Open Records Decision No. 517
January 13, 1989

	Re:  Whether article 4331a, V.T.C.S., authorizes the Secretary of State to 
withhold certain computer programs from required disclosure under the Texas Open 
Records Act, article 6252-17a, V.T.C.S.  (RQ-1518)

The Honorable Jack Rains
Secretary of State
P.O. Box 12697
Austin, Texas  78711-2697

Dear Mr. Rains:

	You ask whether article 4331a, V.T.C.S., authorizes the secretary of state to 
withhold certain computer programs from required public disclosure under the Texas 
Open Records Act, article 6252-17a, V.T.C.S.

	The Phonetic Algorithm Method (PAM) is a series of computer programs 
developed to conduct searches of the corporate and Uniform Commercial Code (UCC) 
records stored on the secretary of state's computer.  The secretary of state, NCR 
Corporation, and a University of Texas linguistics professor developed the programs in 
the early 1970's.  In 1984, the secretary of state was granted copyright protection for the 
PAM programs.  Additionally, in 1987, the secretary of state obtained legislative 
approval to develop and market such software, as well as to provide direct computer 
access to information stored on the secretary's computers.  V.T.C.S. art. 4331a.

	Computer programs are not the sort of thing generally considered a “record.”  
Typically, records are thought of as the tangible inscription of information or data.  
Computer programs, on the other hand, are methodologies or algorithms used to compile 
and analyze information or data.

	Section 2(2) of the Open Records Act states:

	‘Public records’ means the portion of all documents, writings, 
letters, memoranda, or other written, printed, typed, copied, or 
developed materials which contains public information.  (Emphasis 
added.)

	Section 3(a) of the act provides, in part:

	All 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 and 
available to the public during normal business hours of any 
governmental body, with the following exceptions only. . . .  
(Emphasis added.)

	The form in which information is stored does not determine its availability; 
computer tapes are covered by the act.  Attorney General Opinion JM-672 (1987).  This 
office has indicated that computer programs created by a governmental body also are 
subject to the act.  See Open Records Decision No. 401 (1983); see also Fla. Op. Att'y. 
Gen. No. 86-94 (Oct. 28, 1986).

	Generally, all information held by governmental bodies is open to public 
inspection unless the information falls within an exception to disclose under the Open 
Records Act.  See Attorney General Opinion JM-672 (1987).  You assert that these 
programs are protected from disclosure under sections 3(a)(1), 3(a)(4), and 3(a)(10).  
Additionally, you claim that article 4331(a), V.T.C.S., governs access to this 
information.

	As stated above, the Open Records Act generally controls access to information 
held by governmental bodies.  This is not, however, necessarily the exclusive method of 
access, and the legislature is free to modify or change the method of access to particular 
information.  With regard to the information requested here, the legislature, through 
article 4331a, has provided a different method of access.

	Article 4331a provides, in section 2:

The secretary of state may:
(1)	develop computer software to facilitate the discharge of the 
constitutional and statutory duties of the office;
(2)	enter agreements to transfer the software on the terms and 
conditions specified in the agreements; and
 (3)	assess a reasonable fee for the transfer.  (Emphasis added.)

	Article 4331a deals expressly with access to computer programs developed by the 
secretary of state.  Article 4331a grants to the secretary of state the power to enter into 
agreements to transfer software, and to charge a fee for this transfer.  This, in effect, 
authorizes the secretary of state to control access because it provides for both agreements 
governing access and payment for access.  Article 4331a does not, however, expressly 
except computer programs developed by the secretary of state from the Open Records 
Act.

	The Open Records Act also controls access to information of this type held by a 
governmental body.  Standing side by side, the two statutes appear irreconcilable.  Under 
the Code Construction Act, when two statutes enacted at different sessions of the 
legislature are irreconcilable, the statute enacted latest in date prevails. Tex. Gov. Code 
Ann. § 311.026.  This principle of construction presumes that the legislature knows of 
the presence and scope of existing statutes.  The Open Records Act was enacted in 1973.  
Acts 1973, 63rd Leg., ch. 424, at 1112.  Article 4331a was enacted in 1987. Acts 1987, 
70th Leg., ch. 432 at 1999, 2000.  Although the Open Records Act has been amended a 
number of times since 1973, the provisions governing information covered by the act 
have not been amended.  Therefore, article 4331a, and not the Open Records Act, 
controls access to computer software within the scope of article 4331a.

	To fall within the scope of article 4331a, computer software must have been 
developed to facilitate the discharge of the constitutional and statutory duties of the 
secretary of state.  Your letter states that this software is used to perform phonetic 
searches of the UCC and corporation files maintained by the secretary of state.  Section 
one of article 4331a provides that the secretary of state “may establish a system to 
provide access . . . to information” stored in its computers.  Because the PAM software 
would do this, access to the PAM software is controlled by article 4331a.

SUMMARY

	Article 4331a, V.T.C.S., provides the means of access to 
computer software developed by the secretary of state pursuant to 
article 4331a.  This article, and not the Texas Open Records Act, 
article 6252-17a, V.T.C.S., determines who must be given access.  
Therefore, the secretary of state is authorized to withhold the 
computer programs in question.

Very truly yours,

Jim Mattox
Attorney General of Texas

Mary Keller
First Assistant Attorney General

Lou McCreary
Executive Assistant Attorney General

Judge Zollie Steakley
Special Assistant Attorney General

Rick Gilpin
Chairman, Opinion Committee

Jennifer S. Riggs
Chief, Open Government Section
of the Opinion Committee

Prepared by Jennifer S. Riggs
Assistant Attorney General