Open Records Decision No. 445
October 27, 1986

	Re:  Whether the Open Records Act article 6252-17a, V.T.C.S., requires a city to 
obtain and disclose information collected and maintained by an outside consultant with 
whom the city contracted

Mr. David W. Reagan
City Attorney
P.O. Box 1152
Midland, Texas  79702

Dear Mr. Reagan:

	You have requested our decision under the Open Records Act, article 6252-17a, 
V.T.C.S.  Your request letter states:

	In January of 1986, the city of Midland contracted with Cresap, 
McCormick & Paget, a consulting firm, for the latter to do a 
management study of the city of Midland Police Department.  
Under the terms of the contract, Cresap, McCormick & Paget was to 
prepare and turn over to the city of Midland a comprehensive 
written report of their findings and recommendations.  The 
consulting firm fulfilled its contractual obligations by making the 
report available to the city.  The city, in turn, has made that report 
available for public inspection.  Both the contract and the report are 
enclosed.

	The city of Midland has now received a request, a copy of 
which is enclosed, for the 'notes, investigations, and information 
acquired in regard to the approximately 125 persons who were 
interviewed' by Cresap, McCormick & Paget in the preparation of 
its report.  The city of Midland does not have that information, does 
not know the contents of such information, and is not contractually 
entitled to receive the same.  By letter dated July 25, 1986, a copy of 
which is enclosed, Cresap, McCormick & Paget has stated they 
would not voluntarily release this information for the reasons that 
they considered the information to be their sole property and that the 
city of Midland had no right, contractual or otherwise, to the 
information.

	You have asked if the city must obtain and produce this information.  We answer 
in the negative.  This makes it unnecessary to address the other questions raised in your 
request letter.

	Section 3(a) of the act provides that "information collected, assembled, or 
maintained by governmental bodies pursuant to law or ordinance or in connection with 
the transaction of official business is public information. . . ."  Prior decisions establish 
that information submitted to governmental entities by outside consultants hired by those 
entities is within this section.  Open Records Decision Nos. 335 (1982); 192 (1978).  We 
recently held, moreover, that if a governmental entity employs an agent to carry out a 
task that otherwise would have been performed by the entity itself, information relating 
to that task that has been assembled or maintained by the agent has been assembled or 
maintained by the entity for section 3(a) purposes.  Open Records Decision No. 437 
(1986).  The present situation, however, is distinguishable from these situations.

	There is in this instance no dispute about whether the final report submitted to the 
city by its consultant is subject to required disclosure.  Indeed, you have stated that the 
city has made this report available for public inspection.  This is also not a situation in 
which the city employed an agent to perform a task that the city itself would otherwise 
have been obligated to perform, or in which the consultant actually prepared the 
information in question at the request or under the direction of the city.  Were this the 
case, Open Records Decision No. 437 would be on point.  Finally, this is not a case 
involving a governmental entity that assembled information and then gave that 
information to an outside entity in order to circumvent the disclosure requirements of the 
act.  On the contrary, you have stated that the contract between the city and its consultant 
called for the city to receive only a "comprehensive written report," that the city never 
possessed the requested information, that it does not know the contents of that 
information, and that it "is not contractually entitled to receive the same."

	Under all of these circumstances, we do not believe that the requested information 
can be deemed to have been "collected, assembled, or maintained by [the city]" within 
the meaning of section 3(a).  It is therefore not subject to required disclosure.  We 
emphasize that our holding is a narrow one confined to the particular facts of this case.

Very truly yours,

Jim Mattox
Attorney General of Texas

Jack Hightower
First Assistant Attorney General

Mary Keller
Executive Assistant Attorney General

Rick Gilpin
Chairman, Opinion Committee

Prepared by Jon Bible
Assistant Attorney General