JIM MAl-rOX 

Attorney General 

supreme cowl BuildIn 

P. 0. BOX 12549 

Austin. TX. 79711. 2549 

512l4752501 

Telex 9101874.1367 

Telecopier 512I475-0288 

714 Jackam. Suite 700 

Dallas, TX. 75202.4506 

2141742-9944 

4S24 Alberta Ave.. Suite 1SO 

El Paw. TX. 79905-2793 

915/m3*84 

1001 Texas. Suite 700 

Houston. TX. 77002-3111 

713mM9S9 

806 Broadway. Suite 312 

Lubbock. TX. 79401-3479 

806/747-5239 

4309 N. Tenth. Suite S 

McAllen. TX. 7S501~16SS 

5121682.4547 

200 Main Plaza. Suite 409 

San Antonio. TX. 792052797 

512f225-4191 

An Equal Opportunityl 

Affirmative Action E~plov~- 

The Attornwy General of Texas 

Mcember 31, 1984 

Honorable Bob Bullock 

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 and the Open Records Act 

Dear Mr. Bullock: 

YOU inquire about the costs you may recover during an adminlstrative hearing when a 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 may be made under either statute. 

You also wish clarification of Attorney General Opinion JM-114 (1983). 

relating to charges for records under the Open Records Act. We have 

attempted to clerj.fy this opinion in our answers to your specific 

questions. Eowever, we cannot maks au exhaustive statement about 

charges under the Open Records Act or about the application of JM-114 

to facts not raised in your request. 

Your first and second questioos are as follows: 

1. fi~y a petitioner be charged for the cost 

and production of records requested in a discovery 

motion during an administrative hearing? 

2. I:: the answer is ‘yes’ to question number 

(1). may the 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 an administrative proceeding. 

Section 14a providss:; in part: 

Sec. 14a. (a) Upon motion of any party 

showing good cause therefor and upon notice to all 

other parties, and subject 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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Ronorable Bob Bullock - Page 2 (34-292) 

agency in which an action is pending may order any 

party: 

(1) to produce and permit the inspection and 

copying or photographing by or on beha1.f of the 

moving party any of-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 may be material 

to any matter involved in the action. 

(b) The order shall specify the time, place, 

and manner of maki~S the Inspection, measurement, 

or survey and tnktng the copies and photographs 

rescribe c:u.ch terms and conditions 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 167 of 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 a judicial order r,?quiring the party seeking discovery to 

pay some of the expenses incurred in obtaining discoverable materials. 

American Standard Inc. v. Bendix Corp., 71 FRD 443 (W.D. No. 1976). 

A party’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 may impose. 

p. 1300 
Honorable Bob Bullock - Page 3 (J&292) 

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, December 5, 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 1.86b by reference. The text of this rule 

continues to be part of section 14a despite the revisions to the Texas 

Rules of Civil Piocedure. !iee guinlan -v. Eouston 6 T. 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, on motion of a party, to exclude 

certain matters from the 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 may m&e any other order which justice 

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. Ta lo?, 640 S.W.Zd 704 (Tex. Civ. App. - Eouston 

------% 1982. no writ When a request for records under section 

14a appears burdensome and costly. the respondent may seek an order 

imposing just conditions OII discovery 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 payment may be included in the order. 

Your third 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 an administrative 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 

and copy information is subject to a showing of good cause, notice to 

other parties, and limitat~.c~ns like those found in Rule lS6b of the 
Honorable Bob Bullock - Page 4 (-292) 

Rules of Civil Procedure. Id. Thus, only a narrowly defined class of 

persons may use the discove~procedurce set out in section 140; the 

records must be material to t’he administrative action, end the agency 

applies statutory standards 1x1 fesolvc disputes on the availability of 

particular records. 

The Open Records Act entltles “all persons” to access and copies 

of public records held by governmental bodies. V.T.C.S. art. 

6252-17a. 151-4. The applicmt for public information is not required 

to explain why he wants part::t:ular records. Section 3(a) excepts from 

the requirement of public d:lmlosure eighteen specific categories of 

Information; however, if a governmental body beliwes 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 14a of the Administrative 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 Open Records 

Act might be available under section 14a of article 6252-13a, 

V.T.C.S., to a party to IKL administretlve proceeding. 

Records Decision No. 

Cf. open 

108 (1975) (information should be sought through 

discovery, not Open Records ,Lct). 

Each statute has its mm distinct procedural requirements for 

initiating and resolving 8. request for records. Even on those 

occasions when a participant in an administrative 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). 

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Your fourth question is tm follows: 

4. Under eitht,r the Administrative Procedure 

Act or the Open Ilocords Act, may we charge for 

personnel time required to develop a search 

pattern for and sea.cch out the records, to arrange 

them in a systemal:ic order not maintained in our 

files, or to expurgate them? 

We determined in answer ‘to your first and second questions that a 

party requested to produm! records under section 14a’ of the 

Administrative Procedure I.c t may seek an order requiring the 

petitioner to pay the costs aof production. The determination of the 

reasonable costs of productlax is a matter for that order. 

p. 1302 
Ronorablc Bob Bullock - Page 31 (JM-292) 

The Open Records Act does not require you to arrange records In 

an order not maintained in yo~ur files. See Open Records 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 he wants. See Open Records Decision 

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No. 243 (1980). 

Charges under the Open Records Act are governed by section 9 of 

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 on pages up to legal size. 

authorizes charges only for %ose records which are copied. The State 

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) Maximum charges for office machine copies 

of pages up to leg;%:1 size (applicable to Paragraph 

(a) of Section 9). The charges established hereunder are the uaxi~nrm charges allowable and should 

not be exacted from requesting parties unless 

costs are actually at that level. Do not 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 

15 cents per p;s8e copied, except as described 

in Paragraph 1 DE this section. 

(3) No char(;e for access under Paragraph 

(a) of Section 9. In answering requests under 

Paragraph (a) of Section 9. an agency may not 

charge for the y:ime spent by its personnel in 

providing accejcb to records pursuant to the 

request. (Emphasis added). 

Document No. 770460, issued January 14, 1977. 2 Tex. 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 same way. See 

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n. 17n1 
Ronorable Bob Bullock - Page 6 (JM-292) 

Documant No. 770460(a)(l), (3:1, supra. No extra charge may be 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 and deleting information 

excepted from public disclosure might be accomplished in one program 

and therefore would not be separable into “access” or “editing.” 

In addition, the Texas Supreme Court, 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 and redaction of 

the files necess:ltated by Section 3(a) (1). 

Section 9 of the Acr: makes it clear that all costs 

incurred in providtng access to public records 

must be borne by the requesting party. 

Industrial Foundation of the !iouth v. Texas Industrial Accident Board, 

540 S.W.2d 668, 687 (Tex. 1976). cert. denied, 430 U.S. 391 (1977). 

The Supreme Court language de1J.t with computerized information subject 

to charges for access under ‘9(b). The redaction of the files was 

necessitated by section 3(a)(l). which excepts from public disclosure 

“information deemed confidential by law. either Constitutional, 

statutory, or by judicial 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); Otien Records 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, where necessary, devc:lopment of s search pattern. 

SUMMARY 

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Section 14a of ztrticle 6252-138, V.T.C.S.. the 

Administrative Proce,iure Act, does not impose upon 

petitioner the charges for producing records. 

Bovever, the respo~nding party may request an 

administrative ormier placing the costs of 
. 

Eonorebla Bob Bullock - Page 7 (JM-292) 

production ou petitioner. A request for records 

under article 6252-13e. V.T.C.S.. is to be treated 

differently from a request 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 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepsred by Susan L. Garrisor, 

Assistant Attorney General 

APPROVRD: 

OPINION COMMITTEE 

Rick Gilpin. Chairman 

Jon Bible 

Colin Carl 

Susan Garrison 

Tony Guillory 

Jim Moellinger 

Jennifer Riggs 

Nancy Sutton 

Very truly you I 4 d ., 

JIM MATTOX 

Attorney General of Texas