With the intense public focus on library book challenges, many of our clients have experienced an explosion of requests for documents related to book challenges under the Texas Public Information Act.  In most cases, the documents resulting from the search are few and costs are minimal, but requests for “correspondence and emails” frequently produces thousands and can easily result in tens of thousands of pages of emails.  Each resulting email must then be reviewed and potentially redacted to prevent disclosure of FERPA protected student information. While a cost estimate will never recover all of the costs of compliance, the law permits and actually mandates the provision of a statement of estimated charges if the cost will exceed $40.00.

If a governmental body estimates that charges will exceed $40.00, the governmental body is required to provide the requestor with a written itemized statement of estimated charges before any work is undertaken. Tex. Gov’t Code § 552.267(a). Allowable charges are set out in 1 TAC § 70.3., but a reasonable rule of thumb when estimating labor charges is to assume 1 minute per page for emails to review and redact any student information.  The statement must advise the requestor they may contact the governmental body if there is a less costly method of viewing the records. Tex. Gov’t Code § 552.2615(a). The statement must also contain a notice that the request will be considered automatically withdrawn if the requestor does not respond in writing within ten business days of the date of the statement that the requestor: (a) accepts the charges, (b) modifies the request in response to the estimate, or (c) has sent, or is sending, a complaint regarding the charges to the attorney general. Tex. Gov’t Code § 552.2615(b).  If the requestor fails to respond to the statement in writing within 30 days, the request is considered withdrawn. Tex. Gov’t Code § 552.231(d-1).

All of the required elements of the cost estimate must be included in the notification letter or the Attorney General may consider the estimate to be deficient, which can result in an inability to recover costs through charges.  Deficient notification may also prevent the district from considering the request withdrawn by operation of law. The Texas Attorney General has a cost estimator model on their website, which will generate a cost estimate and will generate a letter with the correct verbiage.  The language should not be modified, including the language regarding a less costly means of viewing the documents.  If the requestor chooses to view the documents in person, they cannot be charged costs, even if the documents must be reviewed and redacted prior to making them available for in-person review. Failure to provide all of the required language may impact the determination the request has been withdrawn by operation of law if the requestor does not agree to pay the cost in a timely manner.

While this is a brief and incomplete discussion of all aspects of estimating costs of complying with the Texas Public Information Act and allowable charges are a fraction of actual costs, districts should be providing an estimate, in order to recover some of the costs and also to limit some expansive and arguably abusive document requests.  Additionally, if the requestor fails to respond, the request is considered to be withdrawn by operation of law after 30 days.  Should any questions arise regarding responding to or compliance with the Public Information Act, please feel free to contact Leon Alcala, PLLC.

Author: Hans Graff

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