              THE   ATTORNEY    GENERAL
                       OF TEXAS

                       August 1, 1988




Mr. William D. Gooch                Opinion No.   JM-936
Director and Librarian
Texas State Library and             Re: Whether optical data
   Archives Commission              storage can be used in
P. 0. Box 12927                     lieu of microfilm    and
Austin, Texas 78711                 paper by county clerks
                                    and school districts
                                    (RQ-1311)

Dear Mr. Gooch:

      You have requested our opinion about three questions:

           1. Does H.B. 163 authorize county clerks
        and school districts   to .use optical data
        storage systems as the exclusive medium   for
        storage of permanent and long term records -
        that is, without also maintaining a microfilm
        or paper back-up copy?

           2. Until such time       as optical   data
        storage technology   can meet standards   for
        permanency  and    file   integrity
        statutorily required of microfilm   u::d :::
        storage of county clerk and school district
        records, and specifically     until  American
        National Standards   Institute standards  for
        permanency have been adopted for optical disk
        storage media, would digitized county clerks'
        or school district records or paper copies
        made therefrom be deemed original records and
        so accepted by courts and administrative
        agencies, as are microfilm records?

           3. Does H.B. 163 grant the same 'individ-
        ual discretion'  to county clerks to adopt
        optical data storage systems for records
        filed in county or district courts as they
        have to adopt microfilm systems under Chapter
        194, or must they request approval from the




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        Supreme Court    'as required   by    Sections
        51.803(b) and 51.807, Texas Government Code?

     House Bill 163 is set out in full as follows:

           AN ACT relating to the process of    optical
        data storage.

           BE IT ENACTED   BY THE   LEGISLATURE OF   THE
        STATE OF TEXAS:

           SECTION  1.    Article  1941(a),   Revised
        Statutes, is amended by adding Section 1A to
        read as follows:

            Sec. 1A.  OPTICAL DATA STORAGE PROCESS.
        For the purposes  described by Section 1 of
        this Act, a county clerk, county recorder, or
        clerk of a county court may adopt and use an
        optical data storage process for the storage
        of records by     optical disk.    This   Act
        applies,   to the extent feasible, to the
        optical data storage process,    the optical
        disk used in that process,   and the records
        stored by that process in a manner equivalent
        to the manner in which this Act applies to a
        microfilm process, the film used     in that
        process,   and the records stored by that
        process.

           SECTION  2.   Subchapter H, Chapter   21,
        Education Code, is amended by adding Section
        21.260 to read as follows:

           Sec.   21.260.      OPTICAL   DATA   STORAGE
        PROCESS.   For the purposes      described    by
        Section  21.259 of      this code, a      school
        district may adopt a plan for an optical data
        storage process for the storage of records by
        optical disk.     This    section applies     to
        optical data in the same manner as Section
        21.259 applies to microfilm,     to the extent
        feasible, to    the optical      data    storage
        process,  the optical disk used       in    that
        process,  and the records stored by that
        process in a manner equivalent to the manner
        in which this section applies to a microfilm
        process, the film used in that process,      and
        the records stored by that process.




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    Acts 1987, 70th Leg., 2d C.S., ch. 72, at 224.

         This act amended two separate statutory   schemes for
    record keeping -- that of county clerks and that of school
    districts.   Section  1 of House Bill 163 amends V.T.C.S.
    article 1941(a), which governs county clerks, by adding
    section lA.l    Section  2 of House Bill 163 amends the
    Education Code, which governs school districts, by adding
    section 21.260.

         Because the provisions of the Education Code illustrate
    this problem  of statutory construction more clearly than
    those of the Local Government      Code, the two relevant
    sections of the Education Code are set out in full (emphasis
    added):

            5 21.259. Microfilming     Records and     Reports
            by School Districts

                (a) A school district may adopt a plan for
            microphotographing   or microfilming   records
            and reports to accurately     and permanently
            copy, reproduce,   or originate   records  and
            reports on film. The plan must:

                  (1) specify the types of records         and
               reports for recording on microfilm:

                  (2) require   indices       to     microfilm
               records and reports:

                   (3) require the   microfilm  to  meet
               requirements   of the United States    of
               American Standards Institute for archival
               quality, density, resolution, and defini-
               tion unless the school board of trustees



       1. Article 1941(a), however, was earlier repealed by
    Acts 1987, 70th Leg., ch. 149, 5 49(l). This repeal was in
    conjunction with the enactment of the Local Government Code,
    which incorporated article 1941(a) into its provisions.  See
    Acts 1987, 70th Leg., ch. 149, § 1.    In such a situation,
    section 311.031(c) of the Government Code provides that the
    repeal of a statute by a code does not affect an amendment
    by the same legislature that enacted the. code and that the
    amendment is preserved and given effect as part of the code
    provision.




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           determines that the microfilm is   intended
           only for short-term use:

              (4) require a person to certify that
           the microfilm   record or report    is   a
           correct duplication of the original record
           or report; and

              (5) guarantee the public free access to
           information in microphotographs and micro-
           films to which they are entitled by law.

           (b) A microfilm   record or report of a
        school district   is an original record or
        report and, if.made in compliance with this
        section, shall be accepted by a court or
        agency of this state as an original   record.
        A copy on paper or film of microfilm   record
        or report that is certified by a record
        keeper of the school district      shall   be
        accepted by a court or agency of this state
        as a certified copy of an original record or
        report.

            (c) An original record or report which is
        microfilmed in compliance with a plan adopted
        under this section may be destroyed at the
        direction of the school board of trustees,
        unless required to be preserved by state or
        federal law.

           (d) An original record or report of the
        school district which   is not microfilmed in
        compliance with a plan adopted under this
        section or is determined   to be worthless by
        the school board of trustees may be destroyed
        at the direction  of the board of trustees,
        unless required to be preserved by state or
        federal law.

           (e) If the subject matter of an original
        record or report is in litigation,       the
        original  record       report        not  be
        destroyed until theOfitigation iF:ettled  or
        final judgment is rendered.

           (f) Before an original record or report
        that has been microfilmed may be destroyed,
        the school district must notify the state,
        librarian and state archivist. If the state




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        librarian or state archivist determines that
        the record or report is needed for the state
        library, the district shall transfer     the
        record or    report to    the librarian   or
        archivist.  (Emphasis added.)

        5 21.260.   Optical Data    Storage Process

           For the nurnoses described bv Section
        21.259 of this code, a school district may
        ado& a nlan for an ontical data storase
        process for the storage bf records by optical
        disk. This section applies to optical data
        in the same manner as Section 21.259 applies
        to microfilm, to the extent feasible, to the
        optical data storage process, the optical
        disk used in that process, and the records
        stored by that process in a manner equivalent
        to the manner in which this section applies
        to a microfilm process, the film used in that
        process,  and the records stored by that
        process.   (Emphasis added.)

     Thus, as set out in the statute, to achieve the
purposes of section 21.259, section 21.260 authorizes     the
use of optical data storage. Among the purposes of section
21.259 is "permanently" copying. You are concerned that it
is not technologically   feasible to achieve the purpose   of
O1permanentlyl'copying using optical data storage. You have
cited several articles that question the archival life of an
optical disk, suggesting that it is perhaps no more than ten
years. See, e.~., Canning, Ontical Disks in the Office,     5
IMC Journal   9 (Sept./Ott. 1987) ; Calmes, To Archive    and
Preserve: A Media Primer, Inform 14 (May 1987); McQueen     8
Boss, Videodisc and Ootical Disital Disk Technoloaies     and
Their Aonlications   in Libraries, Am. Lib. Ass'n     (1986).
Significantly, you have learned that neither the National
Archives and Records Administration     nor the Library    of
Congress consider optical data storage as acceptable      for
permanent records. See Correspondence of Nov. 2, 1987, from
Alan Calmes, Preservation   Officer of the NARA, to William
Gooch.

     In your first question, therefore, you ask whether H.B.
163 authorizes  county clerks and school districts to use
optical data storage without also maintaining a microfilm or
paper copy of records. Without much doubt, the legislature
contemplated this as a possibility.  We draw this conclusion
from the claim in the Bill Analysis that an optical     disk
“may have a longer media archival life than microfiche"  and




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Mr. William D. Gooch - Page 6    (JM-936)




that "county records storage space requirements     would be
lessened."  Bill Analysis, Tex. H.B. 163, 70th Leg.    (1987).
Neither of these claims would have been relevant unless    the
bill meant to authorize  replacing microfilm and paper with
optical disks.   Thus, while not expressly   saying so, the
Bill Analysis   seems to contemplate    the possibility     of
optical data storage without the retention of microfilm     or
paper.   This conclusion   is supported by the sponsor's
explanation of the bill to the House upon second reading.
Debate on Tex. H.B. 163 on the Floor of the House,        70th
L-w., 2d C.S. (July 18, 1987) (tape 24, side A)    (available
from House Committee Coordinator's Office).

     The critical point, however, is that while the legisla-
tive history suggests that the legislature considered it a
possibility that optical data storage might replace micro-
film and paper records, the legislature provided in the act
itself certain safeguards to ensure that the technology   of
optical data storage guaranteed  permanence before it could
be employed by county clerks or school districts.     Before
optical data storage can be used as the exclusive method  of
record retention, any plan adopted by a county clerk or a
school district must meet the requirements of chapter 194 of
the Local Government Code or section 21.259 of the Education
Code, respectively.  We again turn to the Education Code to
make our point.

     Section 21.260 provides that it "applies to optical
data in the same manner as Section 21.259 applies to micro-
film, to the extent feasible . . . .I' What this means     is
unclear.  For several reasons that will be explained,      we
read section  21.260 to incorporate the requirements       of
section 21.259 into section 21.260. Among the requirements
of section 21.259 is subdivision (a)(3), which states that
microfilm  must meet the requirements      of the "American
Standards Institute for archival quality, density,    resolu-
tion, and definition unless . . . the microfilm is intended
only for short-term use." You have learned that as of yet
there are no American National    Standards Institute  (ANSI)
Standards for archival use of optical data storage.   Corres-
pondence of October 26, 1987, from William H. Rockwell, Vice
President of ANSI, to William D. Gooch. Until such time as
there are, under section 21.260, no school district     could
adopt a plan for optical data storage, except for short-term
use. The same is true of county clerks. See Local Gov't
Code 5 194.005, T, 194.010, 5 194.017.

     Thus, by incorporating   the requirements   of section
21.259, section 21.260 ensures that optical data storage
cannot be used until standards are developed that guarantee



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    archival quality.   We chose this construction' of section
    21.260 because it best comports with the express legislative
    objective   of guaranteeing   permanent   recordkeeping.   A
    statute should be construed with reference to its manifest
    object, and if     the language is      susceptible   of two
    constructions, one of which will carry out and the other of
    which will defeat the manifest object, the construction that
    will carry out the manifest      object should be chosen.
    Citizens Bank of Brvan v. First State Bank, 580 S.W.2d 344,
    348 (Tex. 1979).

         To read section 21.260 as authorizing       optical   data
    storage without   reference to the requirements    of section
    21.259 would mean that any system of optical data storage
    could be adopted,   even if it did not adequately     preserve
    public records.   If possible, such a construction is to be
    avoided. Long term preservation    of public records is very
    much in the public interest.     When, as in this case, the
    intention of the legislature is so vaguely expressed, it is
    proper to consider the       consequences  of any     proposed
    construction and place upon the statute a construction     that
    will not prejudice the public interest.      National    Surety
    Corx). v. Ladd, 115 S.W.2d 600, 603 (Tex. 1938).

         We do not read the phrase "to the extent feasible"     as
    requiring  a different    interpretation.    Providing    that
    section 21.259 is incorporated   into section 21.260 "to the
    extent feasible" does not mean that if the technology       of
    optical data storage cannot meet the requirements of section
    21.259 that it need not. Rather, the phrase 'Itothe extent
    feasible" means to the extent that a particular   requirement
    of section 21.259 is relevant to the technology of optical
    data storage.   Again taking the example of subdivision
    (a)(3), as we read "to the extent feasible," any plan for
    optical data storage must require that it meet standards
    for archival quality, but such storage need not meet the
    requirements  for   "resolution"   since   resolution  is    a
    technical term applying only to film and not to optical data
    storage.

         Construing the phrase    in this fashion harmonizes    the
    statute and    ensures that      it fulfills    the   apparent
    legislative  objective.    In    construing  a statute,     all
    sections, words, and phrases must be considered      together,
    every provision   should be construed with every          other
    provision to produce a harmonized whole: and one provision
    will not be given a meaning out of harmony or inconsistent
    with other provisions, although    it might be susceptible   of
    such construction standing alone. Black v. American Bankers
    Ins. Co., 478 S.W.Zd 434, 437 (Tex. 1972).




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     In summary, before adopting a plan    for optical data
storage, a county clerk or a school district must be sure
that the plan meets the requirements   for archival  quality
established by the American   National Standards  Institute.
Until there are such standards, no such plan can be adopted.

     In your second question you ask whether records  stored
on optical disk must be accepted as original records by a
court or agency of this state. Our answer to your      first
question dictates   our answer to your second question.
Again, we will consider the question under the Education
Code. Under section 21.259(b) of the Education Code, only
those records "made in compliance with" that section can be
accepted as an     original record.    Since   one of    the
requirements of section 21.259 is meeting the ANSI standards
for archival   quality, and    since this requirement     is
incorporated into section 21.260 for optical data storage,
then records on optical disks or made    from optical disks
cannot be considered    original records until ANSI      has
established standards for archival quality for optical data
storage, and records are produced under a plan that meets
those standards.  The result is the same for the records of
county clerks under the Local Government   Code. See Local
Gov't Code, 5 194.005, 5 194.010, § 194.017.

     In your third question you ask whether county     clerks
must request approval      from the    Supreme Court     under
subchapter I of chapter 51 of the Government Code before
adopting optical data storage for the filing of court
records.    This question    confuses  filing and    storage.
Subchapter I of chapter 51 of the Government Code relates to
establishing   a system for     "the electronic   filing    of
documents."    Chapter 194 of the Local Government        Code
relates to storing documents after filinq. Supreme       Court
;a;roval is required   for an electronic  filing system, but
     for storage on optical disk after filing.           As a
practical matter, however, until ANSI standards for archival
quality are developed   for optical data storage, no county
clerk can employ a plan for optical ~data storage under
chapter 194 of the Local Government Code.

                         SUMMARY

             Before adopting a plan for optical data
          storage, a county clerk or school district
          must be sure that the plan meets the require-
          ments for archival quality established by the
          American National Standards Institute (ANSI).
          Until there are such standards, no plan can
          be adopted. Records stored on optical disks




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    Mr.   William D. Gooch - Page 9 (JM-936)

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              are not original records unless they are
              stored pursuant to a plan that meets ANSI
              standards.  Subchapter I of chapter 51 of the
              Government Code, authorizing the electronic
              filing of certain documents by county clerks,
              relates to filing, not storing. Chapter   194
              of the Local Government Code, relating to
              storing, operates    without   reference   to
              subchapter I of chapter 51 of the Government
              Code.




                                         JIM     MATTOX
                                         Attorney General of Texas

    WARY KELLER
    First Assistant Attorney General

    LOU MCCREARY
    Executive Assistant Attorney General

    JUDGE ZOLLIE STEAKLEY
    Special Assistant Attorney General

    RICK GILPIN
    Chairman, Opinion Committee

    Prepared by F. Scott McCown
    Assistant Attorney General




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