Untitled Texas Attorney General Opinion ( 1984 )

The Attornwy General of Texas
JIM MAl-rOX Mcember 31, 1984
Attorney General
supremecowl BuildIn
Honorable Bob Bullock opinion Ho. JM-292
P. 0. BOX 12549 Comptroller of Public Atcounts
Austin. TX. 79711. 2549 L.B.J. State Office Building Re: Costs of copies of records
512l4752501 Austin, Texas 78774 under the Administrative Procedure
Telex 9101874.1367
Act and the Open Records Act
Telecopier 512I475-0288
Dear Mr. Bullock:
714 Jackam. Suite 700
Dallas, TX. 75202.4506 YOU inquire about the costs you may recover during an adminlstra-
2141742-9944
tive hearing when a petitioner requests the production of documents
end records. The petitioner has requested the records under section
4S24 Alberta Ave.. Suite 1SO 14a of article 6252-13a, V.T.C.S.. the Administrative Procedure Act.
El Paw. TX. 79905-2793 You state that these records would also be subject to article
915/m3*84 6252-17a. V.T.C.S., the Texas Open Records Act. Your specific
questions inquire tbout charges that may be made under either statute.
1001 Texas. Suite 700
You also wish clarification of Attorney General Opinion JM-114 (1983).
Houston. TX. 77002-3111 relating to charges for records under the Open Records Act. We have
713mM9S9 attempted to clerj.fy this opinion in our answers to your specific
questions. Eowever, we cannot maks au exhaustive statement about
charges under the Open Records Act or about the application of JM-114
to facts not raised in your request.
806 Broadway. Suite 312
Lubbock. TX. 79401-3479
806/747-5239
Your first and second questioos are as follows:
4309 N. Tenth. Suite S
1. fi~y a petitioner be charged for the cost
McAllen. TX. 7S501~16SS
5121682.4547
and production of records requested in a discovery
motion during an administrative hearing?
200 Main Plaza. Suite 409 2. I:: the answer is ‘yes’ to question number
San Antonio. TX. 792052797
(1). may the petitioner be required to either post
512f225-4191
a bond or pay in advance for the productton of
such records?
An Equal Opportunityl
Affirmative Action E~plov~- Section 14a of the Administrative Procedure Act. article
6252-13a. V.T.C.S., governs discovery in an administrative proceeding.
Section 14a providss:; in part:
Sec. 14a. (a) Upon motion of any party
showing good cause therefor and upon notice to all
other parties, and subject to such limitations of
the kind .provided in Rule lg6b of the Rules of
Civil Pmcedure as the agency may impose, -the
.-
Ronorable Bob Bullock - Page 2 (34-292)
agency in which an action is pending may order any
party:
(1) to produce and permit the inspection and
copying or photographing by or on beha1.f of the
moving party any of-the following which are in his
possession, custod:r,, or control: any designated
documents, papers. books, accounts. letters.
photographs, objects, or tang1bl.e things, not
privileged, which constitute or contain, or are
reasonably calculated to lead to the discovery of,
evidence material to any matter involved in the
action; and
(2) to permit entry upon designated land or
other property in his possession or control for
the purpose of inspecting, measuring, surveying,
or photographing th.e property or any designated
object or operation thereon which may be material
to any matter involved in the action.
(b) The order shall specify the time, place,
and manner of maki~S the Inspection, measurement,
or survey and tnktng the copies and photographs
rescribe c:u.ch terms and conditions as are
sw%.ed).
. . . .
The language of section 14a(s)(l) indicates that petitioner is
responsible for duplicating records. Thus, he will pay the costs of
copies.
Section 14a does not expressly authorize placing the costs of
production on the petitioner. It does, however, provide that the
order for production of records “may prescribe such terms and
conditions as are just.” V.T.C.S. art. 6252-15, §lba(b). Identical
language appears in Rule 167 of the Texas Rules of Civil Procedure and
similar language appears in Rule 26(c)(2) of the Federal Rules of
Civil Procedure. The federal provision has been interpreted to
authorize a judicial order r,?quiring the party seeking discovery to
pay some of the expenses incurred in obtaining discoverable materials.
American Standard Inc. v. Bendix Corp., 71 FRD 443 (W.D. No. 1976).
A party’s motion for dixovery under lba(a) is
subject to such ljmitations of the kind provided
in Rule 186b of t’x Rules of Civil Procedure as
the agency may impose.
p. 1300
Honorable Bob Bullock - Page 3 (J&292)
V.T.C.S. art. 6252-13a. 114(a). Rule lS6b has beeo repealed and its
subject matter included in Rule 166b. See Order Adopting Rules of
Civil Procedure, December 5, 1983. Tex. Ryiv. P. Ann. at XV (Vernon
1984 SUPP. vol. 1). However, section 14a of article 6252-13a,
V.T.C.S., incorporated Rule 1.86b by reference. The text of this rule
continues to be part of section 14a despite the revisions to the Texas
Rules of Civil Piocedure. !iee guinlan -v. Eouston 6 T. C. Railway Co. ,
34 S.W. 738, 741 (Tex. l&E Falkner v. Allied Finance Co. of Bae
citp. 394 S.W.Zd 208 (Tex. Civ. App. - Austin 1965, writ ref’d
n.r.e.).
Rule lS6b authorized the court, on motion of a party, to exclude
certain matters from the inquiry or to provide that secret processes,
developments or research r.eed not be disclosed. In addition, it
included the following omni~~usprovision:
[T]he court may m&e any other order which justice
requires to protect the party or witness from
undue annoyance, embarrasameot. oppression or
expense.
Tex. R. Civ. Proc. 186b (Vernon 1976).
Protective orders msde! pursuant to a motion for production of
documents are not restricted to the protection of documents from
discovery. Sobel v. Ta lo?, 640 S.W.Zd 704 (Tex. Civ. App. - Eouston
114th Dist.] ------%
1982. no writ When a request for records under section
14a appears burdensome and costly. the respondent may seek an order
imposing just conditions OII discovery and limiting the scope of the
order pursuant to Rule 18151~. Such conditions and limitations may
include a requirement that petitioner pay the costs of production.
Conditions requiring petitd.oner to post a bond, pay in advance, or
otherwise insure payment may be included in the order.
Your third question is as follows:
3. Is a request for records under the
Administrative Procedure Act to be treated
differently from a request for records under the
open Records Act? If so. what are the
differences?
Requests for records under each statute ere to be treated
differently. Section 14s of the Administrative Procedure Act
authorizes any party to an administrative action to seek discovery of
records in the possession of any other party if the records contain
material evidence or information which might lead to such evidence.
V.T.C.S. art. 6252-13a. rltin(a)(l). The party’s request to inspect
and copy information is subject to a showing of good cause, notice to
other parties, and limitat~.c~ns like those found in Rule lS6b of the
Honorable Bob Bullock - Page 4 (-292)
Rules of Civil Procedure. Id. Thus, only a narrowly defined class of
persons may use the discove~procedurce set out in section 140; the
records must be material to t’he administrative action, end the agency
applies statutory standards 1x1 fesolvc disputes on the availability of
particular records.
The Open Records Act entltles “all persons” to access and copies
of public records held by governmental bodies. V.T.C.S. art.
6252-17a. 151-4. The applicmt for public information is not required
to explain why he wants part::t:ular records. Section 3(a) excepts from
the requirement of public d:lmlosure eighteen specific categories of
Information; however, if a governmental body beliwes information need
not be disclosed, it must refer its decision to this office for
review. Id. 17. We do n’3.t address whether a participant in an
administrative proceeding cmld avoid the reach of section 14a by
utilizing an open records rc:q,uest as a substitute for discovery. We
assume that is a matter to be addressed by a request for an
appropriate protective order,
The exceptions from public disclosure in the Open Records Act
should not be grafted onto s~~ctlon 14a of the Administrative Procedure
Act. Each statute has a ilI.fferent purpose. The requirements end
procedures for gaining access to records under each statute are
different. Records not avai:Lable to the public under the Open Records
Act might be available under section 14a of article 6252-13a,
V.T.C.S., to a party to IKL administretlve proceeding. Cf. open
Records Decision No. 108 (1975) (information should be sought through
discovery, not Open Records ,Lct).
Each statute has its mm distinct procedural requirements for
initiating and resolving 8. request for records. Even on those
occasions when a participant in an administrative proceeding requests
records under both statutes, it will be Dossible to determine which
set of procedures applies ta each request: See
- Open Records Decision
No. 180 (1977).
Your fourth question is tm follows:
4. Under eitht,r the Administrative Procedure
Act or the Open Ilocords Act, may we charge for
personnel time required to develop a search
pattern for and sea.cch out the records, to arrange
them in a systemal:ic order not maintained in our
files, or to expurgate them?
We determined in answer ‘to your first and second questions that a
party requested to produm! records under section 14a’ of the
Administrative Procedure I.c t may seek an order requiring the
petitioner to pay the costs aof production. The determination of the
reasonable costs of productlax is a matter for that order.
p. 1302
Ronorablc Bob Bullock - Page 31 (JM-292)
The Open Records Act does not require you to arrange records In
an order not maintained in yo~ur files. See Open Records Decision No.
145 (1976). If confidentii.1 inforuatiris not Intermingled with
public information. you ua:r simply let the requestor examine the
originals and locate the records he wants. -See Open Records Decision
No. 243 (1980).
Charges under the Open Records Act are governed by section 9 of
that statute. Attorney Gene::al Opinion JM-114 (1983), which construed
this section, provides a prutial answer to your question. Section
9(a). pertaining to photocopies of records on pages up to legal size.
authorizes charges only for %ose records which are copied. The State
Purchasing and General SerrLces Commission [formerly the Board of
Control] Is required to determine and publish the actual cost of
standard-size reproductions. It has Issued the following guidelines:
(a) Maximum charges for office machine copies
of pages up to leg;%:1 size (applicable to Paragraph
(a) of Section 9). The charges established here-
under are the uaxi~nrm charges allowable and should
not be exacted from requesting parties unless
costs are actually at that level. Do not hesitate
to charge less for copies if experience reflects a
louer cost.
(1) Fifty-five cents per request. This
charge is estrblished by the board for the
ressin that e$ting up the machine and
Preparing the records for copying purposes is a
cost of reprodui=. . . ,
(2) Fifteen cents per page copied. The
board has dete:cnined that the actual cost of
standard sized reproductions should not exceed
15 cents per p;s8e copied, except as described
in Paragraph 1 DE this section.
(3) No char(;e for access under Paragraph
(a) of Section 9. In answering requests under
Paragraph (a) of Section 9. an agency may not
charge for the y:ime spent by its personnel in
providing accejcb to records pursuant to the
request. (Emphasis added).
Document No. 770460, issued January 14, 1977. 2 Tex. Reg. 396-97 (Feb.
1, 1977).
Attorney General Opinion m-114 determined that permissible costs
for employee time are buili: ,into the costs set under section 9(a).
The guidelines promulgated by the State Purchasing and General
Services Conmission interpret the cost provision in the same way. -See
n. 17n1
Ronorable Bob Bullock - Page 6 (JM-292)
Documant No. 770460(a)(l), (3:1, supra. No extra charge may be made
for the time employees spend taking the documents out of the filing
cabinet.
Section 9(b) governs the charges for access to information kept
in computer banks, microfilm records. or other similar record keeping
systems. Attorney General Dpinion JM-114 concluded that access
charges could include the carets of running the computer but not
employee time spent in daletin portions of the records excepted from
required disclosure under section 3(a). However, In a particular
case, providing access to pub!.ic information and deleting information
excepted from public disclosure might be accomplished in one program
and therefore would not be separable into “access” or “editing.”
In addition, the Texas Supreme Court, referring to computerized
data which included private information protected from disclosure by
section 3(a)(l), stated as follows:
We are aware that the Board may incur
substantial costs in its compilation and
preparation of the: information, especially in
light of the case-b:f-case review and redaction of
the files necess:ltated by Section 3(a) (1).
Section 9 of the Acr: makes it clear that all costs
incurred in providtng access to public records
must be borne by the requesting party.
Industrial Foundation of the !iouth v. Texas Industrial Accident Board,
540 S.W.2d 668, 687 (Tex. 1976). cert. denied, 430 U.S. 391 (1977).
The Supreme Court language de1J.t with computerized information subject
to charges for access under ‘9(b). The redaction of the files was
necessitated by section 3(a)(l). which excepts from public disclosure
“information deemed confidential by law. either Constitutional,
statutory, or by judicial dec:tsion;” V.T.C.S. art. 6252-17a, 53(a) (1).
This section incorporates laws providing for or mandating
confidentiality of particular governmental records, and it is not
subject to waiver on the same terms as other exceptions to public
disclosure under the Open Records Act. See. e.*.. Attorney General
Opinions E-427, R-223 (1974); Otien Records Decision No. 237 (1980).
Thus, we believe the --
Indust.rial Accident Board case requires the
requestor to pay the cost of excerpting 3(a)(l) material from
information mainteined in c:c,mputer records banks, including, for
example, where necessary, devc:lopment of s search pattern.
.-SUMMARY
Section 14a of ztrticle 6252-138, V.T.C.S.. the
Administrative Proce,iure Act, does not impose upon
petitioner the charges for producing records.
Bovever, the respo~nding party may request an
administrative ormier placing the costs of
.
Eonorebla Bob Bullock - Page 7 (JM-292)
production ou petitioner. A request for records
under article 6252-13e. V.T.C.S.. is to be treated
differently from a request under article 6252-I7a.
each according to the relevant statutory
procedures. Under the Open Records Act, article
6252-17a, V.T.C.S.. the governmental body may
under some circcrutances exact charges for
providing access to records and deleting
informatlon subject to section 3(a)(l) of the act.
Very I truly you 4 d .,
JIM MATTOX
Attorney General of Texas
TOMGRERN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepsred by Susan L. Garrisor,
Assistant Attorney General
APPROVRD:
OPINIONCOMMITTEE
Rick Gilpin. Chairman
Jon Bible
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton