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 

714 Jackson, Suite 700 

Dallas, TX. 75202-4508 

2141742-S944 

4824 Alberta Ave., Suite 160 

El Paso, TX. 79905.2793 

9151533.3494 

F, 

291 Texas, Suite 700 

rtouston. TX. 77002-3111 

713/223-5886 

806 Broadway, Suite 312 

Lubbock. TX. 79401-3479 

9061747-5238 

4304 N. Tenth, Suite S 

McAllen, TX. 79501~1685 

512632-4547 

200 Main Plaza, suite 400 

San Antonio. TX. 78205.2797 

512/225-4191 

An Equal Opportunity/ 

Affirmative Action Employer 

The Attorney General of Texas 

December 30, 1983 

Mr. Kenneth H. Ashworth 

commissioner 

Coordinating Board 

Texas College and University System 

P. 0. Box 12788, Capitol Station 

Austin, Texas 78711 

Opinion No. JM-119 

I&: Whether the tape of an 

interview is excepted from 

disclosure under the Open 

Records Act 

Dear Mr. Ashworth: 

A member of the board of trustees of the Alamo Community College 

District has asked the chancellor of the district to furnish him with 

the following information: 

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 

trustee and as chairman of the board'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 

Records Act, article 6252-17a, V.T.C.S. The question in this instance 

is whether the chancellor must grant the trustee's request. 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 to 9 requestor. including 

a district trustee, records maintained by the community college 

district when he concludes that those records are within an exception 

in the Open Records Act. We disagree. This argument erroneously 

assumes that a trustee's right of access to information maintained by 

the district is limited to that of a member of the general public. 

p. 501 
Mr. Kenneth H. Ashworth - Page 2 (JM-119) 

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 

administrative officer of the novernmental bodv shall be the custodian 

of public records, [who] shall-be responsible for the preservation and 

care of the public records of the governmental body." (Emphasis 

added). "Custodian" is defined in Webster's New Collegiate Dictionary 

as "one that guards and protects or maintains" and "one entrusted with 

guarding and keeping property or records . . . ." Webster's New 

Collegiate Dictionary (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 

governmental bodies" (emphasis added), these records must be deemed to 

be at least constructively in the possession and control of the board 

of trustees of the district. When he discharges his duty to preserve 

and guard these records, the custodian merely 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 

"governmental body." 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" 

information and, with certain exceptions, is available to the "public" 

during normal business hours). For the reasons discussed, we conclude 

that when a trustee of a cormsunity college district, acting in his 

official capacity, requests information maintained by the district, he 

is not a member of the "public" for purposes of the Open Records Act. 

On the contrary, he is a member of the board which at least 

constructively maintains all records in the district's possession and 

is charged with the duty of implementing the Act. 

Because such a trustee is not merely a member of the public, 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 governmental body to information in that governmental 

body's possession. Since the governmental body -- 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 that board has an inherent right of 

access to such records, at least when he requests them in his official 

capacity. 

The opposite conclusion would produce absurd results. First, as 

we have noted, the Open Records Act entitles members of the public to 

information maintained by governmental bodies, 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 

College District is responsible for the governance and 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 

records may invoke the Act'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 

discharging his official duties. Without complete access to district 

records, such trustee could not effectively perform his duties. We do 

not believe that those who drafted the Open Records Act intended to 

allow an employee of a governmental body to invoke the Act to keep a 

member of that body from obtaining information in the governmental 

body's possession. 

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 financial transactions of the restaurant management program'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 required disclosure: 

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 state or political 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) 

-7 

subdivisions has determined should be withheld 

from public inspection. 

You advise that all of the requested information has been 

subpoenaed by 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 bring with him the foregoing records. 

This office has consistently held that section 3(a)(3) may be 

invoked where litigation is either pending or reasonably anticipated. 

See, e.g., Open Records Decision No. 331 (1982). We believe that when 

a matter is under investigation by 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) 

authorizes you to deny this reporter's reques 

7 

JIM MATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

Prepared by Jon Bible 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

Jon Bible 

Colin Carl 

Susan Garrison 

Jim Moellinger 

Nancy Sutton 

p. 504