Honorable Bob Bullock Opinion No. JM-672
Comptroller of Public Accounts
L.B.J. Srate Office Building Re: Availability of computer pro-
Austin, Texas 78774 grams and data bases under the Open
Records Act and whether a govern-
ment body must perform computer
searches for information
Dear Mr. Bullock:
You received a request under the Texas Open Records Act, article
6252-17a, V.T.C.S., for “all documents produced by . . . Chase
Econometrics, in the possession of the state comptroller’s office
which deal with the economic future of the Austin, Texas area.” You
indicate that you have a subscription contract with the Chase
Econometrics Division of Interactive Data Corporation for economic
services for use in the comptroller’s revenue estimating and economic
analysis activities. The terms of this contract purport co prohibit
your office from duplicating or releasing substantial portions of
reports, computer programs, or documents received from Chase
Econometrics pursuant to the contract. The contract attempts co
protect Chase Econometrics ’ “copyright and other commercial property
rights” in this information.
Your concerns arise primarily from the fact that the contract
with Chase Econometrics (CE) states, in part:
Customer agrees chat, as to any matter, in-
cluding (but not limited to) reports, data bases,
computer programs, documentation and any other
information, made known to him by CE pursuant
to this Subscription Agreement or any Service
supplied pursuant hereto, Customer shall not
duplicate such matter for use outside of its own
organization without the prior’ written consent of
CE: however, the Customer may uublish. without
zch cons& analyses and repo;ts of the Services
in amounts which in the aggregate are totally
insignificant relative to the portion of the
report. database, program, or documentation con-
taining the information, and so long as no fee
is charged for such CE analyses and reports.
Customer shall take all reasonable precautions to
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keep such matter confidential and, with ,the excep-
tion of such insignificant excerpts, to use such
analysis for the sole internal use of Customer snd
its employees, both during the term of this
Subscription Agreement and thereafter. (Emphasis
added).
Information is not confidential under the Open Records Act simply
because the party submitting the information anticipates or requests
that it be kept confidential. Industrial Foundation of the South v.
Texas Industrial Accident Board, 540 S.W.2d 668, 677 (Tex. 1976).
cert. denied, 430 U.S. 931 (1977). The law charges persons dealing
with state agencies and officers with notice of the legal limits on
the agencies’ and officers’ powers. State v. Ragland Clinic-Hospital.
159 S.W.Zd 105. 107 (Tex. 1942); Faxekas v. University of Rouston. 565
S.W.Zd 299. 304-306 (Tex. Civ. App. - Eouston [lst Disc.] 1978. writ
ref’d n.r.e.), appeal dism’d. 440 U.S. 952 (1979). In other words, a
contract cannot overrule or repeal the Texas Open Records Act. A
contract may, however, be evideuce of a private party’s attempt to
keep information confidential. See art. 6252-17a, 23(a)(l), (a)(lO).
You do not ask nor do we addresshechor the trade secret excspcion
applies to the inforxation in question.
Your questions are general: (1) whether copyrighted material
musr be released for inspection, (2) whether you xusc allow the
requestor to make copies unassisted by your office, and (3) whether
you must perform computer searches to obtain information sought by the
requestor. Because of the vast amount of information involved and
because of the general nature of your questions. you have not sub-
mitted specific documents for review by this office. If you wish to
withhold access co specific documents, you must submit representative
copies of them to this off ice for review , stating which exceptions to
disclosure under the Open Records Act apply, within 10 days of receipt
of this decision. -See Open Records Decision No. 325 (1982).
This office has addressed whether the Open Records Act protects
material, for which a third party holds a copyright, from disclosure
under various exceptions to disclosure in a number of prior opinions.
See, e.g., Open Records Decision Nos. 426 (1985); 401 (1983); 180
(1977) ; 109 (1975); Attorney General Opinion MW-307 (1981). In
Attorney General Opinion NW-307, this office stated:
The custodian of public records must comply
with the copyright law and is not required to
furnish copies of such records that are copy-
righted. Members of the public have the right to
examine copyrighted materials held as public
records and to make copies of such records un-
assisted by the state. Of course, one so doing
assumes the risk of a copyright infringement suit.
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Consequently, you must allow members of the public CO inspect copy-
righted material unless other exceptions to the Open Records Act
protect the material. You need not furnish copies.
All of the information held by your office, however, may not be
protected by copyright. Copyright law protects the expression and
form of ideas, not the underlying facts and ideas which form the basis
for the particular expression. See 17 U.S.C. 1102(b); Atari, Inc. v.
North American Philips Consumer Electric Corp.. 672 F.2d 607 (7th Cir.
1982); see also Mazer V. Stein, 347 U.S. 201 (1954). The request you
received is very broad; all of the information requested may not be
covered by copyright protection. If you wish to claim that copy-
righted material or other material IS protected from disclosure by
other exceptions, you must indicate which sections protect it and
submit representative samples to this office for review. You should
also note that you may require a requestor to identify the particular
kind of information sought if you cannot reasonably understand what
information is sought. -See Open Records Decision No. 304 (1982).
Your second question is whether you must allow the requestor to
make copies unassisted by your office. Attorney General Opinion
MU-307. as quoted above, provides that members of the public have the
right to make copies of copyrighted materials held as public records
“unassisted by the state.” Your concern is that the contract with
Chase Econometrics requires your office to take “all reasonable
precautions” to keep material confidential. Reasonable precautions
cannot logically include violating the Texas Open Records Act. As
indicated, persons dealing with state agencies are charged with notice
of the legal limits on the agencies’ powers.
Your final set of questions are:
(3) Are we required to make inquiry through
our computer equipment for information sought by
the requestor or to make our equipment available
to the requestor for such purpose? If so. must he
bear the expense of the inquiry time?
If the requestor seeks specific information stored in computer form
and the information itself is not protected by copyright or by any of
the specific exceptions to disclosure under the act, you must disclose
it. Information does not fall outside the act merely because it is
stored by means of magnetic tape or disks rather than paper documents.
Open Records Decision Nos. 401 (1983); 352 (1982).
On the other hand, the Open Records Acr does not require a
complex computer search to create new information. It is well-
established that the act does not require a government body to prepare
*ew information. Open Records Decision Nos. 452 (1986) ; 342 (1982).
For example, in Open Records Decision No. 452. this office determined
that the act does not require a school district to prepare a survey of
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the location of school desks and chairs recently repainted with leaded
paint. Although this information was technically obtainable from the
individual schools by the school district, neither the district nor
the individual schools had performed a location survey ac the time
they received the request for a survey. This office determined that
the Open Records Act does not require a governmental body to perform
this kind of search. Open Records Decision No. 452. Information
stored in computers, however, presents different questions.
It would be inconsistent with the spirit of the Open Records Act
to deny access to information simply because obtaining the information
requires a minimal computer search. Performing a sequence of opera-
tions on a computer will. in many instances, require no more effort
than physically locating a file in a particular file cabinet. In Open
Records Decision No. 65 (1975). this office addressed a request
received by the Department of Public Safety for a magnetic tape
containing the -a, addresses, sip codes, dates of birch, and
license expiration dates of all Texas drivers over the age of 64 with
licenses issued or renewed after January 1. 1973. The decision
concluded:
We understand that the programming effort re-
quired to comply with the instant request would
not be unduly onerous, that such programming can
be done without danger to your department's system
or files, and that the required program can be run
simultaneously with other Department of Public
Safety systems without degradation of those other
systems. To comply with the mandate of the Open
Records Act. your department can eithar use a
program prepared by the requestor and reviewed by
DPS personnel, or prepare in-house a program co
retrieve the information sought by the requestor.
It is not necessary that your department build and
maintain files of hata which it-needs in a format
dictated by a requesting party. The statute's
requirement that the agency supply the information
requested 'within a reasonable time' allows your
department to utilize its computer system on a
priority basis. See sections 4 and 7(a) of
article 6252-17a. (Emphasis added).
The suggestion that the Open Records Act requires the actual
preparation of a program to retrieve information. however. requires
clarification.
In 1976. the Texas Supreme Court reinforced part of the con-
clusion in Open Records Decision No. 65 when the court addressed a
request for a massive amount of computer-stored information held by
the Texas Industrial Accident Board. See Industrial Foundation of the
South, Inc. v. Texas Industrial AcciderBoard, 540 S.W.2d at 687. In
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the Industrial Foundation case, the court addressed the Industrial
Accident Board’s concern chat, because of the magnitude of the
information requested, it would be virtually impossible to furnish
the requested information without hiring additional personnel and
disrupting the activities of the board. See 540 S.W.2d at 686-87.
The court stated that “the Act does not al= either a custodian of
records or a court to consider rhe cost or method of supplying
requested information~in determining whether such information should
be disclosed.” 540 S.W.2d at 687. The court also indicated that the
act requires some compilation , at least in the area of computer-stored
information: “We are aware that the Board may incur substantial costs
in its compilation and preparation of the -information. . . .” Id.
(Emphasis added .)
There exists an important distinction, however, between the
“compilation” of computer-stored information and the preparation of a
new computer program desigred to perform a survey or a compilation of
a specific set of facts. The Open Records Act does not require a
custodian of records to prepare information in a form or on a schedule
dictated by a request.ing party. Open Records Decision No. 145 (1976).
In most cases, the act does not require the preparation of an
extensive new computer program to obtain particular sets of informa-
tion. Whether certain programming constitutes the creation of new
material must be determined on a case-by-case basis. This is an area
under the Open Records Act that must ultimately be addressed by the
legislature. To the extent that Open Records Decision No. 65 suggests
otherwise, it is modified. The act may also. in some instances.
require the preparation of a program to protect or delete confidential
information. See Industrial Foundation, 540 S.W.Zd at 687. If public
information so=t in a particular instance may be “called up” under
an existing program, a governmental body must perform this search.
The timing of the search may reasonably take into consideration
whether the search can be performed without degradation of the
government agency’s overall computer file system. See Open Records
Decision No. 65; see also Open Records Decision Nos.148, 121 (1976)
(information may be withheld temporarily while in immediate active
use).
You also ask whether the act requires you to allow a requestor to
perform his own computer search on your computer equipment. The Open
Records Act provides “for inspection or duplication, or both,” of
public information. V.T.C.S. -art. 6252-17a. 14. In Open Records
Decision No. 152 (1977). this office indicated chat the act gives the
requesting party the option of taking notes from or paying for the
duplication of public records or of doing both. The option of access
to the records or information does not, however, include the right to
access through direct computer searches. An important distinction
exists between access to public information and access to computer
banks which may contain both public and protected informarion.
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In fact, if a requestor-conducted search csnnoe be effected
without giving the requestor access to information to which the
requestor is not entitled, the act prohibits the search. See
Industrial Foundation of the South, Inc. v. Texas Industrial Accident
Board, 540 S.V.2d at 687; see also Open Records Decision No. 401
(1983). In the Industrial Foundation case, the court stated:
The means of access to information in government
records may be controlled by the determination of
what records must be disclosed, insofar as the
procedure must adequately protect information
deemed confidential from improper disclosure. If
a direct computer tie-in could not be effectuated
without giving the Foundation access to informa-
tion to which it is not entitled, then of course
the procedure would not be acceptable.
540 S.P.Zd at 687. An individual requestor-conducted computer search
raises the same problems raised by the direct computer tie-in
addressed in Industrial Foundation.
Your final question is whether the requestor must bear the
expense of computer search time necessitated by his request. In the
Industrial Foundation case, the Texas, Supreme Court stated with regard
to computerized information:
We ara aware that the Board may incur sub-
stantial costs in its compilation and preparation
of the information, especially in light of the
case-by-case review and redaction of the files
necessieated by Section 3(a)(l). Section 9 of
the Act makes clear that all costs incurred in
providing access to public records must be borne
by the requesting party.
540 S.W.Zd at 687. Thus, the requestor must bear the expense of
providing information stored by means of computers. Attorney General
Opinion JM-292 (1984); see also Open Records Decision No. 352 (1982);
-cf. AttOMey General Opinion JM-114 (1983).
Charges for access to information in computer banks must be set
in consultation with the State Purchasing and General Services
Commission "giving due consideration to the expenses involved in
providing the public records making every effort to match the charges
with the actual cost of providing the records." V.T.C.S. art.
6252-17a. 19(b); see Open Records Decision No. 352 (1982). These
costs may include, for example, the cost of developing a search
pattern to edit OUE confidential information maintained in computer
record banks. See Attorney General Opinion JM-292. Additionally,
requescors may bcrequired to post bond for payment of costs as a
condition precedent to the preparation of records when the preparation
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of records is “unduly costly” and its reproduction would cause “undue
hardship” to the agency. Art. 6252-17a, 111; -see Industrial
Foundation, 540 S.W.2d at 687-88.
SUKKARY
A custodian of public records under the Texas
Open Records Act, article 6252-17a. V.T.C.S., must
allow members of the public to inspect copyrighted
material unless other exceptions to the Open
Records Act protect the material. The custodian
need not, however, furnish copies. The custodian
must allow the requestor to make copies “unassisted
by the state.”
The Open Records Act does not require the
preparation of an extensive new computer program to
obtain particular sets of information. Whether
certain programming constitutes the creation of new
material must’ be determined on a case-by-case
basis.
Jk-b
Attorney General of Texas
JACK RIGHTOWER
First Assistant Attorney General
MARYKELLER
Executive Assistant Attorney General
JUDGEZOLLIE STEMCLRT
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jennifer Riggs
Assistant Attorney General
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