Recently TSLAC has received a flurry of questions from state agencies and local governments about retaining records related to public information requests. Some people have asked if the government must make extra copies of the requested records and retain the extra copies with the correspondence and documentation that initiates, processes, and responds to the request. The answer is no, those extra copies are convenience copies that may be destroyed when no longer administratively valuable. The original or record copy of the requested record, on the other hand, must be retained for its entire retention period as defined on the records retention schedule approved for use by that agency or local government.
Many records are generated and received by the government to transact a public information request. For non-excepted records, the government may correspond with the requestor for clarification, to confirm the requestor’s agreement to pay for the costs of copies, or to arrange an opportunity for the requestor to view the records. When a state agency or local government seeks an exception, they correspond with the Office of the Attorney General (OAG), the requestor, and sometimes applicable third parties. These correspondence and associated documentation are retained by state agencies according to RSIN 1.1.020 for non-excepted requests and 1.1.021 for excepted requests. On the local side, the series appear as GR1000-34a and GR1000-34b respectively on schedule GR.
In addition to correspondence and documentation, state agencies and local governments produce copies of requested records to transact public information requests. If the record is not excepted under the Public Information Act, they produce copies to give to the person making the request. They also make copies to send to the OAG when seeking a decision on whether information is excepted from disclosure to the public. For information about exceptions, see the most recent version of the OAG’s Public Information Handbook or contact the Open Government Hotline (512-478-6736 or 877-673-6839). If you have a question about public information requests, please contact the Open Government Hotline. Only the OAG can decide if a record is excepted from a public information request.
The copies of the records produced to fulfill the public information request or to send to the OAG as part of the request for decision are not records. Section 201.003(8)(F) of the Local Government Records Act excludes from local government records any “copies of documents in any media furnished to members of the public to which they are entitled under Chapter 552, Government Code [Public Information Act], or other state law.” The legislature did not explicitly exclude these copies from the definition of a state record in Government Code §441.180(9). However, the statute does exclude “an extra copy of recorded information maintained only for reference” from the definition of state records. An extra copy of a requested record is not required by Texas records management law to be retained with the correspondence and documentation that transact a public information request for excepted or non-excepted information. After the request is fulfilled, withdrawn, or the requestor is notified the records are excepted, the agency or local government may destroy any extra copies of the requested records made to transact the request.
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