7 - Voice For The Defense Online

The scope of the judicial exception
remains a matter of considerable debate,
however. In Holmes v. Mmnles, 924 S.W.2d
920 (Tex. 1996), the Texas Supreme Court
rejected a claim by the Harris County
District Attorney that the promulgation of
its constitutional authority within Article
V of the Texas Constitution placed it within
the judiciary for purposes of the PIA. The
Court instead held that the exclusion only
extends to entities that are vested with
judicial power, i.e. the power to hear facts,
to decide issues of fact made by pleadings,
to decide questions of law involved, to
render and enter judgment on facts in
accordance with the law as determined by
the court, and to execute judgment or
sentence. Id. at 923; see also Benavides v.
Lee, 665 S.W.2d 151,151-52 (Tex. App.-
San Antonio 1983, no writ) (rejecting
similar claim by juvenile board comprised,
in part, of judges). Cf. Tex. Att'y Gen.
ORD-513 (1988) (records held by a district
attorney on behalf of a grand jury are in
grand jury's constructive possession and are
not subject to the PIA).
InTex. Att'y Gen. ORD-657 (1997), the
attorney general extended the Court's
analysis to a request for the Supreme Court's
telephone records. The attorney general
held that such records were not excepted
from the PIA:
An enrity may ... be a part of the judiciaty,
but if its records do nor relate to its
exercise of judicial power, such as records
pertaining to the day-to-day routine adm
inistratian of a court, these records should
be subject to the Open Records Act. To
fall within the judiciary exception, the
document must contain information that
dicedy pertains to the exercise of its
judicial powers.
On August 21, 1997, in a unanimous per
curiam opinion responding to the request
for its telephone records, the Supreme Court
rejected the attorney general's functional
analysis, finding that "The Legislature has
determined the judiciary should not be
subject to the ... act at all." See Order and
Opinion Denying Request Under Open
Records Ait, 1997 WL 583726, at *6 (Tex.
1997). In short, the Supreme Court
established that the functional analysis it
created in Holmes begins and ends with the
entity; it does not extend to an analysis of
the function of the entity's information.
The Supreme Court took steps, however,
to address the issue of access to
administrative judicial records within the
context of the Rules of Judicial Administration.
Effective April 1, 1999, the Rules
now provide that a judicial officer's records
are generally open for public review, but
certain information is excepted from
disclosure, including "judicial work
product," "internal deliberations on court
or judicial administration matters," and
prospective calendar entries. See generally
Tex. R.JudicialAdministration 12.4 & 12.5
(1999). Violations of Rule 12 are punishable
as violations of the Code of Judicial
Conduct. Id. at 12.10.
Public Information
General Definition
"Public information" is defined in the PIA
as information that is collected, assembled,
or maintained under a law or ordinance or
in connection with the transaction of
official business by a governmental body, or
for a governmental body and the
governmental body owns the information
or has a right of access to it. Tex. Gov't Code
Ann. 5 552.002(a) (Vernon Supp. 1999);
see also Blankenship, 975 S.W.2d at 363
(finding that City's "right of access" to
certain requested documents held by
another entity may create duty on City's part
to obtain and provide documents). The
statute includes an exhaustive (and non-exclusive)
list of media upon which the information
may be recorded, including paper,
tape, film, and computer memory. Tex.
Gov't Code Ann. 5 552.002 (b), (c)
(Vernon Supp. 1999). In short, if the
information is recorded in some form other
than within a human brain, it is probably
public information.
The PIA does not, however,
require that a governmental body disclose a
commercial book or publication purchased
or acquired by the governmental body for
research purposes if the book or publication
is commercially available to the public. Tex.
Gov't Code Ann. 5 552.027 (Vernon Supp.
1999). In other words, unless the information
is incorporated into an otherwise
public document, a requester has no right
to inspect and make copies of books,
publications and resource materials
maintained by .a governmental body. See
also Tex. Att'y Gen. ORD-550 (1990)
Jrecognizing copyright issues attendant to
certain public information).
Information That Does Not Currently
Exist Not Included
Public information does not include
documents that do not currently exist. A
governmental body is not obliged to prepare
the information is the form requested by a
member of the public. See, e.g., Tex. Att'y
Sometiiiies the ,
strength
.of one. ..
... lies within the
power
of a group.
-ciminde
Defense Lawyers
hsociation
[(I 1 1 j
TELICOYYYIICATIONI
The TCDLA long distance plan, adininis
tered by Eclipse Telecommunications, is
based on general economic theory - the
higher the volume, the lower the individual
cost. The TCDLA di program is based on the
idea of provi ng individual companies with
group-based purchasing power and benefits.
1. Endorsed by your association
2 Guaranteed flat rates
3. Members only service
For a quick rate comparison or more
information, contact an Eclipse account
representative at 1-800-342-9287.
,---.---------.----*----------------.-,
Or you may also complete the following
information and fax to 1-800-342-4240.
Name
Company
Phone #
4vg. monthly usage
MAY 1999 VOICE 31