KBS Reference Desk: Temporary Custodians of Record – TPIA

Q:       I just received a Public Information Request for all electronic communications between individual board members and the superintendent related to the proposed bond. I can pull ISD emails from our server, but do I need to search my phone and ask the board members for copies of personal emails and text messages? 

 A:        Yes, the Texas Public Information Act requires each governmental body’s public information officer to make reasonable efforts to obtain public information. This includes seeking responsive records from both permanent (ISD) and temporary (employee/official) custodians of the public information.

The TPIA was amended in 2019 to address circumstances where employees and officials transact public business on personal cell phones and/or email accounts. While Attorney General authority had long held the focus to be on the content of the communication rather than the location, the Act was silent with regard to information stored on personal electronic devices. As such, the Legislature acted to align the statute with AG authority, thereby recognizing the potential for a government record to be maintained off-site by a “temporary custodian of public information.”

The TPIA defines “temporary custodian” to include any current or former governmental employee or official who maintains public information exclusively on a private account or device. A communication is considered public information if it relates to the “transaction of official business.” Essentially, this includes any communication that pertains to the official business of the governmental body. Hence, the bond election referenced above would clearly fit within this definition.

Importantly, it is the temporary custodian who is required to either preserve the public information consistent with established records retention periods or forward the information to the public information officer who can maintain the record on the school district’s server. As all District employees and board members could potentially communicate school business on a personal cell phone or email, training on this topic sufficient that all staff and trustees are able to recognize the communication or dialogue as the creation of a public record (with attendant storage obligations) is imperative.

Of course, even though a communication may relate to official business, a school district may still seek to withhold the communication in the event the content falls under any of the applicable TPIA exceptions. As such, it is recommended that you consult with your school district’s attorney when analyzing TPIA requests.

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