### THE ATTORNEY GENERAL OF TEXAS

August 1, 1988

Mr. William D.Gooch Director and Librarian Texas State Library and Archives Commission P. 0. Box 12927 Austin, Texas 78711 Opinion No. JM-936

Re: Whether optical data storage can be used in lieu of microfilm and paper by county clerks and school districts (RQ-1311)

DearMr. Gooch:

Youhave requested our opinion about three questions:

1. Does H.B. 163authorize county clerks and school districts to .use optical data storage systems as the exclusive medium for storage ofpermanent and long term records - that is,without alsomaintaining amicrofilm
orpaper back-up copy?

2. Until such time as optical data storage technology can meet standards for permanency and file integrity statutorily required ofmicrofilm u::d ::: storage of county clerk and school district records, and specifically until American National Standards Institute standards for permanency have been adopted foroptical disk storage media, would digitized county clerks'
or school district records orpaper copies made therefrom be deemed original records and
so accepted by courts and administrative agencies, as aremicrofilm records?

3. Does H.B. 163grant the same 'individual discretion' to county clerks to adopt optical data storage systems for records filed incounty ordistrict courts as they have to adoptmicrofilm systems under Chapter 194,ormust they request approval from the



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Supreme Court 'as required by Sections 51.803(b) and 51.807, Texas Government Code?

House Bill 163 is set out in fullas follows:

ANACT relating to the process of optical data storage.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Article 1941(a), Revised Statutes, isamended by adding Section 1A to read as follows:

Sec. 1A. OPTICAL DATA STORAGE PROCESS. For the purposes described by Section 1 of this Act, acounty clerk, county recorder, or clerk of acounty court may adopt and use an optical data storage process for the storage of records by optical disk. This Act applies, to the extent feasible, to the optical data storage process, the optical disk used in that process, and the records stored by that process inamanner equivalent to themanner inwhich thisAct applies to a microfilm process, the film used in that process, and the records stored by that process.

SECTION 2. Subchapter H, Chapter 21, Education Code, isamended by adding Section 21.260 to read as follows:

Sec. 21.260. OPTICAL DATA STORAGE PROCESS. For the purposes described by Section 21.259 of this code, a school district may adopt aplan foranoptical data storage process forthe storage of records by optical disk. This section applies to optical data in the same manner as Section 21.259 applies tomicrofilm, to the extent feasible, to the optical data storage process, the optical disk used in that process, and the records stored by that process inamanner equivalent to the manner inwhich this section applies to a microfilm process, the filmused in that process, and the records stored by that process.

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Acts 1987, 70th Leg., 2dC.S., ch. 72, at 224.

This act amended two separate statutory schemes for record keeping --that of county clerks and that of school districts. Section 1of House Bill 163 amends V.T.C.S. article 1941(a), section lA.l which governs county clerks, by adding

Section 2 of House Bill 163 amends the Education Code,which governs school districts, by adding section 21.260.

Because the provisions of the Education Code illustrate this problem of statutory construction more clearly than those of the Local Government Code, the two relevant sections of the Education Code are set out in full (emphasis added):

521.259. Microfilming Records and Reports

by School Districts

(a)A school district may adopt aplan for microphotographing or microfilming records and reports to accurately and permanently copy, reproduce, or originate records and reports on film. The planmust:

(1)specify the types of records and reports forrecording onmicrofilm:

(2)require indices to microfilm records and reports:
(3)require the microfilm to meet requirements of the United States of American Standards Institute for archival quality, density, resolution, and definition unless the school board of trustees

1. Article 1941(a), however, was earlier repealed by Acts 1987, 70th Leg., ch. 149, 549(l). This repeal was in conjunction with the enactment ofthe Local Government Code, which incorporated article 1941(a) into itsprovisions. See Acts 1987, 70th Leg., ch. 149, §1. In such a situation, section 311.031(c) of the Government Code provides that the repeal ofa statute by a code does not affect an amendment by the same legislature that enacted the.code and that the amendment ispreserved andgiven effect aspart of the code provision.

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determines that themicrofilm is intended only for short-term use:
(4)require a person to certify that the microfilm record or report is a correct duplication of the original record
or report; and
(5)guarantee the public free access to information inmicrophotographs andmicrofilms towhich they are entitled by law.
(b)Amicrofilm record or report of a school district is an original record or report and, if.made incompliance with this section, shall be accepted by a court or agency of this state as anoriginal record. A copy onpaper or film ofmicrofilm record
orreport that is certified by a record keeper of the school district shall be accepted by a court or agency of this state asa certified copy of anoriginal record or report.
(c)An original record or report which is microfilmed incompliance with aplan adopted under this section may be destroyed at the direction of the school board of trustees, unless required tobe preserved by state or federal law.
(d)An original record or report of the school district which isnotmicrofilmed in compliance with a plan adopted under this section or isdetermined tobeworthless by the school board of trustees may be destroyed at the direction of the board of trustees, unless required tobe preserved by state or federal law.
(e)Ifthe subject matter ofan original record or report is in litigation, the original record report not be destroyed until theOfitigation iF:ettled or final judgment isrendered.
(f)Before an original record or report that has been microfilmed may be destroyed, the school district must notify the state, librarian and state archivist. Ifthe state

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librarian or state archivist determines that the record orreport isneeded for the state library, the district shall transfer the record or report to the librarian or archivist. (Emphasis added.)

5 21.260. Optical Data Storage Process

For the nurnoses described bv Section 21.259 of this code, a school district may ado& a nlan foran ontical data storase process for the storage bf records by optical disk. This section applies to optical data inthe samemanner as Section 21.259 applies tomicrofilm, to the extent feasible, to the optical data storage process, the optical disk used in that process, and the records stored by that process inamanner equivalent to themanner in which this section applies to amicrofilm process, the filmused in that process, and the records stored by that process. (Emphasisadded.)
Thus, as set out in the statute, to achieve the purposes of section 21.259, section 21.260 authorizes the
use ofoptical data storage. Among the purposes of section 21.259 is "permanently" copying. You are concerned that it isnot technologically feasible to achieve the purpose of O1permanentlyl'

copying using optical data storage. You have cited several articles that question the archival life ofan optical disk, suggesting that it isperhaps nomore than ten years. See, e.~., Canning, Ontical Disks inthe Office, 5 IMCJournal 9 (Sept./Ott. 1987); Calmes, To Archive and Preserve: AMedia Primer, Inform 14 (May1987); McQueen 8 Boss,Videodisc and Ootical Disital Disk Technoloaies and Their Aonlications in Libraries, Am. Lib. Ass'n (1986). Significantly, you have learned that neither the National Archives and Records Administration nor the Library of Congress consider optical data storage as acceptable for permanent records. See Correspondence ofNov. 2, 1987, from Alan Calmes, Preservation Officer of the NARA, to William Gooch.

Inyour first question, therefore, you askwhether H.B. 163 authorizes county clerks and school districts to use optical data storage without alsomaintaining amicrofilm or paper copy of records. Without much doubt, the legislature contemplated this asapossibility. We draw this conclusion fromthe claim inthe BillAnalysis that anoptical disk “may have a longermedia archival life thanmicrofiche" and

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that "county records storage space requirements would be lessened." BillAnalysis, Tex. H.B. 163, 70th Leg. (1987). Neither of these claims would have been relevant unless the billmeant to authorize replacing microfilm and paper with optical disks. Thus, while not expressly saying so, the Bill Analysis seems to contemplate the possibility of optical data storage without the retention ofmicrofilm or paper. This conclusion is supported by the sponsor's explanation of the bill to the House upon second reading. Debate on Tex. H.B. 163 on the Floor of the House, 70th L-w., 2dC.S. (July18, 1987) (tape24, sideA) (available fromHouse Committee Coordinator's Office).

The critical point, however, isthatwhile the legislative history suggests that the legislature considered it a possibility that optical data storage might replace microfilm and paper records, the legislature provided inthe act itself certain safeguards to ensure that the technology of optical data storage guaranteed permanence before it could be employed by county clerks or school districts. Before optical data storage canbe used as the exclusive method of record retention, anyplan adopted by a county clerk or a school district must meet the requirements of chapter 194 of the Local Government Code or section 21.259 of the Education Code, respectively. We again turn to the Education Code to make our point.

Section 21.260 provides that it "applies to optical data inthe samemanner as Section 21.259 applies to microfilm, to the extent feasible
. . . .I'What this means is unclear. For several reasons thatwill be explained, we read section 21.260 to incorporate the requirements of section 21.259 into section 21.260. Among the requirements of section 21.259 is subdivision (a)(3),which states that microfilm must meet the requirements of the "American Standards Institute for archival quality, density, resolution, and definition unless . . .themicrofilm is intended only for short-term use." You have learned that as of yet there are no American National Standards Institute (ANSI) Standards for archival use ofoptical data storage. Correspondence of October 26, 1987, fromWilliam H.Rockwell, Vice President ofANSI, toWilliam D.Gooch. Until such time as there are, under section 21.260, no school district could adopt aplan for optical data storage, except for short-term
use. The same is true of county clerks. See Local Gov't Code 5 194.005, T,194.010, 5 194.017.
Thus, by incorporating the requirements of section 21.259, section 21.260 ensures that optical data storage cannot be used until standards are developed that guarantee

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archival quality. We chose this construction' of section 21.260 because itbest comports with the express legislative objective of guaranteeing permanent recordkeeping. A statute should be construed with reference to its manifest object, and if the language is susceptible of two constructions, one ofwhich will carry out and the other of which will defeat themanifest object, the construction that will carry out the manifest object should be chosen. Citizens Bank of Brvanv. First State Bank, 580 S.W.2d 344, 348 (Tex. 1979).

To read section 21.260 as authorizing optical data storage without reference to the requirements of section 21.259 would mean that any system ofoptical data storage could be adopted, even if itdid not adequately preserve public records. Ifpossible, such aconstruction isto be avoided. Long term preservation ofpublic records is very much in the public interest. When, as in this case, the intention of the legislature issovaguely expressed, it is proper to consider the consequences of any proposed construction and place upon the statute a construction that will not prejudice the public interest. National Surety Corx).v. Ladd, 115 S.W.2d 600, 603 (Tex. 1938).

We do not read the phrase "tothe extent feasible" as requiring a different interpretation. Providing that section 21.259 is incorporated into section 21.260 "to the extent feasible" does notmean that if the technology of optical data storage cannotmeet the requirements of section 21.259 that itneed not. Rather, the phrase 'Itothe extent feasible" means to the extent that aparticular requirement of section 21.259 isrelevant to the technology of optical data storage. Again taking the example of subdivision (a)(3),aswe read "tothe extent feasible," any plan for optical data storage must require that itmeet standards forarchival quality, but such storage need notmeet the requirements for "resolution" since resolution is a technical term applying only to filmand not to optical data storage.
Construing the phrase inthis fashion harmonizes the statute and ensures that it fulfills the apparent legislative objective. In construing a statute, all sections, words, and phrases must be considered together, every provision should be construed with every other provision toproduce a harmonized whole: and one provision will notbe given a meaning out ofharmony or inconsistent with other provisions, although itmight be susceptible of such construction standing alone. Black v.American Bankers Ins. Co., 478 S.W.Zd 434, 437 (Tex.1972).

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In summary, before adopting aplan for optical data storage, a county clerk or a school district must be sure that the plan meets the requirements forarchival quality established by theAmerican National Standards Institute. Until there are such standards, no such plan canbe adopted.

Inyour second question you askwhether records stored
on optical diskmust be accepted as original records by a court or agency of this state. Our answer toyour first question dictates our answer to your second question. Again, we will consider the question under the Education Code. Under section 21.259(b) of the Education Code, only those records "made incompliance with" that section can be accepted as an original record. Since one of the requirements of section 21.259 ismeeting theANSI standards for archival quality, and since this requirement is incorporated into section 21.260 foroptical data storage, then records on optical disks ormade from optical disks cannot be considered original records until ANSI has established standards forarchival quality for optical data storage, and records areproduced under aplan that meets those standards. The result isthe same for the records of county clerks under the Local Government Code. See Local Gov't Code, 5 194.005, 5 194.010, § 194.017.

Inyour third question you ask whether county clerks must request approval from the Supreme Court under subchapter Iof chapter 51 of the Government Code before adopting optical data storage for the filing of court records. This question confuses filing and storage. Subchapter Iof chapter 51of the Government Code relates to establishing a system for "the electronic filing of documents." Chapter 194 of the Local Government Code relates to storing documents after filinq. Supreme Court ;a;roval isrequired foran electronic filing system, but for storage on optical disk after filing. As a practical matter, however, until ANSI standards forarchival quality are developed foroptical data storage, no county clerk can employ aplan for optical~data storage under chapter 194 of the Local Government Code.

SUMMARY

Before adopting aplan foroptical data storage, a county clerk or school district must be sure that the planmeets the requirements for archival quality established by the American National Standards Institute (ANSI). Until there are such standards, no plan can be adopted. Records stored onoptical disks

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are not original records unless they are stored pursuant to a plan that meets ANSI standards. Subchapter Iof chapter 51of the Government Code, authorizing the electronic filing of certain documents by county clerks, relates to filing, not storing. Chapter 194 of the Local Government Code, relating to storing, operates without reference to subchapter Iof chapter 51of the Government Code.

JIM MATTOX Attorney General of Texas

WARY KELLER First Assistant Attorney General

LOUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by F. Scott McCown Assistant Attorney General

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