TISEA'ITORNEYGENERAI~ 

ow TEXAS 

AUSTIN. 'J%XAS 1SVll 

JOHN E EM& 

*-- o-AJ. 

June 4, 1975 

The Honorable Bill Clayton, Speaker 

House of Representatives 

State Capitol 

Austin, Texas 78711 

Opinion No. H- 621 

Re: Responsibility of Speaker 

of the House under Open Records 

Act with respect to records 

relating to individual members. 

Dear Speaker Clayton: 

You have requested our opinion concerning procedures utilized by the 

House of Representatives 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 of the 

House I am the “custodian” of public information dealing 

with the general operation of the House of Representatives 

and that as such I may set up reasonable procedures for 

processing open records requests? 

2. Am I correct in assuming that as custodian of the 

records, I may delegate all or any part of the responsibility of handling open records requests to any divisible 

operating.units within the House? 

3. Because each member of the House of Representatives 

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 

of handling open records, requests dealing with that member’s 

account? 

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The Honorable Bill Clayton - Page 2 

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 of the 

rights of the public to have access to any public information 

held by the House? 

We answer your first question in the affirmative. The office of Speaker 

of the House is a Constitutional one. Tex. Const. art. 3, s 9, 0 38. As presiding officer of the House of Representatives, you are the custodian of public 

records held by the House, within the meaning of section 5(a) of the Open 

Records Act, which provides in part: 

(a) The chief administrative officer of the governmental 

body shall be the custodian of public records. . , . It 

shall be the duty of the custodian . . . to see that the 

public records are made available for public inspection 

and copying. . . . 

We spoke to the question of who is custodian of county records held by 

the county clerk in Attorney General Opinion H-115 (1973). There we said: 

It is apparent that § 5 of House Bill 6, in making the 

chief administrative officer of the governmental body the 

custodian of public records, intended by that provision to 

focus the responsibility for the success of the Act upon 

those who have it within their power to make the Act viable. 

It is 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 of public records. ’ 

As we interpret the Act, the county clerk retains 

,physical care, custody and control of the records u#ich, by 

statute, he is required to maintain. The responsibility for 

seeing that county records, including those maintained by the 

county clerk as well as those maintained by other county 

officers, are disclosed when required by House Bill 6, is placed 

on the county judge - the chief administrative officer of the 

governmental body. 

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The Honorable Bill Clayton - Page 3 

Thus, you are responsible as the custodian of public records of the 

House to see that those records are made available for inspection under the 

Act. 

In regard to establishing procedures, section 13 of the Open Records 

Act provides that: 

Each governmental body may promulgate reasonable rules 

of procedure by which public records may be inspected 

efficiently, safely, and without delay. 

Section 11 of article 3 of the Texas Constitution provides that “Each 

House may determine the rules of its own proceedings. . . . ” Pursuant to 

this authority the current Rules of the House of Representatives provide that 

the Speaker “shall enforce the Rules of the House, and the Legislative Rules 

prescribed by the Statutes and Constitution of Texas. I’ Rules, House of 

Representatives 64th Legislature, Rule 1, sec. 4. 

In addition, it is well settled that a law which imposes a duty 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 $110 p. 145, n. 2, and cases cited therein. 

We believe that it is~clearly within thepcrvers of the Speaker to set up 

reasonable procedures~ for processing requests for public information, except 

as might be otherwise provided by law or by the Rules of the House. We are 

aware of no House 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 of the governmental body. 

Sets. 3(a), 5(a). 

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The Honorable Bill Clayton - Page 4 

. 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 

of the 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 of the person requesting 

public records beyond establishing his identity and 

what records are requested. Sec. 5(b). 

. Suitable copies of all 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 by the governmental body to be within an exception, but as to which 

there has been no prior determination that it is excepted, 

must be forwarded to the Attorney General within a 

reasonable time, no later than 10 days after receipt of 

a written request. Sec. 7(a). 

Subject to these requirements of the Act, “Each governmental 

body may promulgate reasonable rules of procedure by which public records 

may be inspected efficiently, safely, and withow delay. ” Sec. 13. 

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

It is a general 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, 451 S. W. 2d 948 (Tex. Civ. App. 

-- Beaumont 1970, no writ hist.); Moody v. Texas Water Commission, 373 

S. W. 2d 793, 797 (Tex. Civ. App. -- Austin 1963 writ ref’d n. r. e.). This 

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The Honorable Bill Clayton - Page 5 

ancient rule is expressed in the maxim: Delegatusncn notest delegare (the 

person to whom a duty 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 of discretion may be 

delegated to agents to perform those functions. 47 Tex. Jur. 2d Public 

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) of the 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 of public records. Open Records Decision No. 44 

(1974). 

Our answers to your first two questions are that as chief administrative 

officer of the House of Representatives, you are the legal custodian of public 

records of the 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 

and the Rules of the House authorize you to establish reasonable procedures 

“by~which public records may be, inspected efficiently, safely, and without 

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 of public records. Sec. 5(b). 

Your third question is whether you have authority to delegate to each 

member the responsibility of handling 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 

of the public information. The Act gives the House, and the House hasp given 

you authority to adopt reasonable procedures to insure that “public records 

may be inspected efficiently, safely, and without delay. ” Sec. 13. Of,course, 

while certain duties may be delegated, the custodian’s ultimate responsibiIity 

may not. 

p. 2752 
The Honorable Bill Clayton - Page 6 

We have said that the Act does not require a governmental body to 

notify the individual about whom information is requested. Attorney 

General Opinion H-90 (1973). Except to’the extent that it would cause unreasonable delay, neither does the Act prohibit such notice, and the procedure 

you have described does serve the purpose of such notification. We cannot say 

that providing members with notice and an opportunity to assert 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 of law that your procedures are unreasonable. 

The q.uestion of whether a particular procedure is reasonable is a question of 

fact which we cannot determine. 

We must make the same response to your fourth qm stion as to whether 

the procedure you describe “is unduly or illegally restrictive of the rights of 

the public to have access to any public information held by the House. ” 

The procedure you describe is not necessariy violative of any provision 

of the Act, although in a particular situation it may be shown to have been. All 

we can answer is that it cannot be said that it is unduly restrictive or unreason- 

,able as a matter of law. 

SUMMARY 

The Speaker is “custodian of public records” of the 

House of Representatives. The Speaker may establish 

reasonable procedures for public records, to be inspected 

efficiently, safely, and without delay. He may perform his 

duties through agents and may delegate to them 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. 

p. 2753 
The Honorable Bill Clayton - Page 7 

A reasonable and expeditious procedure, whereby 

requests are directed to individual members to whom 

the information relates, cannot be said as a matter of 

law to violate the provisions of the Open Records Act. 

Very truly yours, 

APPROVED: 

Attorney General of Texas 

C. ROBERT HEATH, Chairman 

Opinion Committee 

jwb 

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