Untitled Texas Attorney General Opinion ( 1975 )

TISEA'ITORNEYGENERAI~
ow TEXAS
AUSTIN. 'J%XAS
1SVll
JOHN E EM&
*-- o-AJ.
June 4, 1975
The Honorable Bill Clayton, Speaker Opinion No. H- 621
House of Representatives
State Capitol Re: Responsibility of Speaker
Austin, Texas 78711 of the House under Open Records
Act with respect to records
relating to individual members.
Dear Speaker Clayton:
You have requested our opinion concerning procedures utilized by the
House of Representatives in processing requests under the Open Records Act,
article 6252-17a, V. T. C. S.
Your specific questions are as follows:
1. Am I correct in maintaining that as Speaker of the
House I am the “custodian” of public information dealing
with the general operation of the House of Representatives
and that as such I may set up reasonable procedures for
processing open records requests?
2. Am I correct in assuming that as custodian of the
records, I may delegate all or any part of the responsibil-
ity of handling open records requests to any divisible
operating.units within the House?
3. Because each member of the House of Representatives
is an elected state official and has autonomous control over
operations dealing with that member’s own account, am I
legally authorized to delegate to each member the responsibility
of handling open records, requests dealing with that member’s
account?
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The Honorable Bill Clayton - Page 2
4. As long as all persons to whom the custodial function
may be delegated are instructed to provide full and complete
information in an expeditious manner, is there any aspect of
this procedure which is unduly or illegally restrictive of the
rights of the public to have access to any public information
held by the House?
We answer your first question in the affirmative. The office of Speaker
of the House is a Constitutional one. Tex. Const. art. 3, s 9, 0 38. As pre-
siding officer of the House of Representatives, you are the custodian of public
records held by the House, within the meaning of section 5(a) of the Open
Records Act, which provides in part:
(a) The chief administrative officer of the governmental
body shall be the custodian of public records. . , . It
shall be the duty of the custodian . . . to see that the
public records are made available for public inspection
and copying. . . .
We spoke to the question of who is custodian of county records held by
the county clerk in Attorney General Opinion H-115 (1973). There we said:
It is apparent that § 5 of House Bill 6, in making the
chief administrative officer of the governmental body the
custodian of public records, intended by that provision to
focus the responsibility for the success of the Act upon
those who have it within their power to make the Act viable.
It is obvious that it was not the intent that the chief adminis-
trative officer, in this case, the county judge, actually,
physically have custody as would the county clerk. Thus,
for example, in Subsection 5(b) the statute refers to the
custodian’s ’agent who controls the use of public records. ’
As we interpret the Act, the county clerk retains
,physical care, custody and control of the records u#ich, by
statute, he is required to maintain. The responsibility for
seeing that county records, including those maintained by the
county clerk as well as those maintained by other county
officers, are disclosed when required by House Bill 6, is placed
on the county judge - the chief administrative officer of the
governmental body.
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The Honorable Bill Clayton - Page 3
Thus, you are responsible as the custodian of public records of the
House to see that those records are made available for inspection under the
Act.
In regard to establishing procedures, section 13 of the Open Records
Act provides that:
Each governmental body may promulgate reasonable rules
of procedure by which public records may be inspected
efficiently, safely, and without delay.
Section 11 of article 3 of the Texas Constitution provides that “Each
House may determine the rules of its own proceedings. . . . ” Pursuant to
this authority the current Rules of the House of Representatives provide that
the Speaker “shall enforce the Rules of the House, and the Legislative Rules
prescribed by the Statutes and Constitution of Texas. I’ Rules, House of
Representatives 64th Legislature, Rule 1, sec. 4.
In addition, it is well settled that a law which imposes a duty on an
officer carries with it by necessary implication the authority to do such things
as are reasonably necessary to carry out the duty imposed. 47 Tex. Jur. 2d
Public Officers $110 p. 145, n. 2, and cases cited therein.
We believe that it is~clearly within thepcrvers of the Speaker to set up
reasonable procedures~ for processing requests for public information, except
as might be otherwise provided by law or by the Rules of the House. We are
aware of no House Rule which restricts the Speaker in this regard.
The Open Records Act establishes certain procedural requirements for
dealing with requests for public information. The principal ones are as follows:
. The custodian has the duty to see that public records
are made available for public inspection and copying
during normal business hours of the governmental body.
Sets. 3(a), 5(a).
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The Honorable Bill Clayton - Page 4
. The custodian or his agent shall give, grant, and
extend to the person requesting public records all
reasonable comfort and facility for the full exercise
of the right to access granted by the Act. Sec. 5(b).
. The custodian shall promptly produce public informa-
tion for inspection or duplication, or if not available at
the time of the request, shall certify in writing that it
is in use or storage and set a date and hour when it
will be available. Sec. 4.
, No inquiry may be made of the person requesting
public records beyond establishing his identity and
what records are requested. Sec. 5(b).
. Suitable copies of all public records must be pro-
vided within a reasonable time after the date copies
are requested and costs of copies shall not be
excessive. Sets. 9 (a), 9(c).
, Requests for information determined by the govern-
mental body to be within an exception, but as to which
there has been no prior determination that it is excepted,
must be forwarded to the Attorney General within a
reasonable time, no later than 10 days after receipt of
a written request. Sec. 7(a).
Subject to these requirements of the Act, “Each governmental
body may promulgate reasonable rules of procedure by which public records
may be inspected efficiently, safely, and withow delay. ” Sec. 13.
Your second question inquires as to the extent to which the responsibil-
ities to handle requests for information may be delegated.
It is a general rule that public duties must be performed and govern-
mental powers exercised by the officer designated by law and that they may not
be delegated to others. Newsom v. Adams, 451 S.W.2d 948 (Tex. Civ. App.
-- Beaumont 1970, no writ hist.); Moody v. Texas Water Commission, 373
S.W.2d 793, 797 (Tex. Civ. App. -- Austin 1963 writ ref’d n. r. e.). This
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The Honorable Bill Clayton - Page 5
ancient rule is expressed in the maxim: Delegatusncn notest delegare (the
person to whom a duty is delegated cannot lawfully devolve the duty on
another, unless expressly authorized to,do so). However, ministerial or
administrative functions not calling for the exercises of discretion may be
delegated to agents to perform those functions. 47 Tex. Jur. 2d Public
Officers 5114, pp. 149-150 and cases cited therein.
Thus, while the duties and responsibilities imposed by the Open
Records Act may not be delegated, you may perform the duties through agents.
Section 5(b) of the Act refers to the custodian’s “agent who controls the use of
public records” and to “the custodian or his agent. ” We have said that this
clearly contemplates the probability that an agent, not the legal custodian,
will control the actual use of public records. Open Records Decision No. 44
(1974).
Our answers to your first two questions are that as chief administrative
officer of the House of Representatives, you are the legal custodian of public
records of the House and have the duty “to see that the public records are
made available for public inspection and copying . , . .‘I Sec. 5(a). The Act
and the Rules of the House authorize you to establish reasonable procedures
“by~which public records may be, inspected efficiently, safely, and without
delay. ” Sec. 13. While your duties under the Act may not be delegated, the
Act clearly contemplates that they may be performed through agents to whom
you have delegated actual custody and control of public records. Sec. 5(b).
Your third question is whether you have authority to delegate to each
member the responsibility of handling open records requests dealing with that
member’s account. It is your position that since members have autonomous
authority over their own payroll accounts, they are in the best position to
determine whether the particular information requested is or is not excepted
from required disclosure, and also to answer questions concerning the infor-
mation.
As we have indicated above,’ the Act clearly contemplates that you ’
may perform your duties through agents who have actual custody and control
of the public information. The Act gives the House, and the House hasp given
you authority to adopt reasonable procedures to insure that “public records
may be inspected efficiently, safely, and without delay. ” Sec. 13. Of,course,
while certain duties may be delegated, the custodian’s ultimate responsibiIity
may not.
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The Honorable Bill Clayton - Page 6
We have said that the Act does not require a governmental body to
notify the individual about whom information is requested. Attorney
General Opinion H-90 (1973). Except to’the extent that it would cause un-
reasonable delay, neither does the Act prohibit such notice, and the procedure
you have described does serve the purpose of such notification. We cannot say
that providing members with notice and an opportunity to assert the applicability
of specific exceptions is unreasonable. Of course, the determination that an
exception applies is for the custodian to make. 3
We cannot say as a matter of law that your procedures are unreasonable.
The q.uestion of whether a particular procedure is reasonable is a question of
fact which we cannot determine.
We must make the same response to your fourth qm stion as to whether
the procedure you describe “is unduly or illegally restrictive of the rights of
the public to have access to any public information held by the House. ”
The procedure you describe is not necessariy violative of any provision
of the Act, although in a particular situation it may be shown to have been. All
we can answer is that it cannot be said that it is unduly restrictive or unreason-
,able as a matter of law.
SUMMARY
The Speaker is “custodian of public records” of the
House of Representatives. The Speaker may establish
reasonable procedures for public records, to be inspected
efficiently, safely, and without delay. He may perform his
duties through agents and may delegate to them authority to
promptly produce public information and to make it available
for inspection and copying.
The Speaker’s responsibility to see that public records of
the House, are made available.for inspection may not be
delegated.
p. 2753
The Honorable Bill Clayton - Page 7
A reasonable and expeditious procedure, whereby
requests are directed to individual members to whom
the information relates, cannot be said as a matter of
law to violate the provisions of the Open Records Act.
Very truly yours,
Attorney General of Texas
APPROVED:
C. ROBERT HEATH, Chairman
Opinion Committee
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