2015 Legislative and Litigation Update

Neal FalgoustMatt Entsminger

Assistant Attorneys GeneralOffice of the Attorney General

Views expressed are those of the presenter, do not constitute legal advice and are not official opinions of the Office of the Texas Attorney General

LEGISLATIVE UPDATE

SB 308 amends section 51.212 of the Education Code:

• A campus police department of a private institution of higher education is a law enforcement agency and is a governmental body for purposes of the Act.

• The Act applies only to information relating solely to law enforcement activities.

Private University Police Departments

HB 685 amends section 552.221 of the Government Code:

• May refer requestor to governmental body’s website that contains requested information, unless the requestor prefers a manner other than access through a website.

• If website link provided by e-mail, must add conspicuous language regarding other methods of acquiring requested information.

• Note: Applies only to a “political subdivision.”

Also amends section 182.052 of Utilities Code:• Governmental body may withhold “personal information”

without requesting a ruling.• “Personal information” means an individual’s address,

telephone number, or social security number, but does not include an individual’s name.

Procedural Amendments to the PIA

SB 158 adds subchapter N to the Occupations Code:

• Creates a funding program for body-worn cameras.• Requires law enforcement agencies to adopt certain

policies related body-worn cameras.• Provides procedures for requesting and releasing

information created by a body-worn camera.

Body-Worn Cameras (Slide 1 of 5)

Procedures for requesting information:

• Requestor must provide the following information when requesting body-worn camera footage from a law enforcement agency: Date and approximate time of the incident Specific location where recording occurred Name of one or more persons known to be a subject

of the recording.

• Requestor may submit another request even if the first request does not contain the required information.

Body-Worn Cameras (Slide 2 of 5)

Responding to a “voluminous request”:

• “Voluminous request” defined: Recordings from more than five separate incidents More than five separate requests for recordings from

the same person within 24 hours A request or multiple requests from the same person

within 24 hours that constitute more than five total hours of video footage.

• A governmental body complies with the disclosure requirement if it provides the information before the 21st business day after it receives a “voluminous request.”

Body-worn Cameras (Slide 3 of 5)

Procedures for requesting a ruling:

• A request for a ruling and notification of the requestor is timely if made not later than the 20th business day after receipt of the request.

• Submission of the information required by section 552.301(e) and notification of the requestor of that information is timely if made not later than the 25th business day.

• Law enforcement agency may assert any exception to disclosure under chapter 552 of the Government Code or other law.

Body-worn Cameras (Slide 4 of 5)

Releasing body-worn camera footage:

• Any recording that documents the use of deadly force or is related to an administrative or criminal investigation of an officer may not be released until all criminal matters are finally adjudicated and all administrative investigations completed. A law enforcement agency may release such

information if it determines release furthers a law enforcement interest.

• A law enforcement agency may not release any portion of a recording made in a private space or relating to the investigation of a fine-only misdemeanor that does not result in arrest, without written authorization from the person who is the subject of that portion of the recording.

Body-worn Cameras (Slide 5 of 5)

HB 3791 adds article 2.139 to the Code of Criminal Procedure and provides a right of access to a person arrested for certain intoxication offenses:• Driving while intoxicated• Driving while intoxicated with child passenger, • Intoxication assault • Intoxication manslaughter

• Arrestee entitled to a copy of any video documenting the stop; the arrest; the conduct of the person, including administration of a field sobriety test; or a procedure in which a specimen of the person’s breath or blood is taken.

Intoxication Arrest Videos

HB 2633 amends section 550.065 of the Transportation Code:• Crash reports are generally confidential, but the

following entities have a right of access to the complete report: Any person involved in the crash or that person’s

authorized representative; A driver involved in the crash, and the driver’s

employer, parent, or guardian. The owner of a vehicle or property damaged in the

crash; Qualified newspapers, radio stations, and television

stations; Any person who may sue because of a death

resulting from the crash.• A redacted version of the report may be requested by

any person.

Peace Officer’s Crash Reports (CR-3)

HB 1832 amends section 412.054 of the Labor Code:

• A continuity of operations plan, and any records written, produced, collected, or maintained as part of the development or review of such a plan, are confidential.

• Forms, standards, and other instructional, informational, or planning materials provided by State Office of Risk Management to provide guidance or assistance to a state agency in developing a continuity of operations plan are public information subject to disclosure.

• A state agency may disclose information confidential under this section to another state agency, a governmental body, or a federal agency; such disclosure does not waive the confidentiality of such information.

Continuity of Operations Plans

For detailed discussions of these and other statutory updates, please consult the Public Information Handbook, available for download at www.texasattorneygeneral.gov

Open Government Hotline: (877) 673-6839

More Information

LITIGATION UPDATE

Major Developments in Public Information Act Litigation

TEXAS SUPREME COURT

Major Developments in Public Information Act Litigation

Kallinen v. City of HoustonKallinen v. City of Houston, 462 S.W.3d 25 (Tex. 2015)

Suit for mandamus filed under Tex. Gov’t Code § 552.321(a)

Court of appeals held trial court lacks subject matter jurisdiction over mandamus suit until the Attorney General rules.

Reversed. Attorney General does not possess exclusive jurisdiction over open records matters and requestor is not required to wait until a open records ruling is issued.

But court has discretion to abate proceeding until AG rules.

Major Developments in Public Information Act Litigation

Boeing v. PaxtonBoeing Co. v. Paxton, 466 S.W.3d 831 (Tex. 2015)

Tex. Gov’t Code §552.104 – Excepts information that, if released, would give advantage to competitor or bidder.

Court of appeals agreed with Attorney General that exception may only be raised by governmental body, not a 3rd party.

Reversed. A 3rd party such as Boeing may assert §552.104 to contest release of information held by a governmental body.

Information does not necessarily have to relate to “ongoing competitive bidding” in order to receive protection.

Major Developments in Public Information Act Litigation

Greater Houston Partnership v. PaxtonGreater Houston P’ship v. Paxton, No. 13-0745, 2015 WL 3978138 (Tex. June 26, 2015)

GHP claimed it is not a “governmental body” under the Public Information Act and need not respond to records requests.

Court of appeals agreed with Attorney General and ordered GHP to release the requested records.

Reversed. The Court’s opinion focuses on the meaning of the phrase “supported in whole or in part by public funds” in Tex. Gov’t Code § 552.003.

“Governmental body” includes only those entities that are sustained by public funds. If an entity depends on public funds to perform its functions, it is a governmental body.

Major Developments in Public Information Act Litigation

TEXAS COURTS OF APPEAL

Major Developments in Public Information Act Litigation

Paxton v. DallasPaxton v. City of Dallas, No. 03-13-00546-CV, 2015 WL 3394061 (Tex. App.—Austin

May 22, 2015, pet. denied)

Dallas claimed birthdates of members of the general public are “confidential by law.”

Trial court granted summary judgment for Dallas.

Affirmed. Citizens have a privacy interest in their birth dates.

Confidential under common-law privacy pursuant to Supreme Court’s decision in Texas Comptroller of Public Accounts v. Attorney General of Texas, 354 S.W.3d 336 (Tex.2010).

Supreme Court denied review.

Major Developments in Public Information Act Litigation

Adkisson v. PaxtonAdkisson v. Paxton, 459 S.W.3d 761 (Tex. App.—Austin 2015)

Request sought e-mails from Commissioner’s personal accounts related to his official capacity as county commissioner.

Trial court rejected Adkisson’s claim that the e-mails were neither public information nor “collected, assembled, or maintained” for the County under Tex. Gov’t Code §552.002.

Affirmed. Any government records collected, assembled, or maintained in Commissioner’s personal e-mail accounts belong to the County, not to Commissioner in his individual capacity.

Because Commissioner is the public information officer for his official office, the e-mails were maintained for the County.

Common-law privacy did not protect emails in personal account.

Major Developments in Public Information Act Litigation

Paxton v. City of LibertyPaxton v. City of Liberty, No. 13-13-00614-CV, 2015 WL 832087 (Tex. App.—Corpus

Christi Feb. 26, 2015)

Request sought the cell phone records of a City police officer.

City failed to comply with the Act’s procedural requirements.

Trial court agreed the City had violated the Act but found the City had demonstrated a “compelling reason” to withhold the records under law enforcement exception and informer’s privilege.

Reversed. No “compelling interest” because City failed to show

the requested information was confidential by law or that release of the information implicated the legal interests of third parties.

Major Developments in Public Information Act Litigation

Attorney-Client Privilege CasesAbbott v. City of Dallas, 453 S.W.3d 580 (Tex. App.—Austin 2014, pet. filed)

City of Dallas v. Paxton, No. 13-13-00397-CV, 2015 WL 601974 (Tex. App.—Corpus Christi Feb. 12, 2015, pet. filed)

Requests sought information the City claims is privileged.

City failed to comply with the Act’s procedural requirements.

Attorney General ruled Tex. Gov’t Code§552.107(1) is not a compelling reason to withhold information.

Held: Attorney-client privileged information also excepted from disclosure under Tex. Gov’t Code§552.101 in conjunction with Texas Rules of Evidence & Disciplinary Rules of Professional Conduct.

Petition for Review pending before Texas Supreme Court.