                                    The Attornwy General of Texas
JIM MAl-rOX                                             Mcember 31, 1984
Attorney General


supremecowl BuildIn
                                  Honorable Bob Bullock                        opinion   Ho. JM-292
P. 0. BOX 12549                   Comptroller of Public Atcounts
Austin. TX. 79711. 2549           L.B.J. State Office Building                 Re:   Costs of copies    of records
512l4752501                       Austin, Texas    78774                       under the Administrative   Procedure
Telex 9101874.1367
                                                                               Act and the Open Records Act
Telecopier   512I475-0288

                                  Dear Mr. Bullock:
714 Jackam.   Suite 700
Dallas, TX. 75202.4506                  YOU inquire about the costs you may recover during an adminlstra-
2141742-9944
                                  tive hearing when a petitioner         requests the production    of documents
                                  end records.      The petitioner    has requested the records under section
4S24 Alberta Ave.. Suite    1SO   14a of article     6252-13a, V.T.C.S..     the Administrative  Procedure Act.
El Paw. TX. 79905-2793            You state     that   these    records   would also   be subject     to article
915/m3*84                         6252-17a.    V.T.C.S.,     the Texas Open Records       Act.    Your specific
                                  questions inquire tbout charges that may be made under either statute.
1001 Texas. Suite 700
                                  You also wish clarification       of Attorney General Opinion JM-114 (1983).
Houston. TX. 77002-3111           relating   to charges for records under the Open Records Act.           We have
713mM9S9                          attempted to clerj.fy       this opinion in our answers to your specific
                                  questions.     Eowever, we cannot maks au exhaustive          statement about
                                  charges under the Open Records Act or about the application           of JM-114
                                  to facts not raised in your request.
806 Broadway. Suite 312
Lubbock. TX. 79401-3479
806/747-5239
                                       Your first     and   second questioos    are as follows:
4309 N. Tenth. Suite S
                                                1. fi~y a petitioner   be charged for the cost
McAllen. TX. 7S501~16SS
5121682.4547
                                             and production of records requested in a discovery
                                             motion during an administrative  hearing?

200 Main Plaza. Suite 409                        2. I:: the answer is ‘yes’ to question number
San Antonio. TX. 792052797
                                             (1). may the petitioner be required to either post
 512f225-4191
                                             a bond or pay in advance for the productton     of
                                             such records?
 An Equal Opportunityl
 Affirmative Action E~plov~-             Section    14a of     the Administrative   Procedure     Act.    article
                                  6252-13a. V.T.C.S.,      governs discovery in an administrative    proceeding.
                                  Section    14a providss:; in part:

                                                 Sec.   14a.   (a) Upon motion    of    any party
                                              showing good cause therefor and upon notice to all
                                              other parties,   and subject to such limitations  of
                                              the kind .provided in Rule lg6b of the Rules of
                                              Civil   Pmcedure    as the agency may impose, -the
                                                                                           .-



Ronorable   Bob Bullock           - Page 2        (34-292)




            agency in which an action                    is pending may order   any
            party:

                (1)   to produce and permit the inspection           and
            copying or photographing by or on beha1.f of the
            moving party any of-the following which are in his
            possession,   custod:r,, or control:     any designated
            documents,    papers.     books,   accounts.      letters.
            photographs,    objects,    or tang1bl.e     things,     not
            privileged,   which constitute     or contain,      or   are
            reasonably calculated     to lead to the discovery of,
            evidence material      to any matter involved        in the
            action;   and

                (2)  to permit entry upon designated        land or
            other property    in his possession     or control  for
            the purpose of inspecting,       measuring, surveying,
            or photographing     th.e property  or any designated
            object  or operation    thereon which may be material
            to any matter involved in the action.

               (b)   The order shall specify    the time, place,
            and manner of maki~S the Inspection,      measurement,
            or survey and tnktng the copies and photographs
                      rescribe c:u.ch terms and conditions  as are
            sw%.ed).

                  .   .   .   .

      The language of section    14a(s)(l)   indicates  that petitioner               is
responsible  for duplicating  records.     Thus, he will pay the costs                of
copies.

      Section    14a does not expressly      authorize  placing     the costs of
production    on the petitioner.       It does, however, provide         that the
order    for   production   of   records   “may prescribe      such terms and
conditions    as are just.”    V.T.C.S. art. 6252-15,      §lba(b).     Identical
language appears in Rule 167 of the Texas Rules of Civil Procedure and
similar    language appears in Rule 26(c)(2)         of the Federal Rules of
Civil   Procedure.      The federal    provision    has been interpreted          to
authorize    a judicial   order r,?quiring the party seeking discovery            to
pay some of the expenses incurred in obtaining discoverable            materials.
American Standard Inc. v. Bendix Corp., 71 FRD 443 (W.D. No. 1976).

      A party’s       motion for dixovery                under lba(a)   is

            subject  to such ljmitations                     of the kind provided
            in Rule 186b of t’x Rules                      of Civil Procedure as
            the agency may impose.



                                             p.   1300
Honorable   Bob Bullock   - Page 3   (J&292)




V.T.C.S.    art. 6252-13a. 114(a).     Rule lS6b has beeo repealed and its
subject    matter included in Rule 166b.        See Order Adopting Rules of
Civil Procedure, December 5, 1983.        Tex. Ryiv.   P. Ann. at XV (Vernon
1984 SUPP. vol.        1).  However,    section   14a of article    6252-13a,
V.T.C.S.,    incorporated  Rule 1.86b by reference.    The text of this rule
continues to be part of section 14a despite the revisions        to the Texas
Rules of Civil Piocedure.      !iee guinlan -v. Eouston 6 T. C. Railway Co. ,
34 S.W. 738, 741 (Tex. l&E           Falkner v. Allied Finance Co. of Bae
citp.    394 S.W.Zd 208 (Tex. Civ. App. - Austin 1965, writ              ref’d
n.r.e.).

      Rule lS6b authorized the court, on motion of a party, to exclude
certain matters from the inquiry   or to provide that secret processes,
developments   or research r.eed not be disclosed.     In  addition,    it
included the following omni~~usprovision:

            [T]he court may m&e any other order which justice
            requires  to protect   the party or witness    from
            undue annoyance,     embarrasameot. oppression    or
            expense.

Tex. R. Civ.   Proc.   186b (Vernon 1976).

      Protective    orders msde! pursuant to a motion         for production  of
documents are not restricted          to the protection      of documents from
discovery.     Sobel v. Ta lo?, 640 S.W.Zd 704 (Tex. Civ. App. - Eouston
114th Dist.] ------%
                 1982. no writ      When a request for records under section
14a appears burdensome and costly.          the respondent may seek an order
imposing just conditions       OII discovery   and limiting    the scope of the
order pursuant to Rule 18151~. Such conditions             and limitations   may
include a requirement that petitioner           pay the costs of production.
Conditions    requiring   petitd.oner   to post a bond, pay in advance, or
otherwise insure payment may be included in the order.


      Your third   question   is as follows:

                3.   Is   a request     for   records     under    the
            Administrative     Procedure    Act    to    be   treated
            differently    from a request   for records under the
            open     Records   Act?     If   so.    what    are    the
            differences?

       Requests    for    records     under each     statute    ere to be treated
differently.        Section     14s of        the  Administrative     Procedure Act
authorizes     any party to an administrative         action to seek discovery    of
records in the possession           of any other party if the records contain
material     evidence or information          which might lead to such evidence.
V.T.C.S.     art. 6252-13a.      rltin(a)(l).     The party’s    request to inspect
and copy information is subject             to a showing of good cause, notice to
other parties,      and limitat~.c~ns like those found in Rule lS6b of the
Honorable   Bob Bullock   - Page 4    (-292)




Rules of Civil Procedure.       Id.  Thus, only a narrowly defined class of
persons may use the discove~procedurce           set out in section  140; the
records must be material      to t’he administrative   action, end the agency
applies statutory    standards 1x1 fesolvc disputes on the availability     of
particular  records.

     The Open Records Act entltles    “all persons” to access and copies
of  public  records   held    by governmental    bodies.   V.T.C.S.  art.
6252-17a. 151-4.   The applicmt   for public information is not required
to explain why he wants part::t:ular records.        Section 3(a) excepts from
the requirement of public d:lmlosure         eighteen specific      categories     of
Information;    however, if a governmental body beliwes         information      need
not be disclosed,        it must refer    its decision     to this     office     for
review.     Id. 17.      We do n’3.t address whether a participant             in an
administrative     proceeding    cmld   avoid the reach of section            14a by
utilizing    an open records rc:q,uest as a substitute       for discovery.        We
assume that is a matter            to be addressed     by a request          for   an
appropriate    protective   order,

       The exceptions   from public    disclosure     in the Open Records Act
should not be grafted onto s~~ctlon 14a of the Administrative          Procedure
Act.    Each statute    has a ilI.fferent    purpose.      The requirements   end
procedures    for gaining     access  to records       under each statute     are
different.     Records not avai:Lable to the public under the Open Records
Act might be available          under section     14a of article       6252-13a,
V.T.C.S.,    to a party     to IKL administretlve        proceeding.   Cf.   open
Records Decision No. 108 (1975) (information           should be sought through
discovery,   not Open Records ,Lct).

       Each statute  has its mm distinct         procedural     requirements  for
initiating    and resolving      8. request  for    records.      Even on those
occasions   when a participant     in an administrative      proceeding requests
records under both statutes,        it will be Dossible       to determine which
set of procedures applies      ta each request:     See
                                                    -    Open   Records Decision
No. 180 (1977).

      Your fourth   question   is tm follows:

                4. Under eitht,r the Administrative   Procedure
            Act or the Open Ilocords Act, may we charge for
            personnel    time required   to develop   a search
            pattern for and sea.cch out the records, to arrange
            them in a systemal:ic order not maintained in our
            files,  or to expurgate them?

       We determined in answer ‘to your first and second questions      that a
party    requested   to   produm!     records  under section    14a’ of     the
Administrative     Procedure   I.c t may seek an order        requiring     the
petitioner    to pay the costs aof production.     The determination    of the
reasonable costs of productlax      is a matter for that order.



                                      p. 1302
Ronorablc   Bob Bullock   - Page 31        (JM-292)




       The Open Records Act does not require you to arrange records In
an order not maintained in yo~ur files.         See Open Records Decision No.
145 (1976).      If confidentii.1  inforuatiris          not Intermingled   with
public    information.  you ua:r simply let        the requestor    examine the
originals    and locate the records he wants.        -See Open Records Decision
No. 243 (1980).

      Charges under the Open Records Act are governed by section 9 of
that statute.     Attorney   Gene::al Opinion JM-114 (1983), which construed
this section,     provides   a prutial    answer to your question.     Section
9(a). pertaining     to photocopies    of records on pages up to legal size.
authorizes    charges only for %ose records which are copied.       The State
Purchasing     and General SerrLces Commission [formerly        the Board of
Control]    Is required    to determine and publish      the actual   cost of
standard-size    reproductions.     It has Issued the following  guidelines:

                (a) Maximum charges for office       machine copies
            of pages up to leg;%:1 size (applicable    to Paragraph
            (a) of Section 9).    The charges established      here-
            under are the uaxi~nrm charges allowable      and should
            not be exacted     from requesting      parties   unless
            costs are actually at that level.       Do not hesitate
            to charge less for copies if experience reflects        a
            louer cost.

                   (1)  Fifty-five      cents    per request.   This
               charge is estrblished         by the board for the
               ressin    that     e$ting      up   the  machine  and
               Preparing the records for copying purposes is a
               cost of reprodui=.          . . ,

                   (2) Fifteen  cents per page copied.       The
               board has dete:cnined that the actual cost of
               standard sized reproductions    should not exceed
               15 cents per p;s8e copied,   except as described
               in Paragraph 1 DE this section.

                   (3)   No char(;e for access     under Paragraph
               (a) of Section 9.      In answering requests under
               Paragraph (a) of Section 9. an agency may not
               charge for the y:ime spent by its personnel in
               providing    accejcb to records    pursuant to the
               request.    (Emphasis added).

Document No. 770460,      issued   January 14, 1977.   2 Tex. Reg. 396-97   (Feb.
1, 1977).

      Attorney General Opinion       m-114 determined that permissible    costs
for employee time are buili:        ,into the costs    set under section  9(a).
The guidelines    promulgated       by the State       Purchasing  and General
Services Conmission interpret        the cost provision   in the same way. -See


                                      n.     17n1
Ronorable   Bob Bullock   - Page 6       (JM-292)




Documant No. 770460(a)(l), (3:1, supra. No extra charge may be made
for the time employees spend taking the documents out of the filing
cabinet.

      Section 9(b) governs the charges for access to information          kept
in  computer banks, microfilm   records.   or other similar record keeping
systems.     Attorney   General  Dpinion JM-114 concluded       that    access
charges    could include   the carets of running the computer but not
employee time spent in daletin      portions   of the records excepted from
required    disclosure  under section    3(a).    However, In a particular
case, providing access to pub!.ic information      and deleting   information
excepted from public disclosure      might be accomplished in one program
and therefore would not be separable into “access” or “editing.”

      In addition,   the Texas Supreme Court, referring    to computerized
data which included private     information protected  from disclosure   by
section 3(a)(l),   stated as follows:

                We are      aware    that     the   Board may incur
            substantial      costs      in     its    compilation      and
            preparation     of   the: information,       especially     in
            light of the case-b:f-case        review and redaction of
            the    files    necess:ltated       by   Section     3(a) (1).
            Section 9 of the Acr: makes it clear that all costs
            incurred     in providtng      access   to public     records
            must be borne by the requesting party.

Industrial    Foundation of the !iouth v. Texas Industrial           Accident Board,
540 S.W.2d 668, 687 (Tex. 1976). cert.              denied, 430 U.S. 391 (1977).
The Supreme Court language de1J.t with computerized information subject
to charges for access under ‘9(b).              The redaction      of the files     was
necessitated     by section 3(a)(l).       which excepts from public disclosure
“information      deemed confidential         by law.      either    Constitutional,
statutory,    or by judicial     dec:tsion;” V.T.C.S. art. 6252-17a, 53(a) (1).
This     section     incorporates        laws    providing     for     or    mandating
confidentiality      of particular       governmental records,        and it is not
subject    to waiver on the same terms as other exceptions                   to public
disclosure     under the Open Records Act.           See. e.*..     Attorney General
Opinions E-427, R-223 (1974);           Otien Records Decision No. 237 (1980).
Thus, we believe        the --
                             Indust.rial     Accident    Board case requires         the
requestor      to pay the cost          of   excerpting    3(a)(l)     material   from
information      mainteined    in c:c,mputer records       banks,     including,     for
example, where necessary,        devc:lopment of s search pattern.

                                    .-SUMMARY
                Section 14a of ztrticle 6252-138, V.T.C.S..      the
            Administrative    Proce,iure Act, does not impose upon
            petitioner     the charges    for  producing   records.
            Bovever,    the respo~nding party may request         an
            administrative      ormier placing     the   costs    of
.



    Eonorebla   Bob Bullock   - Page 7 (JM-292)




                production    ou petitioner.      A request     for records
                under article     6252-13e. V.T.C.S..     is to be treated
                differently    from a request under article        6252-I7a.
                each     according      to    the    relevant      statutory
                procedures.      Under the Open Records Act, article
                6252-17a,     V.T.C.S..     the governmental       body may
                under     some circcrutances         exact    charges      for
                providing      access      to   records     and     deleting
                informatlon    subject to section 3(a)(l)       of the act.


                                                   Very I truly   you 4 d    .,



                                                   JIM        MATTOX
                                                   Attorney    General of Texas

    TOMGRERN
    First Assistant    Attorney   General

    DAVID R. RICHARDS
    Executive Assistant Attorney       General

    RICK GILPIN
    Chairman, Opinion     Committee

    Prepsred by Susan L. Garrisor,
    Assistant Attorney General

    APPROVRD:
    OPINIONCOMMITTEE

    Rick Gilpin.   Chairman
    Jon Bible
    Colin Carl
    Susan Garrison
    Tony Guillory
    Jim Moellinger
    Jennifer Riggs
    Nancy Sutton
