                                  TISEA'ITORNEYGENERAI~
                                           ow TEXAS
                                        AUSTIN. 'J%XAS
                                                     1SVll
      JOHN     E     EM&
*--                o-AJ.

                                                          June 4, 1975


             The Honorable   Bill Clayton,            Speaker                   Opinion   No.   H- 621
             House of Representatives
             State Capitol                                                      Re: Responsibility     of Speaker
             Austin,  Texas   78711                                             of the House under Open Records
                                                                                Act with respect    to records
                                                                                relating to individual   members.

             Dear    Speaker       Clayton:

                     You have requested    our opinion                concerning  procedures  utilized by the
             House of Representatives   in processing                  requests  under the Open Records   Act,
             article 6252-17a, V. T. C. S.

                           Your   specific    questions     are   as follows:

                                    1. Am I correct   in maintaining    that as Speaker of the
                                    House I am the “custodian”     of public information   dealing
                                    with the general operation    of the House of Representatives
                                    and that as such I may set up reasonable      procedures    for
                                    processing  open records    requests?

                                    2. Am I correct     in assuming    that as custodian  of the
                                    records,    I may delegate  all or any part of the responsibil-
                                    ity of handling open records     requests  to any divisible
                                    operating.units   within the House?

                                    3. Because      each member      of the House of Representatives
                                    is an elected    state official  and has autonomous      control   over
                                    operations    dealing with that member’s        own account,     am I
                                    legally  authorized    to delegate   to each member     the responsibility
                                    of handling open records, requests        dealing with that member’s
                                    account?




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                4. As long as all persons        to whom the custodial     function
                may be delegated     are instructed    to provide   full and complete
                information    in an expeditious    manner,   is there any aspect of
                this procedure    which is unduly or illegally     restrictive    of the
                rights of the public to have access       to any public information
                held by the House?

        We answer your first question     in the affirmative.    The office of Speaker
of the House is a Constitutional    one.  Tex. Const. art. 3, s 9, 0 38. As pre-
siding officer  of the House of Representatives,      you are the custodian  of public
records   held by the House,   within the meaning of section    5(a) of the Open
Records   Act, which provides    in part:

                (a) The chief administrative    officer    of the governmental
                body shall be the custodian   of public records.      . , . It
                shall be the duty of the custodian    . . . to see that the
                public records   are made available     for public inspection
                and copying.   . . .

        We spoke to the question  of who is custodian  of county records held                 by
the county clerk in Attorney  General  Opinion H-115 (1973).   There we said:

                    It is apparent      that § 5 of House Bill 6, in making the
                chief administrative        officer   of the governmental     body the
                custodian     of public records,       intended by that provision      to
                focus the responsibility         for the success    of the Act upon
                those who have it within their power to make the Act viable.
                It is obvious that it was not the intent that the chief adminis-
                trative   officer,    in this case, the county judge, actually,
                physically     have custody as would the county clerk.            Thus,
                for example,       in Subsection     5(b) the statute refers    to the
                custodian’s      ’agent who controls       the use of public records.     ’

                      As we interpret   the Act, the county clerk retains
                ,physical   care,  custody and control    of the records     u#ich, by
                 statute, he is required    to maintain.    The responsibility      for
                 seeing that county records,     including   those maintained      by the
                 county clerk as well as those maintained        by other county
                 officers,   are disclosed   when required by House Bill 6, is placed
                 on the county judge - the chief administrative        officer   of the
                 governmental     body.



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The Honorable      Bill   Clayton   - Page   3




           Thus, you are responsible    as the custodian         of public records    of the
House     to see that those records  are made available           for inspection   under the
Act.

        In regard to establishing        procedures,   section     13 of the Open Records
Act provides   that:

                  Each governmental     body may promulgate   reasonable    rules
                  of procedure   by which public records   may be inspected
                  efficiently, safely,  and without delay.

         Section 11 of article    3 of the Texas Constitution   provides   that “Each
House may determine       the rules of its own proceedings.      . . . ” Pursuant to
this authority   the current   Rules of the House of Representatives        provide   that
the Speaker “shall enforce       the Rules of the House,    and the Legislative     Rules
prescribed    by the Statutes and Constitution     of Texas. I’ Rules,   House of
Representatives     64th Legislature,     Rule 1, sec. 4.

          In addition,    it is well settled that a law which imposes   a duty on an
officer    carries   with it by necessary    implication the authority to do such things
as are    reasonably     necessary   to carry out the duty imposed.    47 Tex. Jur. 2d
Public    Officers   $110 p. 145, n. 2, and cases cited therein.

         We believe  that it is~clearly   within thepcrvers of the Speaker to set up
reasonable  procedures~ for processing       requests  for public information,  except
as might be otherwise    provided    by law or by the Rules of the House.      We are
aware of no House Rule which restricts         the Speaker in this regard.

          The Open Records       Act establishes    certain procedural      requirements    for
dealing   with requests for     public information.       The principal    ones are as follows:

                  . The custodian has the duty to see that public records
                  are made available    for public inspection and copying
                  during normal    business hours of the governmental    body.
                  Sets.  3(a), 5(a).




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                  . The custodian     or his agent shall give,   grant, and
                  extend to the person requesting     public records    all
                  reasonable   comfort   and facility for the full exercise
                  of the right to access    granted by the Act.    Sec. 5(b).

                  . The custodian     shall promptly    produce public informa-
                  tion for inspection   or duplication,    or if not available   at
                  the time of the request,    shall certify   in writing   that it
                  is in use or storage    and set a date and hour when it
                  will be available.    Sec. 4.

                  , No inquiry may be made of the person requesting
                  public records   beyond establishing   his identity and
                  what records   are requested.     Sec. 5(b).

                  . Suitable  copies of all public records   must be pro-
                  vided within a reasonable    time after the date copies
                  are requested    and costs of copies shall not be
                  excessive.    Sets.  9 (a), 9(c).

                  , Requests for information     determined    by the govern-
                  mental body to be within an exception,      but as to which
                  there has been no prior determination      that it is excepted,
                  must be forwarded    to the Attorney   General   within a
                  reasonable   time,  no later than 10 days after receipt     of
                  a written  request.   Sec. 7(a).

       Subject to these requirements         of the Act, “Each governmental
body may promulgate      reasonable    rules of procedure    by which public      records
may be inspected  efficiently,    safely,   and withow delay. ” Sec. 13.

           Your second question  inquires  as to the extent to which       the responsibil-
ities   to handle requests for information   may be delegated.

        It is a general    rule that public duties must be performed     and govern-
mental powers     exercised    by the officer designated   by law and that they may not
be delegated   to others.     Newsom    v. Adams,   451 S. W. 2d 948 (Tex.   Civ. App.
-- Beaumont     1970, no writ hist.);    Moody v. Texas Water Commission,        373
S. W. 2d 793, 797 (Tex.       Civ. App. -- Austin 1963 writ ref’d n. r. e.).    This




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The Honorable      Bill   Clayton   - Page   5




ancient rule is expressed      in the maxim:      Delegatusncn    notest delegare    (the
person to whom a duty is delegated         cannot lawfully    devolve   the duty on
another,   unless expressly     authorized   to,do so).    However,     ministerial   or
administrative     functions not calling for the exercises of discretion         may be
delegated    to agents to perform    those functions.      47 Tex. Jur. 2d Public
Officers    5114, pp. 149-150 and cases cited therein.

         Thus, while the duties and responsibilities       imposed   by the Open
Records   Act may not be delegated,      you may perform      the duties through agents.
Section 5(b) of the Act refers    to the custodian’s   “agent who controls      the use of
public records”    and to “the custodian    or his agent. ” We have said that this
clearly  contemplates    the probability  that an agent, not the legal custodian,
will control  the actual use of public records.      Open Records      Decision   No. 44
(1974).

        Our answers     to your first two questions     are that as chief administrative
officer  of the House of Representatives,     you are the legal custodian      of public
records   of the House and have the duty “to see that the public records          are
made available    for public inspection   and copying . , . .‘I Sec. 5(a).       The Act
and the Rules of the House authorize      you to establish    reasonable   procedures
“by~which public records may be, inspected       efficiently,   safely,  and without
delay. ” Sec. 13. While your duties under the Act may not be delegated,               the
Act clearly   contemplates    that they may be performed      through agents to whom
you have delegated    actual custody and control     of public records.     Sec. 5(b).

          Your third question      is whether you have authority          to delegate  to each
member      the responsibility     of handling   open records      requests    dealing with that
member’s      account.     It is your position    that since members         have autonomous
authority    over their own payroll      accounts,     they are in the best position      to
determine     whether    the particular    information     requested    is or is not excepted
from required      disclosure,     and also to answer questions         concerning    the infor-
mation.

        As we have indicated       above,’ the Act clearly      contemplates   that you            ’
may perform    your duties through agents who have actual custody and control
of the public information.       The Act gives the House, and the House hasp given
you authority  to adopt reasonable        procedures   to insure that “public     records
may be inspected    efficiently,    safely,   and without delay. ” Sec. 13. Of,course,
while certain  duties may be delegated,         the custodian’s    ultimate  responsibiIity
may not.




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The Honorable     Bill   Clayton   - Page   6




          We have said that the Act does not require        a governmental      body to
notify the individual     about whom information     is requested.     Attorney
General    Opinion H-90 (1973).      Except to’the extent that it would cause un-
reasonable    delay,   neither does the Act prohibit     such notice,    and the procedure
you have described       does serve the purpose    of such notification.      We cannot say
that providing    members      with notice and an opportunity    to assert   the applicability
of specific   exceptions    is unreasonable.    Of course,    the determination     that an
exception   applies   is for the custodian   to make.    3

        We cannot say as a matter of law that your procedures              are unreasonable.
The q.uestion of whether a particular procedure is reasonable             is a question of
fact which we cannot determine.

        We must make the same response        to your      fourth qm stion as to whether
the procedure  you describe    “is unduly or illegally      restrictive of the rights of
the public to have access   to any public information        held by the House. ”

         The procedure   you describe is not necessariy   violative   of any provision
 of the Act, although in a particular situation it may be shown to have been.         All
 we can answer is that it cannot be said that it is unduly restrictive     or unreason-
,able as a matter of law.

                                    SUMMARY

                      The Speaker is “custodian      of public records”   of the
                 House of Representatives.         The Speaker may establish
                 reasonable     procedures    for public records, to be inspected
                 efficiently,    safely, and without delay.     He may perform     his
                 duties through agents and may delegate          to them authority  to
                 promptly     produce public information      and to make it available
                 for inspection     and copying.

                     The Speaker’s responsibility       to see that public records      of
                 the House, are made available.for        inspection may not be
                 delegated.




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 The Honorable   Bill   Clayton   - Page   7




                    A reasonable     and expeditious       procedure, whereby
                 requests   are directed     to individual    members  to whom
                 the information    relates,    cannot be said as a matter    of
                 law to violate  the provisions       of the Open Records  Act.

                                                     Very   truly   yours,




                                                     Attorney   General      of Texas

APPROVED:




C. ROBERT   HEATH,        Chairman
Opinion Committee

jwb




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