Does Texas sales tax apply to fees a government agency charges for copies of public records?

Subject

Sales Tax on Copies of Public Records and Government Publications

Source

• STAR search: https://star.comptroller.texas.gov/search?doc_type_code=L&tax_type_code=SST
• Opinion: https://star.comptroller.texas.gov/view/9310121L

Plain-English Summary

This 1993 letter from the Comptroller's Tax Administration Division responds to an Open Records Counsel/Disclosure Officer's questions about whether sales tax is due on copies of public records supplied to a requester, and clarifies confusing language in Rule 3.341.

The letter is based on a then-proposed amendment to Rule 3.341 (the letter notes this amendment had not yet been adopted, and the opinion assumes it would be adopted without changes). Under Section (c) of the proposed amendment, when a governmental body is required under the Open Records Act to furnish a copy of a record it holds, that transaction is not considered the sale of a taxable item, so sales tax is not due on the fee for furnishing one copy. Under Section (d), if a person requests more than one copy of the same public document, sales tax is due on the fee for the additional copy or copies. The letter notes this is a change from the rule in effect since March 24, 1986 (which did not tax additional copies), reverting closer to the rule that had been in effect from June 12, 1981 (which did tax sales of additional copies). Until the proposed change took effect, the letter instructs that sales tax should not be charged for additional copies of public records.

On the question of whether tax should be tracked cumulatively across a requester's history or per-request, the letter acknowledges it would be difficult to track a requester's cumulative record requests, so it recommends treating each request independently — allowing one tax-exempt copy per request and taxing additional copies within that request, regardless of how many previous requests the same person has made for the same information.

The letter separately addresses government publications (magazines, books, brochures, or other general-information publications) that a requester might also seek through an open records request. Section (f) of the proposed amendment states that, unless otherwise exempt, sales tax is due on such publications, except magazine subscriptions sold for semiannual or longer periods. These are publications the agency prints under its own authority, usually bound, compiled from general information, and meant for broad dissemination rather than to answer one requester's specific question. Because such publications also fall under the Open Records Act, the letter concludes one copy should still be provided tax-exempt, with tax added on additional copies ordered on the same multiple-order invoice.

What This Means For You

If you work for or advise a Texas governmental body that fulfills open records requests: Charge no sales tax on the fee for the first copy of a record you are required to furnish under the Open Records Act. If the same requester asks for more than one copy in that request, sales tax applies to the fee for those additional copies.

If you handle billing/invoicing for public information requests: Treat each request independently rather than tracking a requester's history across multiple requests — give one tax-exempt copy per request and tax additional copies within that same request, per this letter's guidance.

If your agency also sells general publications (reports, brochures, etc.) that could also be requested as open records: Per the letter, these publications are generally taxable on sale (subscriptions of semiannual length or longer for items like magazines being an exception), but if requested under the Open Records Act, the first copy should still be furnished tax-exempt, with tax charged only on additional copies on the same invoice.

Note the timing caveat in the letter itself: the analysis is explicitly based on a proposed amendment to Rule 3.341 that had not yet been adopted at the time of the letter, and the frontmatter alert on this document states Rule 3.341 was later repealed (02/11/2008) with its content moved into Rule 3.322(h)(5) (effective 07/19/2011) — so readers should confirm current rule text before relying on this 1993 analysis.

Q&A

Q: Is sales tax due on the fee for the first copy of a public record a Texas governmental body is required to furnish?
A: No. The letter states that when a governmental body is required under the Open Records Act to furnish a copy of a record it holds, the transaction is not considered the sale of a taxable item, and sales tax is not due on the fee for furnishing one copy.

Q: Is sales tax due if a requester asks for more than one copy of the same public document?
A: Yes. The letter states that when a person requests more than one copy, sales tax is due on the fee charged for the additional copy or copies.

Q: Should tax exemption be tracked across all of a requester's past requests, or per individual request?
A: The letter says each request should be treated independently, since tracking a requester's cumulative record requests would be difficult or impossible — so the requester gets one tax-exempt copy per request, with additional copies taxed regardless of the number of previous requests for the same information.

Q: Are general agency publications, like brochures or informational booklets, taxable?
A: Under Section (f) of the proposed amendment quoted in the letter, yes — unless otherwise exempt, sales tax is due on publications such as magazines (except long-term subscriptions), books, brochures, or other general information publications, though one copy furnished under the Open Records Act should still be tax-exempt.

Q: Is this letter's guidance still current?
A: The document's own alert notes that Rule 3.341, which this letter is analyzing (in proposed-amendment form), was later repealed effective 02/11/2008, with its content incorporated into subsection (h)(5) of Rule 3.322 (Exempt Organizations) effective 07/19/2011.

Original ruling text

ALERT: Rule 3.341 concerning Governmental Publications, Records or Documents
has been repealed effective 02/11/2008. The content of Rule 3.341 has been
incorporated into subsection (h)(5) of Rule 3.322 concerning Exempt
Organizations effective 07/19/2011.

October 25, 1993

To: Sandy Joseph, Open Records Counsel/Disclosure Officer

From: Lindey Osborne, Tax Administration Division

Subject: Sales Tax on Copies of Public Records

You asked me for guidance on whether tax is due on copies of public records
supplied to a requester Also, you asked me to clear up some confusion found in
the language used in Rule 3.341. This is in response to your questions.

As you are aware, we have proposed an amendment of Rule 3.341 to clarify when
sales tax is to be charged on the sale of publications and other materials
furnished to the public by governmental agencies. To date, this proposed
amendment has not been adopted. My opinions are based on the expectation that
the amendment to Rule 3.341 will be adopted without changes. I am also relying
on Administrative Hearing #26,451 that was the basis for the changes made to
Rule 3.341.

Section (c) of the proposed amendment, formerly Section (a), states in
pertinent part:

When a governmental body is required, under the Open Records Act, to furnish a
copy of any record held by it, the transaction is not considered the sale of a
taxable item. Sales tax is not due on any fee charged by the governmental body
for furnishing one copy.

Section (d) of the proposed amendment, formerly Section (b), states:

When a person requests more than one copy of a public document to be furnished,
sales tax is due on the fee charged by the governmental body to furnish the
additional copy or copies.

Section (d) provides the change from the rule that has been in effect since
March 24, 1986. This rule provides that sales tax is not due on fees for
supplying additional copies of public documents. (FYI...The previous rule
effective June 12, 1981, taxed sales of additional copies.)

Until the proposed change is signed and in effect, sales tax should not be
charged for additional copies of public records supplied to requesters. Sales
tax should be charged for additional copies when the proposed change is adopted
and in effect.

As to whether tax should be accessed on a cumulative request basis or whether
each request should be treated independently, you had stated that it would be
difficult, if not impossible, to track the cumulative records request of each
requester. Technically, the state is required to provide only the first copy
tax exempt; however, I believe we should treat each request independently thus
allowing the requester to obtain one copy tax exempt on each multiple copy
request and charging tax on the additional copies provided regardless of the
number of previous requests for the same information.

You had also asked for a clarification of tax due on publications. You stated
these publications may be requested as open records and asked if tax would be
due.

Section (f) of proposed amendment, formerly Section (d), reads, in pertinent
part:

Unless such sales are otherwise exempt, sales tax is due on sales of
publications such as magazines, except when sold on subscription for semiannual
or longer periods, books, brochures, or other general information publications.

The publications referred to by this section are publications printed under the
authority of the publishing state agency, usually bound, and compiled from
general information by the publishing agency. The publication is printed for
the purpose of disseminating information to interested parties rather than a
specific information request by a single entity. Because such publications fall
under the Open Records Act, one copy should be provided tax exempt and tax
added to additional copies on each multiple-order invoice.

I hope this clears up the confusion. If you have any additional questions or I
can be of further help, please do not hesitate to call.

cc: Martin Cherry, General Counsel
Chuck Johnstone, Tax Administration Division