JIM MAlTOX 

Ammey Qeneral 

714J~suHom 

Dalle%l% 7wo2406 

2l4!742d644 

wal1au*&&m 

nouma. lx 770624111 

7lThe Attorney General of Texas 

Decemhcr 30, 1983 r 

l4r. Bomr A. .Poerrtcr 

lhecutive Director 

State Pnrchadng 6 Gencrul 

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 

pursuant co thie 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 co utch theF’clu~aa virh the’ketual 

coat.of providing the recorda. 

,You:luve l eked the follouing quemtiono roacemi~ thir prwtilm: 

1. If l r eq ueoc for. 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 timet 
Hr. Homer A. 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? (The CollllaLaeion has 

not assessed such s cbsrge itself. but baa not 

tekeo s position for other governmental bodies.) 

3. If the governments1 body must edit out 

privileged, or excepted, infomtion before making 

requested copies. may the 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 a coat 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 

be included as a coat of access.) 

4. What remedy do requesting parties have in 

catsea where they are being charged In excess of 

reproduction coats published by the 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, and carry 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. We must therefore anaver them in the manner 

which. In our opinion. maat fully comports vith the legislative intent 

underlying the Open Records Act. The folloulng vell-establiahad 

principlea muat guide our l melyaia: (1) the fundsmanta objective of 

Statutory construction is to nacartain legialativc intent; (2) in 

deciding how a 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 Bank of Bryan v. First State Bank of Hearne. 580 

S.W.Zd 344 (Tut. 1979); Snlas v. State. 592 S.W.2d 653 (Tex. Civ. ASP. 
l4r. homer A. Foerater - Pegs 3 ml-114) 

- Austin 1979, no vrit). Moreover. atstutes fixlnS official fees are 

strictly construed against allouinS a fee by impllcatloo. See Moore 

v. Sheppard, 192 S.W.2d 559 (Tea. 1946). 

-- 

We will addraaa your second question 1. first. Govenmencal 

entities may charSe only those c o a tl uthorlr6d o by aectiov9. Your 

second question refers, co “acanderd a&cd records.” vbich l re the 

Nbjact of aubaectioa (a) of l a c tio n 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 

of standard 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). We ca+ot. hovaver. reach this conclusion. 

A governmental 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 who request it and ere 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 by tbelr employees 

in compiling l uhaeccion (a) records aad uking them l veileble to the 

puhllc; 4s n&ted,; .a gwenmental .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. ,~Abaant erpraa~~~acattitorJ~ auttmrity, we :.dd ‘not ‘bellava that 

entftiea uy iwaffect require ;the pnbiic to r&imburae them for the 

ttc .apent by their amployeaa “in pro-Ad* the public ‘tith e aerplca 

to which *it ,~ia 1eSally ~tltlcd.~.~:~~If~~,the service provided ~by the 

entity is required .by law -to be prwfded, va believe that tha coats 

incurred in~prwidlog the service uatsbe borne by the entity ltaalf. 

Tba ,entity uy pass theee coats l loag to the public only ,if ‘it ia 

-expree~ly~authorirad co do so. 

\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 o mlsa lo n lata se 
Mr. Homer A. Fozrat~er - Page 4 (JM-114) 

“actual coats” normslly exceeds co some degree the coat to an agency 

of merely msking copies. We believe chat a charge for employee time 

is built into the costs set by the board under section 9(a). 

Your third queation~eaaentially l zka vhether it is permlaaible to 

cberge the public for the tiw spent by governmen trill employees in 

deleting from requested mstariala those portiona excepted under 

section 3(a) of the act. For the reasons we have given, we are firmly 

of the opinion Hut. under the act as presently vrittan, it is 

lmpermiaaible co charge for cpplo]ree time spent 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 from the 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 more the governmen t decides coxthhold, the more the 

requestor vi11 have to pay. We do not believa this is a reeaonable 

result. 

lha rarining laaue is whether it. 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.Zd 930 (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 charge uy be made.” 

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. 481 
Mr. Homer A. Foerster - Page S (311-114) 

ic 

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

charge him “a fair and equitable, 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. Tba requestor sought a writ 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 

the judgment. 

In discussing 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. 

We consider 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. 

- 

In its concluding statement. the court said: 

The size of the 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 , we must 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 h10 subsections 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. Homer A. Foerstar - Pzge 6 (Jtl-114) 

microfilm, and “other similar record keeping systems.” In our 

opinion, what subsection (b) vss actually intended to authorize can 

only be l navered with these differences firmly in mind. 

Unlike a piece of paper containing in~orution, InformsCIon 

stored in computer banka, on microfilm , etc.. cannot simply be handed 

to a requestor. Somathing PUSC be 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. We believe the leglalature’a intent In authorizing 

accese charges .for the record. enumerated In subsection (b) zn18t have 

been to allov Sovernmzntnl entitlea co recover those reproduction 

coats incurred In putting lnformstion In computer banka. on microfilm, 

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 from the records 

chose portions excepted from required disclosure under section 3(a) of 

the act. 

1 

Our conclusion also finds support In section 11 of the act. which 

states: 

A bond 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. Our diacuaalon aleo anewara your fifth queatlon. 

9he Open Records Act provides no guidance on your fourth 

question. In our opinion. the appropriate method to challenge charges 

msde by governmental bodies is the one utilized in the Hendricks case. 

A requeator who feels thzt he hae been erroneously charged should seek 
Mr. Homer A. 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 to a variety 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 1 of 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 

in which leglalative clarlficstion might be helpful. 

SUMMARY 

A goveramsntal body may not o dlnarily 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 by Jon Bible 

Asaiatant Attorney General ’ 

APPRGVRD: 

OPIRIGR GcM!ITTgE 

Rick Gllpln. Ghelrmsn 

Jon Bible 

Golin Garl. 

.Suun Garriron 

Jim Roelllnger 

N~cy Sutton