Case Information

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The Attorney General of Texas February 25. 1986 JIM MAlTOX

Attorney General Hr. Uomsr A. Foerster Opinion PO. .I&446

Supreme Court BulldIn Executive Director P. 0. BOX 12549 State Purchasing 6 IGeneral Ret Accessibility under the Austin, TX. 79711.2549 512/475-2501 Services Coxmiss:Lon Taxas Open Records Act of Texss Telex 9101974.1357 P. 0. Box 13047, Capitol Station Supram Court telephone records Telecopier 512/475-0286 Austin, Texas 781’11 Dear Mr. Foerster: 714 Jackson. Suite 700 Dallas, TX. 752024503 214i742-9944 You ask whethler it is your duty under the Open Records Pet,

article 6252-17a, V.T.C.S., to comply with the demand of a newspaper reporter that your office provide him "the records you have available 4S24 Alberta Ave., Suite 180 of long-distance :a118 made from telephone numbers assigned to the El Paso. TX. 799052793 9151533-3454 state Supreme Court .” You stste:

1001 Texas, Sulte 700 HO”*tm. TX. 770029111 The State Purchasing and General Services Com- 713l2235886 mission, pursuant to its responsibilities under article Ill of article 601b. V.T.C.S., operates the 808 Broadway, Suite 312 Statswide Telecommunications System (STS), and th= Lubbock, TX. 79401.3479 Capitol Area Centrex System here in the Capitcl SOSi747.5239 Complex. In carrying out these duties the CCT:- mission starves the suprsme court as well as other 4209 N. Tenth. SultO S state agencies and governmental bodies encompassed MeAllen. TX. 7850%IS95 by secton 10.07 of article 601b. B. The 51aS82.4547 records accumulated by the commission support

its billing procedures are derived basically from 200 Main PIUS. suite 4w data submitted by Southwestern Bell. San Anlonlo, TX. 782052797 ^{[51212254191]}

Your office also a&ises: An Equal Opportunity/ Affirmatlvs Actlon Employer We do not claim custody of agency records in our

computer banks where we perform computer opera- tions rlaSsrding these records. (See our Rule section 119.1 and Attorney General Opinion H-621 (1975)). Open Records requests for such records have to be filed with the individual agency. It sesms . . . that our telephone records are much *2 Mr. Homer A. Foerster - Psg;e 2 (JM-446)

the same, and that requests for those records should not come 1.c us.

In our opinion, the State Purchasing and General Services Commission is properly to tsc considered the agent of the Texas Supreme Court in collecting the records and abstracting information from them, end their disposition is the prerogative cf the court, not of the commission. The informatic~n, as a record of the court, does not come within the scope of the Open Records Act, because by the express provision of section 2(1)(G) of article 6252-17a, V.T.C.S., the judiciary is not included o!i,thin the definition of governmental bodies to which the act applies. Of course, court may make the informa- tion public, if it chooses, without reference to the act.

Open Records Act exceptions or exclusions applicable to records in the hands of the princip,al also apply to such records in the hands of the agent. Open Records Decision Nos. 398 (1983); 411 (1984). stated that s district ;tttorney held grand jury records ae the custodian or agent of the grand jury (a part of the judiciary within the meaning of article 6252,-17a) , thus preventing public accees under the Open Records Act. In Optn Records Decision Xo. 401 (1983), it was determined that government-Igenerated computer tapes in the posses&ion of one agency are protected from disclosure by that agency unless the programs "are of a type not protected frcm disclosure in the hands of the forwarding governmental body." And in Open Records Decision E'o. 287 (19El), the Dallas I'olice Department successfully asserted a section 3(a)(ll) exception ‘to the disclosure of material psrsed it by a private agency with which the Texas Department of l&man Resources had contracted, because receiving it from the private agency was the equivalent of receiving i!: from the DRR in whose hands it would be confidential.

It is well established that confidential material can be transferred betwean state agencies without losing its confidential character under the Open Records Act. See Attorney General Opinions H-917 (1976) (files transferred to StateArchives); B-836 (1976) (Air Control Board infonration disclosed to state and local agencies but not federal government). :tn our opinion, where the real object of the Open Records Act l xcepticlns is to protect certain interests of a governmental entity such as the judiciary, a physical transfer is not necessary to invoke confidential status for information gathered by one agency for the use end benefit of another agency in who86 hands the material would be protected. Cf. Attorney General Opinions R-683 (1975); R-242 (1974); M-71:) (1970).-

Attorney General Opi~lon JM-119 (1983) discussed the @pen Records Act relationship of the chancellor of a community college district (its chief administrative officer) to the district's board of trustees. Because section 5(a) of the Open Records Act names the

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Mr. Homer A. Foerster - Page 3 (JM-446)

chief administrative officer of s governmental unit ss the custodian of its records for purposes of the Act, the chancellor claimed pcwer to deny a trustee access to district records. The opinion, after quoting portions of sectic1n.s 3(s) and 5(a) of the Open Records Act, declared:

The foregoing provisions establish that, although the custodian of Public records fcr the Alamo Com- munity College Di&trict is responsible for guarding, preserving, and c.a.ring for the district's records, these records sre not within his exclusive posses- sion and control. On the contrary, since the Act talks. in sectlo 3(a), in terms of 'information collected, assembled, or maintsined by governmental bodies' (emphasi& added), these records must be deemed be at least constructively in the posses- sion and control Iof the board of trustees of the district. h?eu h,e discharges his duty to preserve snd guard these records, the custodian merely ects as an agent of the board who is, in effect, charged with the duty of preserving and guarding 'informa- tion . . . maintained by [the board].' Sec. 3(a). Furthermore, the determination of confidentiality is made by the 'goveznmental body.' Sec. 7(a).

Similar conclusions ware reached in Attorney General Opinions R-115 (1973) and E-621 (1975). Both the latter opinions recognized that actual custody and physical ccntrol of records might be in an agent, but that ultimate responsibility for their Open Records Act release or nondisclosure to the public would remain in the govern- meutal body whose records they were. lko later Open Record Decisions overruled aspects of Attorney General Opinion R-115 [Nos. 307, 338 (198211, but they did not ::trach the “agency” question.

Open Records Decision No. 401 (1983) noted that section 4.01(s) of article 601b, V.T.C.S., enacted in 1979. makes the State Purchasing and General Services Comnission "custodian of all public personal Property" and "responsible Ear the proper csre and protection of such property. . . .u (Emphasis added). The term "all public personal property" necessarily embraces all public records, yet no one suggest& that the commission is the, primary custodian of the records of other agencies for purposes of the Open Records Act. It plays a secondary, supportive, staff role or behalf of end for the benefit of other agencies.

The function of tha? State Purchasing and General Services Commission ak an agent for other governmeutal units is seen mo&t clearly in its purchasing operations, but statutory provision& for telecommunications services support that idea, also. They specify

or. Roster A. Foerster - Page 4 (m-446)

that the comiaelon shall p:Lan, establish and manage the ayatero ‘for all state agencies.” (Emphasis added). V.T.C.S. art. 6Or SlO.OZ(a). The comiasion is charged with maintaining ‘records relating to the consolidated telecommunications aystam as necessary to enable the comniaaion to ar.alyze the coat effectfveneas of the system (Ewplu~aia added). Id. 510.03(b). And it is to state agencies.’ Ksignated the agency of the state for obtainjng teleconmunicatio~ services. Id. 810.08. -

In performing its telecommunications responsibilities. the coumiaaion is charged with ,B duty to “fulfill the telecommunications requirements of each stc.te agency. . . .” V.T.C.S. srt. 6Glb. §lO.Ol(b). The billing :tnformation it collects or maintains in accomplishing this purpose should be considered records of the agency served, rather than its OIRL, particularly if ‘the telecommunication: requirements’ of the agenc:r include a measure of confidentiality for such information. Section 10.06(a) of article 601b requires the conmission develop a system of billings and charges which ‘allocates the total stat’s cost to each entity serviced based on proportionate use.” but thL:s does not divest billing information of its character as primarily B record of the erkity billed.

The question here is no’t whether a list of telephone calls can be considered “public iofornuzion” under the Opan Records Act. If the list were the record of a department or agency covered by the act, and if no exception allowed b3, the act applied, clearly it could be so considered. See Opan Records Decision No. 40 (1975). But here we are dealing withrecords of a (department to which the Open Records Act itself does not apply, and the act's specific exceptions (which are relevant only if the act would otherwise make the informatioc public) as well es the act's definxion of "public information,, are therefore not pertinent. Once It has been determined that records sought are records of the judiciary, the Cpen Records Act is no longer coc- trolling.

Of course, not every qency that interacts with the judiciary is the agent of the judiciary. acting for it and on its behalf in collectlug, assembling. or alaintaining information. See Benavidea v. -- Lee, 665 S.W.2d 151 (Tex. .kpp. - San Antonio 1983. nF&it). Nor is zry agency that sometimrci acts as the agent of the judiciary to be considered as always doing s’o. C-are Open Records Decision E’oa. 411 (1984) and 398 (1983) s Attorney General Opinion J’M-266 (1964).

In situation you bave posed, however, we believe the State Purchasing and General Services Conmrission acts as agent for the Texas Supreme Court and that the release of such records is a matter of discretion for the court, not for your agency. The Open Records Act does not apply.

Er. Eomer A. Foerster - Page 5 (JM-446)

SUMMARY The release of telephone records of the Suprema Court of Texas is a matter of discretion for the court, not for the State Purchasing and General Services Comissi~on. which acts as the court's agent in collectjog such information.

JIM HATTOX Attorney General of Texas JACK BIGBTOkXR

First Assistant Attorney Grneral

MARY KELLER

Executive Assistant Attorney General

ROBERT GRAY

Special Assistant Attorney General

RICK GILPIN

Chairman, Opinion Comittec:

Prepared by Bruce Youogblocjd

Assistant Attorney General