Honorable Paul W. Mayben 

Camp County Attorney 

P. 0. Box 416 

Pittsburg, Texas 75686 

Honorable Joe K. McGill 

Gaines County Attorney 

P. 0. Box 728 

Seminole, Texas 79360 

Gentlemen: 

July 23, 1987 

Opinion No. JM-757 

Re: Right of an individual to copy 

and reproduce public records in a 

district or county clerk's office 

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. 

P 

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. 

(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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Honorable Paul W. Mayben (JM-757) 

Honorable Joe K. McGill 

Page 2 

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) 

Honorable Joe K. McGill 

Page 3 

information "from any microfilm or other photographic image," not to 

making a copy~microfilm or other photographic image. The legislature 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 duplication, 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 destruction; 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." 

Decision No. 152 (1977). 

(Emphasis added). In Open Records 

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 governmental 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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Honorable Paul W. Mayben (JM-757) 

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Page 5 

governmental body to avoid only unreasonable disruption of its 

immediate business. See Open Records Decision Nos. 225 (1979); 148 - 

(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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Page 6 

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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Honorable Paul W. Mayben (JM-757) 

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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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