Untitled Texas Attorney General Opinion ( 1991 )

QBffice of tfp IBttornep tlhecal
&ate of acxas
DAN MORALES
Altos OMmN.
August 15 1991
Dear Sir or Madam:
You recently received a copy of Attorney General Opinion DM-30. There is
a nonsubstantive error on the first page of this opinion. We are enclosing a
corrected copy of this opinion as a replacement for the copy you previously received.
We apologize for any inconvenience this may have caused.
Madeleine B. Johnson
Chair, Opinion C&nmittee
MBJ/lb
512/463-2100 P.O. BOX 12548 AUSTIN. TEXAS 78711.2548
QlMce of tfie I?lttornep @eneral
%stateof Qtxas
DAN MORALES
AITORNLY
OENERAL
July 29,199l
Honorable Bill Sims opinion No. DM- ,30
chailman
Administration Committee Re: County clerk’s duty to provide du-
Texas State Senate plicate microfilm of county real estate
Rm. 421, Capitol Building and deed records (RQ-2114)
Austin, Texas 78711-2068
Dear Senator Sims:
You ask whether county clerks must either (1) provide duplicate microfilm of
comty real estate and deed records or (2) allow individuals to bring microfilm
equipment into the clerk’s office to duplicate county real estate and deed records.
Your second question was considered in Attorney General opinion JM-757 (1987),
which concluded:
The Texas Gpen Records Act, article 6252-17a, V.T.C.S., does
not grant members of the public an unlimited right to copy, with their
own copying equipment, information deemed public under the Gpen
Records Act. Requests from members of the public to copy public
records with their own equipment may be denied when the requests
raise questions of safety or efficiency or threaten the unreasonable
disruption of the business of the governmental body. The reasonable-
ness and safety of each request depends on the facts surrounding the
request.
As we believe the analysis and result of that opinion to be correct, we need
not reconsider that question here .r Accordingly we will only consider your first
‘TherchasbccnJomcrecadihationdrclcvantstahltcs~AttorncyGtncralOpinion
JIM-757 was isse however, lhis rccodiGeation has not alTcetcd the almly&? or result. Though
Attorney General Ophion IM-757 does not cite Tobin v. lib@, 107 S.W2d 677 (Tex. Civ. App.-San
Antonio 1937, wit reed), or Tammt Cow@ Y.RMiktc YliuleCb., 199 S.W.2d 269 (Tex Cii. App.-Fort
Worth 1947, no wit), we believe its conclusioo is in accord with the holdings in those cases.
p. 136
Honorable Bill Sims - Page 2 (DM-30)
question, whether county clerks must provide duplicate microfilm of county real
estate and deed records. This question was considered by this office in Attorney
General opinion JM-95 (1983). That opinion concluded as follows:
We conclude that a county clerk must provide duplicate
micro6lm copies of real property records to persons requesting
the same and may not limit who may receive such copies or the
use thereof. By ‘microfihn copies’ we mean duplicates in
microfihn form of the actual microflhn.
Attorney General Opinion JM-95 based its conclusion on the premise that
the form in which information is stored does not determine its availability. While
this premise is correct, the conclusion reached in Attorney General Opinion JM-95
does not necessarily follow. It is one thing to say that information stored on
microfilm is subject to the Gpen Records Act, and quite another to conclude that
the requestor of such information may determine that microfilm is the medium in
which copies of that information must be provided for purchase. As Attorney
General Opinion JM-95 does not analyze the question in this way, we think it
appropriate to reconsider the conclusion reached in that opinion.2
The Texas Gpen Records Act, V.T.C.S. art. 6252-17a, governs generally
public access to records held by governmental bodies in Texas. The Gpen Records
Act requires that upon application for access to public information the custodian of
the records “shall promptly produce such information for inspection or duplication,
or both, in the offices of the governmental body.” V.T.C.S. art. 6252-17a, g 4; see
uLroid, Q&!5(a), 10(b).’ Section 9(c) of the Gpen Records Act provides:
*Since Attorney General Opinion m-95 was issued, this office has said that the Open Records
Act does not require the preparation of information in a form dictated by a member of the public See
Attorney General Opinion JM-672 (1987); Open Records Decision No. 467 (1987). However, these
opinions were diacdng the existenw or orgaoizatioa of iaformatiog rather than the medium in
which the hformatioo is conveyed
?Ckctioo 5(a) pmides, in part: ‘It ahall be the duty of the officer for public records, subjecx to
pedties provided in this Act. to see that the public records arc made available for public ins~ctioa
and copying.” Section 10(b) provides: ‘An officer for public records, 01 his agent, commits aa offense
if, with crimid negiigenee, he or his agent hils or refuses to give access to, or to permit or provide
eopyhg of, public records to any person upon rqucst as provided ia this Ad.’
p. 137
Honorable Bi Sims - Page 3 (DM-30)
It shall be the policy of all governmental bodies to provide
suitable copies of all public records within a reasonable period
of time after the date copies were requested. Every
governmental body is hereby instructed to make reasonably
efficient use of each page of public records so as not to cause
excessive costs for the reproduction of public records.
(Emphasis added.)
As can be seen, sections 4 and S(a) of the Open Records Act do not explicitly
hnpose a duty upon governmental bodies to provide copies for purchase by
members of the public. However, section 9(c) makes it “the policy of all
governmental bodies to provide suitable copies of all public records.” As section 9 is
concerned with, among other things, the costs of copies purchased by members of
the public, it is reasonable to presume that the copies referred to in section 9(c)
include copies to be provided for purchase. This reading is consistent with the
provision by section 10(b) of a criminal penalty for failme to “provide copying OF
public records.
As the county clerk’s office exists for the benefit of the whole public, the
treatment of the public with respect to the availability of records in various media
must be evenhanded. V.T.C.S. art. 6252-17a, 8 5(c); see alro Tobin v. m, 107
S.W.2d 677, 680 (Tex. Civ. App.-San Antonio 1937, writ refd). Accordingly, we
think that in considering what is suitable, we must look to what is suitable for the
public as a whole.
What form of copies may be “suitable”could vary depending upon the nature
of the requested information. While it is not possible or necessary here to speculate
upon every circumstance in which a suitable copy might consist of some form other
than an ordinary paper reproduction, we can point, for example, to records on
videotape or audiotape where a paper transcription would be an inadequate
substitute for the medium in which the information was originally recorded. With
respect to deed records, however, it seems an ordinary paper copy would, in every
case, be. suitable to convey the information contained in the record to any member
of the public.
Section 9(b) of the Open Records Act provides for charges made~for “access
P. 138
(DM-30)
Honorable Bill Sims - Page 4
to public records comprised in any form other than up to standard sized pages or in
computer record banks, microfihn records, or other similar record keeping systems.”
This provision speaks to “access”to records rather than to the purchase of copies.
Hen&i& v. Board of Truvteesof Spring Branch I.S.D., 525 S.W.2d 930,932 (Tex. Civ.
App.-Houston [1st Dist.] 1975, writ ref’d n.r.e.). While this provision certainly does
not preclude the possibility that records may be provided in media other than paper,
it imposes no specific duty on custodians of public records to provide records in any
specific medium other than paper.
Chapter 204 of the Local Government Code addresses the maintenance of
local government records on microfilm. Section 204.002 of the Local Government
Code provides that “[a]ny local government record may be maintained on microfihn
in addition to or instead of paper or other media”
Pursuant to section 204.084(b)( 11) of the Local Government Code, the Texas
State Library and Archives Commission has adopted the following rule, to be
codified as title 13, section 7.33, of the Texas Administrative Code: i
Local governments must adopt procedures to ensure that the
public has the same access to information on microShn as they
would be entitled to if the information were recorded in
another medium. Where microtXm is the only storage medium
for a record, a microfilm, paper, or other type of copy other
than the master microfilm must be available for public use; the
custodian shah not be required to make available for public
access the master microfhm.
In comments accompanying the final adoption of this rule, the .commission
stated that it meant “to specify that if microfilm is the only medium the master
microfihn must be copied and the copy be accessible to the public.” Texas State
Library & Archives Comm’n, 15 Tex. Reg. 5673 (1990). While the rule provides
that a copy must be accessible for public inspection, the rule does not address the
question of providing a copy which a member of the public may purchase.
Subchapter B of chapter 118 of the Local Government Code (sections
118.011 through section 118.024, indusive) provide for fees for filing and providing
copies of certain records, including real property records, by county clerks. Section
p. 139
Honorable Bill Sims - Page 5 -(DM-30)
118.024(a) provides:
This subchapter does not limit or deny any person full and
free access to any document referred to in this subchapter. A
person is entitled to read, examine, and copy from those
documents or from any microfilm or other photographic image
of the documents. (Emphasis added.)
While section 118.024(a) of the Local Government Code provides a right to
copyfrom a microfilm record, it provides no duty on the part of the county clerk to
provide a record for purchase in the form of microfilm. We conclude that while a
county clerk may provide microfilm copies of real estate and deed records to the
public, the law does not impose a duty to do so. Attorney General Opinion JM-95
is, accordingly, overruled to the extent of any conflict herewith.
SUMMARY
While a county clerk may provide microfilm
copies of real estate and deed records to the public, the
law does not impose a duty to do so. The Open
Records Act requires the county clerk to provide
suitable copies. Attorney General Opinion JM-95 is
overruled to the extent of any conflict herewith.
DAN MORALES
Attorney General of Texas
P. 140
Honorable Bill Sims - Page 6 (DM-30)
WILL.PRYOR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLlE STEAKLEY (Ret.)
Special Assistant Attorney General
RENEAHIcK!3
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by John Steiner
Assistant Attorney General
p. 141