Open Records Policy

The Public Information Act (the Act), Government Code, Chapter 552 addresses requests for inspection or duplication of public information. The Act requires the adoption of procedural rules, which the department has adopted at 25 TAC Section 1.251. Programs must follow the procedures set out in Section 1.251.

Charges for public information are described in this policy. The Act also requires the adoption of a policy on requests for information that require programming or manipulation of data. This operating procedure includes that policy and other policies that the department desires to establish concerning requests for records. Both the policy and the rules should be reviewed to answer procedural questions on charging for public information.

The policy of the department is to follow the laws that govern the handling of and charges for requests for public information.

The policy covers all written requests (including e-mail and fax requests) for public information created or maintained by the department except for:

• a request that is submitted either by a patient for medical/mental health records relating to the patient or by those persons authorized by state and/or federal law to obtain the patient's medical/mental health records that were created within department mental health facilities, chest hospitals, clinics, and laboratories;
• information required by subpoena; or
• litigation related discovery items, e.g., requests for production or admission and interrogatories.

Ten (10)-Business Day Computation of Time – The 10-business day time period begins the first business day after the date of receipt of the written request. Weekends and closed holidays are not included in the calculation of days. However, state holidays that require a skeleton crew are included in the calculation of days.

NOTE: A request received by e-mail is received on the day the request first enters the receiver's Inbox, not the day the receiver opens the request in the Inbox.

• All department employees who handle open record or public information requests.

The department has developed an open records procedural checklist called ORLIST, located on the Legal Section's web site, accessed through the department's intranet site. ORLIST must be used as a guide when processing public information requests.

The Act does not require a governmental body to:

• prepare new information in response to a request;
• comply with a continuing request to supply information on a periodic basis as such information is prepared in the future;
• prepare answers to questions; or
• do legal research.

The following guidelines and rates will apply whenever the department provides copies to the public under the Act. The guidelines and rates are consistent with amounts and procedures approved by the Texas Building and Procurement Commission (TBPC) at 1 TAC Sections 111.61-111.71 .

The department is given discretion to waive or reduce the charges for providing public information if the cost of collection of the charges exceeds or equals the charges or if providing the information at no cost or at a reduced cost is in the public interest.

IMPORTANT: The department will waive the public information charge for any amount under $15.00, unless statutes and/or rules applicable to your program require you to charge. If the total charge is $15.00 or more, the department must charge that amount unless waiving or reducing the charge is in the public interest.

THE DEPARTMENT WILL NOT CHARGE FOR:

rules (first copy only)
policies (first copy only)
procedures (first copy only)
meeting agendas

position descriptions
blank application/permit forms
personnel or license verifications
requests from other state agencies

However, charges will apply to any one of the above if statutes and/or rules applicable to your program require you to charge.

The above requirement regarding charges has no bearing on a legislative request needed for legislative purposes. One copy of information requested by an individual member, agency, or committee of the legislature shall be provided without charge. See Government Code Section 552.008 . For more information regarding legislative requests, see Section 6.9 of this policy.

The department may set prices for publications it publishes. The departmental rules and policy do not limit the costs of departmental publications.

The department may request that it be exempt from part or all of the rules adopted by TBPC for determining charges for public information. If a program desires to request an exemption, a request must be made in writing to the Legal Section and must state the reason for the exemption. If approved, the request is then forwarded to TBPC. If TBPC determines that good cause exists for exempting the department from a part or all of the rules, TBPC must give written notice of the determination to the department within 90 days of the request. On receipt of the determination, the department may amend its charges according to the determination of TBPC. The exemption shall not be effective until the policy revision is adopted.

Diskette
Magnetic tape
Data cartridge
Tape cartridge
Rewritable CD (CD-RW)
Non-rewritable CD (CD-R)
Digital Video Disc (DVD)
JAZ Drive
Other Electronic Media
VHS videocassette
Audio cassette
Oversize paper copy (i.e.: 11" x 17", green bar, blue bar)
Other

Personnel charges - The charge for personnel costs, other than programming personnel costs, incurred in processing a request for public information is $15 per hour, prorated to the nearest half hour, and no additional costs, incurred in process charges for fringe benefits may be assessed. The requestor may not be charged for the preparation of the billing form, memorandum, cover letters, or any other information they did not request.

Personnel time may not be charged for any time spent by an attorney, legal assistant, or any other person who reviews the requested information to determine whether the governmental body will raise any exceptions to disclosure of the requested information under the Act, Subchapter C; or to research or prepare a request for a ruling by the Attorney General's office pursuant to the Act, Section 552.301 .

If the charge for providing a copy of public information includes personnel charges, the requestor may require a written statement as to the amount of time that was required by the department to produce and provide the copy. The statement must be signed by a department employee (agent) handling the response to the public information request. The employee's name must be typed or legibly printed below the signature. A charge may not be imposed for providing the written statement to the requestor.

Personnel Charges When Photocopies are Requested - A personnel charge may not be billed in connection with complying with requests that are for 50 or fewer pages of paper copies, unless the documents to be copied are located in more than one building or in a remote storage facility. All department buildings at central campus are considered one building. At other sites, buildings that are connected by sidewalks or covered walkways, an elevated or underground passageway, or similar facility are considered to be one building. When more than 50 copies are requested, the personnel charge may include the actual time to locate, compile, and reproduce the requested information and can be assessed for either standard or non-standard copies.

If 50 or more pages are requested and when confidential information is mixed with public information on the same page, personnel time will be charged for time spent to obliterate, blackout, or otherwise obscure confidential information in order to release the public information, in addition to the time it takes to locate, compile, and reproduce the requested information.

Overhead charge - Whenever any personnel charge is applicable to a request, the department shall include in the charges direct and indirect costs, in addition to the specific personnel charge. This overhead charge would cover such costs as depreciation of capital assets, rent, maintenance and repair, utilities, and administrative overhead. This overhead charge is 20% of any personnel charges associated with a request.

An overhead charge may not be made for requests for copies of 50 pages or less of standard paper records unless the information must be retrieved from more than one building or a remote storage facility. All department buildings at central campus are considered one building. At other sites, buildings that are connected by sidewalks or covered walkways, an elevated or underground passageway, or similar facility are considered to be one building.

Miscellaneous supplies - Actual cost

This would apply to such items as: envelopes, labels, boxes and other supplies used to produce the requested information. No charge for materials may be assessed if personnel charges are not applicable. Only photocopying costs may be assessed on such requests. For requests for 50 or more pages of paper copies, or for those requests where the information is located in more than one building or in a remote site, the actual cost of materials may be charged. All department buildings at central campus are considered one building. At other sites, buildings that are connected by sidewalks or covered walkways, an elevated or underground passageway, or similar facility are considered to be one building.

Postal and shipping charges - Actual cost.

Microfiche and microfilm charge - If the requestor requires information found only on microform format and they want a duplicate of the microform, the charge shall not exceed the actual cost for reproducing the microform. A microfiche reader/printer is available in the department library for production of hard copy from microfiche. The Texas State Library's Records Management Division (512) 454-2705 has the capacity to reproduce microfiche and microfilm for state agencies.

If the requestor desires that the information found on the microform be reproduced on standard size paper, the charge is $.10 per page, plus any applicable personnel and overhead charge for more than 50 copies.

Remote document retrieval charge - If the requested information is stored in a remote storage facility and the facility charges the department for retrieval of the document(s), the department shall recover actual costs of such services. If this charge is assessed, no additional personnel charge shall be factored in for time spent locating documents at the storage location by the storage facility's personnel. If after delivery to the department, the boxes must still be searched for records that are responsive to the request, a personnel charge shall apply.

If the information is stored at the Texas State Library, and the department is not charged for locating, retrieving, delivering, and returning the records to storage, then no retrieval charge may be made. If after receipt of the files, department personnel must search for the records that are responsive to the request, a personnel charge shall apply.

Computer resource charge - This is a utilization charge for computers based on the amortized cost of acquisition, lease, operation, and maintenance of computer resources, which might include, but is not limited to, some or all of the following: central processing units (CPUs), servers, disk drives, local area networks (LANs), printers, tape drives, other peripheral devices, communications devices, software, and system utilities. These computer resource charges are not intended to substitute for cost recovery methodologies or charges made for purposes other than responding to public information requests.

The charge made to recover the computer utilization cost is the actual time the computer takes to execute a particular program times the applicable rate. This time can be read directly from the CPU clock, and will most frequently be a matter of seconds. No charge should be made for computer print-out time.

The applicable rates are as follows:

Mainframe system
Mid-size
Client/server
PC or LAN

$10.00 per cpu minute;
$1.50 per cpu minute;
$2.20 per clock hour; and
$1.00 per clock hour.

Sales tax - Sales tax may not be added on charges for public information.

Deposit - A cash deposit, not to exceed 50% of the total estimated charge, may be required before the program prepares for inspection the public information requested if the total estimated charge will exceed $100. A cash deposit of $50 minimum or up to 75% of the total estimated charge may be required before the program duplicates/copies the public information requested if the total estimated charge will exceed $100. If the requestor has previous unpaid billings for public information exceeding $100, a deposit of the amount of the unpaid billings will be required.

If fulfilling any type of request for public information would cost the requestor an amount exceeding $40, the department must 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. If an alternative less costly method of viewing the records is available, the statement must include a notice that the requestor may contact the department regarding the alternative method or the department should provide the Internet site. The itemized statement to the requestor must state:

that the requestor must provide the department with a mailing, facsimile transmission, or electronic mail address to receive the itemized statement and that it is the requestor's choice which type of address to provide;

that the request is considered automatically withdrawn if the requestor does not respond in writing to the itemized statement and any updated itemized statement in the time and manner required; and

that the requestor may respond to the statement by delivering the written response to the department by mail, in person, by facsimile transmission, by e-mail.

The form called ORBILL (2 pages) is available on the Legal Section's web site, accessed through the department's intranet site, and must be used to provide the itemized estimate for charges totaling more than $40. For charges totaling $40 or less, use only the second page of ORBILL .

A request is considered to have been withdrawn by the requestor if the requestor does not respond in writing to the itemized statement by informing the department within 10 business days after the date the statement is sent to the requestor that:

the requestor will accept the estimated charges;

the requestor is modifying the request in response to the itemized statement; or

the requestor has filed a complaint with TBPC alleging overcharges.

If the department program later determines, but before it makes the copy or the paper record available, that the estimated charges will exceed the charges detailed in the written itemized statement by 20 percent or more, the department program shall send to the requestor a written updated itemized statement that details all estimated charges that will be imposed, including any allowable charges for labor or personnel costs. If the requestor does not respond in writing to the updated estimate in the time and manner described, the request is considered to have been withdrawn by the requestor.

If the actual charges that the department imposes for a copy of public information, or for inspecting a paper record exceeds $40, the charges may not exceed the amount estimated in the updated itemized statement or, if no such updated statement was sent, the amount charged cannot exceed 20 percent of the amount listed in the latest estimate provided to the requestor. If no itemized statement is sent to the requestor, the department may not charge over $40 to fulfill the request.

Always complete ORBILL (Public Records Charges Billing) and the attached Billing Memorandum form, as applicable, even when you are waiving the charges. The information provided on the form will be used each month for required reporting to TBPC, as outlined in the policy entitled Public Information Statutory Reporting Requirements. The billing form is available from the department's intranet site, on the Legal Section's web site. Stress to customers that they must return a copy of the billing form with their remittance for their payment to be processed properly. Failure to do so will result in a delay of processing their request and will delay the requestor getting the records.

On orders under $100 for which the program is not requiring prepayment, specially encoded remittance envelopes are available from the Automated Mail Facility. These envelopes are encoded with the department program's budget number and fund for open records charges and, as such, should be used solely for that purpose. The fund information can be secured from the Fiscal Division.

Overcharges

The program shall provide a requestor with a written statement:

if responding to the request will require programming or manipulation of data and compliance with the request is not feasible or will result in substantial interference with the program's ongoing operations, or

if responding to the request will require programming or manipulation of data and the information could be made available in the requested form only at a cost that covers the programming and manipulation of data.

The written statement must include:

a statement that the information is not available in the requested form,

a description of the form in which the information is available,

a description of any contract or services that would be required to provide the information in the requested form,

a statement of the estimated cost of providing the information in the requested form, and

a statement of the anticipated time required to provide the information in the requested form.

The program shall provide the written statement to the requestor within 20 calendar days after the date of the department's receipt of the request. The program has an additional 10 calendar days to provide the statement if the program gives written notice to the requestor, within 20 calendar days after the date of receipt of the request, that the additional time is needed.

On providing the written statement to the requestor as required by this policy, the program does not have any further obligation to provide the information in the requested form or in the form in which it is available until:

the requestor states in writing to the program that the requestor wants the program 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 program agree; or the requestor states in writing to the program that the requestor wants the information in the form in which it is available. Once this response has been received, the program must fill the request promptly, or no later than 10 business days after receipt of the request.

Programs shall maintain a file containing all written statements issued under this policy in a readily accessible location in accordance with their records retention schedule.

Access to information in standard paper form . The department may not charge for making available for inspection information maintained in standard paper form. Charges are permitted only where the department is asked to provide, for inspection, information that contains both mandatory confidential information and public information. When such is the case, the department may charge to make a copy of the page from which information must be edited. No other charges are allowed.

Pursuant to Section 552.271(c) , the department may require a requestor to pay, or to make a deposit for the payment of anticipated personnel costs for making available for inspection public information that exists in paper records only if the information is (1) older than five years OR completely fills, or when assembled, will completely fill six or more archival boxes; AND (2) more than five hours will be required to make the public information available for inspection. The amount of deposit required will be determined pursuant to Section 6.3 of this policy on deposits.

Access to information in other than standard form . In response to requests for access, for purposes of inspection only, to information that is maintained in other than standard form, the department may not charge the requesting party the cost of preparing and making available such information.

If a request is made to inspect microfilm or microfiche containing confidential information, the confidential information must be redacted and a photocopy with the redacted information obliterated must be made. Only charges for the copies apply. No other charges may be imposed. Should the requestor, after examining the records, decide that they want to keep the copies, then the procedures for providing paper copies, including any applicable personnel charges, would apply. Since the requestor has already been charged the photocopying fees for the duplication of the information, then they may be charged personnel charges for the time it took to prepare the copies if they are requesting over 50 pages or if their request meets any of the other criteria for charging personnel charges. When personnel charges are applicable, then the overhead charge is also applicable.

If the department does not have the capacity to duplicate a record in non-standard form, it may be duplicated at an outside vendor and the requestor may be charged whatever that vendor charges the department. Original records cannot be removed from the department premises by the requestor.

Access to information in electronic form . In response to a request to inspect information that is maintained in electronic form, the department may not charge the requesting party if the information is available online and no confidential information is displayed.

Charges for inspection of public information existing in electronic form that is not available directly online to the requestor shall not be made unless programming and manipulation of data is required. If such manipulation is required, the department shall notify the requestor within 20 calendar days in accordance with Section 6.6 of this policy.

If public information exists in an electronic form on a computer owned or leased by the department and if the public has direct access to that computer through a computer network or other means, the electronic form of the information may be electronically copied from that computer without charge if accessing the information does not require processing, programming, or manipulation on the government-owned or government-leased computer before the information is copied.

If public information exists in an electronic form on a computer owned or leased by the department and if the public has direct access to that computer through a computer network or other means and the information requires processing, programming, or manipulation before it can be electronically copied, the department may impose charges for programming and overhead.

If information is created or kept in an electronic form, each program within the department is encouraged to explore options to separate out confidential information and to make public information available to the public by electronic access through a computer network or by other means.

If a requestor has made a request for information that the department has previously furnished or made available to the requestor, the department is not obligated to but may again provide this information to the requestor. If the department program is denying the information, they must send a certification form that includes: (1) a description of the information for which copies have been previously furnished or made available to the requestor; (2) the date that the department received the requestor's original request for that information; (3) the date that the department previously furnished the information or made copies available to the requestor; (4) a certification that no subsequent additions, deletions, or corrections have been made to that information; and (5) the name, title, and signature of the officer for public information or the officer's agent making the certification. A charge may not be imposed for providing this certification form. The form is available as ORREP on the Legal Section's web site, accessed through the department's intranet site.

The department may not deny a request if the request was made previously by the same requestor and that information was not supplied or did not exist at the time of the previous request. If a request includes both information previously requested and information not previously requested, the department is only required to supply the portion of information not previously requested, but must send a certification form containing the data as indicated above to notify the requestor as to why the department is not supplying all of the information requested.

Whenever a legislative request is received, the Center for Consumer and External Affairs (CCEA) must be notified immediately. One copy of public information requested by a member of the legislature for legislative purposes under Government Code Section 552.008 , shall be provided without charge. Section 552.008 specifically states, “A governmental body on request by an individual member, agency, or committee of the legislature shall provide public information, including confidential information, to the requesting member, agency, or committee for inspection or duplication in accordance with this chapter if the requesting member, agency, or committee states that the public information is requested under this chapter for legislative purposes. A governmental body, by providing public information under this section that is confidential or otherwise excepted from required disclosure under law, does not waive or affect the confidentiality of the information for purposes of state or federal law or waive the right to assert exceptions to required disclosure of the information in the future. The governmental body may require the requesting individual member of the legislature, the requesting legislative agency or committee, or the members or employees of the requesting entity who will view or handle information that is received under this section and that is confidential by law to sign a confidentiality agreement that covers the information.”

The confidentiality agreement is an agreement between the requesting individual member of the legislature, the legislative agency, or legislative committee and the department. The requesting individual member of the legislature, the requesting legislative agency or committee, or the members or employees of the requesting entity agree that the confidential information which is requested will be used for legislative purposes.

When an individual member, agency, or committee of the legislature requests information from the department which is confidential under state law and states in writing that the information will be used for legislative purposes, a Confidentiality Agreement MUST be signed.

This form is available online in the Forms and Literature Catalog. Type in stock # F19-10771 to obtain the Legislative Confidentiality Agreement.

It will be the responsibility of program staff to gather the requested documents, prepare the agreement, and complete the document request. The program should contact the Legal Section with any questions about the confidentiality of the requested documents. The Legal Section will review the agreement and attached documents upon receipt from the program. The program or CCEA will ensure that the signatures for the agreement are obtained. This agreement needs to be signed prior to or at the time of release of the confidential information to the requestor.

If documents are not available or do not exist at the time of the legislative request, but will become available in the foreseeable future, the program shall inform the requestor of the date on which the documents are anticipated to be available and offer to provide them at that time. CCEA shall be informed by the program if the requestor confirms that he/she wishes to receive the documents once they become available.

If a legislator, legislative agency, or legislative committee requests information which is confidential under federal law, constitutional law, or judicial decision, the documents may not be subject to release. Please contact the Legal Section if you have any questions about the disclosure of confidential information.

The top unit manager of each department mental health hospital or his/her designee and the top unit manager of each department chest hospital or his/her designee has authority as Custodian of Records to execute business records affidavits, execute written depositions, and to certify official records, or copies thereof.

Persons who are not authorized to certify records or complete and sign a business records affidavit, must get the records certified or have the affidavit completed by a Custodian of Records in the Legal Section of DSHS.

Each office that handles open records requests shall maintain an open records tracking system. Offices within the same organizational chain of command may appoint one person within the chain of command to maintain a tracking system for the entire chain of command. The tracking system must contain, at a minimum, the following information:

• Name of requestor (and associated company, if known)
• Date received at DSHS
• Date Due to Requestor/AG
• Information Requested
• Time Spent Redacting Mandatory Confidential Information
• Total Charges Paid by Requestor
• Date Paid
• Comments/Notes

Tracking will be done in Microsoft Word, Excel, Access, or another comparable software.

A request that is submitted either by a patient for medical/mental health records relating to the patient, or by those persons authorized by state and/or federal law to obtain the patient's medical/mental health records that were created within department mental health facilities, chest hospitals, clinics, and laboratories, is not an open records request.

A request for medical/mental health records, or files containing medical/mental health records, submitted by someone other than the patient or other authorized person is an open records request and will be subject to the Public Information Act.