Untitled Texas Attorney General Opinion

’ . 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