# TISEA'ITORNEYGENERAI~ ow TEXAS AUSTIN. 

# 'J%XAS 1SVll JOHN E EM& *-- o-AJ. June 4, 1975

The Honorable Bill Clayton, Speaker House ofRepresentatives State Capitol Austin, Texas 78711 Opinion No. H- 621 Re: Responsibility ofSpeaker ofthe House under Open Records Act with respect to records relating toindividual members. Dear Speaker Clayton:

You have requested our opinion concerning procedures utilized by the House ofRepresentatives in processing requests under the Open Records Act, 

### article 6252-17a, V.T. C.S.

Your specific questions are as follows:

1. Am I correct in maintaining that as Speaker ofthe House Iam the “custodian” ofpublic information dealing with the general operation ofthe House ofRepresentatives and that as such Imay set up reasonable procedures for processing open records requests? 2. Am I correct in assuming that as custodian ofthe records, Imay delegate all or any part ofthe responsibility ofhandling open records requests to any divisible operating.units within the House? 3. Because each member ofthe House ofRepresentatives is an elected state official and has autonomous control over operations dealing with that member’s own account, am I legally authorized to delegate to each member the responsibility ofhandling open records, requests dealing with that member’s account?

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4. As long as all persons to whom the custodial function may be delegated are instructed to provide full and complete information in an expeditious manner, is there any aspect of this procedure which is unduly or illegally restrictive ofthe rights ofthe public tohave access toany public information held by the House? We answer your first question in the affirmative. The office ofSpeaker ofthe House is a Constitutional one. Tex. Const. art. 3, s9, 038. As presiding officer ofthe House ofRepresentatives, you are the custodian ofpublic records held by the House, within the meaning of section 5(a) ofthe Open Records Act, which provides in part:

(a) The chief administrative officer ofthe governmental body shall be the custodian ofpublic records.
. , .It shall be the duty ofthe custodian
. . . to see that the public records are made available for public inspection and copying.
. . . We spoke to the question ofwho is custodian ofcounty records held by the county clerk in Attorney General Opinion H-115 (1973). There we said: It is apparent that §5ofHouse Bill 6, in making the chief administrative officer ofthe governmental body the custodian ofpublic records, intended bythat provision to focus the responsibility for the success ofthe Act upon those who have it within their power to make the Act viable. Itis obvious that it was not the intent that the chief administrative officer, in this case, the county judge, actually, physically have custody as would the county clerk. Thus, for example, in Subsection 5(b) the statute refers to the custodian’s ’agent who controls the use ofpublic records. ’ As we interpret the Act, the county clerk retains ,physical care, custody and control ofthe records u#ich, by statute, he is required to maintain. The responsibility for seeing that county records, including those maintained bythe county clerk as well as those maintained by other county officers, are disclosed when required byHouse Bill 6, is placed on the county judge - the chief administrative officer ofthe governmental body.

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Thus, you are responsible as the custodian ofpublic records ofthe House to see that those records are made available for inspection under the Act. In regard to establishing procedures, section 13ofthe Open Records Act provides that:

Each governmental body may promulgate reasonable rules ofprocedure bywhich public records may be inspected efficiently, safely, and without delay. Section 11ofarticle 3ofthe Texas Constitution provides that “Each House may determine the rules ofits own proceedings.
. . .” Pursuant to this authority the current Rules ofthe House ofRepresentatives provide that the Speaker “shall enforce the Rules ofthe House, and the Legislative Rules prescribed by the Statutes and Constitution of Texas. I’ Rules, House of Representatives 64th Legislature, Rule 1, sec. 4.

Inaddition, it is well settled that a law which imposes aduty on an officer carries with it by necessary implication the authority to do such things as are reasonably necessary to carry out the duty imposed. 47 Tex. Jur. 2d Public Officers $110p. 145, n.2, and cases cited therein.

We believe that it is~clearly within thepcrvers ofthe Speaker to set up reasonable procedures~ for processing requests for public information, except as might be otherwise provided by law or by the Rules ofthe House. We are aware ofnoHouse Rule which restricts the Speaker in this regard.

The Open Records Act establishes certain procedural requirements for dealing with requests for public information. The principal ones are as follows:

. The custodian has the duty to see that public records are made available for public inspection and copying during normal business hours ofthe governmental body. Sets. 3(a), 5(a).

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. The custodian or his agent shall give, grant, and extend to the person requesting public records all reasonable comfort and facility for the full exercise ofthe right to access granted by the Act. Sec. 5(b).

. The custodian shall promptly produce public information for inspection or duplication, or if not available at the time of the request, shall certify in writing that it is in **use** or storage and set a date and hour when it will be available. Sec. 4.

, No inquiry may be made ofthe person requesting public records beyond establishing his identity and what records are requested. Sec. 5(b).

. Suitable copies ofall public records must be provided within a reasonable time after the date copies are requested and costs of copies shall not be excessive. Sets. 9 (a), 9(c).

, Requests for information determined bythe governmental body to be within an exception, butas towhich there has been no prior determination that it is excepted, must be forwarded to the Attorney General within a reasonable time, nolater than 10days after receipt of awritten request. Sec. 7(a). Subject to these requirements ofthe Act, “Each governmental body may promulgate reasonable rules ofprocedure bywhich public records may be inspected efficiently, safely, and withow delay. ” Sec. 13.

Your second question inquires as to the extent to which the responsibilities tohandle requests for information may be delegated.

It is ageneral rule that public duties must be performed and governmental powers exercised by the officer designated by law and that they may not be delegated to others. Newsom v. Adams, 451S.W. 2d 948 (Tex. Civ. App.

-- Beaumont 1970, nowrit hist.); Moody v. Texas Water Commission, 373 S.W. 2d 793, 797 (Tex. Civ. App. -- Austin 1963writ ref ’d n.r. e.). This

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ancient rule is expressed in the maxim: Delegatusncn notest delegare (the person towhom aduty is delegated cannot lawfully devolve the duty on another, unless expressly authorized to,do so). However, ministerial or administrative functions not calling for the exercises ofdiscretion may be delegated toagents to perform those functions. 47 Tex. Jur. 2dPublic Officers 5114, pp. 149-150 and cases cited therein.

Thus, while the duties and responsibilities imposed by the Open Records Act may not be delegated, you may perform the duties through agents. Section 5(b) ofthe Act refers to the custodian’s “agent who controls the use of public records” and to “the custodian or his agent. ” We have said that this clearly contemplates the probability that an agent, not the legal custodian, will control the actual use ofpublic records. Open Records Decision No. 44 (1974). Our answers toyour first two questions are that as chief administrative officer ofthe House ofRepresentatives, you are the legal custodian ofpublic records ofthe House and have the duty “to see that the public records are made available for public inspection and copying
. , . .‘I Sec. 5(a). The Act andthe Rules ofthe House authorize you to establish reasonable procedures

“by~which public 

### records may be,inspected efficiently, safely, 

### andwithout delay. ” Sec. 13. While 

### your duties under the Act may not be delegated, the Act clearly contemplates that they may be performed through agents to whom you have delegated actual custody and control ofpublic records. Sec. 5(b).

Your third question is whether you have authority to delegate to each member the responsibility ofhandling open records requests dealing with that member’s account. It is your position that since members have autonomous authority over their own payroll accounts, they are in the best position to determine whether the particular information requested is or is not excepted from required disclosure, and also to answer questions concerning the information. As we have indicated above,’ the Act clearly contemplates that you ’ may perform your duties through agents who have actual custody and control ofthe public information. The Act gives the House, andthe House haspgiven you authority to adopt reasonable procedures to insure that “public records may beinspected efficiently, safely, and without delay. ” Sec. 13. Of,course, while certain duties may be delegated, the custodian’s ultimate responsibiIity may not.

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We have said that the Act does not require agovernmental body to notify the individual about whom information is requested. Attorney General Opinion H-90 (1973). Except to’the extent that 

### itwould cause unreasonable delay, neither does the Act prohibit such notice, and the procedure you have described does serve the purpose ofsuch notification. We cannot say that providing members with notice and an opportunity toassert the applicability of specific exceptions is unreasonable. Of course, the determination that an exception applies is for the custodian to make. 3

We cannot say as a matter oflaw that 

### your procedures 

### are unreasonable. The q.uestion ofwhether aparticular procedure is reasonable is aquestion of fact which we cannot determine.

**We** must make the same response toyour fourth qm stion as to whether the procedure you describe “is unduly or illegally restrictive ofthe rights of the public tohave access to any public information held by the House. ”

The procedure you describe is not necessariy violative ofany provision ofthe Act, although in aparticular situation it 

### may be shown tohave been. All we can answer is that it cannot be said that it is unduly restrictive or unreason- ,able as amatter oflaw. SUMMARY The Speaker is “custodian ofpublic records” ofthe House ofRepresentatives. The Speaker may establish reasonable procedures for public records, to beinspected efficiently, safely, and without delay. He may perform his duties through agents and may delegate tothem authority to promptly produce public information and to make it available for inspection and copying. The Speaker’s responsibility to see that public records of the House, are made available.for inspection may not be delegated.

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A reasonable and expeditious procedure, whereby requests 

### are directed toindividual members towhom the information relates, cannot be said as amatter of law to violate the provisions ofthe Open Records Act. Very truly **yours,**

APPROVED: Attorney General ofTexas

C. ROBERT HEATH, Chairman Opinion Committee jwb

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