Are a Texas county clerk's audio tapes of commissioners court meetings public records under the Open Records Act, even if she calls them her private notes?

Texas AG Opinion JM-1143: County Clerk's Meeting Tapes Are Open Records

Plain-English summary

A Frio County commissioners court did not require its county clerk to tape record meetings, but the clerk made her own audio recordings of both public and executive sessions anyway, to help her prepare the official written minutes. She maintained that the tapes were her "private notes" and therefore her private property, not subject to public disclosure. The county attorney asked the Attorney General whether that was correct.

The Attorney General concluded the tapes were public records under the Open Records Act. The clerk is the ex officio clerk of the commissioners court and is statutorily required to record the court's proceedings in suitable books, so information she collects or maintains in connection with that official business is public information unless a specific exception applies. A 1989 amendment had carved out an exception for materials a governmental body has neither ownership of nor a right of access to, but the opinion found that exception did not apply here: even assuming the tapes were the clerk's personal property, she plainly had access to them in her official capacity, and prior Open Records Decisions had already treated similar meeting recordings and notes used to prepare official minutes as covered by the act. The opinion emphasized that minutes are the medium through which the commissioners court speaks and acts, exactly the kind of record the Open Records Act means to make available to the public, so the personal-property label the clerk applied to her tapes did not take them outside the act's reach.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here. The Texas Open Records Act, article 6252-17a, V.T.C.S., cited throughout this opinion, has since been recodified as the Texas Public Information Act, Chapter 552 of the Government Code.

Common questions

Can a county clerk keep her meeting tapes private by calling them her personal notes?
No. The opinion held that tapes used to help prepare official minutes are public information collected in connection with official business, and labeling them personal property did not exempt them, especially since the clerk had official access to the tapes regardless of who technically owned them.

Does it matter whether the commissioners court itself required the recordings?
No. The opinion did not treat the absence of a formal requirement to record meetings as relevant; what mattered was that the tapes were in fact used to perform an official function, preparing the minutes.

What kind of exception did the 1989 amendment to the Open Records Act create, and why didn't it apply here?
The amendment exempted materials produced for a government body where the body has neither ownership of nor a right of access to them. The opinion found the exception did not apply because, even assuming the tapes were the clerk's personal property, she had access to them in her official capacity as clerk of the commissioners court.

Background and statutory framework

Local Government Code section 81.003(b) makes the county clerk the ex officio clerk of the commissioners court, required to record the court's proceedings in suitable books. Section 3(a) of the Open Records Act, article 6252-17a, V.T.C.S., made all information collected, assembled, or maintained by or for governmental bodies in connection with official business public information, subject to specified exceptions, including a 1989 addition (Acts 1989, 71st Leg., ch. 1248, § 9, at 5023) exempting materials where the governmental body has neither ownership nor a right of access, which the opinion described as codifying principles from Open Records Decision No. 445 (1986).

The opinion relied on a line of prior Open Records Decisions treating similar materials as public: Open Records Decision No. 225 (1979) (handwritten meeting notes by a governmental body's secretary were not the kind of personal notes exempt from disclosure); Open Records Decision No. 32 (1974) (tape recordings made during a meeting to aid in preparing accurate minutes are subject to the act); and Open Records Decision No. 60 (1974) (citing the Open Records Act's purpose, stated in article 6252-17a, section 1, of giving citizens "full and complete information regarding the official acts of those who represent them").

Citations

Statutory provisions:

• TEX. LOCAL GOV'T CODE § 81.003(b)
• V.T.C.S. art. 6252-17a (Texas Open Records Act), §§ 1, 3(a), as amended by Acts 1989, 71st Leg., ch. 1248, § 9, at 5023

Open Records Decisions cited: No. 60 (1974); No. 32 (1974); No. 225 (1979); No. 445 (1986).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1143
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1143.pdf

Original opinion text

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

February 15, 1990

Hon. James Warren Smith, Jr.
Frio County Attorney
P. O. Box V
Pearsall, Texas 78061-1138

Opinion No. JM-1143

Re: Whether a county clerk must make available to the public tapes of commissioners court meetings (RQ-1835)

Dear Mr. Smith:

In your letter requesting an opinion you state the following facts:

1. The county clerk makes audio tape recordings of commissioners court meetings.

2. The county clerk maintains that these tape recordings are her "private notes" and are thus her private property.

3. The county clerk uses these tape recordings to aid her in preparing the minutes of the commissioners court.

4. The commissioners court does not require the clerk to tape record either public or executive sessions of the court.

You ask whether such tape recordings must be made available to the general public.

The county clerk is the ex officio clerk of the commissioners court and, as such, is required "to record in suitable books the proceedings of each term of the court." Local Gov't Code § 81.003(b).

Section 3(a) of the Open Records Act, article 6252-17a, V.T.C.S., provides:

All information collected, assembled, or maintained by or for governmental bodies, except in those situations where the governmental body does not have either a right of access to or ownership of the information in connection with official business is public information [unless within a specified exception]. (Emphasis added.)

The underlined language in the above-quoted provision was added to the statute in 1989. Acts 1989, 71st Leg., ch. 1248, § 9, at 5023. It exempts materials from coverage by the Open Records Act in situations where materials are produced for a governmental body but the governmental body has neither ownership in nor a right of access to the materials. This exemption is a codification of principles enunciated in previous open records decisions. See, e.g., Open Records Decision No. 445 (1986).

You do not state whether the tapes or the tape recorder are county property or the personal property of the county clerk. However, assuming that they are the personal property of the county clerk, she certainly has access to them in her official capacity as clerk of the commissioners court.

In Open Records Decision No. 225 (1979), the attorney general considered whether handwritten notes of meetings made by the secretary of a governmental body were subject to the Open Records Act. In that decision, as here, the materials in question were not of the type of personal notes that have been held to be exempt from disclosure. The tape recordings in question here are used by the county clerk in the performance of her duties as clerk of the commissioners court. The analysis in Open Records Decision No. 225 and the authorities cited therein are apposite here.

Moreover, the minutes of a commissioners court meeting, being the medium through which the court speaks and acts, is exactly the kind of record the Open Records Act is intended to make available so that citizens may have "full and complete information regarding the official acts of those who represent them." V.T.C.S. art. 6252-17a, § 1; Open Records Decision No. 60 (1974). Tape recordings produced during a meeting of a governmental body as an aid in the preparation of accurate minutes have been expressly found to be subject to the provisions of the Open Records Act. Open Records Decision No. 32 (1974).

Therefore, audio tape recordings of commissioners court meetings that are made by the county clerk as an aid in the preparation of minutes are subject to the provisions of the Open Records Act. The fact, taken alone, that such recordings may be the personal property of the county clerk does not except them from the Open Records Act.

SUMMARY

Audio tape recordings of commissioners court meetings that are made by the county clerk as an aid in the preparation of minutes are subject to the provisions of the Open Records Act. The fact that such recordings may be the personal property of the county clerk does not except them from the Open Records Act.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by John Steiner
Assistant Attorney General