What Are They Requesting? The Difference Between Public Information and a Judicial Record
If you work in local government anywhere in the State of Texas, you are all too familiar with the open records request. Most of the time it is simple to determine what legal authority to turn to in responding, but every now and then a request comes in that leaves us scratching our heads and trying to determine which law applies. There are three categories of open records request that every government employee should be aware of:
(1) Requests for public information under the Texas Government Code Chapter 552;
(2) Requests for judicial records under Rule 12 of the Rules of Judicial Administration; and
(3) Requests for court case records that fall under the Common Law Right of Access (the “CLRA”).
A request that would fall under the authority of 552 of the Texas Local Government Code would be one that is seeking records that do not fall under one of the other two categories listed above. Section 552.002 provides us with the definition of public information and any government employee who regularly deals with these requests should have a good understanding of this section. Additionally, Chapter 552 contains numerous permissive and mandatory exceptions that apply to certain types of information. Most of these exceptions would need to go to the Attorney General for review while others can be applied without input from the Attorney General.
In contrast, a request made for Municipal Court records would be exempt from the requirements of 552. As stated under the Texas Government Code 552.0035 “information collected, assembled or maintained by or for the judiciary is governed by rules adopted by the Supreme Court of Texas or by other applicable laws and rules.” These requests fall under one of two laws: (1) Judicial records covered under Rule 12; and (2) Court case records covered by the CLRA.
Judicial records are considered to be administrative records kept by a Municipal Court. Rule 12.2(d) tells us that a judicial record is a record “made or maintained by or for a court or judicial agency in its regular course of business but not pertaining to its adjudicative function, regardless of whether that function relates to a specific case. A record of any nature created, produced, or filed in connection with any matter that is or has been before a court is not a judicial record…” There are certain types of records that Rule 12 does not apply to, which can be found under Rule 12.3, and other types of records that are simply exempt from disclosure under Rule 12.5. It is important to have detailed knowledge of each of these rules if you are a government employee that regularly deals with a request sent to a Municipal Court.
As mentioned above, if the record being requested does not fall under the definition of public information under Chapter 552 or judicial record under Rule 12, then it might fall under the CLRA as a request for court case records. In Nixon v. Warner Communications, SCOTUS acknowledged that there is a common law right of access to court documents and the Supreme Court of Texas did the same under Ashpole v. Millard. One thing to note for a request that falls under the CLRA is that access to this type of record is not an absolute right, meaning the Court that maintains the record can decide not to release it if they feel it “might become a vehicle for improper purposes,” as noted in the Nixon case.
As you can see from the above, open records requests are not always easy to address, and any government employee who has to respond to these requests should be well versed in all three areas of the law. One common aspect of each rule that should be noted is that a government or Municipal Court is not required to create a record that was not already in existence at the time the request was made.
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.
