Lessons from the 2013 Open Government Conference

Matthew Marion 'Matt' Coleman's Education Law Legal Blogs

Licensed for 4 years

Attorney in Austin, TX

by Matthew Coleman, Associate
Eichelbaum Wardell Hansen Powell & Mehl, P.C.


This past
December, nearly 800 attendees, including many government employees, travelled
to Austin from across the state to attend the 2013 Open Government Conference.
The annual two-day conference was hosted by the Texas Attorney General, and
covered basic and advanced topics from both the Open Meetings Act and Public
Information Act. Although the attendees came from various backgrounds and
governmental bodies, everyone left the conference having learned something.
Below are seven helpful tips, tricks, and reminders that were shared at the
conference and that every public information officer should keep in mind when
handling public information requests.


Open Records Officer: By default, the open records officer for a
school district is the Superintendent. The Superintendent can delegate that
authority to another person, but should clearly identify that person on the
district’s website and in policy [CPC (LOCAL)]. Emailed and faxed requests for
public information are valid under the PIA only if they are sent to the
designated open records officer of a governmental body, but the public must be
able to determine who is responsible for handling the request.


Emailed vs. Physical Requests: An emailed or faxed request for information
is valid only if sent to the designated open records officer, but physical
correspondence (a letter, note, complaint form, or other document, typed or handwritten)
will trigger the PIA no matter who at the district receives it. Be sure that
all employees are aware that requests for information must be routed to the open
records officer, to avoid  accidentally
violating the PIA’s deadlines and procedures.


Charges for Information: The PIA permits districts to charge
requestors for copies of and access to public information, but how much the
district can charge varies based on number of factors including the location of
the records, the format in which they are stored, and whether specialized
personnel need to be hired to manipulate and access the data. Most importantly,
however, districts are not allowed to charge a requestor for attorney’s fees
associated with reviewing the information and sending an exception letter to
the Attorney General. For other charges, the Attorney General has provided a
useful estimate tool on their website at: www.oag.state.tx.us/open/cost_page.shtml


Existing Information Only: Districts are not required to provide
information in response to a PIA request that did not exist at the time the
request was received. In effect, this makes requests for “all future documents”
of a certain type invalid, and ensures that districts do not have to create new
information in response to a request. If a requestor wants information created
at a later date, he will need to submit a second request for information.


Handling Vexatious Requestors: Every government body will run across a
“vexatious requestor” at one point or another, and unfortunately the PIA does
not make it easy – or cheap – to deal with them. But the Attorney General did
have a few tips for handing problematic requests. First, a district can usually
ask a requestor to clarify the request if it is very broad or vague. A request
for clarification stops the PIA timeline, but must be made in good faith.
Second, the time and cost estimate procedures are great for pausing a request
until a requestor has paid a deposit or agreed to the estimated charges in
writing.  Finally, in rare circumstances
the Attorney General can issue a previous determination letter which applies to
all requests for a certain kind of information. To date, no school districts
have been granted such a letter, but if your district receives numerous
requests for the same kind of information you should talk to your school law
attorney about requesting such a determination from the Attorney General.


Social Media and the OMA: As technology continues to evolve, so do all
of the ways that government officials can run afoul of the Open Meetings Act.
Although the Legislature has begun to address some narrow issues surrounding
the use of technology and open meetings, every trustee should be aware that by
discussing public business on Facebook, Twitter, via text message, by email, or
elsewhere on the internet, trustees can inadvertently violate the OMA. The
Attorney General is looking very closely at this kind of alleged violation, so
districts should be proactive in adopting policies and procedures that limit
how and when trustees discuss public business outside of a board meeting.


Videoconferencing: The videoconferencing rules adopted by the
Legislature in 2013 are convoluted and contradictory. Districts that are
willing to take on the burden and the cost of complying with the
videoconferencing statute and rules establishing technical standards are
certainly free to do so, but should work closely with their attorney and their
information technology personnel to ensure compliance with the law. Most
districts, however, will be best served by holding off until the Legislature
fixes the law in 2015.


As always,
questions about complying with the Open Meetings Act and Public Information Act
should be directed to your school law attorney or to the Texas Attorney
General. And from all of us at Eichelbaum Wardell, have a safe and happy 2014!

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