Untitled Texas Attorney General Opinion ( 1987 )

July 23, 1987
Honorable Paul W. Mayben Opinion No. JM-757
Camp County Attorney
P. 0. Box 416 Re: Right of an individual to copy
Pittsburg, Texas 75686 and reproduce public records in a
district or county clerk's office
Honorable Joe K. McGill
Gaines County Attorney
P. 0. Box 728
Seminole, Texas 79360
Gentlemen:
Each of you asks about the right of members of the public to use
their own copying equipment to duplicate public records maintained by
a county or district clerk. Mr. McGill also asks whether the Gaines
County clerk must either provide a duplicate microfilm of county
records or allow individuals to brings microfilm equipment into the
clerk's office to duplicate county oil and gas records. Mr. Mayben
asks whether the cost of copies provided by the county and district
clerks may exceed the actual cost of providing the copies.
Information submitted in connection with your requests indicates
that this request was triggered, in part, because of the vast number
of oil and gas records sought by an information business serving the
oil and gas industry. One such company wants to use its own equipment
in the county office to micrbfilm virtually all of the oil and gas
records of Gaines County for the past 10 years. The company estimates
that the effort may take up to two weeks. Because of the volume of
information sought, your request raises several issues about the cost
of standard copies'compared with the cost of duplicating microfilm and
about the disruption caused by the county making all of the standard
copies by hand compared with the disruption caused by allowing a
requestor to make copies or to duplicate microfilm.
As a preliminary matter, it shtiuld'be noted that this opinion
addresses only public rights regarding public records. Under the
Texas Open Records Act, article 6252-17a, V.T.C.S., all information
held by governmental bodies must be released to the public unless the
information falls within one of the act's 18 specific exceptions to
required disclosure. The. act contains several exceptions that apply
to certain oil and gas records. See art. 6252-17a, 63. subsets.
P (a)(l), (4). (51, (lo), (13). Moreover, section 10(a) of the Open
Records Act prohibits the distribution of "[iInformation deemed
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confidential under the terms of this Act." See also art. 6252-17a,
010(e). On the other hand, some of the information sought may relate
to information filed with the county specifically as public notice.
See, e.g., Tex. Prop. Code 556.001 et seq. (filing notice to secure
lien against mineral interests). Because you do not ask about the
availability of specific records, this opinion assumes that the
information requested is not information deemed confidential by law.
The tenor of your requests also suggests that you may question
the use of the Open Records Act for the purpose of conducting a
business. One letter submitted to this office in connection with your
request directly raises the question of the propriety of setting up a
"microfilm business" in a county or district office. Section 5(b) of
the Open Records Act prohibits a governmental body from inquiring
"of any person who applies for inspection or copying of public
records beyond the purpose of establishing proper identification."
Consequently, it should be noted at the onset that although the Open
Records Act may not have been intended to facilitate "information
businesses," the commercial use for which these records are sought is
irrelevant to the question of their accessibility and cost to the
public.
One of the persons requesting information from you asserts that
article 3930, V.T.C.S., grants members of the public the right to make
copies of public records with their own copying equipment. Article
3930 governs the cost of county-issued certified copies of certain
county records. See Attorney General Opinion H-552 (1975). Article
3930 provides, inpart:
However, nothing in this Act shall be construed to
limit or deny to any person, firm, or corporation,
full and free access to any papers, documents,
proceedings and records referred to in this Act,
the right of such parties to read and examine the
same, and to copy information from any microfilm
or other photographic image, or other COPY
thereof, under reasonable rules and regulations of
the county clerk at all reasonable times during
the hours the county clerk's office is open to the
public, and without making payment of any charge,
being hereby established and confirmed. (Emphasis
added).
The main thrust of this statutory caveat is to emphasize that persons
who wish to inspect certain public documents that are usually obtained
in certified form may inspect and copy the documents without paying
for certification.
Although article 3930 indicates that members of the public may
make copies themselves, it does not guarantee a specific method of --T
copying or an unlimited right to copy. Article 3930 refers to copying
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Honorable Paul W. Mayben (JM-757)
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information "from any microfilm or other photographic image," not to
making a copy~microfilm or other photographic image. The legisla-
ture probably envisioned a member of the public taking notes on
specific items of information by hand. It is unlikely that the
legislature contemplated the full range of portable copying equipment
available today when it.enacted this provision of article 3930 in
1967. See generally Attorney General Opinion JM-351 (1985) (Texas
Open Meetings Act does not guarantee public right to videotape public
meetings). Consequently, article 3930 does not grant an unlimited
right to make copies.
Moreover, article 3930 by its terms covers only the records
referred to in article 3930. You do not indicate whether the requests
you received cover other public records. Because article 3930 does
not grant any right of access greater than that granted by the Open
Records Act, an examination of the Open Records Act is instructive.
Additionally, the legislature enacted article 3930 several years prior
to the enactment of the Open Records Act. See Acts 1967, 60th Leg.,
ch. 681, at 1789. At this time, the publicheld no general right of
access to public records. In 1973;the enactment of the Open Records
Act created a general right of access to public records. Acts 1973,
63rd Leg., ch. 424, at 1112. Because article 3930 is not inconsistent
with the Open Records Act, the Open Records Act does not implicitly
repeal the paragraph of article‘3930 in question. Nevertheless, the
Open Records Act is the primary authority governing public access to
public records.
Sections 4 and 5 of the Open Records Act provide in part:
Sec. 4. On application for public information
to the custodian of information in a governmental
body by any person, the custodian shall promptly
produce such information for inspection or dupli-
cation, or both, in the offices of the governmental
body. If the information is in active use or in
storage and. therefore, not available at the time a
person asks to examine it, the custodian shall
certify this fact in writing to the applicant and
set a date and hour within a reasonable time when
the record will be available for the exercise of
the right given by this Act. Nothing in this Act
shall authorize any person to remove original
copies of public records from the offices of any
governmental body without the written permission of
the custodian of the records.
Sec. 5.(a) The chief administrative officer
of the governmental body shall be the custodian of
public records. . . . It shall,be the duty of the
custodian of public records, subject to penalties
provided in this Act, to see that the public
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records are made available for public inspection
and copying; that the records are carefully
protected and preserved from deterioration,
alteration, mutilation, loss, removal, or destruc-
tion; and that public records are repaired,
renovated, or rebound when necessary to preserve
them properly. When records are no longer
currently in use, it shall be within the discretion
of the agency to determine a period of time for
which said records will be preserved. (Emphasis
added).
Subsections (b) and (e) of section 10 make it a misdemeanor and
official misconduct to fail or refuse. with criminal negligence, "to
give access to, or to permit or provide copying of, public-recosds."
(Emphasis added).
The Open Records Act establishes that members of the public have
some degree of authority to copy public records themselves. Section 4
requires governmental bodies to produce public information "for
inspection z duplication, or both." (Emphasis added). Section 5(a)
requires governmental bodies to make public records "available for
.public inspection and copying." (Emphasis added). In Open Records
Decision No. 152 (1977). this office stated that the act gives the
requesting party the option to take notes from or to pay for the
duplication of public records, or both. If members of the public may
cake notes from public records, it would be anomalous to say that they
cannot also use other methods of duplication. Like the legislative
intent behind article 3930, however, it is unlikely that the
legislature contemplated the full range of portable copying equipment
available today when it enacted the Open Records Act in 1973.
Consequently, a governmental body may refuse to allow members of
the public to duplicate public records by means of portable equipment
when it is unreasonably disruptive of working conditions. Moreover,
if giving the requestor access to certain records would also give the
requestor access to confidential information, the requestor's option
of access must be denied. See Industrial Foundation of the South v.
Texas Industrial Accident Board, 540 S.W.2d 668, 687 (Tex. 1976),
cert. denied, 430 U.S. 931 (1977); Attorney General Opinion JM-672
(1987). Both article 3930 and the Open Records Act place practical
limits on the public's right to copy public records. Article 3930
expressly authorizes county and district clerks to impose reasonable
rules and regulations on public copying of records covered by article
3930. Section 13 of the Open Records Act provides that governmental
bodies "may promulgate reasonable rules of procedure by which public
records may be inspected efficiently, safely, and without delay."
Additionally, section 4 of the Open Records Act authorizes govern-
mental bodies to refuse access while records are in "active use."
These provisions cannot, however, be used to deny a requestor access
to records. For example, the exception for "active use" permits a
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governmental body to avoid only unreasonable disruption of its
See Open Records Decision Nos. 225 (1979); 148
immediate business. -
(1976).
Accordingly, 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. See art.
6252-17a, $54. 13. The reasonableness and safety of each request must
be assessed independently. Relevant factors would include whether the
county or district clerk's office has the physical characteristics
necessary to comply with the request. For example, bringing in large
cvyi*g equipment could create a safety hazard by blocking an
entryway, hallway, or exit. Some copying equipment could create a
fire hazard by overloading the electrical system in an older building.
The increased noise in a small space could hamper county employees in
performing their public duties. Another relevant factor is the safety
of the copying to the records themselves. The governmental custodian
of records has a duty to protect government records from damage. See
art. 6252-17a. %g5. 12. No single, fixed test can be articulated=
cover all requests to copy public records. It should be noted,
however, that if a governmental body determines that it cannot allow
public copying of public records because to do so would threaten
unreasonable disruption or safety hazards. the governmental body must
nevertheless provide copies of the records. When a particularly
voluminous request is received, it is conceivable that allowing
members of the public to make their owe copies with their own
equipment would cause less disruption of county or district business
than having county or district employees make the copies.
Additionally, if a governmental body chooses to permit members of
rhe public to use other kinds of portable copying equipment, it must
deal evenhandedly with various members of the public who wish to use
portable copying equipment. Moreover, the governmental body must not
allow the use of portable copying equipment to interfere with other
people's rights to inspect and copy records in person.
Mr. Mayben also asks whether the county may produce income for
the county from charges for public records, i.e., whether the cost of
copies provided by the county and district clerks may exceed the
actual cost of providing the copies. Section 9(a) of the Open Records
Act provides that the cost of "noncertified photographic reproductions
of public records comprised of pages up to legal size shall not be
excessive.'l Section 9(b) indicates that charges for access to public
records in any form other than up to standard-sired pages should
approximate the actual cost of providing the records. The State
Purchasing and General Services Commission determines costs of public
records in consultation with state agencies. See Attorney General
Opinion Nos. JM-672 (1987); JM-292 (1984); JM-114 (1983). Section
9(d) provides that "[tlhe charges for copies made in the district
clerk's office and the county clerk's office shall be as otherwise
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provided by law." As indicated, article 3930 specifies the fees only
for certified copies of documents covered by article 3930. Attorney
General Opinion H-552 (1975). Section 10 of article 3930 provides
"For such other duties prescribed, authorized. and/or permitted by the
Legislature for which no fee is set by this Act, reasonable fees shall
be charged." In Attorney .General Opinion H-552 (1975). this office
construed this provision of article 3930 and concluded
that such factors as the expense of locating the
records, making them physically available for
inspection and copying, and 'overhead' charges for
rental of space, furniture, or fixtures, may not
be considered in determining a reasonable fee for
providing uncertified copies of records filed in
the office of county clerks.
See also Attorney General Opinion Nos. JM-292; JM-114. Accordingly,
charges made for reproductions of public records cannot exceed the
actual cost of providing those reproductions. -Cf. Attorney General
Opinion Nos. JM-672; JM-292.
SUMMARY
The Texas Open 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
Open 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 reasonableness and safety
of each request depends on the facts surrounding
the request.
Article 3930, V.T.C.S., governs only charges
for certified copies of documents covered by
article 3930. The cost of copies of non-certified
public records cannot exceed the actual cost of
providing those reproductions.
Attorney General of Texas
NARY KELLER
Executive Assistant Attorney General
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JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jennifer Riggs
Assistant Attorney General
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