### TEE ATTORNEY GENERAL OF TEXAS

February 2, 1989

Honorable William D.Gooch Opinion No: ~~-1013 Director and Librarian Texas State Library Re: Whether records created Lorenzo De Zavala State and/or received by the GoverArchives and Library Bldg. nor's Office arepublic reP.O. Box 12927 cords within themeaning of Austin, Texas 78711 the OpenRecords Act, article 6252-17a, V.T.C.S., and of section 441.031(l)(2)(5) of the Texas Government Code. (RQ-1579)

DearMr. Gooch:

You ask several questions about the authority of the Texas State Library and Archives Commission over records generated orreceived by thegovernor's office inconducting itsbusiness. You inform us that Imanumber of Texas governors, following an informal andunwritten tradition, have removed from state custody alloravery large part of the records created during their administration." You ask:

1.Are the records which are created and received by theOffice of the Governor of Texas in the course of carrying out the statutorily assigned duties of that office considered public records, as defined in V.T.C.A., Government Code, Chapter 441, Section 441.031(l)(2)(5) andV.A.C.S., Art. 6252-17a, Sections 2(3) and 3?

2. Ifthe records of theGovernor's Office arepublic governmental records, is their removal fromthe custody of the state at the end of a gubernatorial administration considered inviolation ofTexas Penal Code, Chapter 37, Section 10,or V.A.C.S., Art. 6252-17a, Sec. [12]?

3. Ifthe records of the Governor's Office
arepublic governmental records, what legal

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### (JM-1013)

action(s) can the Texas State Library, as the agency responsible for the management and preservation ofpublic records, initi;E;ori; obtain custody of any such public that have been removed from the custody of the state? Chapter 441 of the Texas Government Code governs, among other things, the Texas State Library and Archives Commission (the commission) and the preservation of the state's public records. Sections 441.001 through 441.016 setout the structure and general powers andduties of the commission. Sections 441.031 through 441.039 govern the retention ofpublic records. your first question iswhether records created orreceived by thegovernor's office in carrying out its statutory duties are subject to chapter 441, specifically to section 441.031(5).
Section 441.031(5) of the Texas Government Code provides:

*Public record* means a document, book, paper, photograph, sound recording, or other material, regardless of physical form or characteristic, made or received accordina to law or owce or rn connection with the

. . transaction of officral businea . The term does not include library ormuseum material made or acquired andpreserved solely for reference or exhibition purposes, an extra copy of a document preserved only for convenience of reference, or a stock of publications or of processed documents. (Emphasis added.)

Records received or created by thegovernor*8 office in carrying out its statutory duties clearly fallwithin this definition.

You also askwhether the records of the governor's office constitute public records subject to the Texas Open Records Act, article 6252-17a, V.T.C.S. Section 2(2) of the Open Records Act provides:

*Public records' means theportion of all documents, writings, letters, memoranda, or otherwritten, printed, tw=d , copied, or developed materials which contains nublic information. (Emphasisadded.)

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Section 3(a)provides:

All information collected, assembled, or maintained bygovernmental bodies pursuant to lawor ordinance or in connection with the transaction of official business is public information and available to the during public

normal business hours of any governmental body, with the following exceptions only [followed by 22 specific exceptions].

Records received or created by the governor's office in carrying out its statutory duties are subject to the Open Records Act andmaybewithheld fromthepublic only if one of the act's specific exceptions protects them. Si2s Open Records Decision No. 116 (1975);see also Open Records Decision Nos. 241 (1980); 212 (1978); 177 (1977). Section 5(a) of the act requires the custodian topreserve records **Subject** to the **act.** See alsoV.T.C.S. art. 6252-17a, 8 12 (criminalpenalty forremoval ofpublic records).

Your second question is whether the removal of public records from the custody of the state at the end of a gubernational administration violates chapter 37 of the Texas Penal Code. Section 37.10 of the Penal Code provides:

(a) Aperson commits anoffense ifhe:
(1) knowingly makes a false entry in,or false alteration of, a governmental record:

(2) makes, presents, oruses any record, document, or thing with knowledge of its falsity andwith intent that itbe taken asagenuine governmental record; or
(3)

. . removes. orotherwise **lmoalrs** the veritv, leaibilitv. or avabbilitv of a

(b) It isan exception to the application of Subsection (a)(3)of this section that the governmental record isdestroyed pursuant to legal authorization.
(cl An offense under this section is a Class Amisdemeanor unless the actorIs intent

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isto defraud orharm another, inwhich event the offense isa felony of the third degree. (Emphasis added.)
Section 37.01(1)(A) of the Penal Code defines "governmental record" to mean anything "belonging to, received by orkept bygovernment for information." Records received or created by the governor#s office incarrying out its statutory duties are government records within the meaning of section 37.01(1)(A).

Whether the removal of specific gubernatorial records fromthe custody of the state at the end of a gubernatorial administration constitutes a violation of section 37.10(a)(3) depends on the facts surrounding the removal in question and onwhether anyother law ineffect at the time of removal authorized the removal. Violation of section 37.10(a)(3) requires proof ofan intentional removal that would impair the availability of the record. Violation of section 37.10(a)(3) also requires proof ofaculpable state ofmind -- an intent- act. The legislature did not intend our opinion process to resolve disputed questions of fact.
Similar considerations apply to aviolation of section 12of the Texas Open Records Act. Aviolation of section 12 requires proof of the willful, unauthorized removal of public records. $&9 Attorney General Opinion H-808 (1976). Violation of the act's criminal sanctions depends on the facts inagiven case. $&3Attorney General Opinion JW-265 (1984). As indicated, the opinion process was not intended toresolve disputed questions of fact.

your final question relates to the commission's remedies to obtain custody ofpublic records that have been removed from the commission's custody or from the custody of the state. Section 441.002(g)(E) of the Government Code provides that the commission shall

demand and receive fromthe officer of the state department incharge of it,any book, map, paper, manuscript, document, memoranda, ordata relating to thehistory ofTexas not connected with ornecessary to the current duties of the officer.
This provision grants the commission authority to demand physical custody of Texas public records that are "not connected with or necessary to the current duties of the officer."

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Section 441.010(d) ofthe Government Code provides:

A state, county, or other official lazy turn over to the state library for permanent preservation inthe library an official book, record, document, original paper, map, chart, newspaper file, or printed book ial's offi$-vt director and librarian shall * give the official areceipt foran itemturned over under this subsection. (Emphasisadded.)
This provision gives state officials discretion to determine when their records are in "current use." Iftheir records are incurrent use, state officials have no obligation to submit public records to the commission. In light of section 441.002(g)(E) and the overall purpose of chapter 441,however, we do not believe that section 441.010(d) grants state officials the authority to refuse togive to the commission public records that are not incurrent use.
Ifrecords arenot incurrent use, the commission must classify the records destruction. either aspermanent or subject to

Records to be designated permanent public records must be provided to the commission pursuant to section 441.002(g)(S). Permanent records, records that are not subject to destruction, cannot, as ageneral rule, be transferred out of the custody of the state ofTexas. See Attorney General Opinion R-523 (1975). Public records cannot bedestroyed or classified as subject to destruction without the approval of the director of the records management division and the librarian. Gov. Code 5441.035(d). Unless records subject to destruction are confidential, theymaybe transferred out of the custody of the state once they have been classified by the director and the librarian as subject to destruction. General Opinion R-523 (1975). $&$ Attorney

The Government Codepresumes that government officials will cooperate with regard to the disposition and classification of public records. Section 441.032(b) provides that the records management division of the commission shall "manage all public records of the state with the cooperation of theheads of thevarious departments or institutions in charge of records." Section 441.034 provides that the records management division shall, "with the cooperation of the heads of departments and institutions," survey, index, and classify public records.

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As indicated, section 441.002(g)(S) authorizes th; commission todemand custody ofpublic **records** that are incurrent use. Section 441.002(i) provides:

Ifthere isa disagreement as to the proper custody of abook, map, paper, manuscript, document, memorandum, data under Subsection (g)(S),the attogey general shall decide proper custody.
Proper custody of specific records depends on the facts of a given case and onwhether any other statutes address the disposition of the specific records at issue. 

### SUMMARY

Records created or received by the governor8s office in carrying out its statutory duties fall within the definition of wpublfc records" in section 441.031(5) of the Texas Government Code and the definition of "public records' in section 2(2) of the Texas Open Records Act, article 6252-17a, V.T.C.S.

Such records also constitute "governmental records" within the meaning of sections 37.01(1)(A) Texas Penal Code.and 3;;:Ea)(3) of the 37.10(a)(3) prohibits, among other things, the intentional, unauthorized removal of governmental records. Whether the removal of specific gubernatorial records fromthe custody of the state at the end of agubernatorial administration violates section 37.10 depends on proof of the elements of the criminal offense described insection 37.10. Similarly, violation of section 12 of the Open Records Act,which prohibits the unauthorized removal of public records, depends on the facts inagiven case.
Section 441.002(g)(S) of the Government Code authorizes the Texas State Library and Archives Commission to demand physical custody of public records that a state official has determined are not in current use. Section 441.002(i) provides that the

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attorney general shall resolve disputes regarding the proper custody of records subject to section 441.002(g)(S).

Jzyok JIM MATTOX Attorney General of Texas

MARYKEXLER First Assistant Attorney General

ICUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEARLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee

JENNIFER S.RIGGS Chief, Open Government Section of the Opinion Committee
Prepared byJennifer S.Riggs Assistant Attorney General

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