Can someone requesting Texas public records demand a specific file format like tape or microfiche?

Texas AG Opinion DM-0041: A Records Requester Cannot Dictate the Format, and Formatting Codes Are Not "Information"

Plain-English summary

The Secretary of State asked whether a person requesting public records under the Open Records Act may specify the form in which the records must be provided. The office had received a request for its corporation records on a "print-image" nine-track tape, a magnetic tape carrying coded formatting instructions used to convert the data to microfiche.

The Attorney General concluded the office did not have to honor the format demand. The Secretary of State already made corporation records available in seven ways: microfilm, microfiche, magnetic tape, on-line access, telephone responses, copies of original records, and public-access terminals. Following the reasoning of an opinion issued days earlier, DM-30, the opinion explained that the Open Records Act requires governmental bodies to provide "suitable" copies, and the seven existing methods were suitable for conveying the corporation information to the public. Nothing required the office to add another medium or format. What the requester really wanted was the print-image formatting codes that arrange the data for printing to microfiche. Drawing on an open records decision about computer programs used to maintain or manipulate public property, the opinion concluded that those formatting codes are not "information" independently subject to the Open Records Act; they are a tool for manipulating the underlying data, which the office already provided. So the Secretary of State complied with the Act without offering an additional format.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The Texas Open Records Act (then V.T.C.S. article 6252-17a) has since been recodified as the Public Information Act in chapter 552 of the Government Code, and the rules on electronic records and formats have been amended. Verify current law before relying on any specific rule or citation mentioned here.

Common questions

Can a requester insist on a particular file format for Texas public records?
Under this opinion, no. The Open Records Act requires suitable copies, and the Attorney General found that the Secretary of State's seven existing formats were suitable, so the office did not have to create a new one.

Why weren't the print-image formatting codes treated as public information?
Because the opinion concluded those codes had no significance other than arranging the data for conversion to microfiche. They were a manipulation tool, not "information" independently subject to the Open Records Act.

Did the requester get the underlying corporation data?
The opinion noted the medium the requester wanted (magnetic tape) was in fact available, with all the information needed to find and extract the data fields. What was withheld was only the extra formatting codes.

Background and statutory framework

The question arose under the Texas Open Records Act, V.T.C.S. article 6252-17a. Because the Secretary of State did not dispute that the requested information was public under section 3(a), the Attorney General answered under chapter 402 of the Government Code rather than as a section 7 open-records decision (section 7 is limited to whether information may be withheld under a section 3(a) exception). The opinion applied the "suitable copies" standard of section 9(c) of the Act as construed in DM-30 (1991), which held that a county clerk may but need not provide microfilm copies, and that suitability depends on the nature of the information. It cited Attorney General Opinion JM-672 (1987) and Open Records Decision No. 65 (1975) for the point that a governmental body need not add a new medium, and Open Records Decision No. 581 (1990) for the rule that material whose only significance is the maintenance, manipulation, or protection of public property is not the kind of information made public by the Act. The opinion also noted the requester had asked, in the alternative, about charges for the tapes and about Government Code sections 405.018 and 405.031, but found those inquiries unnecessary to address once it concluded the print-image tapes need not be released.

Citations

Statutory provisions:

• Texas Open Records Act, V.T.C.S. article 6252-17a, §§ 3(a), 7, 9(c) (public availability; open-records decisions; suitable copies)
• Government Code chapter 402 (attorney general opinions); §§ 405.018, 405.031 (Secretary of State records access)

Prior Attorney General opinions and open records decisions referenced: DM-30 (1991), JM-672 (1987), Open Records Decision No. 65 (1975), Open Records Decision No. 581 (1990).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0041
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0041.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

September 12, 1991

Honorable John Hannah, Jr.
Secretary of State
P.O. Box 12697
Austin, Texas 78711-2697

Opinion No. DM-41

Re: Whether a person requesting records pursuant to the Texas Open Records Act may dictate the media in which public information must be provided and related questions (RQ-46)

Dear Mr. Hannah:

You ask whether a requesting party may specify the form in which public information must be provided to the public by the secretary of state under the Texas Open Records Act, article 6252-17a, V.T.C.S. Specifically, you advise that you have received a request for information regarding corporations maintained by the secretary of state, and the requestor has specified that he wishes the information to be provided on "print-image" nine track tape. You ask whether the information must be provided in the form requested.[1] You characterize your request as a request for an open records decision under section 7 of the Open Records Act. However, as you do not dispute the public availability of any requested information under section 3(a) of that act, we are responding to your questions pursuant to chapter 402 of the Government Code.[2]

Nine track tape is computer readable magnetic tape used for the storage or transfer of information. In this instance, you advise that by use of the modifier "print-image", the requestor means that he wishes to receive a nine track tape that includes coded formatting instructions that will facilitate the conversion of the information on the tape to microfiche. You advise that these formatting instructions are not directly relevant to the information on the tape but instruct the computer to arrange the information for printing directly from magnetic tape onto microfiche. These formatting instructions were supplied to the secretary of state by the vendor who converts the information onto microfiche pursuant to state contract. Secretary of state employees then prepared a program that enables the instructions to be added to the nine track tape supplied to the vendor for conversion to microfiche. You advise that the print-image tapes are produced periodically for transmission to the vendor. When the vendor has completed use of this tape, it is reused by the secretary of state's office for other purposes. You do not produce or maintain "print-image" tapes except as necessary for conversion to microfiche.

You advise that the information regarding corporations is currently made available to the public by the secretary of state in seven different ways, to wit: (1) microfilm, (2) microfiche, (3) magnetic tape, (4) on-line access as provided for in section 405.018 of the Government Code, (5) responses to inquiries over the telephone, (6) purchase or inspection of copies of original records, and (7) use of public access terminals. You stand willing to provide access to the requestor in any of these ways.

In Attorney General Opinion DM-30 (1991), we considered whether a county clerk must provide duplicate microfilm of county real estate records for purchase by the public. That opinion concluded that while a county clerk may provide such duplicate microfilm, the law does not impose a duty to do so. Attorney General Opinion DM-30, citing section 9(c) of the Open Records Act, reasoned that the Open Records Act requires governmental bodies to provide "suitable" copies. The opinion stated:

What form of copies may be "suitable" could vary depending upon the nature of the requested information. While it is not possible or necessary here to speculate upon every circumstance in which a suitable copy might consist of some form other than an ordinary paper reproduction, we can point, for example, to records on videotape or audiotape where a paper transcription would be an inadequate substitute for the medium in which the information was originally recorded. With respect to deed records, however, it seems an ordinary paper copy would, in every case, be suitable to convey the information contained in the record to any member of the public.

Attorney General Opinion DM-30 at 3.

Certainly, the seven methods currently used by the secretary of state for providing public access to corporation records are "suitable" for conveying the information in those records to the public. We find nothing with respect to the information requested in this instance that would, as a matter of law, require the secretary of state to add an additional medium or format to its current repertory. See Attorney General Opinion JM-672 (1987); Open Records Decision No. 65 (1975). Furthermore, under the facts you present, the medium is in fact available to the requestor.[3] Essentially then, what this requestor is seeking is the formatting instructions that allow conversion of the tape to microfiche.

In Open Records Decision No. 581 (1990), this office considered the availability of computer programs used for the maintenance, manipulation, or protection of public property. In that open records decision, it was concluded that where information has no significance other than the maintenance, manipulation, or protection of public property, it is not the kind of information made public by the Open Records Act. The only difference in the magnetic tapes desired by the requestor and the magnetic tapes that you routinely sell is the inclusion of the print-image formatting instructions. These formatting codes are not necessary to the understanding of the information provided on magnetic tape and have no significance other than their use as a tool for manipulating the information to facilitate the production of computer-output microfiche.[4] Accordingly, we think that these formatting codes are not "information" independently subject to the Open Records Act. We conclude that the secretary of state is in compliance with the Open Records Act without making corporation information available in an additional format or medium to those currently offered.

SUMMARY

The seven methods currently used by the secretary of state for providing public access to corporation records are "suitable" for conveying the information in those records to the public. Formatting codes are not "information" independently subject to the Open Records Act. The secretary of state is in compliance with the Open Records Act without making corporation information available in an additional format or medium to those currently offered.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by John Steiner
Assistant Attorney General

[1] You also ask, should we conclude that the print-image nine track tapes must be provided, for a determination of the charges that may be assessed for the tapes. Additionally, you ask whether the Open Records Act or sections 405.018 and 405.031 of the Government Code govern access to the requested information. As will be seen, we find that the print-image tapes need not be released. We believe this obviates the need to respond to your additional inquiries.

[2] Section 7 of the Open Records Act provides that if a governmental body has received a request for information which it believes to be within an exception to required public disclosure stated in section 3(a) of the act, and if there has been no prior determination that the information falls within an exception, it must request a decision from the attorney general to determine whether the information is within that exception. Consequently, decisions under section 7 are limited to considerations necessary for determining whether information may be withheld from public disclosure under section 3(a).

[3] You supply information on nine track magnetic tape, and the magnetic tapes that are currently available are provided to purchasers with all the information necessary to find and extract the information "fields" within the tape.

[4] We note that the manipulation of the data resulting from the print-image formatting instructions is evident from the fiche themselves, which are available to the public.