How A Texas AG Ruling Could Lead To Jail Time For Elected Officials
In 2022, Texas Attorney General Ken Paxton wrote that the Texas Public Information Act (PIA) “assures that government entities give citizens access to information about what public servants are doing on their behalf – information they need to gain a more complete understanding of how their government works and hold their public officials accountable.”
The PIA applies to all governmental bodies created by Texas’ executive or legislative branches.
While most government records are presumed to be available to the public, Section 552.101 of the Texas Government Code holds that “information considered to be confidential by law, either constitutional, statutory, or by judicial decision” must be withheld.
For example, in 2009, Greg Abbott, then serving as the Attorney General of Texas, issued Open Records Decision (ORD) No. 684. This ORD held that records such as direct deposit authorization forms, W-2 and W-4 forms, fingerprints, and Texas driver’s license numbers are confidential.
If the Attorney General has not issued a previous determination that specific information is confidential, then a governmental body must ask the Attorney General for a ruling.
While many requests for an Attorney General ruling are arguably routine, one such request currently pending before the AG has the potential to subject elected officials and city/county staff to criminal investigation.
The request asks for records related to applicants seeking funding from the American Rescue Plan Act (“ARPA”) program.
ARPA established the Coronavirus State and Local Fiscal Recovery Funds (SLFRF). This program allocated billions in federal funds to state and local government recipients to help minimize the economic effects of the COVID-19 pandemic.
The governmental agency seeking to withhold the requested records believes that the information requested is exempt from disclosure under Section 552.160 of the Texas Government Code.
This section effectively states that information maintained by a governmental body that identifies a business, an owner of a business, a person, or a household that applied for state or federal disaster recovery funds is confidential.
If the Attorney General rules that the identities of applicants for ARPA funds are confidential, then it creates a precarious predicament for governmental bodies who often disclose the identities of applicants in public settings.
Per Section 552.352 of the Texas Government Code, if an officer or employee of a government body discloses confidential information, they commit a criminal act. If convicted, the individual could receive a fine of not more than $1,000, a jail sentence not to exceed six months or both. Furthermore, the distribution or misuse of confidential information constitutes official misconduct.
Both Bexar County and the City of San Antonio routinely discussed ARPA applicants during public meetings. As such, elected officials like Bexar County Judge Peter Sakai and San Antonio Mayor Ron Nirenberg could face criminal charges.
Attorney General rulings typically are issued within 45 business days. If their office rules that the identities of ARPA applicants are confidential, Bexar County District Attorney Joe Gonzales has an ethical obligation to open a criminal investigation.