Section 3: Other Policies and Regulations
Anchor: #i1036227Texas Senate Bill 944 – 86th Legislative Session
Texas Senate Bill 944, 86th Legislative Session was created to ensure an officer, employee, or contractor of a government agency who creates or receives records on a privately-owned device or account provides that information to the government’s public information officer or officer’s agent for the purposes of protecting information and ensuring transparency.
S.B. 944 allows governments to obtain records stored on an officer’s, employee’s, or contractor’s private device. The Office of the Attorney General and courts have ruled for years that records held on private devices or in private accounts of officers, employees, or contractors are still records and are subject to records management and public information laws. Section 202.005 gives the governing body of a local government the right and proper legal channels to recover any records that reside in the possession of an individual. S.B. 944 also establishes that an officer, employee, or contractor does not have a personal or property right to records created or received while acting in an official capacity.
Anchor: #i1036259Public Information Act (PIA)
Government Code 552.234 “Title 5 Open Government; Ethics, Subtitle A. Open Government, Chapter 552. Public Information – Method of Making Written Request for Public Information” allows governments to obtain records stored on an officer’s, employee’s, or contractor’s private device. The Office of the Attorney General and courts have ruled for years that records held on private devices or in private accounts of officers, employees, or contractors are still records and are subject to records management and public information laws. Government Code 552.233 “Title 5 Open Government; Ethics, Subtitle A. Open Government, Chapter 552. Public Information – Ownership of Pubic Information” also establishes that an officer, employee, or contractor does not have a personal or property right to records created or received while acting in an official capacity.
The Public Information Act was amended to say that government officials who use personal devices to conduct public business are responsible for turning over those messages to an official government account, and/or preserving them on the personal device for the duration of the retention period.
Furthermore, this amendment applies to existing records management laws Government Code Chapter 441 “Title 4. Executive Branch, Subtitle D. History, Culture, and Education, Subchapter A, Texas State Library and Archives Commission” governing the preservation, destruction, or disposition to the records held by a temporary custodian. No matter where a record resides, it is subject to the administrative rules laid out in Records Retention Schedules.
- Anchor: #DEJUAVOG
- Temporary custodian refers to a past or present government official who, in the transaction of official state business, creates or receives public information that they have not provided to the officer for public information of the governmental body.
Employees and contractors conducting official state business on mobile devices become “temporary custodians” of the information and are responsible for maintaining the records for the duration of the retention requirement and is not the property of the individual.
Temporary custodians are responsible for turning over public information held on a privately-owned device to the governmental body when requested.
State-owned and personally owned mobile devices storing official records are allowed, but only of a transitory nature. Temporary custodians are responsible for turning over public information held on a privately-owned device to the governmental body should they request it, like if the information is responsive to a public information request.
For more information to the Public Information Act, please contact the General Counsel Division (GCD). Texas Senate Bill 944, 86th Legislative Session, disclosure requirements of the Public Information Act, and the Records Retention Schedule are also a consideration for the management of electronic records.
The Public Information Act focuses on the nature of the communication or document. If the information was created, transmitted, received, or maintained in connection with the transaction of “official business,” defined as “any matter over which a governmental body has any authority, administrative duties, or advisory duties,” the information constitutes public information subject to disclosure under the Public Information Act. Any public business conducted on a state-issued or personal mobile device, laptop, computer, or external storage device may be considered an official record.
- Anchor: #WGGSSFFS
- The Public Information Act specifies if an officer, employee, or contractor possesses information on a device that has not been properly transferred or preserved on a government-designated storage location, the officer, employee, or contractor must surrender or return the requested information to the agency to promptly fulfill an open records request. For more information on open records requests, please contact the General Council Division.
Information Security Policy
The Information Security Policy Manual contains policies for protecting the confidentiality, integrity, and availability of TxDOT’s information resources. Chapter 4 of the Information Security Policy Manual addresses the protection of data to balance quality and integrity to allow for the optimization, maintenance, and disposition of information throughout the life cycle to protect information assets, regardless of their location, state, or medium.
The Information Protection Policy has five objectives to protect information from accidental or purposeful corruption or misuse. Below is the list of the Information Protection Policy objectives:
- Anchor: #LNSBQESP
- Classifies data Anchor: #GIENJDLU
- Encrypts data Anchor: #PYUKFBFA
- Uses digital signatures safely Anchor: #VIJGCHFP
- Safeguard’s privacy Anchor: #AMKMFLWC
- Ensures system and information integrity
Government Penal Code
Government Penal Code, Section 37.10 “Title 8, Offenses Against Public Administration, Chapter 37. Perjury and Other Falsifications” specifies a person who intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a government record is considered tampering.
CAUTION: The failure to follow the regulations defined above, may expose the employee, contractor or TxDOT to damages and attorney fees under the Public Information Act. Additionally, officer’s, employee’s or contractor’s personal mobile devices may be confiscated if an open records request is submitted.
NOTE: Chapter 9, File Management, discusses organization and management of files in support of business processes.