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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Honorable   Bob Bullock   - Page 2   (311-672)




            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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    Honorable    Bob Bullock    - Page 3     (34-672)




    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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    Honorable   Bob Bullock   - Page 5 (JM-672)




    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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Eonorable   Bob Bullock   - Page 7     (m-672)




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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