JIMMAl-rOX AttorneyGeneral

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An Equal Opportunityl Affirmative Action E~plov~- 

# TheAttornwy General ofTexas

Mcember 31, 1984

Honorable BobBullock Comptroller of Public Atcounts L.B.J. State Office Building Austin, Texas 78774 opinion Ho.JM-292
Re: Costs of copies of records under the Administrative Procedure Act andthe OpenRecords Act
DearMr. Bullock:

YOUinquire about the costs youmayrecover during anadminlstrative hearing whena petitioner requests the production of documents end records. The petitioner has requested the records under section 14a of article 6252-13a, V.T.C.S.. the Administrative Procedure Act. You state that these records would also be subject to article 6252-17a. V.T.C.S., the Texas Open Records Act. Your specific questions inquire tbout charges that maybemadeunder either statute. Youalso wish clarification of Attorney General Opinion JM-114 (1983). relating to charges for records under the OpenRecords Act. Wehave attempted to clerj.fy this opinion in our answers to your specific questions. Eowever, we cannot maks au exhaustive statement about charges under the OpenRecords Act or about the application of JM-114 to facts not raised inyour request.
Your first and second questioos are as follows:

1. fi~y a petitioner be charged for the cost andproduction of records requested in adiscovery motion during anadministrative hearing?
2. I:: the answer is ‘yes’ to question number (1). maythe petitioner be required to either post a bond or pay in advance for the productton of such records?
Section 14a of the Administrative Procedure Act. article 6252-13a. V.T.C.S., governs discovery in anadministrative proceeding. Section 14aprovidss:; in part:

Sec. 14a. (a) Upon motion of any party showing goodcause therefor anduponnotice to all other parties, andsubject to such limitations of the kind .provided in Rule lg6b of the Rules of Civil Pmcedure as the agency may impose, the -.-

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agency in which anaction is pending mayorder any party: (1) to produce andpermit the inspection and copying or photographing by or on beha1.f of the movingparty anyof-the following which are in his possession, custod:r,, or control: any designated documents, papers. books, accounts. letters. photographs, objects, or tang1bl.e things, not privileged, which constitute or contain, or are reasonably calculated to lead to the discovery of, evidence material to any matter involved in the action; and (2) to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing th.e property or any designated object or operation thereon which maybe material to anymatter involved in the action. (b) The order shall specify the time, place, andmannerof maki~Sthe Inspection, measurement, or survey and tnktng the copies and photographs

rescribe c:u.chterms andconditions as are sw%.ed).

. . . . The language of section 14a(s)(l) indicates that petitioner is responsible for duplicating records. Thus, he will pay the costs of copies.
Section 14a does not expressly authorize placing the costs of production on the petitioner. It does, however, provide that the order for production of records “may prescribe such terms and conditions as are just.” V.T.C.S. art. 6252-15, §lba(b). Identical language appears in Rule 167of the Texas Rules of Civil Procedure and similar language appears in Rule 26(c)(2) of the Federal Rules of Civil Procedure. The federal provision has been interpreted to authorize ajudicial order r,?quiring the party seeking discovery to pay someof the expenses incurred in obtaining discoverable materials. American Standard Inc. v. Bendix Corp., 71 FRD443 (W.D.No. 1976).
Aparty’s motion for dixovery under lba(a) is subject to such ljmitations of the kind provided in Rule 186b of t’x Rules of Civil Procedure as the agency mayimpose.

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V.T.C.S. art. 6252-13a. 114(a). Rule lS6b has beeo repealed and its subject matter included in Rule 166b. See Order Adopting Rules of Civil Procedure, December5, 1983. Tex. Ryiv. P. Ann. at XV(Vernon 1984 SUPP. vol. 1). However, section 14a of article 6252-13a, V.T.C.S., incorporated Rule 1.86bby reference. Thetext of this rule continues tobepart of section 14adespite the revisions to the Texas Rules of Civil Piocedure. !ieeguinlan -v. Eouston 6T.C. Railway Co., 34 S.W. 738, 741 (Tex. l&E Falkner v. Allied Finance Co. of Bae citp. 394 S.W.Zd 208 (Tex. Civ. App. - Austin 1965, writ ref ’d n.r.e.).
Rule lS6b authorized the court, onmotion of aparty, to exclude certain matters fromthe inquiry or to provide that secret processes, developments or research r.eed not be disclosed. In addition, it included the following omni~~us provision: [T]he court maym&e anyother order whichjustice requires to protect the party or witness from undue annoyance, embarrasameot. oppression or expense.
Tex. R. Civ. Proc. 186b (Vernon 1976).
Protective orders msde!pursuant to a motion for production of documents are not restricted to the protection of documents from discovery. 114th Dist.] Sobel v. Talo?, 640 S.W.Zd 704 (Tex. Civ. App. - Eouston

------% 1982. nowrit Whenarequest for records under section 14a appears burdensome and costly. the respondent mayseek an order imposing just conditions OIIdiscovery and limiting the scope of the order pursuant to Rule 18151~. Such conditions and limitations may include a requirement that petitioner pay the costs of production. Conditions requiring petitd.oner to post a bond, pay in advance, or otherwise insure paymentmaybe included in the order.

Yourthird question is as follows:

3. Is a request for records under the Administrative Procedure Act to be treated differently from a request for records under the open Records Act? If so. what are the differences? Requests for records under each statute ere to be treated differently. Section 14s of the Administrative Procedure Act authorizes any party to anadministrative action to seek discovery of records in the possession of any other party if the records contain material evidence or information which might lead to such evidence. V.T.C.S. art. 6252-13a. rltin(a)(l). The party’s request to inspect andcopy information is subject to a showing of good cause, notice to other parties, and limitat~.c~ns like those found in Rule lS6b of theHonorable BobBullock - Page 4 (-292)

Rules of Civil Procedure. Id. Thus, only anarrowly defined class of persons mayuse the discove~procedurce set out in section 140; the records mustbe material to t’headministrative action, end the agency applies statutory standards 1x1fesolvc disputes onthe availability of particular records.
TheOpenRecords Act entltles “all persons” to access and copies of public records held by governmental bodies. V.T.C.S. art. 6252-17a. 151-4. Theapplicmt for public information is not required to explain whyhewants part::t:ular records. Section 3(a) excepts from the requirement of public d:lmlosure eighteen specific categories of Information; however, if agovernmental bodybeliwes information need not be disclosed, it must refer its decision to this office for review. Id. 17. We do n’3.t address whether a participant in an administrative proceeding cmld avoid the reach of section 14a by utilizing an open records rc:q,uest as a substitute for discovery. We assume that is a matter to be addressed by a request for an appropriate protective order,
The exceptions from public disclosure in the Open Records Act should not be grafted onto s~~ctlon 14aof theAdministrative Procedure Act. Each statute has a ilI.fferent purpose. The requirements end procedures for gaining access to records under each statute are different. Records not avai:Lable to the public under the OpenRecords Act might be available under section 14a of article 6252-13a, V.T.C.S., to a party to IKLadministretlve proceeding. Records Decision No. Cf. open 108 (1975) (information should be sought through discovery, not OpenRecords ,Lct).
Each statute has its mm distinct procedural requirements for initiating and resolving 8. request for records. Even on those occasions whena participant in anadministrative proceeding requests records under both statutes, it will be Dossible to determine which set of procedures applies ta each request: See Open Records Decision No. 180 (1977). -

Your fourth question is tmfollows:

4. Under eitht,r the Administrative Procedure Act or the Open Ilocords Act, maywe charge for personnel time required to develop a search pattern for andsea.cch out the records, to arrange themin a systemal:ic order not maintained in our files, or to expurgate them?
Wedetermined in answer ‘toyour first andsecond questions that a party requested to produm! records under section 14a’ of the Administrative Procedure I.ct may seek an order requiring the petitioner to pay the costs aofproduction. Thedetermination of the reasonable costs of productlax is amatter for that order.

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TheOpenRecords Act does not require you to arrange records In an order not maintained in yo~urfiles. See OpenRecords Decision No. 145 (1976). If confidentii.1 inforuatiris not Intermingled with public information. you ua:r simply let the requestor examine the originals and locate the records hewants. See OpenRecords Decision - No. 243 (1980). Charges under the OpenRecords Act are governed by section 9of that statute. Attorney Gene::al Opinion JM-114 (1983), which construed this section, provides a prutial answer to your question. Section 9(a). pertaining to photocopies of records onpages upto legal size. authorizes charges only for %ose records which are copied. TheState Purchasing and General SerrLces Commission [formerly the Board of Control] Is required to determine and publish the actual cost of standard-size reproductions. It has Issued the following guidelines:

(a) Maximumcharges for office machine copies of pages upto leg;%:1size (applicable to Paragraph (a) of Section 9). Thecharges established hereunder are theuaxi~nrmcharges allowable andshould not be exacted from requesting parties unless costs are actually at that level. Donot hesitate to charge less for copies if experience reflects a louer cost. (1) Fifty-five cents per request. This charge is estrblished by the board for the ressin that e$ting up the machine and Preparing the records for copying purposes is a cost of reprodui=.

. . , (2) Fifteen cents per page copied. The board has dete:cnined that the actual cost of standard sized reproductions should not exceed 15cents per p;s8e copied, except as described in Paragraph 1DEthis section. (3) No char(;e for access under Paragraph (a) of Section 9. In answering requests under Paragraph (a) of Section 9. an agency maynot charge for they:ime spent by its personnel in providing accejcb to records pursuant to the

(Emphasis added). request.
DocumentNo. 770460, issued January 14, 1977. 2Tex. Reg. 396-97 (Feb. 1, 1977).
Attorney General Opinion m-114 determined that permissible costs for employee time are buili: ,into the costs set under section 9(a). The guidelines promulgated by the State Purchasing and General Services Conmission interpret the cost provision in the sameway. See
-

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Documant No. 770460(a)(l), (3:1, supra. Noextra charge maybe made for the time employees spend taking the documents out of the filing cabinet.
Section 9(b) governs the charges for access to information kept in computer banks, microfilm records. or other similar record keeping systems. Attorney General Dpinion JM-114 concluded that access charges could include the carets of running the computer but not employee time spent **in** daletin portions of the records excepted from required disclosure under section 3(a). However, In a particular case, providing access to pub!.ic information anddeleting information excepted from public disclosure might be accomplished in one program andtherefore would not be separable into “access” or “editing.”
In addition, the Texas SupremeCourt, referring to computerized data which included private information protected from disclosure by section 3(a)(l), stated as follows:

We are aware that the Board may incur substantial costs in its compilation and preparation of the: information, especially in light of the case-b:f-case review andredaction of the files necess:ltated by Section 3(a)(1). Section 9of theAcr:makesit clear that all costs incurred in providtng access to public records mustbe borne by the requesting party.
Industrial Foundation of the !iouthv. Texas Industrial Accident Board, 540 S.W.2d 668, 687 (Tex. 1976). cert. denied, 430U.S. 391 (1977). TheSupremeCourt language de1J.twith computerized information subject to charges for access under ‘9(b). The redaction of the files was necessitated by section 3(a)(l). which excepts frompublic disclosure

“information deemed confidential by law. either Constitutional, statutory, orbyjudicial dec:tsion;” V.T.C.S. art. 6252-17a, 53(a) (1). This section incorporates laws providing for or mandating confidentiality of particular governmental records, and it is not subject to waiver on the same terms as other exceptions to public disclosure under the Open Records Act. See. e.*.. Attorney General Opinions E-427, R-223 (1974); OtienRecords Decision No. 237 (1980). Thus, we believe the Indust.rial Accident Board case requires the
-- requestor to pay the cost of excerpting 3(a)(l) material from information mainteined in c:c,mputer records banks, including, for example, wherenecessary, devc:lopment of s search pattern.
SUMMARY .- Section 14a of ztrticle 6252-138, V.T.C.S.. the Administrative Proce,iure Act, does not imposeupon petitioner the charges for producing records. Bovever, the respo~nding party may request an administrative ormier placing the costs of.

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production ou petitioner. A request for records under article 6252-13e. V.T.C.S.. is to be treated differently fromarequest under article 6252-I7a. each according to the relevant statutory procedures. Under the Open Records Act, article 6252-17a, V.T.C.S.. the governmental body may under some circcrutances exact charges for providing access to records and deleting informatlon subject to section 3(a)(l) of the act.

TOMGRERN First Assistant Attorney General
DAVIDR. RICHARDS Executive Assistant Attorney General
RICKGILPIN Chairman, Opinion Committee Prepsred by SusanL. Garrisor, Assistant Attorney General
APPROVRD: OPINIONCOMMITTEE
Rick Gilpin. Chairman JonBible Colin Carl SusanGarrison TonyGuillory JimMoellinger Jennifer Riggs NancySutton Very truly you I 4 d .,

JIM MATTOX Attorney General of Texas