THE ATTORNEY GENERAL
OF TEXAS
August 1, 1988
Mr. William D. Gooch Opinion No. JM-936
Director and Librarian
Texas State Library and Re: Whether optical data
Archives Commission storage can be used in
P. 0. Box 12927 lieu of microfilm and
Austin, Texas 78711 paper by county clerks
and school districts
(RQ-1311)
Dear Mr. Gooch:
You have requested our opinion about three questions:
1. Does H.B. 163 authorize county clerks
and school districts to .use optical data
storage systems as the exclusive medium for
storage of permanent and long term records -
that is, without also maintaining a microfilm
or paper back-up copy?
2. Until such time as optical data
storage technology can meet standards for
permanency and file integrity
statutorily required of microfilm u::d :::
storage of county clerk and school district
records, and specifically until American
National Standards Institute standards for
permanency have been adopted for optical disk
storage media, would digitized county clerks'
or school district records or paper copies
made therefrom be deemed original records and
so accepted by courts and administrative
agencies, as are microfilm records?
3. Does H.B. 163 grant the same 'individ-
ual discretion' to county clerks to adopt
optical data storage systems for records
filed in county or district courts as they
have to adopt microfilm systems under Chapter
194, or must they request approval from the
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Mr. William D. Gooch - Page 2 (JM-936)
Supreme Court 'as required by Sections
51.803(b) and 51.807, Texas Government Code?
House Bill 163 is set out in full as follows:
AN ACT relating to the process of optical
data storage.
BE IT ENACTED BY THE LEGISLATURE OF THE
STATE OF TEXAS:
SECTION 1. Article 1941(a), Revised
Statutes, is amended by adding Section 1A to
read as follows:
Sec. 1A. OPTICAL DATA STORAGE PROCESS.
For the purposes described by Section 1 of
this Act, a county clerk, county recorder, or
clerk of a county court may adopt and use an
optical data storage process for the storage
of records by optical disk. This Act
applies, to the extent feasible, to the
optical data storage process, the optical
disk used in that process, and the records
stored by that process in a manner equivalent
to the manner in which this Act applies to a
microfilm process, the film used in that
process, and the records stored by that
process.
SECTION 2. Subchapter H, Chapter 21,
Education Code, is amended by adding Section
21.260 to read as follows:
Sec. 21.260. OPTICAL DATA STORAGE
PROCESS. For the purposes described by
Section 21.259 of this code, a school
district may adopt a plan for an optical data
storage process for the storage of records by
optical disk. This section applies to
optical data in the same manner as Section
21.259 applies to microfilm, to the extent
feasible, to the optical data storage
process, the optical disk used in that
process, and the records stored by that
process in a manner equivalent to the manner
in which this section applies to a microfilm
process, the film used in that process, and
the records stored by that process.
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Mr. William D. Gooch - Page 3 (JM-936)
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Acts 1987, 70th Leg., 2d C.S., ch. 72, at 224.
This act amended two separate statutory schemes for
record keeping -- that of county clerks and that of school
districts. Section 1 of House Bill 163 amends V.T.C.S.
article 1941(a), which governs county clerks, by adding
section lA.l Section 2 of House Bill 163 amends the
Education Code, which governs school districts, by adding
section 21.260.
Because the provisions of the Education Code illustrate
this problem of statutory construction more clearly than
those of the Local Government Code, the two relevant
sections of the Education Code are set out in full (emphasis
added):
5 21.259. Microfilming Records and Reports
by School Districts
(a) A school district may adopt a plan for
microphotographing or microfilming records
and reports to accurately and permanently
copy, reproduce, or originate records and
reports on film. The plan must:
(1) specify the types of records and
reports for recording on microfilm:
(2) require indices to microfilm
records and reports:
(3) require the microfilm to meet
requirements of the United States of
American Standards Institute for archival
quality, density, resolution, and defini-
tion unless the school board of trustees
1. Article 1941(a), however, was earlier repealed by
Acts 1987, 70th Leg., ch. 149, 5 49(l). This repeal was in
conjunction with the enactment of the Local Government Code,
which incorporated article 1941(a) into its provisions. See
Acts 1987, 70th Leg., ch. 149, § 1. In such a situation,
section 311.031(c) of the Government Code provides that the
repeal of a statute by a code does not affect an amendment
by the same legislature that enacted the. code and that the
amendment is preserved and given effect as part of the code
provision.
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Mr. William D. Gooch - Page 4 (JM-936)
determines that the microfilm is intended
only for short-term use:
(4) require a person to certify that
the microfilm record or report is a
correct duplication of the original record
or report; and
(5) guarantee the public free access to
information in microphotographs and micro-
films to which they are entitled by law.
(b) A microfilm record or report of a
school district is an original record or
report and, if.made in compliance with this
section, shall be accepted by a court or
agency of this state as an original record.
A copy on paper or film of microfilm record
or report that is certified by a record
keeper of the school district shall be
accepted by a court or agency of this state
as a certified copy of an original record or
report.
(c) An original record or report which is
microfilmed in compliance with a plan adopted
under this section may be destroyed at the
direction of the school board of trustees,
unless required to be preserved by state or
federal law.
(d) An original record or report of the
school district which is not microfilmed in
compliance with a plan adopted under this
section or is determined to be worthless by
the school board of trustees may be destroyed
at the direction of the board of trustees,
unless required to be preserved by state or
federal law.
(e) If the subject matter of an original
record or report is in litigation, the
original record report not be
destroyed until theOfitigation iF:ettled or
final judgment is rendered.
(f) Before an original record or report
that has been microfilmed may be destroyed,
the school district must notify the state,
librarian and state archivist. If the state
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Mr. William D. Gooch - Page 5 (JM-936)
librarian or state archivist determines that
the record or report is needed for the state
library, the district shall transfer the
record or report to the librarian or
archivist. (Emphasis added.)
5 21.260. Optical Data Storage Process
For the nurnoses described bv Section
21.259 of this code, a school district may
ado& a nlan for an ontical data storase
process for the storage bf records by optical
disk. This section applies to optical data
in the same manner as Section 21.259 applies
to microfilm, to the extent feasible, to the
optical data storage process, the optical
disk used in that process, and the records
stored by that process in a manner equivalent
to the manner in which this section applies
to a microfilm process, the film used in that
process, and the records stored by that
process. (Emphasis added.)
Thus, as set out in the statute, to achieve the
purposes of section 21.259, section 21.260 authorizes the
use of optical data storage. Among the purposes of section
21.259 is "permanently" copying. You are concerned that it
is not technologically feasible to achieve the purpose of
O1permanentlyl'copying using optical data storage. You have
cited several articles that question the archival life of an
optical disk, suggesting that it is perhaps no more than ten
years. See, e.~., Canning, Ontical Disks in the Office, 5
IMC Journal 9 (Sept./Ott. 1987) ; Calmes, To Archive and
Preserve: A Media Primer, Inform 14 (May 1987); McQueen 8
Boss, Videodisc and Ootical Disital Disk Technoloaies and
Their Aonlications in Libraries, Am. Lib. Ass'n (1986).
Significantly, you have learned that neither the National
Archives and Records Administration nor the Library of
Congress consider optical data storage as acceptable for
permanent records. See Correspondence of Nov. 2, 1987, from
Alan Calmes, Preservation Officer of the NARA, to William
Gooch.
In your first question, therefore, you ask whether H.B.
163 authorizes county clerks and school districts to use
optical data storage without also maintaining a microfilm or
paper copy of records. Without much doubt, the legislature
contemplated this as a possibility. We draw this conclusion
from the claim in the Bill Analysis that an optical disk
“may have a longer media archival life than microfiche" and
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Mr. William D. Gooch - Page 6 (JM-936)
that "county records storage space requirements would be
lessened." Bill Analysis, Tex. H.B. 163, 70th Leg. (1987).
Neither of these claims would have been relevant unless the
bill meant to authorize replacing microfilm and paper with
optical disks. Thus, while not expressly saying so, the
Bill Analysis seems to contemplate the possibility of
optical data storage without the retention of microfilm or
paper. This conclusion is supported by the sponsor's
explanation of the bill to the House upon second reading.
Debate on Tex. H.B. 163 on the Floor of the House, 70th
L-w., 2d C.S. (July 18, 1987) (tape 24, side A) (available
from House Committee Coordinator's Office).
The critical point, however, is that while the legisla-
tive history suggests that the legislature considered it a
possibility that optical data storage might replace micro-
film and paper records, the legislature provided in the act
itself certain safeguards to ensure that the technology of
optical data storage guaranteed permanence before it could
be employed by county clerks or school districts. Before
optical data storage can be used as the exclusive method of
record retention, any plan adopted by a county clerk or a
school district must meet the requirements of chapter 194 of
the Local Government Code or section 21.259 of the Education
Code, respectively. We again turn to the Education Code to
make our point.
Section 21.260 provides that it "applies to optical
data in the same manner as Section 21.259 applies to micro-
film, to the extent feasible . . . .I' What this means is
unclear. For several reasons that will be explained, we
read section 21.260 to incorporate the requirements of
section 21.259 into section 21.260. Among the requirements
of section 21.259 is subdivision (a)(3), which states that
microfilm must meet the requirements of the "American
Standards Institute for archival quality, density, resolu-
tion, and definition unless . . . the microfilm is intended
only for short-term use." You have learned that as of yet
there are no American National Standards Institute (ANSI)
Standards for archival use of optical data storage. Corres-
pondence of October 26, 1987, from William H. Rockwell, Vice
President of ANSI, to William D. Gooch. Until such time as
there are, under section 21.260, no school district could
adopt a plan for optical data storage, except for short-term
use. The same is true of county clerks. See Local Gov't
Code 5 194.005, T, 194.010, 5 194.017.
Thus, by incorporating the requirements of section
21.259, section 21.260 ensures that optical data storage
cannot be used until standards are developed that guarantee
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Mr. William D. Gooch - Page 7 (JM-936)
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archival quality. We chose this construction' of section
21.260 because it best comports with the express legislative
objective of guaranteeing permanent recordkeeping. A
statute should be construed with reference to its manifest
object, and if the language is susceptible of two
constructions, one of which will carry out and the other of
which will defeat the manifest object, the construction that
will carry out the manifest object should be chosen.
Citizens Bank of Brvan v. First State Bank, 580 S.W.2d 344,
348 (Tex. 1979).
To read section 21.260 as authorizing optical data
storage without reference to the requirements of section
21.259 would mean that any system of optical data storage
could be adopted, even if it did not adequately preserve
public records. If possible, such a construction is to be
avoided. Long term preservation of public records is very
much in the public interest. When, as in this case, the
intention of the legislature is so vaguely expressed, it is
proper to consider the consequences of any proposed
construction and place upon the statute a construction that
will not prejudice the public interest. National Surety
Corx). v. Ladd, 115 S.W.2d 600, 603 (Tex. 1938).
We do not read the phrase "to the extent feasible" as
requiring a different interpretation. Providing that
section 21.259 is incorporated into section 21.260 "to the
extent feasible" does not mean that if the technology of
optical data storage cannot meet the requirements of section
21.259 that it need not. Rather, the phrase 'Itothe extent
feasible" means to the extent that a particular requirement
of section 21.259 is relevant to the technology of optical
data storage. Again taking the example of subdivision
(a)(3), as we read "to the extent feasible," any plan for
optical data storage must require that it meet standards
for archival quality, but such storage need not meet the
requirements for "resolution" since resolution is a
technical term applying only to film and not to optical data
storage.
Construing the phrase in this fashion harmonizes the
statute and ensures that it fulfills the apparent
legislative objective. In construing a statute, all
sections, words, and phrases must be considered together,
every provision should be construed with every other
provision to produce a harmonized whole: and one provision
will not be given a meaning out of harmony or inconsistent
with other provisions, although it might be susceptible of
such construction standing alone. Black v. American Bankers
Ins. Co., 478 S.W.Zd 434, 437 (Tex. 1972).
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Mr. William D. Gooch - Page 8 (JM-936)
In summary, before adopting a plan for optical data
storage, a county clerk or a school district must be sure
that the plan meets the requirements for archival quality
established by the American National Standards Institute.
Until there are such standards, no such plan can be adopted.
In your second question you ask whether records stored
on optical disk must be accepted as original records by a
court or agency of this state. Our answer to your first
question dictates our answer to your second question.
Again, we will consider the question under the Education
Code. Under section 21.259(b) of the Education Code, only
those records "made in compliance with" that section can be
accepted as an original record. Since one of the
requirements of section 21.259 is meeting the ANSI standards
for archival quality, and since this requirement is
incorporated into section 21.260 for optical data storage,
then records on optical disks or made from optical disks
cannot be considered original records until ANSI has
established standards for archival quality for optical data
storage, and records are produced under a plan that meets
those standards. The result is the same for the records of
county clerks under the Local Government Code. See Local
Gov't Code, 5 194.005, 5 194.010, § 194.017.
In your third question you ask whether county clerks
must request approval from the Supreme Court under
subchapter I of chapter 51 of the Government Code before
adopting optical data storage for the filing of court
records. This question confuses filing and storage.
Subchapter I of chapter 51 of the Government Code relates to
establishing a system for "the electronic filing of
documents." Chapter 194 of the Local Government Code
relates to storing documents after filinq. Supreme Court
;a;roval is required for an electronic filing system, but
for storage on optical disk after filing. As a
practical matter, however, until ANSI standards for archival
quality are developed for optical data storage, no county
clerk can employ a plan for optical ~data storage under
chapter 194 of the Local Government Code.
SUMMARY
Before adopting a plan for optical data
storage, a county clerk or school district
must be sure that the plan meets the require-
ments for archival quality established by the
American National Standards Institute (ANSI).
Until there are such standards, no plan can
be adopted. Records stored on optical disks
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Mr. William D. Gooch - Page 9 (JM-936)
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are not original records unless they are
stored pursuant to a plan that meets ANSI
standards. Subchapter I of chapter 51 of the
Government Code, authorizing the electronic
filing of certain documents by county clerks,
relates to filing, not storing. Chapter 194
of the Local Government Code, relating to
storing, operates without reference to
subchapter I of chapter 51 of the Government
Code.
JIM MATTOX
Attorney General of Texas
WARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by F. Scott McCown
Assistant Attorney General
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