Bill Text: TX HB3848 | 2017-2018 | 85th Legislature | Introduced
Bill Title: Relating to the public information law; creating a criminal offense.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2017-04-24 - Left pending in committee [HB3848 Detail]
Download: Texas-2017-HB3848-Introduced.html
85R12197 BEF-F | ||
By: Hunter | H.B. No. 3848 |
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relating to the public information law; creating a criminal | ||
offense. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Section 552.003, Government Code, is amended by | ||
adding Subdivision (7) to read as follows: | ||
(7) "Temporary custodian" means an officer or employee | ||
of a governmental body who, in the transaction of official | ||
business, creates or receives public information that the officer | ||
or employee has not provided to the officer for public information | ||
of the governmental body or the officer's agent. The term includes | ||
a former officer or employee of a governmental body who created or | ||
received public information in the officer's or employee's official | ||
capacity that has not been provided to the officer for public | ||
information of the governmental body or the officer's agent. | ||
SECTION 2. Section 552.004, Government Code, is amended to | ||
read as follows: | ||
Sec. 552.004. PRESERVATION OF INFORMATION. (a) A | ||
governmental body or, for information of an elective county office, | ||
the elected county officer, may determine a time for which | ||
information that is not currently in use will be preserved, subject | ||
to Subsection (b) and to any applicable rule or law governing the | ||
destruction and other disposition of state and local government | ||
records or public information. | ||
(b) A current or former officer or employee of a | ||
governmental body who maintains public information on a privately | ||
owned device shall: | ||
(1) forward or transfer the public information to the | ||
governmental body or a governmental body server to be preserved as | ||
provided by Subsection (a); or | ||
(2) preserve the public information in its original | ||
form on the privately owned device for the time required under | ||
Subsection (a). | ||
SECTION 3. Subchapter B, Chapter 552, Government Code, is | ||
amended by adding Section 552.0222 to read as follows: | ||
Sec. 552.0222. DATES OF BIRTH. This chapter does not | ||
authorize a governmental body to withhold a date of birth except as: | ||
(1) permitted by Section 552.108; or | ||
(2) otherwise provided by constitutional or statutory | ||
law. | ||
SECTION 4. Section 552.101, Government Code, is amended to | ||
read as follows: | ||
Sec. 552.101. EXCEPTION: CONFIDENTIAL INFORMATION. (a) | ||
Except as provided by Subsection (b), information [ |
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excepted from the requirements of Section 552.021 if it is | ||
information considered to be confidential by law, either | ||
constitutional, statutory, or by judicial decision. | ||
(b) The exception to disclosure provided by Subsection (a) | ||
does not apply to a date of birth considered to be confidential by | ||
judicial decision. | ||
SECTION 5. Section 552.102, Government Code, is amended by | ||
adding Subsection (c) to read as follows: | ||
(c) The exceptions to disclosure provided by Subsections | ||
(a) and (b) do not apply to a date of birth. | ||
SECTION 6. Section 552.203, Government Code, is amended to | ||
read as follows: | ||
Sec. 552.203. GENERAL DUTIES OF OFFICER FOR PUBLIC | ||
INFORMATION. Each officer for public information, subject to | ||
penalties provided in this chapter, shall: | ||
(1) make public information available for public | ||
inspection and copying; | ||
(2) carefully protect public information from | ||
deterioration, alteration, mutilation, loss, or unlawful removal; | ||
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(3) repair, renovate, or rebind public information as | ||
necessary to maintain it properly; and | ||
(4) make reasonable efforts to obtain public | ||
information from a temporary custodian if: | ||
(A) the information has been requested from the | ||
governmental body; | ||
(B) the officer for public information is aware | ||
of facts sufficient to warrant a reasonable belief that the | ||
temporary custodian has possession, custody, or control of the | ||
information; | ||
(C) the officer for public information is unable | ||
to comply with the duties imposed by this chapter without obtaining | ||
the information from the temporary custodian; and | ||
(D) the temporary custodian has not provided the | ||
information to the officer for public information of the | ||
governmental body or the officer's agent. | ||
SECTION 7. Section 552.221, Government Code, is amended by | ||
amending Subsections (b-1) and (b-2) and adding Subsections (e) and | ||
(f) to read as follows: | ||
(b-1) In addition to the methods of production described by | ||
Subsection (b), an officer for public information for a | ||
governmental body [ |
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with Subsection (a) by referring a requestor to an exact Internet | ||
location or uniform resource locator (URL) address on a website | ||
maintained by the governmental body [ |
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accessible to the public if the requested information is | ||
identifiable and readily available on that website. If the person | ||
requesting the information prefers a manner other than access | ||
through the URL, the governmental body [ |
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supply the information in the manner required by Subsection (b). | ||
(b-2) If an officer for public information for a | ||
governmental body [ |
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Internet location or uniform resource locator (URL) address as | ||
permitted by Subsection (b-1), the e-mail must contain a statement | ||
in a conspicuous font clearly indicating that the requestor may | ||
nonetheless access the requested information by inspection or | ||
duplication or by receipt through United States mail, as provided | ||
by Subsection (b). | ||
(e) If the governmental body determines it has no | ||
information responsive to a request for information, the officer | ||
for public information shall notify the requestor in writing not | ||
later than the 10th business day after the date the request is | ||
received. | ||
(f) If a governmental body determines the requested | ||
information is subject to a previous determination that permits or | ||
requires the governmental body to withhold the requested | ||
information, the officer for public information shall, not later | ||
than the 10th business day after the date the request is received: | ||
(1) notify the requestor in writing that the | ||
information is being withheld; and | ||
(2) identify in the notice the specific previous | ||
determination the governmental body is relying on to withhold the | ||
requested information. | ||
SECTION 8. Subchapter E, Chapter 552, Government Code, is | ||
amended by adding Section 552.234 to read as follows: | ||
Sec. 552.234. OWNERSHIP OF PUBLIC INFORMATION. (a) A | ||
current or former officer or employee of a governmental body does | ||
not have, by virtue of the officer's or employee's position or | ||
former position, a personal or property right to public information | ||
the officer or employee created or received while acting in an | ||
official capacity. | ||
(b) A temporary custodian with possession, custody, or | ||
control of public information shall surrender or return the | ||
information to the governmental body not later than the 10th day | ||
after the date the officer for public information of the | ||
governmental body or the officer's agent requests the temporary | ||
custodian to surrender or return the information. | ||
(c) If a temporary custodian fails to surrender or return | ||
public information to a governmental body as required by Subsection | ||
(b), the officer for public information of the governmental body | ||
shall, not later than the 10th business day after the deadline to | ||
surrender or return information under Subsection (b), notify the | ||
attorney general in writing of the facts related to the failure and | ||
send a copy of the written notice to the requestor. On receipt of | ||
written notice from an officer for public information as provided | ||
by this subsection, the attorney general may sue for an injunction | ||
or writ of mandamus to compel a temporary custodian with | ||
possession, custody, or control of public information to surrender | ||
or return the information as required by Subsection (b). A suit | ||
filed under this subsection: | ||
(1) must be filed in a district court for the county in | ||
which the main offices of the governmental body are located; | ||
(2) may not proceed, and process may not be issued, | ||
until the court enters a written finding that the petition sets | ||
forth facts sufficient to warrant probable cause that the current | ||
or former officer or employee against whom the action is filed is in | ||
possession, custody, or control of public information that has not | ||
been made available to the governmental body that owns the | ||
information; and | ||
(3) shall be dismissed, with prejudice except as | ||
provided by Subsection (e), if the current or former officer or | ||
employee files an answer containing a general denial supported by a | ||
sworn affidavit stating the current or former officer or employee | ||
is not in possession, custody, or control of public information | ||
responsive to the request at issue. | ||
(d) The attorney general shall send a copy of a petition | ||
filed under Subsection (c) to the requestor. | ||
(e) A suit dismissed under Subsection (c)(3) is dismissed | ||
without prejudice and may be refiled by the attorney general if the | ||
current or former officer or employee, in providing the affidavit | ||
authorized under Subsection (c)(3), engaged in conduct that is an | ||
offense under Section 37.02 or 37.03, Penal Code, and is arrested, | ||
charged, or indicted for that offense. Subsection (c)(3) does not | ||
apply to a suit refiled under this subsection. | ||
(f) For purposes of the application of Subchapter G to | ||
information surrendered or returned to a governmental body by a | ||
temporary custodian under Subsection (b) or as a result of a suit | ||
under Subsection (c), the governmental body is considered to | ||
receive the request for that information on the date the | ||
information is surrendered or returned to the governmental body. | ||
SECTION 9. Section 552.301(b), Government Code, is amended | ||
to read as follows: | ||
(b) The governmental body must ask for the attorney | ||
general's decision and state the specific exceptions that apply | ||
within a reasonable time but not later than the 10th business day | ||
after the date of receiving the written request. | ||
SECTION 10. The heading to Subchapter H, Chapter 552, | ||
Government Code, is amended to read as follows: | ||
SUBCHAPTER H. CIVIL ENFORCEMENT; COMPLAINT | ||
SECTION 11. Subchapter H, Chapter 552, Government Code, is | ||
amended by adding Section 552.328 to read as follows: | ||
Sec. 552.328. FAILURE TO RESPOND TO REQUESTOR. (a) If a | ||
governmental body fails to respond to a requestor as required by | ||
Section 552.221, the requestor may send a written complaint to the | ||
attorney general. | ||
(b) The complaint must include: | ||
(1) the original request for information; and | ||
(2) any correspondence received from the governmental | ||
body in response to the request. | ||
(c) If the attorney general determines the governmental | ||
body improperly failed to comply with Section 552.221 in connection | ||
with a request for which a complaint is made under this section: | ||
(1) the attorney general shall notify the governmental | ||
body in writing and require the governmental body to complete open | ||
records training not later than six months after receiving the | ||
notification; | ||
(2) the governmental body may not assess costs to the | ||
requestor for producing information in response to the request; and | ||
(3) if the governmental body seeks to withhold | ||
information in response to the request, the governmental body must: | ||
(A) request an attorney general decision under | ||
Section 552.301 not later than the fifth business day after the date | ||
the governmental body receives the notification under Subdivision | ||
(1); and | ||
(B) release the requested information unless | ||
there is a compelling reason to withhold the information. | ||
SECTION 12. The heading to Section 552.353, Government | ||
Code, is amended to read as follows: | ||
Sec. 552.353. FAILURE OR REFUSAL OF OFFICER FOR PUBLIC | ||
INFORMATION OR TEMPORARY CUSTODIAN TO PROVIDE ACCESS TO OR COPYING | ||
OF PUBLIC INFORMATION. | ||
SECTION 13. Section 552.353, Government Code, is amended by | ||
adding Subsection (a-1) to read as follows: | ||
(a-1) A temporary custodian who has possession, custody, or | ||
control of public information responsive to a request commits an | ||
offense if, with criminal negligence, the temporary custodian fails | ||
to surrender or return the information to the governmental body on | ||
request of the officer for public information or the officer's | ||
agent, as required by Section 552.234(b). | ||
SECTION 14. The change in law made by this Act applies only | ||
to a request for public information received on or after the | ||
effective date of this Act. A request for public information | ||
received before the effective date of this Act is governed by the | ||
law in effect when the request was received, and the former law is | ||
continued in effect for that purpose. | ||
SECTION 15. This Act takes effect September 1, 2017. |