The 86th Legislature was hard at work this year drafting and pushing bills affecting school districts across Texas. One such bill you should be aware of may affect the way school districts handle the all too familiar Public Information Act request. Senate Bill 944 is effective September 1, 2019 and makes several changes to the Public Information Act. Most notably, the bill adds a definition for temporary custodians and sets forth the duties and penalties for any violations.
What is a temporary custodian and why should you care?
A temporary custodian can be any current or former employee or trustee who created or received public information in the transaction of official business or in their official capacity and who has not provided the information to the school district. In other words, if you have ever sent or received a text message on your personal cell phone regarding district business, you may be a temporary custodian.
Any information held by a temporary custodian is subject to records preservation, retention, and disposition laws under the Texas Government Code and Texas Local Government Code. This means any public information, even if located on a personal device, must be retained and preserved in accordance with the mandatory retention laws of the State.
Additionally, the bill makes clear temporary custodians have no personal or property rights in public information. Therefore, all current or former employees or trustees who maintain public information on their personal devices are required to (1) forward the information to the school district or the school district’s server; or (2) preserve and retain the information, in its original form, on the personal device for the legally mandated retention period.
School districts’ public information officers have a duty to use reasonable efforts to obtain requested information from temporary custodians if a public information officer is aware of facts amounting to a reasonable belief that a temporary custodian has possession, custody, or control of requested information. A temporary custodian is required to surrender and return any requested information in their possession, within ten (10) days of a request from a public information officer.
A violation under this law may result in disciplinary actions by the school district against the temporary custodian, if employed, and any penalties under the Public Information Act or other law. Penalties under the Public Information Act include criminal remedies, such as official misconduct and criminal negligence, and civil remedies.
What else should you know about Senate Bill 944?
Assuming a school district receives a public information request and is seeking an Attorney General decision, an original request from a requestor for information in the possession of a temporary custodian is not considered received by the school district until the date the information is surrendered or returned by the temporary custodian. Because temporary custodians are required to return or surrender such information within ten (10) days of a request from the public information officer, this results in the tolling of certain Public Information Act timelines.
Lastly, the bill allows school districts to designate one mailing address and one email address for receiving public information requests. Such addresses must be provided upon request. However, a school district that designates and posts the designated mailing and email address on its website or its Public Information Act sign is not required to respond to a request until it is properly submitted at one of the designated addresses, by hand delivery, or by another method properly approved by the school district. Please note a method is only considered approved by a school district if the district includes a statement indicating that a request for public information may be made by that method on its required Public Information Act sign or the district’s website. For example, a district may require all public information requests be submitted via email at a designated email address, by hand delivery at a physical address, or mailed to the department that handles all public information requests.
If you have any questions or concerns about how Senate Bill 944 may affect your district or need any policy recommendations for the future, please do not hesitate to contact the attorneys at Leasor Crass.
