(a)
Purpose.
Pursuant to Government Code section 552.230(a),
the city promulgates these reasonable rules of procedure under which
public information may be inspected and copied efficiently, safely,
and without delay. The purpose of this policy is to set out guidelines
to ensure that all requests for public information are handled uniformly,
fairly, timely, and within the statutes set out by the Texas Public
Information Act (“the Act”). In the event of any conflict
between the city’s policy and the Act, the Act and other applicable
state laws shall prevail.
(b)
The Public Information Act.
(1)
The Texas Public Information Act gives the public the right to request
access to government information through a written request to a governmental
body. The request must ask for records or information already in existence.
The Act does not require a governmental body to create new information,
to do legal research, or to answer questions.
(2)
A governmental body has no duty to comply with standing requests
for copies of records. If a requestor seeks documents that are not
in existence at the time of the request, the governmental body may
notify the requestor of this fact and ask the requestor to resubmit
the request at a later time when such a record may be available. Also,
the governmental body has no duty to notify the requestor in the future
that the information has come into existence.
(3)
The Act requires that an officer for public information of a governmental
body promptly produce public information for inspection, duplication,
or both on application by any person to the officer. “Promptly”
means as soon as possible under the circumstances, that is, within
a reasonable time, without delay.
(4)
If an officer for public information cannot produce public information
for inspection or duplication within ten (10) business days after
the date the information is requested, the officer must certify that
fact in writing to the requestor and set a date and hour within a
reasonable time when the information will be available for inspection
or duplication.
(c)
Scope.
(1)
Public information includes information that is written, produced,
collected, assembled, or maintained under a law or ordinance or in
connection with the transaction of official business. The Act applies
to records regardless of their format. It includes information that
is maintained in paper, tape, microfilm, video, electronic data held
in a computer memory, as well as other mediums specified under law.
(2)
All city officials and employees shall ensure that any information
they create, transmit, receive, or maintain in their official capacity,
or while performing official business or a governmental function on
behalf of the city, which pertains to official business of the city
is preserved in accordance with the city’s records retention
schedule and promptly produced in response to a request for public
information.
(Ordinance 2023-O-013, sec. I, adopted 4/26/2023)
(a)
Public information officer.
The city secretary serves
as the city's officer for public information (OPI) and is responsible
for the effective disposition of public information requests submitted
to the city. An effective and efficient means of receiving, cataloging,
retrieving, and dispensing of records is essential to comply with
the laws of the state. It is the duty of the OPI to:
(1)
Make public information available for public inspection and copying;
(2)
Protect public information from deterioration, alteration, mutilation,
loss, or unlawful removal;
(3)
Repair, renovate, or rebind public information as necessary to maintain
it properly; and
(4)
Make reasonable efforts to obtain public information from a temporary
custodian if:
(A)
The information has been requested from the governmental body;
(B)
The officer for public information is aware of facts sufficient to
warrant a reasonable belief that the temporary custodian has possession,
custody, or control of the information;
(C)
The officer for public information is unable to comply with the duties
imposed by the act without obtaining the information from the temporary
custodian; and
(D)
The temporary custodian has not provided the information to the officer
for public information or the officer's agent.
(5)
Notify a city employee, member of city board/committee/commission
or city council member within ten (10) business days of receipt of
the request if they are the sole subject of a Public Information Act
request and provide them with a copy of the responsive public information
provided to the requestor.
(b)
Department heads.
Each department head is an agent of
the officer for public information for the purposes of complying with
this policy.
(1)
City secretary.
It is the responsibility of the city
secretary to take charge of, arrange, and maintain the records of
the city. The city secretary’s office is primarily responsible
for locating and compiling documents responsive to all requests. The
city secretary is responsible for operating and maintaining the city’s
online public records center (aka GovQA). The city secretary shall
prepare regular reports for the city council regarding requests processed.
(2)
Police chief.
The police chief is the department head
for the city police department. It is the responsibility of the police
chief to take charge of, arrange, and maintain the records of the
city police department. The police chief’s office is primarily
responsible for locating and compiling documents and/or body-worn
cam or dash-cam videos responsive to requests for police department
information.
(3)
Director of human resources.
The director is the department
head responsible for taking charge of, arranging, and maintaining
the records of the city’s human resources department.
(4)
Finance director.
The director is the department head
responsible for taking charge of, arranging, and maintaining the records
of the city’s finance department.
(5)
Director of planning.
The director is the department
head responsible for taking charge of, arranging, and maintaining
the records of the city’s planning and development department.
(6)
Director of community engagement and communications.
The director is a department head responsible for taking charge of,
arranging, and maintaining the records of the city’s communications
department.
(7)
Building official.
The building official is the department
head responsible for taking charge of, arranging, and maintaining
the records of the city’s development services department and
code enforcement division.
(8)
Court administrator.
The court administrator is the
department head responsible for taking charge of, arranging, and maintaining
the records of the city’s municipal court of record.
(9)
Parks and recreation coordinator.
The parks and recreation
coordinator is the department head responsible for taking charge of,
arranging, and maintaining the records of the city’s parks and
recreation department.
(10)
Director of public works.
The director of public works
is the department head responsible for taking charge of, arranging,
and maintaining the records of the city’s public works department.
(11)
Wastewater superintendent.
The wastewater superintendent
is the department head responsible for taking charge of, arranging,
and maintaining the records of the city’s wastewater department.
(12)
Water superintendent.
The water superintendent is the
department head responsible for taking charge of, arranging, and maintaining
the records of the city’s water department.
(c)
Temporary custodians.
Any current or former officer
or employee of the city who, in the transaction of official business,
creates or receives public information that the officer or employee
has not provided to the OPI or OPI’s agent is considered a temporary
custodian of that information. Temporary custodians have the following
responsibilities:
(1)
A temporary custodian with possession, custody, or control of public
information shall surrender or return the information to the city
not later than the 10th day after the date the OPI or the OPI’s
agent requests the temporary custodian to surrender or return the
information.
(2)
A temporary custodian’s failure to surrender or return public
information as required in/by this policy and the Act is grounds for
disciplinary action by the city that employs the temporary custodian,
or any other applicable penalties provided by the Act or other law.
(3)
The city is considered to receive the request for information held
by a temporary custodian on the date the information is surrendered
or returned to the city by the temporary custodian.
(4)
Temporary custodians do not have, by virtue of the officer’s
or employee’s position or former position, a personal or property
right to public information the officer or employee created or received
while acting in an official capacity.
(Ordinance 2023-O-013, sec. II,
adopted 4/26/2023; Ordinance 2024-O-014 adopted 4/24/2024)
(a)
Signage required.
(1)
As required by the Act, the city’s OPI shall prominently display
the sign prescribed by the attorney general that contains basic information
about the rights of a requestor, the responsibilities of a governmental
body, and the procedures for inspecting or obtaining a copy of public
information at the following locations:
(2)
The physical sign must be displayed on paper at least 8-1/2" x 14".
(b)
Method of making written request for public information.
(1)
The city designates the following mailing address and electronic
mail for receiving written requests for public information. The city
shall provide the designated mailing address and electronic mailing
address to any person on request. The city will only respond to a
written request for public information that is delivered to the city’s
OPI by one of the following methods:
(A)
United States mail addressed as follows:
|
The City of Liberty Hill
Office of the City Secretary
P.O. Box 1920
Liberty Hill, TX 78642
|
(B)
Electronic mail sent to Openrecords@libertyhilltx.gov
(C)
Hand delivery to the city’s OPI or designated representative:
|
The City of Liberty Hill
Office of the City Secretary
926 Loop 332 (a.k.a. Main Street)
Liberty Hill, TX 78642
|
or
(D)
Electronic submission through the city public records center located
on the city’s website at the following address URL:
(2)
Only the four methods listed above are approved methods for submitting
requests for public information to the city. The city’s OPI
shall include a statement, including the mailing address and electronic
mail address designated by the city, that a request for public information
may be made by those methods only on:
(A)
The sign required to be displayed by section 2.13.003(a) of this policy and section 552.205 of the Act; and
(B)
The city’s website.
(c)
City public records center.
(1)
The city utilizes software to help track and manage public information
requests. This tool is accessible through the city website and is
publicly referred to as the “Liberty Hill Public Records Center.”
Internally, this software is referred to as “GovQA.” The
GovQA software assists the city in managing and maintaining correspondence
between the city and requestors through a “records center”
and allows the city to easily and efficiently track requests and responsive
information. Specifically, the software can track the date the request
was received, date of any correspondence with the requestor, estimated
cost of producing information, amounts paid, and amounts owed.
(2)
All requestors are encouraged to utilize the online public records
center. As detailed in the intake procedures below, any agent of the
OPI that received a request via any other approved method shall immediately
forward the request to the city secretary’s office to be entered
into the GovQA system.
(d)
Receiving requests for information.
(1)
Written requests.
All requests for information must
be submitted in writing via one of the approved methods detailed in
this policy. If an officer or employee is approached and asked for
information verbally, they shall direct the requestor to the city’s
website to make the request using the public records center or provide
them with the form prescribed [by] the attorney general’s office.
(2)
Date/time stamp.
All requests submitted via the online
public records center are automatically date and time stamped at the
time they are submitted. Any written requests for public information
not submitted via the public records center shall be immediately date
and time stamped by the agent accepting the request with the date
and time the request was submitted.
(3)
Receiving a request.
(A)
Requests submitted on an official city holiday, weekend or after
5 p.m. on a regular business day will be considered received on the
next business day. When calculating deadlines, the first business
day is the day after the city officially receives the request. As
noted above, weekends and holidays (including skeleton crew days)
when the city’s administrative office is closed do not count
as business days, therefore, the day a request is submitted may differ
from the day it is received.
(B)
If the city receives a written request by United States mail and
cannot adequately establish the actual date on which the city received
the request, the written request is considered to have been received
by the city on the third business day after the date of the postmark
on a properly addressed request.
(4)
Intake.
(A)
Requests not submitted via the public records center shall be immediately,
but no later than one (1) business day after the request was received,
forwarded to the city secretary or their designated agent.
(B)
Upon receipt of a request not submitted via the public records center,
the city secretary or their agent shall immediately, but no later
than one (1) business day after the request was received, upload the
request to GovQA.
(C)
Within three (3) business days of receiving a request the city secretary
or their agent will review the request and either assign the request
in GovQA to the appropriate department for compilation of the responsive
documents or if the request is unclear or particularly voluminous
the city secretary will seek clarification from the requestor.
(D)
Requests for clarification should be made as soon as possible, but
no later than the 10th business day from the date the request was
received. All correspondence with a requestor shall be made through
the GovQA system so that proper records can be kept. If clarification
is sought, the 10-day deadline to respond to the request is suspended
and restarts upon receipt of the clarification from the requestor.
(E)
After a department head is assigned a request, they have three (3)
business days to do one of the following:
(i)
Upload the responsive documents to GovQA for further review
prior to release:
(ii)
Notify the city secretary’s office that more time is needed
to compile the responsive information; or
(iii)
If the department head anticipates it will take longer than
three (3) hours to compile the responsive information, provide the
city secretary’s office with an estimate of the personnel time
required to respond to the request.
(F)
After receiving responsive information from the appropriate department,
the city secretary or their designated agent will review the information
to determine if it includes any information that must be redacted
or withheld because it is confidential by law or subject to a discretionary
exception to disclosure.
(G)
The city secretary or their agent shall promptly, but no later than
ten (10) business days from when the request was received, respond
to the requestor with one of the following:
(i)
The responsive information;
(ii)
A letter providing the exact date and time when the information
will be available;
(iii)
A clarification or narrowing letter;
(iv)
A cost estimate letter;
(v)
A letter notifying the requestor that the city is seeking an
attorney general ruling regarding the request.
(5)
Questions.
(A)
As stated above, the Act does not require the city to answer questions.
However, it is the primary duty of city officials and employees to
serve the citizens of the city. Accordingly, when a written request
is submitted through an approved method seeking answers to specific
questions, but does not specify what, if any, documentation is being
sought, the city secretary or their designee will proceed as follows:
(i)
First, they will attempt to identify any documents in existence
that might provide the requestor with the answers they are seeking.
(ii)
If unable to identify any documentation, the city secretary
shall seek clarification notifying the requestor that the Act does
not require the city to answer questions and asking them to clarify
what documentation they are seeking.
(iii)
If a requestor is unable to identify any documentation they
are seeking, the city secretary shall notify the requestor that the
Act does not require the city to answer questions, but that their
request is being processed as a “citizen inquiry” and
has been forwarded to the city’s communications department for
a response.
(B)
Citizen requests seeking the answers to questions not submitted in
writing do not need to be considered requests submitted under the
Act and processed in accordance with the procedures stated in this
policy.
(C)
However, any request for any kind of documentation (paper or electronic
copies) should be considered a request submitted under the Act, reduced
to writing and processed in accordance with these procedures and the
Act.
(e)
Responding to routine requests for information.
(1)
Requests for the following documents are considered “routine”
and may be immediately released to the requestor upon receipt of payment,
if required, and do not have to be logged and processed in accordance
with the procedures detailed in this policy:
(2)
Much of this routine information is identifiable and readily available
on the city’s website. Accordingly, rather than provide hard
copies of this information, the city will be deemed to have complied
with the Act by referring the requestor to the exact Internet location
or uniform resource locator (URL) address on the city’s website.
However, if a requestor indicates they would prefer the information
in a physical format the information should promptly be provided.
(f)
Responding to requests for non-confidential information.
(1)
Release requested documents.
If responding to the request
would incur less than forty dollars ($40.00) in personnel charges
and there are no concerns regarding the confidentiality of the requested
information, the city secretary shall promptly send responsive documents
and an invoice of the costs to the requestor as soon as possible,
but no later than ten (10) business days from the date of the request.
(2)
Request for additional time.
If there are no confidentiality
concerns regarding the requested information, but the information
requested cannot be promptly produced because of the number of documents
sought or availability of records, the city secretary shall notify
the requestor, in writing, of an estimated date and time on which
the responsive information will be available.
(3)
Cost estimate.
If there are no confidentiality concerns
regarding the requested information, but it will incur charges of
more than forty dollars ($40.00), the city secretary shall generate
an itemized cost estimate letter and send it to the requestor as soon
as possible, but no later than ten (10) business days from the date
of the request.
(4)
Automatic redactions.
(A)
The attorney general’s office and/or the state legislature
has held that a city may redact the information listed below without
the necessity of requesting a decision from the attorney general.
Therefore, any documents requested that include any of the following
information shall be immediately redacted and promptly produced to
the requestor without seeking the attorney general’s permission.
(i)
A direct deposit authorization form;
(ii)
a Form 1-9 and attachments;
(iii)
W-2 and W-4 forms;
(iv)
A certified agenda and tape of a closed meeting;
(v)
A fingerprint;
(vi)
L-2 and L-3 declarations;
(vii)
a Texas driver’s license number, a copy of a Texas driver’s
license, a Texas license plate number, the portion of a photograph
that reveals a Texas license plate number, and the portion of any
video depicting a discernible Texas license plate number;**
(viii)
A credit card number, debit card number, charge
card number, insurance policy number, bank account number, bank routing
number; or access device number;**
(ix)
An e-mail address of a member of the public;
(x)
A Form DD-214 or other military discharge record that is first
recorded or first comes into the possession of a governmental body
on or after September 1, 2003;
(xi)
A social security number of a living person;
(xii)
The home address, home telephone number, emergency contact information,
or information that reveals whether the person has family members
of an employee, official or peace officer who has elected in writing
that they wish to keep this information private;**
(xiii)
Information maintained by a family violence
shelter center or sexual assault program;**
(B)
If the city is redacting or withholding information denoted above
with a double asterisk (**) the city shall provide the following information
to the requestor on a form prescribed by the attorney general:
(i)
A description of the redacted or withheld information;
(ii)
A citation to the section of the Act allowing the redaction;
and
(iii)
Instructions regarding how the requestor may seek a decision
from the attorney general regarding whether the redacted or withheld
information is excepted from required disclosure.
(g)
Responding to requests for confidential or excepted information.
(1)
Attorney general rulings.
(A)
If the city secretary or their agent identifies information is confidential
or excepted from public disclosure and there has not been a previous
determination about whether the information falls within one of the
exceptions, the city must ask for a ruling from the attorney general
about whether the information is excepted from disclosure.
(B)
The city secretary or their agent shall ask for a decision from the
attorney general by submitting a letter requesting a ruling to the
attorney general’s office, open records division, via certified
mail or using the e-file portal on the attorney general’s website.
(C)
The request for ruling letter must state the exceptions that apply
to the requested documents and include all information required by
the Act.
(D)
The request for ruling letter must be submitted to the attorney general’s
office within a reasonable time but not later than the 10th business
day after the date of receiving the written request. This letter is
sometimes be referred to as a “10-day letter.”
(E)
If the city seeks a ruling from the attorney general’s office,
the city secretary or their agent must provide a copy of the 10-day
letter, redacted, if necessary, and without attachments, to the requestor
via the GovQA portal or by certified mail within a reasonable time
but not later than the 10th business day after the date of receiving
the requestor’s written request.
(F)
If a ruling from the attorney general’s office has been requested,
within fifteen (15) business days of receipt of the request the city
secretary or the city attorney’s office must submit via certified
mail or the e-file portal on the attorney general’s website
written comments stating the reasons why the stated exceptions apply
that would allow the information to be withheld. This letter is sometimes
referred to as a “15-day brief.” The following must be
included with the brief:
(i)
A copy of the written request for information;
(ii)
A signed statement as to the date on which the written request
for information was received by the city or evidence sufficient to
establish that date; and
(iii)
A copy of the specific information requested, or a representative
sample of the information, if a voluminous amount of information was
requested, labeled to indicate which exceptions apply to which parts
of the copy.
(G)
Not later than the 15th business day after the date of receiving
the written request, the city secretary or the city attorney’s
office must forward a copy of the 15-day brief, redacted if necessary,
and without attachments, to the requestor via the GovQA portal or
by certified mail.
(H)
After receiving the attorney general’s ruling the city secretary
will comply with the ruling in accordance with the Act and this policy.
The OPI will not file suit to appeal an attorney general ruling without
first receiving consent of the city council.
(2)
Legal consultation for disclosure exceptions.
(A)
If the city secretary has a question or concern regarding the confidentiality
of responsive information, the city secretary will immediately forward
said question or concern along with the written request and responsive
documents to the city attorney’s office for review.
(B)
Any requests concerning the following individuals or subjects must
be immediately forwarded to the city attorney’s office, for
review:
(i)
Juveniles.
(ii)
Sexual assault/abuse/harassment.
(iii)
Attempted suicide.
(iv)
Traffic accidents.
(v)
Medical conditions.
(vi)
References to an individual’s mental or physical injuries
or defects.
(vii)
Personal financial information.
(viii)
Law enforcement investigations.
(ix)
Domestic violence.
(x)
Body worn camera footage.
(xi)
Police officer personnel files.
(xii)
Pending litigation.
(Ordinance 2023-O-013, sec. III,
adopted 4/26/2023)
(a)
Police department records.
(1)
Pending investigation.
(A)
It is the policy of the city to withhold information, as allowed
by Texas Government Code section 552.108, that deals with the detection,
investigation, or prosecution of crime the release of which would
interfere with the detection, investigation, or prosecution of an
open or pending criminal matter. The city agrees with the attorney
general’s findings that where an investigation or prosecution
is still pending at the time of the request a presumption exists that
release of the investigatory information would interfere with law
enforcement or prosecution. Accordingly, it is the city’s policy
to exercise its discretion provided by the Act and withhold any information
requested that relates to a pending criminal investigation or prosecution
unless the chief of police or prosecutor for the state specifically
approves the release.
(B)
Unless a requestor agrees to the redaction of information that is
subject to discretionary exceptions, the city must seek permission
from the attorney general’s office to withhold a police report
that relates to an incident that is pending investigation or prosecution.
(2)
Compilation of an individual’s criminal history information.
(A)
A request for all reports pertaining to named individuals during
a defined period of time, is excepted from disclosure under section
552.101 of the Texas Government Code, as it contains information considered
to be confidential by law pursuant to the doctrine of common law privacy.
Section 552.101 of the Government Code excepts from disclosure “information
considered to be confidential by law, either constitutional, statutory,
or by judicial decision.” Government Code section 552.101 encompasses
the doctrine of common-law privacy, which protects information that
is (1) highly intimate or embarrassing, the publication of which would
be highly objectionable to a reasonable person, and (2) not of legitimate
concern to the public. Indus. Found. v. Tex. Indus. Accident
Bd., 540 S.W.2d 668, 685 (Tex. 1976).
(B)
The office of the attorney general of Texas has previously and routinely
held that “compilation of an individual’s criminal history
is highly embarrassing information, the publication of which would
be highly objectionable to a reasonable person.” Cf
U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 764 (1989); see also Tex. Atty. General
Opinion OR2022-35619. Additionally, the attorney general has found
that “a compilation of a private citizen’s criminal history
is generally not of legitimate concern to the public.” Id.
(C)
Therefore, if the city receives a request for unspecified law enforcement
records that implicates the named individual’s right to privacy
as described above, to the extent the city maintains law enforcement
records depicting a named individual as suspects, arrestees, or criminal
defendants, it is the city’s policy to withhold any such information
under section 552.101 of the Government Code in conjunction with common-law
privacy.
(D)
Similarly, the city will sometimes receive requests to confirm that
an individual has not been arrested or the subject of any criminal
cases in our jurisdiction. The city considers these requests for a
compilation of an individual’s criminal history information
and/or a request to answer questions. If the city receives a request
of this type, to the extent the city maintains law enforcement records
depicting a named individual as suspects, arrestees, or criminal defendants
it is the city’s policy to withhold any such information under
section 552.101 of the Government Code in conjunction with common-law
privacy.
(E)
Unless a requestor agrees to the redaction of information that is
subject to mandatory exceptions, the city must seek permission from
the attorney general’s office to withhold a police report that
relates to an incident that is pending investigation or prosecution.
(3)
Audio files and dash camera videos.
(A)
All audio files and dash camera video files are stored in an electronic
format on the city’s servers, therefore, making this information
available to the public may require the manipulation of data and if
so, should be processed in accordance with the manipulation of data
policy.
(B)
Prior to public release, all audio files and dash camera video files
should be reviewed for confidential information such as driver’s
license numbers, license plate numbers and other information deemed
confidential by law.
(i)
If it is determined that an audio or video file includes information
confidential by law the city secretary or their agent shall seek permission
from the attorney general in accordance with the Act and this policy
to withhold the file in its entirety as the city does not have the
technological capabilities to redact this information from the audio
or video files and is prohibited by law from releasing this information.
(4)
Body worn camera (BWC) videos.
(A)
Requesting BWC videos.
(i)
Access to information recorded by a body worn camera is governed
not only by the Act, but also chapter 1701 of the Texas Occupations
Code. The city adopts this policy in accordance with section 1701.655(b)(4)
[1701.655(b)(5)] of the Occupations Code.
(ii)
A peace officer or other employee of a law enforcement agency
commits a class A misdemeanor offense if the officer or employee releases
a recording created with a body worn camera without permission of
the city police department. See Texas Occupations Code section 1701.659.
Only a release of a recording in compliance with this policy is considered
a release with permission of the department.
(iii)
Only information recorded by a BWC and held by the department
that is or could be used as evidence in a criminal prosecution is
subject to public release under this policy and the Public Information
Act.
(iv)
As required by the Texas Occupations Code, a requestor is required
to provide all of the following information when submitting a written
request for information recorded by a BWC:
(v)
If a requestor fails to provide this information the city secretary
or their agent shall respond in writing by making him or her aware
of these requirements and requesting he or she provide the appropriate
information.
(vi)
A failure to provide all of the information required to be part
of a request for recorded information does not preclude the requestor
from making a future request for the same recorded information.
(B)
Exceptions to releasing BWC videos.
In addition to the
exceptions to public disclosure included in the Act, the Occupations
Code also prohibits release of BWC videos in the following circumstances:
(i)
BWC videos related to a pending investigation.
A BWC video documenting an incident that involves the use of deadly
force by a peace officer or that is otherwise related to an administrative
or criminal investigation of an officer may not be released to the
public until all criminal matters have been finally adjudicated and
all related administrative investigations have concluded, unless the
department determines that the release furthers a law enforcement
purpose.
a.
If the city receives a request for a BWC video related to a
pending investigation as described above, the city secretary or her
agent will assign the request to the chief of police and the chief
of police shall notify the city secretary, via the GovQA portal, no
later than five (5) business days after receipt of the request whether
release of the video would further a law enforcement purpose.
b.
If the city secretary receives no written response from the
chief or if the chief does not believe release would further a law
enforcement purpose, the city shall seek permission from the attorney
general, in accordance with this policy and applicable law, to withhold
the video from public release.
(ii)
BWC videos recorded in a private space.
To comply
with state law, the city may not release any portion of a recording
made in a private space without written authorization from the person
who is the subject of that portion of the recording or, if the person
is deceased, from the person’s authorized representative. Such
permission should be procured by the requestor. If the city receives
a request for this type of information without the proper written
authorization the city secretary shall first seek to clarify with
the requestor whether they can provide written authorization and,
if they cannot provide written documentation of that permission, the
city shall seek permission from the attorney general, in accordance
with this policy and applicable law, to withhold the video from release.
(iii)
BWC videos involving class C misdemeanor with no arrest.
To comply with state law, the city may not release any portion
of a recording involving the investigation of conduct that constitutes
a misdemeanor punishable by fine only and does not result in arrest
without written authorization from the person who is the subject of
that portion of the recording or, if the person is deceased, from
the person’s authorized representative. If the city receives
a request for this type of information without the proper written
authorization the city secretary shall first seek to clarify with
the requestor whether they can provide written authorization and,
if they cannot provide written documentation of that permission, the
city shall seek permission from the attorney general, in accordance
with this policy and applicable law, to withhold the video from release.
(iv)
Accidental recordings.
The city shall not release
a BWC recording if the recording was not required to be made under
[chapter 1701,] subchapter N, Occupations Code, or another law or
under a policy adopted by the city police department and does not
relate to a law enforcement purpose. If the city receives a request
for this type of information, the city secretary shall seek permission
from the attorney general, in accordance with this policy and applicable
law, to withhold the video from release pursuant to section 1701.661(h)
of the Texas Occupations Code.
(C)
Procedures for responding to requests for BWC videos.
Upon receiving a request for a BWC video the city secretary or their
agent shall:
(i)
Confirm that the request includes all the necessary information.
(ii)
If it does, assign the request to appropriate police department
contact.
(iii)
The police department shall locate the video, review it, provide
a copy to the city secretary’s office and notify the city secretary’s
office within five (5) business days if there are any exceptions or
written authorizations required before the video can be released.
(iv)
If the requested BWC video is subject to a discretionary exception
or includes confidential information, the city secretary shall submit
the request to the attorney general’s office as required by
the Act, the Occupations Code and this policy.
(v)
The city does not have the capability to redact confidential
information from BWC videos. Accordingly, if any information in the
video is deemed to be confidential by law the city secretary or their
agent must seek permission to withhold the video in its entirety.
(vi)
If the city determines it is necessary to seek the attorney
general’s permission to withhold a BWC video it shall submit
the initial “10-day letter” to the attorney general and
submit a copy to the requestor, no later than twenty (20) business
days from the date the request was received, and submit the “15-day
brief’ to the attorney general and requestor no later than twenty-five
(25) business days from the date the request was received.
(vii)
If the requested BWC video is not subject to an exception and
all necessary written authorizations are received the city secretary
shall promptly, but no later than ten (10) business days from the
date the request was received, make the video available to the requestor
in accordance with the Act and these policies.
(viii)
A request for BWC recordings is considered voluminous
if it includes:
a.
A request for body worn camera recordings from more than five
separate incidents;
b.
More than five separate requests for body worn camera recordings
from the same person in a 24-hour period, regardless of the number
of incidents included in each request; or
c.
A request or multiple requests from the same person in a 24-hour
period for body worn camera recordings that, taken together, constitute
more than five total hours of video footage.
(ix)
The city secretary is considered to have promptly responded
to a voluminous request for BWC recordings if he or she makes the
requested videos available in accordance with the Act and these policies
within twenty-one (21) business days of receiving the written request.
(b)
Request affecting critical infrastructure.
(1)
The Texas Homeland Security Act (HSA).
(A)
Section 418.181 of the Texas Government Code makes documents or portions
of documents confidential if they identify the technical details of
particular vulnerabilities of critical infrastructure to an act of
terrorism.
(B)
The attorney general’s office has held that the fact that information
may relate to a governmental body’s security concerns does not
make the information per se confidential under the HSA. A city asserting
confidentiality provisions of the HSA must adequately explain how
the responsive records fall within the scope of the claimed provisions.
(C)
The attorney general’s office has held that information that
identifies the physical locations and technical details of critical
infrastructure, including the city’s electrical systems, water
distribution system, sewer system, as well as the locations of gas
lines, telephone lines, and fire hydrants is excepted from disclosure
pursuant to the HSA.
(D)
The city asserts, by adopting this policy, that the city’s
electrical, water and wastewater utilities are part of the city’s
critical infrastructure for purposes of section 418.181. Release of
any information, including site plans or as-built surveys, that include
information regarding the city’s treatment plants, lift stations,
springs, wells/well heads, tanks or elevated storage tanks would expose
this critical infrastructure to possible acts of terrorism and criminal
activity by exposing potential vulnerabilities in the critical infrastructure.
(E)
Accordingly, it is the policy of the city to seek the attorney general’s
permission to withhold any information that references or details
the city’s treatment plants, lift stations, springs, wells/well
heads, tanks or elevated storage tanks.
(c)
Requests for agency memoranda.
(1)
Deliberative process privilege.
(A)
Section 552.111 of the Government Code excepts from disclosure an
interagency or intraagency memorandum or letter that would not be
available by law to a party in litigation with the agency. This exception
encompasses the deliberative process privilege. This is a discretionary
exception, the purpose of which is to protect advice, opinion, and
recommendation in the decisional process and to encourage open and
frank discussion in the deliberative process.
(B)
Section 552.111 excepts from disclosure internal communications,
including communications between the city and a third party with a
privity of interest, that consist of advice, recommendations, opinions,
and other material reflecting the policymaking processes of the governmental
body.
(C)
Section 552.111 excepts from disclosure a preliminary draft of a
document intended for public release in its final form as it necessarily
represents the drafter’s advice, opinion, and recommendation
with regard to the form and content of the final document.
(D)
It is the policy of the city to seek the attorney general’s
permission to withhold any information that the city secretary, in
consultation with the city attorney’s office, believes reflects
the policymaking process of the city.
(d)
Requests for information related to certain legal matters.
(1)
Attorney client communications.
(A)
Section 552.107 of the Government Code excepts from public disclosure
information that the attorney general or an attorney of a political
subdivision is prohibited from disclosing because of a duty to the
client under the Texas Rules of Evidence or the Texas Disciplinary
Rules of Professional Conduct. The Texas Supreme Court has held the
Texas Rules of Evidence and Texas Rules of Civil Procedure are “other
law” within the meaning of [Government Code] section 552.022.
(B)
Texas Rule of Evidence 503 encompasses the attorney-client privilege
which generally allows a client to refuse to disclose and to prevent
any other person from disclosing confidential communications made
to facilitate the rendition of professional legal services to the
client.
(C)
It is the policy of the city to seek the attorney general’s
permission to withhold any information that the city secretary, in
consultation with the city attorney’s office, believes to be
a confidential attorney-client communication.
(2)
Attorney work product.
(A)
Texas Rule of Civil Procedure 192.5 encompasses the attorney work
product privilege. “Attorney work product” is confidential
under rule 192.5 if it reveals an attorney’s core work product.
Core work product is the work product of an attorney or an attorney’s
representative, developed in anticipation of litigation or for trial,
that contains the mental impressions, opinions, conclusions, or legal
theories of the attorney or the attorney’s representative.
(B)
It is the policy of the city to seek the attorney general’s
permission to withhold any information that the city secretary, in
consultation with the city attorney’s office, believes to be
confidential attorney work product.
(e)
Requests regarding real estate and other competitive bidding.
(1)
Location or price of property.
(A)
Section 552.105 of the Government Code excepts from disclosure information
relating to appraisals or purchase price of real or personal property
for a public purpose prior to the formal award of contracts for the
property. Section 552.105 is a discretionary exception designed to
protect the city’s planning and negotiating position with respect
to particular transactions.
(B)
It is the policy of the city to seek the attorney general’s
permission to withhold any information that the city secretary, in
consultation with the city attorney’s office, believes, if released,
would impair or tend to impair the city’s planning and negotiating
position in regard to particular transactions.
(2)
Competition or bidding.
(A)
Section 552.104(a) of the Government Code excepts from disclosure
information that, if released, would give advantage to a competitor
or bidder. Section 552.104 is a discretionary exception that allows
the city to withhold information if knowing another bidder’s
or competitor’s information would be an advantage.
(B)
It is the policy of the city to seek the attorney general’s
permission to withhold any information that the city secretary, in
consultation with the city attorney’s office, believes, if released,
would give advantage to a competitor or bidder.
(f)
Requests regarding litigation.
(1)
Pending or anticipated litigation.
(A)
Section 552.103 of the Government Code provides exception from disclosure
information relating to pending or anticipated litigation of a civil
or criminal nature to which the city is or may be a party or to which
an officer or employee of the city, as a consequence of the person’s
office or employment, is or may be a party. Section 552.103 is a discretionary
exception the purpose of which is to enable a city to protect its
position in litigation by forcing parties seeking information relating
to the litigation to obtain such information through discovery procedures.
(B)
It is the policy of the city to seek the attorney general’s
permission to withhold any information that the city secretary, in
consultation with the city attorney’s office, believes to be
related to pending or anticipated litigation.
(g)
Copyrighted information.
(1)
Federal law provides that the owner of copyrighted work has the exclusive
right to do and to authorize the reproduction of the copyrighted work.
See title 17 of the United States Code. The attorney general’s
office has routinely held that the OPI, as the custodian of public
records, must comply with the copyright law and is not required to
furnish copies of records that are copyrighted. Open Records Decision
No. 180 at 3 (1977). However, the attorney general’s office
does require that a governmental body allow inspection of copyrighted
materials unless an exception applies to the information. Id.; see Open Records Decision No. 109 (1975).
(2)
It is the policy of the city if a member of the public wishes to
make copies of copyrighted materials and no other exceptions to disclosure
apply to those materials, to make those materials available for inspection
only. If the requestor determines they want to make copies of the
copyrighted materials, they must do so unassisted by the city. In
making copies, the member of the public assumes the duty of compliance
with the copyright law and the risk of a copyright infringement suit.
(Ordinance 2023-O-013, sec. IV,
adopted 4/26/2023)
(a)
Requests by city officials in their official capacity.
(1)
The purpose of the Act is to prescribe conditions under which members
of the general public may obtain information from a governmental body.
An official of the city who, in an official capacity, requests information
held by the city does not act as a member of the public in doing so.
Thus, the exceptions requiring public disclosure under the Act do
not control the right of access of an official of the city to information
maintained by the city.
(2)
Accordingly, information may be released to city officials requesting
the information in their official capacity in compliance with the
following policy:
(A)
Requests for information from a city official must be submitted to
the city secretary in writing.
(B)
As soon as possible, but no later than 10 business days from the
receipt of the request, the city secretary will respond to the request
from the city official with either copies of the requested information,
notice that the information is available for inspection, or notice
that the request will be added to the next council agenda for consideration
and direction.
(C)
Information provided in response to a request by a city official
will be made available to all city officials.
(D)
City officials will not be charged for information sought in their
official capacity.
(E)
Information that is protected by confidentiality laws and/or common
law privacy laws that has no relationship to the transaction of official
business, such as individuals’ dates of birth, social security
numbers and personal financial information, will be redacted prior
to release to city officials.
(F)
The city secretary will mark all information provided in response
to a request from a city official as “Confidential - For Official
Eyes Only.”
(3)
Any employee or city official who has access to confidential information
pursuant to this policy must maintain the confidentiality of the information.
Misuse of confidential information, including disclosing the information
to person who is not authorized to receive the information or allowing
an unauthorized person to inspect the information, is a criminal offense.
(b)
Intergovernmental transfers.
(1)
Information subject to the Act may be transferred between governmental
bodies without waiving exceptions to the public disclosure of that
information or affecting its confidentiality.
(2)
It is well-settled policy of this state that governmental agencies
should cooperate with each other in the interest of the efficient
and economical administration of their statutory duties.
(3)
However, the transfer of confidential information from one governmental
body to another is prohibited where a relevant confidentiality statute
authorizes release of the confidential information only to specific
entities, and the requesting governmental body is not among the statute’s
enumerated entities.
(4)
When the city received a request from another governmental body,
it is the policy of the city to exercise its discretion to voluntarily
transfer unredacted copies of the requested information, if not statutorily
prohibited. The city secretary is instructed to notify any governmental
body that receives information through an intergovernmental transfer
that the information being sent is not a release to the general public
and the receiving governmental body must keep said information confidential
and immediately inform the city if said information is requested by
the public so that the city may assert any applicable exceptions,
if necessary.
(c)
Requests for municipal court records.
(1)
Judiciary not subject to the Act.
Courts and judicial
branch agencies are not subject to the Act nor to the federal Freedom
of Information Act. However, to ensure efficient and consistent responses
to requests for information held by the judiciary it is the city’s
policy that requests for information held by the city municipal court
be processed in accordance with these guidelines.
(2)
Court case records.
(A)
Court case records are records of any nature created, produced, or
filed in connection with any matter that is or has been before a court.
Court case records are considered information held by the judiciary.
Therefore, the Act neither authorizes this information to be withheld
nor requires it to be disclosed. Access to court case records is governed
by common law, other statutory law and court rules. The clerk of the
court serves as the custodian of court case records.
(B)
Requests from the public for court case records shall be immediately
directed to the court clerk and processed in accordance with the following
guidelines:
(i)
Generally, court case records filed with the court are considered
public and will be released to the public unless access is restricted
by law or court order.
(ii)
The following is a non-exhaustive list of court case records
that are considered records of the judiciary and therefore not subject
to the Act, but are considered public records under other law and
may be released to the public unless a specific court order prohibits
release in a particular case:
(iii)
The following is a non-exhaustive list of court case records
that are considered records of the judiciary and therefore not subject
to the Act, but which are subject to other law prohibiting their release
to the public:
a.
Records related to charges against or the conviction of a child,
for a non-traffic related offense, see article 45.0217 of the Code
of Criminal Procedure.
b.
Records related to the conviction of or deferral of disposition
for a child, for a non-traffic related offense, see article 45.0217
of the Code of Criminal Procedure.
(iv)
A request for a court case record from a defendant or attorney
of record related to a pending municipal court case shall be forwarded
to the city prosecutor and processed in accordance with applicable
discovery rules.
(v)
Prior to release the court clerk will redact any information
that is confidential by law, such as dates of birth, driver’s
license numbers and license plate numbers, from any court case record.
(vi)
The court clerk should promptly respond to requests for court
case records, but because the records are not subject to the Act the
Act’s deadlines do not apply. However, it is the policy of the
city, to within fourteen (14) days of the request, provide the requestor
with either a copy of the records, or written notice of a date and
time when the records will be available for duplication or inspection.
(3)
Judicial records.
(A)
Judicial records are records made or maintained by or for a court
or judicial agency in its regular course of business but not pertaining
to its adjudicative function. Judicial records are considered information
held by the judiciary. Therefore, the Act neither authorizes this
information to be withheld nor requires it to be disclosed. Access
to judicial records is governed by rule 12 of the Rules of Judicial
Administration. The custodian of judicial records is the presiding
judge of the city municipal court.
(B)
Any request to inspect or copy a judicial record received by the
city and properly directed to the municipal court judge should be
immediately, but no later than two (2) business days after being received,
forwarded to the presiding judge to be processed in accordance with
rule 12 of the Rules of Judicial Administration.
(C)
All requests to inspect or copy a judicial record must be in writing,
must include sufficient information to identify the record, and must
be directed to the records custodian, the presiding judge and not
to a court clerk or other agent for the records custodian.
(d)
Discovery requests for records.
(1)
Subpoena duces tecum.
(A)
Section 552.0055 of the Act clearly states that a subpoena duces
tecum or a request for discovery that is issued in compliance with
a statute or a rule of civil or criminal procedure is not considered
to be a request for information under the Act.
(B)
Accordingly, any subpoena or discovery request received by the city
shall be immediately forwarded to the city attorney’s office
so that the city attorney can prepare a response in compliance with
all applicable laws.
(2)
Business records affidavit.
(A)
Texas Rule of Evidence 902 allows certain documents to be self-authenticated
and admitted into a court proceeding if they are accompanied by a
business records affidavit.
(B)
The Act does not require the city to create documents, including
a business records affidavit. Accordingly, a request for a business
records affidavit to be executed is not governed by the Act. Such
a request should be considered a discovery request and should be forwarded
to the city attorney’s office to determine the necessary and
appropriate response.
(Ordinance 2023-O-013, sec. V, adopted 4/26/2023)
(a)
Charges for copies.
(1)
Administrative code charges apply.
(A)
A requestor may ask to inspect information, get copies of the information,
or both. If charges are approved by the Act, it is the policy of the
city to charge the rates found in rule 70.3 [title I, section 70.3]
of the Texas Administrative Code.
(B)
The city secretary will be responsible for applying the charges in
accordance with this policy, issuing cost estimates, invoicing, and
collecting payment from requestors. The city secretary will fully
document the amounts, paid and unpaid, for every request in the GovQA
system.
(2)
Charges for paper and other physical copies of information.
The fees associated with hard copies of information are as set forth in the fee schedule in appendix A of this code.
(3)
Charges for electronic copies.
(A)
In an effort to respond to requests as efficiently as possible, it
is the policy of the city to respond to a request with electronic
copies whenever possible.
(4)
Charge for certified copies.
The Act does not require the city to create documents; therefore, the city is not required to create and produce certified copies of city records. However, it is the city’s policy to issue standard or legal size certified copies of city records upon request for a charge as set forth in the fee schedule in appendix A of this code.
(b)
Charges for inspection of information.
(1)
Charges for inspection of physical records.
(A)
If the requestor does not request a copy of public information, no
charge will be imposed for making the public information that exists
in a paper record available for inspection unless:
(i)
The information being requested completely fills, or when assembled
will completely fill, six (6) or more archival boxes and would take
five (5) or more personnel hours to make available; or
(ii)
The information being requested is more than five (5) years
old and would take five (5) or more personnel hours to make available;
or
(iii)
A page being requested contains confidential information that
must be edited from the record before the information can be made
available for inspection.
(B)
If the information completely fills, or when assembled will completely
fill, six (6) or more archival boxes or is over five (5) years old
as described above, the city will charge the requestor the labor charges
associated with making the documents available for inspection.
(2)
Charges for inspection of electronic records.
(A)
In response to a request to inspect information that exists only
in an electronic medium and that is not available directly online
to the requestor, the city will not charge to inspect this information
unless complying with the request will require programming or manipulation
of data.
(B)
If programming or manipulation of data is required, the city secretary
shall notify the requestor before assembling the information and provide
the requestor with an estimate of charges that will be imposed to
make the information available.
(C)
The time necessary to redact confidential information from electronic
records meets the definition of manipulation of data.
(D)
A charge under this section will be assessed in accordance with the
Act and the section of this policy related to programming or manipulation
of data.
(c)
Waiver of costs.
(1)
Waiver for the general public.
It is the policy of the
city to waive the costs associated with producing physical or electronic
copies of the information if the total is less than $15.00 because
the actual cost of processing and collecting a charge less than $15.00
will exceed the amount of the charge.
(2)
Waiver by the chief of police.
The city may provide
a copy of a BWC recording without charge or at a reduced charge if
it is determined by the chief of police that waiver or reduction of
the charge is in the public interest.
(d)
Communicating costs to requestors.
(1)
Written itemized estimate of charges.
If it is estimated
by city staff that a request for a copy of public information will
result in the imposition of a charge that exceeds forty dollars ($40.00),
or a request to inspect a paper record will result in the imposition
of a charge that exceeds forty dollars ($40.00), the city secretary
shall provide the requestor with a written itemized statement that
details all estimated charges that will be imposed, including any
allowable charges for labor or personnel costs, before compiling and
redacting the responsive information. Said statement must comply with
the requirements of section 552.2615 of the Texas Government Code.
Said statement must also notify the requestor if a deposit will be
required per the city’s policy. The statement must advise the
requestor they may contact the city if there is a less costly method
of viewing the records.
(2)
Invoices.
If it is estimated by city staff that a request
for a copy of public information will result in the imposition of
a charge that is forty dollars ($40.00) or less, or a request to inspect
a paper record will result in the imposition of a charge that is forty
dollars ($40.00) or less, the city secretary shall compile the responsive
information, redact as necessary and release it to the requestor with
an invoice for the associated charges. Said invoice must include information
on how to pay and the city’s policy regarding overdue balances.
(3)
Deposits.
(A)
A deposit of fifty percent (50%) of the entire estimated amount shall
be imposed when the anticipated costs for the preparation of a copy
of public information exceed one hundred dollars ($100.00).
(B)
If a requestor has accrued over one hundred dollars ($100.00) of
overdue and unpaid balances related to previous requests, a deposit
in the amount of the unpaid amounts owing to the city must be received
before the city secretary will begin preparing a copy of public information
in response to a new request.
(C)
If a deposit is required as detailed above, the request for a copy
of public information is considered to have been received on the date
the city receives the deposit for payment of anticipated costs or
unpaid amounts.
(D)
If a requestor modifies the request in response to the requirement
of a deposit, the modified request is considered a separate request
and is considered received on the date the city receives the written
modified request.
(E)
A requestor who fails to make a deposit before the 10th business
day after the date the deposit is required is considered to have withdrawn
the request for the copy of the public information that precipitated
the requirement of the deposit or bond.
(e)
Requests requiring programming or manipulation of data.
(1)
Manipulation
Programming
Definitions.
means the process of modifying, reordering, or decoding of
information with human intervention.
means the process of producing a sequence of coded instructions
that can be executed by a computer.
(2)
Circumstances when required.
The city shall provide
to a requestor the written “programming or manipulation of data”
statement described below if it is determined that responding to a
request will require programming or manipulation of data, and:
(3)
Contents of written statement.
The written “programming
or manipulation of data” statement must include:
(A)
A statement that the information is not available in the requested
form;
(B)
A description of the form in which the information is available;
(C)
A description of any contract or services that would be required
to provide the information in the requested form;
(D)
A statement of the estimated cost of providing the information in
the requested form; and
(E)
A statement of the anticipated time required to provide the information
in the requested form.
(4)
Timing of written statement.
(A)
The city secretary shall provide the written “programming or
manipulation of data” statement to the requestor within twenty
(20) days after the date of the receipt of the request.
(B)
If the city secretary needs additional time to provide the written
statement they must provide written notice to the requestor, within
twenty (20) days after the date of receipt of the request, that the
additional time is needed.
(C)
If written notice above is provided the city secretary has an additional
ten (10) days to provide the written “programming or manipulation
of data” statement.
(D)
After providing the requestor with the written statement, the city
does not have any further obligation to provide the information in
the requested form or in the form in which it is available unless
within thirty (30) days the requestor states in writing to the city
that the requestor:
(i)
Wants the city to provide the information in the requested form
according to the cost and time parameters set out in the statement
or according to other terms to which the requestor and the city agree;
or
(ii)
Wants the information in the form in which it is available.
|
If a requestor does not make a timely written statement under
the above provisions of this policy, the requestor is considered to
have withdrawn the request for information.
|
(E)
The city secretary shall maintain a file containing all programming
and manipulation of data written statements issued under this section
in a readily accessible location.
(Ordinance 2023-O-013, sec. VI,
adopted 4/26/2023; Ordinance
adopting 2023 Code)
