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# TheAttorneyGeneralofTexas

Decemhcr 30, 1983 r

**l4r. Bomr**  **A.**.Poerrtcr lhecutive Director State Pnrchadng 6Gencrul Service8 Comisriou P. 0. Ilox 13047. cepltol Scacloa Opinion No. JM-114
get Coats to pcrrooe requeotlog iaformetioo under **the** Open Records Act. article 62S2-17ar AImtin. Teus 78711

.Dear llr. Poerocer:

Section 9 of the prwidca (8),
,. The ,-~rumcertified V.T.C.S.

open Recorda Act, article 6252-17e. V.T.C.S.,

cost co *v per&n requesting photographic ~nproduCtl00e of public recorda. coaprhed of pagee up to legnl alre &all not be acea8ive. The State I)oard of Control l hll from time to time **determine** the ectu~l coet of ~:scaodard efte reproduction0 and Dhell .periodiully publieh these coot ‘fiyreo for use by egeucier in determining charge* to be medc pursuantcothie Act. I..<
._ : .5~(b.. Chaaea rde'for 

### l cceim:~to“poblic record. caqrtud in 8uy form orb&r: eke8 + to l tendud airod pager or in corptlter record banke. dcroftlm ~rrcordw,~~

or other.Limildr~.ronord ~kmp* 8ptY. *till. i~.bAY*et.-!.opoll ~lt&~o6’;~~~~ th -ucrtoodlau,o&:+he'.recorda kd thd State **Board** of Control, riving due consideretlon to the ,+X'paUeO Involved in providing’the $ublic':records -818 .wery effort coutch theF’clu~aa virh the’ketual **coat.of** providing the**recorda.**
,You:luve l

ekedthe follouing quemtiono roacemi~ thir prwtilm:

1. If l requeocfor. copiii of open recorde requlreo the gwenmental <body to ucillze the uwicw of ice >aployeee to make the copier of etandard l

ized recorde under subuction (A). uy the governmental body include in ice determirutlon of.chargeo *‘charge for that employee’0 timetHr. HomerA. Foerscer - Pege 2 (J&114)

2. If no copies are requested, may the governments1 body cherga for the time of its employment spent In **making** the standard sized records svailsble for review? (TheCollllaLaeionhas not assessed such s cbsrge itself. but baa not tekeo sposition for other governmental bodies.)

3. If the governments1 body must edit out privileged, or excepted, infomtion before making requested copies. maythe governmental body charge for thir editing process? Is it possible to consider that the necessity for editing requested material makes the request one under subsection (b) where acoat of access would be sllowad? (The c~aaion baa considered that subsection (b) applies in such cases. and has suggested during consultations thereunder that such editing costs beincluded as acoat of access.)

4. Whatremedy do requesting parties have in catsea where they are being charged In excess of reproduction coats published bythe c~saion. or vhere the governmental body assesses Its charges under subsection (b) nnd refuses to consult with the comlaaion as required, end where s complaint la raised by the requesting party? (The caPiaalon baa not seen lta role hare to include enforcement in any sense. We have published reproduction costs. as per the attached Texas Register article, andcarry out conaultntiona vith gwarnmantal bodlea atatevide as ve are contacted and as needad.)

, 5. Ins determining a coat of access under .aubaection. -(a) to what extent, if **any. pay**  **a** ~warnaental body include “overhead” chergea?

The-l.anguage.and -1egialetive hlatory of section 9 shed little light on your quaationa. Wemust therefore anaver themin the manner which. In our opinion. maat fully comports vith the legislative intent underlying the Open Records Act. The folloulng vell-establiahad principlea muatguide our 

### l melyaia: (1) the fundsmanta objective of Statutory construction is to nacartain legialativc intent; (2) in deciding howa atetute should be applied, one pay consider the ends which the legielature sought to achieve in enacting it; and (3) s statute should be given a aenaible construction which fscflitates the achievement of its objective
, not one which defeats its purpose. See generally Citizens Bankof Bryan v. First State Bank of Hearne. 580 S.W.Zd344 (Tut. 1979); Snlas v. State. 592 S.W.2d 653 (Tex. Civ. ASP.l4r. homer A. Foerater - Pegs 3 ml-114)

- Austin 1979, novrit). Moreover. atstutes fixlnS official fees are strictly construed against allouinS a fee by impllcatloo. See Moore
v. Sheppard, 192S.W.2d559 (Tea. 1946). --

We will addraaa your second question 1.first. Govenmencal entities maycharSe only those 

### c oato l uthorlr6d by aectiov9. Your second question refers, co “acanderd a&cd records.” vbich lre the Nbjact of aubaectioa (a) of l action

9. Subaactioo (a) only l uthorfzea charges for reproductions of atandard aired records. I(mifeatly, where no reproductloa le mede, no coats are authorized under Nbaection (a).

Your first question doee ass- a reproduction. Subsection (a). however, explicitly 

### l utho~a only the charging of “the actual coat ofstandard size raproductiona.~ To'mmvar yonr first quaetion in **the** affiiutive, we vould have co conclude that the charges for an employee’s tlrc to which you refer are impliedly authoriaed by aubaection (a). Weca+ot. hovaver. reach this conclusion.

Agovernmental 

### l

atlty.employe individuals. and compenaatea them. to aaalat it in discharging its lewful. duties and functlona. Amoog theaa **duties** and functlona~ ia the-.obligatlon to prwldC the public vlth tbet to which it la entitled by law. Uhere the law In queetlon ie the Opeo Records Act; the “duty ” is to prwida informatloo collected, aaaemblad, or mslntalned by the entity to members of the public whorequest it andere legally entitled to It.
NothinS short.. of en upliclt~~dacleration vould convince us that .the.legielatura intended that gwenmental l ntitiaa be eble to Y.mpoae
a separate cbrga co the public **for** the tiu apent bytbelr employees in compiling l

uhaeccion (a) **records** aad uking theml veileble to the puhllc; 4s n&ted,; .agwenmental .mployee.vho prwidae cprtblic records to ~th:public is 

### l irply~~diacharg~~~ona. of his, primmy duties -as a *wenmehtal a@*&. ‘llada paid%~Whe”entityfor’ diachargbig such

+ ‘duties. ,~Abaanterpraa~~~acattitorJ~ auttmrity, we:.dd‘not ‘bellava that entftiea uy iwaffect require ;the pnbiic to r&imburae them for the ttc 

## .apent

by their amployeaa “inpro-Ad* the public ‘tith e aerplca to which*it ,~ia 1eSally ~tltlcd.~.~:~~If~~,the service provided ~bythe entity is required .by law-to be prwfded, va believe that tha coats incurred in~prwidlog the service uatsbe borneby the entity ltaalf. Tba,entity uy pass theee coats l loag to the public only ,if ‘it ia -expree~ly~authorirad codoso.
**\rrtharmorer** section 9(a) mqulrea the Stats PurchaeinS and General .Servlcee Coliaalon **[fomarly** the Board of Control] to determine the “actuel cost of atendard size reproductions.” In our opiaiou, the coats set by the co~lssion under this provision coaprahend employee time in compiling records and msklng them l valtible to the public. The amount vbich the c omlsalon l ata seMr.HomerA. Fozrat~er- Page4 (JM-114)

“actual coats

” normslly exceeds co some degree the coat to anagency of merely msking copies. Webelieve chat a charge for employee time is built into the costs set by the board under section 9(a).

Your third queation~eaaentially l zkavhether it is permlaaible to cberge the public for the tiw spent by governmentrill employees in deleting from requested mstariala those portiona excepted under section 3(a)of the act. Forthe reasons wehave given, weare firmly of the opinion Hut. under the act as presently vrittan, it is lmpermiaaible co charge for cpplo]ree 

## timespent in coz@ling and/or reproducing up-to-standard size documents, which are the subject of aectlon 9(a). We are even more strongly convinced that it Is impermiaaible to charge for employee tin? spent in daletlng excepted material from such documenta. Where employees colpile or reproduce uteriala for l requestor. they are performing a service for that requestor. Therefore, one could argue that if tbe act ehould be construed as permitting s charges for employee time. it should be these chargea, since the expenditure of employee tire directly benefits the requestor. But where the employee time is spent in deleting meterial fromthe requested infomation - vhlch, of course, the gwe-ntal entity is not obligated to do except where section 3(a)(l) InforPstlon .:ia involved .-- it cannot be argued that the raquaator benefits. in any vey from the expenditure of time. To conclude that a governmental body may~charga a requestor for time spent by its ewployeea in urrying out its daciaion to withhold material frcln the requestor is to concludzhat it may charge the requestor for informstlon that he does not get. Under this conclusion, the morethe government decides coxthhold, the more the requestor vi11 have to pay. Wedo not believa this is a reeaonable result.

lha rarining laaue is whetherit. is parmiaaible to charge for employee 

## time.

rpent in deletinf...excepted uteriel -from

## inforution cdraced vithin aubaaction I of~aaction 9. Subsection (b)~.uhich is -quotad .in full.at the outset of thie opinionV doao~!authorisa the charging of certain expmaea involved in “providing the pnblic records ” to which it applies. This aubaactlon was -construed in Rendricka v. Boilrd of Ttiatees of Spring Branch Independent School District,. 525 S.W.Zd930 (Tex. Civ. App. - Rouaton [let Diet.] 1973, vrit ,ref

’d n.r.6.). which. ve note. quite clearly distinguishes between l

ubaactlona (b) and (a) .of section 9 Nd supporta our ~conclusion that “access ” charges are not permitted for up-to-standard sized reproductions. See especially FIendricks. m. at 933, which refers to “the class [of uteriala] for vhich no chargeuy bemade.” a, the rterial embraced in subsection 9(a). (Emphaafa added).

In Hendricks, the requestor sought financial records of the school district covering a seven year period. Hundreds of chouzsnda of records were involved. Before complying with the requezt for these

p. 481Mr.HomerA. Foerster - PageS (311-114)

ic documents, the school district informed the requestor of its Intent co

charge him“a fair andequitable, but sufficient. charge for acceaa co thoae records and documente.” which were maintained In several different locations, including warehouses. microfllmm, and corputer records b.nka. Id. at 931. Tbarequestor sought awrit of m.nd.mua from the dlatric~ourt to compel the school district to grant him
.cceae to the requested records “vfthout requiring him to reimburse the school district for its coats incurred in the retrieving, assimilation and production of thoae records.” Id. The court denied the requestor’s applicatioo. .nd the court of cxl .ppeala affirmed thejudgment.

Indiscussing aubaectlon 9(b), the court of civil appe.18 aald:

This paragraph does not speak of copies of public records; It spanks of charges msde for access to public records and to providing public records. Weconsider that It mthorizea the public body to Dalre a charne for access to public records corresponding-to the actual cost-of -king the records .svail.ble for inspection if the records
are larger than standard size or **if** they are maintained In computer record banks. iicro-film records. or other similar record keeping system.. (JImphasla added).

Id. at 932.
- Inits concluding statement. the court said:

Thesize ofthe fee Is restricted by the provialon requiring thet it 

### l pproximste the ~ctusl coat of preparing the msterlal for inspection.
Id. at 933.
- Ooe of the difficultlea with Hendricks la thst It falls to indlcete exactly vhet vea included in the school district’s ‘acceaa” chargaa. Another is that the court’s atatemente are ambiguous. Statements such .a “.ctu.l cost of making the records avalleble for Inspection” are hardly self-explenatozy. Thus, to determine how Bendricks affects the question before us,wemust construe the court’s language.

-, We amph.alze. just as Rendricka did, th.t subsection (b) of

section 9 peraita certsln “access” charges but that subsection (.) does not. The difference in the approach of these h10subsections to access charges can only be attributed to the difference in their subject mstter. Subsection (s) deals with up-co-• t.ndard size documznts, where.6 subsection (b) epplies to larger-than-standard size documents snd to infomtion stored in computer record banks..

Mr.HomerA. Foerstar - Pzge6 (Jtl-114)

microfilm, and “other similar record keeping systems.” In our opinion, what subsection (b) vss actually intended 

## toauthorize can only be l

navered with these differences firmly in mind.

Unlike a piece of paper containing in~orution, InformsCIon stored in computerbanka, **on**microfilm
, etc.. cannot simply be handed to a requestor. Somathing PUSCbe dons to put the information in a 

### wan*ful form: a computer program must be run and a printout obtained; microfflm records must be reproduced in another form. unless the actual microfilm or a copy thereof is provided; and aimllar operations must be performed where other “aimilsr record keeping ayatama” are used. Webelieve the leglalature’a intent In authorizing
accese charges .for the record. enumerated In subsection (b) zn18thave been to allov Sovernmzntnl entitlea co recover those reproduction coats incurred Inputting lnformstion Incomputer banka. onmicrofilm, etc.. into a form which ten be used by the requestor. Such coats might, for 

### l

xemple, include the coats involved in running the computer
or In reproducing records scored on microfilm: they would not, however, Include time spent by employees in deleting fromthe records chose portions excepted fromrequired disclosure under section 3(a) of the act. 1 Ourconclusion also finds support In section 11of the act. which states:

Abond for paymznt of coats for the preparation of

such public records, or a prepayment In cash of the anticipated coats for the preparation of such records, may be required by the head of the department or agency as a condition precedent to the preparatlon of such record vhere the record la unduly costly and its reproduction would cause undue bardahip to the department or agency if the coats vere not paid. (~haaia added).
This provision. vhich t&lb in tarma of the “preparation ” of public records. quite clearly linka “preparation ” with “reproduction.” thus indicating that the former term should be given a limited cNgtNctlon. Tbia construction is, in our opinion, appropriate for section 9. Coats of “reproduction ” do not, **in our**  view. include employee tiu.

For theee reasons, ve anaver your first three quaationa **in** the negative. Ourdiacuaalon aleo anewara your fifth queatlon.

9he Open Records Act provides no guidance on your fourth question. Inour opinion. the appropriate method to challenge charges msde by governmental bodies is the one utilized in the Hendricks case. Arequeator whofeels thzt he hae been erroneously charged should seekMr.HomerA.Poerater - Page 7 (JM-114)

a wit of undamus to compel the governmental body in question to release the requested materials without those charges. Admittedly eaction 9 Is somevhat amblguoua and la therefore
: subject toavariety of Interpretations. Thus, our conclualona are in large part dlctsted by the caaarand of section 14(d) of the Open Records Act, vbich states thst the act “shall be liberally construed in favor of the granting of any request for InformsCion,” and that of section 1of the act. vbich provides tbat the act “shall be liberally construed vith the viev of carrying out the

. . . declaration of public policy

” set forth therein. Hence the present situation iq one inwhich leglalative clarlficstion might behelpful.

SUMMARY

Agoveramsntal body may not odlnarily charge
records available under the Gpen ecorda Act. for employee time in editzg#!

JIM Attorney General of Texas

mnGREEN Plrat Aaaiatant Attorney General

DAVID**R.** RICDIARDS Rvacutlve Aaaiatant Attorney General Prepared byJonBible Asaiatant Attorney General ’

APPRGVRD: OPIRIGRGcM!ITTgE

Rick Gllpln. Ghelrmsn JonBible Golin Garl. .Suun Garriron JimRoelllnger N~cy Sutton