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                                       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
