What the AG's Office Is Actually Looking For in an Open Records Brief

Before I started Transparency Counsel, I wrote open records briefs at the Office of the Attorney General. Not reviewing them, writing them. The ORD's job is to read what a government body submits and decide whether the argument holds up. I was on the other side of that desk.

Here is what I saw.

The ORD is not looking for effort

A brief can be long, detailed, and clearly represent hours of work and still lose. The ORD is not grading on effort. They are asking one question: does this argument actually justify withholding these specific records under Texas law?

If the answer is no, the brief fails. It does not matter how much work went into it.

This sounds obvious. It is apparently not, because the most common failure mode I saw was not laziness. It was government bodies working hard to make arguments that were never going to hold.

The single biggest mistake: choosing the wrong exception before you write

The exceptions to the PIA are not created equal. Some are well-established, clearly defined, and hold up consistently when properly invoked. Others are narrow, fact-specific, or have been eroded by decades of AG rulings. A few are long shots under almost any circumstances.

The government bodies that struggled most were not the ones that made sloppy arguments. They were the ones that chose the wrong exception to begin with and then spent their brief trying to make it work. You can write a technically competent brief in support of an exception that simply does not apply to your records. It still loses.

The brief that holds is the one written by someone who already knows the answer before they start writing. That means knowing not just what the exception says, but how the ORD has actually applied it across thousands of rulings, which fact patterns it covers, which ones it does not, and where the line is.

The four ways briefs fail

Once you have chosen the right exception, you still have to make the argument correctly. Here are the four failure modes I saw most often.

Conclusory arguments. Invoking an exception without explaining why it applies to these particular records. "This information is confidential under Section 552.XXX" is not an argument. It is a citation. The ORD needs to know why the exception applies, specifically, to these documents, in this context. The argument has to connect the exception to the records, not just name them in the same sentence.

Wrong exception. A government body identifies information it legitimately wants to withhold, then reaches for the most familiar exception rather than the most applicable one. Familiarity is not the same as fit. The right exception is the one that actually covers the records at issue, even if it is less commonly used.

Gaps in coverage. A brief that addresses some of the responsive records but not all of them leaves the uncovered records exposed. The ORD rules on what was submitted. If you did not make an argument for a document, you do not get to withhold it.

Over-withholding. Claiming exceptions that clearly do not apply, either out of caution or optimism. This does not just fail. It can undermine the credibility of the arguments that do apply. The ORD notices when a brief is reaching.

What a brief that holds looks like

It is specific. It addresses each document or category of documents individually, identifies the applicable exception, and explains the connection between the two in concrete terms. It does not over-claim. It does not under-explain. It reads like someone who already knew the answer and is now showing their work.

That last part matters. The best briefs are not persuasive in the way a closing argument is persuasive. They are persuasive in the way a correct answer is persuasive, because the analysis leads somewhere defensible and the ORD can follow the reasoning from the exception to the records without filling in gaps.

Why this matters for government bodies

Most government bodies do not write briefs often enough to develop fluency with the ORD's expectations. A PIC might handle a handful of brief requests a year, or fewer. The ORD's staff reads thousands. That asymmetry is real, and it shows up in the rulings.

This is not an argument for giving up on in-house brief writing. Straightforward requests with well-established exceptions are manageable with the right preparation. But when the records are sensitive, the exception is contested, or the volume is large, the gap between a brief written by someone who knows how the ORD thinks and one written by someone who does not tends to close in one direction.

That is the gap Transparency Counsel exists to close.