35

to statewide as well as municipal, county, and local governments. Also, in this section "public record" is defined as any documentary record regardless of its physical form.

The common law right of access was generally limited to those documents which by law were required to be made or retained by a governmental body.* Many of the laws that have been enacted on a state level in recent years have unfortunately adopted this concept. The result, has been restricted access. An Indiana trial court, for example, said that since consumer complaints are not specifically required by law to be submitted to the Attorney General, the complaints did not have to be made public. This was true, even though the Attorney General by statute had authority to take action in connection with consumer complaints. Evaluations, lists of recipients of free football tickets, minutes of meetings, and other similar documents have been excluded from the coverage of state freedom of information laws, because they were not required by law to be kept. The federal law as well as some state laws, including that of Texas, recognized that the right of access should cover all ocuments in possession of a governmental body, not just those required by law to be maintained by the government. If certain types of material are not to be disclosed, then they should be dealt with by a specific exemption. The question whether some other law requires a document to be created ought not to be relevant. Working papers, staff evaluation, and consumer complaint letters should all be covered by the Act, even though all or part of a particular one may be exempt.

*Courier-Journal and Louisville Times Co. v. Curtis, 325

S.W. 2d 934, cert. denied, 364 U.S. 910 (1960).

52-004 O 75 27

05

Section 3. Access to Public Records from Public Bodies

(A) Any person has a right to inspect or copy any public
record of a public body, except as otherwise express-
ly provided by Section 4 (exemptions) of this statute
in accordance with reasonable rules concerning time
and place of access.

(B) The public body may establish and collect fees not to
exceed the actual cost of searching for or making copies
of records. Documents may be furnished without charge
or at a reduced charge where the agency determines that
waiver or reduction of the fee is in the public interest
because furnishing the information can be considered as
primarily benefiting the general public. But fees shall
not be charged for examination and review to determine
if such documents are subject to disclosure.

(C) Each public body, upon request for records made under
this statute, shall within fifteen days (excepting
Saturdays, Sundays, and legal public holidays) of the
receipt of any such request notify the person making
such request of its determination and the reasons there-
for. Such a determination shall constitute the final
opinion of the public body as to the public availabil-
ity of the requested public record.

This is the central section of the statute. It creates the right of any person to any document in the possession of the government. However, it recognizes that public bodies must be given some flexibility in the physical handling of requests. Thus, they are given the authority to establish reasonable rules to control the time, place, and procedure under which requests should be made. On the federal level as well as on the state level, government officers have used delay and excessive fees to stymie public access to information. This section strikes a balance by allowing public bodies to charge for the actual costs of locating documents and of making photocopies. If a requester asks for a photocopy of every document in a particular government office, that person, not the taxpayers, should bear the cost of physically collecting and copying these documents. However, the government, not the requester, should bear the cost of reaching a policy decision whether or not the

documents are public. To do otherwise would be to allow government agencies to charge to determine if a document is public. That could be used to justify fees without limit, so the model prohibits it.

Similarly, the government should be allowed a certain amount
But this must be a

of time to respond to requests for information.

finite period. Fifteen days is the time allowed governmental bodies in Texas to determine whether or not a requested document should be released. To allow a greater delay or to impose no limits would permit secrecy by default. Worse, the requesting party would have to guess at what point the agency had been sufficiently non-responsive to justify a law suit or other additional action. And even then a judge would have to subjectively determine whether or not the delay was unreasonable.

Section 4. Exemptions

(A)

The following matters may be exempt from disclosure
under the provisions of this statute:

(1) Trade secrets, which are defined as unpatented, secret, commercially valuable plans, appliances, formulas, or processes, which are used for the making, preparing, compounding, treating, or processing of articles or materials which are trade commodities obtained from a person and which are generally recognized as confidential.

(2) Information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.

(3) Records of law enforcement agencies not otherwise available by law that were compiled in the process of detecting and investigating crime if the disclosure of the information would harm the agency by:

a.

disclosing identity of informants not otherwise known;

b.

c.

the premature release of information to be used in a prospective law enforcement action;

disclosing investigatory techniques not otherwise known outside the government.

(4) Specifically exempted from disclosure by statute. (B) If any public record contains material which is not exempt under subsection (A) of this section, the public body shall separate the exempt and make the non-exempt material available for examination.

There are important reasons why certain information should not be public. This section recognizes those reasons, and documents should be withheld only if they fall within specifically enumerated

reasons.

Subsection (B) of this section makes it clear that if a document contains exempt and non-exempt documents, only that part of the document which is exempt may be withheld. If a document refers to an individual and the disclosure of the document would constitute a clearly unwarranted invasion of that person's privacy then that document should not be disclosed. However, if the name of the individual and other identifying details can be extracted, the document must be made availaSimilarly, if a document contains a trade secret, the part containing the trade secret should be removed if possible, and the remainde of the document made available.

ble.

The specific reasons for non-disclosure are:

1. Trade Secrets. It is necessary for a governmental body
to find out all relevant data from persons who are regu-
lated by it. This may include business information
which is considered a trade secret by the submittor.
Trade secrets are of value to businesses and their value
is lost if disclosed. The statute adopts the traditional

53

definition of trade secrets and protects such information from disclosure. This carefully balances the need for protecting certain business information with the public interest in maximum disclosure.

2. Personal Privacy. Co-equal with the public's right to know should be a right of privacy. To prohibit the disclosure of any information that might be labeled personal, would be far too broad. Much information, like the civil service grade level of state employees, the names of persons convicted of crimes, the names of licensed individuals, doctors, lawyers, etc., and similar information is all personal information. Nonetheless, few would argue that the disclosure of these matters would constitute an invasion of privacy. To resolve this problem, the statute, as does the federal law, provides that only where the disclosure of documents would constitute a clearly unwarranted invasion of personal privacy may they be withheld from public disclosure.

3. Investigatory Records. Law enforcement agencies should be protected from unwarranted disclosures which would hurt their efforts. The statute, modeled after recent changes in federal law, recognizes three situations in which law enforcement agencies have a legitimate interest in protecting their files: when public release would either disclose the identity of an informer or disclose investigatory techniques, or when premature release would interfere with a specific law enforcement action or might prejudice the interests of any