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DAN MORALES ATTORNEY GENERAL September 12.1991

Honorable John Hannah, Jr. Secretary ofState P.O.Box 12697 Austin, Texas 7871l-2697 Opinion No. DM-41
Re: Whether a person requesting records pursuant to the Texas Open Records Act may dictate the media in which public information must be provided and related questions (RQ-46) Dear Mr.Hannah:
You askwhether a requesting party may specifythe form inwhich public information must be provided to the public by the secretary ofstate under the Texas Open Records Act, article 6252-17a,V.T.C.S. Specifically,you advise that you have received a request for information regarding corporations maintained by the secretary ofstate, and the requestor has specified that he wishesthe information to be provided on “print-image” nine track tape. You ask whether the information must be provided in the form requested.I You characterize your request as a request for an open records decision under section 7 of the Open Records Act. However, asyou do not dispute the public availability ofany requested information under section 3(a) of that act, we are responding to your questions pursuant to chapter 402ofthe Government Code.* Nine track tape is computer readable magnetic tape used for the.storage or

‘You also ask, should we conclude that the print-image tic track tapes most be provided, for a determination of the charges that may be assessed for the tapes. Additionally, you ask whether the Open Records Act or sections 405.018 and 405.031 of the Government Coda govern access to the requested information.’ As will be seen, we fmd tbat the print-image tapes need not be released. We believe this obviates the need to respond to your additional inquiries.
?Section 7 of the Open Records Act drovides tbat if a governmental body has received a request for information which it believes to be within an exception to required public disclosure stated in section 3(a) of the act, and ifthere has been DO prior determination that the information falls within an exception, it mlLStrequest a decision from the attorney general to determine whether the infomatioo is within that exception. Consequently, decisions under section 7 are limited to comideratioos necessary for detemdniag whether information may be withheld from public diszlosure under section 3(a).

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Nine track tape is computer readable magnetic tape used for the storage or transfer of information. In this instance, you advise that by use of the modifier

“print-image”,the requestor means that he wishes to receive a nine track tape that includes coded formatting instructions that will facilitate the conversion of the information on the tape to microfiche. You advise that these formatting instructions are not directly relevant to the information on the tape but instruct the computer to arrange the information for printing directly from magnetic tape onto microfiche. These formatting instructions were supplied to the secretary of state by the vendor who converts the information onto microfiche pursuant to state contract. Secretary of state employees then prepared a program that enables the instructions to be added to the nine track tape supplied to the vendor for conversion to microfiche. You advise that the print-image tapes are produced periodically for transmission to the vendor. When the vendor has completed use ofthistape, it isreused by the secretary ofstate’s office for other purposes. You do not produce or maintain “printimage”tapes except asnecessary forconversion tomicrofiche.
You advise that the information regarding corporations is~ currently made available to the public by the secretary of state in seven different ways, to wit: (1) microfilm, (2) microfiche, (3) magnetic tape, (4) on-line access as provided for in section 405.018 ofthe Government Code, (5) responses to inquiries over the telephone, (6)purchase or inspection ofcopies of~original records, and (7)use ofpublic access terminals. You stand willing to provide .accessto the requestor in any of these ways. InAttorney GeneraI Opinion DM-30 (1991),weconsidered whether a county clerk mustprovide duplicate microfilm ofcounty real estate records forpurchase by the public. That opinion concluded that while a county clerk may provide such duplicate microfilm, the law does not impose a duty to do so. Attorney General Opinion DM-30, citing section 9(c) of the Open Records Act, reasoned that the Open Records Act requires governmental bodies to provide “suitable”copies. The opinion stated: What form of copies may be ‘suitable’ could vary

depending upon the nature of the requested information. While it is not possible or necessary here to speculate upon every circumstance in which a suitable copy might consist of

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some form otherthan an ordinary paper reproduction, we can point, for example, torecords onvideotape or audiotape where apaper transcription wouldbe aninadequate substitute forthe medium in which the information was originally recorded. With respect to deed records, however, it seems an ordinary paper copy would, in every case, be suitable to convey the information contained in the record to any member of the public. Attorney General Opinion DM-30at 3: Certainly, the seven methods currently used bythe secretary ofstate for providingpublic access to corporation records are “suitable”for conveyingthe information inthose records to the public. Wefindnothing with respect to the information requested in this instance that would, as a matter of law, require the secretary of state to add an additional medium or format to its current repertory. SeeAttorney General Opinion JM-672 (1987); Gpen Records Decision No. 65 (1975). Furthermore, under the factsyou present, the mediumisin fact available to the requestor. Essentially then’what this requestor is seeking is the formatting instructions that allowconversion ofthe tape tomicrofiche.
In Gpen Records Decision No. 581 (1990), this office considered the availability ofcomputer programs used forthe maintenance, manipulation, orprotection ofpublicproperty. In that open records decision, itwasconcluded that where information has no significance other than the maintenance, manipulation, or protection of public’property, it is not the kind of information made public by the Gpen Records Act. The only difference in the magnetic tapes desired by the requestor and the magnetic tapes that you routinely sell is the inclusion of the print-image formatting instructions. These formatting codes are not necessary to-the understanding of the ,information provided on magnetic tape and have no significance other than their use as a tool for manipulating the information to facilitate the production ofcomputer-output microfiche.4 Accordingly, we think that these format3You supply information on nine track magnetic tape, aad the magnetic tapes that are currently available are prtided to purchasers with all the information necessary to tied and extract the information “fields”within the tape.
4We note that the maaipulation of the data resulting from the print-image fonnattieg instructions isevident from the fiche themselves, which are available to the public.

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ting codes are not “information” independently subject to the Open Records Act. Weconclude that the secretary ofstate isin compliance with the Open Records Act without making corporation information available in an additional format or medium to those currently offered.
SUMMARY The seven methods currently used by the secretary of state for providing public access to corporation records are.“suitable”for conveying the information in those records to the public. Formatting codes are not

“information” independently subject to the Open Records Act. The secretary of state is in compliance withthe Open Records Actwithout making corporation information available in an additional format or medium to those currently offered.

DAN MORALES Attorney General ofTexas WILLPRYOR First Assistant Attorney General

- MARYKELLER ExecutiveAssistant Attorney General JUDGE ZOLLlE STEAKLEY (Ret.) SpecialAssistant Attorney General RENEAHICKS SpecialAssistant Attorney General MADELEINE B.JOHNSON Chair, Opinion Committee Prepared byJohn Steiner AssistantAttorney General

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