The opinion
. .
TIFE~~ATTORNEYGENERAL
OF TEXAS
Aun-rnu. TRXAS 78711
April 9, 1974
The Honorable Charles R. Barden, P. E. Opinion No. H- 276
Executive Director
Texas Air Control Board Re: Confidentiality of complaints
8250 Shoal Creek Blvd. of emissions received by Air
Austin, Texas 78758 Control Board
Dear Mr. Barden:
You have requested our opinion as to the accessibility,under the
Open Records A,ct (Article 6252-17a, V. T. C. S. ) of information in the
custody of the Texas Air Control Board:
(1) Are the names of persons complaining of emissions
from a particular source of air pollution considered
public information and subject to disclosure as such
by this agency7
(2) Are verbatim statements submitted by such persons
during the course of an investigation considered
public information subject to disclosure?
(3) If legal action is contemplated by this agency
against such source of air pollut,ion partially
as a result of these complaints, and if questions
1 and/or 2 are answered in the affirmative, at
what point in time does this information cease
being public under Sec. 3 (a)(3) of Article 6252-177
(4) Under Sec. 3 (a)(8), is information gathered by this
agency during enforcement investigations (such as
stack sampling or property line sampling results)
considered confidential as “matters relating to law
enforcement”?.
pe 1288
The HonorabY,e Charl.es R,, Barden. P. E, page 2 (H,.276)
Aithough ycaur letter St&es :~t 1s made under Sec. 7 (a) of the Open
Records Act, that sect,lon deal,s with an actual, request for specific
informat~lon and, smce we construe your request as a general one instead,
we will trek it, as a request for an opinion under Article 4399, V, T. C. S.
The intent of the Open Records Act was not to make anything
confidential that was hitherto required by other statute to be public;.
and the correlative intent is that it does not make public anything,
expressly made confidential or non-disclosable. Section 3 (a)(l). Since
various provIsions of the C~dean A.ir Act desrribe the scope of acces&ibi-.
lity of the Texas Air Cont:rol. Boardes records<, it is necessary to interpret
what is and what is not availab:!e under the Texas Clean Air Act before
evaluating the effect, if any, of t.he Open Records Act upon the accessibility
of such records.
The pert.ment portions ,of the Texas Clean Air Act (Article 4477-5,
V. T. C. S. ) are:
“Sec. IL.07. Information submitted to the board
relating to secret processes or met.hods of manu-
facture or production which is identified as confiden-
tial when submitted shall, not. be disclosed. . _
‘ESec. 2.13, AI”,, inform&ion, documents, and data
roUected ‘ty the board. . . are property of the State.
Su’bJect to t:he l.imitat,ions of Sec,tlc;;n 1,. 07, . ak:l
records uf t:he board are ptibric records open to Inspec-
tion ‘by any person during regular office hours.
“Sec. 2, Y,4. Subject to the limltations of .Secrlon 1: 07
~ 1 the ‘board shall furnish certified or other copies
of any proceeding or other official act of record- or of
any map, paper, or document filed with the board,, i . I’
In Attorney General Opinion H-241 (1974b, dealing with your inquiry
concerning the disclosabjlity of recomm,endations of your investigators
,. on permit applications, we said:
The Honorable Chafles R. Barden, page 3 (H-276)
“The language oft 5 2.13 above, that ‘all records of the-
board are public records, ) is very broad and we
believe it clearly applies to the documents described
in your opinion request regardless of whether a
decision has been reached on whether to grant or
deny the permit Accordingly,, it is our~bpinion that
the documents described in your letter are public
informatian,withaut reference to the Open Records
Act arid that~ the legislation making them public
information is not repealed or affected by the Open
Records Act. ”
Section 2.14 of A,rticle 4477-5, V-T. C. S. , obligates the Board to
furnish copies of all proceedings~ and official acts of the Board, and to
furnish copies of any map, paper, or document filed with the Board,
except those protected by Section 1,. 07, which declares that “Information
submitted to the Board relating to secret processes. . . shall not be
disclosed. ” The Open Records Act does nothing~to alter the confidentiality
of such secret processes. Article 6252-17a, Section 3 (a)(l). (10). Nor does
it extend confidentiality to other records of the Board specifically made p;blic.
We are of the opinion, therefore, that your first and second questions
should be answered that the names of,persons~ complaining of emissions~
of air pollutants and their verbatim statements, to the extent that they
appear in the records of the Air Control Board, are public documents and
copies should be furnished to those requesting them. To the extent that.our
decision conflicts with Attorney General Opinion M-957 (1971), that opinion
is overruled.
In vi~ew of our determination that the Open Records Act was not intended
to restrict the availability of information made public by other statutes, our
answer to your third question is that .the contemplation of legal action or its
pendancy does not cause information available under Sec. 2.14 to cease to be
public. S,ection 3 (a)(3) of Article 6252-17c, V. T. C. S., does not apply.
Similarly, even should we consider the Board to be a law enforcement
agency, the exception by Sec. 3 (a) (8) of Article 62,52-17~. of certain records
of such agencies from the Open Records Act, does - not have the effect of
,p. 1290
.
The Honorable Charles R. Barden page 4 (H,-276)
amending Sets. 2. i3 and 2.14 of Article 4477-5 so as to make unavail,able
records made pub?ic and avai:lable by them.
SUMMARY
-
The names of persons complaining of emissions
from a particular source and their verbatim state-
ments submitted to the Texas Air Control Board are
declared “public” under Article 4477-5, V. T. C. S.
Very truly yours,
u Attorney GeneraI of Texas
9.
David M. Kendall. Chairman
Opinion Committee