    OFFICE   OF THE ATTORNEY   GENERAL   . STATE OF TEXAS

   JOHN      CORNYN




                                                   May 3,2002



The Honorable Rick Perry, Governor                          Opinion No. JC-0498
State of Texas
Office of the Governor                                      Re: Interpretation of Texas Government Code
P. 0. Box 12428                                             section 441.201 concerning the official records of
Austin, Texas 78711                                         a former governor (RQ-0468-JC)

Ms. Peggy D. Rudd
Director and Librarian
Texas State Library and Archives Commission
P. 0. Box 12927
Austin, Texas 78711

Dear Governor Perry and Ms. Rudd:

        You have each asked this office several questions concerning the interpretation of section
441.201 of the Government Code, enacted by the Seventy-fifth Texas Legislature in 1997 as part of
HouseBill 1812.’ See Act ofMay24, 1997,75th Leg., R.S., ch. 873, 8 1, sec. 441.201, 1997 Tex.
Gen. Laws 2792, 2799-2800. Given that your questions relate to the same statute and the same
controversy, we consider them together.

         Section 441.201 of the Government          Code reads:

                           In consultation   with the [State Library and Archives
                  Commission,] a governor may designate an institution of higher
                  education or alternate archival institution in the state, in lieu of the
                  Texas State Library and Archives, as the repository for the records of
                  the executive office of the governor created or received during that
                  governor’s term of office.         Such alternative repository shall
                  administer the records in accordance with normally accepted archival
                  principles and practices and shall ensure that the records are available
                  to the public.     The terms of any such alternative repository



          ‘See Letter from Peggy D. Rudd, Director and Librarian, Texas State Library and Archives Commission, to
Honorable John Comyn, Texas Attorney General (Nov. 19,200 1) (on file with Opinion Committee) [hereinafter Rudd
Letter]; Letter from Honorable Rick Perry, Governor of Texas, to Honorable John Comyn, Texas Attorney General
(Nov. 27,200l)    ( on f I1e with Opinion Committee) [hereinafter Perry Letter].
The Honorable      Rick Perry & Ms. Peggy D. Rudd - Page 2                          (JC-0498)




                   arrangement   shall be recorded            by the commission    through a
                   memorandum      of understanding,            deposit agreement,   or other
                   appropriate documentation.

TEX. GOV’T CODEANN. 8 441.201 (Vernon 1998).

         Pursuant to section 441.201, then-governor George W. Bush in December 2000 signed a
Designation Agreement naming the George Bush Presidential Library, a federal facility under the
authority of the National Archives, as the alternative repository for his gubernatorial records. See
Rudd Letter, supra note 1, at 1; Perry Letter, supra note 1, at 1. A series of questions has arisen with
respect to this designation.   In particular, these questions concern ownership of the records, the
applicability of the Texas Public Information Act to these records, and the role of the Texas State
Library and Archives Commission (the “Commission”) in the designation process.                    As we
understand it, the Office of the Governor takes the view that the Commission need not be a party to
the Designation Agreement and that the agreement need not “incorporat[e] all the specific
requirements of the Texas Public Information Act.” Perry Letter, supra note 1, at 2. It is also our
understanding that the Commission believes that its participation in the agreement is necessary and
that the Texas Public Information Act continues to apply to these records. We conclude that the
records in question are the property of the State of Texas, that the records are subject to the
provisions of the Texas Public Information Act and that the Commission is a necessary party to the
“memorandum of understanding, deposit agreement, or other appropriate documentation.”               TEX.
GOV’TCODEANN.       $9 441.191(a), ,201 (Vernon 1998).

         The language of Governrnent Code section 441.201 was enacted twice by the Seventy-fifth
Texas Legislature, standing alone as Senate Bill 1702 and as a part of House Bill 18 12.2 House Bill
18 12, in the words of the bill analysis, “consolidates, clarifies, and modernizes statutes relating to
the management of state records and the preservation of archival state records and other historical
resources.” SENATERESEARCHCTR.,BILLANALYSIS,T~~.H.B. 1812,75th Leg., R.S. (1997). TO that
end it adds subchapter L to chapter 441 of the Government Code.

         Chapter 441, subchapter L of the Government Code governs the custody and preservation
of state records and establishes the role and duties of the Commission with regard to the preservation
and management of such records. A state record is defined in subchapter L as:

                  any written, photographic,     machine-readable,   or other recorded
                  information created or received by or on behalf of a state agency or
                  an elected state official that documents activities in the conduct of
                  state business or use of public resources.




         2See Act of May 2 1,1997,75th   Leg., R.S., ch. 704,1997   Tex. Gen. Laws 2350 (Senate Bill 1702); Act of May
24, 1997, 75th Leg., R.S., ch. 873, $ 1, sec. 441.201,   1997 Tex. Gen. Laws 2792,2799-2800     (House Bill 18 12).
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TEX. GOV’T CODEANN. 8 441.180(11) (Vernon 1998). As the governor is an elected state official,
see TEX. CONST. art. 4, 8 1, state records include gubernatorial records. It is the task of the
Commission to “take custody oJIpreserve, and make availableforpublic       use state records and other
historical resources that document the history and culture of Texas as a province, colony, republic,
or state.” TEX.GOV’T CODEANN. 8 441.006(a)(8) (V emon Supp. 2002) (emphasis added). Section
441.191(a) provides that “[a] state record may not be sold or donated, loaned, transferred, or
otherwise passed out of the custody of the state by a state agency without the consent of the director
and librarian [of the State Library and Archives].” Id. 8 441.191(a) (Vernon 1998). A governor is
a “state agency” for purposes of subchapter L. See id. § 441.180(9)(A) (“‘State agency’ means . .
. any department, commission, board, office, or other agency in the executive, legislative, or judicial
branch of state government created by the constitution or a statute of this state, including an
eleemosynary institution.“). “The director and librarian is the executive and administrative officer
of the commission      and shall discharge the administrative      and executive functions of the
commission.” Id. Ej441.002(b).

         Section 441.201, which is a part of subchapter L, provides that a governor “[i]n consultation
with the [Texas State Library and Archives Commission]” may designate an alternative repository
in the state for his gubernatorial records. Id. 5 441.201. That repository is an alternative to the State
Library and Archives itself. See id. The terms of the agreement with the alternative repository “shall
be recorded by the commission through a memorandum of understanding, deposit agreement, or
other appropriate documentation.”      Id.

         We note at the outset that it is clear that these records, which were created or received by or
on behalf of an elected state official and document activities in the conduct of state business or use
of public resources, see id. 9 441.180( 11) (defining “state record”), are the property of the State of
Texas. Nothing in the language of section 441.201 transfers title of the documents from the State
of Texas to the alternative repository. See Fitzgerald v. Advanced Spine Fixation Sys. Inc., 996
S.W.2d 864, 865 (Tex. 1999) (statute to be construed according to plain and common meaning of
statutory words). Nor can such transfer be implied. See Massachusetts v. United N. & S. Dev. Co.,
168 S.W.2d 226,229 (Tex. 1942) (interpretation of statute by implication permitted only to supply
obvious intent not expressly stated); see also Fitzgerald, 996 S.W.2d at 867 (words may be added
only in extraordinary situations to effect clear legislative intent).

        Based on our reading of the statute as a whole, as well as its legislative history, we conclude
that no transfer of title was intended. See Jones v. Fowler, 969 S.W.2d 429,432 (Tex. 1998); see
also Citizens Bank v. First State Bank, 580 S.W.2d 344, 348 (Tex. 1979) (legislative intent
determined from general view of enactment). House Bill 1812 and Senate Bill 1702 were both
discussed before the House Committee on State, Federal, and International Relations in a public
hearing on April 22, 1997.3 The question of title to the records was addressed on that occasion.



         3Hearings on Tex. H.B. 1812 Before the House Comm. on State, Fed. & Int ‘I Relations, 75th Leg., R.S. (Apr.
22, 1997) (tape available at House Video/Audio Department); Hearings on Tex. S.B. I702 Before the House Comm. on
                                                                                                      (continued.. .)
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Testifying     as a resource witness, Mr. Robert Martin, who was at that time the state librarian,
responded     to a question as to the state’s ownership as follows:

                   There’s no transfer of title involved. . . . There’s a difference. It’s
                   important to distinguish between ownership and physical custody and
                   assurances of control, disposition, and access. What we are interested
                   in is considerably less physical custody and much more interested in
                   assurances of access and disposition.

Hearings on Tex. S.B. 1702, supra note 3. Representative Bob Hunter, the author of House Bill
18 12 and the sponsor of Senate Bill 1702, echoing Mr. Martin said:

                   [T]he custody is one thing, the ownership by the state of course is
                   always there.

Id. (emphasis added). These records, therefore, remain the property of the State of Texas, and retain
their characteristics as Texas state records.

        In light of our conclusion that the records remain the property of Texas, we consider whether,
given that the George Bush Presidential Library is a federal facility, the terms of availability for the
records are determined by the Federal Freedom of Information Act or the Texas Public Information
Act. In our view, these records of the State of Texas remain subject to the Texas Public Information
Act.

         Section 552.002(a)( 1) of the Government Code specifically defines “public information” as
“information . . . collected, assembled, or maintained . . . in connection with the transaction of
official business . . . by a governmental body.” TEX. GOV’T CODEANN. 8 552.002(a)( 1) (Vernon
1994 & Supp. 2002). “Governmental body” is defined by the Public Information Act as, inter alia:

                   a board, commission, department, committee, institution, agency, or
                   office that is within or is created by the executive or legislative
                   branch of state government and that is directed by one or more
                   elected or appointed members.

Id. 6 552.003(l)(A)(i) (V emon Supp. 2002). “Records received or created by the governor’s office
in carrying out its statutory duties are subject to the Open Records [now Public Information] Act and
may be withheld from the public only if one of the act’s specific exceptions protects them.” Tex.
Att’y Gen. Op. No. JM-1013 (1989) at 3.




State, Fed. & Int’l Relations,   75th Leg., R.S. (Apr. 22, 1997) (tape available at House Video/Audio   Department).
. The Honorable Rick Perry & Ms. Peggy D. Rudd - Page 5                          (JC-0498)




          Section 441.201 does not expressly remove a former governor’s records from the ambit of
 the Texas Public Information Act. See TEX.GOV’T CODE ANN. 0 441.20 1 (Vernon 1998); Fitzgerald,
 996 S.W.2d at 867 (words may be added only when necessary to give effect to clear legislative
 intent). Further, exceptions to the Texas Public Information Act must be expressly provided. See,
 e.g., Tex. Att’y Gen. ORD-644 (1996)’ ORD-478 (1987) (statute must expressly make information
 confidential in order for information to be excepted under Public Information Act). Given that
 section 441.201 requires that the records be “available to the public,” see TEX.GOV’T CODEANN. 8
 441.201 (Vernon 1998)’ and that the ordinary standard for what constitutes the “availability” of
 Texas public records such as these is that of the Texas Public Information Act, we conclude that the
 public availability mandated in section 441.201 is governed by the Texas Public Information Act,
 chapter 552 of the Government Code. The director and librarian of the Commission, which retains
 constructive custody of the records on behalf of the state, see id. 85 441.006(a)(S), .193 (Vernon
  1998 & Supp. 2002), is the public information officer with respect to them for purposes of the Texas
 Public Information Act. See Tex. Att’y Gen. ORD-674 (2001) (duty and authority under Public
 Information Act of director and librarian with respect to archival state records). As a general matter,
 information in such records that was confidential under the Texas Public Information Act when they
 were in the custody of the governor’s office remains so, and the director and librarian is charged with
 the responsibility of maintaining that confidentiality.  See id.

          As to the third major question with which you are both concerned, it has been suggested that
 the role of the Commission under section 441.201 is simply a ministerial one of recording an
 agreement between the governor and the alternative repository institution.4 We disagree. While the
 language of the section read in isolation might be susceptible of such an interpretation, when read
 in light of the other provisions in subchapter L, as well as its legislative history, section 441.201
 clearly requires a more active role for the Commission as a party to the memorandum                 of
 understanding or other documentation.       See Fowler, 969 S.W.2d at 432 (statutory provision in
 question to be considered in context of entire act); see also Citizens Bank, 580 S.W.2d at 348; TEX.
 GOV’TCODEANN.         80 311.021(2) (V emon 1998) (presumption that entire statute is intended to be
 effective); .023(3) (legislative history may be considered); .025(b) (amendments to same statute in
 same legislative session to be harmonized if possible).

          We conclude that the Commission,          which is the ordinary keeper of such state records, see
 TEX.GOV’T CODEANN. 4 441.006(g) (Vernon Supp. 2002), is a necessary party to the memorandum
 of understanding or other necessary documents contemplated by the statute to ensure that the records
 at issue are properly archived and available to the public. The statutory language gives the governor,
 “[i]n consultation with” the Commission, only the power to designate-that            is, to name-the
 alternative repository. See id. 5 441.201 (Vernon 1998). The duty to administer the records is given
 to the repository, and the arrangement is to be recorded by the Commission. See id.




         4See Letter Brief from James C. Todd, Office of Attorney General, on Behalf of the Office of Governor, to
 Susan Denrnon Gusky, Chair, Opinion Commit-tee, Office of Attorney General, at 3 (Jan. 11,2002) [hereinafter Letter
 Briefl.
The Honorable Rick Perry & Ms. Peggy D. Rudd - Page 6                   (JC-0498)




        A reading of section 441.201 in which the Commission does not participate in the
memorandum of understanding creates an irreconcilable conflict between that section and section
441.191 of the Government Code, which prohibits the transfer of state records without the consent
of the director and librarian. See id. 8 441.191(a). A brief submitted on behalf of the Office of the
Governor recognizes this point by arguing that “section 441.201 . . . overrides [section] 441.19 1.”
Letter Brief, supra note 4, at 5.

         Both sections 3 11.02 l(2) and 3 11.025(b) of the Government Code, which express established
principles of statutory construction, require us to harmonize sections 441.191 and 441.201 if
possible. See TEX. GOV’T CODEANN. $8 3 11.021(2) (entire statute presumed effective); .025(b)
(amendments to same statute in same legislative session to be harmonized if possible) (Vernon
1998). We believe it is in fact possible to do so. In giving the governor the power to designate an
alternative repository so long as that repository meets the statutory conditions, section 441.201 limits
the authority generally given the director and librarian in section 441.19 1 to prevent the transfer of
state records. However, the alternative repository must be capable of “administer[ing] the records
in accordance with normally accepted archival principles and practices” and “ensur[ing] that the
records are available to the public.” Id. 8 441.201. The agency of the State of Texas with the
expertise to decide whether the alternative repository possesses those qualifications             is the
Commission, the ordinary caretaker of state records, see id. 5 441.006(a)(S) (Vernon Supp. 2002);
moreover, the Commission, unlike the federal facility at issue in the instant case, is acquainted with
and can assure compliance with the requirements of the Texas Public Information Act. Reading
section 441.201 to require that the memorandum               of understanding     or other appropriate
documentation include the participation of the Commission insures that the necessary arrangements
will be made with the oversight of the body otherwise entrusted by the legislature with the care of
such records as these.

        Moreover, the legislative history of section 441.201 presents clear evidence that the role of
the Commission is not merely a passive one. In addressing the concerns expressed by certain
witnesses with respect to the archiving and availability of these records before the House Committee
on State, Federal and International Relations, Representative Hunter said:

                But the important thing is that the State Library and Archives
                Commission will have the control and will have the administering of
                these agreements, and every agreement will be not only a
                memorandum of understanding, but there will be a deposit agreement
                and other appropriate documentation, and I have full confidence in
                the State Library and Archives system for accomplishing this.

Hearings on Tex. S.B. 1702, supra note 3 (emphasis added).

        Based, therefore, both upon our reading of section 441.201 in the context of House Bill 18 12
as a whole and the evidence of the sponsor’s remarks in the legislative hearing, we conclude that the
Commission is a necessary party to the memorandum           of understanding or other appropriate
The Honorable Rick Perry & Ms. Peggy D. Rudd - Page 7                      (JC-0498)




documentation contemplated       by the statute to ensure that the records at issue are properly archived
and available to the public.

         In short, we read section 441.201 as a limited exception to the general scheme ofpreservation
of state records set out in subchapter L of chapter 441 of the Government Code, giving a governor
the power to designate an alternative repository for his gubernatorial records, but according him no
other authority to alter the manner in which such records are preserved or made available to the
public. The statute conditions that authority on the ability of the alternative repository to meet the
stated terms regarding normally accepted archival principles and practices and public accessibility,
and it is the duty of the Commission, as the body ordinarily concerned with the archiving of state
records, to determine that those conditions are met. The choice of repository, so long as the statutory
conditions are met, belongs entirely to the governor whose records are at issue.

        As to the other questions you have asked, we will respond briefly. Governor Perry has asked
the extent of his responsibility with regard to information contained in the records that are at issue
here. See Perry Letter, supra note 1, at 2. The responsibility of the current governor’s office is to
respond to requests for information in its possession or to which it has a right of access. See TEX.
GOV’T CODEANN. 8 522.002 (Vernon 1994 & Supp. 2002). If copies of any of the records at issue
remain in the possession of the governor’s office, it must treat them as it would any other requested
public information. But the governor’s office need not respond to requests for records of which it
does not have possession or to which it does not have access. See id.

        Ms. Rudd asks: “Does the term ‘executive office of the governor’ used in the statute mean
something other than all the records of the Governor’s Office, including such offices as the Office
of Budget and Planning, Office of Criminal Justice, Committee on People with Disabilities, etc.?”
Rudd Letter, supra note 1, at 2. Section 441.201 applies to “the records of the executive office of
the governor created or received during that governor’s term of office.” TEX. GOV’T CODEANN. 5
441.20 1 (Vernon 1998). The phrase “executive office of the governor” is not defined in the statute,
nor has our research in the legislative history afforded us any definition of it. See id. Cj3 11 .Ol 1(a)
(“Words and phrases shall be read in context and construed according to the rules of grammar and
common usage.“); (b) (“Words and phrases that have acquired a technical or particular meaning,
whether by legislative definition or otherwise, shall be construed accordingly.“). Accordingly, we
must look elsewhere to determine its meaning.

         We take it, first, that the legislature is not referring to the Office of the Governor as an entity
in the Executive Department, because such reference would be superfluous. See TEX. CONST.art.
4, 0 1 (officers constituting Executive Department include “Governor, who shall be the Chief
Executive Officer of the State”); TEX.GOV’T CODEANN. 8 3 11.02 l(2) (Vernon 1998) (presumption
that entire statute meant to be effective). The Oxford English Dictionary defines “executive,” inter
alia, as “[plertaining to execution; having the function of executing or carrying into practical effect.”
V OXFORDENGLISHDICTIONARY522 (2d ed. 1989). In interpreting a provision of the 1993 General
Appropriations      Act that permitted the purchase of director’s or officer’s liability insurance for
“executive management staff’ of state agencies, this office in Attorney General Opinion DM-346
The Honorable     Rick Perry & Ms. Peggy D. Rudd - Page 8                       (JC-0498)




examined cases dealing with the phrase “executive officer” and noted such characteristics as
authority, control of employees, and ability to help shape policy. See Tex. Att’y Gen. Op. No. DM-
346 (1995). Further, the legislature, in the General Appropriations Act, routinely distinguishes
between the Office of the Governor and trusteed programs within that office-essentially            grant-
making bodies5 In light of the dictionary definition, the criteria discussed in Attorney General
Opinion DM-346, and the General Appropriations Act distinction, we think that records of the
executive office are records concerning the shaping of policy and the execution of the law by the
governor and his staff, rather than, e.g., records kept by the governor as essentially a trustee of grant
funds. What records are so identified with the workings of the governor’s office as to be within the
meaning of the phrase “executive office of the governor” in any particular instance is, however, a
question of fact.

         Finally, Ms. Rudd asks whether inspection of these records by either the National Archives
or a representative of the former governor “waive any right to an exception from disclosure under
the Texas Public Information Act.” Rudd Letter, supra note 1, at 2. Given that Government Code
section 441.201 requires the alternative repository to administer the records and that the National
Archives is responsible for the alternative repository, it would appear that the legislature has in this
section given a statutory right of access to the alternative repository, and in this case to the National
Archives, because absent a right to review the records, the repository could not perform its duty to
administer them. Accordingly, given this statutory right of access, a review by the National
Archives would not constitute a public disclosure under the Texas Public Information Act. See, e.g.,
Tex. Att’y Gen. ORD-607 (1992)’ ORD-598 (199 1), ORD-501(1988), ORD-500 (1988)’ ORD-478
(1987)’ ORD-45 1 (1986). Whether a disclosure to any particular individual would constitute a
waiver to any exception under the Act, however, is a question requiring factual determinations of
a sort this office does not make in the opinion process.




          ‘See General Appropriations Act, 77th Leg., R.S., ch. 15 15, 2001 Tex. Gen. Laws 5411, 5479-83; General
Appropriations  Act, 76th Leg., R.S., ch. 1589, 1999 Tex. Gen. Laws 5446,5513-18;  General Appropriations Act, 75th
Leg., R-S., ch. 1452, 1997 Tex. Gen. Laws 5535,5596-600.
The Honorable Rick Perry & Ms. Peggy D. Rudd - Page 9                (JC-0498)




                                       SUMMARY

                       Section 441.201 of the Government Code permits a governor
               in consultation   with the Texas State Library and Archives
               Commission to designate an alternative repository in the state for his
               gubernatorial records. The records remain the property of the State
               of Texas, and remain subject to the Texas Public Information Act.
               The terms of an alternative depository arrangement          must be
               memorialized    in a memorandum       of understanding      or other
               appropriate documentation    to which the Texas State Library and
               Archives Commission is a necessary party.




                                              Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee
