             THE   ATTORNEY    GENERAL
                      OF TEXAS




Mr. William D. Gooch           Opinion No. JR-1250
Director and Librarian
Texas State Library            Re: Whether section 202.004(a)
Lorenzo De Zavala State        of the Local Government Code
  Archives and Library Bldg.   prohibits a local government
BOX 12927                      from allowing its auditor or
Austin, Texas 78711            other independent contractor
                               to remove public records to
                               his office (RQ-2035)
Dear Mr. Gooch:
     You ask for an interpretation of section 202.004 of the
Local Government Code, which provides as follows:
           (a) A local aoy.8ZRmentrecord mav not be
        Sold or donated fexcent for the wurnoses of
        recvclinal, loaned. transferred. or otherwise
        passed o t of the custodv of a local aovern-
        &    to uany private college or university,
        private museum or library, private organiza-
        tion of any type, or an individual, extent
        with the consent of the director   d librari-
        ZD and at the exniration of it: retention
        miod   under the local aover,.Dment'srecords
        control schedule.
           (b) Subsection (a) does not apply to a
        local government record that is temporarily
        transferred to a person for the purposes of
        microfilming, duplication,    conversion to
        electronic media, restoration, or similar
        records management and preservation proce-
        dures if the transfer is authorized by the
        records management officer or custodian.
Local Gov't Code 5 202.004 (emphasis added).
     This provision is part of the Local Government Records
Act, adopted by House Bill 1285 of the 71st Legislature and
codified as chapters 201 through 205 of the Local Government




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Code. Acts 1989, 71st beg., ch. 1248, 5 1, at 4996.   House
Bill 1285 was designed to establish uniform procedures on
the maintenance, preservation, and disposition of local
government records and to clarify and expand the authority
of the Texas     State Library    and Archives   Commission
[hereinafter "the commission"] regarding them. House comm.
on State Affairs, Bill Analysis, C.S.H.B. 1285, 71st Leg.
(1989). The "director and librarianw referred to in section
202.004 is the executive and administrative officer of the
commission. Local Gov't Code 0 201.003(4).
     You are concerned about a local government contract
with a private firm to perform services, which might, as a
practical matter, require the private firm to move public
records to its offices. you state, for example, that local
governments regularly contract with private auditing firms
to audit their payment records to detect overpayment and
fraud. See. e.ac, Local Gov't Code Of 103.002 (audit of
municipal accounts by outside auditor), 115.031 - 115.045
(independent audit of county finances). It may be impossi-
ble to conduct the audit in the governmental body's offices
because the work would interfere with routine business or
because it requires data processing equipment not available
in the offices of the governmental body. You ask whether
section 202.004 prohibits local governments from temporarily
moving documents to the offices of an audit firm or other
independent contractor for the purpose of carrying on the
business of the government.
     Section 202.004(a) prevents the local government from
selling or otherwise transferring records out of its custody
prior to the end of the retention period. This provision
does not necessarily prohibit the temporary removal of
records from the physical possession of the local government
to another entity pursuant to appropriate controls.
     V!ustodyn has a number of different meanings. National
Fire Ins. Co. v. Davis, 179 S.W.Zd 316 (Tex. Civ. App. -
Eastland 1944, writ ref'd w.o.m.). As applied to things, it
means "to have in charge or safe-keeping, connotes control,
and includes as well, although it does not require, the
element of physical or manual pOssession.n      L    at 318
(quoting then 25 C.J.S. Custodv at 70, now at 88-89).
     Although "custody" is not defined in the Local Govern-
ment Records Act, it is used in ways that indicate its
meaning. For example, records of permanent value not needed
in the day-to-day business of the local government may be
transferred to the custody of the commission or another




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    Mr. William D. Gooch - Page 3    (JM-1250)




    local government with appropriate storage facilities. Local
    Gov't Code 5 203.049(a). When the records are transferred,
    "title and control of the records and all rights pertaining
    to the records granted by law to the original custodian" are
    vested in the commission or the local government that
    receives the records. L    5 203.049(c). The "custodian" is
    defined as "the appointed          elected public    officer
    who . . . is in charge of an of:fce that creates or receives
    local government records." &      5 201.003(2). Custody of
    the records changes from an officer to his successor when
    his term ends. &    S 201.006.
         The transfers referred to in section 202.004(a) are, in
    our opinion, transfers that relinquish control of and
    authority over the records.    The bill analysis refers to
    this provision as a prohibition against "alienation" of
    records.   House Comm. on     State Affairs,        .    The
    transfers referred to in this provision could xate
    transfer title of, the records from the governmental body zi
    another entity. It is thus appropriate that such changes of
    custody occur only at the expiration of the          records
    retention period and only with the consent of the director
    and librarian of the commission.
         The prohibition on lending local government records to
    a college,  university, or other entity, may reflect the
    legislature's determined intent to end a prior practice of
    loaning public records to such institutions. Other provi-
    sions of the Local Government Records Act address this
    issue.
         A now repealed statute, formerly     codified as   article
    260, V.T.C.S., provided as follows:
              County Commissioners and other custodians
           of public records are hereby authorized, in
           their discretion, to lend to the Library of
           the University of Texas, for such length of
           time and on such conditions as they may
           determine, such parts of their archives and
           records as have become mainly of historical
           value.
    Acts 1921, 37th Leg., ch. 43, 5 2, at 94; see also Educ.
    Code S 51.903 (authorizing custodians of public records to
    lend them to state     supported institutions of     higher
    education).




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     House Bill 1285 amended article 260 to apply to a
"custodian of government records, axcelltfor a custodian of
local amnt        recor&,w   and recodified it as section
441.026 of the Government Code.      Gov*t Code S 441.026
(emphasis added). The same bill adopted a criminal penalty
for a "private college or university, a private museum or
library, a private organization of any other type, or an
individual" that knowingly or intentionally acquires or
possesses local government records. Local Gov't Code 5
202.009(a).l Thus, the loan of public records was viewed as
a problem to be addressed by House Bill 1285. This kind of
transfer, while not intended to be permanent, removed the
records from the control of the governmental body to the
benefit of the recipient.
     Accordingly, we read section 202.004(a) as not prohib-
iting a governmental body from temporarily moving records
into a private firm's offices to use in performing services
for the government, subject to the services being performed
pursuant to a contract that provides for adequate control of
access to and protection of the documents while they are
physically located at the private firm's offices. Although
subsection 202.004(b) reads as if it is an exception to
subsection (a), it in fact deals with temporary transfers
that would not in any case be a loan or alienation of
records as prohibited by subsection (a).     Subsection (b)
makes it clear that records may be physically removed from
the offices of the local government to carry out various
records management and preservation procedures authorized
elsewhere in the act. &g Local Gov't Code chs. 204 (micro-
filming), 205 (conversion to electronic media).
     Section 202.004 does not prohibit the temporary trans-
fer of records you inquire about, nor does it expressly
authorize it. We believe the governing body of the local
government may authorize such transfers under the "active
and continuing program for the efficient and economical
management of all local government records" that it is
required to establish. Local Gov't Code f 203.021(l).   See
also id. 0 203.026 (records management program to be estab-
lished by ordinance or order by January 1, 1991). It must
also designate a records management officer to administer


     1. We do not address any questions of      interpreting
this provision, which makes conduct by a private institution
subject to Class A misdemeanor punishment.




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the program.2 &&    .$S203.025, 203.026.   The custodian of
records is required to cooperate with the records management
officer in carrying out records management procedures.   Id.
5 201.003(2), 203.002. Under this authority, the governing
body may establish procedures and conditions for the tempo-
raryremoval  of public records from the physical possession
of the custodian to the offices of a private firm pursuant
to a contract to perform services for the local government.

                      SUMMARY
            Section 202.004 of the Local Government
       Code neither prohibits nor authorizes the
       temporary removal of public records from the
       physical possession of the custodian to the
       offices of a private firm pursuant to a
       contract to perform an audit or other servic-
       es for the local government. However, the
       governing body may establish procedures and
       conditions for such temporary removal of
       records in the program it is required to
       establish pursuant to section 203.021(l) of
       the Local Government Code for the "efficient
       and economical management" of local govern-
       ment records.



                                   J            /&tax
                                     Very truly you s

                                          L
                                     JIM     MAT!iOX
                                     Attorney General of Texas
MARY KELLER
First Assistant Attorney General
Lou MCcREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General



     2. An elected county officer is the records management
officer for the records of his office. Local Gov't Code 5
203.001.




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RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan Garrison
Assistant Attorney General




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