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May 19, 2000

Ms. Debra Dupont
Assistant District Attorney
County of Tarrant
401 West Belknap
Fort Worth, Texas 76196-0201

OR2000-2005

Dear Ms. Dupont:

You ask whether certain information is subject to required public disclosure under the Public Information Act (the "act"), chapter 552 of the Government Code. Your request was assigned ID# 135498.

On October 8, 1999, the Tarrant County Auditor's Office received a request for "the most current, case-by-case, detailed listing of the reports provided to you by the District Clerk of Tarrant County as required by Local Government Code 117.058." You contend that the requested records are "records of the judiciary" and therefore not subject to the act. You also argue that the records in question are excepted from disclosure by section 552.107(2) of the act.

You first contend that the requested records are records of the judiciary and thus not subject to a request under the act. The act applies to information "collected or assembled or maintained under a law or ordinance or in connection with the transaction of official business" by a "governmental body." Gov't Code 552.002(a)(1). A "governmental body" under the act does not, however, include "the judiciary." Gov't Code 552.003(1)(B).

We think it clear that the auditor's office is a "governmental body" under the act, and is not itself within the exclusion of "the judiciary" from the definition of "governmental body." See Gov't Code 552.003(1)(A)(x) ("Governmental body" under the act includes "the part, section, or portion of an organization, corporation, commission, committee, institution, or agency that spends or that is supported in whole or in part by public funds"). Furthermore, since the auditor's office does not perform adjudicative functions such as deciding issues of fact and law involved in pleadings, and rendering and executing judgements, we conclude that the auditor's office is not part of the judiciary. See, e.g. Holmes v. Morales, 924 S.W.2d 920 (Tex. 1996) (concluding that since district attorney's office did not perform adjudicative functions, that office is not part of the judiciary, but a governmental body for purposes of the Act).

Also, we do not believe that the auditor may be considered an "agent" of the judiciary in receiving and maintaining the records at issue. In determining whether a governmental entity falls within a judiciary exception to the Act, this office looks to whether a governmental entity maintains the relevant records as an agent of the judiciary in regard to judicial, as opposed to administrative functions. Open Records Decision No. 646 ( 1996); Benavides v. Lee, 665 S.W.2d 151 (Tex. App.-San Antonio 1983, no writ) Here the auditor has obtained the specific records at issue by virtue of the legislative direction contained in section 117.058 of the Local Government Code. That provision, applicable to counties of population 190,000 or more in which the commissioners court has provided a depository for the registry funds of the county clerk or district clerk, requires the latter officers to report to the county auditor all registry funds received and disbursed as well as funds remaining on hand at the time of the report. The reports are to be made in the form and frequency prescribed by the auditor. Because the auditor's office controls the form and frequency of the reports and maintains them pursuant to a legislative mandate, we conclude that the auditor's office maintains the reports as part of its own administrative functions, not in an agent capacity. Therefore, we find that the auditor's office is not an agent of the judiciary.

Consequently, it is our opinion that the records at issue constitute information held by governmental body, and that the records are thus subject to the act. See Open Records Decision No. 553 (1990) (Reports of wiretaps required by statute to be filed by judges with Department of Public Safety are subject to Public Information Act in the hands of the Department of Public Safety, which holds such records in its own right and not as agent of judiciary). Compare Open Records Decision Nos. 617 ( Records Management Division of State Library holds records on behalf of state agencies; public information requests for such records should be directed to appropriate state agency not the state library); 576 (1990) (Comptroller acts as agent of Alcoholic Beverage Commission in maintaining bingo records); 446 (1986) ( In collecting all state agency telephone billing records, the General Services Commission was holding such records as an agent of the respective agencies).(1)

Applying the act to the information at issue, we find that section 552.022(a)(1) makes the records at issue public. That provision requires release of "a completed report, audit, evaluation, or investigation, made of, for, or by a governmental body" unless "expressly confidential under other law," and except as provided by section 552.108 of the act. (Emphases added). As you have not raised the section 552.108 exception for the requested information, that exception to the mandatory release of materials within the scope of section 552.022(a)(1) is not applicable here. Moreover, you have not cited, nor are we aware of, any "other law" which makes the information in question "confidential." Again, the records at issue here, were created pursuant to section 117.058 of the Local Government Code, which provides for certain county and district clerks making "reports" to the auditor of registry funds received and disbursed as well as funds remaining on hand at the time of the report. The reports are to be made in the form and frequency prescribed by the auditor. We think it clear that the requested information here consists of "completed reports" which have been made "for" the auditor, a governmental body, within the meaning of the mandatory release provisions of section 552.022(a)(1).

You raise section 552.107(2) of the act as an exception to required disclosure of the requested information. That provision excepts information from disclosure if "a court by order has prohibited disclosure of the information." You submit a copy of an order signed on October 21, 1999 by the presiding judge of the 236th District Court of Tarrant County. (2) The order directs the Tarrant County Auditor not to permit public access to the reports prepared by the District Clerk of Tarrant County pursuant to section 117.058 of the Local Government Code. While the court order arguably purports to prohibit the auditor from disclosing the information at issue, we believe that the order is ineffective to support the auditor's withholding information specifically made public under section 552.022(a)(1). Subsection (b) of section 552.022 provides that

A court in this state may not order a governmental body or an officer for public information to withhold from public inspection any category of public information made described by Subsection (a) or not to produce for inspection or duplication, unless the category of information is expressly made confidential under other law.

Again, we are aware of no other law which makes the category of information at issue confidential, nor does the order in question reference any such law. Accordingly, you must, pursuant to section 552.022(a)(1), release the requested information.(3)

This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. 552.353(b)(3)(c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. 552.321(a).

If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ).

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.

Sincerely,

William Walker
Assistant Attorney General
Open Records Division

WMW/ljp/sm

Ref: ID# 135498

Encl. Submitted documents

cc: Mr. Brian Taylor
Attorney at Law
401 Heights Boulevard
Houston, Texas 77007
(w/o enclosures)


 

Footnotes

1. We note that you contend that the requested records are "judicial records" under Rule 12 of the Rules of Judicial Administration. Without attempting fully to address the scope of that rule, we note that the rule, in part 12.2(d), states that, for purposes of the rule, "[a] record of any nature created, produced, or filed in connection with any matter that is or has been before a court is not a judicial record." The records at issue here reflect amounts deposited with the district clerk in connection with matters that are or have been before a court. Thus, the records at issue here are not "judicial records" for purposes of Rule 12.

2. Again, we note that you advise that the auditor's office received the request for the information at issue here on October 8,1999.

3. We note that you also reference a "standing verbal order" by a judge "that these matters not be made public." Apart from the general question of whether such a "standing verbal order" is legally operative, we believe that such an order would be ineffective, for the reasons discussed above, to protect a category of information specifically made public under section 552.022(a)(1).
 

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