HonorablePaul W. Mayben Camp CountyAttorney P. 0. Box 416 Pittsburg,Texas 75686

Honorable JoeK. McGill Gaines CountyAttorney P. 0. Box 728 Seminole,Texas 79360

Gentlemen: July 23, 1987

OpinionNo. JM-757

Re: Right of an individualto copy and reproduce public records in a district or county clerk'soffice

Each of you asks about the right of members of thepublic to use their own copying equipment to duplicatepublic recordsmaintained 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 bringsmicrofilm 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 clerksmay exceed the actual cost of providing the copies.

Information submitted in connectionwith your requests indicates that this requestwas triggered, in part, because of the vast number of oil and gas records sought by an informationbusiness serving the oil and gas industry. One such companywants touse its own equipment in the county office to micrbfilm virtually all of the oil and gas recordsof Gaines County for thepast 10years. The companyestimates that the effort may take up to two weeks. Because of the volume of informationsought,your request raises several issues about the cost of standardcopies'comparedwith the cost of duplicatingmicrofilm and about the disruption caused by the countymaking all of the standard copies by hand compared with the disruption caused by allowing a requestor tomake copiesor toduplicatemicrofilm.

P As a preliminary matter, it shtiuld'benoted 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 governmentalbodies 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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confidential under the terms of this Act." See also art. 6252-17a, 010(e). On the other hand, some of the informationsoughtmay relate to information filed with the county specifically as public notice. See, e.g., Tex. Prop. Code 556.001 et seq. (filingnotice to secure lien against mineral interests). Because you do not ask about the availability of specific records, this opinion assumes that the informationrequested isnot informationdeemed confidentialby 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 submittedto this office in connectionwith your request directly raises the question of the propriety of setting up a "microfilmbusiness" 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 recordsbeyond the purpose of establishing proper identification." Consequently, it shouldbe noted at the onset that although the Open Records Act may not have been intended to facilitate "information businesses," the commercialuse forwhich 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., grantsmembers of thepublic the right tomake 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 3930provides, inpart:

However,nothing in thisAct shallbe construedto 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 suchparties to read and examine the
same, and to copy information from any microfilm

or other photographic image, or other COPY thereof,under reasonablerules and regulationsof the county clerk at all reasonable times during thehours the county clerk'soffice is open to the public, and without making payment of any charge, beinghereby establishedand confirmed. (Emphasis added).

The main thrust of this statutory caveat is to emphasize thatpersons who wish to inspect certainpublic 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 copyingor an unlimited right to copy. Article 3930 refers to copying

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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 legislaturecontemplatedthe 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 guaranteepublic right to videotapepublic meetings). Consequently, article 3930 does not grant an unlimited right tomake copies.

Moreover, article 3930 by its terms covers only the records referred to in article 3930. You do not indicatewhether 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 legislatureenacted article 3930 severalyears prior to the enactment of the Open Records Act. SeeActs 1967, 60th Leg., ch. 681, at 1789. At this time, the publicheld no general right of

access to public records. In 1973;the enactmentof the Open Records Act created a general right of access to public records. Acts 1973, 63rd Leg., ch. 424, at 1112. Becausearticle 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 governingpublic access to public records.

Sections 4 and 5 of theOpen RecordsAct provide inpart:

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,orboth, in the offices of the governmental body. If the information is in active use or in storageand. therefore,not availableat 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 governmentalbodywithout thewritten permissionof the custodianof the records.

Sec. 5. (a) The chief administrative officer of the governmentalbody shallbe 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 inuse, it shallbe 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 officialmisconduct to fail or refuse. with criminal negligence, "to give access to, or to permit or provide copying of, public-recosds." (Emphasisadded).

The Open Records Act establishes thatmembers of thepublic have

some degree of authority to copypublic records themselves. Section 4 requires governmental bodies to produce public information "for inspectionz duplication, orboth." (Emphasisadded). Section 5(a) requires governmental bodies to make public records "available for .publicinspection 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 thepublicmay cakenotes frompublic records, itwould be anomalousto 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 todaywhen it enacted theOpen RecordsAct in 1973.

Consequently,a governmentalbody may refuse to allowmembers of thepublic to duplicatepublic recordsby means of portable equipment when it is unreasonably disruptive of working conditions. Moreover, if giving the requestoraccess to certain recordswould also give the requestor access to confidential information, the requestor's option of accessmust 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 regulationson public copying of records coveredby 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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governmental body to avoid only unreasonable disruption of its immediatebusiness. See Open Records Decision Nos. 225 (1979); 148
- (1976).
Accordingly, requests from members of the public to copy public recordswith their own equipmentmay be deniedwhen the requestsraise questions of safety or efficiency or threaten the unreasonable disruption of the business of the governmental body. See art. 6252-17a, $54. 13. The reasonablenessand safety of eachrequestmust be assessed independently. Relevant factorswould includewhether the county or district clerk's office has the physical characteristics necessary to complywith 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 firehazardby overloadingthe electricalsystem in an olderbuilding. The increasednoise in a small space couldhamper county employees in performing theirpublic duties. Another relevant factor is the safety of the copying to the records themselves. The governmentalcustodian of recordshas a duty to protect governmentrecords 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 governmentalbody determines that it cannot allow public copying of public records because to do so would threaten unreasonabledisruption or safetyhazards. the governmentalbody 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 equipmentwould cause less disruption of county or district business thanhaving county or district employeesmake the copies.

Additionally, if a governmentalbody chooses topermitmembers of rhe public to use other kinds of portable copying equipment, it must deal evenhandedlywith various members of the public who wish to use portable copying equipment. Moreover, the governmentalbody must not allow the use of portable copying equipment to interferewith other people'srights to inspectand copy records inperson.

Mr. Mayben also asks whether the county may produce income for the county from charges forpublic records, i.e.,whether the cost of copies provided by the county and district clerks may exceed the actual cost ofproviding the copies. Section 9(a) of theOpen Records Act provides that the cost of "noncertifiedphotographicreproductions of public records comprised of pages up to legal size shall not be excessive.'lSection 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 Commissiondetermines costs of public records in consultation with state agencies. SeeAttorney 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 otherdutiesprescribed,authorized.and/orpermittedby the Legislature forwhich no fee is setby thisAct, reasonablefees shall be charged." In Attorney .GeneralOpinion H-552 (1975). this office construedthisprovisionof article 3930 and concluded

that such factors as the expense of locating the records, making them physically available for inspectionand 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 - OpinionNos. JM-672;JM-292.

SUMMARY

The Texas Open RecordsAct, 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 governmentalbody. 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.

AttorneyGeneral of Texas

NARY KELLER ExecutiveAssistantAttorneyGeneral

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JUDGE ZOLLIE STEAKLEY SpecialAssistantAttorneyGeneral

RICK GILPIN Chairman,OpinionCommittee

Preparedby JenniferRiggs AssistantAttorneyGeneral

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