JIM MATTOX Attorney General

Supreme Court Building P. 0. BOX 12548 Austin. TX. 78711. 2548 512/47&2501 Telex 910/874~1357 Telecopier 5121475-0266

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An Equal Opportunity/ Affirmative Action Employer 

# The Attorney General of Texas

December 30, 1983

Mr. Kenneth H. Ashworth commissioner CoordinatingBoard Texas College and University System P. 0. Box 12788,Capitol Station Austin, Texas 78711 OpinionNo. JM-119
I&: Whether the tape of an interview is excepted from disclosure under the Open RecordsAct
Dear Mr. Ashworth:
A member of the board of trustees of theAlamo Community College District has asked the chancellor of the district to furnishhim with the followinginformation:

1. Annual letter from the college's general counsel to the college's auditing firm concerning possible liability in pending actions against the college. 2. Transcripts from the business management/ restaurant management audit investigation regarding alleged wrong doing by the program director. The trustee requested this information in his official capacities as trusteeand as chairmanof theboard's audit committee. We understand that the chancellor granted the first request but denied the second, relying upon sections 3(a)(2), 3(a)(3), and 3(a)(ll) of the Open RecordsAct, article 6252-17a,V.T.C.S. The question in this instance iswhether the chancellormust grant the trustee'srequest. We answer in the affirmative. Essentially, the chancellor argues that, as custodian of public records for the Alamo Community College District, see V.T.C.S. art. 6252-17a, 05(a),he may decline to furnish to9 requestor. including a district trustee, records maintained by the community college districtwhen he concludes that those records are within an exception in the Open Records Act. We disagree. This argument erroneously assumes that a trustee'sright of access to informationmaintained by the district is limited to that of a member of the generalpublic.

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Section 3(a) of the Open Records Act provides that "[a]11 information
. . . maintained by governmental bodies
. . . is public infomation
. . . .u (Emphasis added). Section 2(1)(A) of the Act defines "governmental body" as, inter alla, "any board
. . . within the executive or legislative branch of the state government . . . under the direction of one or more elected or appointed members." (Emphasis added). Section 5(a) provides that "[tlhe chief administrativeofficerof the novernmentalbodv shallbe the custodian of public records, [who]shall-beresponsiblefor thepreservation and care of the public records of the governmental body." (Emphasis added). "Custodian"is defined inWebster'sNew CollegiateDictionary as "one that guardsand protectsor maintains"and "one entrustedwith guarding and keeping property or records
. . . ." Webster's New CollegiateDictionary (1981),at 278. The foregoing provisions establish that, although the custodian of public records for the Alamo Community College District is responsible for guarding, preserving, and caring for the district's records, these records are not within his exclusive possession and control. On the contrary, since the Act talks, in section 3(a), in term of "information collected, assembled, or maintained hi governmentalbodies" (emphasisadded), these recordsmust be deemed to be at least constructivelyin the possession and control of the board of trustees of the district. When he dischargeshis duty to preserve and guard these records, the custodianmerely acts as an agent of the board who is, in effect, charged with the duty of preserving and guarding uinformation
. . . maintained by [the board]." Sec. 3(a). Furthermore, the determination of confidentiality is made by the "governmentalbody." Sec. 7(a). -,

The purpose of the Open Records Act is to prescribe the conditions under which members of the general public can obtain information from a governmental body. See V.T.C.S. art. 6252-17a, 53(a) (information maintained by goverGnta1 bodies is "public" informationand,with certain exceptions,is availableto the "public" duringnormalbusinesshours). For the reasonsdiscussed,we conclude that when a trustee of a cormsunitycollege district, acting in his officialcapacity,requests informationmaintainedby the district,he is not a member of the "public" forpurposes of the Open RecordsAct. On the contrary, he is a member of the board which at least constructivelymaintains all records in the district'spossession and is chargedwith the duty of implementingtheAct.
Because such a trustee is not merely a member of thepublic,his request for records in the district's possession cannot, in our opinion, be treated as a request for information under the Open Records Act. In this context, we note that in this instance, the trustee did not request these records under the Act. Concomitantly, the custodian of district records may not invoke the Act to prevent ?

p. 502. .
Mr. Kenneth Il. Ashworth - Page 3 (JM-119)

the trustee from obtaining the requested records. As noted, the Act controls the availability of information to members of the general public as such. It cannot, in our view, control the right of access of a member of a governmentalbody to informationin that governmental body's possession. Since the governmentalbody -- in this instance, the board of trustees of the district -- at least constructively maintains records in the district's possession, we believe it logically follows that a member of thatboard has an inherentright of access to such records,at leastwhen he requests them inhis official capacity. The opposite conclusionwould produce absurd results. First, as we have noted, the Open RecordsAct entitlesmembers of thepublic to informationmaintained by governmentalbodies, unless it is within a section 3(a) exception. It would be ludicrous to conclude that a member of a board which "maintains" information cannot obtain that information. Second, the board of trustees of the Alamo Community CollegeDistrict is responsible for the governanceand control of the district. Educ. Code 0130.082. See Educ. Code 8130.005 (laws pertaining to junior colleges applicable to community college districts). Were we to conclude that the custodian of the district's recordsmay invoke theAct's exceptions to prevent a district trustee from obtaining those records, we would create an anomalous situation in which a district employee could prevent such. trustee from discharginghis official duties. Without complete access to district records, such trustee couldnot effectivelyperform his duties. We do not believe that those who drafted the Open Records Act intended to allow an employee of a governmentalbody to invoke the Act to keep a member of that body from obtaining information in the governmental body'spossession.
You also ask whether the foregoing information and other information must be made available to a reporter from a local television station. Specifically, the reporter has asked for "the complete financialtransactionsof the restaurantmanagementprogram's agency account(s) for the school years 1980-1981, 1981-1982, and 1982-1983." You contend that the requested information is within section 3(a)(3) of the Open Records Act, which excepts the following from requireddisclosure:

information relating to litigation of a criminal or civil nature and settlement negotiations, to which the state or political,subdivision is, or may be, a party, or to which an officer or employee of the stateorpolitical subdivision,as a consequence of his office or employment, is or may be a party, that the attorney general or the respective attorneys of the various political

p. 503. . Mr. Kenneth.H.Ashworth - Page 4 (JM-119)



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subdivisions has determined should be withheld frompublic inspection.
You advise that all of the requested information has been subpoenaedby the Bexar County District Attorney's Office for use in an investigation. You have provided us with a copy of a subpoena duces tecum which cormsanded the district's internal auditor to appear before the grand jury and bringwith him the foregoingrecords. This office has consistently held that section 3(a)(3) may be invokedwhere litigation is either pending or reasonablyanticipated. See, e.g., Open RecordsDecisionNo. 331 (1982). We believe thatwhen a matter is under investigationby the district attorney's office,we may reasonably conclude that that matter may result in litigation. The evidence that you have provided convinces us that in this instance, litigation is "more than mere conjecture." Open Records Decision No. 328 (1982). We therefore conclude that section 3(a)(3) authorizesyou to deny this reporter'sreques7

JIM MATTOX AttorneyGeneral of Texas TOM GREEN FirstAssistantAttorneyGeneral
DAVID R. RICHARDS ExecutiveAssistantAttorneyGeneral Preparedby Jon Bible AssistantAttorneyGeneral
APPROVED: OPINION COMMITTEE Rick Gilpin, Chairman Jon Bible Colin Carl SusanGarrison Jim Moellinger Nancy Sutton

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