Attorney General open records letters and open records decisions are the linchpin of the Texas system of open government. Over the past few years, the number of governmental requests for AG opinions on open records issues soared. This rapid and recent growth may indicate that the system works-that governmental bodies are appropriately turning to the AG before denying a request. Or, it may mean that government officials are sending public information for review unnecessarily in order to delay or prevent its release. This report attempts to identify, by reviewing the opinion process, whether citizens face unnecessary or inappropriate barriers to public records.

ORLs grew steadily from 396 in 1988 to 2,847 in 1997-a 619 percent increase over the decade (see Chart 1).³² Attorney General Dan Morales will very likely release more than 3,000 this year. By contrast, ORLs issued under Attorney General Jim Mattox peaked at 604 in 1990. The AG today writes, on average, more open records letters in seven weeks than Mattox wrote in all of 1988.

Requests by some state agencies for AG opinions on open records issues increased even faster than the rate at which opinions grew overall. The number of open records requests referred to the AG by 15 selected state agencies and the University of Texas System expanded from 61 in 1988 to 582 in 1997-an 854 percent increase. ³³ In 1997, the Department of Health led the way with 115 requests, followed by the Department of Insurance with 111 and the Natural Resource Conservation Commission with 82 (see Chart 2).

In contrast, ORDs have declined dramatically since Morales took office in 1991. Whereas Morales has released an average of 9.9 ORDs annually, John Hill (1973-78) issued an average of 36.7 per year, Mark White (1979-82) released 34.3 per year, and Jim Mattox (1983-90) produced 28.3 per year. The annual average began to decline noticeably under Mattox, but the drop accelerated significantly once Morales took office.

Sandra Coaxum, chief of the AG's Open Records Division, says there is no official AG policy to write fewer ORDs. According to Coaxum, the AG issues open records decisions when a "novel issue" is raised (e.g., a new statute that requires interpretation). She speculates that ORDs have declined in part because open records law is better established and many of the issues that prompted the AG to write ORDs in the 1970s and 1980s have been resolved.³⁴

The ORD decline also may result from the tension between a growing workload and limited resources at the Open Records Division, Coaxum suggests. Whereas ORLs generally are based on established law and can be drafted relatively quickly, ORDs require the open records staff to conduct extensive research that includes listening to tape recordings of legislative committee hearings to determine legislative intent. "You have to draft new law, basically," says Coaxum, who has headed the Open Records Division since September 1995. But with a staff of 12 attorneys issuing nearly 250 ORLs per month under deadline, Coaxum says it's hard to justify doing too many ORDs. "If you're writing an ORD, that's pretty much what you need to focus on, and I just don't have the luxury of pulling people off of drafting ORLs to do them." She adds: "Ideally, I would love to have a group of attorneys [whose job] was to do the ORDs. That would be wonderful."³⁵

Coaxum acknowledges that ORDs, which unlike ORLs are published in the Texas Register and include a public comment period,³⁶ can promote public understanding of AG decisions in a way that ORLs cannot. However, she argues that, in the end, open records decisions may not have any more legal precedence than open records letters. "It depends on the court," she says. "Some courts ignore all of them-ORLs and ORDs. Some courts really do defer to an AG opinion regardless of what format it's in..I don't see where a court is making any distinction between an ORD and an ORL. They just refer to them as Attorney General opinions."³⁷

While the decline in ORDs can be attributed in part to inadequate resources at the Attorney General's office, the rapid increase in ORLs since 1988 may be related to five factors: (1) speedier response by the AG to governmental requests for open records rulings (since the imposition of timelines in 1996); (2) an increase in citizen requests for information held by governmental bodies; (3) a greater willingness on the part of governmental bodies to seek an AG opinion, rather than simply withholding materials from citizen requesters; (4) a growing number of unnecessary requests by governmental bodies for AG opinions regarding information that should be immediately released; or (5) a proliferation of exceptions outside the Act itself and broader interpretations of the Act's existing exceptions, which encourage government officials to attempt to keep more information from the public.

For Direct Assistance with a Public Information Request, Call the Attorney General's Hot Line   As a requester, you do not have the right to ask the Attorney General for an opinion under the Act. However, the AG has created a hot line for both requesters and government officials. The attorneys who staff the hot line will assist you with information about your rights under the Act or help you get information from officials who have ignored or stalled your request. The Attorney General launched the open government hot line on February 17, 1993. Two Open Records Division attorneys handle thousands of calls and hundreds of letters each year. In the most recent fiscal year, the hot line staff handled 5,713 calls and more than a thousand letters. Government officials use it heavily. According to data provided by the Attorney General, public officials called an average of 194 times per month, while citizens made an average of 183 calls monthly. Overall, the hotline "helps governmental bodies in understanding the law," says Sandra Coaxum, chief of the Open Records Division. "It also helps citizens, hopefully, in getting information that they couldn't otherwise get." If you have had a problem getting public information from your local or state government officials, call the open records hot line at 512-478-6736. In order for the attorneys to assist you, be prepared to describe your situation in writing, provide a copy of your open records request, and provide any other documentation you have collected related to the request. For detailed information about your rights under the Act, and the Attorney General's interpretations of its exceptions, you can also call and order a copy of the Texas Open Records Handbook, or download it at http://www.oag.state.tx.us/WEBSITE/opengovt.htm#publications. If you have a question or complaint about the amount a government official has charged for copies of public information, call the General Services Commission (GSC), the state agency responsible for the rules on copy and labor charges under the Act. The number for the Open Records Division of GSC is 512-475-2497.

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