for the appeal of the denial of access to a judicial record

(d) Records Custodian not Personally Responsible for Cost. A records custodian is not required to incur personal expense in furnishing a copy of a judicial record. 12.8 Denial of Access to a Judicial Record. (a) When Request May be Denied. A records custodian may deny a request for a judicial record under this rule only if the records custodian: (1) reasonably determines that the requested judicial record is exempt from required disclosure under this rule; or (2) makes specific, non-conclusory findings that compliance with the request would substantially and unreasonably impede the routine operation of the court or judicial agency. (b) Time to Deny. A records custodian who denies access to a judicial record must notify the person requesting the record of the denial within a reasonable time--not to exceed 14 days--after receipt of the request, or before the deadline for responding to the request extended under Rule 12.6 (b)(2). (c) Contents of Notice of Denial. A notice of denial must be in writing and must: (1) state the reason for the denial; (2) inform the person of the right of appeal provided by Rule 12.9; and Page 19 (3) include the name and address of the Administrative Director of the Office of Court Administration. 12.9 Relief from Denial of Access to Judicial Records. (a) Appeal. A person who is denied access to a judicial record may appeal the denial by filing a petition for review with the Administrative Director of the Office of Court Administration. (b) Contents of Petition for Review. The petition for review: (1) must include a copy of the request to the record custodian and the records custodian's notice of denial; (2) may include any supporting facts, arguments, and authorities that the petitioner believes to be relevant; and (3) may contain a request for expedited review, the grounds for which must be stated. (c) Time for Filing. The petition must be filed not later than 30 days after the date that the petitioner receives notice of a denial of access to the judicial record. (d) Notification of Records Custodian and Presiding Judges. Upon receipt of the petition for review, the Administrative Director must promptly notify the records custodian who denied access to the judicial record and the presiding judge of each administrative judicial region of the filing of the petition. (e) Response. A records custodian who denies access to a judicial record and against whom relief is sought under this section may--within 14 days of receipt of notice from the Administrative Director--submit a written response to the petition for review and include supporting facts and authorities in the response. The records custodian must mail a copy of the response to the petitioner. The records custodian may also submit for in camera inspection any record, or a sample of records, to which access has been denied. (f) Formation of Special Committee. Upon receiving notice under Rule 12.9(d), the presiding judges must refer the petition to a special committee of not less than five of the presiding judges for review. The presiding judges must notify the Administrative Director, the petitioner, and the records custodian of the names of the judges selected to serve on the committee. (g) Procedure for Review. The special committee must review the petition and the records custodian's response and determine whether the requested judicial record should be made available under this rule to the petitioner. The special committee may request the records custodian to submit for in camera inspection a record, or a sample of Page 20 records, to which access has been denied. The records custodian may respond to the request in whole or in part but it not required to do so. (h) Considerations. When determining whether the requested judicial record should be made available under this rule to petition, the special committee must consider: (1) the text and policy of this Rule; (2) any supporting and controverting facts, arguments, and authorities in the petition and the response; and (3) prior applications of this Rule by other special committees or by courts. (i) Expedited Review. On request of the petitioner, and for good cause shown, the special committee may schedule an expedited review of the petition. (j) Decision. The special committee's determination must be supported by a written decision that must: (1) issue within 60 days of the date that the Administrative Director received the petition for review; (2) either grant the petition in whole or in part or sustain the denial of access to the requested judicial record; (3) state the reasons for the decision, including appropriate citations to this rule; and (4) identify the record or portions of the record to which access is ordered or denied, but only if the description does not disclose confidential information. (k) Notice of Decision. The special committee must send the decision to the Administrative Director. On receipt of the decision from the special committee, the Administrative Director must: (1) immediately notify the petitioner and the records custodian of the decision and include a copy of the decision with the notice; and (2) maintain a copy of the special committee's decision in the Administrative Director's office for public inspection. (l) Publication of Decisions. The Administrative Director must publish periodically to the judiciary and the general public the special committees' decisions. Page 21 (m) Final Decision. A decision of a special committee under this rule is not appealable but is subject to review by mandamus. (n) Appeal to Special Committee Not Exclusive Remedy. The right of review provided under this subdivision is not exclusive and does not preclude relief by mandamus. 12.10 Sanctions. A records custodian who fails to comply with this rule, knowing that the failure to comply is in violation of the rule, is subject to sanctions under the Code of Judicial Conduct. Comments 1. Although the definition of “judicial agency” in Rule 12.2(b) is comprehensive, applicability of the rule is restricted by Rule 12.3. The rule does not apply to judicial agencies whose records are expressly made subject to disclosure by statute, rule, or law. An example is the State Bar (“an administrative agency of the judicial department”, Tex. Gov't Code § 81.011(a)), which is subject to the Public Information Act. Tex. Gov't Code § 81.033. Thus, no judicial agency must comply with both the Act and this rule; at most one can apply. Nor does the rule apply to judicial agencies expressly excepted from the Act by statute (other than by the general judiciary exception in section 552.003(b) of the Act), rule, or law. Examples are the Board of Legal Specialization, Tex. Gov't Code § 81.033, and the Board of Disciplinary Appeals, Tex. R. Disciplinary App. 7.12. Because these boards are expressly excepted from the Act, their records are not subject to disclosure under this rule, even though no law affirmatively makes their records confidential. The Board of Law Examiners is partly subject to the Act and partly exempt, Tex. Gov't Code § 82.003, and therefore this rule is inapplicable to it. An example of a judicial agency subject to the rule is the Supreme Court Advisory Committee, which is neither subject to nor expressly excepted from the Act, and whose records are not made confidential by any law. 2. As stated in Rule 12.4, this rule does not require the creation or retention of records, but neither does it permit the destruction of records that are required to be maintained by statute or other law, such as Tex. Gov't Code §§ 441.158-.167, .180-.203; Tex. Local Gov't Code ch. 203; and 13 Tex. Admin. Code § 7.122. 3. Rule 12.8 allows a records custodian to deny a record request that would substantially and unreasonably impede the routine operation of the court or judicial agency. As an illustration, and not by way of limitation, a request for “all judicial records” that is submitted every day or even every few days by the same person or persons acting in concert could substantially and unreasonably impede the operations of a court or judicial agency that lacked the staff to respond to such repeated requests. Page 22 4. Comment to 2008 change: The Attorney General’s rule, adopted in accordance with Section 552.262 of the Government Code, is in Section 70.3 of Title I of the Texas Administrative Code.