SB 944 - Public Information Act & the Temporary Custodian

November 04, 2019

Legislative News

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Several bills during the 86th legislative session made modifications to the Public Information Act (PIA). Senate Bill 944 by Sen. Kirk Watson (D-Austin) garnered a lot of attention for its potential impact to county government operations.

The bill became effective September 1, 2019 and made four primary changes to the PIA: (1) codifies settled law which holds that public information contained on private devices is subject to the PIA; (2) creates a new exception to disclosure for protected health information; (3) permits a governmental body to designate a single email address and a single mailing address to receive PIA requests; and (4) directs the attorney general to develop PIA request forms that governmental entities and requestors can use.

The primary focus for counties has been the provisions of the bill that stipulate that public information contained on private devices is subject to the PIA. It is important to recognize that both case law and Attorney General Opinions have made it clear that the PIA applies to all governmental records and does not recognize a distinction based upon where the information is stored. SB 944 expanded current law to clarify that storing a governmental record on a personal device does not change the nature or disposition of the information.

Previously, it was the governmental body that was presumed to be solely responsible for preserving governmental records in accordance with the governmental body’s records retention policy. In the case of a county, if the county’s retention policy determined the information met the definition of a record, then it was the responsibility of the county to retain that record.

SB 944 introduced the new concept of a “temporary custodian” and makes it clear that a temporary custodian who retains a governmental record on a personal device is responsible for the retention of that information until it is transferred to the county.

The new law applies to any information that would meet the definition of a record regardless of the application or format of the record. Therefore, communication conducted by text messages, tweets, instant messaging, emails, or other third party applications where government information is stored are all subject to the PIA. This includes records stored in text, pictures, or voice recordings. Again, if the information meets the definition of a record, regardless of the device or application on which that record resides, it is now the responsibility of both the county and the temporary custodian to retain it. And, as of September 1, 2019, former employees who saved a governmental record on their personal device are held to the same standard.

The new statute provides that the county can take disciplinary action against an individual who does not preserve and surrender governmental information and that the individual may also be subject to criminal charges for not preserving a governmental record. There are no provisions or considerations for a situation where a device containing a government record might be damaged or lost, so it will be critical for both the county and the temporary custodian to follow the county’s records retention policy.

Using personal electronic devices such as a cell phone, tablet, or home computer for work has certainly become the norm. Some counties have found a benefit in permitting their employees to do so and have established a policy that would provide an employee a stipend to defer the costs of conducting work on a personal device. With the passage of SB 944, it will be important for the county to revisit their records retention policies to confirm that the appropriate policies are in place to retain work-related government information and to ensure employees are aware of how they can comply in order to avoid disciplinary or legal action.

TAC has created a more in-depth Question & Answer document to address some of the requirements and terms associated with SB 944. In addition, the Texas State Library and Archives Commission (TSLAC) has a number of resources that can be helpful to counties drafting a records retention schedule/policy or needing assistance as to whether a text message is considered a record. The Texas attorney general also has a collection of information associated with the PIA and the Public Information Act Handbook that are great resources to counties.