Opinion

Untitled Texas Attorney General Opinion

Court: Texas Attorney General Reports
Filed: Jul 2, 1976
Status: Published
On the bench: John Hill
Cited by: 0 cases
Authority: More cited than 3.5%

The opinion

The Honorable Charles Barden, P.E. Opinion No. B-836

Executive Director

Texas Air Control Board Re: Whether certain

0520 Shoal Creek Boulevard information maintained

Auetin~,Texas 78758 by the Air Control Board

ia confidential.

Dear Mr. Barden:

You have requested our opinion on a number of questions

regarding section 1.07 of the Texae Clean Air Act, article

4477-5, V.T.C.S. Section 1.07 provides:

Information submitted to the [Texas

Air Control] [Bloard relating to secret

processes or method8 of manufacture or

production which is identified aa con-

fidential when eubmitted shall not be

disclosed by any member, employee, or

agent of the [Bloard.

You ask:

1. Whether employees of the Texas Air

Control Board may make public information

which has been labeled as confidential if

such information doee not relate to secret

processes or methods of manufacture, and,

if 80, what procedures, if any, the Board

is required to follow in making the latter

determination1

2. how broadly the Board should interpret

the meaning of 'relating to secret processes,

or method8 of manufacture or proauction'; and

3. whether confidential information may be

forwarded to other governmental bodies.

p. 3526

The Honorable Charles Barden - page 2 (H-83&

Section 1.07 establishes a two-pronged test for deter-

mining whether information submitted to the Board is dis-

closable to the public. In order to be deemed confidential,

such information must: (1) relate to secret processes or

methods of manufacture or production; and !2) be identified

as confidential at the time of submission. Either of these

two criteria, standing alone, is not sufficient to invoke

the confidentiality provision of section 1.07. Thus, we.

conclude that the Board may make public any information

which does not relate to secret processes or methods of

manufacture, even though that information has been labeled

as confidential at the time of submission.

The Act does not specify the procedures by which the

Board is to make the determination as to whether particular

information relates to secret processes or methods of manu-

facture. Such procedures must be devised by the Board, in

accordance with section 3.01 of the Clean Air Act, which

states, in pertinent part:

The board shall administer the provisions

of this Act.

If, of course, the Board receives a request for information

which it considers to be excepted under section 1.07, it

should request a decision from the Attorney General pursuant

to section 7(a) of the Open Records Act. V.T.C.S. art.

6252-17a. We emphasize, however, that it is the Board which

is charged with administering the provhions of the Clean

Air Act, and it is the Board which must make the initial

determination as to whether any requested information falls

within the exception of section 1.07. See Attorney General

Opinion H-90 (1973).

You also ask us to specify how broadly the Board should

interpret the language of section 1.07, which makes non-

disclosable confidentially-labeled information "relating to

secret processes of methods of manufacture or production."

You state that, in some instances, to reveal the amount,

type and rate of emissions from a particular unit might

enable a person to determine how the process itself functions.

In Attorney General Opinion H-539 (1975), we held that

emissions data is clearly public information. -See Attorney

p. 3527

The Honorable Charles Barden - page 3 (H-831)

General Opinion H-635 (1975). In accordance with our previous

decisions, it remains our opinion that emissions data must

be disclosed. In making a decision as to the disclosability

of other confidentially-labeled information, however, the

Board might consider the criteria which courts use in deter-

mining whether information may be classified as a "trade

secret."

The Texas Supreme Court in Luccous v. J.C. Kinle

376 S.W.2d 336, at 330 (Tex.-Suc m), 4 that

t e generally accepted definition of a "trade secret" is

??=I

that contained in the Restatement of Torts, section 757,

which is stated as follows:

b. Definition of trade secret. A

trade secret may consist of any formula,

pattern, device or compilation of infor-

mation which is used in one's business,

and which gives.him an opportunity to

obtain an advantage over competitors

who do not know or use it. It may be

a formula for a chemical compound, a

process of manufacturing, treating or

preserving materials, a pattern for a

machine or other device, or a list of

customers . . . . A trade secret is a

process or device for continuous use in

the operation of the business. Generally

it relates to the production of goods,

as, for example, a machine or formula

for the production of an article.