7 - Voice For The Defense Online

an original copy of a public record from the
office of the governmental body. Tex. Gov't
Code Ann. § 552.226 (VernonSupp. 1999).
The requester has ten days to complete
the examination of the information, but
may extend that period for an additional ten
days by making a written request. Tex. Gov't
Code Ann. § 552.225(a) & (b) (Vernon
Supp. 1999). This rule has been construed,
however, to only limit physical examination
of the records; it does not limit the number
of requests for copies. Tex. Att'y Gen.
ORD-5 12 (1988). If, during the examination
of the information, it is needed by the
governmental body, the officer for public
information may interrupt the requester's
inspection, but cannot count the period of
interruption against the ten days. Tex. Gov't
Code Ann. 8 552.225(c) (Vernon Supp.
1999).
There is no charge for access to and
review of public records unless the governmental
body is obliged to redact confidential
information from the records, or program
or manipulate electronic data. Tex. Gov't
Code Ann. §§ 552.271 k552.272 (Vernon
Supp. 1999).
Copying
The PIA requires a governmental body to
provide "a suitable copy of public information
within a reasonable time after the date
on which the copy is requested." Tex. Gov't
Code Ann. § 552.228 (VernonSupp. 1999).
If the requested records are copyrighted,
they may be subject to public disclosure, but
the custodian must comply with copyright
law and is not required to furnish copies of
copyrighted records. Tex. Att'y Gen.
ORD-550 (1990). Moreover, the requester
assumes the duty of compliance with the
copyright law and the risk of a copyright
infringement suit. Id.
To the extent that the request calls for a
document that is only partially excepted
from disclosure, a governmental body must
provide the document with the excepted
information redacted, rather than a new
document without the excepted information.
Tex. Att'y Gen. ORD-606 (1992); see
also Tex. Att'y Gen. ORD-633 (1995)
(governmental body cannot make substitutions
for specificallv . requested . offense
report portions that are not excepted from
required public disclosure, unless the
requester agrees to the substitution). To
the extent that the redactions relate to
confidential information, a governmental
body may charge, in addition to the
photocopying costs, a reasonable cost for
personnel time spent to redact the
confidential:information. Tex. Att'y Gen.
ORD-488 (1988). A governmental body
may not, however, charge for costs incurred
in redacting information excepted from disclosure
by the PIPA nonmandatory exceptions.
Tex. Att'y Gen. ORD-633 (1995).
Asserting an Exception
As noted above, one of the key premises of
the PIA is that a governmental body has
very little discretion to withhold information
without permission from either the
attorney general or the courts. Accordingly,
except as noted in subsection (b) below,
whenever a governmental body wishes to
assert an exception to disclosure in response
to arequest for information, the govekental
body must seek permission from the attorney
general to withhold the information.
Procedure for Opinion Request
The PIA contains 30 statutory exceptions
to disclosure of documents. If a governmental
body believes that the request for
information implicates one of these
exceptions to disclosure, it has 10 business
days after receipt of the request for
information to seek an opinion from the
attorney general on whether the information
may be withheld. Tex. Gov't Code Ann. §
552.301(a) (Vernon Supp. 1999).
With respect to the interests of a third
party in the requested records, the governmental
body must make the request for the
attorney general to assume jurisdiction; the
request cannot be made by a third party
individual whose interests are implicated by
the request for information. Tex. Att'y Gen.
ORD-542 (1990); see also Tex. Gov't Code
Ann. § 552.305 (Vernon 1994 & Vernon
Supp. 1999) (mechanism for governmental
body to assert third party privacy interests).
Addressing an interesting paradoxical
situation, the Waco court of appeals recently
held that an entity's invocation of the
attorney general opinion procedure
(generally reserved to governmental bodies)
does not estop the entity from asserting that
it is not a governmental body. Blankenship,
975 S.W.2d at 362; see also 1998 Open
Records Handbook at 4 (Tex. Att'y Gen.
1998) ("An entity that does not believe it
is a 'governmental body' within this
Jefinition is advised to timely request a
decision from the attorney general under
subchapter G of the Act if there has been
no previous determination regarding this
issue and it wishes to withhold the requested
information.")
Within 15 business days of the
receipt of the request for information, the
governmental body must submit the following
information to the attorney general to
perfect the opinion request:
(1) Written comments stating the
reasons why the stated exceptions apply that
would allow the information to be withheld;
(2) A copy of the written request for
information;
(3) A copy of the specific information
requested, or representative samples of the
information if a voluminous amount of
information is requested; and
(4) Labels on the submitted information
indicating which exceptions apply to
which parts of the copy.
Tex. Gov't Code Ann. 5 552.301(b)
(Vernon Supp. 1999).
The attorney general then has 60 days
to render an opinion regarding release of the
Important I
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MAY 1999 VOICE 33