                                            The Attorney                General of Texas
                                                             December 30, 1983
     JIM MATTOX
     Attorney General



     Supreme Court Building           Mr.    Kenneth    H.   Ashworth                Opinion No.   JM-119
     P. 0. BOX 12548                  commissioner
     Austin. TX. 78711. 2548                                                         I&: Whether the tape of an
                                      Coordinating Board
     512/47&2501
     Telex 910/874~1357
                                      Texas College and University System            interview is excepted from
     Telecopier  5121475-0266         P. 0. Box 12788, Capitol Station               disclosure under the Open
                                      Austin, Texas   78711                          Records Act
     714 Jackson, Suite 700
                                      Dear Mr. Ashworth:
     Dallas, TX. 75202-4508
     2141742-S944
                                           A member of the board of trustees of the Alamo Community College
                                      District has asked the chancellor of the district to furnish him with
     4824 Alberta   Ave., Suite 160   the following information:
     El Paso, TX. 79905.2793
     9151533.3494
                                                          1. Annual letter from the college's general
F,
                                                       counsel to the college's auditing firm concerning
       291 Texas, Suite 700                            possible liability in pending actions against the
     rtouston. TX. 77002-3111                          college.
     713/223-5886

                                                          2. Transcripts from the business management/
     806 Broadway, Suite 312
                                                       restaurant   management   audit   investigation
     Lubbock. TX. 79401-3479                           regarding alleged wrong doing by the program
     9061747-5238                                      director.

     4304 N. Tenth, Suite S
                                      The trustee requested this information in his official capacities as
     McAllen, TX. 79501~1685          trustee and as chairman of the board's audit committee. We understand
     512632-4547                      that the chancellor granted the first request but denied the second,
                                      relying upon sections 3(a)(2), 3(a)(3), and 3(a)(ll) of the Open
                                      Records Act, article 6252-17a, V.T.C.S. The question in this instance
     200 Main Plaza, suite 400
     San Antonio.   TX. 78205.2797
                                      is whether the chancellor must grant the trustee's request. We answer
     512/225-4191                     in the affirmative.

                                           Essentially, the chancellor argues that, as custodian of public
     An Equal Opportunity/            records for the Alamo Community College District, see V.T.C.S. art.
     Affirmative Action Employer
                                      6252-17a, 05(a), he may decline to furnish to 9   requestor. including
                                      a district trustee, records maintained by the community college
                                      district when he concludes that those records are within an exception
                                      in the Open Records Act. We disagree. This argument erroneously
                                      assumes that a trustee's right of access to information maintained by
                                      the district is limited to that of a member of the general public.




                                                                           p. 501
Mr. Kenneth H. Ashworth - Page 2   (JM-119)




     Section 3(a) of the Open Records Act provides that "[a]11
information . . . maintained by governmental bodies . . . is public
infomation . . . .u (Emphasis added). Section 2(1)(A) of the Act
defines "governmental body" as, inter alla, "any board . . . within
the executive or legislative branch of the state government . . .
under the direction of one or more elected or appointed members."
(Emphasis added).      Section 5(a) provides that "[tlhe chief
administrative officer of the novernmental bodv shall be the custodian
of public records, [who] shall-be responsible for the preservation and
care of the public records of the governmental body."        (Emphasis
added). "Custodian" is defined in Webster's New Collegiate Dictionary
as "one that guards and protects or maintains" and "one entrusted with
guarding and keeping property or records . . . ." Webster's New
Collegiate Dictionary (1981), at 278.

     The foregoing provisions establish that, although the custodian
of public records for the Alamo Community College District is
responsible for guarding, preserving, and caring for the district's
records, these records are not within his exclusive possession and
control. On the contrary, since the Act talks, in section 3(a), in
term   of "information collected, assembled, or maintained hi
governmental bodies" (emphasis added), these records must be deemed to
be at least constructively in the possession and control of the board
of trustees of the district. When he discharges his duty to preserve     -,
and guard these records, the custodian merely acts as an agent of the
board who is, in effect, charged with the duty of preserving and
guarding uinformation . . . maintained by [the board]." Sec. 3(a).
Furthermore, the determination of confidentiality is made by the
"governmental body." Sec. 7(a).

     The purpose of the Open Records Act is to prescribe the
conditions under which members of the general public can obtain
information from a governmental body. See V.T.C.S. art. 6252-17a,
53(a) (information maintained by goverGnta1       bodies is "public"
information and, with certain exceptions, is available to the "public"
during normal business hours). For the reasons discussed, we conclude
that when a trustee of a cormsunitycollege district, acting in his
official capacity, requests information maintained by the district, he
is not a member of the "public" for purposes of the Open Records Act.
On the contrary, he is a member of the board which at least
constructively maintains all records in the district's possession and
is charged with the duty of implementing the Act.

     Because such a trustee is not merely a member of the public, his
request for records in the district's possession cannot, in our
opinion, be treated as a request for information under the Open
Records Act. In this context, we note that in this instance, the
trustee did not request these records under the Act. Concomitantly,
the custodian of district records may not invoke the Act to prevent      ?




                              p. 502
.   .


        Mr. Kenneth Il.Ashworth - Page 3    (JM-119)




        the trustee from obtaining the requested records. As noted, the Act
        controls the availability of information to members of the general
        public as such. It cannot, in our view, control the right of access
        of a member of a governmental body to information in that governmental
        body's possession. Since the governmental body -- in this instance,
        the board of trustees of the district -- at least constructively
        maintains records in the district's possession, we believe it
        logically follows that a member of that board has an inherent right of
        access to such records, at least when he requests them in his official
        capacity.

             The opposite conclusion would produce absurd results. First, as
        we have noted, the Open Records Act entitles members of the public to
        information maintained by governmental bodies, unless it is within a
        section 3(a) exception. It would be ludicrous to conclude that a
        member of a board which "maintains" information cannot obtain that
        information. Second, the board of trustees of the Alamo Community
        College District is responsible for the governance and control of the
        district.   Educ. Code 0130.082.     See Educ. Code 8130.005 (laws
        pertaining to junior colleges applicable to community college
        districts). Were we to conclude that the custodian of the district's
        records may invoke the Act's exceptions to prevent a district trustee
        from obtaining those records, we would create an anomalous situation
        in which a district employee could prevent such. trustee from
        discharging his official duties. Without complete access to district
        records, such trustee could not effectively perform his duties. We do
        not believe that  those who drafted the Open Records Act intended to
        allow an employee of a governmental body to invoke the Act to keep a
        member of that body from obtaining information in the governmental
        body's possession.

             You also ask whether the foregoing information and other
        information must be made available to a reporter from a local
        television station. Specifically, the reporter has asked for "the
        complete financial transactions of the restaurant management program's
        agency account(s) for the school years 1980-1981, 1981-1982, and
        1982-1983." You contend that the requested information is within
        section 3(a)(3) of the Open Records Act, which excepts the following
        from required disclosure:

                  information relating to litigation of a criminal
                  or civil nature and settlement negotiations, to
                  which the state or political, subdivision is, or
                  may be, a party, or to which an officer or
                  employee of the state or political subdivision, as
                  a consequence of his office or employment, is or
                  may be a party, that the attorney general or the
                  respective attorneys of the various political




                                           p. 503
                                                                        .   .

Mr. Kenneth.H. Ashworth - Page 4   (JM-119)



                                                                                -7

          subdivisions has determined should be withheld
          from public inspection.

     You advise that all of the requested information has been
subpoenaed by the Bexar County District Attorney's Office for use in
an investigation. You have provided us with a copy of a subpoena
duces tecum which cormsandedthe district's internal auditor to appear
before the grand jury and bring with him the foregoing records.

     This office has consistently held that section 3(a)(3) may be
invoked where litigation is either pending or reasonably anticipated.
See, e.g., Open Records Decision No. 331 (1982). We believe that when
a matter is under investigation by the district attorney's office, we
may reasonably conclude that that matter may result in litigation.
The evidence that you have provided convinces us that in this
instance, litigation is "more than mere conjecture." Open Records
Decision No. 328 (1982). We therefore conclude that section 3(a)(3)
authorizes you to deny this reporter's reques
                                             7




                                       JIM     MATTOX
                                       Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton




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