Open Government Conference 2013: Avoiding Public Information Pitfalls

By Angela Ossar, Government Information Analyst

open-govt-conference-bannerLast week, several of us at TSLAC attended the annual Open Government Conference hosted by the Office of the Attorney General (OAG). As usual, the OAG really packed a room — around 800 registrants convened in Austin, Texas, to learn more about the Texas Open Meetings Act (OMA) and Texas Public Information Act (PIA).  TSLAC sent staff from multiple divisions – analysts, archivists, and even our new Executive Director, Mark Smith.

Here in the Records Management Assistance unit, the volume of PIA requests we receive is pretty small, particularly now that the state retention schedules are online.  So, more than learning proper procedures for fulfilling PIA requests at my own agency, I was attending “for science” — to have a better understanding of how records retention laws and open records laws support one another.

Rather than recap the whole conference here on the blog, I’ll be recapping the final session — How to Avoid Public Information Act Pitfalls — which did a nice job of tying the rest of the sessions together. The session was led by Amanda Crawford, Chief of the OAG Open Records Division, and featured panelists Alan Bojorquez (an attorney representing several municipalities) and two attorneys from the OAG’s Open Records Division, Neal Falgoust and Tamara Strain.

Pitfall #1: “Who’s in charge here?”

Sometimes it can be difficult for the public to know how to request information from the government. This is especially true when the contact information of the Public Information Officer (or Public Information Coordinator) is buried six clicks away from the agency’s home page.  The panel made several recommendations:

  • Always have a public information policy or ordinance that designates a Public Information Officer (PIO). When a governmental body (GB) designates a Public Information Officer, only that person can receive emailed or faxed PIA requests.
  • Put your PIO’s contact information on your website, and don’t bury it!  “Perception is reality,” said the panel. When you make your PIO’s information visible, it makes your GB look open, transparent, and trustworthy.
  • Train all employees — even if it’s just a quick 10-minute orientation — on recognizing a PIA request. The panel gave the hypothetical example of a news reporter coming to City Hall after hours and handing a handwritten PIA request to the janitor.  It’s a valid PIA request, but would the janitor know what to do with it? All employees should understand what their role is in fulfilling a PIA request.

Pitfall #2: “I want any and all information…”

Sometimes a requestor doesn’t realize just how voluminous a response to the “any and all” request would actually be. “Any and all emails sent or received by the City Manager from 1995-2013” could produce thousands of messages.

But the burden lies with the GB, not the public, to either track down the responsive information or attempt to try to narrow or clarify the request. It’s not the public’s responsibility to understand how the government works, what kinds of records they create, or which department holds which records. The Public Information Officer (or Coordinator) needs to have a good understanding of how the agency works and who creates what (much like the Records Management Officer or records manager would).

Also, of course, regularly disposing of records in accordance with your records retention schedule will ensure that no one must waste time or effort digging up old emails that have met retention.

Pitfall #3: “I don’t need to see the privileged stuff.”

This is another case where the governmental body should start with a request for clarification. Governmental bodies are encouraged to seek clarifications whenever responsive information may contain confidential information — sometimes a requestor may not actually want the privileged information, and it’s a better use of the GB’s resources to see if they can narrow down the request to exclude that information.

Pitfall #4: “Why are you asking for this?”

The panel urged the audience to take a customer service approach. It’s illegal to ask the requestor why they want the information, but it is acceptable to say to the requestor, “By law I can’t ask you why you want this information. But I want to make sure you find what you need. Can you tell me exactly what you are looking for?” And if the requestor can’t or won’t clarify the request, use the OAG’s Public Information Cost Estimate Model to calculate exactly how much money the request is going to cost to fulfill. This may help the requestor understand why narrowing or clarification may be necessary.

Pitfall #5: To charge or not to charge. That is the question.

Each GB has the right to waive charges for fulfilling PIA requests. But keep consistency in mind: you must treat everyone the same. Most GBs won’t charge for requests under 10 pages or under $10 (and in other places, that’s even $20 or $40).

Pitfall #6: Public Information on Private Devices

Back to that request for “any and all emails sent or received by the City Manager.” What if the City Manager is using his personal Gmail account to conduct city business?  Or conducting business through text messages on his smartphone? How would the GB actually access those messages to produce copies?  And is the City Manager applying records retention guidelines to this public information?

There’s no easy answer to this one, said the attorneys; it’s something that we’re all figuring out. There’s no question that public information on private devices is responsive, though, especially since the 83rd Legislature amended the definition of “public information” to add “any electronic communication created, transmitted, received, or maintained on any device if the communication is in connection with the transaction of official business” and to indicate that the form in which the media containing public information can exist includes “e-mail, Internet posting, text message, instant message,  [or] other electronic communication” (S.B. 1368, 83(R)).

As to text messages… “Don’t count on your service provider to have this information.” Some GBs have assumed that companies like Sprint or AT&T keep their text messages, but they don’t. The GB must produce responsive public information, “even if it means using a camera to take a picture of a screen.”

In a perfect world, they said, the GB would adopt a policy to conduct public business only on government-owned phones on government-owned servers. Violations of that policy could be subject to disciplinary action.

Put very plainly, Alan Bojorquez (the attorney who represents municipalities) said that he advises his clients to just “Stop. Stop texting each other regarding public business.” But, he acknowledged, “Stop” isn’t working.

Pitfall #7: The Frequent Flyer

One audience member reported receiving over 800,000 PIA requests in three months. Another GB reported receiving one thousand emails a minute — through a spam program. (In that case, the OAG determined that the PIA protects people — spam generated by a machine is not a valid request.)

Indeed, sometimes “the frequent flyer” can be vexatious to governmental bodies who are already strapped for resources and truly just want to get their jobs done. The cost estimate tool and requests for clarification are meant to help the government cope with voluminous or frequent requests.

But, ultimately, responding to the public’s requests for information is just part of the job. “Frankly,” said Crawford, “we [as public servants] are held to a higher standard. It’s just part of our mandate.”  It’s important to remember that serving the public is a noble cause, even if it’s not always easy.

Need help?

texas-office_of_the_attorney_general-sealThroughout the two-day conference, the OAG urged the audience to call the Open Government Hotline with any questions about the Open Meetings Act or Public Information Act. The OAG has numerous resources to assist PIOs and Public Information Coordinators on their Open Government Resources web page (including the PIA and OMA handbooks).

And of course, we in the Records Management Assistance unit are here for any questions regarding records retention or other records management questions. Find your analyst!

 

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