In Texas, Attorney General judgements on exceptions are the rule

In Texas, Attorney General judgements on exceptions are the rule

So a Lone Star agency has asked the AG to justify its exemptions. You haven’t even received your records yet. What gives?

Written by
Edited by Beryl Lipton

Appeals are a critical tool for records requesters who want government agencies to cough up their secrets, but what if an agency puts up its defense before you even know you’re in a disclosure fight?

Texas has a peculiar process that routinely causes confusion for MuckRock users. It hinges on the involvement of the state’s Attorney General and is codified in Texas Government Code § 552.301, Subsection (a):

“A governmental body that receives a written request for information that it wishes to withhold from public disclosure and that it considers to be within one of the exceptions under Subchapter C must ask for a decision from the attorney general about whether the information is within that exception if there has not been a previous determination about whether the information falls within one of the exceptions.”

In other words, if an agency wants to withhold information based on an exception, it has no choice but to ask the AG whether the information is covered by that exception (MuckRock’s Texas guide refers to this as a “pre-appeal”). These exceptions are found in § 552.101-160 and include a wide variety of topics, covering everything from student records to geological information and certain information about convict executions.

Since every successful application of an exception in Texas comes from an AG’s opinion, a lawsuit is the only available option for appealing these decisions. This process is commonly referenced throughout the Texas Public Information Act, with many subsections ending with the sentence: “The requestor or the governmental body may appeal a decision of the attorney general under this subsection to a Travis County district court.”

This process may seem daunting, but isn’t necessarily a bad thing. Crucially, the supremacy of the AG’s ruling applies to both requesters and government entities: if the AG decides in your favor, the government would need to sue to stop the release. And while it offers opportunities for agency delays, it also provides a regular barrier for agencies attempting unreasonable secrecy.

Perspectives on the Texas Policy

As Jessie Gomez wrote for MuckRock earlier this year:

“[I]t’s up to the AG to decide if the agency’s justifications are enough. It’s a pretty sweet deal for requesters looking to get records out of Texas as they can sit back, relax and let the process unfold. But as with any bureaucratic process, requesters can find themselves waiting on the AG’s decision for up to 45 business days with an additional 10 business days if the AG decides it needs more time.”

Long wait times can allow government entities to game the system.

“It’s not at all uncommon for an agency that knows for absolute certain that a record is subject to disclosure to claim uncertainty and kick the question to the attorney general, just hoping to buy a few weeks of delay,” said Frank LoMonte, Director of the Brechner Center for Freedom of Information.

Some universities, for example, have stalled the release of particularly newsworthy records until after the story left the news cycle.

“There should be penalties in the statute for repeat offenders that make bad-faith requests for an A.G. opinion on records that they know to be public records,” LoMonte said, “but regrettably there’s no mechanism for penalizing misuse of the process.”

While not much can be done to stop misuse, most of the “pre-appeal” process is fairly transparent. Texas agencies are required to send you a copy of their communications with the Attorney General’s Office. This policy is codified in § 552.301 Subsection (d), and specifically states that the agency must provide you:

(1) a written statement that the agency wishes to withhold information and has asked for a decision from the attorney general; and

(2) a (possibly redacted) copy of the governmental body’s written communication to the attorney general; and it must do so within 10 business days.

Furthermore, some argue the state’s unique process substantially strengthens the Texas Public Information Act (PIA) compared to other state public records laws. Kelley Shannon, Executive Director of the Freedom of Information Foundation of Texas, argues that the PIA, originally founded in response to the Sharpstown Stock-Fraud Scandal of the early 1970s, is one of the strongest public records laws in the country—largely because of the AG rule.

In many other states, government entities can freely deny records requests, safe behind the fact that requesters must sue to appeal. By requiring government entities to get approval before applying exceptions, Shannon and others argue, the Texas PIA places the burden on the government, rather than on requesters. This process is no small task. According to Shannon, the Texas AG Office’s Open Records Division makes over 29,000 decisions annually.

Furthermore, while the wait time for AG decisions might seem long—long enough for some government entities to cheat the system—the AG is required to deliver a decision in, at most, 45 days. Under other public records laws, including FOIA, requesters often wait months before substantial action is taken by the relevant government entity.

What you can do

So, now that you know this policy, what should you do about it?

“Don’t give up,” Shannon said.

Many exemptions are clear-cut, so doing your research before submitting a request can go a long way. The AG will use the law to make its decision; you can read that law here. The AG also provides plenty of tools for you to use, including a website, an official Public Information Act Handbook, and an “Open Government Hotline” (512-478-6736).

If you’ve already submitted your request, don’t panic! There are still plenty of things you can do. Just as governmental entities are required to submit their reasons for applying an exception, you are also entitled to submit your own statements to the AG’s Office before they make a decision. Read up on the laws surrounding the exemptions your government entity is trying to use, and come up with arguments why those exemptions shouldn’t apply. And if you’re feeling particularly litigious, you can preemptively file a lawsuit before the AG makes a decision.

If you need more ways to help your case, the Freedom of Information Foundation of Texas has a list of best practices for filing requests under the Texas Public Information Act:

Thanks to Frank D. LoMonte from the Brechner Center for Freedom of Information and Kelley Shannon from the Freedom of Information Foundation of Texas for their comments. More information can be found at the links to each organization’s website.

Image by Michael Hogan licensed under CC BY 2.0