KBS Reference Desk: Temporary Custodians of Record – TPIA

Q:       I just received a Public Information Request for all electronic communications between individual board members or between board members and the superintendent related to a proposed vaccine incentive. 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” from a temporary custodian.

The Act 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.” The transaction of official business is defined abstractly in the Act, but essentially includes any communication that pertains to the official business of the governmental body. Previous decisions from the Attorney General’s Office, as well as guidance posted by TASB (see here at pp. 8-9), have also shed light on this standard. For example, one decision from the Attorney General’s Office states that a governmental body’s official business ordinarily does not include a public officer’s personal campaign and political activities. See Open Records Decision No. 01126 (2005). In contrast, another decision concluded that text messages between a city manager and representative from a third-party entity were considered public information because the communications were sent “in connection with the city taking action on a contract.” See Open Records Decision No. 14415 (2019).

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.

In the above hypothetical, because the vaccine incentive plan is an initiative being considered by the school district, any electronic communication related to that proposal would meet the definition of “public information.” Therefore, the District’s public information officer, having “a reasonable belief that the temporary custodian has possession, custody, or control of the information,” would need to search his own phone as well as ask each board member for copies of their personal emails and text messages that contain dialogue concerning the proposed vaccine incentive. Tex. Gov’t Code § 552.203(4)(B) (emphasis added). The statute directs the temporary custodian (here, the board members) to provide the responsive, public communications to the public information officer within 10 business days of the communications being requested. Tex. Gov’t Code § 552.233(b). For the purpose of calculating timelines under the Act, the governmental entity is considered to have received a request for information on the date a temporary custodian surrenders or returns information to the district. Tex. Gov’t Code § 552.233(d)

Importantly, 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. For additional questions regarding temporary custodians of record or the TPIA, contact your school district’s attorney.

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