Wednesday, November 20, 2019
Alexandra Payne Staff Reporter (2019 – 2020)
The government is required to produce some information for the general public. However, both federal and state laws allow citizens to request additional information that might not otherwise be disclosed. This article describes the laws that govern public requests for information from federal and Texas state agencies.
What is the Freedom of Information Act? The Freedom of Information Act is a federal statute that obligates federal government agencies to make certain information available to the public.¹ By law, federal agencies are required to publish information pertaining to specified subject matter in either print or online format, depending on the subject matter.² The law also requires federal agencies to make information available to individuals upon request, unless the information falls under an exemption.³
Although this statute only applies to federal governmental agencies, states often have similar laws, which allow an individual to request records from state agencies. The purpose of the Freedom of Information Act and similar state statutes, is to keep the government transparent and accountable for its actions.⁴ In Texas, the Public Information Act requires all state governmental bodies to provide certain records to the public, unless that information is exempt from disclosure.⁵ The requester need not be a citizen of Texas to file a Public Information Act request.⁶
Who is obligated to produce these records? The Freedom of Information Act applies to all federal government agencies.⁷This includes military departments, government corporations, and regulatory agencies.⁸ For example, a requester may file a Freedom of Information request with the Department of Energy or the Federal Drug Administration (FDA). However, this statute does not apply to Congress.
In Texas, the Public Information Act applies to all Texas governmental bodies.⁹For example, this can include state boards, commissions, departments, institutions, agencies, municipalities, and school district boards. However, this statute does not apply to the judiciary.¹⁰
What is a Freedom of Information Act request? A Freedom of Information Act request is a tool used to ask for information that a government agency is required to provide to the public.¹¹ The Freedom of Information Act gives federal agencies twenty (20) business days to respond to a request. The agency must either produce the requested documents or state the reason the requested information is exempt from disclosure.¹²
In Texas, the Public Information Act gives state agencies ten (10) business days to respond to a public records request.¹³ A requester may use a Public Information Act request to obtain this information.¹⁴
What records can I request? The requester may request federal agency records unless the information requested is exempt from disclosure.¹⁵ The agency may only withhold information if the agency “reasonably foresees” that the disclosure will harm the public or if the disclosure is prohibited by law.¹⁶ For example, classified information and information relating to national defense or foreign policy are exempt.¹⁷ Internal personnel rules or practices, confidential information, trade secrets or confidential business information, privileged information, and certain law enforcement records are also exempt.¹⁸ This includes medical documents regarding a person other than the requester, information on juveniles, and records relating to an ongoing criminal investigation.¹⁹
Do I need an attorney to handle my request? Usually, no. This process is set up for everyone to use, not just attorneys. In Texas, the only requirement for submitting a Public Information Act request is that the request must be in writing and be addressed to the agency believed to have the documents.²⁰ The agency is required to comply with the request, even if the requester is not represented by an attorney. It is important to note that the requester need not include the reason for the request. Simply making the request is sufficient.
Importantly, some information may be protected by other laws. For example, juvenile education records may not be accessible unless the the requester is the parent of that child.²¹ In this situation, an attorney may need to file the request to avoid educational privacy issues.
Where do I send my request? Agencies often have online instructions for filing a Freedom of Information Act request. Some agencies will have an online portal for obtaining certain records. Otherwise, the requester may contact the agency directly to determine how to file the request.
How much will it cost? The only cost to the requester is the cost of copying the documents.²²Agencies are required to make a price sheet for documents available to the public, and such fees must be reasonable under the circumstances.²³ The requester is not obligated to pay until after the agency produces the documents.²⁴
What do I do if the agency does not respond or refuses to give me the records?
If an agency fails to comply with a Freedom of Information Act request or a Public Information Act request, the requester may appeal the decision through the Office of Government Information Services.²⁵ If the Office of Government Information Services denies the appeal, the requester may, individually or through their attorney, file a complaint in federal court compelling the agency to comply with the request. Whether an attorney will pursue this claim depends on the facts of the case. In Texas, the requester has the additional option to contact the Open Records Hotline at 512-478-6373.²⁶
Sources ¹ 5 U.S.C. § 552(a). ² 5 U.S.C. § 552(a)(1)-(2). ³ 5 U.S.C. § 552(a)(3)(A) ⁴ Freedom of Information Act, 74 F.R. 4683; Tex. Govt. Code § 552.001(b). ⁵ Tex. Govt. Code § 552. ⁶ Id. ⁷ 5 U.S.C. § 552(a). ⁸ Id. ⁹ Tex. Govt. Code § 552.001(A). ¹⁰ Id. ¹¹ 5 U.S.C. § 552. ¹² Id. ¹³ Tex. Govt. Code § 552. ¹⁴ Id. ¹⁵ 5 U.S.C. § 552(a)(8)(A)(i). ¹⁶ Id. ¹⁷ 5 U.S.C. § 552(b)(1). ¹⁸ 5 U.S.C. § 552(b)(2)(4)(5). ¹⁹ 5 U.S.C. § 552(b)(8)(9). ²⁰ Ken Paxton, Attorney Gen. of Tex., How to Request Pub. Info. (Sept. 1, 2019), https://www.texasattorneygeneral.gov/open-government/members-public/how-request-public-information. ²¹ Tex. Govt. Code § 552.114(b)-(c). ²² 5 U.S.C. § 552 (4)(A)(iii)-(iv). ²³ 5 U.S.C. § 552 (4)(A)(ii). ²⁴ 5 U.S.C. § 552 (4)(A)(v). ²⁵ The U.S. Nat’l Archives and Records Admin., The Office of Gov’t Info. Serv. (Sept. 30, 2019), https://www.archives.gov/ogis. ²⁶ Ken Paxton, Attorney Gen. of Tex., How to Request Pub. Info. (Sept. 1, 2019), https://www.texasattorneygeneral.gov/open-government/members-public/how-request-public-information.
