Texas Legislature's Special Access to Government Secrets
Serving in the Texas Legislature has its perks: free meals, a nice pension, and special access to government secrets. Under the Texas Public Information Act, legislators and legislative committees may obtain confidential information from governmental bodies if the information is requested for “legislative purposes.” Governmental bodies can withhold the same confidential information from the general public. Six Texas lawmakers recently used their special right of access to obtain investigatory information about the Uvalde school shooting from the Texas Department of Public Safety, adding to transparency concerns that have overshadowed the investigation since its early days. Should Texas legislators have greater access to government records than the people they serve?
Section 552.008 of the Texas Public Information Act (the “Act”) provides that a governmental body must provide copies of information, including confidential information, to individual members, agencies, or committees of the Texas legislature if requested for “legislative purposes.”[1]
For example, if a Texas Senator requests information from the Texas Department of Insurance and states that the request is made for legislative purposes, the agency is required to provide the information under Section 552.008. If the request is not made for legislative purposes, Section 552.008 does not apply and the agency would treat the request like an “ordinary” request for information—if the requested information is confidential or falls within an exception to disclosure, the agency would request an attorney general ruling as to whether it could be withheld from the Texas Senator.
Non-disclosure agreements
Disclosure of confidential information under Section 552.108 does not waive or affect the confidentiality of the information or waive the governmental body’s right to assert exceptions to required public disclosure of the information to future requestors.[2]
Section 552.108 allows a governmental body to require the legislative requestor to sign a confidentiality/nondisclosure agreement that covers the requested information.[3] The Texas Department of Public Safety, for example, recently entered non-disclosure agreements with six Texas lawmakers with respect to investigatory information related to the Uvalde school shooting.
If a governmental body requires the execution of a confidentiality/non-disclosure agreement, the legislative requestor may ask for an attorney general decision about whether the information covered by the confidentiality agreement is indeed confidential under law.[4] The legislative requestor or the governmental body may appeal the attorney general’s decision to a Travis County district court.[5] A confidentiality agreement signed under Section 552.008 is void to the extent that the agreement covers information that is finally determined section 552.008(b-2) to not be confidential under law.
Criminal penalty
It is a misdemeanor offense and official misconduct to misuse information obtained under Section 552.008, such as by using the information for personal purposes or personal financial gain.[6]
Specifically, Section 552.352 of the Act provides that: “An officer or employee of a governmental body who obtains access to confidential information under Section 552.008 commits an offense if the officer or employee knowingly:
- uses the confidential information for a purpose other than the purpose for which the information was received or for a purpose unrelated to the law that permitted the officer or employee to obtain access to the information, including solicitation of political contributions or solicitation of clients;
- permits inspection of the confidential information by a person who is not authorized to inspect the information; or
- discloses the confidential information to a person who is not authorized to receive the information.”
Intergovernmental transfer doctrine
Section 552.108 applies only to requests submitted by “an individual member, agency, or committee of the legislature.”
If a non-legislative governmental body requests information from another governmental body, the information may be provided under the “intergovernmental transfer doctrine.” Under this doctrine, a governmental body may exercise discretion to release information to another governmental body, without waiving the confidentiality of that information.
According to the Texas Attorney General, the doctrine is supported by the “well-settled policy of this state that governmental agencies should cooperate with each other in the interest of the efficient and economical administration of their statutory duties.”[7]
Notably, the intergovernmental transfer doctrine does not authorize the release of information to governmental bodies outside Texas. For example, the Texas Attorney General has held that the doctrine did not apply where a sheriff’s office in Arizona submitted a request to the City of Fort Worth.[8]
If a governmental body chooses not to exercise its discretion under the intergovernmental transfer doctrine (or the doctrine does not apply), then the request will be treated like an “ordinary” request for information—public information would be released and an attorney general ruling would be requested for any information that falls within an exception to disclosure.
[1] Tex. Gov’t Code § 552.008(a)-(b).
[2] Tex. Gov’t Code § 552.008(b); see Op. Tex. Att’y Gen. No. OR2017-01553 (2017).
[3] Tex. Gov’t Code § 552.008(b).
[4] 1 Tex. Admin. Code § 63.2.
[5] Tex. Gov’t Code § 552.008(b-2).
[6] See Pzifer, Inc. v. Tex. Health & Human Services Comm'n, No. 1:16-CV-1228-LY, 2017 WL 11068849, at *5 (W.D. Tex. Sept. 29, 2017).
[7] Op. Tex. Att'y Gen. No. OR2022-33284 (2022).