On the Records: 10 Days, Give or Take

The Supreme Court of Texas last week issued an opinion on the Texas Public Information Act that is raising concerns among open-records advocates.

Reversing an appeals court decision, the justices ruled that governmental agencies don't have to meet a 10-day deadline for a response if they ask for clarification or narrowing of an open-records request. Instead, the agency would get an additional 10 days from the point at which the requester files a clarification.

Previously, the Attorney General held that the deadline was "tolled," essentially paused, until the requester responds with clarification. Then, the clock resumes. So, for instance, if an agency requests clarification within four days, it would have another six days after receiving the clarification to respond with either the requested records, or a legal reason why the records are not public.

The case centered on a broad request made to the city of Dallas in 2002. The city asked for clarification, which came several days later, and the city disagreed with an Attorney General decision based on timeline and brought suit. Two lower courts sided with the AG, in support of the act.

This is a complicated issue and a nuanced ruling, but the bottom line is that it could make it easier for governmental agencies to drag out their responses to requests. For example, an agency might wait 10 business days to respond, and then ask for clarification. It might then wait another 10 days after receiving the clarification, potentially doubling the time the public has to wait for records.

In my experience, most governmental agencies work in good faith to release documents and data timely. But, just in case, requesters should be careful in how they phrase letters under the act. 

Peter Kennedy, a media lawyer with Graves, Dougherty, Hearon & Moody, offered these tips for requesters:

1. Make sure your initial TPIA request is as carefully tailored and specific as possible, so that there is no ground for seeking clarification or narrowing.  Don’t ask for “all documents” or “all records” unless it’s for a narrow, well-defined category.

2. Make your requests “granular” – that is, with specific, narrow, separated, and numbered requests, so that it’s harder for the agency to claim that the requests are vague, and easier to make, and respond to, requests for clarification and narrowing.

3. If you know what document you are asking for, identify that document specifically as one of the numbered list.

4. When you get a response from a government agency, reply as quickly as possible with a narrowing or clarifying explanation.