                         The Attorney General of Texas
JIM MAlTOX                                 Decemhcr 30,      1983        r
Ammey Qeneral


                      l4r. Bomr A. .Poerrtcr                              Opinion     No.   JM-114
                      lhecutive   Director
                      State Pnrchadng      6 Gencrul                      get   Coats to pcrrooe          requeotlog
                          Service8 Comisriou                              iaformetioo    under            the    Open
                      P. 0. Ilox 13047. cepltol      Scacloa              Records Act.   article           62S2-17ar
                      AImtin.   Teus      78711                           V.T.C.S.

714J~suHom
                      .Dear llr.   Poerocer:
Dalle%l% 7wo2406
2l4!742d644
                             Section     9 of the     open   Recorda     Act,     article   6252-17e.      V.T.C.S.,
                       prwidca

                                           (8), ,.The     cost      co    *v      per&n        requesting
                                   ,-~rumcertified       photographic       ~nproduCtl00e       of public
                                     recorda. coaprhed           of pagee up to legnl alre &all
wal1au*&&m                           not be acea8ive.                The State       I)oard of Control
nouma. lx 770624111                   lhll     from time to time determine the ectu~l coet
7l-                                  of      ~:scaodard      efte      reproduction0          and     Dhell
                                    .periodiully         publieh these coot ‘fiyreo            for use by
                                     egeucier        in    determining        charge*      to    be medc
                                     pursuant co thie Act.
                                      I..< ._ :
                                    .5 ~(b.. Chaaea          rde'for       lcceim:~to“poblic       record.
                                      caqrtud         in 8uy form orb&r: eke8 +              to ltendud
                                      airod pager or in corptlter            record banke. dcroftlm
                                    ~rrcordw,~~or other. Limildr~.ronord              ~kmp*       8ptY.
                                      *till. i~.bAY*et .-!.opoll ~lt&~o6’;~~~~                           th
                                    -ucrtoodlau ,o& :+he'.recorda           kd    thd    State Board of
                                      Control,      riving     due consideretlon        to the ,+X'paUeO
                                      Involved      in providing’the          $ublic':records        -818
                                     .wery effort         co utch      theF’clu~aa      virh   the’ketual
                                      coat.of providing          the recorda.

                             ,You:luve    leked the follouing         quemtiono      roacemi~      thir   prwtilm:

                                        1. If l r eq ueo c for. copiii      of open recorde
                                    requlreo    the   gwenmental      <body to ucillze     the
                                    uwicw      of ice >aployeee      to make the copier of
                                    etandard   lized recorde under subuction          (A). uy
                                    the governmental     body include   in ice determirutlon
                                    of.chargeo    *‘charge for that employee’0     timet
Hr. Homer A. Foerscer          - Pege 2    (J&114)




                    2.  If   no copies       are    requested,      may the
                governments1    body cherga      for    the    time of its
                employment    spent    In making the standard           sized
                records svailsble     for review?     (The  CollllaLaeion  has
                not assessed     such s cbsrge itself.          but baa not
                tekeo s position     for other governmental       bodies.)

                 3. If the governments1               body must edit         out
             privileged,     or excepted,      infomtion       before making
             requested     copies.    may the governmental        body charge
             for thir       editing     process?       Is it     possible     to
             consider     that the necessity         for editing     requested
             material     makes the request          one under subsection
             (b) where a coat of access would be sllowad?                   (The
             c~aaion         baa considered          that   subsection       (b)
             applies     in such cases.        and has suggested         during
             consultations        thereunder     that such editing        costs
             be included as a coat of access.)

                 4. What remedy do requesting            parties    have in
             catsea where they are being charged In excess of
             reproduction      coats published     by the c~saion.         or
             vhere the governmental         body assesses      Its charges
             under subsection        (b) nnd refuses     to consult     with
             the comlaaion        as required,    end where s complaint
             la    raised      by     the   requesting     party?        (The
             caPiaalon      baa not seen lta role hare to include
             enforcement       in any sense.         We have      published
             reproduction       costs.    as per the attached          Texas
             Register    article,     and carry out conaultntiona       vith
             gwarnmantal       bodlea atatevide      as ve are contacted
             and as needad.)

            ,   5.    Ins determining    a coat   of    access  under
            .aubaection.   -(a) to what extent,      if   any. pay a
            ~warnaental      body include “overhead” chergea?

       The -l.anguage.and    -1egialetive  hlatory     of section      9 shed little
light   on your quaationa.        We must therefore     anaver them in the manner
which. In our opinion.       maat fully comports vith the legislative              intent
underlying      the Open Records Act.          The folloulng        vell-establiahad
principlea     muat guide our lmelyaia:       (1) the fundsmanta          objective      of
Statutory     construction     is to nacartain      legialativc      intent;      (2) in
deciding    how a atetute      should be applied,      one pay consider        the ends
which the legielature         sought to achieve      in enacting      it;    and (3) s
statute    should be given a aenaible      construction      which fscflitates         the
achievement      of its objective , not one which defeats         its purpose.         See
generally     Citizens    Bank of Bryan v. First       State Bank of Hearne. 580
S.W.Zd 344 (Tut. 1979); Snlas v. State. 592 S.W.2d 653 (Tex. Civ. ASP.
    l4r.   homer A. Foerater     - Pegs 3       ml-114)




    - Austin 1979, no vrit).    Moreover. atstutes fixlnS official                      fees are
    strictly  construed against  allouinS a fee by impllcatloo.                      See
                                                                                     --     Moore
    v. Sheppard, 192 S.W.2d 559 (Tea. 1946).

           We will     addraaa    your    second    question 1. first.        Govenmencal
    entities    may charSe only those c o a to      luthorlr6d      by aectiov9.       Your
    second question      refers,  co “acanderd      a&cd      records.”    vbich   lre  the
    Nbjact      of aubaectioa      (a)   of    la c tio n  9.      Subaactioo    (a)   only
    luthorfzea     charges    for   reproductions      of     atandard    aired   records.
    I(mifeatly,    where no reproductloa         le mede, no coats are authorized
    under Nbaection      (a).

            Your first   question    doee ass-       a reproduction.    Subsection    (a).
    however, explicitly        lutho~a        only the charging of “the actual        coat
    of standard size raproductiona.~             To'mmvar yonr first    quaetion    in the
    affiiutive,        we vould     have    co conclude     that   the charges     for an
    employee’s      tlrc   to which       you refer     are impliedly    authoriaed     by
    aubaection     (a).   We ca+ot.      hovaver.   reach this conclusion.

           A governmental    latlty.employe      individuals.      and compenaatea them.
    to aaalat    it in discharging       its  lewful. duties       and functlona.     Amoog
    theaa duties and functlona~ ia the -.obligatlon               to prwldC     the public
    vlth tbet to which it la entitled           by law.       Uhere the law In queetlon
    ie   the   Opeo Records       Act;   the “duty”       is    to prwida      informatloo
    collected,    aaaemblad,    or mslntalned      by the entity        to members of the
    public who request it and ere legally           entitled     to It.

           NothinS short.. of en upliclt~~dacleration                vould convince     us that
   .the .legielatura      intended     that gwenmental         lntitiaa    be eble to Y.mpoae
   a separate cbrga          co the public       for the tiu      apent by tbelr employees
    in compiling      luhaeccion      (a) records aad uking            them lveileble     to the
   puhllc;     4s n&ted,; .a gwenmental           .mployee.vho      prwidae cprtblic records
   to ~th:public        is lirply~~diacharg~~~ona.           of his, primmy duties -as a
   *wenmehtal        a@*&.          ‘llada paid %~Whe”entityfor’            diachargbig      such
+ ‘duties.     ,~Abaant erpraa~~~acattitorJ~        auttmrity, we :.dd ‘not ‘bellava         that
   entftiea     uy    iwaffect       require ;the pnbiic        to r&imburae them for the
    ttc    .apentby their amployeaa “in pro-Ad*                 the public ‘tith      e aerplca
    to  which *it ,~ia 1eSally          ~tltlcd.~.~:~~If~~,the service       provided ~by the
   entity    is required .by law -to be prwfded,                va believe     that tha coats
    incurred    in~prwidlog       the service uatsbe          borne by the entity        ltaalf.
   Tba ,entity     uy     pass theee coats lloag to the public                 only ,if ‘it      ia
  -expree~ly~authorirad         co do so.

           \rrtharmorer      section    9(a)    mqulrea       the   Stats    PurchaeinS     and
    General     .Servlcee    Coliaalon       [fomarly       the    Board of Control]          to
    determine      the “actuel     cost of atendard       size    reproductions.”       In our
    opiaiou,      the   coats     set  by the      co~lssion        under    this   provision
    coaprahend       employee     time   in    compiling      records     and msklng       them
    lvaltible      to the public.       The amount vbich          the c o mlsa lo n   lata se
Mr. Homer A. Fozrat~er - Page 4                 (JM-114)




“actual coats” normslly  exceeds co some degree the coat to an agency
of merely msking copies.   We believe  chat a charge for employee time
is built into the costs set by the board under section  9(a).

       Your third queation~eaaentially               lzka vhether       it is permlaaible           to
cberge the public            for the tiw         spent by governmen trill employees                 in
deleting      from requested           mstariala       those     portiona      excepted         under
section 3(a) of the act.              For the reasons we have given, we are firmly
of the opinion           Hut.      under the act as presently                 vrittan,         it   is
lmpermiaaible       co charge for cpplo]ree time spent in coz@ling                             and/or
reproducing      up-to-standard         size documents,         which are the subject               of
aectlon     9(a).      We are even more strongly                    convinced        that      it    Is
impermiaaible       to charge for employee tin? spent in daletlng                          excepted
material     from such documenta.              Where employees         colpile      or reproduce
uteriala       for l requestor.           they are performing            a service        for that
requestor.        Therefore, one could argue that                   if tbe act ehould be
construed     as permitting         s     charges for employee time. it should be
these    chargea,        since     the    expenditure        of employee         tire      directly
benefits     the requestor.            But where the employee              time is spent             in
deleting    meterial       from the requested          infomation - vhlch,             of course,
the gwe-ntal              entity    is not obligated          to do except where section
3(a)(l)     InforPstlon        .:ia involved     .--    it   cannot     be argued         that     the
raquaator      benefits.      in any vey from the expenditure                     of time.           To
conclude     that a governmental             body may ~charga a requestor                 for time
spent by its         ewployeea        in urrying         out its      daciaion       to withhold
material     frcln the requestor           is to concludzhat              it may charge            the
requestor       for    informstlon         that     he     does    not    get.        Under       this
conclusion,      the more the governmen t decides                coxthhold,         the more the
requestor     vi11 have to pay.             We do not believa          this is a reeaonable
result.

        lha rarining          laaue is whether it. is parmiaaible                to charge for
 employee time.rpent             in deletinf...excepted         uteriel       -from inforution
 cdraced      vithin     aubaaction I          of ~aaction 9.       Subsection     (b)~. uhich is
-quotad .in full.at            the outset        of thie     opinionV     doao~!authorisa       the
 charging       of certain         expmaea        involved     in    “providing      the    pnblic
 records”       to which it          applies.        This   aubaactlon       was -construed       in
 Rendricka v. Boilrd of Ttiatees                  of Spring      Branch Independent         School
 District,.      525 S.W.Zd 930 (Tex. Civ. App. - Rouaton [let Diet.]                        1973,
 vrit    ,ref’d     n.r.6.).       which.     ve note.       quite    clearly     distinguishes
 between      lubaactlona         (b) and (a) .of section               9 Nd       supporta     our
 ~conclusion that “access” charges are not permitted                        for up-to-standard
 sized reproductions.              See especially        FIendricks. m.           at 933, which
 refers     to “the class        [of uteriala]         for vhich no charge uy be made.”
 a,       the rterial        embraced in subsection           9(a).     (Emphaafa added).

       In Hendricks,    the          requestor  sought   financial   records of the
 school district   covering           a seven year period.     Hundreds of chouzsnda
 of records were involved.             Before complying with the requezt for these



                                             p. 481
     Mr. Homer A. Foerster           - Page S          (311-114)




     documents, the school district              informed the requestor           of its Intent co
     charge him “a fair and equitable,               but sufficient.       charge for acceaa co
     thoae     records     and documente.”           which     were maintained          In several
     different     locations,       including       warehouses.      microfllmm,     and corputer
     records b.nka.         Id. at 931.         Tba requestor       sought a writ of m.nd.mua
     from the dlatric~ourt               to compel the school           district     to grant him
     .cceae    to the requested          records     “vfthout     requiring      him to reimburse
     the school        district      for    its     coats     incurred      in the      retrieving,
     assimilation      and production        of thoae records.”           Id.    The court denied
     the requestor’s        applicatioo.       .nd the court of cxl              .ppeala    affirmed
     the judgment.

           In discussing          aubaectlon       9(b),    the court   of civil      appe.18   aald:

                  This   paragraph      does not speak of copies           of public
                  records;     It spanks of charges msde for access                  to
                  public    records      and to providing        public      records.
                  We consider      that It mthorizea         the public body to
                  Dalre a charne           for   access     to    public      records
                  corresponding-to          the actual     cost-of      -king       the
                  records    .svail.ble      for inspection       if the records
ic                are larger       than standard        size    or if       they are
                  maintained      In computer record           banks.    iicro-film
                  records.    or other similar        record keeping system..
                  (JImphasla added).

     -Id. at 932.        In its    concluding       statement.     the court       said:

                  The size of the fee Is restricted    by the provialon
                  requiring thet it lpproximste     the ~ctusl  coat of
                  preparing the msterlal for inspection.

     -Id. at 933.

           Ooe of the difficultlea            with   Hendricks    la thst    It falls      to
     indlcete    exactly   vhet vea included       in the school district’s        ‘acceaa”
     chargaa.      Another    is  that     the court’s      atatemente    are ambiguous.
     Statements    such .a “.ctu.l       cost of making the records         avalleble    for
     Inspection”      are hardly     self-explenatozy.         Thus,   to determine      how
     Bendricks affects      the question     before us , we must construe the court’s
     language.

           We amph.alze.           just     as     Rendricka     did,   th.t
                                                                     subsection      (b) of
     section  9 peraita           certsln        “access”    charges      subsection
                                                                        but    that       (.)
     does not.    The difference     in the approach of these h10 subsections              to
     access   charges   can only be attributed          to the difference         in their
-,   subject    mstter.     Subsection     (s)    deals    with   up-co-•t.ndard        size
     documznts, where.6 subsection       (b) epplies     to larger-than-standard        size
     documents    snd   to   infomtion        stored    in    computer     record     banks.
                                                                                                  .


Mr. Homer A. Foerstar        - Pzge 6       (Jtl-114)




microfilm,    and “other   similar   record    keeping    systems.”     In             our
opinion,   what subsection   (b) vss actually    intended    to authorize              can
only be lnavered with these differences     firmly in mind.

      Unlike    a piece     of paper containing           in~orution,        InformsCIon
stored in computer banka, on microfilm , etc..              cannot simply be handed
to a requestor.       Somathing PUSC be dons to put the information                  in a
wan*ful       form:     a computer program must be run and a printout
obtained;   microfflm    records must be reproduced in another form. unless
the actual     microfilm     or a copy thereof          is provided;        and aimllar
operations    must be performed          where other       “aimilsr     record    keeping
ayatama” are used.       We believe     the leglalature’a      intent In authorizing
accese charges .for the record.          enumerated In subsection         (b) zn18t have
been to allov       Sovernmzntnl     entitlea     co recover       those   reproduction
coats incurred In putting        lnformstion    In computer banka. on microfilm,
etc..   into a form which ten be used by the requestor.                       Such coats
might, for l  xemple, include the coats involved             in running the computer
or In reproducing         records     scored   on microfilm:         they would not,
however, Include time spent by employees             in deleting      from the records
chose portions    excepted from required        disclosure     under section      3(a) of
the act.
                                                                                              1
          Our conclusion   also   finds   support   In section   11 of the act.    which
states:

               A bond for paymznt of coats for the preparation           of
               such public     records,   or a prepayment       In cash of
               the anticipated     coats for the preparation        of such
               records,    may be required        by the head of the
               department    or agency as a condition         precedent   to
               the preparatlon     of such record vhere the record la
               unduly costly      and its    reproduction      would cause
               undue bardahip to the department         or agency if the
               coats vere not paid.       (~haaia     added).

This provision.      vhich t&lb    in tarma of the “preparation”        of public
records.    quite clearly   linka “preparation”      with “reproduction.”      thus
indicating      that    the  former    term   should     be  given    a    limited
cNgtNctlon.        Tbia construction    is, in our opinion,     appropriate      for
section    9.    Coats of “reproduction”      do not,     in our view.     include
employee tiu.

       For theee reasons,   ve anaver your first    three quaationa               in    the
negative.    Our diacuaalon  aleo anewara your fifth    queatlon.

       9he Open Records     Act  provides     no guidance    on your    fourth
question.   In our opinion.   the appropriate   method to challenge    charges
msde by governmental   bodies is the one utilized     in the Hendricks case.
A requeator  who feels thzt he hae been erroneously       charged should seek
    Mr. Homer A. Poerater        - Page 7        (JM-114)




    a wit       of undamus    to compel         the governmental  body      in   question   to
    release     the requested materials         without those charges.

            Admittedly     eaction     9 Is somevhat amblguoua and la therefore
:   subject   to a variety    of Interpretations.       Thus, our conclualona     are in
    large part dlctsted        by the caaarand of section         14(d) of the Open
    Records Act, vbich states          thst the act “shall    be liberally     construed
    in favor of the granting        of any request    for InformsCion,”     and that of
    section   1 of the act. vbich provides        tbat the act “shall be liberally
    construed    vith   the viev      of carrying    out the . . . declaration          of
    public policy” set forth therein.           Hence the present    situation     iq one
    in which leglalative      clarlficstion    might be helpful.

                                          SUMMARY

                      A goveramsntal  body may not o dlnarily  charge
                  for employee time in editzg#!
                  records available  under the Gpen ecorda Act.




                                                       JIM
                                                       Attorney   General    of Texas

    mnGREEN
    Plrat     Aaaiatant   Attorney    General

    DAVID R. RICDIARDS
    Rvacutlve Aaaiatant Attorney          General

    Prepared     by Jon Bible
    Asaiatant     Attorney  General        ’

    APPRGVRD:
    OPIRIGRGcM!ITTgE

     Rick Gllpln.   Ghelrmsn
     Jon Bible
     Golin Garl.
    .Suun Garriron
     Jim Roelllnger
     N~cy Sutton
