Ken Paxton

Frequently Asked Questions

Relating to the Public Information Act:

What is the Public Information Act?

The Public Information Act, formerly known as the Open Records Act, is located at chapter 552 of the Government Code. The Act provides a mechanism for citizens to inspect or copy government records. It also provides for instances in which governmental bodies wish to, or are required by law to, withhold government records from the public.

What types of records are subject to the Public Information Act?

Any information collected, assembled, or maintained by or for a governmental body is subject to the Public Information Act. The format (paper, electronic, microfilm, etc.) of the record does not affect its status as a public record.

What is a "governmental body"?

For purposes of the Public Information Act, the term "governmental body" encompasses all Texas public entities at the state and local levels. It does not include the judiciary. Private entities may be considered governmental bodies if they are supported in whole or in part by public funds or they expend public funds. The Public Information Act does not apply, however, to private persons or businesses simply because they provide goods or services under a contract with a governmental body.

How can I request records of the judiciary?

Many court records are available for inspection or copying at the court clerk's office. However, records of the judiciary do not fall under the Public Information Act. To request records of the judiciary, the request must be in writing and must be addressed to the court's custodian of records. For more information about requesting and withholding records of the judiciary, click here.

How do I make a public information request?

The request must be in writing and must be addressed to the governmental body. While the request does not need to be addressed to any particular person, it is a good practice to clearly label your correspondence as a "Public Information Request" or "Open Records Request." Requests sent via fax or email must be addressed to the public information officer or to the person designated by that officer to receive such requests.

What should I say in my public information request?

No "magic language" is required to trigger the Public Information Act. You should, however, make the request as clear and as specific as possible. This will enable the governmental body to identify exactly what information you are requesting.

How long does the governmental body have to respond to my request for information?

The Act provides that a governmental body must respond "promptly" to a request for information. If a governmental body is unable to produce the requested information within ten business days, the officer for public information must send you correspondence certifying that he is unable to do so and he must set a date and time when the records will be available to you.

May a governmental body ask me why I want the records?

No, a governmental body is forbidden from inquiring about the purpose for which the records will be used. However, if a request is unclear or very broad, the governmental body may ask the requestor to more clearly identify or narrow his or her request. Additionally, a governmental body may require additional identifying information to determine that the requestor is eligible to receive certain types of information.

When may a governmental body refuse to release the information I request?

If the information you request falls within one of the exceptions to disclosure found in the Public Information Act, the governmental body may refuse to release the information while it seeks an open records decision from the Attorney General. Unless the governmental body has a previous determination from a court or the Attorney General regarding the precise information requested, a governmental body cannot determine on its own to withhold information.

What procedures must be followed if a governmental body wishes to withhold information?

Within ten business days of receiving a written request, the governmental body must:

  • write the Attorney General, asking for a decision and state which exceptions apply to the requested information;
  • 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;
  • provide the requestor with a copy of the governmental body's correspondence to the Attorney General; and
  • make a good faith attempt to notify, in the form prescribed by the Attorney General, any affected third parties of the request.

Within fifteen business days of receiving your request, the governmental body must:

  • write the Attorney General and explain how the claimed exceptions apply;
  • provide a copy of your written request to the Attorney General;
  • provide a signed statement to the Attorney General stating the date the request was received by the governmental body or provide evidence sufficient to establish the date the request was received; and
  • provide copies of the documents requested or a representative sample of the documents to the Attorney General and the documents must be labeled to show which exceptions apply to which parts of the documents.

Frequently Asked Questions
Relating to the Open Meetings Act:

What is the Open Meetings Act?

The Open Meetings Act, codified at chapter 551 of the Government Code, provides that meetings of governmental bodies must be open to the public except for expressly authorized executive sessions. The Act also provides that the public must be given notice of the time, place, and subject matter of meetings of governmental bodies.

What is a quorum and what is its significance?

The Open Meetings Act defines a "quorum" as a majority of the governing body unless otherwise defined by applicable law, rule, or charter. A quorum of a governmental body's members must be present in order for the governmental body to exercise the authority delegated to it.

Under some circumstances, less than a quorum of a governmental body may be subject to the Open Meetings Act.

See Esperanza Peace and Justice Center v. City of San Antonio, 316 F. Supp.2d 433 (W.D. Tex. 2001) ("walking quorum").

See Willmann v. City of San Antonio, 123 S.W.3d 469 (Tex. App.-San Antonio 2003, pet. denied) (subcommittee of city council).

Who may attend an executive session?

Only the members of a governmental body have a right to attend an executive session, except that the governmental body's attorney must be present when it meets under section 551.071. Thus, a commissioners court may exclude the county clerk from an executive sessions because the county clerk is not a member of the court.

See Tex. Att'y Gen. Op. No. JM-6 (1983).

A governmental body has discretion to include in an executive session officers and employees of the governmental body whose participation is necessary to the matter under consideration. Thus, a school board may require its superintendent of schools to attend all executive sessions of the board without violating the act.

See Tex. Att'y Gen. Op. No. JC-0375 (2001).

A commissioners court may include the county auditor in a meeting closed under section 551.071 to consult with its attorney if the court determines that (1) the auditor's interests are not adverse to the county's; (2) the auditor's presence is necessary for the court to communicate with its attorney; and (3) the county auditor's presence will not waive the attorney-client privilege. If the meeting is closed under an executive session provision other than section 551.071, the commissioners court may include the county auditor if the auditor's interests are not adverse to the county and his participation is necessary to the discussion.

See Tex. Att'y Gen. Op. No. JC-0506 (2002) at 6. See Tex. Att'y Gen. Op. No. JM-238 (1984).

Section 551.072 of the Government Code allows a governmental body to deliberate the purchase of real estate in an executive session if open deliberation will have a detrimental effect on its negotiating position with a third party. It is improper to allow a third party access to a governmental body's deliberations under 551.072, but the city manager could advise the city council in an executive session of his negotiations with a third party.

See Finlan v. City of Dallas, 888 F.Supp. 779 (N.D. Tex. 1995).

The attorney-client privilege permits the six members of a school board who have been sued by another board member to exclude the plaintiff board member from their executive session meetings held to consult with the board's attorney about this lawsuit.

See Tex. Att'y Gen. Op. No. JM-1004 (1989).

Do public officers and employees have the right to require the governmental body to conduct deliberations about them in executive session when the governmental body is conducting such a discussion in an open meeting?

No. Although an employee who is the subject of personnel deliberations under section 551.074 has a right to an open hearing, he has no right to insist upon a closed hearing.

See Tex. Att'y Gen. Op. No. JM-1191 (1990).

May a governmental body, with its attorney, meet in executive session under 551.071 with an opposing party to discuss certain legal issues in an effort to avoid litigation?

No. Section 551.071 does not permit an executive session held to discuss potential litigation with the opposing party.

See Tex Att'y Gen. Op. No. JM-238 (1984); See Tex. Att'y Gen. Op. No. MW-417 (1981).

May a governmental body convene into executive session to discuss the appointment of individuals to an advisory committee?

No. A governmental body may not meet in executive session to discuss the appointment of members to an advisory committee because members of an advisory committee are not public officers.

See Tex. Att'y Gen. Op. No. DM-149 (1992).

See also Tex. Att'y Gen. Op. No. LO-94-63.

But see Gov't Code § 551.0745 (executive session for county commissioners court to appoint members of advisory body).

May a governmental body meet in executive session to discuss information that is exempt from disclosure under one of the exceptions of the Public Information Act or that is confidential by law?

Closed meetings, other than those authorized by certain provisions in the Open Meetings Act permitting a closed session, may be held only where specifically authorized by law. The exceptions from disclosure in the Public Information Act do not create implied exceptions to the Open Meetings Act.

See Finlan v. City of Dallas, 888 F.Supp. 779, 782 (N.D. Tex. 1995).

See Tex. Att'y Gen. Op. Nos. GA-0019 (2003); DM-284 (1994) at 16; JM-595 (1986); MW-578 (1982).

How detailed should a certified agenda be?

The "certified agenda" of an executive session must contain at least a brief summary of every specific subject actually discussed, not just those originally intended for discussion. It need not contain a detailed summary or paraphrase of each question or idea presented on the general subject of the executive session. Enough detail should be included to enable a district judge to determine whether the Act has been violated.

See Tex. Att'y Gen. Op. No. JM-840 at 7 (1988).

If a governmental body is unable to discuss all items posted on their notice (agenda) due to time constraints, may it recess the meeting until the next day without having to post another notice?

A meeting may be continued to the following day without posting a new notice. If a meeting is continued to any day other than the one immediately following, the governmental body must post a new notice.

See Rivera v. City of Laredo, 948 S.W.2d 787 (Tex. App. --San Antonio 1997, writ denied).

See Tex. Att'y Gen. Op. JC-0308 (1998); Tex. Att'y Gen. Op. JC-0285 (2000); Tex. Att'y Gen. Op. H-1000 (1977).

May a member of a governmental body make statements to members of the press regarding subjects that were discussed in an executive session?

The Open Meetings Act does not prohibit members of a governmental body or other persons in attendance at an executive session from making public statements about the subject matter of that session. However, there may be privacy laws or policy concerns which may prevent such persons from divulging the deliberations of a closed session.

See Tex. Att'y Gen. Op. No. JM-1071 (1989).

May a member of a governmental body vote by proxy?

No. A common law rule prevents a member of a governmental body from submitting a written vote without attending the meeting of the body.

See Tex. Att'y Gen. Op. No. LO94-28 (1994).

Is a governmental body required to let citizens speak at their meetings?

No. The purpose of the Open Meetings Act is to ensure the public's access to meetings of governmental bodies so that they have the opportunity to be informed concerning the transactions of public business. It does not provide a public forum for every citizen wishing to express an opinion on a matter. However, if the governmental body decides to allow citizens to speak up, it must not unfairly discriminate, but may establish reasonable restraints on the number, length, and frequency of presentations.

See Tex. Att'y Gen. Op. No. H-188 (1973).

See also Charlestown Homeowner's Ass'n v. La Coke, 507 S.W.2d 876, 883 (Tex. App.--Dallas 1994, writ ref'd n.r.e.).

See also Tex. Att'y Gen. Op. No. JC-0169 (2000) (notice for public comment sessions).

Who enforces the criminal provisions of the act?

District courts have jurisdiction over criminal violations of the Act as misdemeanors involving official misconduct. Thus, complaints should be presented to the district attorney or criminal district attorney. The Office of the Attorney General has no independent enforcement authority, but local prosecutors may request assistance from the Attorney General in prosecuting criminal cases, including those arising under the Open Meetings Act.

See Tovar v. State, 978 S.W.2d 584 (Tex. Crim. App. 1998).

What kind of notice of meetings does the Open Meetings Act require?

There are many questions about the adequacy of notice and no short answer to them. These questions need to be addressed individually in the context of the relevant facts, so we usually cannot do more than state the test for adequacy of notice and possibly mention some of the cases that have applied the test.

Section 551.041 of the Government Code provides that "[a] governmental body shall give written notice of the date, hour, place, and subject of each meeting held by the governmental body." Most of the questions about notice concern the adequacy of the subject. The notice must identify the subjects of all deliberations, including those that may take place in executive session. The notice must be sufficient to inform the general public of the subjects to be considered, and if a subject is of particular interest to the community, more specificity may be required.

Many governmental bodies post the agenda of the meeting with the notice or as the notice, so many people use the terms "notice" and "agenda" interchangeably to refer to the posted document.