Honorable Bob Bullock 

Comptroller of Public Accounts 

L.B.J. Srate Office Building 

Austin, Texas 78774 

Opinion No. JM-672 

Re: Availability of computer programs and data bases under the Open 

Records Act and whether a government body must perform computer 

searches for information 

Dear Mr. Bullock: 

You received a request under the Texas Open Records Act, article 

6252-17a, V.T.C.S., for “all documents produced by . . . Chase 

Econometrics, in the possession of the state comptroller’s office 

which deal with the economic future of the Austin, Texas area.” You 

indicate that you have a subscription contract with the Chase 

Econometrics Division of Interactive Data Corporation for economic 

services for use in the comptroller’s revenue estimating and economic 

analysis activities. The terms of this contract purport co prohibit 

your office from duplicating or releasing substantial portions of 

reports, computer programs, or documents received from Chase 

Econometrics pursuant to the contract. The contract attempts co 

protect Chase Econometrics ’ “copyright and other commercial property 

rights” in this information. 

Your concerns arise primarily from the fact that the contract 

with Chase Econometrics (CE) states, in part: 

Customer agrees chat, as to any matter, including (but not limited to) reports, data bases, 

computer programs, documentation and any other 

information, made known to him by CE pursuant 

to this Subscription Agreement or any Service 

supplied pursuant hereto, Customer shall not 

duplicate such matter for use outside of its own 

organization without the prior’ written consent of 

CE: however, the Customer may uublish. without 

zch cons& analyses and repo;ts of the Services 

in amounts which in the aggregate are totally 

insignificant relative to the portion of the 

report. database, program, or documentation containing the information, and so long as no fee 

is charged for such CE analyses and reports. 

Customer shall take all reasonable precautions to 

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Honorable Bob Bullock - Page 2 (311-672) 

keep such matter confidential and, with ,the exception of such insignificant excerpts, to use such 

analysis for the sole internal use of Customer snd 

its employees, both during the term of this 

Subscription Agreement and thereafter. (Emphasis 

added). 

Information is not confidential under the Open Records Act simply 

because the party submitting the information anticipates or requests 

that it be kept confidential. Industrial Foundation of the South v. 

Texas Industrial Accident Board, 540 S.W.2d 668, 677 (Tex. 1976). 

cert. denied, 430 U.S. 931 (1977). The law charges persons dealing 

with state agencies and officers with notice of the legal limits on 

the agencies’ and officers’ powers. State v. Ragland Clinic-Hospital. 

159 S.W.Zd 105. 107 (Tex. 1942); Faxekas v. University of Rouston. 565 

S.W.Zd 299. 304-306 (Tex. Civ. App. - Eouston [lst Disc.] 1978. writ 

ref’d n.r.e.), appeal dism’d. 440 U.S. 952 (1979). In other words, a 

contract cannot overrule or repeal the Texas Open Records Act. A 

contract may, however, be evideuce of a private party’s attempt to 

keep information confidential. See art. 6252-17a, 23(a)(l), (a)(lO). 

You do not ask nor do we addresshechor the trade secret excspcion 

applies to the inforxation in question. 

Your questions are general: (1) whether copyrighted material 

musr be released for inspection, (2) whether you xusc allow the 

requestor to make copies unassisted by your office, and (3) whether 

you must perform computer searches to obtain information sought by the 

requestor. Because of the vast amount of information involved and 

because of the general nature of your questions. you have not submitted specific documents for review by this office. If you wish to 

withhold access co specific documents, you must submit representative 

copies of them to this off ice for review , stating which exceptions to 

disclosure under the Open Records Act apply, within 10 days of receipt 

of this decision. See Open Records Decision No. 325 (1982). 

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This office has addressed whether the Open Records Act protects 

material, for which a third party holds a copyright, from disclosure 

under various exceptions to disclosure in a number of prior opinions. 

See, e.g., Open Records Decision Nos. 426 (1985); 401 (1983); 180 

(1977) ; 109 (1975); Attorney General Opinion MW-307 (1981). In 

Attorney General Opinion NW-307, this office stated: 

The custodian of public records must comply 

with the copyright law and is not required to 

furnish copies of such records that are copyrighted. Members of the public have the right to 

examine copyrighted materials held as public 

records and to make copies of such records unassisted by the state. Of course, one so doing 

assumes the risk of a copyright infringement suit. 

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n 

Honorable Bob Bullock - Page 3 (34-672) 

Consequently, you must allow members of the public CO inspect copyrighted material unless other exceptions to the Open Records Act 

protect the material. You need not furnish copies. 

All of the information held by your office, however, may not be 

protected by copyright. Copyright law protects the expression and 

form of ideas, not the underlying facts and ideas which form the basis 

for the particular expression. See 17 U.S.C. 1102(b); Atari, Inc. v. 

North American Philips Consumer Electric Corp.. 672 F.2d 607 (7th Cir. 

1982); see also Mazer V. Stein, 347 U.S. 201 (1954). The request you 

received is very broad; all of the information requested may not be 

covered by copyright protection. If you wish to claim that copyrighted material or other material IS protected from disclosure by 

other exceptions, you must indicate which sections protect it and 

submit representative samples to this office for review. You should 

also note that you may require a requestor to identify the particular 

kind of information sought if you cannot reasonably understand what 

information is sought. See Open Records Decision No. 304 (1982). 

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Your second question is whether you must allow the requestor to 

make copies unassisted by your office. Attorney General Opinion 

MU-307. as quoted above, provides that members of the public have the 

right to make copies of copyrighted materials held as public records 

“unassisted by the state.” Your concern is that the contract with 

Chase Econometrics requires your office to take “all reasonable 

precautions” to keep material confidential. Reasonable precautions 

cannot logically include violating the Texas Open Records Act. As 

indicated, persons dealing with state agencies are charged with notice 

of the legal limits on the agencies’ powers. 

Your final set of questions are: 

(3) Are we required to make inquiry through 

our computer equipment for information sought by 

the requestor or to make our equipment available 

to the requestor for such purpose? If so. must he 

bear the expense of the inquiry time? 

If the requestor seeks specific information stored in computer form 

and the information itself is not protected by copyright or by any of 

the specific exceptions to disclosure under the act, you must disclose 

it. Information does not fall outside the act merely because it is 

stored by means of magnetic tape or disks rather than paper documents. 

Open Records Decision Nos. 401 (1983); 352 (1982). 

On the other hand, the Open Records Acr does not require a 

complex computer search to create new information. It is wellestablished that the act does not require a government body to prepare 

*ew information. Open Records Decision Nos. 452 (1986) ; 342 (1982). 

For example, in Open Records Decision No. 452. this office determined 

that the act does not require a school district to prepare a survey of 

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Honorable Bob Bullock - Page 4 (~14-672) 

the location of school desks and chairs recently repainted with leaded 

paint. Although this information was technically obtainable from the 

individual schools by the school district, neither the district nor 

the individual schools had performed a location survey ac the time 

they received the request for a survey. This office determined that 

the Open Records Act does not require a governmental body to perform 

this kind of search. Open Records Decision No. 452. Information 

stored in computers, however, presents different questions. 

It would be inconsistent with the spirit of the Open Records Act 

to deny access to information simply because obtaining the information 

requires a minimal computer search. Performing a sequence of operations on a computer will. in many instances, require no more effort 

than physically locating a file in a particular file cabinet. In Open 

Records Decision No. 65 (1975). this office addressed a request 

received by the Department of Public Safety for a magnetic tape 

containing the -a, addresses, sip codes, dates of birch, and 

license expiration dates of all Texas drivers over the age of 64 with 

licenses issued or renewed after January 1. 1973. The decision 

concluded: 

We understand that the programming effort required to comply with the instant request would 

not be unduly onerous, that such programming can 

be done without danger to your department's system 

or files, and that the required program can be run 

simultaneously with other Department of Public 

Safety systems without degradation of those other 

systems. To comply with the mandate of the Open 

Records Act. your department can eithar use a 

program prepared by the requestor and reviewed by 

DPS personnel, or prepare in-house a program co 

retrieve the information sought by the requestor. 

It is not necessary that your department build and 

maintain files of hata which it-needs in a format 

dictated by a requesting party. The statute's 

requirement that the agency supply the information 

requested 'within a reasonable time' allows your 

department to utilize its computer system on a 

priority basis. See sections 4 and 7(a) of 

article 6252-17a. (Emphasis added). 

The suggestion that the Open Records Act requires the actual 

preparation of a program to retrieve information. however. requires 

clarification. 

In 1976. the Texas Supreme Court reinforced part of the conclusion in Open Records Decision No. 65 when the court addressed a 

request for a massive amount of computer-stored information held by 

the Texas Industrial Accident Board. See Industrial Foundation of the 

South, Inc. v. Texas Industrial AcciderBoard, 540 S.W.2d at 687. In 

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Honorable Bob Bullock - Page 5 (JM-672) 

the Industrial Foundation case, the court addressed the Industrial 

Accident Board’s concern chat, because of the magnitude of the 

information requested, it would be virtually impossible to furnish 

the requested information without hiring additional personnel and 

disrupting the activities of the board. See 540 S.W.2d at 686-87. 

The court stated that “the Act does not al= either a custodian of 

records or a court to consider rhe cost or method of supplying 

requested information~in determining whether such information should 

be disclosed.” 540 S.W.2d at 687. The court also indicated that the 

act requires some compilation , at least in the area of computer-stored 

information: “We are aware that the Board may incur substantial costs 

in its compilation and preparation of the -information. . . .” Id. 

(Emphasis added .) 

There exists an important distinction, however, between the 

“compilation” of computer-stored information and the preparation of a 

new computer program desigred to perform a survey or a compilation of 

a specific set of facts. The Open Records Act does not require a 

custodian of records to prepare information in a form or on a schedule 

dictated by a request.ing party. Open Records Decision No. 145 (1976). 

In most cases, the act does not require the preparation of an 

extensive new computer program to obtain particular sets of information. Whether certain programming constitutes the creation of new 

material must be determined on a case-by-case basis. This is an area 

under the Open Records Act that must ultimately be addressed by the 

legislature. To the extent that Open Records Decision No. 65 suggests 

otherwise, it is modified. The act may also. in some instances. 

require the preparation of a program to protect or delete confidential 

information. See Industrial Foundation, 540 S.W.Zd at 687. If public 

information so=t in a particular instance may be “called up” under 

an existing program, a governmental body must perform this search. 

The timing of the search may reasonably take into consideration 

whether the search can be performed without degradation of the 

government agency’s overall computer file system. See Open Records 

Decision No. 65; see also Open Records Decision Nos.148, 121 (1976) 

(information may be withheld temporarily while in immediate active 

use). 

You also ask whether the act requires you to allow a requestor to 

perform his own computer search on your computer equipment. The Open 

Records Act provides “for inspection or duplication, or both,” of 

public information. V.T.C.S. -art. 6252-17a. 14. In Open Records 

Decision No. 152 (1977). this office indicated chat the act gives the 

requesting party the option of taking notes from or paying for the 

duplication of public records or of doing both. The option of access 

to the records or information does not, however, include the right to 

access through direct computer searches. An important distinction 

exists between access to public information and access to computer 

banks which may contain both public and protected informarion. 

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Honorable Bob Bullock - Page 6 (JM-672) 

In fact, if a requestor-conducted search csnnoe be effected 

without giving the requestor access to information to which the 

requestor is not entitled, the act prohibits the search. See 

Industrial Foundation of the South, Inc. v. Texas Industrial Accident 

Board, 

(1983). 

540 S.V.2d at 687; see also Open Records Decision No. 401 

In the Industrial Foundation case, the court stated: 

The means of access to information in government 

records may be controlled by the determination of 

what records must be disclosed, insofar as the 

procedure must adequately protect information 

deemed confidential from improper disclosure. If 

a direct computer tie-in could not be effectuated 

without giving the Foundation access to information to which it is not entitled, then of course 

the procedure would not be acceptable. 

540 S.P.Zd at 687. An individual requestor-conducted computer search 

raises the same problems raised by the direct computer tie-in 

addressed in Industrial Foundation. 

Your final question is whether the requestor must bear the 

expense of computer search time necessitated by his request. In the 

Industrial Foundation case, the Texas, Supreme Court stated with regard 

to computerized information: 

We ara aware that the Board may incur substantial costs in its compilation and preparation 

of the information, especially in light of the 

case-by-case review and redaction of the files 

necessieated by Section 3(a)(l). Section 9 of 

the Act makes clear that all costs incurred in 

providing access to public records must be borne 

by the requesting party. 

540 S.W.Zd at 687. Thus, the requestor must bear the expense of 

providing information stored by means of computers. Attorney General 

Opinion JM-292 (1984); see also Open Records Decision No. 352 (1982); 

cf. AttOMey General Opinion JM-114 (1983). 

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Charges for access to information in computer banks must be set 

in consultation with the State Purchasing and General Services 

Commission "giving due consideration to the expenses involved in 

providing the public records making every effort to match the charges 

with the actual cost of providing the records." V.T.C.S. art. 

6252-17a. 19(b); see Open Records Decision No. 352 (1982). These 

costs may include, for example, the cost of developing a search 

pattern to edit OUE confidential information maintained in computer 

record banks. See Attorney General Opinion JM-292. Additionally, 

requescors may bcrequired to post bond for payment of costs as a 

condition precedent to the preparation of records when the preparation 

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Eonorable Bob Bullock - Page 7 (m-672) 

of records is “unduly costly” and its reproduction would cause “undue 

hardship” to the agency. Art. 6252-17a, 111; see Industrial - 

Foundation, 540 S.W.2d at 687-88. 

SUKKARY 

A custodian of public records under the Texas 

Open Records Act, article 6252-17a. V.T.C.S., must 

allow members of the public to inspect copyrighted 

material unless other exceptions to the Open 

Records Act protect the material. The custodian 

need not, however, furnish copies. The custodian 

must allow the requestor to make copies “unassisted 

by the state.” 

The Open Records Act does not require the 

preparation of an extensive new computer program to 

obtain particular sets of information. Whether 

certain programming constitutes the creation of new 

material must’ be determined on a case-by-case 

basis. 

Jk-b 

Attorney General of Texas 

JACK RIGHTOWER 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEMCLRT 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Jennifer Riggs 

Assistant Attorney General 

p. 3087