texas public information act for law enforcement and fire personnel · 2018-11-09 · texas public...

Texas Public Information Act for Law

Enforcement and Fire Personnel

Texas Civil Service Workshop

San Marcos, Texas

February 2, 2016

Presented by:

Laura Mueller

Introduction to

Public Information Requests

Who is Subject to TPIA?

• Governmental bodies.

– State and local.

– Any organization supported in whole or in part by

public funds.

• Certain Property Owner’s Associations.

• NOT JudiciaryRule 12

3 © Bojorquez Law Firm, PC (2016)

What is Public Information?

• “Information that is written, produced,

collected, assembled, or maintained under a

law or ordinance or in connection with the

transaction of official business.”

• Held by or for a governmental body.


Example: Public information?


What Constitutes a PIR?

• Must be in writing. (Includes e-mail and fax).

• Need not refer to Act.

• Need not be addressed to the officer for public

information. (But must be sent to the officer

for public information or the officer’s

designee).


TCOLE Form

© Bojorquez Law Firm, PC (2016) 7

Improper Requests

• Questions.

• Create Information.

• Standing Requests.

• Subpoena duces tecum or discovery is not

considered a request under the PIA.


Who is Responsible for Responding?

• The Officer for Public Information (OPI) of a

governmental body. (i.e. City Secretary)

• Every department head.


Policy: Presumption of Openness

• All public information is subject to disclosure

unless specifically made confidential or

specifically excepted from disclosure.

• Attorney General construes the Act in favor of

this open government policy.

– This includes personnel files.


Permissible Communications with Requestor

• Generally: May not inquire into purpose for

which information may be used.

• May inquire about the following:

– Clarification, if unclear

– Narrowing, if results in large amount of

information

– Identification, if relates to motor vehicle record or

form for personnel records 11 © Bojorquez Law Firm, PC (2016)

Timeline to Respond

• OPI has duty to “promptly” produce public

information.

• “Promptly” = as soon as possible under the

circumstances, within a reasonable time,

without delay.

Practical tip: Produce within 10 business

days after the date the request was

received.


Responding to

Public Information Requests

Options to Respond to Request

1. Release information.

2. Seek Attorney General’s permission to

withhold or redact the information requested.

3. Automatically redact and release information.

4. For Personnel: also can request written

permission of employee who’s file is being

requested


Option 1: Release Information

• The information is not confidential by law or

employee has agreed to release of personnel

information.

• The governmental body does not want to assert any

discretionary exceptions.

• Be promptly made available.

Practical tip: Release within 10 business days of

receiving the request.


Option 2: Seek Attorney General Permission

• Assert mandatory and discretionary

exceptions.

• Two-step process:

1. Submit request for decision within 10 business

days (“10-day letter”).

2. Submit written comments why the requested

information is excepted within 15 business days

(“15-day brief”).


Option 3: Automatically Redact and Release

May redact without seeking AG permission:

– Direct deposit authorization form.

– Form I-9 and attachments.

– W-2 and W-4 forms.

– Certified agenda and tape of a closed meeting.

– Fingerprint.

– L-2 and L-3 declarations.

– E-mail address of member of public.

– Form DD-214 or military discharge record.

– Social security number.


Automatically Redact and Release &

Required Form

– Texas driver’s license or license plate number.

– Credit card, debit card, charge card, insurance.

policy, bank account, bank routing, or access

device number.

– Home address/number, or information that reveals

family members of a peace officer or of an

employee or official that wishes it to remain

private who has a signed form on file.

– Information maintained by a family violence

center or sexual assault program. © Bojorquez Law Firm, PC (2016) 18

Required Form

• Description of the redacted or withheld

information.

• Citation of the section allowing the redaction.

• Instructions on how to appeal withholding the

information.


Personnel Policy

City Email Accounts. All City employees are

required to use their City-issued email accounts

to conduct City business. Employees are

prohibited from using their personal email

accounts to conduct City business. If an

employee receives a city email at a private email

address, the employee should immediately

forward the email to his or her city email address

for storage.


Exceptions to General

Disclosure

Exceptions: Generally

• Default: public information is subject to

disclosure.

• PIA has 56 listed exceptions to disclosure

– Mandatory

– Discretionary


Exceptions: Mandatory

• Must withhold information that is deemed

confidential by the Act or any other law.

• If released, can face criminal charges.


Exceptions: Discretionary

• Governmental body may decide to withhold

the information that is considered

discretionary.

• Withholding information is not legally

required.

• Subject to exceptions under Section 552.0225.


Exceptions to the Exceptions

• “Super Public” Information – Section 552.022

• Even if a discretionary exception applies, the

information will still be released.


Requestor’s Special Right of Access to

Certain Information

Requestor or its authorized representative has a

special right of access, beyond the right of the

public, to information that relates to the person

and that is protected from public disclosure by

laws intended to protect that person’s privacy

interest.


Requestor’s Special Right Cont’d

• Must release if the only reason to withhold is

to protect the person’s privacy.

• May withhold if another exception exists.

Practical Tip: Have the requestor confirm

in writing that they have a special right of

access to the information—for example the

TCOLE form is presented.


Exception: Privacy Rights

• Under Confidential Information § 552.101.

• Mandatory exception.

• Excludes from public disclosure any

information that is protected by the common

law right to privacy.


Common-Law Right to Privacy

The information must:

1. Contain highly intimate or embarrassing facts

about a person’s private affairs such that its

release would be highly objectionable to a

reasonable person; and

2. Be of no legitimate concern to the public.


Privacy Rights - Protected Information

Continued

• Personal financial information not relating to the

financial transaction between an individual and

governmental body.

• Background checks.

• “Special circumstances” where release of the

information would likely cause someone to face “an

imminent threat of physical danger”.

• All dates of birth.


Exception: Law-Enforcement Records

• Section 552.108

• Discretionary exception

• May withhold information that deals with the

detection, investigation, or prosecution of crime

– If release would interfere with the detection, investigation,

or prosecution of crime; or

– Only in relation to an investigation that did not result in

conviction or deferred adjudication


Law Enforcement Records – Basic Information

Must release the following information even if this exception

applies:

• Name, age, address, sex, occupation, alias, social security

number, police department identification number, and physical

condition of the arrested person.

• Date and time of the arrest.

• Place of the arrest.

• Offense charge and the court in which it is filed.


Recent AG Letter Ruling


Basic Information 552.108(c)


Exception: NCIC and TCIC records

• Section 552.101.


• Federal and State laws that make criminal

history record information (“CHRI”) obtained

from the National Crime Information Center

(“NCIC”) and Texas Crime Information

Center (“TCIC”) confidential.


Exception: Photos of Police Officers

• Section 552.119.

• Quasi-Mandatory exception.

• Prohibits the release of any officer’s.

photograph if the release would endanger the

life or physical safety of an officer.

• May be released if officer gives written

consent to disclosure.


Photo of Police Officers Cont’d

Photograph must be released if:

• Officer is under indictment or charged with an

offense by information;

• Officer is a party in a civil service hearing or a

case in arbitration; or

• Photograph is introduced as evidence in a

judicial proceeding.


Photo of Police Officers Cont’d

Civil Service City Exception:

• Local Government Code § 143.090


• Prohibits the release of any officer’s photograph

without a showing of potential harm.

• May be released by the same exceptions as previously

discussed.


Exception: Public Employee Personnel

Records

• Section 552.102.


• Anything in a personnel file that would

constitute a clearly unwarranted invasion of

personal privacy.

• Employees DOBs are confidential.

• Uses the same test as common-law privacy to

determine if exception applies. 39 © Bojorquez Law Firm, PC (2016)

Public Employee Personnel Records Cont’d

Exception: All information in a personnel file of

an employee must be made available to that

employee or his representative.

Note: Police personnel files may have other

documents in the file that are confidential under

law and may not be released. (i.e., F-5 reports)


Exception: Public Employee Records

• Section 552.117.


• Applies to current and former employees.

• Excepts from disclosure:

– Home address

– Home telephone number

– Emergency contact information

– Social security number

– Or whether the person has family members


Public Employee Records Cont’d

• Information is confidential of current or former

public employees if:

Employee elects, in writing, to withhold this information

within 14 days of one of the following:

1. Employee begins employment with governmental body;

2. Official is elected or appointed; or

3. Former employee or official ends service with governmental

body.


Public Employee Records Cont’d

• Applies to information a governmental body holds in

its capacity as an employer.

• Governmental body may redact this information

without seeking permission, but must provide the

required form.

Practical Tip: Check the employee file to see if

the employee elected to keep this information

confidential. If yes, then the governmental body

must redact the information.


Exception: Law Enforcement Records

• Section 552.1175.


• Applies to the following:

– Peace officers

– Law enforcement officials

– State and federal judges


Law Enforcement Records Cont’d

• Makes the same information under 552.117

confidential.

• Difference from 552.117:

– No time frame for making this election and

election is valid until rescinded in writing.

– Applies to information contained in records

maintained by any governmental body in any

capacity.


Law Enforcement Records Cont’d

Note: Individuals under this section may not

elect to withhold personnel information

contained in:

– Records maintained by county and district clerks,

or

– Tax appraisal records of an appraisal district


Exception: Civil Service

Two Types of Peace Officer Personnel Files Are

Contemplated in the Civil Service Act

• Civil Service Files also known as “A” Files

Referenced in Local Government Code

Section 143.089(a)

• Internal Department Files also known as “G”

Files referenced in Local Government Code

Section 143.089(g)



Civil Service File - Texas Local Government

Code Section 143.089(a)

• Not Confidential – Subject to Release Under

Public Information Act

• Must Include Evaluations, Commendations,

Disciplinary Actions and Related Documents

• Officer Has Special Right of Access



Internal Department File – Section 143.089(g)

• Confidential and Not Subject to Release Under

the Public Information Act

• Officer No Special Right of Access

• Optional File for Departmental Use

• Includes Background and Investigatory

Information If No Disciplinary Action,

Unsubstantiated Complaints and Written

Reprimands


Practical Tip: Employee Records

• Sections 552.117 and 552.1175 apply to general

information

• Keep in mind that documentation in a personnel file

may trigger other exceptions such as:

– Financial information

– Common law privacy

– Medical information protected by MPA

– Vehicle information

– Criminal history information, etc.


New Hires


Exception: Records Relating to Litigation

• Section 552.103.

• Discretionary exception.

• Information relating to litigation of a civil or criminal

nature to which the state or a political subdivision is

or may be a party or to which an officer or employee

of the state or political subdivision, as a consequence

of the person’s office or employment, is or may be a

party.


Exception: Homeland Security

• Section 552.101 encompassing sections 418.176 –

418.182 of the Government Code (Texas Homeland

Security Act).


• Makes confidential certain information related to

terrorism or related to criminal activity.


Homeland Security Cont’d

• Note: Information that relates to security

concerns does not make information per se

confidential under the Texas Homeland

Security Act.

• Must explain in the brief how the responsive

documents fall under the Act.


Exception: Security and Critical Infrastructure

• Section 552.139.


• Excepts from disclosure:

– Any information that relates to computer network security,

– To restricted information under Section 2059.055, or

– To the design, operation, or defense of a computer network.


Exception: Medical Records

• Section 552.101 encompassing the Medical Practices

Act (“MPA”)

• Mandatory exception

Excepts from disclosure:

Record of the identity, diagnosis, evaluation, or

treatment of a patient by a physician that is

created or maintained by the physician.


Medical Records Cont’d

• Includes both medical records and information

obtained from those records.

• Protection extends only to records created either by a

physician or someone under their supervision.

• May only disclose information to the extent that

disclosure is consistent with the authorized purpose

for which the information was first obtained.


Exception: E-mail Addresses

• Section 552.137.


• Private e-mail address of a member of the

public must be withheld.

• May release if the person affirmatively

consents.


E-mail Addresses Cont’d

Does not apply to the following e-mail addresses provided to a governmental

body:

• By a person who has a contractual relationship with the governmental body;

• By a vendor who seeks to contract with the governmental body;

• Contained in a response to a request for bids or proposals;

• Provided in the course of negotiating terms of contract or potential contract;

• Contained on a letterhead, coversheet, or printed document made available to the

public; or

• Provided for the purpose of providing public comment on or receiving notices

related to an application for license, or receiving orders or decisions from a

governmental body.


Body-Cam Policy

• Recent legislation requires law enforcement

agencies to have policies regarding the release

of body worn camera videos.

• Occupations Code Section 1701.655


Sample Policy: Body-Cam

Body Camera Form


Penalties for Non-Compliance

63

Governmental bodies may face criminal

penalties for:

– Releasing information that must not be disclosed;

or

– Withholding information that must be released.

© Bojorquez Law Firm, PC (2016)

Penalties for Non-Compliance Cont’d

Violation constitutes official misconduct:

– Misdemeanor.

– Punishable by confinement in county jail for not

more than 6 months.

– Fine not to exceed $1,000.

– Or both confinement and fine.


Affirmative Defenses for Non-Compliance

• Timely request for a decision from the AG is

pending.

• Officer for public information is pursuing

judicial relief from compliance with a decision

of the AG.


Civil Remedies for Non-Compliance

Requestor may seek a writ of mandamus to

compel a governmental body to release the

information if the governmental body refuses to:

1. Seek an attorney general decision;

2. Release public information; or

3. Release information in accordance with the AG

decision.


Conclusion


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