The Texas Public Information Act (PIA), enacted in 1973 in the wake of a political scandal, codified the democratic notion that government's business is the people's business. The vitality of the PIA, formerly known as the Open Records Act, depends largely upon public officials' willingness to strictly enforce and liberally construe the Act's provisions in favor of public disclosure.

Attorney General (AG) open records opinions are the linchpin of the Act. When a governmental body wants to deny a request for information, it generally must send its reasons to the AG for review. 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, and agencies are appropriately turning to the AG before they deny 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.

• Open record letter opinions (ORLs) issued by the Attorney General grew steadily from 396 in 1988 to 2,847 in 1997. General Morales will likely release more than 3,000 this year.
  
  
• 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 by 15 selected state agencies and the University of Texas System to the Attorney General expanded from 61 in 1988 to 582 in 1997-an 854 percent increase.
  
  
• The growth of ORLs in the 1990s at least partially stems from the AG's attempt in 1995 and 1996 to overcome an opinions backlog that built up in the early 1990s.
  
  
• There is no data to demonstrate that increased activity at the AG is related to an increase in requests for information by citizens. Governmental entities in Texas have not made a systematic effort to collect reliable statistics on the number of citizen inquiries they receive-although in 1993 the 73rd Legislature passed legislation specifically requiring such efforts by state agencies.
  
  
• The growth of opinions may relate to a greater willingness on the part of governmental bodies to seek an AG opinion rather than simply withholding materials. Conferences sponsored by the AG have reinforced the notion that governmental bodies should not decide on their own what to withhold from the public.
  
  
• Governmental bodies file unnecessary requests for AG opinions regarding information that should be immediately released to the public, a practice that contributes to the large number of opinions the office must issue.
  
  
  1. After the AG has said a document must be released, officials will sometimes send it back for "reconsideration." This requires the agency to generate yet another letter, taking two to four more months, on an already settled issue.
     
     
  2. Anecdotal detail from individual opinions also indicates that agencies sometimes forward clearly public information to the AG, including certain hospital information public by federal law, autopsy reports, and "front page" information from a police report.

  
  
  

• Finally, agencies may be sending more requests to the AG for review because there are an increasing number of exceptions to the PIA. The Texas Legislative Council this year identified more than 1,000 statutes outside the PIA that matched selected search criteria relating to the words "confidential," "privileged," "public information," or other terms designed to authorize disclosure or nondisclosure of specific information. Hundreds of these statutes use the word (or a form of the word) "confidential."
  
  
• Just as new laws protect an ever-increasing array of government information, recent changes in the interpretation of the Public Information Act itself by the Attorney General and the courts have significantly expanded the general types of information that may be kept from the public under existing exceptions to the Act, particularly with respect to "commercial or financial" information, closed case files of law enforcement agencies, and records of the Texas Department of Insurance.

To eliminate the barriers to access we identified, and improve the open records process, we recommend the following:

• Limit the Public Information Act's broadest exceptions, including the litigation, trade secret, law enforcement, and financial institutions exceptions;
  
  
• Create a better process for legislating new exceptions;
  
  
• Evaluate existing exceptions in other state laws;
  
  
• Strengthen the public's right of access by clarifying that documents clearly public under the Act are not subject to its exceptions;
  
  
• Improve the Attorney General review process by eliminating reconsideration requests, requiring governmental bodies to notify third parties when they ask the AG for an opinion, and limiting the 7-day extension of time for officials to give the AG information to special situations.
  
  
• Promptly notify requesters of their rights at the time they file a request and at the time they are denied access under an exception to disclosure;
  
  
• Incorporate performance measures related to open records into the Sunset process and the strategic planning process; and
  
  
• Enhance civil enforcement by creating a civil penalty and by waiving the filing fee for a mandamus suit filed by a member of the public to enforce the PIA.

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