Texas Government Code Section 552.101 requires state and local government bodies to withhold information that is “confidential by law, either constitutional, statutory, or by judicial decision.”1State of Texas. Texas Government Code 552.101 – Exception: Confidential Information Unlike most exceptions in the Texas Public Information Act, which leave agencies room to decide whether to release records, 552.101 is mandatory. If another source of law makes the information confidential, the agency has no discretion. It must withhold.
The provision works as a catch-all. It pulls in confidentiality rules from Texas statutes, federal statutes, the state and federal constitutions, and court decisions recognizing a common law right to privacy. That means any 552.101 analysis really starts with a different question: what other law protects this information?
The Three Sources of Confidentiality
Section 552.101 does not itself define what is confidential. It reaches information protected by one of three legal sources: a statute, a judicial decision recognizing common law privacy, or a constitutional privacy right.1State of Texas. Texas Government Code 552.101 – Exception: Confidential Information
Statutory confidentiality accounts for the overwhelming majority of 552.101 claims. Common law privacy requires a fact-specific analysis under a two-part test from the Texas Supreme Court. Constitutional privacy sets the highest bar and applies in the narrowest range of situations.
Information Made Confidential by Statute
When a separate state or federal law labels a category of information confidential, 552.101 absorbs that prohibition. The agency processing the request must identify the specific statute and withhold accordingly. Several statutes come up repeatedly.
Medical Records and Physician-Patient Communications
The Medical Practice Act makes communications between a physician and patient related to professional services confidential, and the protection extends to records of the patient’s identity, diagnosis, evaluation, and treatment.2State of Texas. Texas Occupations Code 159.002 – Confidential Communications Where a government body holds such records — a state hospital, a university health center, a county jail’s medical unit — those records are confidential and must be withheld under 552.101.p>
The federal HIPAA Privacy Rule adds another layer for Texas agencies that qualify as covered entities or receive protected health information.3U.S. Department of Health and Human Services. Summary of the HIPAA Privacy Rule
Child Abuse Investigation Records
Section 261.201 of the Texas Family Code makes reports of suspected child abuse or neglect confidential, along with the identity of the reporter.4Office of the Attorney General of Texas. OR2024-011165 That protection also covers the investigative file: working papers, audiotapes, videotapes, and any other records generated during the investigation or the services that followed. This is one of the broadest confidentiality provisions in Texas law. It covers everything the investigation produces, not just the final report.
Criminal History Record Information
Criminal history records maintained by the Texas Department of Public Safety are confidential and can be shared only through channels authorized by statute.5City of Houston. Texas Government Code 411 – Dissemination and Use of Criminal History Record Information Authorized recipients include criminal justice agencies, certain noncriminal justice agencies designated by law, the subject of the record, and approved research organizations. A public information request from anyone outside those categories has to be refused under 552.101.
Student Education Records
The federal Family Educational Rights and Privacy Act (FERPA) prohibits educational institutions that receive federal funding from releasing education records or personally identifiable information about students without written parental consent, subject to specific exceptions.6Office of the Law Revision Counsel. 20 USC 1232g – Family Educational Rights and Privacy Texas public school districts, community colleges, and state universities all receive federal funds, so FERPA reaches them directly and comes into any request through 552.101.
A Note on Social Security Numbers
Social Security numbers are handled under a separate provision, Section 552.147, not 552.101. That statute lets an agency redact SSNs from released documents without asking the Attorney General first, and it states explicitly that SSNs are “excepted” from disclosure but “not confidential” under the Act.7State of Texas. Texas Government Code 552.147 – Social Security Numbers The distinction is technical, but if you are looking for the SSN redaction authority in 552.101, you will not find it there.
Common Law Privacy
Even without a statute on point, information can be confidential under 552.101 through the common law right to privacy. The Texas Supreme Court set the governing test in Industrial Foundation of the South v. Texas Industrial Accident Board.8Justia. Industrial Foundation of the South v. Texas Industrial Accident Board
The test has two prongs, and information has to satisfy both. First, it must contain highly intimate or embarrassing facts about a person’s private affairs, of a kind whose release would be highly objectionable to a reasonable person. Second, it must not be of legitimate concern to the public.9Office of the Attorney General of Texas. OR2011-16269 Embarrassing but newsworthy information does not qualify. Private but not particularly intimate information does not qualify either.
The Attorney General evaluates this case by case. Detailed personal medical histories unrelated to public health, credit card numbers, personal financial account details, and paycheck garnishment information typically pass the test. Government salary amounts generally do not, because they involve public funds and carry legitimate public interest. Specific deductions and withholdings from that salary often do qualify.
Constitutional Privacy
The third source is the constitutional right to privacy. Federal courts have recognized zones of constitutional privacy around decisions involving marriage, procreation, contraception, family relationships, and child rearing.10Cornell Law Institute. Sexual Activity, Privacy, and Substantive Due Process The threshold is higher than common law privacy, and agencies rarely need to reach it. Most 552.101 disputes resolve on statutory or common law grounds long before constitutional analysis becomes necessary.
How an Agency Asserts Section 552.101
A government body cannot simply stamp a document confidential and refuse to release it. To withhold under 552.101, the agency has to follow a structured process with firm deadlines.
Within 10 business days of receiving the written request, the agency must ask the Attorney General for a ruling and notify the requestor in writing that it is doing so.11State of Texas. Texas Government Code 552.301 – Request for Attorney General Decision The notice to the requestor includes either a copy of the agency’s letter to the AG or a redacted version, if the letter itself would reveal the protected information.
Within 15 business days, the agency has to submit its full package to the Attorney General: written comments explaining why the claimed exceptions apply, a copy of the original request, a signed statement establishing when the request arrived, and a copy of the specific records at issue, labeled to show which exceptions apply to which portions. A copy of those written comments must also go to the requestor on the same 15-business-day timeline.
The Attorney General then has 45 business days to rule, with a possible 10-business-day extension if the office notifies both parties during the original window and explains the reason.12State of Texas. Texas Government Code 552.306 – Rendition of Attorney General Decision The resulting Open Records Letter Ruling is legally binding.13Office of the Attorney General. What to Expect When You Receive an Open Records Letter Ruling If it says the information is not confidential, the agency has to release it.
What Happens If the Agency Misses the Deadline
The consequences for missing the 10-business-day deadline are severe and automatic. If a government body fails to request an Attorney General ruling and notify the requestor on time, the requested information is presumed subject to public disclosure and must be released, unless the agency can demonstrate a “compelling reason” to withhold it.14State of Texas. Texas Government Code 552.302 – Failure to Make Timely Request for Attorney General Decision The compelling-reason exception is narrow, and it is not a reliable safety net.
A parallel presumption applies when the Attorney General asks the agency for additional information and the agency fails to provide it within seven calendar days. Again, the records are presumed public absent a compelling reason.15State of Texas. Texas Government Code 552.303 – Attorney General Request for Submission of Additional Information These presumptions are the Act’s strongest enforcement tool. They punish delay by stripping the agency of its ability to withhold.
Challenging a Withholding Decision
If your request is denied, the AG ruling is not the end of the road. Under Section 552.321, a requestor can file suit seeking a writ of mandamus, a court order compelling the government body to release the information.16State of Texas. Texas Government Code 552.321 – Suit for Writ of Mandamus The remedy is available when an agency refuses to request an AG decision, refuses to release records the AG has determined are public, or refuses to provide public information without justification. Suit is filed in a district court in the county where the government body’s main offices are located.
Criminal Penalties on Both Sides
The Public Information Act penalizes officials who release protected information and officials who withhold public records.
A person who distributes information that is confidential under the Act commits a misdemeanor punishable by a fine of up to $1,000, up to six months in county jail, or both.17State of Texas. Texas Government Code 552.352 – Distribution or Misuse of Confidential Information The offense also constitutes official misconduct, which can lead to removal from office. The statute reaches officers and employees who use confidential information for unauthorized purposes, including soliciting political contributions or clients, and those who let unauthorized people inspect or receive the records.
Section 552.353 goes the other direction. A public official who willfully refuses to provide public information, willfully destroys or mutilates records to prevent release, or directs someone else to do so commits a misdemeanor carrying the same maximum penalties: a fine up to $1,000, up to six months in jail, or both, plus official misconduct.18State of Texas. Texas Government Code 552.021 – Availability of Public Information The two provisions work in tandem. Section 552.101’s mandatory withholding duty is enforced with the same weight as the Act’s default presumption of openness.