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Amendments to the Public Information Act, effective September 1, 2019, confirm that a school official’s cell phone use for official business creates public records subject to disclosure. Senate Bill 944 requires that current or former officers or employees of a governmental body who maintain public information on a privately owned device must (1) forward or transfer the public information to the governmental body or a governmental body server to be preserved under its retention policies; or (2) preserve the public information in its original form in a backup or archive and on the privately owned device for the time described in the governmental bodies retention policies.

Under the law, all rules set out in Chapter 441 of the Local Government Code, governing the preservation, destruction, or other disposition of records or public information apply to records and public information held by a “temporary custodian”.

The law defines “temporary custodian” as an officer or employee of a governmental body who, in the transaction of official business, creates or receives public information that the officer or employee has not provided to the officer for public information of the governmental body or the officer’s agent.  The term includes a former officer or employee of a governmental body who created or received public information in the officer’s or employee’s official capacity that has not been provided to the officer for public information of the governmental body or the officer’s agent.

Moreover, a current or former officer or employee of a governmental body does not have a personal or property right to public information the officer or employee created or received while acting in an official capacity.  This includes text messages, emails, or any other public information contained on a personal device created or received in the officer’s or employee’s official capacity.

Temporary custodians having public information must surrender or return the information to the governmental body not later than the 10th day after the date the officer for public information of the governmental body or the officer’s agent requests the temporary custodian to surrender or return the information.  The failure to do so is grounds for disciplinary action.

The Texas Government Code has required officers for public information to make public information available for public inspection and copying; carefully protect public information from deterioration, alteration, mutilation, loss, or unlawful removal; and repair, renovate, or rebind public information as necessary to maintain it properly.  Senate Bill 944 now also requires public information officers to make reasonable efforts to obtain public information from a temporary custodian if (1) the information has been requested from the governmental body; (2) the officer is aware of facts sufficient to warrant a reasonable belief that the temporary custodian has possession, custody, or control of the information; (3) the officer is unable to comply with the duties imposed by this chapter without obtaining the information from the temporary custodian; and (4) the temporary custodian has not provided the information to the officer for public information or the officer’s agent.

For more about the practical applications of this law, see the FAQ by the Texas State Library and Archives Commission, State and Local Records Management and related blogs on their website.

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