Public Information Requests in Texas – That Information’s Gonna Cost You
The Texas Public Information Act governs the public’s access to information held by governmental bodies in Texas. It also governs the cost of obtaining such information. Specifically, the Act states that “[t]he charge for providing a copy of public information shall be an amount that reasonably includes all costs related to reproducing the public information, including costs of materials, labor, and overhead.”
The Act then requires the Texas Attorney General to adopt rules for determining the applicable charges, and requires all governing bodies to follow those rules. Accordingly, the attorney general has adopted something of a menu that specifies certain materials and the costs that may be charged for them. For example, standard paper copies are 10¢ per page, CDs are $1 per disc, and DVDs are $3 per disc.
The rules for materials are fairly straightforward: Identify the material, then charge the associated cost. However, the rules for labor are substantially more complicated. Labor charges include the actual time to locate, compile, manipulate data, and reproduce the requested information. This may seem equally straight-forward at first blush, but the rules are littered with exceptions, exclusions, limitations, qualifications, and other factors that create a patchwork of what personnel time may and may not be charged to the requestor.
For example, one type of personnel cost that is excluded from what may be charged to the requestor is the amount of time spent by personnel, often an attorney, to determine what exceptions to disclosure may apply to the requested information. Also, certain exceptions to disclosure require a decision from the attorney general (ostensibly to confirm that the exception indeed applies to the information at hand) before the information can be withheld, and the cost for researching and requesting such decision is likewise excluded.
The reason for excluding such costs from the amounts that may be charged to the requestor is simple: a requestor should not bear the cost of withholding information from them. The problem, however, is that most exceptions to disclosure are mandatory — meaning that the governing body has no choice but to assert them — and most of those require the governmental body to seek a decision from the attorney general. Essentially, if the requested information happens to include information that is subject to a mandatory exception, and if that exception requires a decision from the attorney general before the information can be withheld, then the governmental body is compelled to incur the cost of locating such information and seeking such decision, and cannot recoup those costs from the requestor. Even if the requested information does not contain information that is subject to a mandatory exception, the governmental body must still incur the cost of reviewing the information to make that determination, lest it inadvertently disclose something that it is prohibited by law from disclosing.
In addition to costs for withholding information being excluded from what may be charged to a requestor, the Act requires a governmental body to provide requested information without charge or at a reduced charge if it determines that the waiver or reduction of the charge is in the public interest because providing the copy of the information primarily benefits the general public. A governmental body also has the discretion to waive the charge if the cost of processing the collection will exceed the amount of the charge.
In short, the requestor bears the cost of obtaining public information unless providing the information primarily benefits the general public as a whole, as determined by the governmental body, or unless the governmental body waives the charges because the cost to collect the charges exceeds the amount of charges that would be collected. Conversely, the governmental body bears the cost of withholding information, regardless of whether the withholding of the information is compulsory or discretionary.
Incidentally, the costs borne by either side can be minimized if the requestor is willing to contact the governmental body and discuss the request that they intend to submit before it is submitted, as doing so affords the opportunity for both sides to candidly discuss how to most efficiently get the requestor exactly the specific information they seek — no more, no less. Submitting a request without such a candid discussion may result in the request being overbroad and potentially including information that is subject to a mandatory exception and that the requestor may have no interest in to begin with. Once a request is submitted, the governmental body must respond formally as required by the Act, and under the Act’s strict deadlines, which leaves little opportunity for cost-savings discussions to take place in the meantime.
Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.
