PART 3. OFFICE OF THE ATTORNEY GENERAL
CHAPTER 63. PUBLIC INFORMATION
SUBCHAPTER C. ELECTRONIC SUBMISSION OF REQUEST FOR ATTORNEY GENERAL OPEN RECORDS DECISION
The Office of the Attorney General (OAG) adopts amendments to 1 TAC §63.21 and §63.22 without changes to the proposed text as published in the February 9, 2024 issue of the Texas Register (49 TexReg 609). The adopted rules will not be republished. The amendments include new provisions to Subchapter C of Chapter 63, which pertains to electronic submission of requests for attorney general open records decision under the Public Information Act (the "Act"). First, the OAG adopts new subsections §63.21(6) and (7) to define the terms "impractical" and "impossible" for purposes of Texas Government Code §552.3031(a)(2). Second, the OAG adds subsection §63.22(g) to clarify that a governmental body is not permitted to include multiple decision requests in a single electronic submission. Third, the OAG adds subsection §63.22(h) to require a written explanation if a governmental body determines it is impossible or impractical to use the attorney general's designated electronic filing system. Fourth, the OAG adds subsection §63.22(i) to prescribe the standard that certain governmental bodies must use to determine if they fall under the population-based exception to mandatory electronic filing in Texas Government Code §552.3031(a)(1)(B).
EXPLANATION AND JUSTIFICATION OF RULES
The Legislature, in the 88th Regular Session (2023), added Texas Government Code §552.3031 (H.B. 3033), which requires certain Texas governmental bodies to electronically submit requests for OAG open records decisions under the Act. Additionally, subsection 552.3031(c) permits the OAG to adopt rules necessary to implement the new section, including rules that define the amount or type of formatting that would make use of the OAG's designated electronic filing system "impractical or impossible."
SECTION-BY-SECTION SUMMARY
New §63.21(6) defines the term "impractical" for purposes of Texas Government Code §552.3031(a)(2). The definition includes files that are in a format the attorney general's designated electronic filing system cannot accept at the time of filing and conversions of paper and physical material that would take more than one hour of labor. The definition also includes exclusions for circumstances where submission of a representative sample under Texas Government Code §552.301 would comply with the Act and avoid the issue that made submission impractical.
New §63.21(7) defines the term "impossible" for purposes of Texas Government Code §552.3031(a)(2). The definition includes provisions to address file-sizes beyond the OAG's designated electronic filing system capacity at time of submission, formats the OAG's designated electronic filing system does not support at time of submission, electronic filing system outages, and technical outages by the governmental body. The definition also includes exclusions for circumstances where submission of a representative sample under Texas Government Code §552.301 would comply with the Act and avoid the issue that made submission impossible.
New §63.22(g) specifies that each submission to the OAG's designated electronic filing system must pertain to a single matter and multiple unrelated decision requests cannot be combined into a single submission.
New §63.22(h) prescribes that a governmental body that does not use the OAG's designated electronic filing system because it is impractical or impossible shall provide a statement in its decision request that explains why it was impractical or impossible to use the system.
New §63.22(i) prescribes that if a governmental body extends into more than one county, then the governmental body shall use the population of the county in which its central administrative office is located to determine if the exception in Texas Government Code §552.3031(a)(1)(B) is applicable to the governmental body.
FISCAL IMPACT ON STATE AND LOCAL GOVERNMENTS
Tamara Smith, Division Chief for the Open Records Division, has determined that for the first five-year period the proposed rules are in effect, enforcing or administering the rules does not have foreseeable implications relating to cost or revenues of the state or local governments.
Texas Government Code §552.3031 mandates electronic submission for certain governmental bodies. Because there is a fee to electronically submit a record to the attorney general's designated electronic filing system, Texas Government Code §552.3031 will have a fiscal impact on governmental bodies that are required to electronically submit records. However, the proposed rules only clarify the requirements of Texas Government Code §552.3031 and do not expand or contract the applicability of the statute. Accordingly, the proposed rules do not have an impact beyond that of the statute.
PUBLIC BENEFIT AND COST NOTE
Ms. Tamara Smith has determined that for the first five-year period the adopted rules are in effect, the public will benefit through clear procedures and standards for Texas governmental bodies that electronically submit records under the Act. The public can confirm compliance with these standards and use the procedures available in the Act to enforce them.
Ms. Tamara Smith has also determined that for each year of the first five-year period the adopted rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules.
Texas Government Code §552.3031 mandates electronic submission for certain governmental bodies. Because there is a fee to electronically submit a record to the OAG's designated electronic filing system, Texas Government Code §552.3031 will have a cost impact on governmental bodies that are required to electronically submit records. However, the adopted rules only clarify the requirements of Texas Government Code §552.3031 and do not expand or contract the applicability of the statute. Accordingly, the adopted rules do not have an impact beyond that of the statute.
IMPACT ON LOCAL EMPLOYMENT OR ECONOMY
The Open Records Division has determined that the adopted rules do not have an impact on local employment or economies because the adopted rules impact governmental bodies. Therefore, no local employment or economy impact statement is required under Texas Government Code §2001.022.
ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL BUSINESSES, MICROBUSINESSES, AND RURAL COMMUNITIES
The Open Records Division has determined that for each year of the first five-year period the adopted rules are in effect, there will be no foreseeable adverse fiscal impact on small business, micro-businesses, or rural communities as a result of the proposed rules.
Since the adopted rules will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, is not required.
TAKINGS IMPACT ASSESSMENT
The OAG has determined that no private real property interests are affected by the adopted rules, and the proposed rules do not restrict, limit, or impose a burden on an owner's rights to the owner's private real property that would otherwise exist in the absence of government action. As a result, the adopted rules do not constitute a taking or require a takings impact assessment under Texas Government Code §2007.043.
GOVERNMENT GROWTH IMPACT STATEMENT
In compliance with Texas Government Code §2001.0221, the agency has prepared a government growth impact statement. During the first five years the adopted rules are in effect, the proposed rules:
- will not create a government program;
- will not require the creation or elimination of employee positions;
- will not require an increase or decrease in future legislative appropriations to the agency;
- will not lead to an increase or decrease in fees paid to a state agency;
- will create a new regulation;
- will not repeal an existing regulation;
- will not result in an increase or decrease in the number of individuals subject to the rule; and
- will not positively or adversely affect the state's economy.
SUMMARY OF PUBLIC COMMENT
The adopted rules were published in the February 9, 2024 issue of the Texas Register (49 TexReg 609). The deadline for public comment was March 11, 2024.
The OAG received comments from the City of Houston (City) and the North Texas Tollway Authority (NTTA).
The NTTA commented that the phrase "cannot be converted" in §63.21(7) is unclear in circumstances where a governmental body lacks the tools or expertise to convert information that may otherwise be converted.
The OAG reviewed the comment and declines to make changes. as conversion issues are addressed in the Public Information Act, Government Code Chapter 552, including §552.228 of the Government Code.
The NTTA commented that the meaning of "technical outage" is unclear and that it should apply to the individual responsible for electronic filing.
The OAG reviewed the comment and declines to make changes to the rule as the requirements for electronic filing rest with a governmental body and not a specific individual.
The City and NTTA commented that the requirement in §63.22(h) to provide the date and approximate time the governmental body attempted a submission should be amended or removed. The comments state the requirement is either not always applicable or necessary, especially in circumstances where a governmental body will know prior to an attempt that a submission will not be accepted.
The OAG reviewed the comments and amended subsection 63.22(h) to include "if applicable" to the end of the sentence. The OAG agrees that there are circumstances where a governmental body may know that it is impossible or impractical to use the electronic filing system prior to submitting its briefing and supporting documents.
STATUTORY AUTHORITY. New 1 TAC §63.21(6), §63.21(7), §63.22(f), §63.22(g), and §63.22(h) are proposed pursuant to Texas Government Code §552.3031(c), which permits the OAG to adopt rules necessary to implement Texas Government Code §552.3031.
New 1 TAC §63.22(g), §63.22(h) and §63.22(i) are proposed pursuant to Texas Government Code §552.3031(c), which permits the OAG to adopt rules necessary to implement Texas Government Code §552.3031.
CROSS-REFERENCE TO STATUTE. 1 TAC §63.21 clarifies Texas Government Code §552.3031 and affects §§552.301, .302.
1 TAC §63.22 clarifies Texas Government Code §552.301 and affects §552.3031.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on July 24, 2024.
TRD-202403347
Justin Gordon
General Counsel
Office of the Attorney General
Effective date: August 13, 2024
Proposal publication date: February 9, 2024
For further information, please call: (512) 475-4291