Honorable BobBullock Comptroller of Public Accounts L.B.J. Srate Office Building Austin, Texas **78774** Opinion No. JM-672

Re: Availability **of** computer programsanddata bases under the Open Records Act and whether a govern**ment** body must perform computer searches for information

DearMr. Bullock:

Youreceived arequest 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 andeconomic 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 ChaseEconometrics (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 CEpursuant 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 andrepo;ts of the Services in amounts which in the aggregate are totally insignificant relative to the portion of the report. database, program, or documentation con**taining** 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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keep suchmatter confidential and, with ,theexception of such insignificant excerpts, to use such analysis for thesole 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 OpenRecords **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, 430U.S. 931 (1977). The law charges persons dealing with state agencies andofficers with notice of the legal limits on the agencies’ andofficers’ powers. State v. Ragland Clinic-Hospital. 159S.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. 440U.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 doweaddresshechor 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 makecopies unassisted by your office, and (3) whether you mustperform 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 youwish to withhold access co specific documents, youmust submit representative copies of themto this office for review
, stating which exceptions to disclosure under the OpenRecords **Act** apply, within 10days of receipt of this decision. SeeOpenRecords Decision No. 325 (1982).

- This office has addressed whether the OpenRecords Act protects material, for which **a** third party holds **a** copyright, from disclosure under various exceptions to disclosure in anumberof 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. Membersof the public have the right to examine copyrighted materials held as public records and to makecopies of such records unassisted by the state. **Of** course, **one** so doing

assumes the risk of acopyright infringement suit.

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Consequently, you must allow membersof the public COinspect copyrighted material unless other exceptions to the Open Records Act protect thematerial. Youneed not furnish copies.

All of the information held by **your** office, **however, may** not be protected by copyright. Copyright law protects the expression and formof ideas, not the underlying facts andideas which form the basis for the particular expression. See 17U.S.C. 1102(b); Atari, Inc. v. North AmericanPhilips ConsumerElectric Corp.. 672F.2d 607 (7th Cir. 1982); see also MazerV. Stein, 347U.S. 201 (1954). Therequest you received is very broad; all **of** the information requested maynot 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 youmayrequire a requestor to identify the particular kind of information sought if you cannot reasonably understand what information is sought. SeeOpenRecords Decision No. 304 (1982).

-
Your second question is whether you mustallow the requestor to make copies unassisted by your office. Attorney General Opinion MU-307. as quoted above, provides that membersof the public have the right to makecopies 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 OpenRecords Act. As indicated, persons dealing with state agencies are charged with notice of the legal limits onthe agencies’ powers.

Yourfinal set of questions are:

(3) **Are** we required to makeinquiry through

our computer equipment for information sought by the requestor or to makeour equipment available to the requestor for such purpose? If so. musthe bear the expense of the inquiry time?

If the requestor seeks specific information stored in computer form and the information itself is not protected bycopyright or by anyof the specific exceptions **to**disclosure underthe act, youmustdisclose it. Information does not fall outside the act merely because it is stored by**means**ofmagnetic tape or disks rather thanpaper documents. OpenRecords Decision Nos. 401 (1983); 352 (1982).

Onthe 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 agovernmentbody **to** prepare *ew information. OpenRecords Decision **Nos.** 452 (1986); 342 (1982). For example, in OpenRecords Decision No. 452. this office determined that theact does **not** require a school district to prepare asurvey of

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the location of school desks andchairs 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 OpenRecords 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 OpenRecords **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 manyinstances, require no **more** effort thanphysically locating afile in aparticular 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 64with licenses issued or renewed after January 1. 1973. The decision concluded:

Weunderstand that the programming effort required **to** comply with the instant request would not be unduly onerous, that such programming can be donewithout danger to your department's system
or files, and **that** the required programcanberun 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 programprepared by the requestor andreviewed by DPSpersonnel, 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 ofhata 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 **con** clusion in OpenRecords Decision No. 65when the court addressed a request **for** a massive amountof computer-stored information held by theTexas Industrial Accident Board. SeeIndustrial Foundation of the South, Inc. v. Texas Industrial AcciderBoard, 540S.W.2d at 687. In

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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.” 540S.W.2d **at** 687. Thecourt also indicated that the act requires some compilation
, at least in the area of computer-stored information: “Weare awarethat the Boardmayincur 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 andthe preparation of a new**computer**program desigred to perform a survey or a compilation of

a specific **set** of facts. The OpenRecords Act does not require a custodian of records to prepare information in aformor **on** aschedule dictated byarequest.ing party. OpenRecords Decision No. 145 (1976). In most cases, the act does not require the preparation of an extensive newcomputer program to obtain particular sets of information. Whether certain programming constitutes the creation of new material mustbe determined onacase-by-case basis. This is anarea under the OpenRecords **Act** that must ultimately be addressed by the legislature. Tothe extent that OpenRecords Decision No. 65suggests otherwise, it is modified. The **act** may also. in some instances. require the preparation of aprogramto protect or delete confidential information. SeeIndustrial Foundation, 540S.W.Zdat 687. If public information so=t in a particular instance maybe “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. SeeOpenRecords Decision No. 65; see also OpenRecords Decision Nos.148, 121 (1976) (information maybe withheld temporarily while in immediate active use).

**You**also ask **whether the**  act requires you to allow arequestor to perform his owncomputer search onyour computer equipment. TheOpen 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. Theoption 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 whichmaycontain both public andprotected informarion.

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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 theIndustrial Foundation case, the court stated:

Themeansof access to information in government records maybe controlled by the determination of what records must be disclosed, insofar as the procedure must adequately protect information deemedconfidential from improper disclosure. If

adirect 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 wouldnot be acceptable.

540S.P.Zd at 687. Anindividual 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, theTexas,SupremeCourt stated with regard to computerized information:

We ara aware that the Board may incur substantial costs in its compilation andpreparation 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 mustbe borne by the requesting party.

540 S.W.Zd at 687. Thus, the requestor must bear the expense of providing information stored bymeans of computers. Attorney General Opinion JM-292 (1984); see also OpenRecords Decision No. 352 (1982); cf. AttOMey General Opinion JM-114 (1983).

- Charges for access to information in computer banksmust 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 matchthe 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 OUEconfidential information maintained in computer record banks. See Attorney General Opinion JM-292. Additionally, requescors maybcrequired to post bond for payment of costs as a condition precedent to the preparation of records whenthepreparation

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of records is “unduly costly” andits reproduction would cause “undue hardship” to the agency. Art. 6252-17a, 111; see Industrial
- Foundation, 540S.W.2d at 687-88.

**SUKKARY**

A custodian of public records under the Texas OpenRecords Act, article 6252-17a. V.T.C.S., must allow membersof 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 mustallow the requestor to makecopies “unassisted by the state.”

The Open Records Act does not require the preparation of anextensive newcomputerprogram to obtain particular sets of information. Whether certain programmingconstitutes the creation of new material must’ be determined on a case-by-case basis.

Jk-b

Attorney General of Texas

JACKRIGHTOWER First Assistant Attorney General

MARY KELLER Executive Assistant Attorney General

JUDGE ZOLLIESTEMCLRT Special Assistant Attorney General

RICKGILPIN Chairman, Opinion Committee
Prepared byJennifer Riggs Assistant Attorney General

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