state law set out procedural rules that apply to open meetings? Relatively few procedural rules are contained in the Act for meetings of a governmental body. All meetings must, of course, be properly posted and a governmental body is limited in how it can respond to inquiries about issues that were not listed on the posted agenda. Additionally, during all meetings, minutes of the meeting must be kept and certain rules must be followed when holding an executive session. However, state law does not impose general rules of parliamentary procedure for open meetings. For example, the Act does not specify rules on how many readings of an ordinance are required, who may make a motion, or whether a motion must be seconded. In order to answer these questions, a local governmental body must consult any local rules of procedure that it has adopted. If a governing body has not adopted any such rules, a majority of the body would determine how items would be considered procedurally.55 Does the Act give individual members of the governing body a right to place items on a meeting agenda? The Act does not specifically address the power of individual officials to place items on the agenda for a meeting. However, the Attorney General has ruled that a home rule city may adopt a local provision that requires the consensus of several council members to place an item on the agenda.56 For example, the City of Dallas requires the consensus of five council members to place an item on the agenda. However, if a home rule city has not adopted such a requirement, an argument could be made that individual council members could each place items on the agenda. In general law cities, individual council members could also arguably each place items on the agenda. This argument is supported by the reasoning in DM-228,57 which concluded that individual county commissioners have a right to place items on the agenda for a county commissioners court meeting. A city will want to consult with its local legal counsel regarding this issue. What is the role or power of the mayor or county judge during an open meeting? The mayor or county judge generally serves as the presiding officer for purposes of running an open meeting. However, the Act itself does not define more specific powers of the mayor or county judge regarding the open portion of a meeting.
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May a mayor or county judge vote on items or second motions that are made at an open meeting? The Act does not address when a mayor or a county judge can vote on an item during an open meeting. In a home rule city, the power of the mayor to cast a vote is generally addressed in the city charter. For Type A general law cities, state law specifies that the mayor may vote only in the case of a tie.58 State statutes do not specifically address whether a mayor in a Type B or a Type C general law city may vote on items. Some legal analysts have concluded that the mayor of a Type B city and the mayor of a Type C city may vote on all items, even when there is not a tie.59 In the county, the county judge is a full voting member of the commissioners court.60 As to who may second motions, the answer would depend on what local rules of parliamentary procedure have been adopted by the city council. Under most rules of parliamentary procedure, only a voting member of the city council could second a motion. Under such a rule, whether or not the mayor could second a motion would depend on whether or not the mayor had the power to vote on the matter that was before the city council. The county judge would be able to second motions. May members of the governing body enter their vote on an item without attending the meeting (e.g., vote by proxy)? A member must be present at a meeting in order to deliberate and to vote61; the member may not vote by proxy.62 May a governing body hold an open meeting by teleconference? A meeting of a governing body may be held by teleconference call only if: 1. An emergency or public necessity exists; and 2. It is difficult or impossible to convene a quorum at one location.63 When holding such a meeting, there are several procedural requirements that must be met. First, the meeting must be posted and open to the public in the same manner as a regular meeting. Second, the meeting must be held in the same place where meetings of the governing body are usually held. Third, the identity of each speaker must be clearly stated prior to that person speaking. Fourth, the meeting must be set up so as to provide two-way communications throughout the entire meeting. Fifth, all portions of the meeting (other than executive sessions) must be audible to the public, including the entire conference call. Finally, the meeting must be recorded and a copy of the recording must be made available to the public. In JC-352, the Attorney General concluded a governmental body was not required to state in the agenda that the meeting would be held by telephone conference call pursuant to the Act.64 Further, section 551.125, permitting a meeting by telephone conference call only in case of an emergency or public necessity and only if it is difficult or impossible to convene a quorum in one location, contemplates meetings by telephone conference call in extraordinary circumstances and not merely when attending a meeting at short notice would inconvenience members of the governmental body. Should a quorum of the governmental body convene at the meeting location, section 551.125 does
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not permit absent members to participate from other locations by telephone conference call.65 Further, it would be questionable to allow participation of a third party by teleconference in a meeting due to the strict requirements in this section. Legal counsel should be consulted if such a situation arises. May a governing body hold an open meeting by video conference? A governing body may hold an open meeting by video conference if a quorum of the body is physically present at one location for the meeting.66 There is no requirement that an emergency exist in order to meet by video conference. As with a teleconference meeting, there are several specific procedural requirements that apply to such a meeting. For example, the notice of a video conference meeting must specify the location where a quorum of the body will be physically present. Additionally, the notice must specify the physical location of each member who will be participating in the meeting from another location. All of the locations identified in the notice must be open to the public, and the entire video conference meeting (other than an executive session) must be visible and audible to the public at each of those locations. Each location identified in the notice must also have two-way communication with all the other locations during the entire meeting. The Act further requires that each participant be clearly audible and visible to all the other participants and to the public (except during an executive session). Additionally, the quality of the audio and video signals at a video conference meeting must meet the requirements set forth by the Texas Department of Information Resources and by section 551.127 of the Texas Government Code. Finally, the entire meeting must be recorded, and the tape must be made available to the public. May a governing body broadcast its meetings over the Internet? The governing body may broadcast its open meetings over the Internet.67 If it chooses to broadcast its meetings in this fashion, the entity must establish an Internet site and provide access to the broadcast from that site. In addition, the Internet site must provide the same 72-hour notice of any open meeting as must be provided at city hall. What accommodations must a local entity provide at its open meetings for an attendee who has a disability? Generally, a local unit must make its meetings accessible to persons with disabilities. Title II of the Americans with Disabilities Act (ADA) provides that activities of state and local governing bodies, including meetings, are subject to the ADA. In most cases, such a requirement means that the facility holding the meeting must be physically accessible to individuals with disabilities. Entities may ask that individuals with disabilities provide the entity with reasonable notice on any accommodations they may need to attend the meeting. Entities must also be ready to provide an accessible meeting site and provide alternative forms of communications that address the needs of individuals with disabilities. This may involve providing sign language interpreters, readers, or large print or braille documents upon request.
Managing Discussions at an Open Meeting

What right does the public have to speak on a particular agenda item? The Act allows the public to observe the open portion of a meeting. However, the Attorney General has concluded that the Act does not give members of the public a right to speak on items considered
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at an open meeting.68 Such a right only exists if a specific state law requires a public hearing on an item or if state law requires that public comment be allowed on an issue. If a local entity allows members of the public to speak on an item at a meeting, the governing body may adopt reasonable rules regulating the number of speakers on a particular subject and the length of time allowed for each presentation. However, the body must apply its rules equally to all members of the public.69 What is the general distinction between a public hearing and an open meeting? A governing body is not required by the Act to allow members of the public to speak on regular agenda items at an open meeting.70 However, during a public hearing, members of the public must be given a reasonable opportunity to speak. Another difference between public hearings and general open meetings is the type of notice that must be provided. Many statutes that require a public hearing also require that special notice of the hearing be given. For instance, when a city council is going to have an annexation hearing, it must publish notice of the hearing in a newspaper at some time between ten and twenty days before the hearing. On the other hand, the only notice generally required for a regular open meeting is the 72hour posted notice. May a governing body require that a group select one of its members as a spokesperson? A governing body may make reasonable rules regulating the number of speakers on a particular subject and the length of each presentation.71 Arguably, such rules could include a requirement that a group select one of its members as a spokesperson. However, the body should not discriminate between one group and another on a particular issue. Further, in no case may the body adopt procedural rules that are inconsistent with the state or federal constitution, state or federal statutes, or city charter provisions (in a home rule city).72 Restrictions on the subject matter that citizens may discuss or the manner in which they may discuss them may in some instances violate the U.S. Constitutions First Amendment that prohibits governmental bodies from imposing laws or regulations that abridge free speech. A local entity should visit with its legal counsel if it decides to impose similar procedural rules. May members of the public be removed from an open meeting for causing a disturbance? The presiding officer or the governing body as a whole may ask that individual members of the public be removed if they are causing a disturbance at a public meeting. What constitutes conduct that rises to the level of disorderly conduct is a fact issue for the body to consider. A local entity may want to visit with its attorney for guidance on what actions may constitute disorderly conduct. May a governing body limit its members to a set amount of time for their testimony or remarks at an open meeting? The Act does not address whether a governing body may set time limits on the remarks of its members at an open meeting. However, the governing body may adopt procedural rules for its meetings that are not inconsistent with the state or federal constitution, state or federal statutes, or with local city charter provisions.73 Within these parameters, a governing body may arguably set reasonable time limits for its members remarks in an open meeting.74
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May members of the governing body be removed from an open meeting for causing a disturbance? The Act does not specifically address removal of a member of a governing body from an open meeting for causing a disturbance. Nonetheless, local entities have the power to adopt rules and take actions to promote an orderly meeting. Accordingly, if a council member or other officials conduct rose to the level of disorderly conduct, the member could be warned and then, if necessary, the presiding officer or the governing body as a whole could require that the member be removed.
Keeping a Record of Open Meetings

What duty does a local entity have to keep minutes of open meetings? A governing body must either keep minutes or make a tape recording of every open meeting.75 If the body chooses to keep minutes rather than make a tape, the Act requires that the minutes indicate the subject of each deliberation and indicate every action that is taken.76 What access does the public have to the minutes of an open meeting? The minutes or tape recording of an open meeting are open to the public and must be available for inspection and/or for copying.77 It should be noted that exceptions to required public disclosure in the Public Information Act do not apply to the minutes or recording of an open meeting. The local unit must permanently retain copies of its minutes of its meetings. However, the unit is not required by state law to publicly post the minutes of an open meeting. What right does the public have to record open meetings? The Act gives any member of the public a legal right to make a video or audio recording of an open meeting.78 However, the Act also gives a governmental body a right to adopt reasonable rules that are necessary to maintain order at a meeting. Thus, a governing body may regulate the location of recording equipment and the manner in which the recording is conducted. However, the body may not adopt any rule that would unreasonably impair a persons right to record an open meeting.
V.
Executive Sessions
What are the general subjects for which a governmental body may hold an executive session? Under the Act, a governing body may generally hold an executive session for one or more of the following nine reasons: 1) consideration of specific personnel matters; 2) certain consultations with its attorney; 3) discussions about the value or transfer of real property; 4) discussions about security personnel or devices; 5) discussions about a prospective gift or donation to the city; 6) discussions by a governing body of potential items on tests that the governing body conducts for purposes of licensing individuals to engage in an activity; 7) discussions of certain economic development matters; 8) discussions of certain competitive matters relating to a city-owned electric or gas utility for which the city council is the governing body;79 and 9) certain information relating to the subject of emergencies and disasters.80
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Executive Sessions to Discuss Personnel Issues

When May a governing body meet in executive session to discuss personnel issues? The Act allows a governmental body to hold an executive session to discuss the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee.81 A governmental body may also hear a complaint or charge against such officer or employee in an executive session. However, the governmental body is not allowed to meet in executive session about an employee or official if the subject of the deliberation requests that the item be heard in an open session or in a public hearing. Also, any final action by the governing body on a personnel matter must be taken in open session.82 It is important to note that a governing body may only meet in executive session under the personnel exception if the person being discussed is an officer or employee of the local entity. Neither the appointment of advisory committee members83 nor the hiring of independent contractors84 are proper subject for executive sessions under the personnel exception. In addition, the personnel exception allows only the discussion of a particular person or persons in executive session. A governmental body may not discuss general policies regarding an entire class of employees in an executive session held under the personnel exception.85 Such general policies must be addressed during the open portion of a meeting. Does the entity have to post the name of the individual employees who are to be discussed in executive session? A local entity is not required to post the name of the specific individual to be discussed in an executive session.86 However, the more important the position being discussed, the more specific the posted agenda will need to be in describing that position.87 Thus, the phrase possible dismissal of a police officer would probably be a sufficient posting for a city to consider firing a police officer of low rank. On the other hand, if a city is considering the dismissal of the police chief, the posting arguably should indicate possible personnel action regarding police chief so that the public is clearly informed as to which high-level position is under discussion.88 Does the governing body have to give individual notice to the employee that he/she will be discussed in an executive session? The Act does not require that an employee or officer be given individual notice of an executive session in which that person will be discussed.89 However, it is possible that other law, such as a state statute, a contractual agreement, a city charter, or a local city ordinance, may require that certain staff positions be given individual notice and a hearing before any disciplinary action is taken.90 Local units should consult with their legal counsel regarding the applicable laws in such a situation. Does an employee have a right to attend the executive session if he/she is being discussed? When a governing body discusses an employee or officer in executive session under the personnel exception, the person being discussed does not have an inherent right to attend the executive session. The governing body decides who are the necessary parties for attendance at the executive session. The governing body chooses whether to allow the attendance of the employee at the executive session.91
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Does an employee have a right to force the governing body to hear a personnel item regarding that employee in an open meeting instead of in executive session? The person that is to be discussed under the personnel exception has a right to insist that the item be discussed in a public hearing instead of during an executive session.92 However, the Act does not give an employee or officer the right to insist that a personnel item regarding that individual be discussed only within an executive session.93 Is a governing body permitted to conduct personnel interviews for new hires or potential officers in an executive session? There do not appear to be any court cases or attorney general opinions that directly address the authority of a governing body to interview prospective personnel or officer appointees in an executive session. Given the language of the exception, it is an open question whether a governing body could interview job applicants or potential officers in closed session.
Executive Sessions for Consultations with an Attorney

When may a governing body have an executive session using the exception for consultations with an attorney? Section 551.071 of the Texas Government Code allows a governmental body to meet with its attorney to receive legal advice about pending or contemplated litigation or about settlement offers. The Attorney General has also concluded that a governmental body may meet with its attorney to receive legal advice on any matter.94 However, the Attorney General has warned that discussions in an executive session under consultations with an attorney must only relate to legal matters. The governing body may not discuss general policy matters that are unrelated to receiving legal advice from the attorney while in executive session under this exception.95 May a governing body meet in executive session for consultations with an attorney if the attorney is not physically present? An entity may use a telephone conference call, video conference call, or Internet communications to consult with certain attorneys in an open meeting or in an executive session. Each part of the public consultation with the attorney in open session must be audible to the public at the location specified in the agenda. Further, only certain attorneys may consult with the governing body via telephone or the Internet. If the attorney is an employee of the local unit, such consultations via the Internet or telephone are not permitted. An attorney who receives compensation for legal services from which employment taxes are deducted by the unit is considered to be an employee of the unit.96 May a governing body meet in executive session with its attorney to discuss a proposed contract? A governing body may consult with its attorney in executive session to receive advice on legal issues raised by a proposed contract. However, the body may not discuss the merits of a proposed contract, financial considerations, or other nonlegal matters related to the contract simply because its attorney is present.97 General discussion of policy unrelated to legal matters is not permitted in executive session under the Act merely because an attorney is present.
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Other Types of Executive Sessions

May a governing body discuss the acquisition of real estate in an executive session? The Act allows a governmental body to hold an executive session to discuss the purchase, exchange, lease or value of real estate.98 However, such an executive session is only allowed if discussion of the real estate in an open meeting would have a detrimental effect on the ability of the governmental body to negotiate with a third party.99 For example, an executive session may in certain cases be permitted to discuss what the local unit is willing to pay for real property that it plans to acquire. The unit should not use this exception when the other side for the transaction is present, as discussed below. There is no comparable authority for a governing body to go into an executive session to discuss the acquisition of items of personal property such as the purchase of a new computer system. May a governing body discuss security personnel or devices in an executive session? The Act permits a governing body to discuss security personnel or security devices in an executive session.100 May a governing body discuss a contract involving a prospective gift or donation in an executive session? A governing body may meet in executive session to discuss the negotiations for a contract for a prospective gift or donation.101 Such a contract must relate to a gift to be given to the state or to the governmental body. However, similar to the real estate exception, the body may only meet in an executive session if its negotiating position with a third person would be negatively affected if the body discussed the contract in open session. May a governing body discuss a test item in executive session? A governing body may discuss a test item or information related to a test item in executive session if the item may be included in a test that the governing body administers to individuals who seek to obtain or renew a license or certificate that is necessary to engage in an activity.102 May the governing body of a public utility discuss utility matters in closed session if the disclosure of the information would give an advantage to competitors? The governing body of a public electric or gas utility is allowed to discuss information in closed session if that information would give advantage to a competitor or potential competitor.103 Unlike other provisions authorizing executive sessions, it appears that a governing body is authorized to take a final vote on a matter in a properly held executive session of this type. In order to use this provision, the governing body is required to take a vote at the beginning of such a closed session. For the closed session to continue, a majority of the governing body must determine that the matter to be discussed is related to the utilitys competitive activity and would, if disclosed, give advantage to a competitor or potential competitor. The vote must be recorded in the tape or certified agenda for the closed session.
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This new provision also lists several types of information that may not be discussed in this type of executive session. Thus, before using this authority, the governing body of a public utility will want to review Texas Government Code section 551.086 and discuss the matter with its legal counsel. May a governing body discuss potential business incentives and other economic development negotiations in executive session? A governing body may meet in executive session to discuss certain matters related to economic development.104 It may discuss commercial or financial information that the governing body has received from certain business prospects. The business prospect must be one that the governing body is negotiating with for economic development purposes to locate, stay, or expand in or near the city. Under this amendment, a governing body may also hold an executive session to discuss a potential offer of financial or other incentives to the business prospect. The unit should not use this exception when representatives for the business prospect are present, as discussed below.
Need for Statutory Authority to Hold Executive Sessions

May a governing body hold workshops or retreats in an executive session? It is irrelevant whether a governing body refers to a gathering as a workshop or as a retreat; the provisions of the Act would apply to such meetings if a quorum of the body is present and it deliberates about public business.105 To go into an executive session, the local entity must show that the issue to be discussed fits within one of the specific statutory categories that is permitted for executive sessions. Does the Public Information Act provide a basis for meeting in executive session? The governing body may not discuss documents that may be confidential under the Public Information Act, Chapter 552 of the Government Code, in executive session unless one of the particular exceptions to the Open Meetings Act applies. The two main open government Texas statutes are entirely independent in their operation.106
Procedural Requirements for Meeting in Executive Sessions

Is there a difference between the terms executive session, closed meeting, and closed session? No. All of these terms are used interchangeably. The important point to remember is that a governmental body may not exclude the public from a meeting unless the Act specific authorizes such a closed meeting.107 May a city council meet in executive session if a local city charter provision requires that all city council meetings be conducted as open meetings? A city council may not hold an executive session if the city charter specifically requires that all meetings or the type of meeting in question be held as an open meeting.108
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What notice must be posted to consider an item in executive session? The rules for posting executive session items are the same as the general rules for posting issues that will be considered in open session.109 Most local units indicate on the posted agenda that the governmental body may be going into executive session on a particular topic and the statutory section that allows such an item to be considered in a closed meeting. However, the Act does not require the agenda to state which items will be discussed in closed session. Should a governing body consistently distinguish between subjects for public deliberation and subjects for executive session, an abrupt departure from this practice could deceive the public and thereby render the notice inadequate.110 May an item be considered in executive session if the posted agenda does not indicate it will be discussed in executive session? In certain cases, a properly posted agenda item may be considered in executive session even though the posted agenda did not indicate that the item would be discussed in executive session.111 As mentioned above, the rules for posting executive session items are the same as the rules for posting items that will be considered in open session.112 The open meetings laws only require that the posted notice give reasonable notice of the subjects that will be discussed. There is no requirement that the local entity indicate whether an item will be handled in open or closed session. However, if the notices posted for a governmental bodys meetings consistently distinguish between subjects for public deliberation and subjects for closed session deliberation, an abrupt departure from this practice may raise a question as to the adequacy of a notice to inform the public.113 What procedure should a governing body follow to go into executive session? If a governing body chooses to discuss an item in executive session, it must follow the statutory procedures required for such sessions. The body must first convene in a properly posted open session. During that open session, the presiding officer must announce that a closed meeting will be held and identify the section or sections of the Act that authorize such a closed meeting.114 It is also recommended that the local unit have a prior written opinion from its attorney that validates that there is a reasonable basis for holding the executive session for the involved item whenever any doubts about the basis for the executive session exist. Once an executive session has begun, the presiding officer must announce the date and time the session started. At the end of that executive session, the presiding officer must again announce the date and time.115 A tape recording or certified agenda must be made. Also, any action or vote on an agenda item may be taken only during an open session.116 May a governing body continue an executive session to the immediate next day? An executive session of a public meeting may be continued to the immediate next day, so long as, before convening the second-day executive session, a quorum of city council first convenes in an open meeting and the presiding officer publicly announces that a closed meeting will be held and identifies the section or sections of the Act under which the executive session is authorized.117
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If a member of a governing body is not certain that an executive session is permitted, what actions should the official take if such a session is called? If a member is not certain that an executive session is permitted on an issue, the member may want to obtain in advance of that executive session a formal written interpretation from the local entitys attorney as to the legality of the meeting. The Act provides that an official who reasonably relies on such a written opinion has an affirmative defense to any criminal prosecution for violation of the Act. Unless the member has such a written interpretation from his attorney, the Attorney General or from a court,118 the member should refuse to attend any executive session that he or she feels may be illegal. Simply objecting or not speaking during an illegal executive session would not relieve the member of potential criminal liability for participating in an illegal closed meeting. Who is permitted to attend an executive session? The Act does not specify who may or may not attend an executive session.119 Generally, a governmental body has discretion to determine who may attend executive sessions. When a governmental body holds an executive session under section 551.071, the attorney consultation exception, to discuss a lawsuit, the bodys attorney must be present, but an opposing party may not be present.120 In considering whether to admit any other nonmember to an executive session held under this section, a governmental body should consider (1) whether the persons interests are adverse to the governmental bodys; (2) whether the persons presence is necessary to the issues to be discussed; and (3) whether the governmental body may waive the attorney-client privilege by including the nonmember.121 With respect to executive sessions held under other exceptions in the Act, a governmental body has the right to determine which nonmembers may attend and may include a nonmember if the persons interests are not adverse to the governmental bodys and the persons participation is necessary to the anticipated deliberation.122 In addition, a governmental body should be careful not to admit a party whose presence would circumvent the purpose for which the executive session is authorized. For example, the purpose of the exception that allows closed sessions to discuss the purchase or sale of real property is to hold such talks without putting the governmental body at a disadvantage in bargaining.123 A governmental body, therefore, should not allow someone to attend an executive session regarding a proposed real estate transaction if this person is bargaining with the local unit for the purchase or sale of the real property.124 May a governing body prevent a member from attending an executive session? The Attorney General has addressed the ability of a governmental body to exclude one of its members from an executive session concerning a lawsuit by a board member against the governmental body.125 In that situation, a school board had been sued by one of its own members and wanted to discuss the lawsuit with its attorney in an executive session. The Attorney General concluded that the school board could exclude the member who had sued the district. The purpose of the exception for consultations with an attorney is, in part, to allow a governmental body to receive legal advice from its attorney without revealing attorney-client confidences to the opposing side. Admitting a member of a governing body who is on the opposite side of litigation to such an executive session would defeat the purpose of holding it. May a governing body prevent its staff from attending an executive session? The Attorney General has indicated that a governing body may exclude all nonmembers from attending a closed meeting.126 Thus, a governing body may exclude its staff from attending an
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executive session. However, some city charters and certain statutory provisions provide that the city secretary shall attend all city meetings.127 It is not clear whether such a provision would require the attendance of the city secretary at an executive session. One Attorney General opinion concluded that the county commissioners court could exclude the county clerk from an executive session of the commissioners court where no statute required the presence of the county clerk.128 This was recently reiterated in an opinion that also suggested the court could authorize the county clerk to attend an executive session.129 Another opinion concluded that a contractual provision requiring a superintendent of schools to attend all executive sessions of her school board of trustees was valid under the Act but would not preclude her exclusion by the board.130 May a governing body approve items or take a straw poll in an executive session? A court has held that a member of a governing body may indicate during an executive session how he or she plans to vote on an item.131 However, the governing body may not conduct a straw vote or a formal vote during such a session.132 The Act requires that any final action, decision or vote be taken in open session.133
Production and Handling of Certified Agenda or Tape for Executive Sessions

Is a governmental body required to record or create a certified agenda or tape of discussions held in executive session? A governmental body must create a certified agenda or make a tape recording of every executive session unless the closed session is being held under the exception for consultation with an attorney.134 The body may turn off the tape or stop taking notes during the portion of a closed meeting that involves consultations with an attorney. If the body chooses to keep a certified agenda rather than make a tape for an executive session, the certified agenda must state the subject matter of each deliberation.135 A certified agenda does not have to be a verbatim transcript of what happened in executive session, but it must summarize what was discussed on each topic.136 In addition, the certified agenda or tape must include an announcement by the presiding officer of the date and time that the executive session began and ended.137 Who is responsible for producing the certified agenda or tape of an executive session? The Act does not specify a particular individual or officer that is responsible for producing the certified agenda or making the tape of an executive session. However, the presiding officer at the executive session is responsible for certifying that the certified agenda or tape is a true and correct record of the proceedings.138 It is important to note that a member of a governing body commits a Class C misdemeanor if he/she participates in a closed meeting knowing that a certified agenda or tape is not being made.139 May a member of a governing body or staff release a copy of a certified agenda or tape to the public? A certified agenda or tape kept during an executive session may be disclosed to a member of the public only under a court order.140 There are criminal penalties for releasing a copy of the certified agenda to the public without a court order.141
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May a member of a governing body tape an executive session for the members own use? A Texas court has ruled that a member of a governmental body has no right to tape an executive session over the objection of a majority of the governmental bodys members.142 A reasonable argument can be made that a governmental body may give permission to one of its members to tape an executive session. However, it does not appear that either the courts or the attorney general have directly addressed this issue. May a local entity release a copy of a certified agenda or recording to its member? The Attorney General has indicated that a member of a governing body who attended an executive session may later review the certified agenda or tape of that executive session.143 However, members do not have a right to make a copy of the certified agenda or tape of the executive session.144 Further, the Attorney General has indicated that an absent member may review the tape recording of a closed meeting that the member did not attend. Presumably, this would include tapes made of closed sessions conducted prior to the start of the members term of office. The governing body should adopt procedures for reviewing the recording, but it could not absolutely prohibit the review by a member of the governmental body. Additionally, the governmental body could not provide the absent member with a copy of the tape recording of the executive session. Nor may the governing body allow a member to review the tape of an executive session once the member has left office.145 How should an entitys staff handle the certified agenda or tape once they are prepared? The Act contains two requirements on how certified agendas or tapes of executive sessions are to be handled once they have been created.146 First, the certified agenda or tape may not be disclosed to the public without a court order. Second, the agenda or tape must be preserved for a period of at least two years after the date of the executive session. If any legal action involving the executive session is brought within this time period, the agenda or tape must be further preserved until the action is finished. Ultimately, the governing body is the proper custodian for the certified agenda or tape, not the city secretary or county clerk, but the body may delegate its duty to these individuals.147 May members of the governing body publicly discuss what was considered in an executive session? The Act does not prohibit a member from discussing or making statements about what occurred in an executive session.148 However, as noted above, the Act does prohibit a person from disclosing to the public a copy of the actual certified agenda or tape of an executive session.149 Of course, the fact that a person may legally discuss what occurred in an executive session does not mean that it is advisable to do so. For instance, it is possible that such a discussion could waive the governing bodys claim of attorney-client privilege if a member revealed attorney-client communications that occurred during an executive session. Other statutes and professional obligations, as well as possible civil rights violations, individual privacy concerns, and the best interest of the governing body and the citizens the member represents might drastically affect the wisdom of such a course of action. It is not clear whether a governing body may affirmatively prohibit its members from publicly discussing what takes place in executive session. Attorney General Opinion No. JM-1071 (1989) implies that such a restriction may violate the First Amendment of the United States Constitution.150
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A governing body will want to carefully review this issue with its legal counsel before attempting to enact any such policy. Are notes made by an official in an executive session considered confidential under the Public Information Act? The certified agenda and tape of an executive session are considered confidential under Texas law. However, a record (other than the certified agenda or tape) is not automatically considered confidential simply because it relates to an executive session.151 Therefore, whether the notes made by an official in an executive session are confidential would depend on whether an exception under the Public Information Act applies to the information. For example, a few early Attorney General decisions found that notes made by an official are not subject to the Public Information Act if those notes are solely for the officials personal use and are not produced with public property or by governmental staff.152 However, these early decisions did not concern notes taken by an official during an executive session. Moreover, more recent decisions have found that personal notes are not necessarily excluded from the definition of public information in the Public Information Act.153 For example, if an official uses his or her notes for public purposes or if the notes are taken as part of the officials duties, the notes are likely to be considered an open record.154 If there is an open record request for any such notes, the local unit will want to confer with its local legal counsel. Whether the Public Information Act would protect the notes would depend in part on their content and the facts surrounding their creation.155 For example, the unit should consider who prepared the notes, who possesses and controls the notes, who has access to the notes, whether the notes were used in conducting public business, and whether public funds were expended in creating or maintaining the notes.
VI.
Emergency Meetings
What is sufficient cause for posting a two-hour emergency meeting? Under the Act, an emergency exists only if immediate action is required of a governmental body because of an imminent threat to public health and safety or because of a reasonably unforeseeable situation.156 The courts and the Attorney General have traditionally construed the emergency posting exception strictly. Accordingly, a situation in which a quick decision was needed to purchase a piece of land was not considered an emergency.157 The Attorney General has also concluded that the need to discuss indemnifying the governing body and hiring a lawyer for a lawsuit did not constitute an emergency. As a general rule, the members of a governmental body should ask themselves two questions when considering whether an emergency exists. First, what would happen if the meeting on the emergency issue was postponed for 72 hours? If the governing body cannot point to some imminent risk to public welfare or safety that would occur if action was not taken within 72 hours, then it would be difficult to argue that an emergency exists. Second, how long has the governing body known about the emergency issue? If the governing body has known about the matter for more than 72 hours, it would work against the entitys argument that an emergency exists. It should also be noted that a situation is not unforeseeable merely because a deadline is less than 72 hours away. If the governing body knew about or should have known about the deadline in advance, then it may be difficult to argue that the situation was reasonably unforeseeable.158
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What must be indicated in a notice for an emergency item? In order to be eligible for a two-hour emergency meeting, the notice of an emergency item must clearly identify the emergency.159 The emergency is clearly identified when the governing body states the reason for the emergency in the posted notice.160 May a local entity add nonemergency items onto an agenda that was otherwise validly posted for two hours as an emergency? The Act does not allow a governmental body to add nonemergency items to the agenda for an emergency meeting unless the nonemergency items have been posted for sufficient time. The body must post the nonemergency items for at least 72 hours for them to be considered. Does the media have a right to specific notice of any items that are considered at a governmental meeting on an emergency basis? To be entitled to specific notice of items that are to be considered on an emergency basis, members of the media must do two things.161 First, they must file a request to be notified of such items. This request must be filed at the headquarters of the governmental body. The request must also include information on how to contact the media member by telephone or telegraph. Second, the media member must agree to reimburse the local entity for the cost of providing the special notice. Members of the media are not entitled to special notice of an emergency item unless they meet these criteria.162
VII. Enforcement of the Act's Requirements

Civil Enforcement of the Act
What civil remedies does an individual have if the Act is violated? An individual may sue to prevent, stop or reverse a violation of the Act.163 Standing for bringing such an action has been very liberally construed, even in areas like annexation challenges that normally require an action to be brought by the states attorney.164 If a court finds that there will be or is a violation of the Act, the court has at least four options. First, the court may order a governmental body or an official to stop violations of the Act, to avoid future violations of the Act, or to perform a duty required by the Act.165 Second, a court may invalidate any action that a governmental body has taken in violation of the Act.166 Third, in cases where the Act was violated in the course of firing an employee, the courts may order the governmental body to provide back pay to the employee.167 Finally, at its own discretion, a court may make the losing side in such a case pay costs of litigation and reasonable attorney fees.168 The Act also provides that an individual, corporation or partnership that releases a certified agenda or tape of an executive session to the public may be held liable in a civil lawsuit.169 In such a suit, the person or entity that is harmed may get damages, attorney fees and court costs.
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Is an action automatically void if it was accomplished without compliance with the Act? Actions that violate the Act may be invalidated by a court.170 However, such actions are not automatically void. Whether to invalidate a particular action is for the discretion of the court. In fact, it is possible that a court may not invalidate an action even if the court finds that the action was taken in violation of the Act.171 Nonetheless, it is always the safer course to attempt to achieve full compliance with the Act to avoid the likelihood of later court challenges. May a governing body later ratify an action that was handled in a meeting that did not comply with Act requirements? If a governing body has taken an action at a meeting that may not have fully complied with the requirements of the Act, the body may at a later time meet again to re-authorize the same action. If the second meeting is held in accordance with all the requirements of law, including the Act, then the action under certain circumstances may be considered valid from the date of the second meeting.172 For example, if a body fires an employee at a meeting that does not meet the requirements of the Act, it may then fire the same employee at a later open meeting that meets the requirements of the Act. However, the local entity may owe back pay to the employee for the time period between the first meeting and second meeting if a court finds that the action taken at the first meeting was invalid.173
Criminal Enforcement for Violations of the Act

What are the criminal penalties for noncompliance with the Act? There are four provisions of the Act that provide criminal penalties for violation of the Act: 1) Unauthorized Executive Sessions. If a closed meeting is not authorized by law, a member of a governing body commits a crime if he or she calls or aids in calling such a meeting, closes or aids in closing such a meeting, or participates in such a meeting.174 A violation of this sort is a misdemeanor punishable by a fine of between $100 and $500, one to six months in jail, or both. A Texas court has ruled that a public official could be convicted of participating in an illegal closed meeting even if the official attended the session pursuant to advice of legal counsel that the session was legal.175 The court reasoned that people, including public officials, are generally presumed to know the law. However, the Legislature amended the Act to allow a member of a governing body to rely on official written advice from a court, the Attorney General or the entitys attorney regarding the legality of a closed meeting.176 Specifically, the amendment provides that if a member of the governing body has a formal written interpretation from one of these sources indicating that a particular closed meeting is legal, the member may use that written interpretation as a defense if he or she acted in reasonable reliance on the written interpretation and is later prosecuted for participating in an illegal closed session. A governing body may want to consider asking its local legal counsel to provide in advance a written opinion noting the legal authority for an executive session prior to the entity holding the closed meeting when doubt exists about the authority for the executive session. 2) Meeting in Numbers Less than a Quorum With Intent to Circumvent the Act. A member of a governing body commits a crime if that official conspires to circumvent the
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Act by meeting in numbers of less than a quorum for the purpose of secret deliberations in violation of the Act.177 A violation of this sort is a misdemeanor punishable by a fine of between $100 and $500, one to six months in jail, or both. Attorney General Opinion GA-0326 (2005) held that this section was not unconstitutional for being too vague. 3) Failure to Keep a Certified Agenda. A member of a governing body commits a crime if he or she participates in a closed meeting knowing that a certified agenda or tape recording of the closed meeting is not being made.178 A violation of this sort is a Class C misdemeanor and is punishable by a fine of up to $500.179 4) Disclosure of Copy of Certified Agenda. An individual, corporation, or partnership commits a crime if it releases to the public a copy of the tape or certified agenda of a lawfully closed meeting.180 A violation of this sort is a Class B misdemeanor, and is punishable by a fine of up to $2,000, a jail term of up to 180 days, or both.181 May a member of a governing body be criminally prosecuted if he or she did not intentionally or knowingly violate the open meetings laws? A Texas court has ruled that an individual would not have to know that a closed meeting was illegal in order to be convicted of participating in an illegal closed meeting.182 Instead, the individual would only have to know that he or she was participating in a closed meeting. Under this court ruling, if it later turned out that there was no legal authority to hold that closed meeting, the person could be convicted of a crime even if he or she thought at the time that it was legal to hold the closed meeting. However, the Legislature amended the Act to allow a member of a governing body to rely on official written advice from a court, the Attorney General, or the entitys attorney.183 If a member has a formal written interpretation from one of these sources indicating that a particular closed meeting is legal, and the member acted in reasonable reliance on that interpretation, the member may use the written interpretation as a defense if he or she is later prosecuted for participating in an illegal closed session. Prosecution of such a crime is at the discretion of the local prosecuting attorney. May a private citizen who is not a member of a governing body violate the Act by urging members to place an item on the agenda or by informing some members how other members intend to vote on a particular item? The Attorney General has concluded a private citizen who acts independently to urge individual members to place an item on the agenda or to vote a certain way on an agenda item does not commit an Act violation even if he or she informs members of other members views on the matter. Nonetheless, a person who is not a member of the governmental body could be charged with a Act violation if the person acts with intent and knowingly aids or assists a member or members to violate the Act. A private citizen who does not act in concert with members does not violate the Act.184 What is the role of the local district attorney or prosecuting county attorney regarding Act violations? As mentioned above, the local district attorney or prosecuting criminal county attorney (depending on the county) has the authority to prosecute criminal violations of the Act. As with other alleged crimes, the local prosecutor retains the discretion to determine which alleged violations he or she will prosecute.
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What is the role of the Attorney General regarding Act issues? The Attorney General may issue an official opinion answering questions about the legal meaning of the Act if the opinion is requested by an authorized official such as the Governor, the chair of a state legislative committee, or a district or county attorney.185 City officials generally work through their district or county attorney or a state legislator to request an Attorney General opinion. The Attorney General can only make conclusions about the legal meaning of a law. The Office of the Attorney General does not rule on the facts of a specific case.186 Thus, in most cases the Attorney General cannot rule as to whether a specific person violated the Act on a specific occasion if it requires a determination of the applicable facts.187 It should be noted that the Attorney General does not have enforcement authority with regard to the Act. The prosecution of criminal violations of the Act remains within the discretion and authority of the local district attorney or prosecuting criminal county attorney. A local prosecutor, however, may request assistance from the Office of the Attorney General in prosecuting an Act violation. It is within the discretion of that local prosecutor to determine whether to request such help from the Office of the Attorney General, and it is within the discretion of the Attorney General whether the resources of the agency and the interest of the State of Texas make such help proper at the time of the request. Could a governing body pay attorney fees incurred to defend its members charged with violating the Act? The Attorney General has concluded that although it is not required to do so, a governing body may spend public funds to reimburse a member for the legal expenses of defending against an unjustified prosecution for Act violations. However, the governing body may not decide to pay for such legal expenses until it knows the outcome of the criminal prosecution. The entity may not pay the expenses of a member who is found guilty of such violations. Additionally, a member is disqualified from voting on a resolution to pay his or her own legal fees or the legal fees of another member indicted on the same facts for the same offense.188
VIII.
Additional Information on the Act
Are all elected or appointed governmental officials required to take training about the Act? Elected or appointed governmental officials must have a minimum of one hour but no more than two hours of training. Officials who were in office before January 1, 2006 have until January 1, 2007, one year, to complete the required training. Officials who are elected or appointed after January 1, 2006 have 90 days to complete the required training.189 The official should receive a certificate of course completion. The governmental body shall maintain the officials certificate and make it available for public inspection. Where May a local entity get more information about the Act? For further discussion of the issues raised in this article, local officials or employees may contact the Municipal Affairs Section of the Office of the Attorney General at (512) 475-4683 or the County Affairs Section of the Office of the Attorney General at (512) 463-2060. Additionally, the Office
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of the Attorney General produces the Open Meetings Handbook, an in-depth publication about the Act and its interpretation in Attorney General opinions and court cases. That publication may be ordered by calling (512) 936-1730. It is also available in a downloadable PDF format on the Attorney General's Web site, at www.oag.state.tx.us. And finally, the Office of the Attorney General sponsors an open government hotline where public officials and concerned citizens can get answers to basic questions about the Act. The open government hotline number is (877) 673-6839 (OPENTEX).
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Endnotes
1. This handbook has been written and revised subsequently by several present and former assistant attorney generals, including Julian Grant, Scott Joslove, Jeff Moore, and Zindia Thomas. The original handbook was created with assistance from the Municipal Advisory Committee of this office. 2. TEX. GOVT CODE ANN. 551.001 (4)(A) (Vernon 2004). 3. See Op. Tex. Atty Gen. No. GA-98 (2003). 4. TEX. GOVT CODE ANN. 551.001 (4)(B) (Vernon 2004); Op. Tex. Atty Gen. No. H-785 (1976) at 2 (breakfast meetings of governing body must be purely social without any discussion of public business). 5. TEX. GOVT CODE ANN. 551.001 (4)(B) (Vernon 2004). 6. Willmann v. City of San Antonio, 123 S.W.3d 469, 480 (Tex. AppSan Antonio 2003, pet. denied); Op. Tex. Atty Gen. No. JC-60 (1999). 7. Op. Tex. Atty Gen. No. JC-60 (1999); cf. Op. Tex. Atty Gen. No. JC-160 (1999) (ad hoc tax foreclosure committee not subject to Act). 8. Op. Tex. Atty Gen. No. JC-313 (2000). 9. Tex. Atty Gen. LO 98-40 (1998) at 2; see TEX. GOVT CODE ANN. 551.001 (3) (Vernon 2004).(definition of governmental body) & Op. Tex. Atty Gen. No. JM-1072 (1989) (local-level entity must fall within definition of governmental body to be covered by Act). 10. Tex. Atty Gen. LO 93-55 (1993); LO 96-113 (1996); see Op. Tex. Atty Gen. No. DM-7 (1991) (committee on aging which receives public funds not subject to Act). 11. Op. Tex. Atty Gen. No. JC-327 (2001); see also GA-206 (2004). 12. E.g., Op. Tex. Atty Gen. No. JM-595 (1986). 13. City of Garland v. The Dallas Morning News, 22 S.W.3d 351, 366-67 (Tex. 2000); Tex. Atty Gen. ORD-605 (1992) (names of applicants discussed in executive session are not confidential under Public Information Act); ORD-485 (1987) (investigative report considered in executive session may not be withheld). 14. TEX. GOVT CODE ANN. 551.049-.054 (Vernon 2004). 15. City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d 762, 768 (Tex. 1991). 16. TEX. GOVT CODE ANN 551.043 (Vernon Supp. 2005) (as amended by Tex. H.B. 2381, 79th Leg., R.S. (2005)). 17. Id. 551.056(b) (as amended by Tex. S.B. .1133, 79th Leg., R.S. (2005)). 18. Id. 551.056(c). 19. Id. 551.056(d). 20. TEX. LOC. GOVT CODE ANN 43.0561 (Vernon Supp. 2005). 21. TEX. GOVT CODE ANN. 551.041 (Vernon 2004). 22. City of San Antonio, 820 S.W.2d at 766. 23. Op. Tex. Atty Gen. No. H-662 (1975).
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24. Cox Enterprises, Inc. v. Board of Trustees, 706 S.W.2d 956 (Tex. 1986). 25. Point Isabel Independent School District v. Hinojosa, 797 S.W.2d 176 (Tex. App. Corpus Christi 1990, writ denied). 26. Mayes v. City of DeLeon, 922 S.W.2d 200 (Tex.App. Eastland 1996, writ denied). 27. River Rd. Neighborhood Association v. South Tex. Sports, 720 S.W.2d 551 (Tex. App. San Antonio 1986, writ dismd w.o.j.). 28. Op. Tex. Atty Gen. No. JC-169 (2000). 29. Id. at 6. 30. Id. See Hays County Water Planning Partnership v. Hays County, 41 S.W.3d 174, 181 (Tex. App. Austin 2001, pet. denied) (agenda which provided presentation by Commissioner" considered to be insufficient notice, as nothing in agenda posting indicated subject matter of presentation). 31. Op. Tex. Atty Gen. No. JC-57 (1999) at 5. 32. TEX. GOVT CODE ANN. 551.042(a) (Vernon 2004). 33. Id. 551.042(b). 34. Acker v. Texas Water Commission, 790 S.W.2d 299 (Tex. 1990). 35. See TEX. GOVT CODE ANN 551.043 (Vernon 2004)(notice must be posted for 72 hours in advance of meeting) & 551.041 (notice must include place of meeting). 36. Id. 551.0411(b) (Vernon Supp. 2005)(as amended by Tex. S.B. 690, 79th Leg., R.S. (2005)). 37. Id. 551.0411(c). 38. Acker, 790 S.W.2d 299. 39. See TEX. GOVT CODE ANN 551.043 (Vernon 2004)(notice must be posted for 72 hours in advance of meeting) & 551.041 (notice must include place of meeting). 40. Acker, 790 S.W.2d 299. 41. See TEX. GOVT CODE ANN. 551.043 (Vernon 2004)(notice must be posted for 72 hours in advance of meeting) & 551.041 (notice must include place of meeting). 42. Id. 551.0411(a) (Vernon Supp. 2005)(as amended by Tex. S.B. 690, 79th Leg., R.S. (2005)). This codified the opinion set forth in Op. Tex. Atty Gen. No. DM-482 (1998) and the decision in Rivera v. City of Laredo, 948 S.W.2d 787 (Tex.App. San Antonio 1989, writ denied). 43. Op. Tex. Atty Gen. No. JC-285 (2000). 44. TEX. GOVT CODE ANN. 551.001(6) (Vernon 2004). 45. Cox Enterprises, 706 S.W.2d 956. 46. But see Bexar Medina Atascosa Water Dist. v. Bexar Medina Atascosa Landowners' Ass'n, 2 S.W.3d 459, 462 (Tex. App.- San Antonio 1999, pet. denied) (deliberations took place at informational gathering of water district board with landowners in board members barn, where one board member asked question and another board member answered questions, even though board members did not discuss business among themselves). 47. Op. Tex. Atty Gen. Nos. DM-95 (1992); JC-307 (2000). 48. Op. Tex. Atty Gen. No. JC-313 (2000).
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49. TEX. GOVT CODE ANN. 551.0035 (Vernon 2004). 50. Op. Tex. Atty Gen. No. GA-355 (2005). 51. Willmann, 123 S.W.3d at 480. 52. Op. Tex. Atty Gen. No. DM-95 (1992). 53. See Hitt v. Mabry, 687 S.W.2d 791 (Tex. App. San Antonio 1985, no writ) (school trustees violated Act by telephone conferencing); but see Harris County Emergency Service Dist. #1 v. Harris County Emergency Corps, 999 S.W.2d 163 (Tex. App Houston [14th Dist.] 1999, no writ) (evidence that one board member of five-member county emergency service district occasionally used telephone to discuss agenda for future meetings with one other board member did not amount to Act violation). 54. Op. Tex. Atty Gen. Nos. DM-95 (1992); JC-307 (2000); Willmann, 123 S.W.3d at 480. See especially Esperanza Peace and Justice Center v. City of San Antonio, 316 F. Supp. 2d 433 (W.D. Tex. 2001) for a discussion of an illegal walking quorum facilitated by mayor and city manager. 55. See Op. Tex. Atty Gen. No. DM-473 (1998); TEX. LOC. GOVT CODE ANN. 22.038(c) (Vernon 1999). 56. Op. Tex. Atty Gen. No. DM-473 (1998). 57. Op. Tex. Atty Gen. No. DM-228 (1993). 58. TEX. LOC. GOVT CODE ANN. 22.037(a) (Vernon 1999). 59. Bojorquez, Alan J., Texas Municipal Law and Procedure Manual, 5th edition, p. 5-5. 60. Op. Tex. Atty Gen. Nos. O-2145 (1940); O-1716 (1939). 61. Op. Tex. Atty Gen. Nos. DM-207 (1993); JM-584 (1986). 62. Tex. Atty Gen. LO 94-028 (1994), Op. Tex. Atty Gen. No. JM-903 (1988). 63. TEX. GOVT CODE ANN. 551.125 (Vernon 2004). 64. Op. Tex. Atty Gen. No. JC-352 (2001). 65. Id. at 4. 66. TEX. GOVT CODE ANN. 551.127 (Vernon 2004). 67. Id. 551.128. 68. Op. Tex. Atty Gen. Nos. JC-169 (2000); H-188 (1973). 69. Op. Tex. Atty Gen. No. JC-169 (2000); Tex. Atty Gen. LO 96-111 (1996). 70. Op. Tex. Atty Gen. Nos. JC-169 (2000); H-188 (1973). 71. Op. Tex. Atty Gen. No. JC-169 (2000); Tex, Atty Gen. LO 96-111 (1996). 72. Op. Tex. Atty Gen. Nos. DM-473 (1998); H-188 (1973). 73. Id. 74. Tex. Atty Gen. LO 96-111 (1996); Op. Tex. Atty Gen. No. H-188 (1973). 75. TEX. GOVT CODE ANN. 551.021(a) (Vernon 2004). 76. Id. 551.021(b).
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77. Id. 551.022 ; see also Atty Gen. ORD-225 (tapes of meetings used to assist in writing minutes are open records). 78. TEX. GOVT CODE ANN. 551.023 (Vernon 2004). 79. See generally Subchapter D of the Act; see also notes below for particular statutory references. 80. TEX. GOVT CODE ANN. 418.183(f) (Vernon 2005). There may be rare instances where another exception in Subchapter D of the Act would apply to a local entity. 81. TEX. GOVT CODE ANN. 551.074 (Vernon 2004). 82. Id. 551.102. 83. Op. Tex. Atty Gen. No. DM-149 (1992). 84. Swate v. Medina Cmty. Hosp., 966 S.W.2d 693, 699 (Tex. App. San Antonio, pet. denied); Op. Tex. Atty Gen. No. MW-129 (1980). 85. Gardner v. Herring, 21 S.W.3d 767, 777 (Tex. App. Amarillo 2000, no pet.); Op. Tex. Atty Gen. No. H-496 (1975). 86. See City of San Antonio, 820 S.W.2d 762 (Act does not raise due process implications; individual notice is not required). 87. See, e.g., Point Isabel, 797 S.W.2d 176. 88. See Mayes, 922 S.W.2d 200. 89. City of San Antonio, 820 S.W.2d 762 (Act does not raise due process implications; individual notice is not required); Rettberg v. Texas Department of Health, 873 S.W.2d 408 (Tex. App. Austin 1994, no writ) (state agency executive secretary not entitled to individual notice); Stockdale v. Meno, 867 S.W.2d 123 (Tex.App. Austin 1993, writ denied) (teacher not entitled to individual notice). 90. E.g., TEX. LOC. GOVT CODE ANN 22.077 (Vernon 1999)(hearing for removal of certain municipal officers in type A city). 91. Op. Tex. Atty Gen. No. JM-6 (1983). 92. TEX. GOVT CODE ANN. 551.074 (Vernon 2004). 93. Op. Tex. Atty Gen. No. JM-1191 (1990). 94. Op. Tex. Atty Gen. No. JM-100 (1983); see Op. Tex. Atty Gen. No. JM-238 (1984) (governing body may admit to executive session persons aligned with governing body and necessary to governing bodys full communication with its attorney) (modified by Op. Tex. Atty Gen. No. JC506 (2002) to require in addition that presence of person must not waive attorney-client privilege if person is admitted under attorney consultation exception). 95. Op. Tex. Atty Gen. No. JM-100 (1983) at 2. 96. TEX. GOVT CODE ANN. 551.129 (Vernon 2004). 97. Op. Tex. Atty Gen. No. JC-233 (2000) at 3. See Finlan v. City of Dallas, 888 F. Supp. 779, 782 n.9 (N.D. Tex. 1995). 98. TEX. GOVT CODE ANN. 551.072 (Vernon 2004). 99. Op. Tex. Atty Gen. No. MW-417 (1981). 100. TEX. GOVT CODE ANN. 551.076 (Vernon 2004).
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101. Id. 551.073. 102. Id. 551.088. 103. Id. 551.086. 104. Id. 551.087. 105. See Bexar Water Dist., 2 S.W.3d at 462. 106. Op. Tex. Atty Gen. No. GA-16 (2003) at 6. 107. TEX. GOVT CODE ANN. 551.002 (Vernon 2004). 108. Shackelford v. City of Abilene, 585 S.W.2d 665 (Tex. 1979); TEX. GOVT CODE ANN. 551.004 (Vernon 2004). 109. See generally TEX. GOVT CODE ANN. 551.041, 551.043, 551.050 (Vernon 2004). 110. Op. Tex. Atty Gen. No. JC-57 (1999) at 5. 111. Op. Tex. Atty Gen. No. JC-57 (1999). 112. See generally TEX. GOVT CODE ANN. 551.041, 551.043, 551.050 (Vernon 2004). 113. Op. Tex. Atty Gen. No. JC-57 (1999) at 5. 114. TEX. GOVT CODE ANN. 551.101 (Vernon 2004); see Lone Star Greyhound Park v. Texas Racing Commission, 863 S.W.2d 742, 747-48 (Tex. App. Austin 1993, writ denied) (presiding officers announcement of content of applicable section, but not section number, gives sufficient notice). 115. TEX. GOVT CODE ANN. 551.103 (Vernon 2004). 116. Id. 551.102. 117. Op. Tex. Atty Gen. No. JC-285 (2000); TEX. GOVT CODE ANN. 551.101 (Vernon 2004); see also id. 551.0411(a) (Vernon Supp 2005). 118. TEX. GOVT CODE ANN. 551.144 (Vernon 2004). 119. Op. Tex. Atty Gen. No. JC-375 (2001). 120. See Op. Tex. Atty Gen. Nos. JC-506 (2002), JC-375 (2001), JM-238 (1984). 121. Op. Tex. Atty Gen. No. JC-506 (2002). 122. Id. 123. Op. Tex. Atty Gen. No. MW-417 (1981). 124. See Finlan, 888 F.Supp. at 787. 125. Op. Tex. Atty Gen. No. JM-1004 (1989). 126. See Op. Tex. Atty Gen. No. JM-6 (1983) & LO 97-017 (1997); but see Op. Tex. Atty Gen. No. JC-506 (2002) (test for admitting persons when invoking attorney consultation exception). 127. See TEX. LOC. GOVT CODE ANN. 22.073 (Vernon 1999)(requires city secretary in Type A city to attend all meetings and keep required minutes). 128. Op. Tex. Atty Gen. No. JM-6 (1983). 129. Op. Tex. Atty Gen. No. GA-277 (2004). 130. Op. Tex. Atty Gen. No. JC-375 (2001).
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131. Board of Trustees v. Cox Enterprises, 679 S.W.2d 86, 89 (Tex. App. Texarkana 1984), affd in part, revd in part on other grounds, 706 S.W.2d 956 (Tex. 1986); Nash v. Civil Service Commission, 864 S.W.2d 163, 166 (Tex.App. Tyler 1993, no writ). 132. Board of Trustees v. Cox Enterprises. 133. TEX. GOVT CODE ANN. 551.102 (Vernon 2004); Nash, 864 S.W.2d at 166. 134. TEX. GOVT CODE ANN. 551.103(a) (Vernon 2004). 135. Id. 551.103(c)(1). 136. Op. Tex. Atty Gen. No. JM-840 (1988) at 4-7. 137. TEX. GOVT CODE ANN. 551.103(c)(2)(Vernon 2004). 138. Id. 551.103 (b). 139. Id. 551.145. 140. Id. 551.104, 551.146. 141. Id. 142. Zamora v. Edgewood I.S.D., 592 S.W.2d 649 (Tex. Civ. App. Beaumont 1979, writ refd n.r.e.); Op. Tex. Atty Gen. No. JM-351 (1985) at 2. 143. See Op. Tex. Atty Gen. No. DM-227 (1993);Tex. Atty Gen. LO 98-033 (1998). 144. Tex. Atty Gen. LO 98-033 (1998). 145. Op. Tex. Atty Gen. No. JC-120 (1999). 146. TEX. GOVT CODE ANN. 551.104 (Vernon 2004). 147. Op. Tex. Atty Gen. No. GA-277 (2004). 148. Op. Tex. Atty Gen. No. JM-1071 (1989). 149. TEX. GOVT CODE ANN. 551.104, 551.146 (Vernon 2004). 150. See also Op. Tex. Atty Gen. No. MW-563 (1980) at 5 (city ordinance attempting to prohibit public discussion of the contents of an executive session may raise First Amendment concerns but does not violate the Public Information Act). 151. See Tex. Atty Gen. ORD-605 (1992), ORD-485 (1987), ORD-491 (1988). 152. See Tex. Atty Gen. ORD-145 (1976), ORD-116 (1975), ORD-77 (1975). 153. See, e.g., Tex. Atty Gen. ORD-635 (1995). 154. See, e.g., Tex. Atty Gen. ORD-225 (1979); Op. Tex. Atty Gen. No. JM-1143 (1990). 155. See, e.g., Tex. Atty Gen. ORD-462 (1987), ORD-574 (1990) (inter-agency and intra-agency written memoranda containing advice, recommendations and opinion can be withheld), ORD-635. 156. TEX. GOVT CODE ANN. 551.045 (Vernon 2004). 157. Op. Tex. Atty Gen. No. JM-985 (1988). 158. See River Rd., 720 S.W.2d at 557-58. 159. TEX. GOVT CODE ANN. 551.045 (Vernon 2004). 160. Piazza v. City of Granger, 909 S.W.2d 529 (Tex. App. Austin 1995, no writ).
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161. TEX. GOVT CODE ANN. 551.047 (Vernon 2004). 162. McConnell v. Alamo Heights Independent School District, 576 S.W.2d 470 (Tex. Civ. App. San Antonio 1978, writ refd n.r.e.) (media not entitled to notice unless they request it). 163. TEX. GOVT CODE ANN. 551.142(a) (Vernon 2004). 164. See City of Port Isabel v. Pinnell, 161 S.W.3d 233, 241 (Tex. App.Corpus Christi 2005, no pet.). 165. See, e.g., Forney Messenger, Inc. v. Tennon, 959 F. Supp. 389 (N.D. Texas 1997) (injunctive relief available for violations of Act), & Board of Trustees v. Cox Enterprises (declaratory judgment available for violations of Act). 166. TEX. GOVT CODE ANN. 551.141 (Vernon 2004). 167. Ferris v. Board of Chiropractic Examiners, 808 S.W.2d 514 (Tex. App. Austin 1991, writ denied). 168. TEX. GOVT CODE ANN. 551.142(b) (Vernon 2004). 169. Id. 551.146. 170. Id. 551.141; see Point Isabel (actions violating notice provisions voidable). 171. Collin County v. Homeowners Association, 716 F. Supp. 953, 960 n.12 (N.D. Tex. 1989). 172. Lower Colorado River Authority v. City of San Marcos, 523 S.W. 2d 641 (Tex. 1975) (increase in electric rates effective only from date re-authorized at lawful meeting). 173. Ferris. 174. TEX. GOVT CODE ANN. 551.144 (Vernon 2004). 175. Tovar v. State, 978 S.W. 2d 584 (Tex. Crim. App. 1998). 176. TEX. GOVT CODE ANN. 551.144 (c) (Vernon 2004). 177. Id. 551.143. 178. Id. 551.145. 179. TEX. PEN. CODE ANN. 12.23 (Vernon 2003). 180. TEX. GOVT CODE ANN. 551.146 (Vernon 2004). 181. TEX. PEN. CODE ANN. 12.22 (Vernon 2003). 182. Tovar. 183. TEX. GOVT CODE ANN. 551.144 (c) (Vernon 2004). 184. Op. Tex. Atty Gen. No. JC-0307 (2000). 185. TEX. GOVT CODE ANN. 402.041 - 402.045 (Vernon 2005). 186. Op. Tex. Atty Gen. No. DM-95 (1992). 187. Op. Tex. Atty Gen. Nos. JM-840 (1988); H-772 (1976). 188. Op. Tex. Atty Gen. No. JC-294 (2000). 189. TEX. GOVT CODE ANN. 551.005 (Vernon Supp. 2005)(as added by Tex. S.B. 286, 79th Leg. R.S. (2005)).
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texas public information act
made easy
ZINDIA THOMAS COUNTY AFFAIRS SECTION OFFICE OF THE ATTORNEY GENERAL
Answers to the most frequently asked questions about the Texas Public Information Act
(512)463-2060
JULIAN GRANT MUNICIPAL AFFAIRS SECTION OFFICE OF THE ATTORNEY GENERAL
(512)475-4683
Texas Public Information Act Made Easy

After each legislative year, the Attorney Generals Office has produced this publication that addresses certain key issues that public officials face in their day-to-day operations.1 In a questionand-answer format, this article will provide guidance to public officials on the most frequently asked questions on the Texas Public Information Act. For example, the article addresses the types of records and entities that fall under the Act, the time deadlines and mandatory notices that apply when a governmental body handles an open records request, and when a governmental body is required to ask for an Attorney General open record ruling. The stakes are high for public officials that handle open record requests. There are strict time lines for making determinations on what records to release and public officials must make such decisions knowing that there are potential criminal penalties if the governmental body releases information that is considered confidential under state law. Similarly, public officers face criminal penalties if they refuse to release information that is considered open to the public. This made easy article provides answers in easy to understand language to the most frequently asked questions regarding the Public Information Act. The Act does apply to a variety of governmental entities, so although this information is geared towards the Acts application to local public bodies, it will be useful to other officials and Texas citizens as well.
Index to Frequently Asked Public Information Questions/Answers

I. Application of the Public Information Act
Types of Information Generally Subject to the Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Types of Entities Generally Subject to the Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application of the Act to Nonprofit and Other Private Entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application of the Act to Records Held by Consultants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Applicable Law on the Release of Court Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elected Officials Right of Access to Governmental Body Records . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 1 2 2 2
II.
What Constitutes an Open Records Request

To whom Must Public Give Open Records Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Duty to Respond to E-mailed or Faxed Requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Duty to Respond to Verbal Requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
III.
Administration of Open Records Requests Timing Issues Under the Public Information Act
Time That a Governmental Body Generally has to Comply with Open Records Request . . . . . . . When Does a Governmental Body Have a Time Deadline for Handling Open Records Request . Duty when Information Requested is Unclear or Scope is Unduly Broad . . . . . . . . . . . . . . . . . . . . Duty to Ask for an Open Records Ruling to Withhold Information . . . . . . . . . . . . . . . . . . . . . . . . . . Inability to Request AG Decision on Information not Subject to Exception . . . . . . . . . . . . . . . . . . Ability to Withhold Because of Previous Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Information That Must Be Provided to AG with Request to Withhold Information . . . . . . . . . . . . Time Period for Attorney General to Respond to Ruling Request . . . . . . . . . . . . . . . . . . . . . . . . . . Voluminous Requests and Inability to Seek Longer Time to Request AG Opinion . . . . . . . . . . . . Inability to Request a Reconsideration of Ruling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 4 6 6 7 7 7 8 8 9
Rights and Duties of the Governmental Body and of the Open Records Requestor
Duty to Post Information About the Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 What Inquiries Can Be Made of Requestor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Does the Name and Address of Requestor Become Public Information . . . . . . . . . . . . . . . . . . . 10 Right of Requestor to Choose Format of Requested Information . . . . . . . . . . . . . . . . . . . . . . . . . 10 No Duty to Create Record if None Exists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 No Duty to Comply with Standing Requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 No Duty to Compile Statistics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Limited Duty to Locate Information Not Retrievable by the Info. Requested . . . . . . . . . . . . . . . . 11 No Duty to Buy New Software or Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Whether Requestors May Use Public Equipment to Access Public Information . . . . . . . . . . . . . 11 Whether Requestors May Bring Personal Copier to Make Copies . . . . . . . . . . . . . . . . . . . . . . . . . 11 Whether Requestors May Require Governmental Body to Copy Records onto Requestors Supplies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Limited Duty to Release Information That is Also Available Commercially . . . . . . . . . . . . . . . . . 12 Application of Public Information Act to Copyrighted Information . . . . . . . . . . . . . . . . . . . . . . . . 12 Limited Duty to Respond to Repeated Requests for the Same Information . . . . . . . . . . . . . . . . 12
IV.
Statutory Exceptions That Allow Information To Be Withheld Information Which is Presumed Public
List of Items Presumed Public Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Discretionary Exceptions Effect on Public Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Other Laws Allowing the Withholding of Public Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
General Issues Regarding Confidential Records

No Complete List of Confidential Items Under the Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Inability to Promise Confidentiality of Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Limited Ability to Provide Substitute or Redacted Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Information about Public Officials/Employees

Employee/Official Home Address, Phone, Social Security Number, or Family Info . . . . . . . . . . Ability to Withhold Social Security Numbers Without Asking for AG Ruling . . . . . . . . . . . . . . . . Limited Ability to Withhold Personal Notes Taken by Public Officials . . . . . . . . . . . . . . . . . . . . . Protected E-mail Addresses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 15 15 15
General Exceptions That May Permit Withholding Records

Limited Protection of Intra- and Inter-agency Memo or Letter . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Personnel Information
What Personnel Information is Generally Confidential . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Limited Special Right of Access by Employee to Own Personnel File . . . . . . . . . . . . . . . . . . . . . . 16
Law Enforcement Information

What Law Enforcement Information Generally May Be Withheld . . . . . . . . . . . . . . . . . . . . . . . . . 16 Requirements for Disclosure of Motor Vehicle Accident Report . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Purchasing / Public Works Information

Limited Ability to Use the Competitive Bidding Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Real or Personal Property Acquisition Exception: What Can be Withheld . . . . . . . . . . . . . . . . . . 18 Trade Secret or Commercial Information Exception: What Can Be Withheld . . . . . . . . . . . . . . . 18
Economic Development Information

Economic Development Negotiation Exception: What Can Be Withheld . . . . . . . . . . . . . . . . . . . 19
Litigation or Other Legal Information

Attorney/Client Privilege Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Pending or Anticipated Litigation Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
V.
Ability to Recover Costs for Providing Copies of Open Records

Amount May Charge for Providing Copies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Limited Ability to Recover Labor Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recovery of Cost to Retrieve Materials from Remote Locations . . . . . . . . . . . . . . . . . . . . . . . . . . When and How Much May Charge for Overhead . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ability to Charge Costs for Modifications to Computer Programs . . . . . . . . . . . . . . . . . . . . . . . . . Ability to Require Payment of Costs Prior to Providing Documents by Mail . . . . . . . . . . . . . . . . . Duty to Provide Requestor an Estimate When Charges are Likely to Exceed Forty Dollars . . . . Requiring a Monetary Deposit from Open Records Requestor . . . . . . . . . . . . . . . . . . . . . . . . . . . Ability to Reduce or Waive Costs for Providing Copies of Open Records . . . . . . . . . . . . . . . . . . . 20 21 21 21 21 22 22 22 23
VI.
Enforcement of the Public Information Act

Ability to Sue for Failure to Comply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Civil Remedies for Failure to Comply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Criminal Penalties for Failure to Comply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
VII. Additional Information on the Public Information Act

Training Requirement for Public Officials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 More Information Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ENDNOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
I.
Application of the Public Information Act
What types of information generally fall under the Public Information Act? Public information includes any information that is collected, assembled, or maintained by or for a governmental entity. The Public Information Act (hereinafter The Act) applies to records regardless of their format. It includes information that is maintained in paper, tape, microfilm, video, electronic data held in a computer memory, as well as other mediums specified under law.2 What types of entities are subject to the Public Information Act? The Act applies to information that is held by or for any governmental body.3 The term governmental body has a broad definition that includes, in applicable part: 1. City governmental bodies; 2. County governmental bodies; 3. Deliberative bodies that have rule-making or quasi-judicial power and that are classified as a department, agency, or political subdivision of a city or county; 4. The part, section or portion of a public or private entity that spends or that is supported in whole or in part by public funds; 5. Local workforce development board; 6. Non-profit corporations that are eligible to receive funds under the federal community services block grant program and that are authorized by this state to serve a geographic area of the state; 7. Certain property owners associations.4 In other words, governmental entities and certain non-governmental entities are subject to the Act. Additionally, entities that are considered departments, agencies, or political subdivisions of a city or county are also subject to the Act if the involved entity has rule-making or quasi-judicial powers.5 For example, zoning boards of adjustment have rule-making or quasi-judicial powers and are considered agencies or departments of a city. Therefore, the records of such entities would be subject to the Act. Are the records of nonprofit and for-profit entities that receive public funds subject to the Public Information Act? Records in the hands of non-governmental entities may also be covered by the Act to the extent that they reflect the expenditure or support of public funds, or to the extent that a governmental body has a right of access to the records. For example, when governmental bodies make unrestricted grants of funds to nonprofit and for-profit entities, the records relating to the part of the entity that is publicly funded would be subject to the Act.6
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Rulings in this regard have held that the records of volunteer fire departments and records of certain chambers of commerce that involve expenditures of public funds are subject to the Public Information Act. However, the portion of the entity that is not supported by public funds is not necessarily subject to the Act. Finally, it should be noted that certain entities are specifically made subject to the open records laws under the state law that governs that entity. For example, economic development corporations are specifically made subject to the provisions of the Public Information Act under the Development Corporation Act of 1979 found in Texas Revised Civil Statutes Article 5190.6. Are records that are kept or owned by a consultant to the governmental body subject to the Public Information Act? The fact that a private entity may own or retain a record does not prevent the record from being subject to release under the Public Information Act. For example, if a consultant maintains or holds records for a governmental body, the documents are still considered public information if the governmental body owns the information or has a right of access to it.7 It is important to note that a governmental body usually cannot contract away its right to access documents that are held by a consultant if the information would otherwise be considered public. For example, an open record decision has held that a city manager could not contract away the citys right to inspect a list of applicants for a city job even though the list was developed by a private consultant for the city.8 Are court records subject to the Public Information Act? Records of the judiciary are not subject to the Public Information Act.9 Courts must look to the rules adopted by the Texas Supreme Court to determine the courts duty to provide access to court records.10 Additionally, courts must consider court rulings, Attorney General opinions, and certain state statutes that give the public a right to obtain copies of court records. For example, higher courts have held that there is an open courts concept that must guide judges in giving public access to court documents. This legal concept provides that the public has a right to inspect and copy judicial records subject to the courts inherent power to control access to such records to preserve justice. In other words, the publics right of access to court documents is not an absolute right.11 It should be noted that the publics right to access court records is in addition to the right of parties to a lawsuit to obtain information through discovery or through other court procedures. Legislation has clarified that subpoenas and motions for discovery are not considered a request for information under the Public Information Act.12 Such requests should be handled as required by the applicable civil or criminal procedural statutes. Additionally, state law indicates that probable cause affidavits for a search warrant are considered public records once the warrant has been executed. The magistrate who issued the warrant must make the affidavits available for public inspection in the court clerks office.13 Do the elected officials of the governmental body have a special right of access to the governmental bodys records? The elected officials have an inherent right of access to the governmental bodys records if the official is requesting the records in his/her official capacity. The transfer of information to officials
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of the governmental body is not considered a release to the public as long as the official is asking for the information in his official capacity.14 However, the ability to release such information to elected officials may be limited by the state or federal law that pertains to such documents.
II.
What Constitutes an Open Records Request
Must an open records request be directed to a specific governmental officer? Except in the case of faxed and e-mailed requests, the Public Information Act does not require that the public direct its open records requests to any specific public employee or officer.15 Generally, the deadlines involved in handling an open records request are not tolled merely because the wrong staff member received the request. For this reason, it is important that a governmental body clearly inform all of its employees what to do if they receive a request for records. What is the governmental bodys duty to respond to e-mailed or faxed requests for copies of records? The governmental body has a duty to respond to any written requests for open records including those that are made through e-mail or by fax. However, state law provides that the governmental body can designate a person that is authorized to receive e-mail or faxed requests for open records. If the governmental body makes such a designation, the Act is only activated if the e-mail or faxed request is directed to the assigned individual.16 If the governmental body has not made such a designation, the e-mail or faxed request can be directed to any official or staff member. Must a governmental body respond to verbal requests for copies of records? The Act is only activated by a written request for information.17 Governmental bodies often develop forms for the public to use to request public records, but the governmental body cannot require the requestor to use that form. The governmental bodys duty to provide the record would apply to any written request for the information, regardless of the format of the document used by the requestor. For example, an open records request is often contained within a complaint letter or within other citizen correspondence sent to a governmental body. If a governmental body provides copies of records upon a verbal request, the governmental body must be consistent in its treatment of all requestors. In other words, if the governmental body doesnt require a written request from certain individuals, it should not insist on a written request from others.
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III. Administration of Open Records Requests

Timing Issues Under the Public Information Act
How much time does a governmental body generally have to comply with an open records request? There is often a misconception that the Public Information Act requires that copies of public information must be produced within 10 business days of the written request to the governmental body for the record. However, the standard under the Act is actually that the governmental body must promptly produce the public information.18 Further, the Act states that all open records requests must be handled with good faith and must be accomplished within a reasonable time period.19 What is considered reasonable and prompt will vary depending on the number of documents sought by the requestor. In certain circumstances, the records can be produced in less than 10 days. However, requests for a substantial number of documents may take several weeks to produce. If it will take a governmental body longer than 10 business days to provide the records, the governmental body must certify that fact in writing to the requestor. In the notice to the requestor, the governmental body must indicate a set date and hour within a reasonable time that the information will be available for inspection or duplication.20 When does a governmental body have a time deadline for handling an open records request? The amount of time that governmental bodies have to produce copies of governmental records will vary depending on the amount of information that is requested. However, there are six situations that present a timing deadline for governmental bodies to take a particular action when handling an open records request. These six situations are described below: 1. Notice to Requestor that Governmental Body Needs Additional Time to Produce Records. If the governmental body is unable to produce a requested record within 10 business days for inspection or for duplication, the governmental body must certify that fact in writing to the requestor and set a date and hour within a reasonable time that the information will be available for inspection or for duplication.21 2. Notice to Requestor that Governmental Body Needs Additional Time to Produce Records That Are in Active Use or in Storage. If the governmental body needs additional time to produce a record because it is in active use or because it is in storage, the governmental body must notify the requestor of this fact in writing. This notice must be given within 10 business days of the governmental bodys receipt of the request for the documents. The notice must set a date and hour within a reasonable time that the information will be available for inspection or duplication.22 It should be noted that the fact that a document has not been formally approved by the governmental body usually would not justify a delay of the documents release under the active use provision.23
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3. Notice to Requestor of Programming or Manipulation Costs. If production of the requested information in a particular format would require additional computer programming or manipulation of data, the governmental body must provide a written notice of this fact to the requestor. The notice must indicate: (1) that the information is not available in the requested format; (2) a description of the forms in which the information is available; (3) a description of any contract or services that would be required to provide the information in the requested form; (4) an estimated cost of providing the information in the requested form; and (5) the time that it would take to provide the information in that format.24 Generally, this notice must be provided to the requestor within 20 days of the governmental bodys receipt of the request.25 4. Request by Governmental Body for an Open Record Ruling from the Attorney General. If a governmental body plans to withhold certain documents or information, it usually must request an Attorney Generals ruling on the ability to withhold such information.26 The written request for an Attorney Generals ruling must be made within 10 business days after the date the governmental body receives the written request for information.27 However, the ten-day deadline is tolled during the time that the governmental body and the requestor are actively clarifying or narrowing the scope of the information requested.28 5. Notice to Requestor that Governmental Body Sought an Attorney General Open Record Ruling. The city must give written notice to a requestor if the governmental body seeks an Attorney General open record ruling on the request. This notice must be given within 10 business days of the governmental bodys receipt of the request for the documents. Also, the governmental body must send a copy of their written comments to the requestor.29 If the written comments contain any information that the governmental body is trying to withhold, they can redact that information from the copy they send to the requestor. 6. Notice to Person or Entity with Proprietary Interest in Information of Attorney General Open Record Ruling Request. If an open records request may result in the release of proprietary information, the governmental body must make a good faith attempt to notify the person or entity that has such an interest in the open record ruling request. The written notice must be sent by the governmental body within 10 business days of the date the governmental body received the original request for the information.30 This notice must include: (1) a copy of the written request for the information; and (2) a statement that the person is entitled to submit a letter, brief, or memorandum to the Attorney General in support of withholding the information. The notice must inform the person that any briefing must include each reason why the person believes the information should be withheld. The person with a proprietary interest must submit their brief within 10 business days of the date the person receives the written notice from the governmental body.31 Also, the person who submits a brief to withhold the information, must provide a copy of their brief to the requestor.32
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What can a governmental body do if it is unclear about what information is being requested or that the scope of the information is unduly broad? If a governmental body in good faith has determined that the request for information is unclear or that the scope of the information being asked for is unduly broad, the governmental body should ask the requestor to clarify or narrow the scope of the request.33 The time used in clarifying or narrowing the scope of a request does not count as part of the governmental bodys statutory allotment of 10 business days to request an open records decision.34 The Texas Attorney General has concluded that the Public Information Act allows a tolling of the statutory 10 business days during the interval in which the governmental body and a requestor is communicating in good faith to clarify or narrow a request. However, this does not give the governmental body an additional 10 full business days from the date the requestor responds to the request for clarity. Once the requestors clarification or narrowing response is received, the original 10 business days resumes.35 For example, the governmental body receives a request on May 1st. Its 10 business days start on May 2nd. The governmental body is not clear about what the requestor is asking for and, in good faith, sends a clarification letter on May 3rd (2nd business day) to the requestor. On May 8th, the governmental body receives clarification from the requestor. The governmental bodys 10 business days would start back up on May 9th (3rd business day). When is a governmental body required to ask for an open records ruling from the Attorney General? A governmental body is required to ask the Attorney General for an open record ruling in almost all cases if the governmental body wants to withhold requested documents or information.36 The fact that a particular document request may arguably fall within one of the statutory exceptions to disclosure does not in itself eliminate the need to ask for an open records ruling. Unless, the governmental body can point to a previous determination that addresses the exact information that the governmental body now wants to withhold, the governmental body must request a ruling to withhold the information.37 A request for an Attorney General open records ruling must be made within 10 business days of the date the governmental body received the written request. Such a request can only be made by the governmental body.38 If the governmental body does not make such a request within the deadline, the information is presumed as a matter of law to be open to the public and the information must be released. The presumption of openness and the duty to release the information can only be overcome by a compelling reasoning that the information should not be released.39 A compelling reasoning may in certain cases involve a showing that the information is deemed confidential by some other source of law or that third-party interests are at stake.40 It should be noted that if the governmental body is going to release all of the requested information, there is no need to ask for a ruling. The governmental body can seek advice on any of these issues from the Attorney Generals Open Government Hotline at (877) 673-6839 or (512) 478-6736.
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Can a governmental body request an Attorney General decision when the governmental body has determined the requested information is not subject to one of the Acts exceptions? The Texas Attorney General has concluded a governmental body may not request an open records decision from the Attorney General if the governmental body reasonably believes the requested information is not excepted from required disclosure. Instead, the governmental body must promptly produce the requested public information to the requestor.41 Can a governmental body withhold information because of a previous determination? The Public Information Act provides that a governmental body must request an Attorney General open records ruling if the governmental body wishes to withhold requested information unless there has been a previous determination about that particular information.42 The Act does not define previous determination. However, the Attorney General has concluded there are two types of previous determinations.43 If you have any questions regarding whether your governmental body has a previous determination, you should contact the Open Government Hotline at (877) 673-6839 or (512) 478-6736. What must the governmental body do when it requests an Attorney General open records ruling? If a governmental body wants to withhold a record, it has 10 business days from the date it receives the request to ask for an open records ruling from the Attorney General. On the tenth business day, the governmental body must do the following44: 1. Write the attorney general requesting an open records decision and state which exceptions apply to the requested information: The original request for a ruling must indicate the specific exception that the governmental body is relying on to withhold the information. If the governmental body fails to cite the applicable exceptions in this request, the governmental body will generally be barred from raising them in any additional briefing that it may provide. 2. Provide the requestor with a written statement that the governmental body wishes to withhold the information and that it has asked the attorney general for a decision. 3. Provide the requestor with a copy of the governmental bodys correspondence to the attorney general. 4. Make a good faith attempt to notify any affected third parties of the request. The governmental body has an additional five business days (a total of fifteen business days from the date the governmental body received the original request for the record) to provide the Attorney General with a signed statement that indicates when the governmental body received the request, or other evidence that establishes that date.45 During the additional five business days, the governmental body may also provide additional written documentation that supports withholding the requested information. By the fifteenth business day, the governmental body must: 1. Write the attorney general and explain how the claimed exceptions apply.
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2. Provide a copy of the written request for information to the attorney general. 3. Provide a signed statement or evidence sufficient to establish the date the request for information was received: It is important to note that the initial deadline for requesting an Attorney General open records ruling is put on hold during the time the governmental body and the requestor are actively discussing the scope of the information requested.46 If the governmental body contends that the 10 business-day deadline has been tolled while the governmental body and the requestor have been narrowing or clarifying the request, the governmental body must explain this fact in its request for an open records ruling. Along with tolling, the governmental body must explain if there were holidays, natural disasters, and any other days when the governmental body was officially closed. In its explanation, the governmental body should include all dates relevant to the calculation of the 10 business-day deadline. 4. Provide copies of documents requested or a representative sample of the documents to the attorney general: The documents must be labeled to show which exceptions apply to which parts of the documents. Representative samples are not appropriate when each document sought to be withheld contains substantially different information or when third-party proprietary information is at issue. 5. Provide the requestor with a copy of the written comments submitted to the attorney general: This does not mean that the governmental body has to send the requestor a copy of the information that you are trying to withhold. The governmental body must send copy of its comments. If there is information contained in the comments that the governmental body is trying to withhold, the governmental body can redact that information.47 The Attorney General may also ask the governmental body for additional information. The governmental body must respond to an Attorney Generals request of additional information within seven calendar days.48 If the governmental body fails to respond, the information is presumed to be open and must be released unless there is a compelling reason to withhold the information.49 How long does the Attorney General have to respond to a request for an open records ruling? The Attorney General has 45 working days from the date the request was received from the governmental body. However, if the Attorney General is unable to issue the decision within the 45day period, the Attorney General may extend the time to respond for an additional 10 working days. Such an extension may only be taken if the Attorney General notifies the governmental body and the requestor of the reason for the delay. This notification must take place within the original 45-day time period.50 Can a governmental body take longer than 15 business days to determine whether the requested information is confidential if the request is for an excessive amount of information? There is no statutory provision that provides the governmental body with an extension of time to seek an open records ruling from the Attorney Generals office. Even if the request is for an
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excessive amount of information, the governmental body must still meet the 15 business-day deadline for making an open records ruling request to the Attorney General. As noted earlier, this request must include the legal arguments that support withholding the information, a marked-up representative sample of the requested information (marked to show which legal arguments apply to what portion of the sample documents), a copy of the open records request, and a signed statement or other evidence of when the governmental body received the request.51 May a governmental body seek a reconsideration of an open records ruling that was issued by the Attorney General? If the Attorney General or a court has already ruled that the exact information that is at issue in a particular request is open to the public, the governmental body must release the information and is prohibited from seeking a reconsideration of that issue from the Attorney General.52 If the governmental body wants to challenge the ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days.53
Rights and Duties of the Governmental Body and the Open Records Requestor
Is a governmental body required to post information regarding the Public Information Act? A governmental bodys public information officer is responsible for posting a sign which informs the public about its right to access public information.54 The sign must be displayed in the governmental bodys administrative offices. The Attorney Generals Office is responsible for determining what specific information must be displayed on the sign. For more information, a governmental body may contact the Open Government Hotline at (512) 478-6736 or (877) 673-6839 or our website, www.oag.state.tx.us. What inquiries can a governmental body make of an open records requestor? Generally, there are only two permissible lines of inquiry that can be made of a requestor. First, the governmental body can ask a requestor for proper identification, but may not inquire into the motives or use that a requestor may have for public information that has been requested.55 This inquiry for proper identification should be done if needed, but if the information can be given without any identification, then the inquiry is not necessary. This identification requirement is generally imposed by a governmental body when a state statute limits who may gain access to certain information (e.g., certain state statutes limit who can receive copies of ambulance run information). It should be noted that state law does not indicate how such identification could be accomplished if the request is completely handled through the mail, e-mail, or by fax. It should also be noted that certain statutes regulate who can gain access to information within motor vehicle records such as copies of drivers licenses. These statutes contain specific rules on what inquiries can be made to determine if the requestor is eligible to receive the information.56 If an open records request involves such information, the governmental body should visit with its local legal counsel regarding the applicable law. Second, a governmental body may ask the requestor for a clarification of what type of information is actually being requested. Often, an initial open records request may involve the production of more documents than the requestor intended. Similarly, many open records requests ask for
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information that is not kept by the governmental body in the requested format. In either case, the governmental body can ask the requestor whether a potential narrowing or variation of the request would meet the requestors needs.57 In this way, the governmental body can potentially save its resources and the requestor can avoid receiving unnecessary information. Does the name and address of an open records requestor become public information? In certain cases, an open records requestor can be required to provide identification, which may include his or her name or address.58 If the governmental body receives this information and it becomes part of a governmental record, there is no statutory provision that would except it from disclosure. Can a requestor choose the format (paper, computer disc, etc.) in which the governmental body must provide requested information? If the governmental body has the technological ability to produce the information in the requested format, it is usually required to do so. For example, if a requestor wants a copy of information on a computer floppy disc, he can ask that it be provided in that format. The governmental body cannot insist on providing the information in only a paper format if the governmental body has the ability to provide it in the requested format. However, the governmental body is not required to buy additional hardware or software to accommodate an open records request.59 Can an open records request require a governmental body to create a record if none exists? An open records request does not generally require the governmental body to produce information which is not in existence. If such information could be produced through a minimal computer search, the governmental body would be expected to make such an effort.60 However, such a request may be denied if it would require extensive research to create the information.61 In such cases, the governmental body should inform the requestor in writing of the existing formats in which the records are available and of any costs that may be applicable to gain the information in the requested format. Does a governmental body have to comply with standing requests for copies of records? A governmental body has no duty to comply with standing requests for copies of records.62 If a requestor seeks documents that are not in existence at the time of the request, the governmental body should notify the requestor of this fact and ask the requestor to resubmit the request at a later time when such a record may be available. The governmental body also has no duty to notify the requestor in the future that the information has come into existence.63 However, some governmental bodies have chosen to accommodate standing requests for certain records. Whether to enter into such agreements is at the governmental bodys discretion. Nonetheless, if such an arrangement is made, it should be available to any requestor on an equal basis. Can an open records request require the governmental body to compile statistics, perform research, or provide answers to questions? An open records request only requires a governmental body to provide copies of documents that relate to the information sought by the requestor. The Public Information Act does not require a
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governmental body to calculate statistics, to perform legal research, or to prepare answers to questions.64 Does an open records request require a governmental body to locate information that is not organized or retrievable by the type of information that is requested? Sometimes an open records request will ask for certain documents or information that is not organized or retrievable by the type of information that is requested. For example, a requestor could ask for a list of all of the out-of-state contractors that a governmental body had hired. However, it is unlikely that the governmental body would have its files or computer data organized by whether a contractors business was located inside or outside of the state. If the governmental body could provide this information by making a simple computer search or by some other basic task, it should make such an effort. However, if providing the information would require extensive research or considerable manipulation of data, the governmental body has no duty to take such action. Instead, the governmental body may notify the requestor of the format in which the information is currently available. Additionally, the notice must include a cost estimate for providing the information in the format that meets the requestors preferences.65 In the preceding example, the governmental body could offer to make available all governmental documents that involve government contractors. The requestor could then review the records to determine which contractor businesses were located outside of the state. Must a governmental body buy new software or equipment to accommodate a request for information in a certain format? A governmental body has no duty to purchase new software or hardware to accommodate an open records request.66 If the governmental body is unable with existing resources to provide the information in the requested format, the record should be provided in a paper format or in another medium that is acceptable to the requestor.67 In certain cases, a governmental body can provide the information in the requested format by manipulating the data within a computer system or by making a programming change that allows access to the information. If an open records request would require such manipulation of data or programming, the governmental body can notify the requestor of the applicable cost of putting the information together in that format and require the requestor to agree to pay the cost of production of the material.68 Can requestors insist on the right to personally use the governmental bodys equipment to access public information? The Texas Attorney General has concluded that a member of the public does not have the right to personally use a government computer terminal to search for public information.69 Instead, the governmental body may require that searches of public information be conducted by government personnel who then provide the requestor with access to or copies of the requested items. Of course, a governmental body may adopt a policy to allow the public to use their computer terminals to access information, but the public cannot demand that such a policy be implemented. Do requestors have a right to bring in their own copier to make copies of public records? A governmental body may refuse to allow the use of a requestors portable copier if such activity would: (1) be unreasonably disruptive, (2) cause a safety hazard, (3) interfere with others right to
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inspect and copy records, or (4) if the requested records contain confidential information that needs to be excised.70 Can requestors require the governmental body to copy information onto supplies provided by the requestor? The Texas Public Information Act specifically provides that a governmental body is not required to copy information onto material provided by an open records requestor. For example, a governmental body does not have to copy information onto paper or onto a computer disk that is provided by the requestor. Instead, the governmental body may choose to use its own materials.71 Does the governmental body have to release information that is also available commercially? Generally, a governmental body is not required to allow access to or to make a copy of information from a commercial book or publication that is in the governmental bodys possession. If the publication was purchased by the governmental body and it is still available commercially, the governmental body can alert requestors of this fact. However, a governmental body is under a duty to allow inspection of the commercial book or publication if portions of the publication are specifically made a part of, incorporated into, or referred to in a governmental body rule or policy.72 Does a governmental body have to release information that is copyrighted? If a request is made for documents that are copyrighted, the governmental body will have to provide access to those records, unless there is an applicable exception that would allow those records to be withheld. However, the governmental body is not required to make copies of copyrighted material for a requestor.73 Instead, the governmental body should provide the requestor access to the information; the requestor bears the duty of compliance with federal copyright law. Must a governmental body respond to repeated requests for the same information? If a governmental body has previously provided copies of certain information, the governmental body has no duty to provide the same information to the requestor again.74 Similarly, if a governmental body has previously made the information available and the requestor has not paid the costs associated with the prior request, the governmental body may respond to a second request for such documents by providing a special notice to the requestor.75 The governmental bodys public information officer or his agent must provide the requestor a letter or form which certifies that all or part of requested information was previously furnished to the requestor, or was made available upon payment of costs. Additionally, the certification must include: (1) a description of the information that was previously furnished or made available; (2) the date the governmental body received the previous request; (3) the date the governmental body previously furnished or made available the information to the requestor; (4) a statement that no further additions, deletions, or corrections have been made to that information; and (5) the name, title, and signature of the public information officer or his agent who is making the certification.76 A governmental body may not charge the requestor for the preparation of the certification.77 Of course, a governmental body may choose to provide the requested information, which makes providing a certification to the requestor unnecessary.78 It is important to note that a governmental body must furnish or make available upon payment of applicable charges any information that has not been previously supplied to the requestor.79
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IV. Statutory Exceptions That Allow Information To Be Withheld

Information Which is Presumed Public
Is there a list of items which are presumed to be public information? The Public Information Act lists 18 categories of information which are presumed to be public information. Texas Government Code section 552.022 (a) states that (w)ithout limiting the amount that is public information under this chapter, the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other laws. For example, completed reports80, public court record information81, and settlement agreements to which a governmental body is a party82 are just a few of the items that are presumed public. Is a discretionary exception considered other laws for the purpose of withholding information that is presumed public? Generally, information that falls within the 18 categories of information that is presumed public cannot be withheld under a discretionary exception in the Act. Discretionary exceptions are designed to protect the interests of the governmental body and are not considered other laws for purposes of section 552.022 of the Texas Government Code.83 Information that is presumed public can only be withheld if it is expressly confidential by law.84 However, there are two exceptions to this general rule. Sections 552.104 (Information Related to Competition or Bidding) was amended to allow a governmental body to withhold information under these sections even if the information falls within one of the categories of information listed in section 552.022(a).85 Are there other laws which may be relied upon to withhold information under section 552.022 of the Texas Government Code? The Texas Supreme Court has concluded the term other laws as it is used in section 552.022 of the Government Code does include the Texas Rules of Civil Procedure and Texas Rules of Evidence.86 Accordingly, the attorney-client privilege and work-product doctrine could be considered other laws for the purpose of withholding public information.87
General Issues Regarding Confidential Records

Is there a laundry list of items that are confidential under the Public Information Act and other state laws? At this time, there does not appear to be an entity that publishes a single, comprehensive list of all the types of information that are confidential under state law. A governmental body will want to review the Attorney Generals Public Information Handbook and consult closely with its attorney regarding what records that state or federal law specifically require to be withheld from the public.
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Can staff promise confidentiality for certain records that are provided to the governmental body? A promise of confidentiality from staff or a related promise within a governmental contract generally does not give the governmental body the right to withhold certain information from public disclosure. Such promises are only enforceable if a state statute specifically allows the governmental body to guarantee the confidentiality of the information.88 Can a governmental body substitute a new document or produce a redacted copy of a record in response to an open records request? The governmental body is required to make copies of the actual records that exist. If authorized by law, the city can cross through or otherwise excise the confidential information. However, a governmental body may not substitute a new document in which only the non-confidential information is presented, unless the requestor consents to the substitution.89
Information about Public Officials/Employees

Can a governmental body disclose a public official or public employees home address, home phone, social security number, or family information? Public employees may request that the governmental body not reveal their home address, home phone number, social security number, or information about family members. In fact, governmental bodies are required to ask each employee whether they want such information to be treated as confidential. This inquiry to each employee must be made within 14 days of the employee being hired, appointed, elected or ending service with the governmental body. If the employee indicates in writing a preference for such confidentiality, the governmental body must refuse to release the personal information.90 Although the governmental body is required to make this inquiry to employees at the time of their starting or leaving employment with the governmental body, the ultimate duty to make a written request for confidentiality rests with the employee. If the governmental body receives a request for this information and no confidentiality request has been filed by the employee, it is too late for the governmental body to ask the employee whether such confidentiality is preferred. In such a case, the governmental body would have to release the personal information to the requestor. However, if the employee makes a request for confidentiality afterwards, that request would be good for any future open records requests. It is important to note that a peace officer is not required to file a written request to keep his/her personal information confidential. A peace officers home address, home phone number, social security number, and any information about family members are all automatically confidential while employed by the governmental body.91 Additionally, the home address, home phone number, social security number, and any information about family members relating to a peace officer killed in the line of duty will remain confidential after his death.92
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Can a governmental body withhold social security numbers without requesting an Attorney General ruling? A governmental body can withhold the social security number of a living person from any information without requesting an Attorney General ruling.93 Governmental bodies must release the requestors social security number to the requestor or an authorized representative of the requestor. Are personal notes kept by an official subject to the Public Information Act? Personal notes that are made by an official are generally considered a public record. A governmental body should consider the following factors if it receives a request for such information: (1) who prepared the notes; (2) who possesses or controls the document; (3) who has access to it; (4) the nature of its contents; (4) whether the document is used in conducting the business of the governmental body; and (5) whether public funds were expended in creating or maintaining the document.94 Are e-mail addresses protected from disclosure under the Public Information Act? A governmental body cannot release the e-mail address of a member of the public that is provided for the purpose of communicating electronically with the governmental body. However, the member of the public can allow their e-mail address to be disclosed if the member of the public affirmatively consents to its release. Also, if the email address is provided to the governmental body either: 1) by a person who has a contractual relationship with the governmental body; 2) by a vendor who seeks a contract with the governmental body; 3) during the bidding process; or 4) to the governmental body on a letterhead, coversheet, printed document or other document made available to the public it is not excepted under section 552.137.95
General Exceptions That May Permit Withholding Records

What information is protected from disclosure under the exception for intra-agency and interagency memoranda or letters? The Public Information Act allows a governmental body, in limited circumstances, to withhold certain information that is contained in an inter-agency or intra-agency memorandum or letter.96 This exception has been held to only apply to internal staff communications consisting of advice, recommendations, or opinions that reflect the policymaking process.97 This exception does not apply, however, to purely factual information that could be severed from the opinion portions of the document. Additionally, this exception does not protect routine memoranda or letters on administrative and personnel matters, unless those matters involve policy issues of a broad scope.98 For example, the evaluation of an individual employee would probably not be protected from disclosure under this exception.99 On the other hand, a university report addressing systematic discrimination against minorities has been found to be protected by this exception.100 It should be noted that information created by outside consultants acting on the governmental bodys behalf may in certain cases be covered by this exception.101
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Personnel Information
What information within a public employees personnel file is an open record? The vast majority of information within a public employees personnel file is considered an open record and accessible to the public. For example, information about a public employees job performance, dismissal, demotion, promotion, resignation, and salary information are generally considered open.102 Similarly, job-related test scores of public employees or applicants for public employment are generally treated as open records,103 as are letters of recommendation, and opinions and recommendations concerning other routine personnel matters.104 However, Attorney General rulings have required information about an employees withholding information on a federal tax form to be withheld, as well as information about an employees beneficiary under governmental body life insurance programs. A governmental body may seek a ruling to withhold information under the personnel exception if its release would constitute an unwarranted invasion of the employees privacy.105 In making its determination whether information falls within the personnel exception, the Attorney General considers: 1. whether the information contains highly intimate or embarrassing facts about the person; and 2. whether there is any legitimate public interest in the release of or access to this information. Under the above two part-test, a court has held that a governmental body did not have to release the names and statements of victims and witnesses alleging sexual harassment.106 The court found that the information at issue was intimate or embarrassing and that the public had no legitimate interest in the release of that information. Do employees have a special right of access to information contained in their own personnel file? Most information within an employees personnel file can be accessed by the involved employee or the employees designated representative.107 However, a governmental body may withhold the employees personnel information from the employee under some exceptions. For example, under some circumstances, the governmental body may be able to refuse to release information to an employee from his personnel file if the information relates to issues that are currently under civil or criminal litigation.108
Law Enforcement Information

What information within the records of a law enforcement entity may be withheld? Section 552.108 of the Government Code contains what is generally referred to as the law enforcement exception. This exception allows the governmental body to withhold four types of information: 1) Information that if released would affect the governmental bodys ability to investigate or prosecute;
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2) Information pertaining to investigations and prosecutions of crime that did not result in a conviction or a deferred adjudication; 3) Threats Against Peace Officers: Information that deals with threats against a peace officers collected or disseminated under Government Code section 411.048; or 4) Attorney Work Product: Information that the attorney of the governmental body prepared for use in criminal litigation or information reflecting the mental impressions or legal reasoning of the attorney regarding such litigation. It is important to note that the law enforcement exception does not except from disclosure basic information about an arrested person or basic information within a criminal citation or police offense report.109 Information that has been held to be open includes: 1. The name, age, address, race, sex, occupation, and condition of an arrested person. 2. The date and time of the arrest. 3. The offense charged and the booking information. 4. The location of the crime and the involved property. 5. The names of the arresting and investigating officers. Section 552.108 only applies to criminal investigations and prosecutions. Where no criminal investigation or prosecution results from an investigation of a police officer for alleged misconduct, section 552.108 is inapplicable.110 It is also important to note that the law enforcement exception may apply to departments other than the police department if those departments are, by law, charged with the detection, investigation, or prosecution of crime. For example, the Attorney General has determined that the arson investigation unit of a fire department may cite the law enforcement exception to protect some of its records.111 Can motor vehicle accident report information be disclosed under the Public Information Act? The disclosure of motor vehicle accident reports, also known as ST-3 or CRB-3 forms, are governed by the Texas Transportation Code.112 In order to obtain a copy of a motor vehicle accident report, the requestor must: (1) make the request in writing, (2) pay any required fee, and (3) provide the governmental body with two or more of the following information: (a) the date of the accident; (b) the specific address or the highway or street where the accident occurred; or (c) the name of any person involved in the accident.113
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Purchasing / Public Works Information

What information must be disclosed if there is an open records request regarding a competitive bid? Section 552.104 allows governmental bodies to withhold information that is submitted for competitive bids if its disclosure would give advantage to a competitor or bidder.114 This exception does not apply, however, if there is only one entity that is bidding on the project.115 Additionally, this exception does not apply to bid information after the bidding is completed and the contract has been awarded.116 However, section 552.104 (b) allows a governmental body to withhold information under section 552.104(a) even if the information falls within one of the categories of information listed in section 552.022(a).117 It is also possible that certain information that is not protected under the bidding exception may still be withheld if it is protected under section 552.110 of the Government Code or is confidential under other statutory or common law provisions.118 This exception can be used only by governmental bodies, not third parties. What information may be withheld regarding the acquisition of real estate or personal property by a city? Section 552.105 provides governmental bodies with limited authority to withhold information that relates to the governmental bodys acquisition of real estate or personal property.119 The authority to withhold this information generally ends once the governmental body acquires the involved property.120 This exception also has equal application to information pertaining to a lease of real or personal property.121 Similarly, the information about the lease is considered an open record once the governmental body enters into the lease agreement. It should be noted that if the information falls under section 552.022, the governmental body cannot withhold it under this exception. What information is protected under the exception for trade secrets or for commercial or financial information that would give an advantage to competitors? Section 552.110 provides that certain information within bids and other documents may be protected as trade secrets or commercial or financial information that would give an advantage to competitors. A trade secret that is privileged or confidential by court order or by statute must be withheld.122 In determining whether particular information constitutes a trade secret, the Attorney Generals office considers the Restatement of Torts' definition of trade secret as well as the Restatements list of six trade secret factors.123 These factors are: (1) the extent to which the information is known in the market place; (2) the extent to which the information is known by employees and others involved in the business; (3) the measures taken to guard the secrecy of the information; (4) the value of the information to the company and to its competitors; (5) the amount of effort or money spent to develop the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.124 It should be noted that information submitted to a governmental body is not automatically protected from disclosure just because the company submitting that information claims the information is a trade secret or is proprietary. This office cannot conclude that section 552.110(a) applies unless
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it has been shown that the information meets the definition of a trade secret and the necessary factors have been demonstrated to establish a trade secret claim.125 Alternatively, there are varying standards that determine whether information is protected under the exception for commercial or financial information. The information is confidential if its release is likely to cause substantial harm to the competitive position of the entity that provided the information.126 To qualify under this prong of section 552.110, it must be shown with specific factual evidence that disclosure of the commercial or financial information would cause substantial competitive harm to the person or business that supplied the information to the governmental body.127 The substantial injury or harm must be more than speculative, it must be likely to occur if disclosure is made.128
Economic Development Information

What information is protected under the exception for economic development negotiations? Section 552.131 allows governmental bodies to withhold certain information related to economic development negotiations between a governmental entity and a business that the governmental body is seeking to have locate, stay or expand within or near the territory of the governmental body. Under this provision, the governmental body must withhold trade secrets of the business prospect that were related to economic development negotiations.129 Similarly, governmental bodies must withhold certain commercial and financial information about the business prospect that was acquired during economic development negotiations if release of the information would result in substantial competitive harm to the business prospect.130 The test for trade secret and commercial and financial information is the same for this exception as it is in section 552.110. Additionally, until an agreement is made with the business prospect, the governmental body may withhold information about a financial or other incentive being offered to the business prospect if the incentive directly or indirectly results in the expenditure of public funds or in a reduction of funds received by a governmental body.131 Any information about a financial or other incentive that is withheld under this provision would have to be released after an agreement is executed with the business prospect.132
Litigation or Other Legal Information

What type of information is excepted from disclosure under the attorney-client privilege? Section 552.107(1) of the Government Code protects information coming within the attorney-client privilege. When asserting the attorney-client privilege, a governmental body has the burden of providing the necessary facts to demonstrate the elements of the privilege in order to withhold the information at issue.133 First, a governmental body must demonstrate that the information constitutes or documents a communication.134 Second, the communication must have been made "for the purpose of facilitating the rendition of professional legal services" to the client governmental body.135 The privilege does not apply when an attorney or representative is involved in some capacity other than that of providing or facilitating professional legal services to the client governmental body.136 Governmental attorneys often act in capacities other than that of professional legal counsel, such as administrators, investigators, or managers. Thus, the mere fact that a communication involves an attorney for the government does not demonstrate this element. Third, the privilege applies only to
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communications between or among clients, client representatives, lawyers, and lawyer representatives.137 Thus, a governmental body must inform this office of the identities and capacities of the individuals to whom each communication at issue has been made. Lastly, the attorney-client privilege applies only to a confidential communication,138 meaning it was not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.139 Whether a communication meets this definition depends on the intent of the parties involved at the time the information was communicated.140 Moreover, because the client may elect to waive the privilege at any time, a governmental body must explain that the confidentiality of a communication has been maintained. Section 552.107(1) generally excepts an entire communication that is demonstrated to be protected by the attorney-client privilege unless otherwise waived by the governmental body.141 When is information relating to pending or anticipated litigation excepted from disclosure? Under Section 552.103, a governmental body can seek a ruling to withhold information about pending or reasonably anticipated civil or criminal litigation. The litigation must be pending or reasonably anticipated as of the date the open records request is received by the governmental body.142 The governmental body, its officials, or its staff must be a party to such litigation. Whether litigation is reasonably anticipated is a question that involves both factual and legal issues.143 There must be concrete evidence that litigation is likely; it must be more than mere conjecture. When a governmental body requests an open record ruling to withhold information under the litigation exception, the governmental bodys request must identify the issues that are involved in the litigation and explain how the information to be withheld relates to those issues. The governmental body should also provide a copy of the relevant pleadings if the case has been filed. Information that falls under the litigation exception generally can be withheld until the litigation has concluded or is no longer anticipated.144 Criminal litigation is considered concluded once the statute of limitations has expired or when the defendant has exhausted all appellate and post-conviction remedies in state and federal court.145 State law does not specifically define when civil litigation is considered to be concluded. Generally, civil litigation is considered to be concluded when all right of appeal has been exhausted and/or a final judgment has been entered. However, if the parties to civil or criminal litigation have inspected the records under discovery or through other means, the litigation exception would no longer apply.
V.
Ability to Recover Costs for Providing Copies of Open Records
What is the general ability of a governmental body to charge for documents? The Public Information Act allows governmental bodies to set a charge for providing copies of public information.146 The Attorney Generals Office has set a charge of 10 cents per page for making simple photocopies or printouts. A governmental body may not charge more than 25% above the charges set by the Attorney Generals Office. If a governmental bodys actual cost for producing copies of open records exceeds the Attorney Generals Office charges by more than 25%, the governmental body may apply to the Attorney Generals Office for permission to charge more. In no case may the charge by the governmental body exceed the actual cost of producing the requested copies.
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When can a governmental body recover labor charges for an open records request? Labor to Produce Paper Copies: A governmental body may recover labor charges to handle an open records request for paper copies in three circumstances: 1) If the responsive records will result in over fifty pages of paper copies; 2) If the records to be copied are located in two or more separate buildings or in a remote storage facility;147 or 3) If the governmental body provides access to paper documents that meet certain specifications.148 The Attorney Generals office presently allows a maximum labor charge of $15 per hour. Labor to Produce Electronic or Microfilm Copies: Charges for copies of records that are stored in other formats such as electronic information or microfilm may include reasonable costs of materials, labor, and overhead. If the governmental body assesses a charge for labor, the requestor may require the governmental body to provide a statement of the amount of time that was needed to prepare the requested copies. This statement must be signed by the officer for public information or the agent of that officer with the signers name clearly typed below the signature. The governmental body is not permitted to charge for providing this statement.149 A governmental body can also recover labor charges for providing access to electronic records if providing such access requires programming or manipulation of data. In such a case, the governmental body must provide a special written notice to the requestor as provided under the Public Information Act.150 The governmental body must also obey the rules of the Attorney Generals Office in determining how much to charge for the labor.151 Can a governmental body charge for the labor cost to retrieve materials from remote locations? A governmental body may charge for the labor cost of retrieving records that are located in two or more separate buildings that are not connected to each other or in a remote storage facility.152 Buildings are considered to be separate if they are not connected by a covered or open sidewalk, or by an elevated or underground walkway.153 The charge for labor can be recovered in such a situation even if the requestor seeks fewer than 50 pages of copies. When and how much can a governmental body charge for overhead when handling an open records request? A governmental body may impose a charge for overhead whenever a personnel (labor) charge is applicable to an open records request. Any overhead charge cannot exceed 20% of the personnel charge.154 Can a governmental body recover costs for any modifications to its computer program that are necessary to respond to an open records request? A governmental body may charge a requestor for the cost of any programming or manipulation of data that is necessary to answer an open records request.155 The Attorney Generals office presently allows a maximum programming charge of $28.50 per hour. Unlike most other charges for public information, this charge may be imposed even if the requestor only wants access to the requested information and does not request any copies.156 However, before a governmental body may impose such a charge, it must provide the requestor with certain written information in advance, including a statement of the estimated charges.157
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Can a governmental body require a requestor to pay the costs for producing the records prior to the governmental body mailing out the requested information? If a requestor asks the governmental body to mail the information, the governmental body can send the information by first class mail and can require that the requestor pay in advance for postage, along with other permitted charges related to producing the information.158 A governmental body is not required to provide public information by mail until the requestor pays all applicable charges. What duty does a governmental body have to inform a requestor of the estimated charges for copies of or access to public information? A governmental body is required to provide detailed information to the requestor if the charges for an open records request are likely to exceed forty dollars.159 The governmental body must do the following: 1. Furnish the requestor, an itemized estimate of the expected costs. The governmental body is required to keep a record of the statement; 2. Inform the requestor if there is an alternative method for supplying the requested records that is less costly; 3. Tell the requestor he has 10 business days to provide the governmental body with a written response stating whether the charges are accepted, the request is modified, or a complaint has been lodged with the Attorney Generals office. The requestors response may be made by hand delivery, mail, fax or e-mail, and must specify the method by which the requestor wants the information supplied;160 4. The notice must tell the requestor that failure to respond to the statement within 10 business days results in the automatic withdrawal of the open records request;161 5. If the governmental body finds that the costs will exceed more than 20 percent of the original estimate, the governmental body must provide the requestor with an updated itemized statement. The requestor again has 10 days to provide the governmental body with a written response to the updated statement, or the request will be considered to be withdrawn.162 If the actual charges are more than $40, a governmental body may only charge the amount estimated in the latest itemized statement that was provided to the requestor. However, if the governmental body did not provide the requestor with an updated itemized statement, the governmental body is limited to charging no more than 20% more than the amount of the original itemized statement.163 Can a governmental body require a monetary deposit in order to comply with an open records request? A governmental body must provide the requestor with an appropriate estimated itemized statement before the governmental body can require a deposit or bond. If such a statement is provided, a governmental body that has 16 or more full-time employees may require a deposit or bond if the estimated charge for producing copies of the requested records exceeds $100. A governmental body
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with fewer than 16 full-time employees may require a deposit if the estimated charges for producing copies of information are more than $50.164 Additionally, a governmental body may in certain situations require a deposit for providing access to public records if the costs of providing access would exceed the above noted thresholds. If the requestor does not make a deposit by the 10th day after the date the deposit is required, then the open records request is considered withdrawn.165 Governmental bodies are required to follow applicable state law and the guidelines established by the Attorney Generals Office for any charges that they would impose for providing access.166 Can a governmental body reduce or waive the cost for making copies of public information? A governmental body shall reduce or waive the normal charge for copies of public information if providing a reduced or no-cost copy would benefit the public. The governmental body may waive a charge for such copies if the cost of collecting the fee would exceed the amount of the charge.167
VI. Enforcement of the Public Information Act

Is a requestor allowed to sue a governmental body for failure to comply with the Public Information Act? A requestor is allowed to bring certain actions against a governmental body for violations of the Public Information Act. The requestor may file a complaint against a governmental body with the local county or district attorney. 168 The complaint must meet the following requirements: 1) Be in writing and signed by the complainant; 2) State the name of the governmental body that allegedly committed the violation as accurately as can be done by the complainant; 3) State the time and place of the alleged commission of the violation, as definitely as can be done by the complainant; and 4) Describe the violation, in general terms. 169 Within 31 days of receiving such a complaint, the local prosecuting attorney must determine if a violation has been committed, decide whether to take action against the governmental body, and notify the person who filed the complaint of that decision.170 If the local prosecutor declines to proceed with an action against a governmental body, the complainant has 31 days to file a complaint with the Attorney General. The Attorney General must notify the complainant within 31 days of his decision whether to proceed with an action against the governmental body.171 If either the local prosecuting attorney or the Attorney General decides to bring a lawsuit against a governmental body, the governmental body must be notified prior to the filing of the lawsuit. The governmental body has three days to remedy the problem.172
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What civil remedies can be brought against a governmental body for failure to comply with the Public Information Act? If a governmental body refuses to release public information or refuses to request an Attorney General ruling, either the requestor or the Attorney General may bring a lawsuit to force the release of the records in question.173 Even if the Attorney General has determined that the governmental body may withhold the requested information, the requestor may still file a lawsuit against the governmental body to seek disclosure of the requested information.174 Under certain circumstances, a third party may also file litigation to prevent the release of records that implicate that persons privacy or proprietary interests.175 In a lawsuit brought to compel the release of public information, a requestor or the attorney general is entitled to an award of attorney fees and costs if they prevail in their suit. In a lawsuit by a governmental body seeking relief from compliance with an Attorney General ruling, a court may order the losing side to pay litigation costs and attorneys fees, but is not required to.176 In addition to a lawsuit of the types just discussed, a requestor that feels he or she has been overcharged for copies of public information may file a complaint with the Attorney Generals office. The Attorney Generals office may require the governmental body to pay the requestor the amount of any overcharge. If the Attorney Generals office finds that the overcharge was due to bad faith on the part of the governmental body, the requestor who is overcharged may recover up to three times the amount of the overcharge from the governmental body.177 What are the criminal penalties for noncompliance with the Public Information Act? There are three provisions of the Public Information Act which have criminal penalties if violated: Failure to Give Access to Public Information. A person responsible for releasing public information commits a crime if he fails to give access to or fails to permit copying of public information as required by the Public Information Act. This violation is a misdemeanor punishable by a fine of up to $1,000, a six-month jail term, or both. The Public Information Act also states that this sort of violation constitutes official misconduct.178 Release of Confidential Information. A person commits a crime if he or she distributes information considered confidential under the Public Information Act. Such a violation is a misdemeanor punishable by a fine of up to $1,000, a six-month jail term, or both. The Act also states that this sort of violation constitutes official misconduct. Thus, a public official may be subject to removal from office for such an offense.179 Illegal Destruction or Alteration of Public Information. Finally, a person commits a crime if that person, in violation of the Public Information Act, willfully destroys, mutilates, or alters public information or removes such information without permission. An offense of this type is a misdemeanor and is punishable by a fine of between $25 and $4,000, three days to three months of jail time, or both.180 It is important to note that there are provisions of Texas law outside of the Public Information Act that also criminalize tampering with a governmental record, and an offense under one of those provisions may constitute a felony.181
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VII. Additional Information about the Public Information Act

Are all elected or appointed governmental officials required to complete training about the Act? Elected and appointed officials must have a minimum of one hour but no more that two hours of training. Officials who were in office before January 1, 2006 have until January 1, 2007, one year, to complete the required training.182 Officials that are elected or appointed after January 1, 2006 have 90 days to complete the required training. If the governmental body has designated a public information coordinator, then the officials can opt out of taking the training provided that they designate their public information coordinator to receive the training in their place. The public information coordinator must be the person that is primarily responsible for the processing of open records requests for the governmental body. The official or public information coordinator should receive a certificate of completion. The governmental body shall maintain the certificates and make them available for public inspection. Where can a governmental body get more information about the Public Information Act? For additional copies of this article, a governmental body may contact the Municipal Affairs Section of the Attorney Generals Office at (512) 475-4683 or the County Affairs Section of the Attorney Generals Office at (512) 463-2060. Additionally, the Office of the Attorney General produces the Public Information Handbook, an in-depth publication about the Act and its interpretation by Attorney General rulings and court cases. That publication may be ordered by calling (512) 4754428. Finally, the Open Records Division of the Attorney Generals Office sponsors an Open Records Hotline where public officials and concerned citizens can get answers to basic questions about the Public Information Act. The phone number for the Open Government Hotline is (512) 478-6736 or (877) 673-6839.
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ENDNOTES
1. This article was originally written by Scott Joslove, and Robert Ray, and revised for 2006 by Zindia Thomas. Much of the material in the article is drawn from the Texas Attorney Generals 2006 Public Information Handbook. In addition, this article was reviewed by June Harden, Hadassah Schloss, Brenda Loudermilk and Julian Grant. 2. TEX. GOVT CODE ANN. 552.002 (Vernon 2004). 3. Id. 552.003 (1). 4. Id. 552.0036. 5. Id. 552.003 (1)(A)(iv). 6. Id. 552.003 (1)(A)(xii); see, e.g. Op. Tex. Atty Gen. No. JM-821 (1987), Tex. Atty Gen. ORD-621 (1993), ORD-602 (1992). 7. TEX. GOVT CODE ANN. 552.002 (a) (Vernon 2004). See also Tex. Atty Gen. ORD-363 (1983). 8. Tex. Atty Gen. ORD-585 (1991). 9. TEX. GOVT CODE ANN. 552.003 (1)(B)(Vernon 2004). 10. Id. 552.0035. See also Texas Rules of. Judicial Administration Rule 12, reprinted in TEX. GOVT CODE ANN., title 2, subtitle F appendix (Vernon 2005). 11. Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978); Ashpole v. Millard, 778 S.W.2d 169 (Tex.App. Houston [1st Dist.] 1989, no writ); Op. Tex. Atty Gen. No. DM-166 (1992), Tex. Atty Gen. ORD-25 (1974). 12. TEX. GOVT CODE ANN. 552.0055 (Vernon 2004). 13. TEX. CRIM. PROC. CODE ANN. art. 18.01(b) (Vernon 2005); See also Houston Chronicle Publishing Co. v. Woods, 949 S.W.2d 492, 499 (Tex. App. -- Beaumont 1997, no writ). 14. Op. Tex. Atty Gen. No. JM-119 (1983); Tex. Atty Gen. LO-93-89 (1993). See also, Tex. Atty Gen. OR99-2237 (1999). 15. Tex. Atty Gen. ORD-497 (1988); ORD-44 (1974). 16. TEX. GOVT CODE ANN. 552.301 (c) (Vernon Supp. 2005). 17. Id. 552.301 (a); Tex. Atty Gen. ORD-304 (1982). 18. TEX. GOVT CODE ANN. 552.221(a) (Vernon 2004). See also Tex. Atty Gen. ORD-664 (2000). 19. Tex. Atty Gen. ORD-467 (1987); ORD-664 (2000).
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20. TEX. GOVT CODE ANN. 552.221 (d) (Vernon 2004). 21. Id. 22. Id. 552.221 (c). 23. Tex. Atty Gen. ORD-148 (1976) (faculty members file is not in active use the entire time the promotion is under consideration); But see Tex. Atty Gen. ORD-225 (1979) (secretarys handwritten notes are in active use while the secretary is typing minutes of the meeting from them). 24. TEX. GOVT CODE ANN. 552.231(b) (Vernon 2004). 25. Id. 552.231 (c). 26. Id. 552.301 (a) (Vernon Supp. 2005). 27. Id. 552.301 (b). 28. Tex. Atty Gen. ORD-333 (1982); ORD-663 (1999). 29. TEX. GOVT CODE ANN. 552.301 (d), (e-1) (Vernon Supp 2005). 30. Id. 552.305 (d)(1) (Vernon 2004). 31. Id. 552.305 (d)(2)(B). 32. Id. 552.305 (e). 33. Id. 552.222 (b). 34. Tex. Atty Gen. ORD-663 (1999). 35. Id. 36. TEX. GOVT CODE ANN. 552.301 (a) (Vernon Supp. 2005). 37. Tex. Atty Gen. ORD-673 (2001) (what constitutes a previous determination). See also Tex. Atty Gen. ORD-435 (1986) (city cannot unilaterally decide that material fits within exception unless the city has previously requested a determination involving the exact same material); see also Houston Chronicle Publishing Co., v. Mattox, 767 S.W.2d 695, 698 (Tex. 1989)(specifying that Attorney General is authorized to determine what constitutes previous determination.). 38. Tex. Atty Gen. ORD-542 (1990). 39. TEX. GOVT CODE ANN. 552.302 (Vernon Supp.2005). 40. Tex. Atty Gen. ORD-150 (1977). 41. Tex. Atty Gen. ORD-665 (2000).
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42. TEX. GOVT CODE ANN. 552.301(a) (Vernon Supp. 2005). 43. Tex. Atty Gen. ORD-673 (2001). 44. TEX. GOVT CODE ANN. 552.301 (b)-(d) (Vernon Supp 2005). 45. Id. 552.301 (e). 46. Tex. Atty Gen. ORD-333 (1982); ORD-663 at 5 (1999). 47. TEX. GOVT CODE ANN. 552.301(e-1) (Vernon Supp. 2005). 48. Id. 552.303 (d) (Vernon 2004). 49. Id. 552.303 (e). 50. Id. 552.306 (a). 51. Id. 552.301 (e) (Vernon Supp. 2005). 52. Id. 552.301 (f). 53. Id. 552.324 (b) (Vernon 2004). 54. Id. 552.205 (Vernon Supp. 2005). 55. Id. 552.222 (a) (Vernon 2004). 56. Id. 552.222 (c). 57. Id. 552.222 (b). 58. Id. 552.222 (a). 59. Id. 552.228. 60. Id. 552.002 (a); see also Tex. Atty Gen. ORD-452 (1986); Op. Tex. Atty Gen. No. JM672 (1987). 61. Op. Tex. Atty Gen. No. JM-672 (1987). 62. See Economic Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App. -San Antonio 1978, writ dism'd); Tex. Atty Gen. ORD-476 at 1 (1987),ORD- 452 at 3 (1986). 63. Tex. Atty Gen. ORD-452 (1986), ORD-476 (1987); Op. Tex. Atty Gen. No. JM-48 (1983). 64. Tex. Atty Gen. ORD-563 at 8 (1990); ORD-555 at 1 (1990). 65. TEX. GOVT CODE ANN. 552.231 (b) (Vernon Supp. 2005). 66. Id. 552.228 (b)(2) (Vernon 2004). 67. Id. 552.228 (c).
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68. Id. 552.231 (Vernon Supp. 2005). 69. Tex. Atty Gen. ORD-571 (1990). 70. Op. Tex. Atty Gen. No. JM-757 (1987). See also Op. Tex. Atty Gen. No. GA-400 (2006). 71. TEX. GOVT CODE ANN. 552.228 (c)(Vernon 2004). See also TEX. GOVT CODE ANN. 552.230 (governmental body may promulgate rules for efficient, safe, and speedy inspection and copying if not inconsistent with Public Information Act). 72. Id. 552.027. 73. Op. Tex. Atty Gen. No. JM-672 (1987); Tex. Atty Gen. ORD-550 (1990). 74. TEX. GOVT CODE ANN. 552.232 (a) (Vernon 2004). 75. Id. 76. Id. 552.232 (b). 77. Id. 552.232 (c). 78. Id. 552.232 (a)(1-2). 79. Id. 552.232 (d). 80. Id. 552.022(a)(1). 81. Id. 552.022(a)(17). 82. Id. 552.022(a)(18). 83. Id. 84. TEX. GOVT CODE ANN. 552.022(a) (Vernon 2004). 85. Id. 552.104(b); 552.133(d). 86. In re City of Georgetown, 53 S.W.3d 328, 332 (Tex. 2001). 87. Id. 88. Op. Tex. Atty Gen. Nos. H-258 (1974); JM-672 (1987); Tex. Atty Gen. ORD-455 (1987). 89. Tex. Atty Gen. ORD-633 (1995); ORD-606 (1992). 90. TEX. GOVT CODE ANN. 552.024; 552.117 (Vernon 2004). 91. Id. 552.117; 552.1175 (Vernon Supp. 2005). 92. Id. 552.117 (a)(4) (Vernon 2004). 93. Id. 552.147 (Vernon Supp. 2005)
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94. See, e.g., Tex. Atty Gen. ORD-635 (1995) (public officials or employees appointment calendar may be subject to Act); ORD-626 (1994) (handwritten notes taken during D.P.S. promotion board oral interviews are subject to Act). 95. TEX. GOVT CODE ANN. 552.137 (Vernon 2004). 96. TEX. GOVT CODE ANN. 552.111 (Vernon 2004). 97. Tex. Atty Gen. ORD-615 (1993). See also Tex. Atty Gen. ORD-631 (1995) (report addressing systematic discrimination against minorities and the educational mission of the university in question was not open to public). 98. Tex. Atty Gen. ORD-631 (1995). 99. Tex. Atty Gen. ORD-615 (1993). 100. Tex. Atty Gen. ORD-631 (1995). 101. Tex. Atty Gen. ORD-462 (1987). 102. TEX. GOVT CODE ANN. 552.022 (a)(2) (Vernon 2004); see also Tex. Atty Gen. ORD444 (1986); ORD-405 (1983). 103. Tex. Atty Gen. ORD-441 (1986). 104. Tex. Atty Gen. ORD-615 (1993). 105. TEX. GOVT CODE ANN. 552.102 (a) (Vernon 2004). 106. See Morales v. Ellen, 840 S.W.2d 519 (Tex.App.-El Paso 1992, no writ). 107. Tex. Govt Code Ann. 552.023 (a); 552.102 (Vernon 2004); Tex. Atty Gen. ORD-288 (1981). 108. Tex. Atty Gen. ORD-288 (1981). (The Attorney General generally does not allow a governmental body to withhold information pursuant to the litigation exception if the opposing party has had previous access to the information. Thus, if a governmental body is engaged in litigation with its own employee, the litigation exception generally would not protect any information in the employees personnel file to which the employee had previously had access.) 109. TEX. GOVT CODE ANN. 552.108 (c) (Vernon Supp. 2005); see also Tex. Atty Gen. ORD-127 (1976). 110. Morales v. Ellen, 840 S.W.2d 519 (Tex. Civ. App.---El Paso 1992, writ denied) (Gov't Code 552.108 not applicable where no criminal investigation or prosecution of police officer resulted from investigation of allegation of sexual harassment); Tex. Atty Gen. ORD-350 (1982) (predecessor provision of Gov't Code 552.108 not applicable to IAD investigation file when no criminal charge against officer results from investigation of complaint against police officer). 111. Tex. Atty Gen. ORD-127 (1976).
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112. TEX. TRANSP. CODE ANN. 550.065 (Vernon Supp. 2005). 113. Id. 550.065 (c)(4). 114. TEX. GOVT CODE ANN. 552.104 (Vernon 2004). 115. Tex. Atty Gen. ORD-331 (1982). 116. Tex. Atty Gen. ORD-541 (1990). 117. TEX. GOVT CODE ANN. 552.104 (b)(Vernon 2004). 118. Tex. Atty Gen. ORD-319 (1982). 119. TEX. GOVT CODE ANN. 552.105 (Vernon 2004). 120. Tex. Atty Gen. ORD-222 (1979). (The Attorney General has extended this protection to information about the appraisal of land parcels that were acquired in advance of other land for the same project.) 121. Tex. Atty Gen. ORD-348 (1982). 122. TEX. GOVT CODE ANN. 552.110 (a) (Vernon 2004). 123. Restatement of Torts 757 cmt. b (1939) 124. Hyde Corp. v. Huffines, 314 S.W.2d 763 (Tex.), cert. denied, 358 U.S. 898 (1958). 125. See Tex. Atty Gen. ORD-402 (1983). 126. National Parks and Conservation Assn v. Morton, 498 F.2d 765 (D.C. Cir. 1974). 127. TEX. GOVT CODE ANN. 552.110 (b) (Vernon 2004). 128. Tex. Atty Gen. ORD-639 (1996). 129. TEX. GOVT CODE ANN. 552.131 (a)(1) (Vernon 2004). 130. Id. 552.131 (a)(2). 131. Id. 552.131 (b). 132. Id. 552.131(c). 133. Tex. Atty Gen. ORD-676 at 6-7 (2002). 134. Id. at 7. 135. TEX. R. EVID. 503(b)(1). 136. In re Texas Farmers Ins. Exch., 990 S.W.2d 337, 340 (Tex. App.---Texarkana 1999, orig. proceeding) (attorney-client privilege does not apply if attorney acting in a capacity other than
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that of attorney). 137. TEX. R. EVID. 503(b)(1)(A), (B), (C), (D), (E). 138. Id. 503(b)(1) 139. Id. 503(a)(5). 140. Osborne v. Johnson, 954 S.W.2d 180, 184 (Tex. App.---Waco 1997, no writ). 141. See Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996) (privilege extends to entire communication, including facts contained therein). 142. TEX. GOVT CODE ANN. 552.103 (Vernon 2004). 143. See University of Texas Law School v. Texas Legal Foundation, 958 S.W.2d 479 (Tex. App. Austin 1997, no pet.). 144. Tex. Atty Gen. ORD-647 (1996). 145. TEX. GOVT CODE ANN. 552.103 (b) (Vernon 2004). 146. Id. 552.262 (Vernon Supp. 2005). See, generally, Id. 552.261 - 552.272 (Vernon 2004 & Supp. 2005). 147. Id. 552.261(Vernon 2004). 148. Id. 552.271 (c)-(d). 149. Id. 552.261 (b). 150. Id. 552.231 (Vernon Supp. 2005); 552.272 (c)(Vernon 2004). 151. Id. 552.262 (Vernon Supp. 2005). 152. Id. 552.261 (a) (Vernon 2004) 153. Id. 552.261 (b). 154. 1 TEX. ADMIN. CODE 111.63 (West 2005). 155. TEX. GOVT CODE ANN. 552.231 (Vernon Supp. 2005). 156. Id. 552.272 (Vernon 2004). 157. Id. 552.231 (Vernon Supp. 2005). 158. Id. 552.221 (b) (Vernon 2004). 159. Id. 552.2615 (Vernon Supp. 2005). 160. Id. 552.2615(a).
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161. Id. 552.2615(b). 162. Id. 552.2615 (c). 163. Id. 552.2615(d). 164. Id. 552.263. 165. Id. 552.263(f). 166. Id. 552.262. 167. Id. 552.267 (Vernon 2004). 168. Id. 552.3215. 169. Id. 552.3215 (e). 170. Id. 552.3215 (g). 171. Id. 552.3215 (I). 172. Id. 552.3215 (j). 173. Id. 552.321. 174. Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App. Austin 1992, no writ). See also TEX. GOVT CODE ANN. 552.3215 (Vernon 2004). 175. See, e.g., Morales v. Ellen, 840 S.W. 2d 519 (Tex. App. El Paso 1992, writ denied). See also TEX. GOVT CODE ANN. 552.325 (Vernon 2004). 176. TEX. GOVT CODE ANN. 552.323 (Vernon 2004). 177. Id. 552.269 (Vernon Supp. 2005). 178. Id. 552.353 (Vernon 2004). 179. Id. 552.352. 180. Id. 552.351. 181. See, e.g., TEX. PEN. CODE ANN. 37.10 (Vernon Supp. 2005). 182. TEX. GOVT CODE ANN. 552.012 (Vernon Supp. 2005).
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Open Government Hotline (877) 673-6839 (toll free) (877) open tex (512) 478-6735 County Affairs Section Zindia Thomas (800) 252-5476 Municipal Affairs Section - Julian Grant (512) 475-4683 Cost questions - Hadassah Schloss (512) 475-2497 AG Publications: www.oag.state.tx.us/newspubs/publications.shtml 2006 Open Meetings Act Handbook 2006 Public Information Act Handbook 2006 Open Meetings Act Made Easy 2006 Public Information Act Made Easy Freedom of Information Foundation of Texas Hotline for questions about the Texas Public Information Act and the federal Freedom of Information Act (800) 580-6651 State Library and Archives Commission: Records Management Assistance - for records retention questions (512) 452-2705

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Open Meetings Act

Government Code 551

Government Code 551.002

Governmental Body (GB) Gov. Code 551.001(3)*

*Not an exclusive list

Meeting Gov. Code 551.001(4)(B)

Open Meeting v. Public Hearing

reasonable opportunity to speak.

Quorum and the OMA

Of course, it does. Maybe, depending on the circumstances.

Quorum and the OMA

Attendance at Legislative Committee or Agency Meeting, if deliberations consist only of

24 hours 48 hours 72 hours 96 hours

Where to Post Your Notice?

[Gov. Code 551.050]

Where to Post your Notice?

Where to Post your Notice?

Executive Session/Closed Meeting

Executive Session/Closed Meeting

Yes Yes, but by secret ballot No

Executive Session/Closed Meeting

Executive Session/Closed Meeting

Executive Session/Closed Meeting

Except: Consultation with an attorney: A GB may turn off

Executive Session/Closed Meeting

Executive Session/Closed Meeting

Executive Session/Closed Meeting

Executive Session/Closed Meeting

Conspiracy to circumvent the act by meeting in numbers less than a quorum

Gov. Code 551.143

Knowingly meeting for secret deliberations: aware that his conduct

Unauthorized closed meeting

Gov. Code 551.144

Fail to keep a certified agenda or tape recording of a closed meeting

Release of a certified agenda or tape of a closed meeting

For More Open Government Information

Public Information Act

Public Information Defined

Basic Process for Governmental Bodies

GB promptly releases requested info

GB withholds info based on a previous determination.

Info MUST be Withheld.

Info MAY NOT BE Withheld. Info MUST be Released.

Info MAY be Withheld.

E-mails and Faxes

Unclear or Unduly Broad Request

So You Have Received a Request.

How Much Time?

How Much Time?

How Much Time?

How Much Time?

1 4 11 5 12 6 13 7 14 8 15 Written Request Received 22

26 Day After Christmas

27 Skeleton Crew Day

30 New Years Eve Skelton/ Holiday 6

31 New Years Day 7

So You are on the Business Day and .

Different Responses That a GB can send to a Requestor

How much can you charge?

So You are on the Business Day and .

Yes, every time Yes, unless there is a previous determination No

Procedure for Requesting an AG Open Records Letter Ruling