JIM MATTOX Attorney General

Supreme Court Building P. 0. Box 12546 Austin, TX. 76711. 2546 5121475-2501 Telex 9101674-1367 Telecopier 512/475-02&Y

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An Equal Opportunity\ Affirmative Action Employer 

# The Attorney General of Texas

November 10, 1983

HonorableMike Driscoll Harris CountyAttorney 1001Preston, Suite 634 Houston,Texas 77002 DearMr. Driscoll: OpinionNo. JM-95 Re: Duplicate microfilm copies of realproperty records

You have asked the followingquestions:

1. Is the county clerk required to provide duplicate microfilm real property records to a personupon his request for same? 2. If you answer the first question in the affirmative,what is the proper fee for same if certified? Ifnot certified? 3. If the county clerk is required to duplicatemicrofilm copies to the public, clerk limitwho may receive the copiesand thereof? provide can the the use

We conclude that a county clerk must provide duplicate microfilm copies of realproperty records topersons requestingthe sameandmay not limit who may receive such copies or the use thereof. By "microfilmcopies"we mean duplicates in microfilm form of the actual microfilm. We conclude that appropriate fees for certifiedduplicate microfilm copies are establishedby article 3930(3), V.T.C.S.,while the proper fees for such non-certified copies should be determined under section 9(b) of article 6252-17a,V.T.C.S. The general statutegoverning the availabilityof records to the publLc is the Open Records Act, article 6252-17a, V.T.C.S. Section 3(a) says that, subject to certain specifiedexceptions,



### Iall1 information collected, assembled, or maintained by governmentalbodies pursuant to law or ordinanceor in connectionwith the transaction of official business is public information and available to the public during normal business hours of any governmentalbody . . . Section 2(2) definespublic recordsas

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the portion of all documents, writings, letters, memoranda, or other written, printed, typed, copied, or developed materials which contains public information. Section 9(b) refers to

public records . . . in computer record banks, microfilm records,or other similarrecordkeeping systems . . , We have consistentlyheld "that the form inwhich information is stored does not determine its availability." Open Records Decision No. 364 (1983). In Open Records DecisionNo. 352 (1982). this office concluded that a computer tape (1) is "public information" under section 3(a) of the act, which provides that "[a]11 information collected . . . or maintained by governmental bodies
. . . in connection with the transaction of official business is public information"; and (2) constitutes "developed materials" within the meaning of section 2(2) of the act, which defines "public records" as "the portion of all . . . developed materials which contains public information." See generallyOpenRecordsDecisionNo. 32 (1974) (tape recording of open meeting of governmentalagency subject to required disclosure). See also Open Records Decision Nos. 182 (1977); 65 (1975). Microfilm records should be treated no differently than computer tapes and "are, therefore, disclosure under the act." notper se excepted from required Open Records Decision No. 352 (1982). Consequently, we have no doubt that the availability of duplicate microfilm copies of real property records from the county clerk's office is controlledby the Open Records Act and that such must be provided to thepublicpursuant to sections4, 5(b), and 14(a). However, section 9(d) of article 6252-17a, states that "[tlhe charges for copiesmade in
. . . the county clerk'soffice shallbe as otherwiseprovidedby law." Article 3930 sets out a fee schedule for various services of county clerks. It reads in pertinent part as follows: (3) For issuing each certified copy (except

certified copy of nap records and condominium records),notice, statement,licensewhere the fee for issuing the license is not specifically provided by statute. or any other instrument, document, or paper authorized, permitted, or required, to be issued by said county clerk or county recorder, except as otherwise provided in Section 1, of thisAct: For each page, or part of a page, a fee, to be paid in cash at the time each order is placed, of...........................................$l.OO -.

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plus $1.00 for the county clerk's certificate.

. . . . (10) For such other duties prescribed, authorized, and/or permitted by the Legislature for which no fee is set by this Act, reasonable fees shallbe charged. Article 1941(a),section 3, states:

The microfilm recordsprovided for in thisAct shall be deemed to be original records for all purposes and shall.be so accepted by all courts and administrative agencies of this State; and transcripts, exemplifications, copies, or reproductionson paper or on film of an image or images of said microfilm records,when issued and certified to by said clerk, shall be deemed to be certifiedcopiesof the originals for allpurposes and shall be so accepted by all courts and administrativeagenciesof this State. When these two statutes are read together, it is apparent that the proper fee for a certified copy of a duplicate microfilm of real property records is $1.00 for the county clerk's certificate to each instrument, etc., plus $1.00 for each page or part thereof. Since your office informsus that each frame of the county clerk'smicrofilm records contains s representation of only one page of the original instrument,etc., our conclusionis limited to this fact situation. With regard to non-certified copies for which no fee is specifically set, "reasonable fees" are to be charged. since no further guidance concerning the standard in article 3930(10) is provided, it is appropriate to Look to the Open Records Act as was done in Attorney General Opinion W-163 (1980). Section 9(b) of article 6252-17~1

states that [clharges made for access to public records comprised in any form other than up to standard sizedpages or in computerrecordbanks,microfilm records, or other similar record keeping systems, shall be set upon consultation between the custodian of the records and the State Board of Control, giving due considerationto the expenses involved in providing the public records making every effort to match the chargeswith the actual cost of providing the records.

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We believe that this standardshouldbe appliedby the county clerk in supplying copies of non-certified copies. A custodian of records should consult with the State Purchasing and General Services Commission to establish the appropriate charges to be made to the requestingparty for non-certifiedcopies. See Open Records Decision - No. 65 (1975). To the extent that this op1,nionconflictswith Attorney General Opinion C-75 (1963),the latter is overruled. sUMMARY The Open Records Act requires the county clerk to provide duplicate microfilm copies of real property recordswithout limitingwho may receive them or the use to which such records are put. The county clerk must charge the fees set cut in article 393G(3),V.T.C.S., for certified copiesof such microfilm copies. The county clerk should comply with section 9(b) of article 6252-17a, V.T.C.S., in determining the "reasonable fees" authorized by article 3930(10), V.T.C.S., for non-certified microfilm copies of real property records. .

JIM MATTOX AttorneyGeneral of Texas TOM GREEN FirstAssistantAttorneyGeneral DAVID R. RICHARDS ExecutiveAssistantAttorneyGeneral Preparedby Colin Carl AssistantAttorneyGeneral APPROVED: OPINION COMMITTEE Rick Gilpin.Chairman 3on Bible David Brooks Colin Carla SusanGarrison JimMoellinger Nancy Sutton BruceYoungblood

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