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1
,_,I’
The Attorney General of Texas
February25. 1986
JIM MAlTOX
Attorney
General
Supreme Court BulldIn Hr. Uomsr A. Foerster OpinionPO. .I&446
P. 0. BOX 12549 ExecutiveDirector
Austin, TX. 79711.2549 State Purchasing6 IGeneral Ret Accessibilityunder the
512/475-2501
ServicesCoxmiss:Lon Taxas Open RecordsAct of Texss
Telex 9101974.1357
Telecopier 512/475-0286
P. 0. Box 13047,CapitolStation Supram Court telephonerecords
Austin,Texas 781’11
714 Jackson. Suite 700 Dear Mr. Foerster:
Dallas, TX. 752024503
214i742-9944
You ask whethlerit is your duty under the Open Records Pet,
article 6252-17a,V.T.C.S.,to comply with the demand of a newspaper
4S24 Alberta Ave., Suite 180 reporterthat your office providehim "the recordsyou have available
El Paso. TX. 799052793 of long-distance:a118 made from telephonenumbers assigned to the
9151533-3454 state SupremeCourt.”
1001 Texas, Sulte 700 You stste:
HO”*tm. TX. 770029111
713l2235886 The State Purchasingand General ServicesCom-
mission, pursuant to its responsibilitiesunder
808 Broadway, Suite 312
article Illof article601b. V.T.C.S.,operatesthe
Lubbock, TX. 79401.3479 StatswideTelecommunications System (STS),and th=
SOSi747.5239 Capitol Area Centrex System here in the Capitcl
Complex. In carrying out these duties the CCT:-
mission starvesthe suprsmecourt as well as other
4209 N. Tenth. SultO S
MeAllen. TX. 7850%IS95
state agencies and governmentalbodies encompassed
51aS82.4547 by secton 10.07 of article 601b. B. The
records accumulatedby the commissionto support
its billing proceduresare derivedbasically from
200 Main PIUS. suite 4w
data submittedby SouthwesternBell.
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 rlaSsrdingthese 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 individualagency. It
sesms . . . that our telephone records are much
p. 2023
Mr. Homer A. Foerster- Psg;e2 (JM-446)
the same, and that requests for those records
shouldnot come 1.cus.
In our opinion, the State Purchasing and General Services
Commissionis properlyto tscconsideredthe agent of the Texas Supreme
Court in collectingthe recordsand abstractinginformationfrom them,
end their dispositionis the prerogativecf 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
judiciaryis not includedo!i,thinthe definitionof governmentalbodies
to which the act applies. Of course,the court may make the informa-
tion public,if it chooses, without referenceto the act.
Open Records Act exceptionsor exclusionsapplicableto records
in the hands of the princip,al
also apply to such recordsin the hands
of the agent. Open Records Decision Nos. 398 (1983); 411 (1984).
stated that s district ;tttorneyheld grand jury records ae the
custodianor agent of the grand jury (a part of the judiciarywithin
, thus preventingpublic accees under
the meaning of article 6252,-17a)
the Open RecordsAct. In Optn RecordsDecisionXo. 401 (1983),it was
determinedthat government-Igeneratedcomputertapes in the posses&ion
of one agency are protectedfrom disclosureby that agency unless the
programs"are of a type not protectedfrcm disclosurein the hands of
the forwardinggovernmentalbody." And in Open Records DecisionE'o.
287 (19El), the Dallas I'oliceDepartment successfullyasserted a
section 3(a)(ll)exception‘tothe disclosureof materialpsrsed to it
by a privateagencywith which the Texas Departmentof l&man Resources
had contracted,because receivingit from the private agency was the
equivalentof receiving i!:from the DRR in whose hands it would be
confidential.
It is well established that confidential material can be
transferredbetwean state agencies without losing its confidential
characterunder the Open Records Act. See Attorney General Opinions
H-917 (1976) (filestransferredto StateArchives);B-836 (1976) (Air
Control Board infonrationdisclosedto state and local agenciesbut
not federalgovernment). :tnour opinion,where the real object of the
Open Records Act lxcepticlnsis to protect certain interests of a
governmentalentity such as the judiciary,a physical transferis not
necessary to invoke confidentialstatus for informationgatheredby
one agency for the use end benefit of another agency in who86 hands
the materialwould be protected. Cf. AttorneyGeneralOpinionsR-683
(1975);R-242 (1974);M-71:)(1970).-
AttorneyGeneralOpi~lonJM-119 (1983)discussedthe @pen Records
Act relationshipof the chancellorof 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
p. 2024
’ .
I
Mr. Homer A. Foerster- Page 3 (JM-446)
chief administrativeofficer of s governmentalunit ss the custodian
of its records for purposes of the Act, the chancellorclaimedpcwer
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 foregoingprovisionsestablishthat, although
the custodianof Public records fcr the Alamo Com-
munity CollegeDi&trictis responsiblefor guarding,
preserving,and c.a.ringfor the district'srecords,
these records sre not within his exclusiveposses-
sion and control. On the contrary,since the Act
talks. in sectlo 3(a), in terms of 'information
collected,assembled,or maintsinedby governmental
bodies' (emphasi& added), these records must be
deemed to be at least constructively in the posses-
sion and control Iofthe board of trustees of the
district. h?eu h,edischargeshis duty to preserve
snd guard these records, the custodianmerely ects
as an agent of the board who is, in effect, charged
with the duty of preservingand guarding 'informa-
tion . . . maintainedby [the board].' Sec. 3(a).
Furthermore,the determinationof confidentiality is
made by the 'goveznmentalbody.' Sec. 7(a).
Similar conclusionsware 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 responsibilityfor their Open Records Act
release or nondisclosureto 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 ::trachthe “agency” question.
Open Records DecisionNo. 401 (1983)noted that section 4.01(s)
of article601b, V.T.C.S.,enactedin 1979.makes the State Purchasing
and General Services Comnission "custodian of all public personal
Property"and "responsibleEar the proper csre and protectionof such
property.. . .u (Emphasisadded). The term "all public personal
property"necessarilyembracesall public records,yet no one suggest&
that the commissionis the,primary custodianof the records of other
agenciesfor purposesof the Open RecordsAct. 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 governmeutalunits is seen mo&t
clearlyin its purchasingoperations,but the statutoryprovision&for
telecommunicationsservices support that idea, also. They specify
p. 2025
or. RosterA. Foerster- Page 4 (m-446)
that the comiaelon shall p:Lan,establishand 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
relatingto the consolidatedtelecommunicationsaystamas necessaryto
enable the comniaaionto ar.alyze
the coat effectfveneasof the system
to state agencies.’ (Ewplu~aia
added). Id. 510.03(b). And it is
Ksignated the agency of the state for obtainjng teleconmunicatio~
services. -Id. 810.08.
In performing its telecommunicationsresponsibilities.the
coumiaaionis chargedwith ,Bduty to “fulfillthe telecommunications
requirements of each stc.te agency. . . .” V.T.C.S. srt. 6Glb.
§lO.Ol(b). The billing :tnformationit collects or maintains in
accomplishingthis purpose shouldbe consideredrecordsof the agency
served, rather than its OIRL,particularlyif ‘the telecommunication:
requirements’of the agenc:rinclude a measure of confidentiality
for
such information. Section 10.06(a) of article 601b requires the
conmission to develop a system of billings and charges which
‘allocates the total stat’scost to each entity serviced based on
proportionateuse.” but thL:sdoes not divest billing informationof
its characteras primarilyB record of the erkitybilled.
The questionhere is no’twhether a list of telephonecalls can be
considered“public iofornuzion”under the Opan Records Act. If the
list were the record of a departmentor agency coveredby the act, and
if no exception allowed b3,the act applied, clearly it could be so
considered. See Opan RecordsDecisionNo. 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
relevantonly if the act would otherwisemake the informatiocpublic)
as well es the act's definxion of "public information,,are therefore
not pertinent. Once It has been determinedthat records sought are
records of the judiciary, the Cpen Records Act is no longer coc-
trolling.
Of course,not every qency that interactswith the judiciaryis
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 sometimrciacts as the agent of the judiciaryto be
consideredas always doing s’o. C-are Open RecordsDecisionE’oa.411
(1984)and 398 (1983)s AttorneyGeneralOpinionJ’M-266(1964).
In the situationyou bave posed, however,we believe the State
Purchasingand GeneralServicesConmrissionacts as agent for the Texas
Supreme Court and that the release of such records is a matter of
discretionfor the court, not for your agency. The Open Records Act
does not apply.
p. 2026
Er. Eomer A. Foerster- Page 5 (JM-446)
SUMMARY
The releaseof telephonerecordsof the Suprema
Court of Texas is a matter of discretionfor the
court, not for the State Purchasingand General
Services Comissi~on.which acts as the court's
agent in collectjogsuch information.
JIM HATTOX
Attorney Generalof Texas
JACK BIGBTOkXR
First AssistantAttorneyGrneral
MARY KELLER
ExecutiveAssistantAttorneyGeneral
ROBERT GRAY
SpecialAssistantAttorneyGeneral
RICK GILPIN
Chairman,OpinionComittec:
Preparedby Bruce Youogblocjd
AssistantAttorneyGeneral
p. 2027