Case Information
*1 The Attornwy General of Texas Mcember 31, 1984 JIM MAl-rOX
Attorney General Honorable Bob Bullock opinion Ho. JM-292
supreme cowl BuildIn Comptroller Public Atcounts P. 0. BOX 12549 Re: Costs of copies of records L.B.J. State Office Building Austin. TX. 79711. 2549 under the Administrative Procedure Austin, Texas 78774 512l4752501 Telex 9101874.1367 Act and the Open Records Act Telecopier 512I475-0288
Dear Mr. Bullock: 714 Jackam. Suite 700 Dallas, TX. 75202.4506 YOU inquire about the costs you may recover during an adminlstra- 2141742-9944 tive hearing when a petitioner requests the production of documents
end records. The petitioner has requested the records under 6252-13a, V.T.C.S.. the Administrative Procedure Act. 4S24 Alberta Ave.. Suite 1SO You state these records would also be subject to article El Paw. TX. 79905-2793 6252-17a. V.T.C.S., the Texas Open Records Act. Your specific 915/m3*84
questions inquire tbout charges that may be made under either statute. You also wish clarification of Attorney General Opinion JM-114 (1983). 1001 Texas. Suite 700 relating to charges for records under the Open Records Act. We have Houston. TX. 77002-3111 attempted to clerj.fy this opinion in our answers to your specific 713mM9S9 questions. Eowever, we cannot maks au exhaustive statement about charges under the Open Records Act or about the application of JM-114 806 Broadway. Suite 312 to facts not raised in your request. Lubbock. TX. 79401-3479 806/747-5239 Your first and second questioos are as follows: 4309 N. Tenth. Suite S 1. fi~y a petitioner be charged the cost McAllen. TX. 7S501~16SS and production of records requested in a discovery 5121682.4547 motion during an administrative hearing?
200 Main Plaza. Suite 409 2. I:: the answer is ‘yes’ to question number San Antonio. TX. 792052797 (1). may the petitioner be required to either post 512f225-4191 a bond or pay in advance the productton of
such records? An Equal Opportunityl Affirmative Action E~plov~- Section 14a of the Administrative article Act. 6252-13a. V.T.C.S., governs discovery in an administrative proceeding. 14a providss:; in part: (a) Upon motion any party
Sec. 14a. showing good cause therefor and upon notice to all other parties, and subject to such limitations the kind .provided in Rule lg6b of the Rules of Civil Pmcedure as the agency may impose, *2 .- 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 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, books, accounts. letters. papers. 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 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 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 order for production “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 authorize a judicial order r,?quiring the party seeking discovery 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 to such ljmitations of the kind provided
in Rule 186b of t’x Rules of Civil Procedure as the agency may impose.
p. 1300 *3 Honorable Bob Bullock - Page 3 (J&292) Rule lS6b has beeo repealed and its
V.T.C.S. art. 6252-13a. 114(a). in Rule 166b. See Order Adopting Rules of subject matter included Civil Procedure, December 5, 1983. Tex. Ryiv. P. Ann. at XV (Vernon 6252-13a, However, 1984 SUPP. vol. 1). V.T.C.S., incorporated Rule 1.86b by reference. The text of this rule continues to be part 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 documents are not restricted to the protection of documents discovery. Sobel v. Ta lo?, 640 S.W.Zd 704 (Tex. Civ. App. - Eouston 114th Dist.] 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: a request records
3. Is Administrative Act to be treated differently from a request for records under the open Records If so. are Act? what differences? Requests records under each statute ere to be treated differently. 14s of the Administrative Procedure Act authorizes any party to an administrative action to seek discovery 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 inspect and copy information is subject to a showing of good cause, notice other parties, and limitat~.c~ns like those found in Rule lS6b of the *4 Honorable Bob Bullock - Page 4 (-292) Id. Thus, only a narrowly defined class of
Rules of Civil Procedure. 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 particular records.
The Open Records Act entltles “all persons” to access and copies V.T.C.S. art. public records held by governmental bodies. 6252-17a. 151-4. The applicmt for public is not required information Section 3(a) excepts to explain why he wants part::t:ular records.
the requirement of public d:lmlosure eighteen specific categories Information; however, if a governmental body beliwes information need not be disclosed, it must refer its decision 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 for an assume that is a matter to be addressed by a request 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 The requirements end Act. Each statute has a ilI.fferent purpose. procedures for gaining to records under each statute are different. Records not avai:Lable to the public under the Open Records Act might be available under section 6252-13a, V.T.C.S., to a party IKL administretlve proceeding. Cf. open Records Decision No. 108 (1975) (information should be sought through discovery, not Open Records ,Lct).
Each statute has its mm distinct procedural requirements for Even on those initiating and resolving 8. request 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).
Your fourth question is tm follows:
4. Under eitht,r the Administrative Procedure Act or the Open Ilocords Act, may we charge 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! 14a’ of Administrative I.c t may seek an order requiring petitioner to pay the costs aof production. The determination of the reasonable costs of productlax is a matter for that order.
p. 1302 *5 Ronorablc Bob Bullock - Page 31 (JM-292)
The Open Records Act does not require you to arrange records In See Open Records Decision No. an order not maintained in yo~ur files.
145 (1976). If confidentii.1 inforuatiris not Intermingled with you ua:r simply let the requestor examine the public information. originals and locate the records he wants. See Open Records Decision - 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.
9(a). pertaining to photocopies of records on pages up to legal size. The State
authorizes charges only for %ose records which are copied. 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 here- under 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 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 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 accejcb to records pursuant 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
n. 17n1 *6 (JM-292) Ronorable Bob Bullock - Page 6
Documant No. 770460(a)(l), (3:1, supra. No extra charge may be made for the time employees spend taking the documents out of filing the cabinet.
Section 9(b) governs the charges for access to information kept or other similar record keeping in computer banks, microfilm records.
systems. Attorney General Dpinion JM-114 concluded access that charges could include the carets of running the computer but not employee time spent in daletin portions 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 the Board may incur substantial costs in its compilation of the: information, preparation especially in light of the case-b:f-case review and redaction of files necess:ltated by Section 3(a) (1). the Section 9 of the Acr: makes it clear that all costs incurred in providtng to public 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 incorporates laws or mandating confidentiality of particular governmental records, and it is not 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 excerpting 3(a)(l) material information mainteined in c:c,mputer records banks, including, example, where necessary, devc:lopment of s search pattern. SUMMARY
.- Section 14a of ztrticle 6252-138, V.T.C.S.. the Administrative Proce,iure Act, does not impose upon petitioner the charges for producing Bovever, respo~nding party may request an administrative ormier placing costs *7 .
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 relevant statutory procedures. Under the Open Records Act, article 6252-17a, V.T.C.S.. the governmental body may some circcrutances exact charges deleting informatlon to section 3(a)(l) of the act. Very truly you 4 d ., I JIM MATTOX Attorney General of Texas 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