TPA Hotline September 2015

Documents are public from the moment they are fixed – in print or digital form

Q: My city is seeking a city manager. The city council narrowed the field from 30 to an unknown number. Interviews are starting next week. Do they have to tell me the names of the final three or four? I know school boards don’t.

A: There are exceptions concerning public access to the names of finalists for certain other executive positions in local and state government but the Texas public information law does not contemplate your specific question. You might assume that if there is no exception in the law concerning the names of finalists for city manager, then the names of those finalists is public information. In order to trigger the city’s duty to produce the public information you are requesting, the Texas attorney general suggests you cite the Texas Public Information Act when you are making your request for the information. Now, as long as we’re on the topic, here are the three types of finalists that the law does specifically address.

1. Government Code Sec. 552.123: Confidentiality of Name of Applicant for Chief Executive Officer of Institution of Higher Education. This section excepts from required public disclosure: The name of an applicant for the position of chief executive officer of an institution of higher education, and other information that would tend to identify the applicant . . .  except that the governing body of the institution must give public notice of the name or names of the finalists being considered for the position at least 21 days before the date of the meeting at which final action or vote is to be taken on the employment of the person.

2. Government Code Sec. 552.126: Confidentiality of Name of Applicant for Superintendent of Public School District. This section says the name of an applicant for the position of superintendent of a public school district is excepted from the requirements of Section 552.021, except that the board of trustees must give public notice of the name or names of the finalists being considered for the position at least 21 days before the date of the meeting at which a final action or vote is to be taken on the employment of the person.

3. Government Code Sec. 552.154: Name of Applicant for Executive Director, Chief Investment Officer or Chief Audit Executive of Teacher Retirement System of Texas, which says the name of an applicant for the position of executive director, chief investment officer or chief audit executive of the Teacher Retirement System of Texas is excepted from the requirements of Section 552.021, except that the board of trustees of the Teacher Retirement System of Texas must give public notice of the names of three finalists being considered for one of those positions at least 21 days before the date of the meeting at which the final action or vote is to be taken on choosing a finalist for employment.

Q: We have an employee who is refusing to write a story on the first same sex marriage license issued in their county. Can an employee refuse to do an assignment? In this case, the refusal is based on the employee’s religious beliefs.

A: You’re asking something mighty new and I haven’t found much on the topic. To put the situation in a more basic light, a Texas Workforce Commission Pay and Policies document says: “The basic rule of Texas employment law is employment at will, which applies to all phases of the employment relationship - it means that absent a statute or an express agreement (such as an employment contract) to the contrary, either party in an employment relationship may modify any of the terms or conditions of employment, or terminate the relationship altogether, for any reason, or no particular reason at all, with or without advance notice.” See http://www.twc.state.tx.us/news/efte/pay_and_policies_general.html.

Q: At the city council meeting, the city manager handed out the proposed budget to council members but when I asked for a copy he said I would have to wait until the Aug. 11 budget workshop. When I said I had always gotten the proposed budget at the same time as the council he said that was not a good reason. I also felt it was open records since it was distributed at a public meeting, but our city attorney said I needed to give her a law reference. Anyway, since the proposed budget was handed out at the meeting, is it public information? It was not discussed at the meeting and apparently won’t be until the Aug. 11 workshop.

A: What you are asking the city for is a prepared document and handing you a copy shouldn’t put an employee to too much trouble.

Now, the Office of the Texas Attorney General’s 2014 Public Information Handbook says state and local government documents are public information from the moment they are fixed in any medium including paper or digital. If you need a reference, it’s Government Code Sec. 552.002(b) stating that the Public Information Act applies to recorded information in practically any medium, including: paper; film; a magnetic, optical, solid state or other device that can store an electronic signal; tape; Mylar; and any physical material on which information may be recorded, including linen, silk, and vellum. Section 552.002(c) specifies that “[t]he general forms in which the media containing public information exist include a book, paper, letter, document, e-mail, Internet posting, text message, instant message, other electronic communication, printout, photograph, film, tape, microfiche, microfilm, photostat, sound recording, map, and drawing and a voice, data, or video representation held in computer memory.

On page 22 of the handbook, please see these words: The officer for public information must “promptly” produce public information in response to an open records request. “Promptly” means that a governmental body may take a reasonable amount of time to produce the information, but may not delay. 

It is a common misconception that a governmental body may wait ten business days before releasing the information. In fact, as discussed above, the requirement is to produce information “promptly.” What constitutes a reasonable amount of time depends on the facts in each case. The volume of information requested is highly relevant to what constitutes a reasonable period of time.